Rambus Inc.'S Reply Brief in Support of Its Motion To Compel Deposition of Nanya 30 (B) (6) Designees On Certain Ddr3 Sdram Topics

Case 5:05-cv-00334-RMW Document 2321 Filed 09/30/2008 Page 1 of 7
1 GREGORY P. STONE (SBN 078329) ROLLIN A. RANSOM (SBN 196126)

STEVEN M. PERRY (SBN 106154) Sidley Austin LLP
2 MUNGER, TOLLES & OLSON LLP 555 West Fifth Street, Suite 4000
355 South Grand Avenue Los Angeles, CA 90013-1010
3 Thirty-Fifth Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com; PIERRE J. HUBERT (admitted pro hac vice)
steven.perry@mto.com
CRAIG N. TOLLIVER (admitted pro hac vice)
6
PETER A. DETRE (SBN 182619) McKool Smith P.C.
7 CAROLYN HOECKER LUEDTKE (SBN 207976) 300 West 6th Street, Suite 1700
Munger, Tolles & Olson LLP Austin, TX 78701
8 560 Mission Street, 27th Floor Telephone: (512) 692-8700
San Francisco, CA 94105 Facsimile: (512) 692-8744
9 Telephone: (415) 512-4000 Email: phubert@mckoolsmith.com;
Facsimile: (415) 512-4077 ctolliver@mckoolsmith.com
10 Email: peter.detre@mto.com;
carolyn.luedtke@mto.com
11 Attorneys for Plaintiff
A PROFESSIONAL CORPORATION • ATTORNEYS
RAMBUS INC.
12
13 UNITED STATES DISTRICT COURT

MCKOOL SMITH
NORTHERN DISTRICT OF CALIFORNIA

DALLAS, TEXAS
14 SAN JOSE DIVISION
15
16 RAMBUS INC., ) Case No. C 05-00334 RMW

)
17 Plaintiff, ) RAMBUS INC.’S REPLY BRIEF IN
SUPPORT OF ITS MOTION TO
) COMPEL DEPOSITION OF NANYA
18 vs.
) 30(B)(6) DESIGNEES ON CERTAIN
19 HYNIX SEMICONDUCTOR INC., HYNIX ) DDR3 SDRAM TOPICS
SEMICONDUCTOR AMERICA INC., )
20 HYNIX SEMICONDUCTOR ) Date: October 2, 2008
MANUFACTURING AMERICA INC., ) Time: 9:00 am
21 ) Before: Hon. Read Ambler (Ret.)
SAMSUNG ELECTRONICS CO., LTD., ) Place: JAMS - San Jose (telephonic)
22 SAMSUNG ELECTRONICS AMERICA,
INC., SAMSUNG SEMICONDUCTOR, INC., )
23 SAMSUNG AUSTIN SEMICONDUCTOR, )
L.P., )
24 )
NANYA TECHNOLOGY CORPORATION, )
25 NANYA TECHNOLOGY CORPORATION )
U.S.A.,
)
26 )
Defendants.
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Rambus Inc.’s Reply Brief in Support of its Motion to Compel Deposition of Nanya 30(b)(6) Designees on Certain DDR3 SDRAM Topics
Case No. CV 05-00334
Austin 46421v15
1 HYNIX SEMICONDUCTOR INC., HYNIX )

SEMICONDUCTOR AMERICA INC., )
2 HYNIX SEMICONDUCTOR )
MANUFACTURING AMERICA INC.,
HYNIX SEMICONDUCTOR U.K. LTD., )
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HYNIX SEMICONDUCTOR )
4 DEUTSCHLAND GmbH, )
)
5 Counterclaim Plaintiffs, )
v. )
6 )
RAMBUS INC., )
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Counterdefendant. )
8 ______________________________________ )
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MCKOOL SMITH
DALLAS, TEXAS
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Austin 46421v1
1 Rambus has moved the Court to compel Nanya to provide a 30(b)(6) deposition witness
2 with respect to topics related to DDR3 SDRAM (“DDR3”), an accused product in this case.
3
Nanya opposes Rambus’s motion arguing (i) such a deposition would be duplicative, as Nanya
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claims a witness (Mr. Willie Liu) was already provided on the requested topics, (ii) Rambus
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waited too long to request the deposition, and (iii) the burden on Nanya in providing a 30(b)(6)
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witness for such a deposition is not justified by the benefit resulting to Rambus of the discovery.
7
8 Nanya’s arguments are not persuasive, and Rambus’s motion should be granted. First, Rambus’s
9 request is not duplicative, as Mr. Liu was not provided as a corporate 30(b)(6) representative
10 with respect to DDR3, but instead responded to questions regarding DDR3 only in his personal
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capacity. At the time of the deposition, Nanya continued to argue that DDR3 was not a proper
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subject of the litigation. Furthermore, Mr. Liu was admittedly unable to provide answers with
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MCKOOL SMITH
DALLAS, TEXAS
respect to a number of the topics. Second, Rambus did not unreasonably delay its request for the
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15 deposition. Nanya provided significant document production with respect to DDR3 on August 8,
16 2008, twelve days prior to Rambus’s request for a 30(b)(6) witness on August 20. Third, the
17 burden on Nanya to provide a 30(b)(6) witness is not significant, particularly in light of the scope
18 of the case, and likely comprises preparing and defending a single witness for a single day of
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testimony. The benefit to Rambus is potentially significant, as the information obtained in this
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deposition will likely relate to Rambus’s claims regarding infringement and damages.
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22 I. RAMBUS IS NOT REQUESTING A DUPLICATIVE DEPOSITION

23 Nanya argues that Rambus’s motion is seeking a duplicative deposition, because Rambus
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deposed Mr. Liu on October 17-18, 2007. However, it is undisputed that Mr. Liu provided
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testimony only in his personal capacity with respect to DDR3 and was not identified as a
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corporate witness with respect to that product, was admittedly unable to provide testimony with
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Austin 46421v1
1 respect to certain of the deposition topics, and was unable to answer a number of the questions
2 put to him regarding DDR3. See, e.g., Mot., Ex. E. While Nanya stated during the meet and
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confer that it was willing to designate the testimony of Mr. Liu with respect to DDR3 as 30(b)(6)
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testimony, designating the testimony of a person who admittedly did not have knowledge of
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certain topics as a 30(b)(6) witness after the fact is no substitute to providing a properly prepared
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witness on the topics identified. See, e.g., Board of Trustees of Leland Stanford Junior
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8 University v. Tyco Intern. Ltd., 2008 WL 1911179 at *2 (C.D.Cal.)(noting that corporations have
9 a duty to designate knowledgeable persons as 30(b)(6) witnesses and adequately prepare them to
10 answer questions regarding the designated subject matter).
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Nanya further states in its opposition that Rambus did not timely object to Mr. Liu’s
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testimony as being insufficient with respect to topics in the deposition notice. Opp. at 2.
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However, as previously noted, it was clear that Mr. Liu was answering in his personal capacity,
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15 and not as Nanya’s corporate 30(b)(6) witness with respect to DDR3. Furthermore, as noted
16 previously, Nanya only recently produced substantial technical documentation with respect to its
17 DDR3 products. Rambus has had no opportunity to question Nanya with respect to the DDR3
18 documents in this voluminous four hundred thousand page production. In any event, Rambus
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does not seek a deposition that is redundant to Mr. Liu’s deposition, but instead requests the
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opportunity to question a corporate representative with respect to DDR3, including the recently
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produced documentation and issues not able to be addressed by Mr. Liu.
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23 II. RAMBUS TIMELY REQUESTED THE DISCOVERY

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Rambus took Mr. Liu’s deposition on October 17-18, 2007. See Mot., Ex. E. At that
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time, Nanya maintained that DDR3 was not properly an accused product in this litigation. See
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Mot. at 2, Ex. E. The Court ordered that DDR3 was a proper subject of this litigation on
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1 November 15, 2007. Mot., Ex. D at 6-11. However, Nanya did not provide significant
2 discovery in the form of document production for its DDR3 products until August 8, 2008. This
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production included technical documentation and datasheets. Rambus requested the deposition
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at issue shortly thereafter on August 20, 2008, before the close of discovery. Therefore, Rambus
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did not unreasonably delay its discovery request as relevant document production discovery was
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only recently provided. Nanya should not be allowed to benefit from its delay in production of
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8 DDR3 materials by not being required to provide a witness to testify.
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III. THE BURDEN TO NANYA DOES NOT OUTWEIGH THE BENEFIT TO
10 RAMBUS, PARTICULARLY IN LIGHT OF THE FACTORS PROVIDED IN
RULE 26(B)(2)(C)(III)
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Nanya claims its burden will be significant should Rambus’s motion be granted, and
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Rambus’s benefit will be marginal.1 However, Nanya’s burden is limited to providing a
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MCKOOL SMITH
DALLAS, TEXAS
14 corporate witness for DDR3, which likely entails preparing and defending a single witness for a
15 single day of testimony. This is not a substantial burden, particularly in light of Rule 26 of the
16 Federal Rules of Civil Procedure:

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“On motion or on its own, the court must limit the frequency or extent of
18 discovery otherwise allowed under these rules or by local rule if it determines
that…(iii) the burden or expense of the proposed discovery outweighs its likely
19 benefit, considering the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the importance
20 of the discovery in resolving the issues”
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Fed. R. Civ. P. 26(b)(2)(C)(iii). The factors identified in Rule 26(b)(2)(C)(iii) argue for granting
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Rambus’s motion to compel. For example, the issues are fundamental to the case. Given that
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DDR3 is undisputedly an accused product in this case, a deposition regarding DDR3 is relevant
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to at least infringement and damages. Nanya argues that since its current sales of DDR3 are
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During the meet and confer process, Rambus offered to negotiate limits on the requested
27 deposition, perhaps as to the number of topics or the length of the deposition, in order to reduce
any potential burden on Nanya, but Nanya was not amenable to these suggestions.
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1 small, somehow this reduces the importance of the product. Rambus disagrees. For example, an
2 infringement analysis is not based on the amount of the product sold, and it seems likely Nanya’s
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sales of DDR3 products will increase. Furthermore, the resources of the parties are significant,
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as is the amount in controversy, particularly in comparison to the expense that would be incurred
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should the deposition go forward.
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Nanya cites to In Re ATM Fee Antitrust Litigation in an attempt to support its contention
7
8 that Rambus’s requested deposition is too burdensome. However, in that case the Court was
9 concerned about the broad scope of the discovery requested by the plaintiff. See In Re ATM Fee
10 Antitrust Litigation, 2007 WL 1827635, *2 (“Nonetheless, the Court agrees with Defendants that
11
the tremendous scope of these discovery demands are unduly burdensome.”) Here, Rambus
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seeks a narrow deposition on a single product with limited topics.
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Nanya further argues that since Rambus’s expert was able to make infringement
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15 arguments without the requested deposition, such a deposition is not necessary. This argument
16 seeks to provide Nanya with a benefit for refusing to provide a deponent, arguing circularly that
17 since no deponent was previously provided and the opposing party was still able to make its
18 case, there is no reason to provide a deponent. That is not the standard under Rule 26 to
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determine what is within the proper scope of discovery and would unfairly reward parties that
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withheld discovery.
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22 IV. CONCLUSION
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For these reasons, Rambus respectfully requests that the Court grant its motion.
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1 Dated: September 30, 2008 Respectfully submitted,
2 MUNGER TOLLES & OLSON LLP

SIDLEY AUSTIN LLP
3 MCKOOL SMITH P.C.
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/s/ Pierre Hubert
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Attorneys for RAMBUS INC.
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Austin 41241v1
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MCKOOL SMITH
DALLAS, TEXAS
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Case 5:05-cv-00334-RMW Document 2321 Filed 09/30/2008 Page 1 of 7

1 GREGORY P. STONE (SBN 078329) ROLLIN A. RANSOM (SBN 196126)

13 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

14 SAN JOSE DIVISION

16 RAMBUS INC., ) Case No. C 05-00334 RMW

1 HYNIX SEMICONDUCTOR INC., HYNIX )

22 I. RAMBUS IS NOT REQUESTING A DUPLICATIVE DEPOSITION

23 II. RAMBUS TIMELY REQUESTED THE DISCOVERY

8 DDR3 materials by not being required to provide a witness to testify.

16 Federal Rules of Civil Procedure:

1 Dated: September 30, 2008 Respectfully submitted,

2 MUNGER TOLLES & OLSON LLP

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