IDG News Service — A presale product demonstration software package that is key to Waste Management's rancorous lawsuit against SAP has gone missing and both sides are claiming the other should have it, according to documents filed in a U.S. District Court.

Waste Management sued SAP in March 2008 in District Court of Harris County, Texas, 164th Judicial District, claiming more than US$100 million in damages in connection with an allegedly failed ERP (enterprise resource planning) project.

The trash hauler has said SAP used "rigged and manipulated" demonstrations during sales presentations. A motion Waste Management filed May 18 said the demos were a key element of the "false representations" SAP made to "induce Waste Management into entering a software licensing and implementation agreement."

Waste Management has been asking SAP for a copy of the demo since mid-2008, according to the motion.

But in a May 22 filing, SAP said it had the system until August or September 2006, but does not any longer.

SAP has "searched extensively" for the system and wants it "as much or more" as Waste Management, since it "will help SAP disprove WM's fraud claim," the filing states. In addition, SAP said it has produced ample discovery materials related to the demo, such as its scripts and hundreds of e-mails.

In fact, Waste Management should have the demo in its possession, as it was transferred to the trash hauler's system in late 2005 and early 2006, according to SAP, which demanded in a May 14 filing that Waste Management turn it over.

But Waste Management has filed an affidavit from a company IT manager who says that to his knowledge, Waste Management never installed or operated the demo.

But it is possible Waste Management simply hasn't looked extensively enough for the software, SAP said in a filing.

Neither company responded to requests for additional comment.

However the dispute plays out, it suggests that customers would be wise to preserve a copy of product demonstrations as they form new license agreements with vendors.

Indeed, contract language should seek to encompass all manner of pre-sales materials, according to a 2006 Forrester Research report, "An Enterprise Software Licensee's Bill of Rights."

"Instead of relying on the generic terms and conditions, vendors should include all of the proposals, sales-cycle presentations, demos, and promises in the entire agreement," it states.

Meanwhile, SAP and Waste Management's duel over the demo comes amid a series of back-and-forth filings related to pre-trial discovery, with no sign of settlement imminent.

In response to Waste Management's complaint, SAP has said in part that the company failed to "timely and accurately define its business requirements" and did not supply "sufficient, knowledgeable, decision-empowered users and managers" to work on the project.

The verbiage, as well as an SAP request for Waste Management documents related to a failed PeopleSoft implementation, may indicate the vendor plans to argue the trash company has a pattern of unsuccessful software projects.