REDACTED Oracle Defendants' Motion For Sanctions Relating To The David Jurk CID Transcript Including Scheduling Relief

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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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g
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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
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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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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
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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
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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
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(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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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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May 16, 2016. The State files its motion to amend to add punitive damages, and
uses Mr. Jurk's declaration in support.
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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.
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B.
Mr. Jurk.
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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
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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 -
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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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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),)
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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.
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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
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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.)
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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:
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"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.")
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24
25
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~ 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.
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(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-
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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
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of the eight allegations identified in the article are based on Mr. Jurk's CID statement).)
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D.
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Oracle Issues Document Request Specifically Covering Mr. Jurk's Identity and
Testimony, But the State Refuses to Produce the CID Statement.
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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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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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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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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
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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
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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

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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).

RELATING TO THE. DAVID JURK CID TRANSCRIPT INCLUDING
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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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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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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
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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
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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).

RELATING TO THE DAVID NRK CID TRANSCRIPT INCLUDING
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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.
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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
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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
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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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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
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Robert P. Reznick (pro hac vice)

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)
400 Capitol Mall, Suite 3000
Sacramento, CA 95814
mweed@orrick.com
jriddell@orrick.com
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Christina Von der Ahe (pro hac vice)

2050 Main Street, Suite 1100
Irvine, CA 92614
E-Mail: cvonderahe@orrick.com
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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

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Attorneys for Oracle America, Inc., Stephen

Bartolo, Thomas BudnaY, Kevin Curry, Safi~a Catz,
and BNian Kim
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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
Overnight Delivery
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
Overnight Delivery
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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
Overnight Delivery
Hand Delivery
First Class Mail
Overnight Delivery
Hand Delivery
First Class Mail
Overnight Delivery
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Pilar C. Frenc
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7101 18.0003/6721389.1
LANE POWELL rc
PORTLAND, OREGON 972043158
503.778,2100 FAX: 503.7782200

REDACTED Oracle Defendants' Motion For Sanctions Relating To The David Jurk CID Transcript Including Scheduling Relief

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REDACTED Oracle Defendants' Motion For Sanctions Relating To The David Jurk CID Transcript Including Scheduling Relief

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1

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

ELLEN ROSENBLUM, the Attorney General

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

I. UTCR 5.010 CERTIFICATION

The parties were unable to resolve their dispute.

will be required for the hearing.

Enforcement Division Lisa Udland;

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

order to bring a claim for punitive damages;

General surrounding the Jurk CID statement;

of the Jurk CID statement;

An order compelling the Attorney General to provide all documents generated

MEMORANDUM OF POINTS AND AUTH012ITIES

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

that the integrity of the process has been incurably corrupted.

had already been done to Defendants' rights.

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

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

710] ] 8.000 3/672 1 3 89.1

their testimony was necessarily inaccurate.

personally signed the subpoena to Mr. Jurk.

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

7101 18.0003/672 1 3 89.1

subpoenaed the CID witness itself.

become public information.

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

excuse four weeks of further concealment.

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

710118.000 3/672 1 3 8 9.1

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

details follow the bullet point summary.

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

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

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

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

served on former Oracle employee, David Jurk.

See generally ORS 180.775;

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

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

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

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

that Oracle personnel were

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

7101 18.000 3/672 1 3 8 9.1

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

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

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

[REDACTED) ORACLE DEFENDANTS' MOTION FOR SANCTIONS

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

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-

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

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

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

representationand over Defendants' vigorous objectionsthe Court scheduled trial for

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

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

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contracts with Oracle.

counsel of record in this litigationto testify on these topics.

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

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