Oracle has raised the stakes in its legal battle with SAP over illegal action by the its now closed subsidiary TomorrowNow.

Legal documents reveal that Oracle has issued 102 subpoenas to 99 former customers of TomorrowNow.

Forty-nine of the 99 customers have subsequently supplied some 77,012 documents, which SAP is reviewing in order to "appropriately designate any confidential or highly confidential information that may be contained therein," according to the filing by SAP.

It is not clear what type of information the documents contain. None of the customers in question were named in the filing and neither Oracle or SAP commented on the latest developments.

Oracle filed a lawsuit against SAP in March 2007, charging that workers at TomorrowNow, a provider of third-party support for the Oracle PeopleSoft, JD Edwards and Siebel applications, illegally downloaded material from support systems at Oracle and used it to court Oracle customers.

SAP has said that TomorrowNow workers were authorised to download materials from Oracle's site on behalf of TomorrowNow customers, but acknowledged some "inappropriate downloads" had occurred. SAP has also said that Oracle's software remained in TomorrowNow's systems and has denied Oracle's allegations of a wider pattern of wrongdoing.

"A key point to any resolution (is) whether Oracle's bottom line was damaged by former customers turning to TomorrowNow for their [application] support needs," 451 Group analyst China Martens said. "Oracle seems to be struggling to prove that point, hence the resorting to customers. We question the wisdom of that move, which seems overly intrusive to end-users."

But one lawyer who has been following the case said Oracle's move is not unheard of, and was "very appropriate" given the circumstances.

"So much of [SAP's] defense is that [TomorrowNow was] acting on behalf of their customers, so naturally Oracle wants to know more about the customer interactions," said Eric Goldman, an associate professor of law at California's Santa Clara University School of Law.

That said, sending a defendant's customers subpoenas is "usually a hard-ball tactic, because it annoys customers a lot (it means they have to spend time and money to deal with someone else's lawsuit) and can spook customers from dealing with the vendor," he added.

Customers may also worry they will be named as defendants next, Goldman said.

The next settlement conference is scheduled for 23 Februaryand a trial date has been set for February 2010.

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