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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

ELLEN ROSENBLUM, the Attorney General


for the State of Oregon; STATE OF OREGON, ;
Case No. 14C20043
by and through Ellen Rosenblum, the Attorney
Oregon
of
Oregon,
the
the
General for
State
THE HONORABLE COURTLAND GEYER
Health Authority, and the Oregon Department of
Human Services; and the OREGON HEALTH
ORACLE DEFENDANTS' MOTION FOR
INSURANCE EXCHANGE CORPORATION,
SANCTIONS RELATING TO THE DAVID
dba Cover Oregon, an Oregon public
JURK CID TRANSCRIPT INCLUDING
corporation,
SCHEDULING RELIEF
Plaintiffs,
REDACTED COPY, ORIGINAL COPY
FILED UNDER SEAL PURSUANT TO
vs.
AMENDED PROTECTIVE ORDER
ORACLE AMERICA, INC., a Delaware
(ORAL ARGUMENT REQUESTED)
corporation; STEPHEN BARTOLO, an
individual; THOMAS BUDNAR, an individual; ;
KEVIN CURRY, an individual; SAFIZA CATZ, ;
an individual; BRIAN KIM, an individual; RAVI
PURI, an individual; and MYTHICS, INC., a
Virginia corporation,

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Oracle.

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[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS RELATING TO THE
DAVID JURK CID TRANSCRIPT AND FOR SCHEDULING RELIEF
7101 18.000 3/672 1 3 8 9.1

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

TABLE OF CONTENTS

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Page
I.
II.

III.
IV.

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V.

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VI.
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VII.

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UTCR 5.010 CERTIFICATION......................................................................................... 1


UTCR 5.050 INFORMATION ........................................................................................... 1
MOTION......................:......................................................................................................1
INTRODUCTION .............................................................................................................. 2
FACTUAL BACKGROUND ............................................................................................. 6
Chronology of Wrongdoing.................................................................................... 6
A.
Mr. Jurk................................................................................................................... 7
B.
Lisa Udland, DOJ's Chief Counsel, Civil Enforcement Division, Issues
C.
a CID on Mr. Jurk to Compel His Testimony......................................................... 9
Oracle Issues Document Request Specifically Covering Mr. Jurk's
D.
Identity and Testimony, But the State Refuses to Produce the CID Statement.... 10
The State Misrepresents to the Court that It Has "Substantially Completed"
E.
Production in Order to Secure an Early Trial Date............................................... 11
The Markowitz Firm Instructs Oregon DOJ Attorneys to Give Sworn
F.
Testimony Based on a Heavily Redacted Version of the Jurk CID
Statement and Only Then Produces the Heavily Redacted Version..................... 11
The redactions........................................................................................... 13
1.
Deposition of Oregon Deputy Attorney General Frederick Boss ............. 16
2.
Deposition of Chief Counsel, DOJ Civil Enforcement Division, Lisa
3.
Udland....................................................................................................... 17
Oracle Moves to Compel Production of the Unredacted Transcript..................... 19
G.
The State Files a Jurk Declaration to Support Its Motion for Leave to
H.
Amend to Assert Punitive Damages Against Oracle............................................ 20
The State Capitulates on the Motion to Compel and the Motion for a
I.
Continuance at the Last Possible Moment............................................................ 21
LEGAL STANDARD....................................................................................................... 23
ORCP 46 B and D Authorize Sanctions. .............................................................. 23
A.
Criteria for dismissing claims as a basis for sanctions ............................. 24
1.
The Court may elect to exclude evidence ................................................. 25
2.
The Court Has Inherent Authority to Impose Sanctions....................................... 25
B.
ARGUMENT ....................................................................................................................26
The State's "Explanations" for Withholding the Jurk CID Statement
A.
Were False and in Bad Faith. ................................................................................ 28
The State's intentional failure to produce the Jurk CID
1.
Statement violated the Court's September 30, 2015 Order...................... 28

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PAGE i -

TABLE OF CONTENTS

710118.000 3/672 1 3 8 9. l

LANE POWELL rC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.7782200

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Mr. Jurk's Identity and the Jurk CID should not have been
withheld on the basis of work product privilege....................................... 29
The Attorney General's argument that Jurk's identity needed
3.
protection was false................................................................................... 31
The State told the Court that it had a right to withhold the transcript
4.
because defendants had not subpoenaed Mr. Jurk, but the State
knew that was false................................................................................... 32
When the State finally disclosed the Jurk CID statement on
5.
June 17, 2016, it admitted to knowing that Oracle was entitled to it........ 32
The State Breached Its Duty to Prepare its Rule 39 C(6) Witnesses, and Those
B.
Witnesses Breached Their Own Independent Obligations to Testify
Truthfiilly.............................................................................................................. 33
The State improperly altered evidence ..................................................... 33
1.
After altering the Jurk CID Statement, the State's lawyers used the
2.
misleading document to prepare its ORCP 39 C(6) witnesses,
who in turn testified inaccurately .............................................................. 34
The State's Bad Faith and Lack of Candor Taints Its Entire Case, Because It
C.
Cannot Be Trusted to Be Truthful........................................................................ 38
VIII. CONCLUSION.................................................................................................................40
2.

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PAGE ii - TABLE OF CONTENTS

710118.0003/6721389.1

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
503.778.2100 FAX: 503.778,2200

I. UTCR 5.010 CERTIFICATION

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Pursuant to UTCR 5.010, counsel for defendant Oracle America, Inc. and the individually

named Oracle employees (collectively "the Oracle Defendants") conferred by telephone and in

writing with counsel for Plaintiffs Ellen Rosenblum and the State of Oregon regarding this motion.

The parties were unable to resolve their dispute.


II. UTCR 5.050 INFORMATION

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Pursuant to UTCR 5.050, the Oracle Defendants request oral argument and official court

reporting services for the hearing on this matter. The Oracle Defendants estimate that 60 minutes

will be required for the hearing.


III. MOTION

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Pursuant to ORCP 46 B and D, and the Court's inherent authority, the Oracle Defendants

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hereby move the Court for the following discovery sanctions (some of which are alternatives to

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each other for the Court's consideration) including scheduling relief, as follows:

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(1)

A judgment of dismissal as to all claims set forth in the State's and Attorney

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General's First Amended Complaint ("FAC") with prejudice and all fees and costs to moving

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defendants;

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(2)

An order excluding any evidence offered by plaintiffs from David Jurk, including

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any of his testimony (whether by deposition, pursuant to a Civil Investigative Demand ("CID"),

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declaration or otherwise);

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(3)

An order striking any and all allegations in Attorney General Rosenblum's and the

State's First Amended Complaint ("FAC") based on testimony or evidence from David Jurk;
(4)

An order prohibiting the State and Attorney General Rosenblum from making use

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of any deposition testimony that relied upon the redacted testimony given by David Jurk pursuant

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to the State's CID ("the Jurk CID statement") including, in particular, the testimony of Oregon

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Department of Justice Deputy Attorney General Fred Boss, and Chief of the DOJ's Civil

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Enforcement Division Lisa Udland;

PAGE 1 - [REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF
7101 18.0003/6721389.1

LANE POWELL rC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 TAX: 503.7782200

(5)

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An order denying the Attorney General's and State's motion for leave to amend in

order to bring a claim for punitive damages;


(6)

Fees and costs associated with depositions that the Oracle Defendants will have to

re-take because of the misconduct of the Department of Justice and its Special Assistant Attorneys

General surrounding the Jurk CID statement;


(7)

Fees and costs associated with motions that the Oracle Defendants were forced to

file because of the State's and Attorney General's refusal to produce and ultimately late production

of the Jurk CID statement;


(8)

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Scheduling relief in the form of an extension of the fact discovery period, relief

from the hours' limitation on depositions, and a reasonable continuance of the trial date; and,
(9)

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An order compelling the Attorney General to provide all documents generated

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during her civil investigation but which have not been produced or logged, and a finding that any

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claims of privilege have been waived for failure to log the documents.

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MEMORANDUM OF POINTS AND AUTH012ITIES

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IV. INTRODUCTION

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As the Court knows well, the State and Attorney General Rosenblum are pursuing multi-

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billion dollar claims against Oracle and its employees, most of which allege fraud, racketeering

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and false claims. The stakes are high nn both sides, and vigorous advocacy is expected. But there

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are limits to vigorous advocacy: limits that guarantee due process and fair trials and ensure the

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integrity of the judiciary and its truth-seeking function. When the State government and its

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Attorney General are plaintiffs, their duty to conduct that litigation in a manner beyond reproach

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is of heightened importance, because they wield the power of the State against private parties and

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must not abuse that power. Their sole duty is to do justice. But in this case, the State, its Attorney

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General, its outside Special Assistant Attorneys General at the Markowitz firm, and the

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Department of Justice's own high-ranking attorneys, Fred Boss and Lisa Udland, have embraced

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PAGE 2 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

710118.0003/6721389.1

LANE POWGLL rC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

a "win-at-all-costs" strategy that has overstepped those limits in so many ways and to such a degree

that the integrity of the process has been incurably corrupted.

This motion focuses on the State's and the Department of Justice's decision to conceal

evidence, to mislead the Court about their compliance with their discovery obligations, to use an

altered CID transcript to prepare witnesses to testify deceptively based on that altered evidence, to

fight a motion to compel production of the complete CID transcript with a shower of false and

baseless arguments, and then finally to release the complete transcript only after all the damage

had already been done to Defendants' rights.

It all started when the State and Attorney General decided to withhold critical evidence in

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the form of sworn testimony given by former Oracle employee David Jurk in response to a civil

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investigative demand (the Jurk CID statement). The Jurk CID statement is critical evidence: we

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now know Mr. Jurk is the purported Oracle whistleblower heavily quoted in the State's complaint

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(and in the press). Mr. Jurk's CID testimony allegedly supplied the good faith basis upon which

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the State and Attorney General filed their complaint against the Oracle Defendants.

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On September 30, 2015, this Court ordered the State and Attorney General to substantially

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complete their document productions by December 31, 2015. In January 2016, Special Assistant

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Attorney General Lisa Kaner represented to the Court that her clients had complied with that order.

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With that representation in hand, this Court set trial for January 2017, over the Oracle Defendants'

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strong objections.

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Counsel's representation to this Court was, at best, misleading.

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Mont/zs before, the Oracle Defendants had requested documents concerning the identity

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and statements of the unnamed "former Oracle employee" featured centrally in the complaint.

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Though her counsel represented otherwise, the Attorney General did not produce documents

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responsive to those requests at any time in 2015, and did not produce a privilege log listing what

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she had withheld. So the first time the Oracle Defendants learned of the existence of the Jurk CID

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transcript was in late January 2016, when they started taking the depositions of the State's ORCP

PAGE 3 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

710] ] 8.000 3/672 1 3 89.1

LANE POWELL rc
601 SW SECOND AVENi.JE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
503.778.2100 FAX: 503.7782200

39 C(6) witnesses. The Attorney General and her Special Assistant Attorneys General from the

Markowitz firm apparently had concluded they could not prepare "most knowledgeable" witnesses

to testify about the foundations for the State's allegations without first showing those witnesses

the CID transcript. But if they showed the transcript to the 39 C(6) witnesses, they would have to

produce it to the Oracle Defendants, and they did not want to do that.

Instead, counsel for the State prepared and produced for the depositions a heavily redacted

version of the Jurk CID statement that deleted all identifying information about the testifier, as

well as broad swaths of questions and answers in the transcript. They deleted all testimony

favorable to the Oracle Defendants, as well as testimony establishing Mr. Jurk's lack of personal

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knowledge of much of the material they wanted to use against the Oracle Defendants. They then

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showed this version of the transcript to the State's "most knowledgeable" witnesses in order to

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"educate" them on the subjects about which Oracle intended to examine them. It was a deliberately

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incomplete and unreliable education, but it formed the basis of substantial 39 C(6) testimony from

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State's witnesses. Because those witnesses prepared by reviewing an obviously altered transcript,

IS

their testimony was necessarily inaccurate.

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Further compounding the offense is that the witnesses who went along with this scheme

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were Fred Boss, Deputy Attorney General and second-in-command in Attorney General

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Rosenblum's Department of Justice, and Lisa Udland, Chief Counsel to the DOJ's Civil

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Enforcement Division. They had no personal knowledge of the subjects for which they had been

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designated, and therefore knew they had a duty as a matter of law to prepare. They had access to

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the complete transcript, but chose instead to remain deliberately ignorant of the complete contents

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of the CID transcript they were given to review. They testified about the contents of that redacted

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CID transcript as if it were the complete truth. They knew it was not. This conduct violated their

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obligations to uphold the law as members of the Oregon Department of Justice. Lisa Udland even

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went so far as to testify that she did not know the identity of the witness, even though she had

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personally signed the subpoena to Mr. Jurk.

PAGE 4 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

7101 18.0003/672 1 3 89.1

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
503.7782100 FAX: 503.7782200

The story, unfortunately, gets worse still. In late March, Oracle and Mythics moved to

compel production of the Jurk CID transcript in unredacted form. The State and Attorney General

opposed the motion. Minutes before the June 17, 2016 hearing on the motion to compel, however,

the State and Attorney General dropped their objections and agreed to produce the unredacted

transcript. Along the way, however, the State and its lawyers made arguments and offered

explanations for their long overdue production of the complete CID transcript that were blatant

misrepresentations:

The State and Attorney General had opposed the motion to compel production of

the unredacted transcript because, they told this Court, Oracle had not yet
They knew this was false.

Oracle had

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subpoenaed the CID witness itself.

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subpoenaed Mr. Jurk a week before it and Mythics filed the motion to compel.

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The State and Attorney General further opposed the motion to compel production

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of the unredacted transcript on grounds that they were protecting a witness "from

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the risk of retribution" and "from the possibility of reprisal by Oracle against its

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former employees." When Mr. Jurk was later deposed, however, he made clear he

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never had any such concern about possible reprisal, and that Special Assistant

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Attorney General Lisa Kaner had told him he should expect his testimony to

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become public information.

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Ms. Kaner explained at the hearing on June 17 that the Attorney General had

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decided to disclose the full transcript because Plaintiffs had used Mr. Jurk's

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declaration in support of their motion to amend to allege punitive damages. But

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the State had filed that motion a full month earlier; the explanation could not

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excuse four weeks of further concealment.

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The State's and Attorney General's misconduct calls into question whether the State and

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Attorney General Rosenblum continue to withhold evidence from the Oracle Defendants and

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Mythics. Though the State has recently updated its privilege log to include materials from the CID

PAGE 5 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

710118.000 3/672 1 3 8 9.1

LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.7782200

investigation, that log is still patently incomplete. There is no way of knowing what other evidence

the Attorney General has withheld. Her document productions are still not complete, her privilege

log still omits whole categories of documents, and the representations her Special Assistant

Attorneys General have made to this Court have been repeatedly proven misleading.

It is well within the Court's power to reprimand the State, the Attorney General, and the

lawyers who represent them for their active concealment of discoverable evidence, and grant

Oracle's requested relief. That misconduct has impeded not only the Oracle Defendants' ability

to defend themselves, but also this Court's efforts to adjudicate the claims before it. They have

attempted what is tantamount to a fraud on the Court, and their misconduct has infected the entire

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case. No judge or jury can trust what they say. Dismissal with prejudice, plus costs and fees, is

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therefore the most appropriate remedy. In the alternative, the trial date must be reset: the State's

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and Attorney General's concealment of foundational evidence until nearly the end of discovery

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has impaired Defendants' right to mount a complete defense absent additional time to attempt to

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repair the injury already inflicted. In addition, defendants are entitled to monetary sanctions

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sufficient to cover the cost of depositions that now must be revisited.


V. FACTUAL BACKGROUND

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Chronology of Wrongdoing.

A.

Below is a brief summary of the State's and Department of Justice's wrongdoing. The

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details follow the bullet point summary.


July 2014. Lisa tJdland, Chief Attorney for the Oregon Department of Justice's
Civil Enforcement Division signs a CID subpoena for Mr. Jurk and the State
obtains sworn testimony from him that August.
April 2015. Oracle serves a document request on the State and Attorney General
asking for all documents regarding former Oracle employees referenced in specific
paragraphs of the complaint.
Septe`rtber 30, 201S. The Court orders the State to substantially complete its
document production no later than December 31, 2015, providing substantial
additional time to permit the State's attorneys to review documents for PHI.

PAGE 6 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

7101 18.0003/6721389. I

LANE POWELL rC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

January 2016. Lisa Kaner, Special Assistant Attorney General, tells this Court the
State had substantially completed the ordered document production. Unbeknownst
to defendants, however, who were just then starting on the task of reviewing the
State's documents, the State's production did not include the Jurk CID statement,
or any other CID-related documents.

1
2
3

January March 2016. Deputy Attorney General Fred Boss and DOJ Civil
Enforcement Chief Attorney Lisa Udland testify as ORCP 39 C(6) witnesses for
the State, relying heavily on an altered version of the Jurk CID transcript. That
heavily redacted document omitted all identifying information, all testimony
favorable to the Oracle Defendants, and all testimony showing a lack of personal
knowledge of most of the witness' anti-Oracle testimony.

4
5
6
7

March 25, 2016. Oracle notices the deposition of Mr. Jurlc.

Marc/z 31, 2016, Oracle and Mythics move Co compel production of the unredacted
Jurk CID transcript.

April S, 2016. The State finally produces a privilege log, but does not log every
document pertaining to the State's pre-litigation investigation.

10
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April 21, 201G. The State opposes defendants' joint motion to compel production
of the CID transcript asserting that defendants "have not yet attempted to depose
former Oracle employees," and that the witness' identity needed to remain
confidential because of "the risk of retribution" and "the possibility of reprisal"
against the witness. Those assertions were knowingly misleading.

12
13
14

May 16, 2016. The State files its motion to amend to add punitive damages, and
uses Mr. Jurk's declaration in support.

15

June 17, 2016. Minutes before the hearing on the motion to compel, Special
Assistant Attorney General Lisa Kaner announces the Attorney General had
decided just that morning to produce the unredacted Jurk CID transcript, explaining
that Oracle's subpoena of Mr. Jurk was the reason the State had decided to use his
declaration in support of its punitive damages motion.

16
17
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19

B.

Mr. Jurk.

20

In 2014, the Oregon Department of Justice ("DOJ") conducted an investigation into

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potential claims against Oracle. It conducted that investigation largely in private, and it issued a

22

number of CIDs under the guise of its statutory authority to compel information from individuals

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and entities involved i~1 the HIX and Modernization projects.

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ORS 166.730. Lisa Udland signed all of the CIDs of which defendants are aware, including one

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served on former Oracle employee, David Jurk.

PAGE 7 -

See generally ORS 180.775;

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

7101 18.0003/6721389.1

LAND POWELL Pc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.7782200

Mr. Jurk worked for Oracle in two different stints between ]une 2010, and February 2013.

Mr. Jurk joined Oracle in June 2010, as a Consulting Technical Manager and worked on two

projects before resigning in January 2011. (Declaration of Pilar C. French ("French Decl.") Ex. 1

at 2; Ex. 2 (Durk Depo. at 66:6-69:10).) Shortly after he left Oracle, Mr. Jurk became dissatisfied

with his new job and decided he wanted to return to Oracle. (French Decl. Ex. 2 (Jurk Depo. at

89:21-90).) He reapplied for his former position at Oracle, and Oracle rehired him in mid-January

2012. (Id. Ex. 1 at 2.) After his re-hire, Mr. Jurk worked on the Oregon HIX project as a

WebCenter~ lead for approximately six months and then transitioned to the role of solution

architect and SOA lead, which he held for another six months.2 (French Decl. Ex. 2 (Durk Depo.

10

at 181:11-182:5).)
Apparently, no job interested Mr. Jurk for long. Near the end of his second stint at Oracle,

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12

Mr. Jurk secretly lobbied for a job with Cover Oregon,

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(French Decl. Exs. 4-5,) Mr. Jurk told

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lying to them, and that if Cover Oregon hired him, he could help them "counter these ploys" and

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"malc[e] Oracle accept responsibility for their products performing as they should." (French Decl.

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Ex. 4.) Cover Oregon did not hire him, but Mr. Jurk did land a job with CGI to work on the

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Vermont HIX project. (French Decl. Ex. 2 (Jurk Depo. at 92:15-93:24),) Mr. Jurk's last day at

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Oracle was in February 2013, but while he was still on Oracle's payroll and before the end of his

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notice period, he started working for CGI. (French Decl. Ex. 2 (Durk Depo. at 304:24-305:6),)

20

When Oracle discovered Mr. Jurk's dual employment, it immediately terminated him, revoked his

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access to Oracle proprietary data and systems, and reminded him of his obligations with respect to

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Oracle's intellectual property. (French Decl. Ex. 6.)

23

~ Oracle WebCenter is software that enables businesses to create and operate websites and portals
employees.
and
partners,
customers,
for
http://www.oracle.com/technetwork/middleware/webcenter/suite/overview/index.html.

24
25
26

that Oracle personnel were

Z Oracle SOA is a suite of software that enables system developers to design, create, deploy, and
applications,
business
manage
http://www.oracle.com/us/products/middleware/soa/overview/index.html.

PAGE 8 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

7101 18.000 3/672 1 3 8 9.1

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.7782200

C.

Lisa Udland, DOJ's Chief Counsel, Civil Enforcement Division, Issues a CID on
Mr. Jurlc to Compel His Testimony.

2
3

More than a year after Mr. Jurk left Oracle, on July 17, 2014, Lisa Udland issued a CID

"commanding" Mr. Jurlc to appear and testify under oath at a location in Grand Rapids, Michigan.

(French Decl. Ex. 7.) Ms. Udland signed the CID notice herself. (Id.) Though the CID set

Mr. Jurk's testimony for August 12, Mr. Jurk appeared at the designated location in Grand Rapids

on August 8, 2014, and gave sworn testimony beginning at approximately 1:20 PM.3 (Declaration

of Nellie Q. Barnard ("Barnard Decl.") Ex. 1 at 1, 6.) Lisa Kaner examined Mr. Jurk for

approximately four hours, resulting in the 128-page CID statement. (Barnard Decl. Ex. 1 at 6 and

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127.) No other attorneys were present for that examination.

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The Jurk CID statement reveals extensive testimony relevant to the State's claims and

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Oracle's defenses in this lawsuit, including testimony about whether Oracle's statements about its

13

software were accurate, whether Oracle's software was appropriate to the project and could have

1 c}

resulted in timely delivery of the HIX, whether the State or Oracle served as the systems integrator

15

for the project (and why), and whose fault it was that the HIX project was delayed. (French Decl.

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Ex. 7; Barnard Decl. Ex. 1 at 30-31; 43-45; 67; 72; 87; 105-106). At least 24 paragraphs of the

~~

complaint in this case expressly quote or implicitly rely on testimony from the Jurlc CID statement.

1g

(See Declaration of Robert Uriarte ("Uriarte Decl.") Appendix 1.)

19

Off the record, Ms. Kaner advised Mr. Jurk that his testimony would be a matter of public

20

record, a fact that apparently did not trouble him in the least, as he testified in his recent deposition:

21

"Q. Were [sic] you ever asked to keep the fact that you had given
this testimony confidential, and not to tell anyone that you had given
this testimony?

22

A. No, exactly the opposite. Ms. Kaner encouraged rrce at every


point to be aware that any communication * * *were public
do`nairt.")

23
24
25
26

~ The discrepancy between the CID notice date (August 12) and date of Mr. Jurk's CID statement
(August 8) is one of several indicia of additional communications between the Markowitz firm
and Mr. Jurk that have not been disclosed or produced to Defendants.

PAGE 9 -

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF

710118.0003/6721389. I

LANE POWELL rc
60I S W SECOND A VENUE, SUITE 2] 00
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.778.2200

(French Decl. Ex. 2 (Durk Depo. at 34:4-12 (emphasis added).)

The State filed its lawsuit in this case two weeks after it obtained Mr. Jurk's CID statement.

Its complaint directly quotes Mr. Jurk's CID statement but does not identify him by name, and

prominently relies on the Jurk CID statement to support several allegations. (Compl. 5, 12, 13,

90, 106, 157, 168.) The principal "factual" allegations Mr. Jurk's testimony purports to support

are that Oracle influenced the State not to hire an independent systems integrator ( 5, 90), that

Oracle misrepresented the availability of a "flexible," "integrated" "solution" that worked "out-of-

the-box" ( 12), and that "Oracle's products were seemingly configured `by a kindergartner"'

( 13). (See also Uriarte Decl. Appendix l (which is a chart identifying each paragraph in the First
Complaint

apparently

premised

on

Mr. Jurk's

testimony);

see

also

10

Amended

11

http !/~vw~v 1~i~li~urr~als ci~m/ o~t`tland/bl~~<~7/health-care-inc/2014/08/or~~cle-whistleblower-f~;~Lues-

12

rcp ~niinentlwin-states.htn~l (media report describing State's complaint as premised on "first hand"

13

knowledge by a "whistleblower" who would later turn out to be Mr. Jurk, whose testimony was

14

based, as he himself admits, on conjecture and hearsay); French Decl. Ex. 8 (chart identifying

IS

allegations enumerated in article and confirming which ones come from Jurk CID transcript; six

16

of the eight allegations identified in the article are based on Mr. Jurk's CID statement).)

17

D.

18

Oracle Issues Document Request Specifically Covering Mr. Jurk's Identity and
Testimony, But the State Refuses to Produce the CID Statement.

19

Oracle issued document requests to the State targeted at Mr. Jurk's identity and the CID

20

statement on April 30, 2015. That request to produce sought "[aJll documents regarding the

21

foFneer and current Oracle employees t/zat are referenced in the Complaint, including, but not

22

limited to, all documents regarding the allegations in paragraphs 5, 12, 13, 90, 106, 157, and 168

23

of the Complaint, and documents sufficient to identify the forrrcer or current Oracle employees

24

referenced in those paragraphs." (French Decl. Ex. 9 (RFP No. 159) (emphasis added).)

25

Although the State was ordered to produce responsive documents on October 30, 2015,

26

and December 31, 2015, the State did not produce the Jurk CID statement, or assert any need to

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protect the identity of any confidential "informant" under OEC 510. (French Decl. Exs. 1U, 24.)

But it would later make that assertion in opposing the motion to compel production. The State did

not disclose Mr. Jurk's identity as a witness, or include the Jurk CID statement (or numerous other

documents generated in its civil investigation) in the privilege log it produced on April 5, 2016, or

in its May 31, 2016 or July 11, 2016 revised logs. (Uriarte Decl. 2.)

E.

The State Misrepresents to the Court that It Has "Substantially Completed"


Production in Order to Secure an Early Trial Date.

On January. 11, 2016, despite having withheld the Jurk CID statement in violation of the

September 30, 2015 Order, Special Assistant Attorney General Kaner represented to the Court that

10

"Yes, Your Honor, we complied with your order to substantially complete our production * * *"

11

and confirmed "[w]e believe our production is substantially complete * * *.

12

substantially completed the production for all of the original [document] requests, the 400-and-

13

some requests." (French Decl. Ex. 11 (1/11/16 Hearing Tr. at 117:16-118:5).) Based on this

14

representationand over Defendants' vigorous objectionsthe Court scheduled trial for

15

January 2017.

16

F.

[W]e have

1~

The Markowitz Firm Instructs Oregon DOJ Attorneys to Give Sworn Testimony
Based on a Heavily Redacted Version of the Jurk CID Statement and Only Then
Produces the Heavily Redacted Version.

18

Oracle served the State with Rule 39 C(6) deposition notices on October 19, 2015.

19

(French Decl. Exs. 12-13 (Deposition Notices to OHA and DCBS).) Among other topics, Oracle's

20

Rule 39 C(6) notices sought the testimony of the State's "most knowledgeable" witnesses on:

2]
22
23
24
25
26

(1)

The State's evaluation of Oracle's presentations and/or written submissions to be

selected as the primary IT provider for the Modernization and HIX-IT projects;
(2)

The State's assertion that Oracle made "material misrepresentations" and false

statements about the "Oracle Solution" proposed to the State;


(3)

Cover Oregon's assertion that Oracle made material misrepresentations about the

HIX project that caused Cover Oregon to contract with Oracle and pay Oracle's bills;

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1
2
3
4
5

(4)

Cover Oregon's allegation that Oracle assigned people to work on the HIX-IT

project who lacked minimum levels of training, skill, and experience; and
(5)

Cover Oregon's allegation that it performed the duties required of it under its

contracts with Oracle.


The State designated Fred Boss and Lisa Udlandboth high-ranking DOJ attorneys and
But neither Mr. Boss nor

counsel of record in this litigationto testify on these topics.

Ms. Udland had any personal knowledge of the subjects about which they were designated to

testify. Those witnesses therefore had an obligation as a matter of law to prepare to testify fully

and completely regarding the noticed topics, including by reviewing relevant documents and

10

interviewing knowledgeable people available to them. (See, infra, Section VII.B.2.)

11

The State's lawyers at the Markowitz firm know their duties to prepare a corporate

12

designee completely. They even published an article on the subject. (See David Markowitz and

13

Lynn Nakamoto, The Basics for Deposing Entities Under Rule 30(B) (6), Oregon State Bar

14

Litigation

15

htt~//~vw~v markc~witzherbold com/pre55-room/Articles/The-Basics-for-Deposing-Entities-

16

Ilndei--Rule-30-h-6).) In the article, the authors acknowledge the duty to prepare the designee:

Journal,

Fall

2010,

Volume

29,

Number

3,

available

at

19

The organization has a duty to prepare its designee as to knowledge


of the subject matter identified in the notice, including information
that is reasonably available to it through review of documents within
its control, conversations with current or former employees, reading
relevant testimony in the matter, or other sources of information.

20

The same article also warns that failure to prepare a witness can "backfire" and "[fJor serious

21

disregard of discovery obligations and orders, sanctions may include severe penalties, such as

22

deeming allegations of a complaint as having been established." (Id.)

17
1g

23

Aware that Mr. Jurk's testimony addressed the topics for which Mr. Boss and Ms. Udland

24

were designated, the State's attorneys apparently decided that, in order to prepare Mr. Boss and

25

Ms. Udland for their Rule 39 C(6) depositions, they needed Mr. Boss and Ms. Udland to review

26

portions of Mr. Jurk's CID statement. (See Petranovich Decl. ISO Motion to Compel, dated

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3/31/2015, Exs. 4, 5, 6 (and filed under seal already).) But the Markowitz lawyers also seem to

have decideddespite Mr. Boss and Ms. Udland's obligation to prepare fully on their designated

topicsthat Mr. Boss and Ms. Udland would only review the portions of the statement that

helped the State's case. (Id.) Accordingly, the State's lawyers prepared a heavily redacted version

of the Jurk CID statement and provided only that version to Mr. Boss and Ms. Udland. (See id.;

French Decl. Ex. 14 (Apri121, 2016 Declaration of Lisa Kaner 4, 5).) The State also produced

that heavily redacted version to Oracle on January 22, 2016, less than a week before the Boss and

Udland 39 C(6) depositions commenced. (Id.) This was the first time that Oracle had seen the

Jurk CID statement in any form.

10

1.

The redactions. For the Court's convenience, Oracle has attached a copy of the

11

Jurk CID statement with the portions previously redacted by the State highlighted in grey so the

12

Court can understand the full impact of the redactions. (See Declaration of Nellie Barnard

13

("Barnard Decl.") Ex. 1.) As the Court can see from Exhibit 1, after the State's attorneys finished

14

their redactions:

15
16

Only 67 of the 128 pages of Mr. Jurk's CID testimony made the Markowitz lawyers'
cut;

17

56 of those 67 pages contained redacted questions, answers, or both.

18

The Markowitz lawyers redacted Mr. Jurk's name and all testimony regarding his

19

specific role on the project.

20

The Markowitz lawyers also meticulously removed testimony by Mr. Jurk that was

21

critical of the State and Caver Oregon, as well as testimony by Mr. Jurk that was

22

favorable to Oracle.

23
24
25

The Markowitz lawyers also removed testimony that showed Mr. Jurk frequently
lacked personal knowledge of the "facts" to which he was testifying.
(Barnard Decl. Ex. 1.)

26
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1
2

Thus, the material the State's lawyers decided to hide from the State's "most
knowledgeable" witnesses included:

Statements directly undermining the State's claims in this case;

Statements supporting Oracle's arguments in this case;

Context surrounding the unredacted material that either alters the meaning or lessens

the impact of that material;

Statements undermining Mr. Jurk's competence as a witness, including admissions that

reveal he has no personal knowledge of some of the statements contained in the

unredacted portions; and

10

Statements making clear that he is deeply and irrationally biased against Oracle.

11

To provide a few specific examples, the State's lawyers completely removed Mr. Jurk's

12

testimony that "there was certainly a share of blame that needs to be assessed to the State of

13

Oregon in the body of Carolyn Luwsort and her office, and certainly Cover Oregon us well" with

14

respect to project delays. (Barnard Decl. Ex. 1 at 30.) The State's lawyers also redacted Mr. Jurk's

l5

testimony that the time frame for the HIX project was a realistic one, because "the product itself,

16

those components, could haveproduced a working exchange,Ibelieve that, in the time we had."

17

(Id, at 106.) Immediately after this answerwhich directly contradicts the State's theory of this

18

caseMs. Kaner went off the record to hold a private discussion with Mr. Jurk. (Id. at 106.)

19

The State's lawyers also edited out Mr. Jurk's testimonycontrary to the State's theory of

20

the casethat various Oracle statements to the State about the capabilities of the proposed Oracle

2l

Solution were accurate. (See, e.g., id. at 67:15-19 ("Oracle's saying, again, theproposed solution

22

for Oregon includes Siebel Public Sector, which allows users to interface/utilize Microsoft

23

Office. That's true * * *."); 72:25-73:5 ("Anil the~t the next requirement here is T-630, security,

24

referring to encryption capabilities, and Oracle is saying that, too, is out of the box * * *I

25

suppose it does provide it. "); 87:4-9 ("These deterrrcination requirements in here that talk about

26

tune aye easy softballs for Oracle here because OPA is a realtime system."); 101:3-7 ("Q And

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this representation says that because they're insulated, it allows components to be upgraded,

replaced, or added without iinpcccting the balance of the enterprise solution. A, That's true.").)4

The Markowitz firm further redacted various passages of testimony that Mr. Jurk and others

repeatedly warned the State about various project problems (id. 94:7-98:4), as well as testimony

that Cover Oregon blamed the State for certain problems (id. 124:25-125:2 ("[FJro~n Cover

Oregon's perspective the State was as much responsible for the lateness of the functionality as

Oracle was.").)

In addition to wholesale removal of Oracle-friendly testimony from the Jurk CID

statement, the State's lawyers also used selective redactions to render several of Mr. Jurk's

10

answers materially misleading. For example, the Markowitz lawyers performed the following

11

redaction (highlighted) to testimony that the State then relied on for its allegation that Oracle

12

violated the False Claims Act by submitting inflated bills to Oregon:


Q. And where you aware of whether or Clot the State was being
bi11~d for those people's time on t11e project?

13
14

19

A. II had no direct eXplicit insight into the way bills were


generated or what was being generated, but I ~m cei-~ain frou~
conversations, in my opinion, that everyone was being; billed. When
I got there, there was a team of so-called architects that had been
there for months, I mean I think since July, billing full time, and
what they were producing was literally garbage...and I know they
were billed, because I was told when I came that X millions of
dollars had already been billed by Oracle. It's all hearsay, but that's
_just whit IwasI~mean 'they weren't there for months gratis, I'll
~u~irantee you.

20

(Id. at 13:7-14:2.) The State literally deleted the first and last sentence from Mr. Jurk's answer,

21

both of which were material to the meaning of and foundation (or lack thereo f for the rest of the

~5
16
1~
1g

22
23
24
25
26

`~ All emphasis added. (See also Barnard Decl. Ex. 1 at 66:4-7 ("[SJtrictly speaking, from a
RDBMS perspective, Oracle's database meets that requirement. It is an excellent piece of
software."); 67:8-13 ("Oracle's saying its proposed solution contains Siebel Public Sector and
Oracle Siebel Server Sync, which synchronizes data for calendars anal contacts. Again,
technically it can do that sync * * *."); 93:8-13 ("Q. Were the products that were sold to Oregon
truly scalable? * * *A. * * * -- in theory, yes."); 100;6-10 ("Q.~ A~cl if you could read that and
tell one whether you think that that is [anJ accurate [description of SOAJ as of April of 2011. A.
That's an accurate depiction * * *.").)

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answer; removing those phrases fundamentally altered both the meaning and import of the

testimony.

Finally, the State removed testimony showing that Mr. Jurk's role on the HIX project was

limited and that he had no personal knowledge of many of his purported "facts." As an example,

Mr. Jurk opines in the CID statement on the accuracy of various purported statements that Oracle

made to the State in late 2010, and early 2011. Mr, Jurk did not work on the Oregon project during

that time period, was not involved in any way in the discussions between the State and Oracle, and

he testified explicitly that he had never before seen documents he was being asked about. (See id.

46:7-8; 53:1-5, 92:20-21.) -The State's lawyers redacted Mr. Jurk's testimony that he had never

10

seen those documents and had not been on the project at the time those documents were produced,

11

while leaving unredactecl Mr. Jurk's speculative statements about the veracity of the content of

12

those documents. (See, e.g., id. 46-47, 49-50, 58-59, 62-63, 69-93, 102-104.)

13

2.

Deposition of Oregon Deputy Attorney General Frederick Boss. The State

14

designated Deputy Attorney General Frederick Boss to testify as the Rule 39 L(6) designee for

IS

OHA and DHS on several topics.s Mr. Boss's deposition occurred over four days between January

16

29, 2016, and March 17, 2016. During his deposition, Mr. Boss testified that he relied on the

17

redacted CID statement as the basis for his testimony (French Decl. Ex. 16 (3/17/2016 Boss. Depo.

18

Vol. 4 at 466-467:16), and he identified the CID statement as providing the factual basis for

19
20
21
22
23
24
25
26

5 The State designated Mr. Boss to testify on the following topics:


(i) the State's evaluation of Oracle's presentation and/or written submissions to be selected as
the primary IT provider for the Modernization and HIX-IT Projects;
(ii) the State's assertions that Oracle made material misrepresentations and false statements
about the "Oracle Solution;"
(iii) the State's assertions that Oracle knew its representations were false or recklessly
disregarded the truth or falsity of its representations;
(iv) any and all evaluations, audits, reviews, or analyses by the State of its and/or Cover
Oregon's management of the HIX-IT and Modernization projects; and
(v) the State's transition of responsibility for and oversight of the HIX-IT project to Cover
Oregon.

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multiple elements of the State's complaint alleging Oracle misrepresentations. (French Decl.

Ex. 17 (1/29/2016 Boss. Depo. Vol. 2 at 305:9-18; 308:7-17); see also Uriarte Decl. Appendix 2.)

Mr. Boss testified that he believed he was told that the CID witness was a former Oracle

employee, that he assumed that the CID witness had personal knowledge of the facts stated in the

CID statement, and that he believed that all of the statements in the redacted CID transcript to be

true because he "did not have any reason to doubt the truth of the statements." (French Decl.

Ex. 16 (3/17/2016 Boss Depo. Vol. 4 at 469:1-8).) However, based on his experience with the

DOJ, Mr. Boss conceded that facts unknown to him regarding the CID witnesssuch as the

person's background, context, personal observations, lack of personal knowledge, or potential bias

10

against Oraclecould affect the credibility and weight Mr. Boss would assign to the testimony.

11

(French Decl. Ex. 16 (3/17/2016 Boss Depo. Vol. 4 at 470:19-475:13).) In particular, Mr. Boss

1Z

noted that the circumstances surrounding the CID witness's separation from employment at Oracle

13

would be relevant to assessing the witness's bias and credibility. (French Decl. Ex. 16 (3/17/2016

14

Boss Depo. Vol. 4 at 475:7-13).)

15

Mr. Boss also testified that, as Deputy Attorney General, he had authority to obtain an

16

unredacted copy of the CID transcript. (French Decl. Ex. 16 (3/17/2016 Boss Depo. Vol. 4 at

17

485:19-22).) When Oracle's counsel asked Mr. Boss why he did not review an unredacted copy

18

in order to fulfill his obligations under Rule 39 C(6), the attorney defending Mr. Boss's deposition,

19

David Mr~rkowitZ, instructed Mr. Boss not to answer the question. (French Decl. Ex. 16

20

(3/17/2016 Boss Depo. Vol. 4 at 483:6-10).) That instruction was either improper or tantamount

21

to an admission that Mr. Boss's outside counsel had instructed him to testify based on altered

22

evidence. (French Decl. Ex. 16 (3/17/2016 Boss Depo. Vol. 4 at 458:19-22).)

23
24

3.

Deposition of Chief Counsel, DOJ Civil Enforcement Division, Lisa Udland.

The State designated Lisa Udland, Chief Counsel of DOJ's Civil Enforcement Division to testify

25
26
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as the Rule 39 C(6) witness for Cover Oregon and Tts successor DCBS.~ Ms. Udland's deposition
2

occurred over four days between January 28, and February 8, 2016. During her deposition,

Ms. Udland testified that Ms. Kaner told her that the CID witness was a former Oracle employee.

(French Decl. Ex. 18 (2/1/2016. Udland Depo. at 186:20-187:1).) Ms. Udland further testified that

5
6
18 (2/1/2016 Udland Depo. at 90:1-9; 160:23-

7
8

161:5); Ex. 3 (2/1/2016 Udland Depo. at 165:23-166:8).)

Udland repeatedly

9
10

(Uriarte Decl. Appendix 2.) Oracle's counsel asked Ms. Udland whether she investigated or was

11

otherwise aware whether the CID witness gave any favorable testimony about Oracle, and

12

Ms. Kaner instructedMs. Udland not to answeY on the basis ofattorney-client and workproduct

13

privileges. (French Decl. Ex. 18 (2/1/2016 Udland Depo. at 189:2-19).)~

14

Ms. Udland testified that the Civil Enforcement Division, which she leads, oversees CIDs

15

issued pursuant to statutes within their purview. (French Decl. Ex. 19 (2/3/2016 Udland Depo. at

16

139:24-140:12).) She further acknowledged that in her role as Chief Enforcement Officer, it is her

17

job to ensure that DOJ files appropriate cases and pursues them in an appropriate matter.

18
19
20
21
22
23
24
25
26

~ The State designated Ms. Udland to testify on the following topics:


(i) Cover Oregon's assertions that Oracle made material representations and false statements
regarding the HIX-IT project;
(ii) Cover Oregon's allegation that Oracle did not perform its contractual obligations;
(iii) the State's transition of responsibility of the HIX-IT project to Cover Oregon;
(iv) Cover Oregon's allegation that Oracle assigned people to work on the HIX-IT project who
lacked required training, skill, and experience; and
(v) Cover Oregon's allegations that it performed the duties required of it under the parties'
contracts.
~ That instruction, like Mr. Markowitz's similar instruction to Mr. Boss, was improper.
Ms. Udland was testifying as a fact witness, not as an attorney, and had an obligation to conduct a
reasonable investigation in order to testify as Cover Oregon's "most knowledgeable" person.
Answers to questions about that investigation are neither privileged nor work product. If
Ms. Udland was advised by the State's counsel to restrict her review of the Jurk CID testimony to
the altered version and not to consult the unredacted version, that instruction was improper.

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(French Decl. Ex. 20 (1/28/2016 Udland Depo at 121:15-19).) Ms. Udland also testified that she

provided "stylistic input" regarding the draft of the State's complaint against Oracle and ultimately

"approved it for filing." (Id. at 114:22-120:7.) Ms. Udland apparently approved the complaint

without asking whether there was a good faith basis for the allegations it contained.

Like Mr. Boss, Ms. Udland could have reviewed an unredacted copy of the Jurk CID

statement but chose not to. Ms. Udland also testified unequivocally that she had no personal

knowledge of the CID witness. Ms. Udland had, however, personally signed the investigative

demand issued to Mr. Jurk. (Compare French Decl. Ex. 18 (2/1/2016 Udland Depo. at 193:17-21)

with Ex. 7.)

10

G.

Oracle Moves to Compel Production of the Unredacted Transcript.

11

Mythics and Oracle jointly moved to compel production of the full CID statement on

12

March 31, 2016. The State opposed, arguing that: (1) the CID transcript was protected attorney

13

work product; (2) the CID transcript was subject to an "informer privilege;" and (3) ORCP 39 C(6)

14

does not require a party to testify to facts known to the party's attorneys. Among other things, the

IS

State asserted that it was necessary to protect the witness' identity due to "the possibility of reprisal

16

by Oracle against its former employee." (Plaintiffs' Response to Defendants' Motion to Compel

1'7

("MTC Opp.") at 7-8.) At his deposition, however, Mr. Jurk testified that Ms. Kaner told him

18

from the start that his testimony would be public record and, far from fearing retaliation, he wanted

19

to testify. (French Decl. Ex. 2 (Durk Depo at 79:18-25).) It is hard to reconcile the State's argument

20

that Mr. Jurlc feared reprisal with Mr. Jurk's testimony.

21

The State also argued that Mythics and Oracle could not demonstrate a compelling need

22

for the State's work product because "neither Oracle nor Mythics has taken any step to obtain

23

discovery from the former employees most likely to be critical of Oracle's work in Oregon."

24

(MTC Opp. at 9.) This, too, was untrue. The State knew that Oracle had weeks earlier issued a

25

notice for Mr. Jurk's deposition and subpoena. (French Decl, Ex. 21.)

26
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1
2

H.

The State Files a Jurk Declaration to Support Its Motion for Leave to Amend to
Assert Punitive Damages Against Oracle.

On May 16, 2016, the State filed a Motion for Leave to Amend to Allege Punitive

Damages, relying heavily on a declaration of Mr. Jurlc.g A careful read of Mr. Jurk's declaration

suggested that he was the secret CID witness. Accordingly, Mythics promptly filed a supplemental

reply in support of its motion to compel the unredacted CID transcript. Mythics argued that if

Mr. Jurk was in fact the State's claimed confidential informant, then the State had no legitimate

basis to continue withholding the unredacted CID Statement. (See May 19, 2016, Supplemental

Reply ISO Motion to Compel.) The State continued withholding the statement.

10

Because the State withheld Mr. Jurk's identity and violated its obligation to produce the

11

complete transcript by October 30 or December 31, 2015, at the latest, Oracle did not know that

12

Mr. Jurk's testimony was central to the State's complaint. Oracle thus had not deposed Mr. Jurk

13

when the State filed its Motion for Leave to Amend to Allege Punitive Damages. Unaware that

14

Mr. Jurk was the unidentified witness, or when its opposition to the State's Motion to Amend

~5

would be due, Oracle had previously scheduled Mr. Jurk's deposition for July 12, 2016. That date

16

turned out to be after Oracle's June 22, 2016 deadline to oppose the State's Motion for Leave to

17

Amend. The State was aware of this scheduling issue, but did nothing to correct it.

1g

Upon learning that the State's Motion for Leave to Amend to Add Punitive Damages relied

19

heavily on Mr. Jurk's declaration and that he was likely the unidentified witness, Oracle

20

approached the State with various reasonable scheduling proposals that would allow Oracle to

2~

depose Mr. Jurk before opposing the State's Motion for Leave to Amend. The State rejected them

22

all. (See Motion for Continuance for Discovery to Respond to Motion to Amend to Allege Punitive

23

Damages at 7-8.) Oracle was thus forced to move this Court for a continuance of the briefing

24
25
26

g Mr. Jurk's declaration contained false statements regarding his job title, the duration of his tenure
at Oracle, and the period of time that he worked on the Oregon HIX project. The State filed an
"amended" Jurk declaration on June 3U, 2016, after these falsehoods came to light during
Mr. Jurk's June 28, 2016 deposition. (See French Decl. Ex. 1.)

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schedule, so that Oracle could take Mr. Jurk's deposition before opposing that motion. The State

opposed the motion for a continuance, forcing Oracle to file its reply on Friday, June 17, 2016 (the

same day Defendants' motion to compel was scheduled to be heard). The hearing on Oracle's

motion for a continuance was scheduled for the following Monday, June 20.

I.

The State Capitulates on the Motion to Compel and the Motion for a Continuance at
the Last Possible Moment.

Literally minutes before the start of the hearing on Oracle's motion to compel on June 17,

2016, the State's attorney, Lisa Kaner, advised counsel that the Attorney General would

"voluntarily" produce an unredacted version of the Jurk CID statement after all. (French Decl.

10

Ex. 22.) Ms. Kaner then asked the Court to deem the motion moot, but counsel for Mythics argued

11

that State's last-minute concession did not resolve all issues. (French Decl. Ex. 22 (6/17/2016

12

Hearing Tr. at 111:4-116:11).) The Court recognized that the State's refusal to earlier produce the

13

full CID transcript had impaired Oracle's depositions of Mr. Boss, Ms. Udland, and possibly

14

others, and that further depositions of these witnesses may be appropriate. (French Decl. Ex. 22

15

(6/17/2016 Tr, at 116:14-20).) Counsel for Mythics advised the Court that it and Oracle would

16

seek sanctions and other relief based on the discovery misconduct of the State and its counsel, and

17

the Court agreed to entertain such motions. (Id.)

18

At the hearing, in an attempt to defend the State's serial acts of misconductfailing to

19

timely produce the transcript, misleadingly redacting the transcript, withholding the unredacted

20

transcript from its 39 C witnesses, using Mr. Jurk's declaration in a motion to amend without

21

having produced the complete transcript or disclosed his identity (even on a privilege log), and

22

agreeing to disclose the unredacted version only on the date of the motion to compel hearing-

23

Ms. Kaner told the Court that the State "did not anticipate that we were going to use [Jurk's]

24

declaration until Oracle noticed [Jurk's] deposition. And so his identity would have remained

25

confidential had Oracle not taken the steps of noticing his deposition." (French Decl. Ex. 22

26

(6/17/2016 Hearing Tr. at 117:20-118:1).)

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Oracle, however, had noticed its intent to serve a deposition subpoena for Mr. Jurk in

March 2016, a full month before the State opposed the motion to compel production of the

unredacted transcript. (French Decl. Ex. 21 (Oracle March 2016 Notice of Deposition).) If, as

Ms. Kaner said, Oracle's subpoena to Mr. Jurk was actually what encouraged the State to reveal

Mr. Jurk's identity, the State had no basis for opposing defendants' motion to compel or for waiting

three additional months before producing the full CID statement.

Similarly, on that same day and into the weekend before the Monday hearing on Oracle's

motion for continuance of the briefing schedule on the motion to amend to add punitive damages,

the State finally agreed to allow Oracle to depose Mr. Jurk before filing its opposition. The

10

agreement ultimately reached was nearly identical to one of Oracle's original proposals.

11

(French Decl. Ex. 23 (6/20/16 Hearing Tr. at 4;11-24); French Decl. ISO Motion for Continuance

12

at 3).) Once again, the State had taken a knowingly insupportable position, forced Oracle to spend

13

time and money briefing an unnecessary motion, and then recanted its position to resolve the issue

14

just before the scheduled hearing. (Id.)

]5

The State's capitulation in these respects came more than nine months after it had been

16

ordered to produce the .Turk CID statement, six months after representing to the Court that it had

17

substantially completed its production, five months after the 39 C(6) depositions, and just over two

18

months before the close of discovery. The State and its lawyers thus kept a key document out of

19

Oracle' hands for more than a year, deprived Oracle of the benefits of its 39 C(6) depositions, and

20

prejudiced the development of its defenses, which might have been different had it known of

21

Mr. Jurk's identity and statement earlier. Moreover, Oracle has no means of knowing what else

22

has been withheld under the guise of privilege, because the State's privilege log is still incomplete.

23
24
25
26
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VI. LEGAL STANDARD


2
3
4

A.

ORCP 46 B and D Authorize Sanctions.


ORCP 46 governs when a trial court may impose sanctions for a violation of discovery

obligations. ORCP 46 B(2) provides for sanctions for violating court orders:
If a party or an officer, director, or managing agent or a person
designated under Rule 39 C(6) or Rule 40 A to testify on behalf of
a party fails to obey an order to provide or permit discovery * * * ,
the court in which the action is pending may make any order in
regard to the failure as is just including, but not limited to, the
following:

9
10
11
12
13
14
l5
16
17
18
19
20
21
22
23
24
25
26

B (2)(a) Establishment of facts. An order that the matters that


caused the motion for the sanction or any other designated facts shall
be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order.
B (2)(b) Designated matters. An order refusing to allow the
disobedient party to support or oppose designated claims or
defenses, or prohibiting the disobedient party from introducing
designated matters in evidence
B (2)(c) Strike, stay, or dismissal. An order striking out pleadings
or pants thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or any part thereof, or rendering a
judgment by default against the disobedient party.
B (2)(d) Contempt of court. In lieu of or in addition to any of the
orders listed in paragraph B(2)(a), B(2)(b), or B(2)(c) of this rule,
an order treating as a contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
B (2)(e) Inability to produce person. Any of the orders listed in
paragraph B(2)(a), B(2)(b), or B(2)(c) of this rule when a party has
failed to comply with an order under Rule 44 A requiring the party
to produce another person for examination, unless the party failing
to comply shows inability to produce the person for examination.
ORCP 46 D authorizes the Court to award sanctions even where no specific order has been
violated. ORCP 46 D provides:
If a party or an officer, director, or managing agent of a party or a
person designated under Rule 39 C(6) or Rule 40 A to testify on
behalf of a party fails to appear before the officer who is to take the
deposition of that party or person, after being served with a proper
notice, or to comply with or to serve objections to a request for
production or inspection submitted under Rule 43, after proper

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service of the request, the court where the action is pending on


motion may make any order in regard to the failure as is just
including, but not limited to, any action authorized under paragraphs
B(2)(a), B(2)(b), and B(2)(c) of this rule.

1
2
3
q.
5
6

Appropriate sanctions for violations under ORCP 46 B and D may include awarding
attorney's fees and costs against the offending party. ORCP 46 B(3), D.
1.

Criteria for dismissing claims as a basis for sanctions. Though case dispositive

sanctions are considered "drastic" and should be reserved for the most severe violations of rules

and court orders, see Johnson v. Eugene Emergency Physicians, P.C., 159 Or. App. 167, 173, 974

P.2d 803 (1999), dismissal may nevertheless be ordered if the Court makes findings that the

10

sanction is "just" in view of the other available sanctions, and that the offending party's violation

11

was willful, in bad faith or of a fault of similar degree. Parnplin v. VictoYia, 319 Or. 429, 437, 877

12

P.2d 1196 (1994) (en banc).

13

Willfulness or bad faith is established by "disobedient conduct not shown to be outside the

14

control of the litigant." Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) (citation

~5

omitted). Case dispositive sanctions may be appropriate where the Court finds that that the

16

offending party acted with "dishonesty, not just recalcitrance and delay, regarding production of

17

critical evidence." Valley Engineers v. Electric Eng'g Co., 158 F.3d 1051, 1056 (9th Cir. 1998)

1g

(sanction of dismissal appropriate where offending party concealed production of key

19

memorandum with frivolous objections after being ordered to produce).

20

The Court is not required to find that the moving party was prejudiced before making a

21

sanction, but it may consider prejudice in deciding to impose a sanction. Stasch v. `69 Inv. Inc.,

22

147 Or. App. 46, 51, 934 P.2d 630 (1997) (explaining that bigger concern is prejudice to the legal

23

system, not the parties to the particular case). As the Ninth Circuit explained in Valley engineers,

24

158 F.3d at 1057-58,

25
26

What is most critical for case-diapositive sanctions, regarding risk


of prejudice and of less drastic sanctions, is whether the discovery
violations "threaten to interfere with the rightful decision of the

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case." While contumaciousness toward the court needs a remedy,


something other than case-dispositive sanctions will often suffice.
Dismissal is appropriate where a "pattern of deception and
discovery abuse made it impossible" for the district court to conduct
atrial "with any reasonable assurance that the truth would be
available."

1
2
3
4

There is no point to a lawsuit, if it merely applies law to lies. True


facts must be the foundation for any just result. Sometimes, as in
AnheuserBusch, a party's discovery violations make it impossible
for a court to be confident that the parties will ever have access to
the true facts. The district court found that to be so in this case. The
magistrate judge found that "EEC's conduct in the litigation has cast
such a pall upon EL;C's integrity and upon a fair and just resolution
on the merits that no alternative sanction could be effective." The
district judge expressly found this to be "a perfect expression" of the
risk of prejudice and the inappropriateness of lesser sanctions.

5
6
7
8
9
10

(Internal citations omitted).


2.

11

The Court may elect t4 exclude evidence. Where there is evidence that a failure

12

to produce requested documents was intentional rather than mere oversight, the trial court is well

13

Within its authority to exclude those documents from evidence. Wash. Mut. Bank v. Freitag, 242

14

Or. App. 538, 552-553, 259 P.3d 1 (2011) (holding that trial court properly excluded party from

15

introducing documents at trial that were not produced in response to a discovery request).

16

B.

The Court Has Inherent Authority to Impose Sanctions.

1~

This Court also has the inherent power to impose sanctions. Oregon law has provided for

lg

broad judicial authority "[t]o enforce order in the proceedings before it," "[t]o provide for the

19

orderly conduct of proceedings before it," "[t]o compel obedience to its judgments, orders and

20

process," and "[t]o control, in furtherance of justice, the conduct of its ministerial officers, and of

21

all other persons in any manner connected with a judicial proceeding before it, in every matter

22

appertaining thereto." ORS 1.010; see also Espinoza v. Evergreen Helicopters, Inc., 359 Or. 63,

23

90 (2016) (inherent judicial power includes the "power to do whatever may be done under the

24

general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty,

25

property or character is at stake" (internal quotation marks omitted)).

26

circumstances, a court can dismiss an action in its entirety under its inherent authority.

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In appropriate

See Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) ("As we recognized in Roadway Express,

outright dismissal of a lawsuit, which we had upheld in Link, is a particularly severe sanction, yet

is within the court's discretion.") (citations omitted); Halaco Eng'g Co. v. Costle, 843 F.2d 376,

380 (9th Cir. 1988) ("Dismissal under a court's inherent powers is justified in extreme

circumstances, in response to abusive litigation practices, and to insure the orderly administration

of justice and the integrity of the court's orders.") (internal citations omitted).

Under Oregon law, an attorney is required to "[e]mploy, for the purpose of maintaining the

causes confided to the attorney, such means only as are consistent with truth, and never seek to

mislead the court or jury by any artifice or false statement of law or fact." ORS 9.460(2). The

10

actions of the State's attorneys, which are detailed herein, violate ORS 9.460 and therefore

11

warrant sanctions pursuant to the inherent authority of the Court under ORS 1.010. See State ex

12

rel. Bryant v. Ellis, 301 Or. 633, 638-39, 724 P.2d 811 (1986) (holding that Oregon circuit courts

13

have the authority to grant relief subject to common equitable principles, including ORS 1.010 and

14

9.460). The misconduct of the State's attorneys has so thoroughly infected every stage of these

15

proceedings that the Court should invoke its inherent authority to do whatever is necessary to

16

remedy the harm caused by these misdeeds.


VII. ARGUMENT

17
18

The State's and Attorney General's conduct concerning the Jurlc CID statement is a

19

symptom of a larger problemthey are determined to win this case at all costs, and without regard

20

to discovery rules, ethics, fair play, or even the standards to which government attorneys are held.

2l

The State's "obligation to govern impartially is as compelling as its obligation to govern at

22

all." Berger v: United States, 295 U.S. 78, 86 (1935). Its interest "is not that it shall win a case,

23

but that justice shall be done." Id.

24

obligation to "serve[] the law and not factional purposes," to "seek[] truth and not victims," and to

25

be sensitive to "fair play and sportsmanship." Robert H. Jackson, "The Federal Prosecutor," 31 J.

As government attorneys, the State's attorneys have an

26
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Crim. L. &Criminology 3, 6 (1940). While they may "strike hard blows, [they are] not at liberty

to strike foul ones." Berger, 295 U.S. at 86.

In this case, the State and the DOJ have strayed far from their mission to pursue "justice

and uphold[] the law."9 Instead, the State has systematically produced only what it needs for its

own case, while making every effort to withhold documents or information helpful to Oracle.

Here, when required to make a production, the State did not disclose the Jurk CID statement on its

privilege log or even disclose Mr. Jurk's identity. At the same time, it misrepresented to the Court

that it had substantially completed its discovery obligations when it had not done so, in violation

of the Court's September 30, 20l 5 Order. Then, the State refused to produce any form of the CID

10

statement until the State needed to use it to prepare its own witnesses for deposition, and then

11

produced only a version so heavily redacted as to alter its meaning. The State's ORCP 39 C(6)

12

witnesses who relied on it thus testified in a materially misleading manner, and were induced to

13

do so by the State's Special Assistant Attorneys General.

14

Nor are those witnesses to be excused as unwitting dupes to this misconduct; the two

15

principal witnesses who adopted the altered evidence as their own were Fred Boss and Lisa

16

Udland, two of the highest ranking members of the Oregon Department of Justice. They both had

17

access to the complete transcript, but opted not to review it, and to go along with the scheme to

18

testify deceptively.

19

In similar fashion, the State refused to identify the unidentified CID witness until the State

20

needed to do so to support its motion to add punitive damages. And it relied on that witness's

21

testimony while obstructing Oracle's right to depose him so that it might mount a fair opposition

22

to that motion.

23

For the reasons discussed more fully below, the State's discovery violations warrant

24

sanctions in the form of dismissal with prejudice and fees and costs. Its misdirection and lack of

25

candor have irreversibly corrupted the truth-seeking process. Oracle has wasted more than a year

26

~ http://www.doj.state.onus/about/Pages/index.aspx.

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trying to develop its defenses. Discovery expires in a mere six weeks and will have expired by the

time the Court hears this motion. And no one can begin to know what else has been concealed by

the State, because its privilege log is incomplete. Because the State and its lawyers have concealed

evidence and have misrepresented the true facts to this Cpurtrepeatedlytheir statements

cannot be trusted. To continue to permit them to prosecute this case in such a fashion would be a

waste of judicial resources, a waste of jurors' time, and a further waste of the defendants'

resources. The misconduct described here warrants the mast severe of sanctions, including

dismissal of the State's claims. While Oracle has also described a variety of lesser sanctions that

the Court may alternatively elect to impose, those sanctions cannot cure the harm..

10
11

A.

The State's "Explanations" for Withholding the Jurk CID Statement Were False and
in Bad Faith.

12

Litigation positions must be rooted in good faith. Wilkens v. Edwards and State of Ofegon,

13

2016 WL 1271663, at *3 (D. Or. March 29, 2016) (awarding fees against the State because

14

litigation tactics employed lacked "regard for the law and the facts of the case"). Here the State

15

asserted numerous litigation positions along the way to avoid production of the Jurl< CID

16

transcriptnot one was rooted in good faith.

17

1.

The State's intentional failure to produce the Jurk CID Statement violated the

18

Court's September 30, 2015 Order. The Court ordered the. State to produce all responsive

19

documents that did not need to be reviewed for PHI by October 30, 2015, and to substantially

20

complete discovery by December 31, 2015. (French Decl. Ex. 24.) The Jurk CID statement was

21

responsive to a discovery request, did not need to be reviewed for PHI, and therefore should have

22

been produced by gctober 30, 2015.

23

Moreover, in January 2016, the State represented to the Court that it had complied with the

24

September 30, 2015 Order. (French. Decl. Ex. 11.) But the State had purposefully withheld the

25

Jurk CID statement ostensibly on the grounds of privilege while at the same time failing to identify

26

the document in its privilege log or even to reveal Mr. Jurl<'s identity. (Uriarte Decl. 2.) That

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conduct amounts to an effort to mislead, and to conceal relevant evidence. The State's lawyers,

after all, represented to Oracle that anything not produced would be logged. (French Decl. Ex. 25.

(Harry's email)). Oracle relied on that representation in preparing its defense.

2.

Mr. Jurk's Identify and the Jurk CID should not have been withheld on the

basis of work product privilege. Mr. Jurk's identity and the Jurlc CID statement should never

have been withheld as privileged in the first place. The State did not cite a single case in support

of its argument that a sworn CID statement, transcribed by a court reporter and quoted in a party's

complaint, constitutes protected attorney work product. Even assuming arguendo that work

product privilege could be asserted over the CID statement, it is beyond dispute that disclosing 67

10

of its 128 pages waived any such privilege. "[A] litigant cannot use the work product doctrine as

11

both a sword and shield by selectively using the privileged documents to prove a point but then

12

invoking the privilege to prevent an opponent from challenging the assertion." Frontier Ref. Inc.

13

v. Gorman-Rupp Co., Inc., 136 F.3d 695, 704 (10th Cir. 1998); see also Verinata Health, Inc. v.

14

Segaienom, Inc., 2014 WL 4076319, at *4 (N.D. Cal. Aug. 18, 2014) ("Because the document was

i5

used as a `sword' in the prior proceedings, CUHK cannot now attempt to `shield' the remaining

16

undisclosed communications that relate to the same subject matter."); State ex rel. Grimm v.

17

Ashmanskas, 298 Or. 206, 212, 690 P.2d 1063 (1984) (under OEC 511, a party cannot use the

18

physician patient privilege as both a sword and a shield). This is especially so here, where the

19

State deliberately put Mr. Jurk's testimony at issue by repeatedly quoting it in its complaint.

20

State ofFla. ex rel l3utterwoNth v. Industrial Chems., Inc., 145 F.R.D. 585 (N.D. Fla 1991)
There the district court rejected Florida's claim that its civil investigation

2l

is instructive.

22

depositions were protected as work product and therefore not discoverable after it sued the target.

23

The Court recognized that a contrary holding would eviscerate the discovery rules every time the

24

State is a party:

25
26

[T]he State seems to believe that it can conduct abroad-based, onesided discovery, and then, after it has completely prepared for trial,
hide the results from the defendant. This goes well beyond the

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protection of "mental processes" envisioned by Hickman [v. Taylor,


329 U.S. 495 (1947)] and Rule 26(b) (3). * * *The unwieldy nature
of the State's authority, combined with the early stages at which a
CID may issue and the absence of any requirement that the Attorney
General show need before issuing a CID, prevent a conclusion that
CID material is "prepared in anticipation of litigation."

1
2
3
4
5

Id. at 588. The district court further reasoned even if the CII~ depositions did constitute work

product, substantial need and undue hardship would nonetheless require their production, and that

requiring the movant to replicate the investigation would be extremely difficult and wasteful.

Id. at 5 8 8.

Here, the State has taken the same approach as the State of Florida but worse, the State

~p

failed to disclose the existence of this evidence at alleven in a privilege logso that Oracle

11

could challenge the State's claims of privilege. The parties and the Court should not be in such a

12

position a mere six weeks before the close of discovery. The Jurk CID statement should have been

13

produced more than a year ago and certainly by no later than October 30. The State depicted

14

Mr, Jurk as its whistleblower, quoting his testimony in the complaint. The State knew he was

~5

going to be its witness; it put his testimony directly at issue. Under these circumstances it had no

16

proper basis to conceal his identity or testimony.

10

1~

Because the State's privilege log is still incomplete, Oracle has na idea what other evidence

1g

the State uncovered during its investigation. For that reason, if the Court does not dismiss this case,

19

it should compel the State to produce within 10 days every piece of evidence discovered during its

20

civil investigation, which has not been previously produced or logged. That is appropriate because

21
22
23
24
25
26

to Although the Multnomah County Circuit Court's Civil Motion Panel Statement of Consensus is
not binding on this Court, it evidences standard practices for Oregon civil discovery. Every
Oregon lawyer practicing in Multnomah County, including the State's lawyers, know it well. As
to identity of witnesses, "the court has reQuired production of documents including those prepared
in anticipation of litigation, reflecting the names, addresses, and phone numbers of occurrence
witnesses. To avoid having to produce documents which might otherwise be protected, attorneys
have been allowed to provide a list of occurrence witnesses." Witness statements if taken ~n
anticipation of litigation may be subject to work product but may be discoverable on a showing of
substantial need, which clearly exists here. (French Decl. Ex. 26 at 3.)

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any claims of privilege are waived by the State's failure to provide a complete log. Burlington

Northern &Santa Fe Railway Company v. U.S. District CouNt .for the District of Montana,

408 F.3d 1142, 1149-50 (9th Cir. 2005) (privilege waived where sophisticated party issued

boilerplate objections to discovery requests and then produced an untimely privilege log and then

made substantive changes to the same).


3.

The Attorney General's argument that Jurk's identity needed protection was

false. The Department of Justice repeatedly told this Court that it was concealing Mr. Jurlc's

identity because he was a confidential informant at risk of retribution. (4/21/16 Opp. to Motion to

Compel 7 ("informer may be at risk of retribution") and 8 (the State can "refuse to disclose the

10

identity of a person who furnished information that assisted in [the Attorney General's]

1I

investigation * * *due to the possibility of reprisal by Oracle against its former employee.").

12

That contention was baseless. First, any "informant privilege" objection was waived

13

because the State did not properly assert it in responding to Oracle's RFPs (see Mythics Motion to

14

Compel at 9-10), and because Mr. Jurk is not entitled to informant status given the central role his

15

testimony plays in supporting the State's allegations. (See Section V.D., infra); OEC 510(4) (B).

16

The Attorney General knew she had waived the objection but still forced defendants to litigate the

17

issue.

18

Second, the Attorney General knew the argument that Mr. Jurk "may he at risk of

19

retribution" or "from the possibility of reprisal" from Oracle if his identity were revealed was false.

20

At the same time that she was arguing that keeping Mr. Jurk's identify confidential was important

21

because of the risk of retribution or reprisal from Oracle, the State was telling Mr. Jurk that his

22

testimony would be public and his identity known. (French Decl. Ex. 2 (Jurk Dep. Tr. at 34:4-12)

23

("Ms. Kaner encouraged me at every point to be aware that any communication with her, any

24

material exchanged with her, were public domain.").) Mr. Jurlc was not the least concerned by

25

that; he wanted to testify. (French Decl. Ex. 2 (Durk Dep. Tr. 20:17:24).)

26
PAGE 3 I - [REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS
RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF
710118.0003/6721389.1

LANE POWELL PC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 972043 1 5 8
503.7782100 FAX: 503.778.2200

4.

The State told the Court that it had a right to withhold the transcript because

defendants had not subpoenaed Mr. Jurk, but the State knew that was false.. 'the State told

the Court to deny the motion to compel the CID witness' identity and testimony, because Oracle

and Mythics "have not yet attempted to depose former Oracle employees who were in a position

to see what the companies were doing wrong and who are likely to be critical." (MTC Opp. 13-

14.) But when it mlde this statement, the State knew Oracle had already noticed M~^. Jurk's

deposition. (See trench Decl. Ex. 21.) The State's argument to the Court that Oracle had not

attempted to depose the unnamed "former Oracle employee" was not true.

5.

When the State finally disclosed the Jurk CID statement on June 17, 2016, it

10

admitted to knowing that Oracle was entitled to it. At the June 17, 2016 hearing, the State's

11

attorney admitted that "because we have put in a declaration from Mr. Jurlc * * * in support of the

12

punitive damage motion" "it's appropriate that we unredact [his secret transcript] and provide it."

13

(French Decl, Ex. 22 (6/17/2016 Hearing Tr. at 110:13-24).) F3ut the Jurk declaration was dated

14

May 12 and served May 16. And, the State surely contemplated using Mr. Jurk as a declarant

15

weeks before it actually filed its motion for leave to amend. But the State did not produce the full

16

Jurk CID statement until June 17, 2016. The duty to supplement document production must be

17

done "promptly." ORCP 43 B(4). The State violated ORCP 43 B(4) by withholding the Jurk CID

18

statement until June 17, 2016.

19

The State's attorney also advised the Court that the State decided to "voluntarily" produce

20

the transcript only after Oracle noticed Mr. Jurk's deposition. (Id. at 117:22-118:1 ("[W]e did not

21

anticipate we were going to use his declaration until Oracle noticed their former employee's

22

deposition. And so his identity would have remained confidential had Oracle not taken the steps

23

of noticing his deposition.").) That representation confirms that the State knew on March 18, 2016

24

(when Oracle served notice on the State of its intent to subpoena Mr. Jurk) that (a) Mr. Jurk's

25

identity would be revealed, (b) the State would rely on a declaration from him, and (c) this would

26

require the State to disclose his secret transcript. The State in other words knew all these things

PAGE 32 - [REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
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7101 18.0003/6721389.1

LANE POWELL rC
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

almost t~~o weeks before Oracle qnd Mythics moved to compel on March 31, 2016. And yet the
2

State opposed that motion and urged the Court to allow it to continue to conceal Mr. Jurk's identity

and testimony, even though by its own admission it knew that disclosure was inevitable. Again,

this conduct is a clear violation of ORCP 43 B(4).

B.

6
7
8
9

The State Breached Its Duty to Prepare its Rule 39 C(6) Witnesses, and Those
Witnesses Breached Their Own Independent Obligations to Testify Truthfully.
The State and its attorneys also violated their discovery obligations by preparing 39 C(6)

witnesses to testify based only on portions of the CID statement.


1.

The State improperly altered evidence. The State claimed that its alteration of

10

the CID statement sought to redact work product information. This is a curious view of the work

11

product doctrine; the redactions excluded testimony helpful to the Oracle Defendants and

12

unhelpful to the State and Attorney General. If this is the "work product' rule on which the

13

Attorney General withheld other evidence, the Court should issue a blanket order invalidating the

14

State's assertion of work product, and order all such materials produced immediately. Redactions

]5

are not work product.

16
17
I~
19
20
21
22
23
24
25
26

As explained in Evon v. Lczw Offices ofSydneyMickell, 2010 WL 455476, *2 n.l (~.D. Cal.
Feb. 3, 2010):
Redaction is, after all, an alteration of potential evidence. The
Federal Rules sanction only very limited unilateral redaction,
see Fed. R. Civ. P. 5.2. Outside of these limited circumstances, a
party should not take it upon him, her or itself to decide unilaterally
what context is necessary for the non-redacted part disclosed, and
what might be useless to the case. It should not come as a shock to
those involved in litigation, that parties may see the outcome
differently. * * * [U]nless a particular section unmistakably has no
relevance whatsoever to the allegations in a complaint or
denials/defenses in an answer, it should be produced along with the
other relevant sections. And a word of warning to those who redact
even under this standardif you make unwarranted redactions, a
court may well award sanctions for non-disclosure of requested
evidence up to and including default/dis`nissul based on u seerreing
budfaith hiding of information.
(Emphasis added).

PAGE 33 - [REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


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7101 18.000 3/672 1 3 8 9. I

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
503.778.2100 FAX; 503.7782200

2.

After altering the Jurk CID Statement, the State's lawyers used the misleading

document to prepare its ORCP 39 C(6) witnesses, who in turn testified inaccurately. When

Oracle issued Rule 39 C(6) deposition notices, the State was obligated to designate "one or more

officers, directors, managing agents, or other persons who consent to testify on its behalf' as to

"matters known or reasonably available to the organization." The State was also obligated to make

a conscientious, good-faith effort to prepare its witnesses to give complete testimony based on all

information reasonably known t4 the organization or its counsel. See, e.g., GreatAm. Ins. Co. of

N.Y. v. Vegas Constr. Co., 251 F.R.D. 534, 539 (D. Nev. 2008) (citation omitted).11 A corporate

witness designee "cannot pick and choose between sets of facts within its corporate knowledge,"

10

nor can the designee ignore unfavorable evidence. Instead, the designee has an "independent

11

obligation totell the truth" based on all information known to the organization. 1100 West, LLC

12

v. Red Spot Paint &Varnish Co., 2009 WL 1605118, at *30-31 (S.D. Ind. June 5, 2009). "[T]he

13

rule requires, if need be, that the responding party must prepare deponents by having them review

14

prior fact witness deposition testimony as well as documents and deposition exhibits."

15

Memory Integrity, LLC v. Intel Corp., 308 F.R.D. 656, 660-661 (D. Or. 2015) (internal quotation

16

marks omitted).

17

In spite of their known obligations to properly prepare their designees, the Markowitz

18

lawyers withheld the complete Jurk CID statement from the State's ORCP 39 C(6) witnesses, and

19

prepared them with the altered version. Because those witnesses did not have the complete CID

20

statement, they testified inaccurately about what they learned from it.

21

Equally disconcerting was the fact that the witnessesboth high-ranking DOJ attorneys-

22

deliberately chose to remain only partially informed about the facts before testifying as the State's

23

"most knowledgeable" witnesses on allegations central to its claims against Oracle. When asked

24

~ ~ Although there is no published Oregon appellate case law discussing the scope of the duties
imposed by Rule 39 C(6), there is awell-developed body of case law applying Federal Rule of
Civil Procedure 30 (b)(6), which served as the model for Rule 39 C(6). Richardson-Merrell, Inc.
v. Main, 240 Or. 533, 537 n.2, 402 P.2d 476 (1965) (listing FRCP 30(b) as a "Federal Rule[]
relating to discovery -and depositions [that] served as the model for the Oregon Act.").

25
26

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710118.000 3/672 1 3 89.1

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60l SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

about the heavily redacted CID transcript, Mr. Boss admitted that his testimony might have been

different had he been given more complete information regarding Mr. Jurk's background, the

scope of Mr. Jurk's personal involvement with respect to the subject matter of his testimony, and

the circumstances surrounding Mr. Jurk's separation from employment. (French Decl. Ex. 16

5 - (3/17/2015 Boss Depo. Vol. 4 at 475:7-13).) Given that Mr. Jurk had no personal knowledge
6

regarding many of the topics discussed in his CID statement, exhibited strong anti-Oracle bias

throughout, and left Oracle on less than amicable terms, Mr. Boss's testimony would necessarily

have been different had he reviewed the entire transcript. (Section V.F.2, supra.)

Ms. Udland's testimony was similarly impaired by her deliberate ignorance of the full

10

content of Mr. Jurk's CID testimony. For example, she relied on the redacted Jurk CID statement

11

to testify that Oracle "should have known that it could not deliver the website." (French Decl.

12

Ex. 20 (1/28/2016 Udland Depo, at 166:24-167:4).) But Mr. Jurk actually testifiedin a portion

13

of the transcript that the Markowitz firm redactedthat Oracle could have delivered the website

14

in the timeframe discussed. (Barnard Decl. Ex. 1 at 105-106.) Mr. Jurk attributed delayed delivery

15

of the HIX not to technical issues, but instead to various "political" problems, some of which were

16

caused by Cover Oregon and the State and all of which arose after the project began. (Id. at 30.)

17

As another example, during her deposition, Ms. Udland pointed to a November 2013

18

internal Qracle email (marked as Exhibit 1304) as a factual basis for the State's allegation that

19

Oracle failed to appropriately staff the project. (French Decl. Ex. 18 (2/1/2016 Udland Depo. at

20

74:18-23).) Exhibit 1304 discussed a desire to hire additional resources to work on two particular

21

aspects of the project. Oracle's counsel asked Ms. Udland if Oracle ever hired the personnel

22

discussed in Exhibit 1304, and Ms. Udland gave a series of evasive, misleading, and boilerplate

23

answers:

24

Q. * * * Do you know whether those persons were hired?

25

****

26

A. Yeah. I don't ]rnow Oracle is in the best position to know the

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601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 972 04-3 1 5 8
503.778.2100 FAX: 503.778.2200

1
2
3
4
5
6

people that it hired for the, this part of the project. What I do know
is that despite numerous representations that the project will be done
in October, November, December, January, that did not happen.
Q. I move to strike the question after, the answer after "I don't
know." Do you know whether the persons, if persons were hired,
whether or not they had the requisite levels of skill, training and
experience?
****

A. Anyone that was hired or brought on board by Oracle, that would


be within Oracle's knowledge and expertise, or in their knowledge.
And again, in the end, coverExcuse me, Oracle was not able to
deliver a functional website. So .. .

****

11

Q. * * * [I]s Exhibit 1304 one indication of a document that


indicates Oracle did not assign people to the HIX-IT project with the
requisite level of training, skill, and experience?

12

A. It is * * *.

13
14

Q. Now my question to you is * * *did those persons who were


hired to fill those positions * * *have the requisite training, skill,
and experience?

l5

****

I6

A. Oracle has the knowledge of who it hired and I think anything


else beyond that, well, the fact that the technology was not delivered,
or was not functional, speaks for itself. And anything else is expert
testimony.

10

17
18
19

(French Decl. Ex. 18 (2/1/2016 Udland Depo. at 73:12-75:11).) Had Ms. Udland read the

20

unredacted Jurk CID statement, she could have actually answered counsel's questions. Mr. Jurk

2~

testified during his CID examination that Oracle did in fact bring on resources requested in Exhibit

22

1304, and that "they did amazing work" and "actually overcame the challenges of integrating

23

between the portal and Siebel." (Barnard Decl. Ex. 1 at 33.)

24

By "[s]electively" preparing for 39 C (6) depositions "with only the self-serving half of the

25

story," the Markowitz lawyers, Mr. Boss, and Ms. Udland engaged in bad faith discovery conduct

26
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RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
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601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
SQ3.7782100 FAX: 503.778.2200

in violation of pRS 9.460(2), as well as blatantly improper discovery conduct in connection with
2

their designation obligations under ORCP 39 C(6).


Their conduct is much like that of Imperial in Sciarretta v. Lincoln Nat'l Life Ins. Co., 778

F.3d 1205, 1211 (1lth Cir. 2015). As the Eleventh Circuit explained when affirming a significant
sanctions order in Sciarretta:

6
~
g
9
10
11
12
13
14
15
16

The district court determined that Imperial had acted in bad faith
based on a finding that, among other actions, Imperial hacl
selectively prepared Norris, not that it had failed to prepare him at
all. The court pointed out that Norris was prepared to answer
questions in ways that were helpful to Imperial, but that he lacked
knowledge when the questions turned to areas that might cast
Imperial in a bad light or otherwise harm it. Preparing a designated
corporate witness with only the self-serving half of the story that
is the subject of his testimony is not an act of goodfaith. * * * A
contrary result would allow Imperial to convert the investigation
into its admitted criminal behavior into a stroke of good luck.
Imperial's own employees who were knowledgeable about the
transaction that gave rise to the litigation could not take the stand
and offer non-answers like Norris did, at least not without perjuring
themselves. So t/ze company seized on the existence of the criminal
investigation as a~ oppoYtunity to craft a perfect witness for its
interests: once who was knowledgeable about helpful facts and
dumb about harrrrful ones.
Id. at 1213 (emphasis added).

17

Sciarretta applies directly here. The Markowitz arm selectively prepared Mr. Boss and

18

Ms. Ud]and to answer questions in ways that were helpful to the State while ensuring that they

19

lacked knowledge regarding evidence harmful to the State. And Mr. -Boss and Ms. Udland, for

20

their part, remained purposefully ignorant of information to which they had easy access.

21

(See Section V.F.2, 3.)1z The Court should sanction this behavior. ORCP 46 D; see GNeal Am.

22

1z Because both Mr. Boss and Ms. Udland had unfettered access to the complete Jurk CID
statement, the State's argument (MTC Opp. at 12-13) that Rule 39 C(6) does not require a party to
testify to information known only to its outside counsel is a complete red herring. The State's
argument is also wrong. E.g., In re Vitamins Antitrust Litig., 216 F.R.D. 168, 172 (D.D.C. 2003)
(obligation is to testify "to all facts known to [party] or its counsel, regardless of whether such
facts are memorialized in work product protected documents or reside in the minds of counsel");
Paul ReveNe Life Ins. Co. v. Jafari, 206 F.R.D. 126, 127 (D. Md. 2002) (same); Ballentine v. Las
Vegas Metro. Police Dept, 2016 WL 2743504, at *3-7 (D. Nev. May 9, 2016) (same); Sprint
Commz~ns. Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 529 (D. I{an. 2006) (same); GreatAm.

23
24
25
26

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RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
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7101 18.000 3/672 1 3 8 9. I

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.7782200

Ins., 251 F.R.D. at 542 ("[P]roducing an unprepared [corporate designee] witness is tantamount to

a failure to appear, and sanctionable under [Federal] Rule 37(d).") see also id. (quoting Black

Horse Lane Assoc. v. Dow Chemical CoNp., 228 F.3d 275, 304 (3d Cir. 2000) (a "witness [who] is

unable to give useful information `is no more present for deposition than would be a deponent who

physically appears for the deposition but sleeps through it."').)

C.

The State's Bad Faith and Lack of Candor Taints Its Entire Case, Because It Cannot
Be Trusted to Be Truthful.

The State's conduct has irreparably infected this case to such a degree that dismissal with

prejudice and an award of fees and costs to defendants as authorized by ORCP 46 is the only

]0

appropriate sanction.

11

The State and Attorney General and their outside counsel have repeatedly taken legal

12

positions in this case that are not rooted in good faith; they have made misleading statements in

13

open court and in their briefs.

14
l5
16
17

The State, the Attorney General, and their lawyers have improperly altered key evidence
to conceal evidence that would be helpful to the Defendants.
The State's lawyers prepared an incomplete privilege log, leaving the Court and Oracle to
guess as to what other discovery has been wrongfully withheld.

18

The Department of Justice and its outside lawyers deliberately evaded their obligations to

19

produce persons most knowledgeable by failing to review, and be prepared to testify about, the

20

entire contents of the Jurk CID transcript.

2l

The evasive tactics were willful and deliberate. As noted, DOJ attorney Lisa Udland

22

testified under oath that she did not have personal knowledge of the identity of the CID witness

23

whose redacted transcript she reviewed to prepare for her Rule 39(c) deposition. (French Decl.

24
25
26

Ins., 251 F.R.D. at 539 (same); FTC v. AMG Servs., 2015 U.S. Dist. LEXIS 114550, at *21 (D.
Nev. Aug. 28, 2015) (same); see also Memory Integrity, 308 F.R.D. at 660-661(discussing duty of
witness to review discovery responses and deposition transcripts).

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601 SW SECOND AVENUE, SUITE 2100
PORTLAND, ORCGON 97204-3 1 5 8
503.778.2100 FAX: 503.778.2200

Ex. 18 (2/1/2016 Udland Depo. at 90:1-9).) But Ms. Udland signed the CID subpoena issued to

Mr. Jurk. In addition, Ms. Udland had administrative responsibility for reviewing drafts and

approving the filing of the complaint, which relied heavily on Mr. Jurk's CID statement.

(French Decl. Ex. 20 (1/28/2016 Udland Depo. at 115:1-5; 119:23-120:7).)

testimony that she did not know Mr. Jurk's identity is simply not credible.

Ms. Udland's

Mr. Boss testified in his deposition that he delegated to Ms. Udland the responsibility for

being familiar with all of the CID statements obtained by the State during the Cover Oregon

investigation, and that Ms. Udland "had more of a hands-on knowledge and execution of the [CID

notices] and hands-on knowledge of the investigation." (French Decl. Ex. 16 (3/17/2016 Boss

10

Depo. Vol. 4 at 463:4-464:4).) Mr. Boss believed that Ms. Udland authorized and signed the CID

11

notices related to the Cover Oregon matter, and at least with respect to Mr. Jurk's CID notice,

12

Mr. Boss was correct. (Id.)

l3
14

Ms. Udland's misleading statement under oath is relevant to her own credibility, the
13
credibility of the then-mystery CID witness, and to the validity of the State's complaint.

l5

Moreover, Ms. Kaner took no steps to correct Ms. Udland's testimony. Instead, she facilitated

16

Ms. Udland's testimonial approach by preparing her with the redacted transcript. (French Decl.

17

Ex. 14 (Kaner Declaration in Support of Opposition to Motion to Compel, dated April 21, 2016).)

18

Here, the State's lawyers admit they induced the DOJ attorney witnesses to unlawfully

19

withhold relevant, material testimony about portions of the CID transcript that were adverse to the

20

State. By providing a heavily and selectively redacted LID transcript to Mr. Boss and Ms. Udland

21

for use in preparing for their depositions, the State's lawyers altered evidence and directed the DOJ

22

attorneys to ignore the complete CID transcripts, which were in the DOJ's possession and

23

control. Mr. Boss and Ms. Udland went along willingly. And, the Markowitz lawyers improperly

24

13 When the Department of Justice filed the complaint, Ms. Udland apparently made no effort to
determine if the allegations based nn statements by a "former Oracle employee" were supportable.
Perhaps even more egregious, the Markowitz attorneys apparently felt no ethical obligation to
provide her with the information from that same witness that undermined those allegations and
thus, the State's good faith basis for filing the complaint.

25
26

PAGE 39 - [REDACTED] OKACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
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7101 18.000 3/672 1 3 8 9.1

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601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3 1 5 8
503.7782100 FAX: 503.7782200

instructed Mr. Boss and Ms. Udland not to answer when asked why they did not review the

complete CID statement, suggesting that they instructed the State's 39 C(6) witnesses not to review

the unredacted transcript.


VIII. CONCLUSION

The State's discovery violations warrant sanctions in the form of dismissal with prejudice

and an award of costs and fees in accordance with ORCP 46. Lesser sanctions cannot cure the

prejudice to the system. However, in the alternative, the Court should grant the other sanctions as

set forth in Oracle's motion.

DATED: July 19, 2016

10

LANE POWELL Pc

IZ

By

Milo Petrano is , OSB No. 813376


Pilar C. French, OSB No. 962880
docketing-pdx@lanepowell.com

13
14

and

15

Brenna Legaard, OSB No. 001658


Jeffrey S. Eden, OSB No. 851903
SCHWABE WILLIAMSON & WYATT, P.C.
1211 SW Fifth Avenue, Suite 1900
Portland, OR 97204
blegaard@schwabe.com
jeden@schwabe.com

16
17
18
19

Karen G. Johnson-McKewan (pro hac vice)


Robert S. Shwarts (pro hac vice)
Erin M. Connell (pNo hac vice)
Nancy E. Harris (pro hac vice)
Catherine Y. Lui (pro hac vice)
Warrington S. Parker III (pro hac vice)
ORRICK, HERRINGTON & SUTCLIFFE, LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
kjohnson-mckewan@orrick.com
rshwarts@orrick.com
econnell@orrick.com
nharris@orrick.com

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PAGE 40 - [REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF
710118.0003/6721389.1

LANE POWELL rc
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

c(ui@orrick.com
wparker@orrick.com
Jacob M. Heath (pro hac vice)
Robert L. Uriarte (pNo hac vice)
Jason K. Yu (pro hac vice)
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025
jheath@orrick.com
ruriarte@orrick.com
jasonyu@orrick.com

2
3
4
5
6

Robert P. Reznick (pro hac vice)


ORRICK, HERRINGTON & SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, D.C. 20005-1706
rreznick@orrick.com

Michael C. Weed (pro hac vice)


Jonathan G. Riddell (pro hac vice)
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814
mweed@orrick.com
jriddell@orrick.com

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11
12
13

Christina Von der Ahe (pro hac vice)


ORRICK, HERRINGTON & SUTCLIFFE LLP
2050 Main Street, Suite 1100
Irvine, CA 92614
E-Mail: cvonderahe@orrick.com

14
15
16

Edward N. Siskel (pro hac vice)


Charles C. Speth (pro hac vice)
Jamie S. Gorelick (pro hac vice)
Nikhel S. Sus (pro hac vice)
Robert J. McKeehan (pro hac vice)
Mark D. Selwyn (pro hac vice)
Dennis S. Wang (pro hac vice)
WILMER CUTLER PICKERING HALE AND
DORR LLP
1875 Pennsylvania Avenue
Washington, D.C. 20006
edward.siskel@wilmerhale.com
charles.speth@wilmerhale.com
jamie.gorelick@wilmerhale.com
nikhel.sus@wilmerhale.com
robert.mckeehan@wilmerhale.com
mark.selwyn@wilmerhale.com
dennis.wang@wilmerhale.com

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PAGE 41 - [RFDACTEDJ ORACLE DEFENDANTS' MOTION FOR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
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7101 18.000 3/672 1 3 8 9. I

LANE POWELL ec
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.778.2200

Attorneys for Oracle America, Inc., Stephen


Bartolo, Thomas BudnaY, Kevin Curry, Safi~a Catz,
and BNian Kim

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PAGE 42 - [REDACTED) ORACLE. DEFENDANTS' MOTION POR SANCTIONS


RELATING TO THE DAVID JURK CID TRANSCRIPT INCLUDING
SCHEDULING RELIEF
7101 18.000 3/672 1 3 8 9.1

LANE POW ELL rc


60l SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.7782100 FAX: 503.778.2200

CERTIFICATE OF SERVICE
2

I hereby certify that on July 19, 2016, 1 caused to be served a copy of the foregoing

[REDACTED] ORACLE DEFENDANTS' MOTION FOR SANCTIONS RELATING TO THE

DAVID JURK CID TRANSCRIPT INCLUDING SCHEDULING RELIEF on the following

persons) in the manner indicated below at the following address(es):

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David B. Markowitz, Esq.


Lisa A. Kaner, Esq.
Dallas DeLuca, Esq.
Harry B. Wilson, Esq.
Kristin M. Malone, Esq.
Markowitz Herbold PC
3000 Pacwest Center
1211 SW Fifth Avenue
Portland, OR 97204-3730
E-Mail: davidmarkowitz@markowitzherbold.com
E-Mail: LisaKaner@markowitzherbold.com
E-Mail: dallasdeluca@markowitzherbold.com
E-Mail: harrywilson@markowitzherbold.com
E-Mail: kristinmalone@markowitzherbold.com

Hand Delivery
Pirst Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)

Robert C. Weaver, Jr., Esq.


John C. Rothermich, Esq.
Eryn Karpinski Hoerster, Esq.
Patrick J. Conti, Esq.
Garvey Schubert Barer
121 SW Morrison Street, 11th Floor
Portland, OR 97204
E-Mail: rweaver@gsblaw.com
E-Mail: jrothermich@gsblaw.com
E-Mail: ehoerster@gsblaw.com
E-Mail: pconti@gsblaw.com

Hand Delivery
First Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)

Special Assistant Attorneys Generalfor


Plaintiffs
Sheila H. Potter, Esq.
Senior Assistant Attorney General
Department of Justice
100 SW Market Street
Portland, OR 97201
E-Mail: Sheila.potter@doj.state.or.us
Attorneys for Plaintiffs

Hand Delivery
First Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)

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CERTIFICATE OF SERVICE

7101 18.000 3/672 1 3 8 9.1

LANE POWELL ec
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204-3158
503.778.2100 FAX: 503.778.2200

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Dayna Underhill, Esq.


Holland &Knight LLP
111 SW 5th Avenue, Suite 2300
Portland, OR 97204
E-Mail: dayna.underhill@hklaw.com
Timothy D. Belevetz, Esq.
Holland &Knight
1600 Tysons Blvd., Suite 700
Tysons Corner, VA 22102
E-Mail: timothy.belevetz@hklaw.com
AttoNneys for Defendant Mytltics, Inc.
Brenna K. Legaard, Esq.
Jeffery S. Eden, Esq.
Schwabe, Williamson &Wyatt, P.C.
1211 SW 5th Avenue, Suite 1900
Portland, OR 97204
E-Mail: blegaard@schwabe.com
E-Mail: jeden@schwabe.com

Hand Delivery ,
First Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)
Hand Delivery
First Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)
Hand Delivery
First Class Mail
D Electronic Mail (Courtesy Copy)
Facsimile Transmission
Overnight Delivery
D eService (File &Serve)

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Pilar C. Frenc

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CERTIFICATE OF SERVICE

7101 18.0003/6721389.1

LANE POWELL rc
60l SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 972043158
503.778,2100 FAX: 503.7782200