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GIBSON, DUNN & CRUTCHER LLP ROBERT E. COOPER (SBN 35888) rcooper@gibsondunn.com SAMUEL G. LIVERSIDGE (SBN 180578) sliversidge@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Fax: 213.229.7520 BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP MARK E. FERGUSON (pro hac vice) mark.ferguson@bartlit-beck.com SEAN W. GALLAGHER (pro hac vice) sean.gallagher@bartlit-beck.com 54 West Hubbard Street, Suite 300 Chicago, Illinois 60654 Telephone: 312.494.4400 Facsimile: 312.494.4400 Attorneys for Plaintiff and Cross-Defendant, HEWLETT-PACKARD COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA

HEWLETT-PACKARD COMPANY, Plaintiff, v. ORACLE CORPORATION, Defendant. ORACLE CORPORATION, Cross-Complainant, v. HEWLETT-PACKARD COMPANY, Cross-Defendant.

CASE NO.:1-11-CV-203163 Action Filed: Trial Date: June 15, 2011 February 27, 2012

HEWLETT-PACKARD COMPANYS NOVEMBER 22, 2011 CASE MANAGEMENT CONFERENCE STATEMENT Assigned For All Purposes To The Honorable James P. Kleinberg

Hearing Date: November 22, 2011 Time: 10:00 a.m. Dept: 1

CONDITIONALLY FILED UNDER SEAL PURSUANT TO STIPULATED PROTECTIVE ORDER ENTERED ON OCTOBER 17, 2011

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Oracle seeks to delay the trial in this matter. Given that Oracle has undertaken a business strategy that is harming customers and HPs business, in violation of Oracles contractual commitments, HP does not want to delay. HP wants Oracle to honor its contractual commitments and to answer for its conduct as soon as possible.1 A. Introductory Statement 1. Oracles Anti-Customer Business Strategy To Leverage Its Software Dominance To Drive Hardware Sales From Itanium To Inferior Sun Servers.

Oracles internal documents make clear that Oracles announcement in March 2011 that it would no longer develop or support software for Itanium servers was implemented as part of a calculated business strategy to leverage Oracles dominance in database software to try to force Itanium customers to purchase Sun servers. Oracles documents reveal that its public announcement that it was ending support for Itanium because Itanium was at an end of life was a pure pretext to hide Oracles real purpose: to take away the choice of Itanium from customers and restrict the competition faced by its inferior Sun servers. While Oracle styles itself a champion of customers in its CMC Statement, the reality is that Oracle is lying to the marketplace and harming competition to the detriment of customers. Oracle knew that its hardware products were weak. As one Oracle executive wrote in 2011, Our hardware offering is simply not strong enough to enable the channel to grow if we do not blend our offering with the software stack. (ORCL00177574.) Oracle also knew that its SPARC/Solaris server sales were on the decline. To compensate, Oracle implemented a series of tactics designed to undermine competition on the merits and force customers to migrate to Sun servers. These tactics included, and continue to include, pricing misconduct, withholding of benchmarking scores that show that HP server products outperform Oracle products and then offering misleading advertisements that capitalize on the withheld benchmarks, abusing customers on support issues, and, finally, cutting off Oracle says in its CMC Statement that HP refused to sign on to a Joint CMC Statement unless Oracle removed its explanation for the filing of its forthcoming Amended Cross-Complaint. This is a mischaracterization of the facts. HP refused to sign the proposed Joint CMC Statement because Oracle misrepresented the topics to be covered in the joint statement and tried to include at the last minute arguments and evidence regarding the merits of the case. HP appreciates the Court allowing HP additional time to file this CMC statement. 1
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software support for Itanium, despite a clear contractual commitment that required Oracle to continue to support HP hardware platforms. A senior Oracle hardware executive confirmed Oracles plans with respect to the sale of Sun server products with direct and vulgar language, writing that hp is dead because we have a lot up our sleeve and we are going to fuck hp. (ORCL00364933.) Immediately after Oracles fraudulent announcement that Itanium was near its end of life hit the wires on March 22, 2011, Oracle exhorted its sales force to strike at HPs base of Itanium customers now that Oracle believed there was blood in the water. The day after the announcement, an Oracle executive tried to whip up Oracles sales force to go in for the kill with Itanium customers now that Itanium was vulnerable: We need to make this BIG, and get out AHEAD of IBM. I want that list of accounts with Oracle on Superdome. I want [] calls from our HW Reps THIS WEEK to the top 500 those customers to open a dialogue about future directions for their missioncritical Oracle workloads running on HP-UX. And I want to document outcomes. (ORCL00001531-532.) Oracles internal documents describe Oracles sales strategy based on its Itanium announcement as a competitive assault targeted at HP server customers running Oracle databases a competitive take out sales play go to HPUX customers and move them to our gear. (ORCL00105401-403.) Oracle referred to its Itanium plan as the HP Superdome Takeout Program, our HP attack initiative, and HP Away. (ORCL0031306; ORCL00011773.) Oracle identified over 750 Itanium customers and directed its sales force to call every single one to use the uncertainty about Itaniums future created by Oracles fraudulent announcement to coerce them into abandoning Itanium for Sun servers. On March 23, 2011, an Oracle executive wrote, Monday the entire hardware sales force and channels team gets trained on the messages of our announcement. . . . Monday night they start calling 769 itanium customers and the top 50 VARS for meetings explaining our announcement, talking about M and Exa series as alternatives to itanium, and offering up Insight migration workshops to customers. (ORCL00353524-526.) Oracle internally touted its fraudulent Itanium announcement as creating a huge sales opportunity for Oracle. On March 24, 2011, an Oracle executive wrote: Todays Oracle announcement is a very significant milestone. The implications for our customers and our opportunities is immense. It is absolutely CRITICAL that we seize this opportunity to engage and execute. . . . To this end, at tomorrows Forecast 2
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Meeting I will first review yesterdays Itanium announcement with you and our immediate action plan. . . . Following the launch of our engagement activities, we will begin tracking all customer engagements in a similar manner to the CLARITY program last spring. My personal objective will be to have contacted all 485 identified customers from Tim Kellys work in the following 48 hours, and to confirm this in our tracking. (ORCL00011631.) So while Oracle was telling the marketplace that Itanium was a dying business and that Oracle was being forced to go in a different direction, internally it knew and said just the opposite that [t]his is a huge opportunity for us and everyone should be fired up and [t]heres so much for us to go after and win out there. (ORCL00027014-018; ORCL00001653-655.) Oracle targeted customers who owned HP Superdome servers running Oracle databases, knowing that Oracles announcement had its intended effect and created concern about the continued viability of operating Itanium servers. Oracle documents in fact reveal that it urged its sales teams to create fear, uncertainty and doubt in the minds of customers about the risks of not migrating off Itanium, suggesting high-level messages to be used with customers. (ORCL00353871.) On March 28, 2011, an Oracle sales executive wrote, The main targets are HP Superdomes running Oracle databases. . . . This is the ideal time to convince Superdome customers to migrate their hardware platform to a brand new SPARC server and Oracle storage. (ORCL00313028-036.) As one Oracle executive reported, Were launching a North American initiative on Monday to meet and present to every HP Itanium shop in the US and Canada, and accelerate discussions to move them to Exa* and/or Sparc. (ORCL00001653-655.) When the Oracle sales force did not initially respond with the urgency Oracles executives had hoped for in terms of aggressively targeting HPs Itanium customer base in the immediate aftermath of the Itanium announcement, Oracles executives ratcheted up the pressure on them. An Oracle senior executive wrote on March 30, 2011, a week after the announcement, I am F2F with Keith on this today. He wants to know how many customers weve contacted since the 2pm All Hands Monday. And he wants to know of the customers we contacted that will NOT take a meeting, WHY NOT and WHAT ARE WE DOING ABOUT IT? . . . Maybe we need a fucking bonfire, not a

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match. My impression is the Sales Managers (and by definition the Sales Reps) do not get the gravity or urgency. We can fix by forcing now. (ORCL00012718-722.) Oracles efforts to unseat Itanium at HPs customers did not stop with its false statements about Itaniums future viability. Oracle has also attempted to strong-arm customers into replacing their existing Itanium servers by cutting off support, including bug fixes and patches for software defects. Stunningly, this directive came all the way from the top. Not long before Oracles public announcement regarding Itanium, Oracle CEO Larry Ellison directed Oracle to stop providing certain bug fixes for Itanium customers. In an email to his senior executive team, including Oracle CoPresidents Mark Hurd and Safra Catz, Ellison wrote, Have we updated our support policies to clearly communicate that there be no more one off patches for Itanium? (ORCL00976929.) Regardless of what Ellison may have believed about the future of sales of new Itanium servers, it cannot justify his edict to withdraw support for existing Itanium customers, who were left high and dry by Oracle with bugs and other defects in their Oracle software because they had the temerity to previously purchase HP Itanium servers. Customers recognized the unfairness of Oracles actions and the utter disregard Oracle was showing for the best interests of its own customers. They complained bitterly to Oracle that they had never seen such disregard for customers and disregard for fair competition, but to no avail. Here is just a small sample of the reaction of customers in emails sent to Oracles executives: Seldom have I seen such a blatant disregard for the market, customers and fair competition. No valid reason has been provided for no longer developing oracle on itanium except the obvious covert reason of removing competition. It would have been more respectable if the announcement made was given based on the competition argument. To try to blame intel - who have a nice balance between X64 and itanium - as if they would suddenly stop wanting to make money from a high end solution is beyond me. Oracle have proved to be the most dishonorable company I have ever come across - licensing, support, competition, sales methods are without doubt akin to many third world dictators. In my 35+ years of experience in this business I have never witness such a blatant and deliberate act aimed at destroying competition, while caring not a whit about your customers. Your customers will suffer from your short sighted and egomaniacal decision on Itanium, as well as your competitors. But, I guess you do not care about your customer running on Itanium do you? In the end, I utterly despise Oracles business practices, lack of true integrity and business ethics! 4
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I never thought Id see Oracle publish an out-an-out lie just to stick it to a competitor, re: that the Intel Itanium chip is nearing end-of-life. This whole thing is shameful ad just makes Oracle/Sun look bad, and makes Larry Ellison look stupid. Five years ago Ellison said: There is no more important platform for Oracle than HP and Itanium. Youre not a reliable, honest business partner. An amazingly reckless act. I see the move of stopping development of software on Itanium as a monopolistic move and will kill the competition and will severely impact the customer rights.

(ORCL00000754.) One public sector customer highlighted the unfair impact Oracles decision to not support Itanium would have on cash-strapped government entities and other public sector customers who could not afford to switch platforms at Oracles whim: In the public sector, we are unable to secure funding for frequent server upgrades, nevertheless we are expected to maintain the most current software environment on our servers. Oracles decision to drop Itanium development will hinder our support efforts and certainly will negatively influence our view of Oracle and its attitude toward customer support. (Id.) Customers immediately recognized Oracles Itanium business strategy as self-serving and anti-customer. In particular, customers expressed dismay at the prospect of being forced by Oracle to purchase what they view as low-quality, unreliable Sun servers in the future. One Oracle customer summed his view up in an email to Safra Catz: Oracles decision to cut support for Itanium servers (and consequently HP-UX) is short sited and anti-customer. I believe that Oracle is simply trying to push customers to Sparc based solutions. I will be pushing our customer to move towards RHEL Linux in the future in order to not reward your anti-competitive behavior. System engineers Ive talked to in multiple locations (government and civilian) have all stated that Sun support has gone through the toilet since the purchase by Oracle. The Itanium/HP-UX combination has provided our customer with a stable sure platform superior to anything Sun based. Support services are also far better than any interaction weve had with Oracle. (ORCL00340868-69.) Oracles customers contrasted Oracles lack of integrity and poor quality Sun servers with HPs track of honoring and supporting its customers. Many Oracle customers saw through Oracles false rationales for its Itanium decision and recognized Oracles plan for exactly what it was: a

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clumsy and ham-fisted attempt to prop up the declining sales of an inferior line of Sun servers. One customer wrote to Larry Ellison directly: HP has a 10-year roadmap for HPUX and it is the longest in the industry. HP will provide a transition path for its HPUX customer base. Its in HPs DNA to honour their customers. We understand fully the motivation behind the decision to terminate development for HPUX / Itanium because we are not idiots. It is a function of two facts: [1] Sun server sales are decaying in line with the underlying hardware platform. [2] A toxic ex-HP CEO has been hired by Oracle. Of course Oracle will never confess to this but the temporal proximity of these events / facts is compelling evidence. (ORCL00976164.) Yet, despite all of this evidence from its own documents, Oracle asks the Court in its Case Management Conference Statement, So why is Oracle the defendant in this case? The answer is obvious, even to Oracles own customers. 2. Oracles Feigned Rationale For Its Business Decision Is Contrary To The Undisputed Facts About Intels Itanium Roadmap.

Oracle initially tried to justify its Itanium decision by falsely ascribing to Intel the position that Itanium is at end of life. Having been embarrassed by Intels unequivocal and repeated statements to the marketplace that Itanium is not at an end of life, Oracle has been forced to come up with new excuses, the most recent of which is nonsensical. In its November 18, 2011 CMC statement, Oracle tries to rationalize its Itanium decision by arguing that, despite the undisputed existence of committed support for Itanium that stretches to the end of this decade and beyond, Intel would not have made this commitment to Itanium if it were not for a contractual agreement with HP. Oracles feigned shock that there is a contract between HP and Intel related to the development of Itanium is too much. Oracle repeatedly refers to HPs and Intels agreement regarding Itanium as secret, as if having a confidential agreement were somehow nefarious.2 For one thing, the fact that HP and Intel had a contractual business relationship regarding Itanium development and supply is not a secret.

It is common practice for companies to have confidential agreements with customers, suppliers and partners. Oracle itself must have hundreds of confidential agreements with third parties. 6

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This has been known for years. HP announced in 2004 that it had signed a contract with Intel and was entering into a long-term relationship with Intel, which essentially guarantees us a supply of IPF (Itanium product family) chips for a very long period of time.3 Indeed, it has been public knowledge that Intel and HP have had an agreement governing the Itanium platform since the inception of their collaboration. It is also public knowledge that HP has spent billions of dollars over the years in developing the Itanium platform4 indeed it was HP that conceived the architecture and brought it to Intel for further development. The level of investment in the Itanium collaboration by HP and Intel has been a continuing point of discussion and negotiation between the two companies over the years, and has continually been re-balanced, most recently in connection with the 2010 renewal of the parties collaboration agreement. The parties negotiated a final agreement in October 2010. Ultimately, however, what matters in all of this is the product roadmap that the companies agree to develop. Although HP has produced to Oracle a copy of this agreement in this litigation, Oracle ignores the contractual provisions laying out the future plans for the development of Itanium. Instead, Oracle cherry picks a handful of internal HP documents that were generated during negotiations between Intel and HP over how they would share the cost to ensure the continued robust development of Itanium. It is misleading for Oracle to cite a few emails during the negotiation process and ignore the actual facts about the agreement and the Itanium roadmap. Of course, the salient point here is that Intel and HP do in fact have a contract for the continued development of Itanium. This hardly provides Oracle with the basis for any claim of fraud or false advertising. To the contrary, the existence of that contract completely undermines Oracles stated rationale for discontinuing Itanium support by taking the future of Itanium out of the realm of speculation and firmly establishing as a matter of undeniable fact that there is committed support for Itanium that extends out toward the end of this decade. Indeed, it is telling that although Oracle has

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http://www.arnnet.com.au/article/4958/hp_drops_itanium_development?fp=16&fpid=0. http://www.xbitlabs.com/news/cpu/display/20060127070557.html. 7

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the relevant Itanium roadmaps in its possession, it never once discusses those roadmaps or the actual facts regarding what is coming from Intel. What those documents show, and what Oracle knows, is that there are two more generations of Itanium microprocessors already on the roadmap code named Poulson and Kittson. Moreover, Intel has stated publicly and directly to customers that it has started exploratory work for what comes after Kittson. As Intel wrote to customers in March of this year: Last year we introduced the Itanium 9300 series processor (code name Tukwila) which more than doubled the performance of its predecessor. Recently we disclosed our next generation Itanium processor (code name Poulson), which is currently in Intel and customer labs for validation and is on track with targeted availability in 2012. This product is a brand new architecture design that will provide significant performance, reliability and power enhancements, and will be delivered on Intels newest 32 nm manufacturing process technology. Following will be Kittson, of which we are in the architecture and early development phase, and we are currently starting exploratory work for what comes after Kittson. We firmly believe that the Itanium platform provides a sound foundation for mission critical computing well through this coming decade. (Intel Itanium Commitment Letter (Kirk Skaugen), sent to customers March 2011.) Indeed, Intels reaction to Oracles false statements in its March 2011 announcement about Itanium being at end of life was swift and strong. Oracle based its decision to discontinue support for Itanium on the claim that Intel . . . made it clear . . . that Itanium was nearing the end of its life. (Oracle Press Release, March 22, 2011.) The next day, on March 23, Paul Otellini, CEO and Chairman of Intel, repudiated Oracles accusation, declaring that Intels work on Intel Itanium . . . continues unabated with multiple generations . . . in development and on schedule. . . . [W]e remain . . . [committed to] . . . HP-UX and other operating system customers that run the Itanium architecture. (Intel Press Release, March 23, 2011.) Oracle argues that a line HP suggested for Intels press statement was left out. But Intels executives in their press statements could not have been any more clear or unequivocal about Intels commitment to the continued development of Itanium and the future of Itanium, stating that development of Itanium continues unabated with multiple generations and that Intel maintains a strong commitment to the Itanium processor family and is enthusias[tic] about the future of the product line. (Id.; Itanium Commitment Letter.) Intel in fact communicated privately to Oracle that its announcement regarding Itaniums end-of-life was completely inaccurate. In a March 23, 2011 8
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email to Oracle regarding Oracles announcement an Intel executive wrote, This took our company by complete surprise. Unclear if you or any of your team had a part in this, but not only is this totally inaccurate, but it puts us in a terrible situation with our largest customer. (ORCL00177387.) What this means, and what is undeniable, is that Oracles statements to the marketplace in March 2011 in connection with its Itanium announcement that Itanium was at or near an end-oflife were false, plain and simple. Oracle apparently recognizes that now and wants to rationalize away its misstatements by blaming HP and Intel for not publicly disclosing all of the details of the inner-workings of their collaboration. This will not work. The facts regarding the Itanium roadmap cannot be disputed. If Oracle files the cross-claims it has previewed in its CMC Statement, HP looks forward to responding to those claims and having the actual facts come to light. B. The Parties Are On Track For The Existing Trial Date They Agreed To And Oracle Should Not Be Allowed To Unduly Delay The Trial Date While Implementing A Business Strategy To Continue To Harm HP And Customers. A few months ago, in connection with the initial Case Management Conference, HP urged the Court to set an expedited trial schedule that would resolve first the core contractual issues in this case. HP explained that early resolution of the contractual issues not only would assist in moving this case toward effective ADR and possible final resolution, but it would be by far the best approach for the thousands of HP and Oracle customers who truly need certainty and clarity over this dispute. Oracle, however, strongly rejected this idea, saying bifurcation is unnecessary because Oracle is willing to expedite the discovery schedule for the entire case, so that HP will not suffer any prejudice due to delay. Oracle argued as follows: HP claims one central justification for bifurcating this case: that early resolution of the parties disputes will provide clarity and certainty to the parties and their customers, and minimize supposed damage to HPs business. But bifurcation is not needed for speedy resolution. Oracle has told HP repeatedly that it will move forward expeditiously as to all of the claims in this litigation. HP seeks to limit focus to a portion of a single claim for strategic benefit, not in the interests of time. So there is no doubt, Oracle asks the Court to set a very expedited discovery and trial schedulebut on all claims, not the fractional claim that most advantages HP and prejudices Oracle. If that means a trial set in early 2012, as HP seeks on its single gerrymandered issue, no problem. Oracle is eager to resolve this case, provide clarity to the market and clear its name. Indeed, Oracle has already begun its internal discovery process.

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Nothing has changed since Oracle made these representations to the Court to justify Oracles abrupt request to now continue the schedule and delay the trial date. Soon after the August 12, 2011 Case Management Conference, the parties responded to the Courts schedule by implementing a detailed discovery plan that governed the document production and certain written discovery. The parties have been executing on this plan, having each produced approximately a half-million pages of documents in short order pursuant to the parties agreed-upon schedule. The document production process continues on schedule. The parties also have served and responded to copious written discovery and are now preparing to take depositions. Two weeks ago, HP transmitted to Oracle a proposal to take party depositions that would allow for an orderly deposition schedule and account for all relevant depositions within the current fact discovery cut-off. There was no reason for Oracle to stop participating in this process and instead seek to continue the trial date. There was and is a plan for getting this case to trial on February 27, 2012. Oracles recent decision to amend its cross-complaint likewise is no excuse to delay the trial. Oracle told the Court in connection with the initial Case Management Conference that it sought an expedited trial on all of HPs claims and all of Oracles forthcoming cross-claims. It was thus contemplated from the beginning that Oracle would file cross-claims and that these claims would be part of the expedited discovery and trial schedule proposed to the Court. Indeed, when the parties negotiated the search terms and document requests, Oracle went to great lengths to ensure that materials related to its forthcoming cross-claims would be part of the discovery process. Oracle points to a discovery dispute it is having with Intel about a tiny fraction of the documents produced in this litigation. To be clear, this is not a dispute about whether Oracle has received these relatively few documents in question, because it has. Rather, the only issue is that Intel has limited the disclosure of these documents to Oracles outside counsel. While this may be a dispute that is worth resolving, it far from qualifies as a legitimate ground to delay the expedited trial date that both parties sought. HP understands that Oracle also may have a dispute with Intel regarding the scope of documents called for in Oracles document subpoena to Intel. But the fact that a third party is balking at producing all documents sought by a litigant is neither surprising nor unusual. Oracle cannot credibly claim that its insistence on an early trial date was predicated on the 10
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assumption that third parties would capitulate fully to Oracles broad document requests. The remainder of Oracles argument focuses on the enormity of the task at hand, which is not something new. The parties understood and contemplated these issues from the beginning. The bottom line is HP believes that the parties have sufficient time under the current schedule to complete the necessary discovery and motion practice before the February 27, 2012 trial date. Oracles characterization of the remaining discovery as something insurmountable is overstated and unconvincing; the various issues cited by Oracle are common in all complex litigations and there is no reason why the parties cannot overcome them within the current schedule. Oracle cites as an impediment to getting to trial the substantial volume of documents produced in the case, and to be produced, and the many depositions to be taken. The reality, however, is that the core issues in this case are relatively straightforward and do not touch numerous witnesses and inordinate numbers of documents. Indeed, the key documents from most of the critical witnesses have already been produced. There is no reason that the parties cannot complete in the next several months the depositions that would be required to take this case to trial. HP is prepared to do so. As a matter of professional courtesy, HP would be willing to agree to a short continuation of the trial date of 30-45 days if Oracle believes it needs more time to prepare its case and the Courts schedule will allow it. However, HP cannot agree to a longer delay in the trial schedule for the reasons explained to the Court at the initial Case Management Conference. These reasons include: i. The uncertainty in the marketplace created by Oracles abrupt announcement in March 2011 remains unabated. There is no question that Oracles decision has had and continues to have a significant impact on customers. This situation must be resolved as soon as practicably possible, even if doing so places a significant burden on the parties. ii. The ongoing impact on HPs business. Documents produced by Oracle in this case confirm that immediately upon its announcement that it was ceasing support for the Itanium platform, Oracle set in motion a worldwide plan designed to capitalize on its announcement, and the uncertainty created thereby, by converting Itanium customers to Sun server hardware. That campaign continues today. So Oracles request to continue the trial date does not sit well with HP, when Oracle is ignoring its contractual commitment to 11
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continue its support of HPs platforms, and is exploiting this time period to pursue a business strategy designed to harm HP and its business. iii. At the time Oracle signed the settlement agreement at issue, promising HP that it would continue to port is products to HPs platforms, Oracle had been working with HP for months to prepare to port Oracles new database scheduled for release in 2012 (version 12g) to HPs Itanium platform. Following its announcement that it would no longer support software development for the Itanium platform, however, Oracle stopped this codevelopment work with HP, even though the work had been ongoing for more than a year. In the meantime, Oracle is continuing porting work on 12g for its own Sun server platforms as well as for other manufacturers servers. Therefore, it is critical to HP and its customers that this Court resolve the core contractual dispute in sufficient time to ensure that, if HP prevails, Oracle can complete necessary development work on its 12g database in a timely fashion so as not to delay the porting of its 12g database to Itanium when it launches 12g on competing server platforms. Otherwise, a favorable judgment for HP in this lawsuit could be rendered pyrrhic. There is a compelling need for this case to be resolved on an expedited basis. HP will be guided by the Court and its schedule, but it respectfully urges the Court to keep this case moving forward on an expedited track and trial schedule. DATED: November 21, 2011 GIBSON, DUNN & CRUTCHER LLP BARTLIT BECK HERMAN PALENCHAR & SCOTT LLP By: /s/ Robert E. Cooper_________________ Robert E. Cooper

Attorneys for Plaintiff and Cross-Defendant, HEWLETT-PACKARD COMPANY

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