Maureen O'Gara

Another day, another statement out of Oracle meant to embarrass HP's brand new CEO.

Late Wednesday, three days into the SAP trial, Oracle came out and said, "Hewlett-Packard has refused to accept service of a subpoena requiring Mr. Apotheker to testify about his role in SAP's illegal conduct. Mr. Apotheker started work for HP on Monday, but it now appears that the HP Board of Directors has decided to keep him away from HP's headquarters and outside the court's jurisdiction. We will continue to try to serve him."

HP might as well have painted a big bull's eye on Apotheker's chest because Oracle's gonna use his failure to show as evidence, circumstantial or otherwise, of his alleged complicity in the illegal downloading of Oracle IP that went for years at SAP's now shuttered third-party maintenance outfit, TomorrowNow.

The trial is supposed to decide how much SAP owes Oracle for poaching its intellectual property. SAP has already admitted it did but doesn't think it should have to pay the $2.3 billion in damages Oracle is demanding.

Oracle CEO Larry Ellison claimed last week that he could prove Apotheker oversaw the "industrial espionage scheme" and that HP couldn't afford to let him testify. He said it would keep him out of the country and "on the run" until the trial is over.

HP maintains that Apotheker knew little of the affair. It claims Oracle only means to harass the man and interfere with his job as its CEO.

HP refuses to say where Apotheker is. When he got the job in October he said he would spend weeks, if not months, globe trotting, talking to HP staff, customers and stockholder by way of orientation. We heard from a source that he's in the Far East.

Oracle can easily make that sound fishy since he's been on its witness list since before he got the HP job.

In Leo's physical absence Oracle is supposed to play at least parts of his videotaped deposition Thursday.

Former Oracle co-president Chuck Phillips, just named CEO of Infor, is supposed to take the stand Thursday, followed by Ellison on Friday, the same day Oracle wants to call SAP CFO Werner Brandt, who may not show up either.

Ellison dumped Phillips so he could hire Mark Hurd after Hurd was forced to resign as CEO of HP, leading Ellison to lash out at the HP board.