Global CIO: In Oracle Trial, HP Might Pay Higher Price Than SAP

"Oracle has been litigating this case for years and has never offered any evidence that Mr. Apotheker was involved," Lane's letter says. "It didn't even deem him relevant enough to the case to include him on a list of witnesses for trial—until, that is, Mr. Apotheker was named CEO of HP and Oracle had other motives to tie him to the case."

In court cases, they say that if you don't have the facts, pound the law; if you don't have the law, pound the facts; and if you don't have either, pound the rostrum. I think Lane was engaging in a bit of that third option because I have a copy of publicly available court document that lists the witnesses Oracle intends to call for the trial, and it includes the names of many employees of Oracle and of SAP and of TomorrowNow and of some joint customers.

And that document with the witness list is clearly dated Aug. 5, 2010, which is almost two months before Apotheker was named CEO of HP.

If you're keeping score at home, stamped across the top of every page is the following, which gives the case number, the document number, and the date of filing: "Case4:07-cv-01658-PJH Document742 Filed08/05/10 Page1 of 12."

Maybe Oracle will decide not to call Apotheker (right—and maybe this is the year I make the NBA as a free agent), or maybe he'll be called but will only have to answer a few breezy questions before he's free to head back to HP and settle into his new job.

No, without question, Oracle's attorneys will hammer at Apotheker, who at the time of the TomorrowNow actions in question was a high-level SAP executive with at least partial responsibility for sales and support. Because this phase of the trial is about financial damages and Oracle wants to try to prove to the court that the downloading was something many people within SAP knew about, rather than just an isolated incident.

And to HP, this is gravely important because after forcing out Hurd for some pranks with expense reports, it then chose Apotheker because of his vast software experience and because of his personal integrity. That's why new HP chairman Lane lashed out at Hurd in his public letter, saying Hurd "violated the trust of the board by repeatedly lying to them in the course of an investigation into his conduct" and that Hurd "violated numerous elements of HP's Standards of Business Conduct" and "demonstrated a serious lack of integrity and judgment."

It's entirely possible that Leo Apotheker knew nothing about the TomorrowNow actions, and that he will quickly and easily answer all questions posed to him by Oracle attorneys.

But it's entirely certain that Apotheker's entanglement as a hostile witness in what is sure to be a high-profile trial will be a distraction to Hewlett-Packard, a distraction that the company surely doesn't need after the ugly departure of Hurd, the seven weeks of speculation about who the new CEO would be, the selection of Apotheker with his poor track record as a CEO, and the blistering attacks on him by Larry Ellison.

At a time when HP needs focused and consistent leadership, it is getting boatloads of drama. Surely the HP board knew that within two months of joining HP, Apotheker would become a central figure in this trial—they had to know that, right?

Or did they believe, as chairman Ray Lane would have the readers of the New York Times believe, that Apotheker wasn't on Oracle's witness list until after he was made CEO of HP, an assertion that is not only incorrect but also simply baffling?

HP and its CEO need peace and quiet so they can start creating the company's future. But for at least a while, peace and quiet is the last thing that HP and Leo Apotheker are going to get.

Some names on Oracle's witness list:

From Oracle: Lawrence Ellison, Safra Catz, Charles Phillips, Juergen Rottler, Edward Screven From SAP: Leo Apotheker, Shai Agassi, Werner Brandt, Peter Graf, Henning Kagermann, Hasso Plattner From TomorrowNow: about 40 (former) employees Oracle/TomorrowNow customers: Lexmark, NBC Universal, Pepsi Americas, Travel Centers of America, Waste Management RECOMMENDED READING: Global CIO: Are HP And SAP Perfect Match Or Train Wreck? Global CIO: An Open Letter To HP CEO Leo Apotheker Global CIO: SAP's Sweeping Turnaround: Exclusive Co-CEO Interview Global CIO: HP's $130-Billion Gamble Global CIO: Larry Ellison Puts HP In Crosshairs Via Slap At New CEO Global CIO: HP CEO Apotheker Has Deep Expertise But Checkered History Global CIO: An Open Letter To SAP Chairman Hasso Plattner Global CIO: SAP's Last Chance: It's The Customers, Stupid! Global CIO: IBM Turns Guns On Cisco With Acquisition Of Blade Network Global CIO: Oracle's Success Breeds Fear And Loathing At The New York Times Global CIO: SAP Promises Business Value Over Products: Can It Deliver? Global CIO: An Open Letter To HP CEO Leo Apotheker Global CIO: SAP Stunner: ERP Deal Boosts Customer Profit $100M Per Year Global CIO: Tibco Surges And CEO Flips Off IBM, Oracle, And SAP Global CIO: The Awesome Transformative Power Of The Apple iPad Global CIO: As HP And Oracle Brawl, IBM And SAP Snatch Customers Global CIO: SAP Confronts The Real-Time Culture Wars Global CIO: The CEO Of The Year Is SAP's Bill McDermott Global CIO: Who Is The Tech Sector's #1 Acquisition Target? Global CIO: Oracle Hammered By SAP For Stifling Customer Choice Global CIO: How SAP Is Leading The Mobile-Enterprise Revolution Bob Evans is senior VP and director of InformationWeek's Global CIO unit.

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