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SAP seeks gag order for upcoming Oracle trial

Citing a published report, SAP says lawyers should be barred from discussing the case outside the courtroom

SAP is seeking a court order to prevent Oracle’s lawyers from making public statements about the companies’ TomorrowNow lawsuit, fearing the talk will influence potential jurors and prevent SAP from getting a fair trial, according to an SAP motion filed on Friday.

To back up its request, SAP cited a recent New York Times column that said SAP had committed “the most serious business crime you can commit.” The column also said a former SAP senior executive, Léo Apotheker, “clearly knew” about the theft of Oracle software.

The New York Times acknowledged later that the column’s author, Joe Nocera, is the fiancee of the communications director of the law firm representing Oracle against SAP.

“Although the author denies knowing that his fiancee’s law firm represents Oracle, he does not deny that she was the source of the detailed information and evidence he cites in his article,” SAP’s lawyers wrote in their motion.

As a result, they asked the court to sign an order preventing lawyers on both sides from discussing the case outside the courtroom. They asked for a quick decision since the trial is due to start Nov. 1, in a federal court in Oakland, Calif.

Oracle’s lawsuit accused SAP and its TomorrowNow subsidiary of stealing thousands of big fixes, patches and other support materials from an Oracle website and using them to provide cut-price maintenance service for Oracle customers.

SAP admitted last month the illegal downloads took place, and the trial is expected to focus on how much it should pay in damages. Oracle is seeking billions of dollars, while SAP says the amount should be in the tens of millions.

The SAP filing shines a light on the challenges the Internet and social media such as Twitter and Facebook are creating for the courts. The need to control pre-trial publicity “is even stronger in the digital Internet age where access is almost immediate and, for many, addictive and irresistible,” SAP’s lawyers said in their motion.