The judge overseeing the US government's case to block Oracle's proposed takeover of PeopleSoft is pushing both sides to make more information public.
"It appears to me it has got out of hand," Judge Vaughn Walker told lawyers for Oracle and the US Department of Justice (DOJ) before witness testimony began in the US District Court of San Francisco.
The case involves thousands of documents from Oracle, PeopleSoft, and SAP, as well as testimony from customers. The documents, many of which have been filed under seal, include information about how software deals were brokered and how suppliers view their competitors.
Walker said he has yet to see any materials that reveal sensitive competitive information, and he told the battling sides that they will have to show why information would compromise a company's competitive position if they want to keep it private.
"I'm going to take a much tougher line about receiving any more redacted documents, any more documents under seal," Walker said.
Oracle attorney Dan Wall had previously told Walker that "the rubber is going to hit the road" next week about the issue of confidentiality.
Among DOJ witnesses due on the stand is Douglas Burgum, head of Microsoft's business applications unit, who is expected to testify about the extent of Microsoft's ambitions in the market for high-end ERP applications.
The trial has already forced Microsoft to reveal that it was in talks last year to acquire ERP giant SAP. Oracle uncovered the information during the discovery process and disclosed it to the court during its opening arguments.
Microsoft's lawyers are still negotiating with Oracle and the DOJ about how much further information will be made public.
The US government said an Oracle-PeopleSoft merger would stifle competition in the market for high-end human resources and financial management applications, resulting in higher prices.
Oracle said there are numerous other competitors, and that other suppliers such as Microsoft could enter the market at any time.
The DOJ called Richard Allen, who was chief financial officer for the former JD Edwards, which has since been acquired by PeopleSoft. The DOJ used his testimony to argue that barriers to entry are too high to let other suppliers enter the market.
Allen testified that JDE spent 10 years and £0.5bn on its unsuccessful bid to reach past the midmarket and sell high-end ERP software to large corporations.
The company abandoned its ambitions in 2001 because it did not have the products, services or reputation it needed, he said.
"Software is the kind of business where to get a reference you need a client, and to get a client you need a reference," he said.
During cross-examination, Oracle attorney Thomas Rosch presented a document prepared by McKinsey & Co, which was advising JDE in its efforts. It showed that the supplier could, potentially, have made more revenue by expanding its existing products to reach more midmarket customers, instead of going after the high-end applications business.
Rosch also used Allen's testimony to make the point that Microsoft could emerge as a potential competitor. Earlier in the day, Allen had been asked by a DOJ lawyer what it would have taken for JDE to succeed in the high-end applications market. He said it would have taken "three to five more years and a boatload of money".
Each side has two weeks to present its case in the month-long trial.
James Niccolai writes for IDG News Service