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Oracle vs. the State of Oregon

Thursday, February 25, 2016

To the editor:

The Portland Tribune's, February 22, 2016 article "Documents Oracle Doesn't Want You to Read About Cover Oregon," combines sensationalist tabloid journalism with questionable legal ethics to produce a cover story that gets just about everything wrong.

This story arises out of a thinly veiled motion (read, press release) the State filed with the Court complaining that Oracle "over-designated" some of its documents "confidential" under a protective order agreed to by all parties and signed by the Court. The State's real reason for filing the motion was not to question the designation because the State knows it can fully use these documents at trial. Rather, the purpose of this faux-motion was to disclose to the press out-of-context snippets of a handful of documents the State quoted in its filing to the Court. How do we know this? Because Attorney General Ellen Rosenblum's press office sent the motion to the press before filing it with the Court—a fact confirmed by her outside lawyers at the Markowitz Herbold law firm.

What the DoJ's press office sent to reporters was a document with snippets of a few out of context statements hidden behind redactions. But the State's lawyers at the Markowitz firm—a self-described "premier trial and litigation boutique specializing in complex, high stakes business disputes"—did something no competent litigator would ever do: it applied those redactions so that they could be easily removed by the media. In other words, this sophisticated litigation firm sent incompetently redacted versions of the brief to the press and then claimed it merely made a "mistake."

When weeks passed and the press didn't figure out on its own that the "redactions" weren't really redacted, the Markowitz firm or the DoJ tipped off their favored reporter, Mr. Budnick, about how he could review the full un-redacted brief, and those misleading out of context snippets, to later be posted online for everyone to see. Again, how do we know about a tip? Because the State's lawyers told us there was a tip. And, again, the Markowitz firm claimed a "mistake" and, amazingly, accused Oracle of leaking its own documents to Mr. Budnick. Even Mr. Budnick knows this is preposterous.

Attorney General Rosenblum's office and the Markowitz firm aren't the only ones whose ethics should be questioned, however. After the "tip", Mr. Budnick proceeded with a journalistic ambush giving Oracle 90 minutes to respond to questions he possessed for at least a week for a story already written, cover art and all. Mr. Budnick did not actually care about Oracle's answers; he only wanted to say that he had asked. And then he posted a tabloid cover story so biased and untrue that we address each "gotcha" in turn here.

  • According to the article, "Some of Oracle's own employees in reports and emails dissed the company's work for Oregon, according to the brief. One company assessment in November 2013 found its software development 'didn't pass the laugh test.'"

This five-word snippet was taken from a 37 page power point presentation on security testing. The document makes clear the quoted phrase on a single slide was referring to a limited portion of code that was then still under development. That entire document was marked confidential because it described extensive security measures and an "ethical hacking test." The State knows the document is properly marked "confidential," but wanted to find a way to put those five out of context words in the newspaper.

  • According to the article, "In a Nov. 22, 2013, internal email that appears to contain two typos, one Oracle developer wrote that an "army" of programmers for the company was "rapoing the state f Oregon on something that will never work well," according to the brief."

The discussion in the e-mail between two junior developers was not about the HIX at all but rather about a highly technical issue relating to two technologies used as part of the HIX. The full sentence reads: "We have told them they should go to please keep that message. Without they cannot get off of webcenter. They have an army of OCS folks (200! rapo i ng the state f Oregon on something that will never work well as when you change Siebel you break webcenter." Thus, the point of the e-mail was that the State needed to implement Seibel so that it would interface with webcenter. And the entire context of the e-mail makes clear that in November, 2013—after the launch date—a frustrated Oracle programmer was pushing on all fronts to bring the HIX on line.

  • According to the article, "Concerns about the project prompted Oracle's founder, billionaire Larry Ellison, to request daily progress reports in a Nov. 16, 2013, email."

Far from being problematic, Mr. Ellison should be congratulated for his action. Following a conversation between Oracle's then-President (current CEO) Safra Catz and former-Governor Kitzhaber after the launch date, Mr. Ellison sent Oracle's most senior engineer and his team to Oregon to get the exchange completed, which they subsequently did. What the e-mail actually says is: "Edward [Oracle's Chief Corporate Architect]—You are in charge [meaning, of Oracle's effort]. l will give you whatever resources you need ... immediately and in quantity. Please send me daily reports on this. Larry" This is exactly the response customers have come to expect from Oracle when assistance is needed. The Tribune owes Mr. Ellison a retraction and an apology.

  • In the final "gotcha," Mr. Budnick states "If the state hired an integrator, it 'could displace or reduce our role significantly,' wrote the Oracle executive, 'It isn't clear what we can do about this other than pray that they keep deferring the SI (systems integrator) selection. But since hope is not a strategy, this topic deserves some discussion.'"

Whatever this mid-level sales person (most definitely not an "executive") may himself have thought, the State made a conscious decision to act as its own systems integrator. It never hired Oracle for this purpose. Every independent report written about this project acknowledges that decision and all of the dysfunction that flowed from it. Oracle is not in the systems integrator business, and everyone knows it was not in that role on this project. This portion of an e-mail is completely irrelevant to this case or anything else.

None of this amounts to "Documents Oracle Doesn't Want You To See," but rather an elaborate press strategy in violation of a Court Order to concoct controversy from documents that do not contain anything incriminating whatsoever and to bias the jury pool against Oracle. Rather, Mr. Budnick, served as the perfect dupe for the State's press release, creating enough intrigue to convince Mr. Budnick he had an exclusive story to show off to his new employer, the Tribune.

Contrary to Mr. Budnick's suggestion that Oracle "is battling in court to keep its internal communications under wraps," that "battle" is entirely fabricated. Had Mr. Budnick questioned the State's use of out of context sentence fragments in a "leaked" brief that was conveniently and readily un-redactable he would have had a clearer picture of what he was actually being pitched, but it appears he was far more interested in landing his first cover story in the Tribune.

Ken Glueck
Senior Vice President