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Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7 8 9
Document 2229
Filed 09/19/2008
Page 1 of 7
GREGORY P. STONE (#78329) KEITH R. D. HAMILTON (#252115) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100; Facsimile: (213) 687-3702 E-mail: [email protected]; [email protected] BURTON A. GROSS (#166285) CAROLYN HOECKER LUEDTKE (#207976) MIRIAM KIM (#238230) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000; Facsimile: (415) 512-4077 E-mail: [email protected]; [email protected]; [email protected]
10 Attorneys for Plaintiff RAMBUS INC. 11 12
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
13 RAMBUS INC.,
CASE NO.: C 05-00334 RMW
14 Plaintiff, 15 v. 16 HYNIX SEMICONDUCTOR INC., et al., 17
RAMBUS INC.’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS PRODUCED PURSUANT TO THE COURT’S IMPLIED WAIVER ORDER
Defendants 18
[PUBLIC REDACTED VERSION]
19 Location: Judge:
20
Courtroom 6 Hon. Ronald M. Whyte
21 22
RAMBUS INC., Plaintiff,
23 24 25 26
CASE NO.: C 05-02298 RMW
v. SAMSUNG ELECTRONICS CO., LTD., et al., Defendants
27 28 5970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1
I.
Document 2229
Filed 09/19/2008
Page 2 of 7
INTRODUCTION & SUMMARY OF THE ARGUMENT
2
At the pretrial conference on September 16, 2008, this Court tentatively ruled that
3
Samsung had failed to establish elements of the attorney-client privilege for all but three of the 22
4
documents that were the subject of Samsung’s motion in limine. As to the remaining 19 exhibits,
5
the Court stated that “[m]any of these documents just seem to be reports of what occurred at a
6
particular meeting and not something that was prepared for the purposes of providing information
7
to the attorney for legal advice.” See H’g Trans., Sept. 16, 2008, at 29:18-23. Samsung has failed to carry its burden of establishing privilege. 1 As this Court previously
8 9
stated, “[t]he attorney-client privilege only protects legal advice provided to a client.” Hynix
10
Semiconductor Inc. v. Rambus Inc., Nos. C 05-20905-RMW, C 05-0334-RMW, C 06-00244-
11
RMW, 2008 WL 350641, at *3 (N.D. Cal. Feb. 2, 2008) (citing United States v. ChevronTexaco
12
Corp., 241 F.Supp. 2d 1065, 1069 (N.D. Cal. 2002) (“2/2/08 Order”)). Samsung’s submission
13
establishes that many of these documents passed through the hands of in-house counsel, but fails
14
to explain what legal advice they contain. Indeed, as set forth in detail in Rambus’s opposition to
15
Samsung’s motion in limine, any advice transmitted by these documents plainly concerns
16
business matters. See Rambus’s Opp’n to Samsung’s Motion in Limine, Docket No. 2183, C 05-
17
00334-RMW, 13-25 (N.D. Cal. Sept. 12, 2008) (“Opp’n to MIL”). This Court has previously
18
rejected the argument that such communications relaying business advice or analysis are cloaked
19
with the privilege. See 2/2/08 Order, 2008 WL 350641, at *2-*3 (rejecting claims of privilege for
20
document sent by Joel Karp to Neil Steinberg at Rambus). Samsung has simply replaced
21
generalized assertions from its privilege log with generalized assertions by its own in-house
22
counsel that these communications reflect legal opinions or further the provision of legal advice.
23
This is insufficient to sustain Samsung’s burden, especially where the documents demonstrate
24
that the privilege does not apply. Accordingly, Samsung’s motion in limine should be denied.
25
///
26
///
27
1
28
In its supplemental brief, Samsung has dropped its assertion of attorney work product immunity for exhibits 9079, 9139, 9334, or 9335. -15970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1 2
II.
Document 2229
Filed 09/19/2008
REDACTED
Page 3 of 7
ARGUMENT “To be privileged, [] legal advice must predominate the communication.” North Pacifica,
3
LLC v. City of Pacifica, 274 F.Supp. 2d 1118, 1129 (N.D. Cal. 2003). Additionally, because in-
4
house counsel “serve multiple functions within the corporation,” and “frequently serve as integral
5
players in business decisions or activities,” the proponent of the privilege must make “a clear
6
showing that the speaker made the communications for the purpose of obtaining or providing
7
legal advice.” ChevronTexaco Corp., 241 F.Supp.2d at 1076 (citing In re Sealed Case, 737 F.2d
8
94 (D.C. Cir. 1984)). Despite Samsung’s general claims that these memoranda and emails
9
transmit privileged communications, the documents on their face are devoid of legal advice and
10
clearly demonstrate that in-house counsel prepared or received them for the purpose of rendering
11
business analysis and not legal opinions.
12
A.
13
Samsung’s assertions of privilege over exhibits 9061 or 9129, 9077/A, 9078/A, 9079,
14
9081/A, 9126, 9134, 9136, 9137, 9138, 9336, 9337, 10697, and 10698 are based on the false
15
premise that sending an attorney or his representative to a business meeting protects the events of
16
that meeting from disclosure. This is not the law. See Matter of Fischel, 557 F.2d 209, 212 (9th
17
Cir. 1977) (“[The attorney-client privilege] will not conceal everything said and done in
18
connection with an attorney's legal representation of a client in a matter.”); Neuder v. Battelle
19
Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 293 (D. D.C. 2000) (“[T]he mere fact that in-house counsel
20
is present at a meeting does not shield otherwise unprivileged communications from disclosure.”).
21
Samsung broadly claims that these “memoranda and emails reviewing various negotiating
22
meetings” were prepared and/or communicated “in furtherance of … rendering of legal advice to
23
Samsung …..” Supp. Brief at 4. However, the content of the exhibits establishes that these
24
documents simply report what was said at business negotiations.
25 26 27
Factual Summaries of Negotiations Are Not Privileged.
For example,
REDACTED
REDACTED See Opp’n to MIL at 17-18.
REDACTED
REDACTED
28 -25970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
REDACTED
Page 4 of 7
REDACTED
1
REDACTED
2
Supp. Brief at 5; Decl. of Jay Shim at ¶ 3.
3
REDACTED
4
REDACTED REDACTED
5
REDACTED
6
Given Mr. Shim’s involvement in negotiating a patent
7
license with Rambus in August 2000, and the absence of any legal advice in these memoranda, it
8
is clear that exhibits 9061 and 9129 were prepared for the purpose of transmitting information so
9
that Samsung could make a business decision. They are therefore not privileged.
10
For the same reasons, Samsung’s showing regarding exhibits 9079, 9128, 9134, 9138,
11
9336, and 9337 is insufficient to establish the attorney-client privilege. Samsung claims that each
12
of these was prepared by in-house counsel and summarizes meetings or telephone conversations
13
with third-parties. 2 See Supp. Brief, Exh. 1. However, the face of the documents clearly
14
establishes that
REDACTED
15
REDACTED
16
REDACTED
17
REDACTED REDACTED
18
REDACTED
19
Although these individuals were in-house lawyers at Samsung, the
20
predominant business purpose of these exhibits demonstrates that they were not acting as legal
21
advisors when they prepared these memoranda. Accordingly, these exhibits are not privileged.
22
See Cuno, Inc. v. Pall Corp., 121 F.R.D. 198, 204 (E.D.N.Y. 1988) (“Where a lawyer mixes legal
23
and business advice the communication is not privileged unless ‘the communication is designed
24
to meet problems which can fairly be characterized as predominantly legal.’”) (quoting 2 J.
25
Weinstein & M. Berger, Weinstein’s Evidence, ¶ 503(a)(1)(01) at 503-22) (citations omitted).
26
2
In addition, Exhibit 9139 is See Donohoe Decl. at ¶ 7.
REDACTED
27 28
REDACTED
REDACTED REDACTED REDACTED
The email contains no legal advice.
-35970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
Page 5 of 7
REDACTED 1
Moreover, many of these documents do no more than summarize what Rambus said to Samsung,
2
and what Samsung said to Rambus. See, e.g. Exhibit 9079
REDACTED
REDACTED
3 4
The facts of these communications between Rambus and Samsung are not privileged. 3 See
5
Brinton v. Dep’t of State, 636 F.2d 600, 604 (Fed. Cir. 1980) (“When an attorney conveys to his
6
client facts acquired from other persons or sources, those facts are not privileged.”).
7
Samsung cannot reconcile its claims of privilege for Rambus meeting summaries prepared
8
by counsel in 2000 with the fact that it has produced other summaries prepared by counsel in
9
2005 without asserting any claim of privilege. Specifically, Samsung produced -- and included
10
on its trial exhibit list -- exhibits 4270, 4272, or 4274, all of which are meeting notes relating to
11
Samsung’s renegotiation of the SDR/DDR License. See Opp’n to MIL at 12 n.12. Samsung does
12
not attempt to justify or even explain this inconsistency in its supplemental brief. Indeed, the
13
tactical disclosure of these documents set against the withholding of the documents at issue in
14
Samsung’s motion in limine is improper and constitutes a waiver. See Starsight Telecast, Inc. v.
15
Gemstar Dev. Corp., 158 F.R.D. 650, 653 (N.D. Cal. 1994) (“A party cannot disclose only those
16
facts beneficial to its case and refuse to disclose, on the grounds of privilege, related facts adverse
17
to its position.”).
18
Finally, Samsung’s showing with respect to exhibits prepared by non-attorneys is
19
particularly unpersuasive. Samsung claims that exhibits 9077/A, 9078/A, 9081/A, 9136, 9137,
20
10697, and 10698 were
REDACTED
21 22
REDACTED ”4 See Supp. Brief, Exh. 1 at 1-2, 4.
First, Samsung can point to nothing to address the fact that these documents are summaries of
23 3
24 25 26 27 28
Samsung’s claims of privilege for these documents are inconsistent with Samsung’s failure to assert privilege over a host of other attorney-client communications that it produced without objection. For example, on August 14, 2000, outside counsel David Healey sent Charles Donohoe a copy of the Infineon complaint, see Exhibit 9067, but Samsung has never claimed that this non-privileged document became privileged by virtue of the fact that it was exchanged between two attorneys representing Samsung. 4
REDACTED
REDACTED
Compare Exhibits 9077/A & 9078/A with
Exhibits 9081/A, 10697 & 10698.
-45970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
REDACTED
Page 6 of 7
1
what Samsung said to Rambus and what Rambus said to Samsung. These communications are
2
clearly not privileged, and a written account of the communications does not become privileged
3
because it is prepared at the direction of an attorney. Second, communications from a non-
4
attorney acting as a business advisor are not protected by the privilege. Samsung claims that
5
exhibits such as 9081/A were prepared
REDACTED
6
REDACTED
7
under this theory, everything that an employee of the legal department reported to Samsung’s
8
management regarding business meetings would be privileged. Supp. Brief at 4. This is contrary
9
to law, and because Samsung has not demonstrated what legal advice is contained in these
10
but
exhibits, its claims of privilege fail.
11
B.
The Deposition Excerpts Are Not Privileged.
12
Samsung relegates its claim that various deposition designations from Rambus are
13
privileged and should be precluded to a footnote. See Supp. Brief at 1 n.2. The generalized
14
statement that all testimony necessarily stands or falls with the Court’s decision on the documents
15
is misleading and wrong. At a minimum, Samsung needs to make a particularized showing with
16
respect to each designation. Moreover, all of Samsung’s challenges to the deposition testimony
17
as privileged fail because Samsung’s counsel did not raise a privilege objection to any of the
18
questions at issue in Exhibit 2. Indeed, such objections would not have been appropriate because
19
the questions do not elicit privileged information.
20
Samsung’s challenge to the Han Yong Uhm testimony at pages 34:7-35:10 is particularly
21
misplaced. See Supp. Brief, Exh. 2 at 3. Mr. Uhm was not a lawyer in 2000 during the Rambus
22
license negotiations. See Supp. Brief, Exh. 1
23
REDACTED In this passage of his testimony,
REDACTED REDACTED
REDACTED
24
REDACTED
25 26
This testimony satisfies none of the requirements for protection as privileged.
27
///
28
/// -55970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1 2
III.
Document 2229
Filed 09/19/2008
Page 7 of 7
CONCLUSION Rambus maintains that the privilege for any document produced pursuant to the implied
3
waiver orders has been lost for the reasons set forth in Rambus’s opposition papers and at the
4
hearing on September 16, 2008. However, if the Court holds that the scope of the implied waiver
5
of privilege was limited, then it should find that the documents and testimony at issue in
6
Samsung’s motion are not privileged and should be allowed at trial.
7 8
DATED: September 19, 2008
MUNGER, TOLLES & OLSON LLP
9 10 11 12 13
By:
/s/ Keith R. D. Hamilton Keith R. D. Hamilton
Attorneys for Plaintiff RAMBUS INC.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -65970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
1 2 3 4 5 6 7 8 9
Document 2229
Filed 09/19/2008
Page 1 of 7
GREGORY P. STONE (#78329) KEITH R. D. HAMILTON (#252115) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100; Facsimile: (213) 687-3702 E-mail: [email protected]; [email protected] BURTON A. GROSS (#166285) CAROLYN HOECKER LUEDTKE (#207976) MIRIAM KIM (#238230) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000; Facsimile: (415) 512-4077 E-mail: [email protected]; [email protected]; [email protected]
10 Attorneys for Plaintiff RAMBUS INC. 11 12
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
13 RAMBUS INC.,
CASE NO.: C 05-00334 RMW
14 Plaintiff, 15 v. 16 HYNIX SEMICONDUCTOR INC., et al., 17
RAMBUS INC.’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS PRODUCED PURSUANT TO THE COURT’S IMPLIED WAIVER ORDER
Defendants 18
[PUBLIC REDACTED VERSION]
19 Location: Judge:
20
Courtroom 6 Hon. Ronald M. Whyte
21 22
RAMBUS INC., Plaintiff,
23 24 25 26
CASE NO.: C 05-02298 RMW
v. SAMSUNG ELECTRONICS CO., LTD., et al., Defendants
27 28 5970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1
I.
Document 2229
Filed 09/19/2008
Page 2 of 7
INTRODUCTION & SUMMARY OF THE ARGUMENT
2
At the pretrial conference on September 16, 2008, this Court tentatively ruled that
3
Samsung had failed to establish elements of the attorney-client privilege for all but three of the 22
4
documents that were the subject of Samsung’s motion in limine. As to the remaining 19 exhibits,
5
the Court stated that “[m]any of these documents just seem to be reports of what occurred at a
6
particular meeting and not something that was prepared for the purposes of providing information
7
to the attorney for legal advice.” See H’g Trans., Sept. 16, 2008, at 29:18-23. Samsung has failed to carry its burden of establishing privilege. 1 As this Court previously
8 9
stated, “[t]he attorney-client privilege only protects legal advice provided to a client.” Hynix
10
Semiconductor Inc. v. Rambus Inc., Nos. C 05-20905-RMW, C 05-0334-RMW, C 06-00244-
11
RMW, 2008 WL 350641, at *3 (N.D. Cal. Feb. 2, 2008) (citing United States v. ChevronTexaco
12
Corp., 241 F.Supp. 2d 1065, 1069 (N.D. Cal. 2002) (“2/2/08 Order”)). Samsung’s submission
13
establishes that many of these documents passed through the hands of in-house counsel, but fails
14
to explain what legal advice they contain. Indeed, as set forth in detail in Rambus’s opposition to
15
Samsung’s motion in limine, any advice transmitted by these documents plainly concerns
16
business matters. See Rambus’s Opp’n to Samsung’s Motion in Limine, Docket No. 2183, C 05-
17
00334-RMW, 13-25 (N.D. Cal. Sept. 12, 2008) (“Opp’n to MIL”). This Court has previously
18
rejected the argument that such communications relaying business advice or analysis are cloaked
19
with the privilege. See 2/2/08 Order, 2008 WL 350641, at *2-*3 (rejecting claims of privilege for
20
document sent by Joel Karp to Neil Steinberg at Rambus). Samsung has simply replaced
21
generalized assertions from its privilege log with generalized assertions by its own in-house
22
counsel that these communications reflect legal opinions or further the provision of legal advice.
23
This is insufficient to sustain Samsung’s burden, especially where the documents demonstrate
24
that the privilege does not apply. Accordingly, Samsung’s motion in limine should be denied.
25
///
26
///
27
1
28
In its supplemental brief, Samsung has dropped its assertion of attorney work product immunity for exhibits 9079, 9139, 9334, or 9335. -15970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1 2
II.
Document 2229
Filed 09/19/2008
REDACTED
Page 3 of 7
ARGUMENT “To be privileged, [] legal advice must predominate the communication.” North Pacifica,
3
LLC v. City of Pacifica, 274 F.Supp. 2d 1118, 1129 (N.D. Cal. 2003). Additionally, because in-
4
house counsel “serve multiple functions within the corporation,” and “frequently serve as integral
5
players in business decisions or activities,” the proponent of the privilege must make “a clear
6
showing that the speaker made the communications for the purpose of obtaining or providing
7
legal advice.” ChevronTexaco Corp., 241 F.Supp.2d at 1076 (citing In re Sealed Case, 737 F.2d
8
94 (D.C. Cir. 1984)). Despite Samsung’s general claims that these memoranda and emails
9
transmit privileged communications, the documents on their face are devoid of legal advice and
10
clearly demonstrate that in-house counsel prepared or received them for the purpose of rendering
11
business analysis and not legal opinions.
12
A.
13
Samsung’s assertions of privilege over exhibits 9061 or 9129, 9077/A, 9078/A, 9079,
14
9081/A, 9126, 9134, 9136, 9137, 9138, 9336, 9337, 10697, and 10698 are based on the false
15
premise that sending an attorney or his representative to a business meeting protects the events of
16
that meeting from disclosure. This is not the law. See Matter of Fischel, 557 F.2d 209, 212 (9th
17
Cir. 1977) (“[The attorney-client privilege] will not conceal everything said and done in
18
connection with an attorney's legal representation of a client in a matter.”); Neuder v. Battelle
19
Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 293 (D. D.C. 2000) (“[T]he mere fact that in-house counsel
20
is present at a meeting does not shield otherwise unprivileged communications from disclosure.”).
21
Samsung broadly claims that these “memoranda and emails reviewing various negotiating
22
meetings” were prepared and/or communicated “in furtherance of … rendering of legal advice to
23
Samsung …..” Supp. Brief at 4. However, the content of the exhibits establishes that these
24
documents simply report what was said at business negotiations.
25 26 27
Factual Summaries of Negotiations Are Not Privileged.
For example,
REDACTED
REDACTED See Opp’n to MIL at 17-18.
REDACTED
REDACTED
28 -25970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
REDACTED
Page 4 of 7
REDACTED
1
REDACTED
2
Supp. Brief at 5; Decl. of Jay Shim at ¶ 3.
3
REDACTED
4
REDACTED REDACTED
5
REDACTED
6
Given Mr. Shim’s involvement in negotiating a patent
7
license with Rambus in August 2000, and the absence of any legal advice in these memoranda, it
8
is clear that exhibits 9061 and 9129 were prepared for the purpose of transmitting information so
9
that Samsung could make a business decision. They are therefore not privileged.
10
For the same reasons, Samsung’s showing regarding exhibits 9079, 9128, 9134, 9138,
11
9336, and 9337 is insufficient to establish the attorney-client privilege. Samsung claims that each
12
of these was prepared by in-house counsel and summarizes meetings or telephone conversations
13
with third-parties. 2 See Supp. Brief, Exh. 1. However, the face of the documents clearly
14
establishes that
REDACTED
15
REDACTED
16
REDACTED
17
REDACTED REDACTED
18
REDACTED
19
Although these individuals were in-house lawyers at Samsung, the
20
predominant business purpose of these exhibits demonstrates that they were not acting as legal
21
advisors when they prepared these memoranda. Accordingly, these exhibits are not privileged.
22
See Cuno, Inc. v. Pall Corp., 121 F.R.D. 198, 204 (E.D.N.Y. 1988) (“Where a lawyer mixes legal
23
and business advice the communication is not privileged unless ‘the communication is designed
24
to meet problems which can fairly be characterized as predominantly legal.’”) (quoting 2 J.
25
Weinstein & M. Berger, Weinstein’s Evidence, ¶ 503(a)(1)(01) at 503-22) (citations omitted).
26
2
In addition, Exhibit 9139 is See Donohoe Decl. at ¶ 7.
REDACTED
27 28
REDACTED
REDACTED REDACTED REDACTED
The email contains no legal advice.
-35970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
Page 5 of 7
REDACTED 1
Moreover, many of these documents do no more than summarize what Rambus said to Samsung,
2
and what Samsung said to Rambus. See, e.g. Exhibit 9079
REDACTED
REDACTED
3 4
The facts of these communications between Rambus and Samsung are not privileged. 3 See
5
Brinton v. Dep’t of State, 636 F.2d 600, 604 (Fed. Cir. 1980) (“When an attorney conveys to his
6
client facts acquired from other persons or sources, those facts are not privileged.”).
7
Samsung cannot reconcile its claims of privilege for Rambus meeting summaries prepared
8
by counsel in 2000 with the fact that it has produced other summaries prepared by counsel in
9
2005 without asserting any claim of privilege. Specifically, Samsung produced -- and included
10
on its trial exhibit list -- exhibits 4270, 4272, or 4274, all of which are meeting notes relating to
11
Samsung’s renegotiation of the SDR/DDR License. See Opp’n to MIL at 12 n.12. Samsung does
12
not attempt to justify or even explain this inconsistency in its supplemental brief. Indeed, the
13
tactical disclosure of these documents set against the withholding of the documents at issue in
14
Samsung’s motion in limine is improper and constitutes a waiver. See Starsight Telecast, Inc. v.
15
Gemstar Dev. Corp., 158 F.R.D. 650, 653 (N.D. Cal. 1994) (“A party cannot disclose only those
16
facts beneficial to its case and refuse to disclose, on the grounds of privilege, related facts adverse
17
to its position.”).
18
Finally, Samsung’s showing with respect to exhibits prepared by non-attorneys is
19
particularly unpersuasive. Samsung claims that exhibits 9077/A, 9078/A, 9081/A, 9136, 9137,
20
10697, and 10698 were
REDACTED
21 22
REDACTED ”4 See Supp. Brief, Exh. 1 at 1-2, 4.
First, Samsung can point to nothing to address the fact that these documents are summaries of
23 3
24 25 26 27 28
Samsung’s claims of privilege for these documents are inconsistent with Samsung’s failure to assert privilege over a host of other attorney-client communications that it produced without objection. For example, on August 14, 2000, outside counsel David Healey sent Charles Donohoe a copy of the Infineon complaint, see Exhibit 9067, but Samsung has never claimed that this non-privileged document became privileged by virtue of the fact that it was exchanged between two attorneys representing Samsung. 4
REDACTED
REDACTED
Compare Exhibits 9077/A & 9078/A with
Exhibits 9081/A, 10697 & 10698.
-45970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
Document 2229
Filed 09/19/2008
REDACTED
Page 6 of 7
1
what Samsung said to Rambus and what Rambus said to Samsung. These communications are
2
clearly not privileged, and a written account of the communications does not become privileged
3
because it is prepared at the direction of an attorney. Second, communications from a non-
4
attorney acting as a business advisor are not protected by the privilege. Samsung claims that
5
exhibits such as 9081/A were prepared
REDACTED
6
REDACTED
7
under this theory, everything that an employee of the legal department reported to Samsung’s
8
management regarding business meetings would be privileged. Supp. Brief at 4. This is contrary
9
to law, and because Samsung has not demonstrated what legal advice is contained in these
10
but
exhibits, its claims of privilege fail.
11
B.
The Deposition Excerpts Are Not Privileged.
12
Samsung relegates its claim that various deposition designations from Rambus are
13
privileged and should be precluded to a footnote. See Supp. Brief at 1 n.2. The generalized
14
statement that all testimony necessarily stands or falls with the Court’s decision on the documents
15
is misleading and wrong. At a minimum, Samsung needs to make a particularized showing with
16
respect to each designation. Moreover, all of Samsung’s challenges to the deposition testimony
17
as privileged fail because Samsung’s counsel did not raise a privilege objection to any of the
18
questions at issue in Exhibit 2. Indeed, such objections would not have been appropriate because
19
the questions do not elicit privileged information.
20
Samsung’s challenge to the Han Yong Uhm testimony at pages 34:7-35:10 is particularly
21
misplaced. See Supp. Brief, Exh. 2 at 3. Mr. Uhm was not a lawyer in 2000 during the Rambus
22
license negotiations. See Supp. Brief, Exh. 1
23
REDACTED In this passage of his testimony,
REDACTED REDACTED
REDACTED
24
REDACTED
25 26
This testimony satisfies none of the requirements for protection as privileged.
27
///
28
/// -55970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
Case 5:05-cv-00334-RMW
1 2
III.
Document 2229
Filed 09/19/2008
Page 7 of 7
CONCLUSION Rambus maintains that the privilege for any document produced pursuant to the implied
3
waiver orders has been lost for the reasons set forth in Rambus’s opposition papers and at the
4
hearing on September 16, 2008. However, if the Court holds that the scope of the implied waiver
5
of privilege was limited, then it should find that the documents and testimony at issue in
6
Samsung’s motion are not privileged and should be allowed at trial.
7 8
DATED: September 19, 2008
MUNGER, TOLLES & OLSON LLP
9 10 11 12 13
By:
/s/ Keith R. D. Hamilton Keith R. D. Hamilton
Attorneys for Plaintiff RAMBUS INC.
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -65970178.1 RAMBUS’S OPPOSITION TO SAMSUNG’S SUPPLEMENTAL BRIEF I/S/O MOTION IN LIMINE TO EXCLUDE PRIVILEGED DOCUMENTS; CASE NOS. 05-00334, 05-02298
