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Case 5:05-cv-00334-RMW

ROBERT K. JOHNSONt ALAN V. FRIEOMANt RONALD L. OLSONI RICHARD S. VOLPERT DENNIS C. BROWNt ROBERT E. DENHAM JEFFREY I. WEINBERGER CARV B. LERMAN CHARLES D. SIEGAL RONALD K. ,.,EYER GREGORY P. STONE VILMA S. MARTINEZ BRAD D. BRIAN BRADLEY S. PHILLIPS GEORGE M. GARVEY WILLIAM O. TEMKO STEVEN L. GUISE' ROBERT B. KNAUSS STEPHEN M. KRISTOVtCH JOHN W. SPIEGEL TERRY E. SANC~EZ STEVEN M. PERRY MARK B. HELM JOSEPH D. LEE MICHAEL R. DOYEN MICHAEL E. SOLOFF GREGORY D. PHILLIPS LAWRENCE C. BARTH KATI-lLEEN M. "'<;DOWELL GLENN 0 POMERANTZ RONALO C. HAUSMANN PATRICK J. CAFFERTY, JR JAV M. FUJITANI O'MALLEY M. MILLER SANDRA A. SEVILLE-JONES MARK H. EPSTEIN HENRV WEISSMANN KEVIN S. ALLRED BART H. WILLIAMS JEFFREY A HEINTZ JUDITH T. KITANO KRISTIN LINSLEY MYLES MARC T.G. DWORSKV JEROME C. ROTH STEPHEN 0 ROSE JEFFREY L. BLEICH GARTH T. VINCENT
II'. PROFESSIONAL CORPORATION

Document 2677
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Filed 12/03/2008

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LEE S. TAYLOR DEREK J. KAUFMAN KIMBERLV D. ENCINAS MARCUS J. SPIEGEL GABRIEL P. ':iANCHEZ BETHANV C. WOODARD PAULA R. LEVY CONNIE Y. CHIANG DAVID C. YANG WILLIAM E. CANO EMILV PAN BlLL WARD HENRY E. ORREN BENJAMIN W. HOWELL WESLEY SHIH JACOB S. KREILKAMP PAUL J. KATZ TYLER A ROOZEN JONATHAN M. WEISS ZACHARY KATZ DANIEL A. LVONS ELISABETH J. NEUBAUER TREVOR D. DRYER ERIC P. TUTTLE HEATHER E. TAKAHASHI KRISTINA L. WlLSON KEVIN A. GOLDMAN ROBVN KALt BACON BERNARD A. ESKANDARI JENNY M. JIANG KEITH R.D. HAMILTON, II SORAYA C. KELLy PATRICK ANDERSON MARK R. YOHALEM JEFFREY Y. WU YUVAL MILLER MARK R. CONRAD DANIEL R. M<;CARTHY RICHARD D. ESBENSHADE!" ALLISON B, STEIN PETER R. TAFTt OF COUNSEL E. LEROY TOLLES

MUNGER, TOLLES &. OLSON LLP
TEO DANE MARK SHINDER MAN STUART N. SENATOR MARTI N O. BERN DANIEL. P. COLLINS RICHARD E. OROOVAN ROSERT L DELL ANGELO BRUCE A. ABBOTT JONATHAN E. ALTMAN MARV ANN TODD MICHAEL J. O'SULLIVAN KELLV M. KLAUS DAVID B. GOLDMAN BURTON A. GROSS KEVIN S. MASUDA HOJOON HWANG KRIST'N S. ESCALANTE DAVID C. DINIELLI ANDREA WEISS JEFFRIES PETER A. DETRE PAUL J. WATFORD DANA S. TREISTER CARL H. MOOR DAVID M. ROSENZWEIG DAVID H. FRY LISA J. DEMSKY ""lALCOLM A. HEINICKE GREGORY J. WEINGART TAMERLIN J. GODLEY JAMES C. RUTTEN J. MARTIN WILLHITE RICHARD ST. JOHN ROHlf K. SINGLA LUIS LI CAROLVN HOECKER LUEDTKE C. DAVID LEE MARK H. KIM BRETT J. RODDA SEAN ESKOVITZ FRED A. ROWLEY. JR. KATHERINE M. FORSTER BLANCA FROMM YOUNG SUSAN R. SZABO NATALIE PAGES STONE MONlKA S. WIENER LYNN HEALEY SCADUTO RANDALL G. SOMMER

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LOS ANGELES, CALIFORNIA 90071-1560 TELEPHONE (213) 683-9100 FACSIMILE (213) 687-3702

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December 3, 2008

SHONT E. MILLER MARIA SEFERIAN MANUEL F. CACHAN ERIC J. LORENZINI KATHERINE K. HUANG ROSEMARIE T. RING JOSEPH J. YBARRA KATE K. ANDERSON ALISON J. MARKOVITZ E. DORSEY KLEGER-HEINE JAV K. GHIYA SUSAN TRAUB BOYD JENNIFER L. POLSE TODD J. ROSEN BRIAN R. HOCHLEUTNER GRANT A. DAVIS-DEIIlNY JASON RANTANEN AMY C. TOVAR REBECCA GOSE LVNCH JONATHAN H. BLAVIN JOHN R. GRIFFIN KAREN J. FESSLER MICHELLE T. FRIEDLAND J. RAZA LAWRENCE LI KA C. M IVAKE MELINDA EADES LE""OINE ANDREW W. SONG VOHANCE C. EDWARDS JULIE D. CANTOR SETH GOL.OMAN FADIA RAFEEDIE KHOURY JOSHUA P. GROBAN VICTORIA L. BOESCH HAILVN J. CHEN BRAD SCHNEIDER ALEXANDRA LANG SUSMAN GENEVIEVE A. cox MIRIAM KIM MISTY M. SANFORD BRIAN P. DUFF AIMEE FEINBERG JOEL D. WHITLEY KATHARINE L. HALL KATHERINE KU KIMBERLY A. CHI SHOSHANA E. BANNETT TINA CHAROENPONG

(1922-2008)

WRITER'S DIRECf UNE

The Honorable Ronald M. Whyte United States District Judge U. S. District Court, Northern District of California 280 South First Street Courtroom 6 San Jose, California 95110 Re: Dear Judge Whyte:

(213) 683-9255 (213) 683-5155 FAX Gregory.Stone@mto.com

Proposed Procedure and Schedule for the Trial of Rambus's Willfulness Claims in Case Nos. C 05-02298, C 05-00334, and C 06-00244

Mr. Cherensky wrote to you on behalf of all the Manufacturers, on December 1, 2008, proposing to defer pretrial submissions in connection with Rambus's claims of willful infringement until after the completion of the January 19, 2009 infringement trial. The Manufacturers' proposal, if adopted, would result in an inefficient use ofthe Court's time, and of the parties' time, would unnecessarily delay the resolution of this litigation, and would be prejudicial to Rambus. Rambus suggests, instead, that immediately following the infringement trial the Court hear any further evidence on willfulness and conclude the case at that time. 1 To the extent a witness who testifies during the infringement trial also would give testimony bearing on willfulness, Rambus proposes that the Court hear the willfulness testimony at the end of the trial day, outside the presence of the jury. This will avoid the need for witnesses to return to testify a
I Rambus's proposal is consistent with the schedule and trial plan as outlined by the Court on September 24,2008. Transcript (9/24/08) at 4 ("And then at the end I could take any further evidence on willfulness and conclude the case.").

Case 5:05-cv-00334-RMW
MUNGER. TOLLES

Document 2677

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& OLSON LLP

The Honorable Ronald M. Whyte December 3, 2008 Page 2 second time for what will generally be short additional questioning. 2 Further, it will avoid prejudice to Rambus by ensuring that witnesses who are outside the Court's subpoena power will be available to testify in both the jury trial of infringement and the non-jury trial of willfulness. In regard to the potential overlap of witnesses, Rambus anticipates that several of the witnesses it will call will testify to issues of both infringement and willful infringement. It would be preferable for these witnesses to testify on only one occasion. Witnesses Rambus is likely to call who are likely to testify with regard to both sets of issues include Dr. Farmwald, Professor Horowitz, Mr. Tate and Mr. Karp. Micron's witnesses who, ifthey are called to testify live,3 will have testimony bearing on both sets of issues include: Steve Appleton, Terry Lee, Brian Shirley, Todd Farrell, Kevin Ryan, Jeff Koelling, Brett Debenham, and Keith Weinstock. Samsung's witnesses who may be called to testify live and who may have testimony bearing on both sets of issues include: J.B. Lee, K.H. Kyung, C.H. Kim, Jay Shim, and Charles Donohoe, among others. Hynix's witnesses whose testimony would overlap both infringement and willfulness issues include: J.J. Lee, Y.K. Kim, K.W. Kim, D.S. Chung, and S.B. Kil. Nanya's witnesses whose testimony might bear on both infringement and willfulness issues include: Willie Liu, Kai Tseng, Steve Wang, Ken Hurley, and Pei Lin Pai. If the Manufacturers call some or all of these witnesses during the infringement trial, it would make sense at the same time to ask them about the willfulness issues, but to do so outside the presence of the jury. The Court can determine what questioning should occur in the jury's presence and what should occur outside the jury's presence. The Court will, in any event, need to make decisions regarding what evidence is admissible in the infringement trial and the timing of the trial ofthe willfulness issues will not affect this. 4 The Manufacturers have espoused four enumerated arguments that they say justify delaying the trial of Rambus's willfulness claims until late Spring or Summer. Rambus responds briefly to each argument. First, the amount of time that might be saved by not preparing for a willfulness trial will be more than offset by the waste of time in delaying the final resolution of these cases and the need to recall a dozen or more witnesses. When multiple issues are tried together, the argument always can be advanced that first one issue should be tried and decided before the next

Rambus notes that, contrary to Mr. Cherensky's suggestion, the Court has not yet decided whether the trial of damages issues will be bifurcated from liability (see Transcript (9/24/08) at 29-31). Not surprisingly, there will be witnesses whose testimony will bear on both liability and damages issues and it would be preferable to avoid the need for those witnesses to have to testify twice as well. Indeed, under the Manufacturers' proposal, some witnesses would need to testify on at least three separate occasions. 3 Obviously, Rambus cannot compel but a few of the Manufacturers' witnesses to testify live; almost all of them reside outside the Court's subpoena power. But, if they do testify live, their testimony should be available for the trial of willful infringement as well as for the infringement trial. 4 The Manufacturers' expressed concern that evidence relevant to willfulness will mistakenly be admitted in the infringement trial unless the two trials are separated in time (Mr. Cherensky's letter at 2) is flawed. The Court will be deciding what evidence is relevant to each trial regardless of when the trials occur.
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Case 5:05-cv-00334-RMW
MUNGER, TOLLES

Document 2677

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& OLSON LLP

The Honorable Ronald M. Whyte December 3, 2008 Page 3 is prepared for trial. But most courts do not see this as creating efficiency. Rather, they see it as creating delay - ultimately to the prejudice of one or more of the parties. Second, the fact that many motions for summary judgment are pending does not justify stopping trial preparation. The manufacturers' proposa1- that trial preparation should not start until all motions are decided - would be paralyzing. Nor does the work involved in trial preparation justify further delay. The Manufacturers' argument that they have "an enormous amount of work" to do to prepare to try willfulness is not credible and, in any event, does not justify delaying trial preparation. Much work has already been done - including in preparing the Manufacturers' two summary judgment motions on willfulness - and the willfulness issues involve but a fraction of the work involved in preparing the infringement case for trial. Third, as noted in footnote 4 above, the Court will need to make evidentiary rulings throughout the trial. A separation in time between the two trials will have no effect on these issues or on the Court's ability to make correct rulings. Fourth, since evidence regarding willfulness will be taken throughout the course of the infringement tria1- both during that trial and after the jury has left for the day - the parties should serve and file their proposed findings of fact and conclusions of law before trial commences on January 19,2009, so that the other side will know how that evidence may fit into their adversary's case, and so that they can be prepared to meet it. The Manufacturers' proposal that findings and conclusions be prepared after much or all of the evidence has been admitted is contrary to this Court's well-considered procedures and presents a significant risk of unfair surprise, and possibly of inconsistent positions. In sum, it is Rambus' s position that the case - and all of its issues - should be prepared for trial now and should be tried as expeditiously as possible. When evidence is relevant to both jury and non-jury issues, it should be presented to the jury. When a witness testifying in the infringement case has testimony relevant to the non-jury issues, that witness should be held over and the testimony relevant only to non-jury issues taken at the end of the trial day. Other witnesses who have testimony relevant to willfulness, but who do not testify in the infringement trial, should be heard as soon as the infringement trial ends. Rambus's counsel will be prepared to address these issues further and to respond to any questions the Court may have during tomorrow's 3:00 p.m. telephonic hearing unless, of course, the Court feels the hearing is not necessary. Respectfully submitted,

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GrU r P. Stone GPS:ros cc: Manufacturers' Counsel