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Gregory P. Stone (State Bar No. 078329) Steven M. Perry (State Bar No. 106154) Sean Eskovitz (State Bar No. 241877) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: [email protected]; [email protected]; [email protected]

Rollin A. Ransom (State Bar No. 196126) SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013-1010 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 Email: [email protected]

Peter A. Detre (State Bar No. 182619) Carolyn Hoecker Luedtke (State Bar No. 207976) Jennifer L. Polse (State Bar No. 219202) MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, California 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: [email protected]; [email protected]; [email protected]

Pierre J. Hubert (Pro Hac Vice) Craig N. Tolliver (Pro Hac Vice) McKOOL SMITH PC 300 West 6th Street, Suite 1700 Austin, Texas 78701 Telephone: (512) 692-8700 Facsimile: (512) 692-8744 Email: [email protected]; [email protected]

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Attorneys for Plaintiff RAMBUS INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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RAMBUS INC.,

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Plaintiffs, vs.

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HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA INC.,

Case No. C 05-00334 RMW RAMBUS INC.’S OPPOSITION TO NANYA AND NANYA USA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Date: October 1, 2008 Time: 8:30 a.m. (by telephone) Judge: Hon. Read A. Ambler (Ret.)

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SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P., RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Case No. C 05-00334 RMW

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NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants.

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INTRODUCTION Plaintiff Rambus Inc. respectfully submits this opposition to Nanya Technology

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Corporation and Nanya Technology Corporation USA’s (collectively, “Nanya’s”) motion to compel

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Rambus Inc. (“Rambus”) to produce a witness to testify on topics 35 and 36 in the Manufacturers’

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Combined 30(b)(6) Notice of Rambus. Although Nanya describes the topics as “narrowly-tailored,”

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these topics in fact seek testimony regarding every communication that Rambus has ever had

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regarding its inventions with any person or entity that has invested in, or was asked to invest in,

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Rambus. Rambus has been in business since 1990. It received venture capital funding from

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multiple sources in its early years and had an initial public offering in 1997. It has thousands of

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shareholders. Given that Rambus’s inventions are at the core of its business, it would literally be

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impossible for Rambus to prepare a witness to testify as to these topics as drafted.

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More fundamentally, Rambus’s witnesses have already offered hundreds of pages of

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testimony regarding communications with investors and potential investors. This includes testimony

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– on multiple occasions – from the persons involved in Rambus’s original efforts to secure venture

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capital funding (including depositions of both Rambus personnel and representatives of the venture

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capital firms) and from the persons involved in Rambus’s IPO. In addition, witnesses have

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authenticated and testified at length regarding the documents presented to investors and potential

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investors in connection with these efforts. Thus, the fundamental premise underlying Nanya’s

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motion – that “no witness has testified previously on these topics” – is just wrong. In fact, these

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topics seek testimony that has already been given at length, and Nanya has offered no explanation of

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its need for any further testimony regarding them. The motion should be denied.

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BACKGROUND On July 11, 2008, Nanya unilaterally served a Notice of Deposition of Rambus that

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included, among other things, several broadly-worded topics relating to Rambus’s communications

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with third-parties. Declaration of Theresa E. Norton (“Norton Decl.”) ¶ 3 & Ex. B

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(“Communications with Others” topics 1 through 4). Because this notice was served in violation of

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paragraph 4 of the Court’s April 24, 2007 Case Management Order (the “CMO”), which required the

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Manufacturers to coordinate their discovery through lead counsel, Rambus objected. Norton Decl. ¶ RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Case No. C 05-00334 RMW

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4. In light of Rambus’s objection, the Manufacturers agreed that Rambus need not serve objections

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to the July 11 notice, and instead combined their various Rule 30(b)(6) deposition notices into a

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single notice, which the manufacturers served on July 29, 2008. Norton Decl. ¶¶ 4-5. The combined

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notice included the “communications with others” topics originally set forth in Nanya’s July 11

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notice. Norton Decl. ¶ 5. By agreement, Rambus served its objections to the combined notice on

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August 8, 2008, including objections based upon overbreadth, undue burden, and violations of the

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CMO’s prohibitions against duplicative discovery, and refused to produce a witness. Norton Decl. ¶

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6 & Ex. A. The parties meet-and-confer efforts were unsuccessful, and this motion followed.

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DISCUSSION Nanya’s motion should be denied because the topics that are the subject of the motion

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are unconscionably overbroad and, to the extent they could reasonably be narrowed, have been the

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subject of extensive deposition testimony.

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That the deposition topics are overly broad cannot reasonably be denied. Although

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Nanya summarily asserts that the topics are “narrowly-tailored” and “limited,” it is notable that

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nowhere in Nanya’s brief are the topics actually set forth. Topic 35 reads as follows:

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Communications, meetings, presentations, or other discussions

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between Rambus and any company or person that has invested in, or

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was asked to invest in, Rambus, including but not limited to Mohr

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Davidow Ventures, Merrill Pickard Anderson & Erye, and Kleiner

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Perkins Caufield & Byers, relating to the Farmwald inventions.

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Norton Decl. Ex. A (emphasis added). The overbreadth is apparent. First, this topic is unlimited in time, and therefore

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effectively seeks eighteen years of information (i.e., from 1990 to the present). Second, it seeks

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information regarding every communication to any investor or potential investor. Rambus received

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initial venture capital funding from the three firms specifically identified in Topic 35. Declaration of

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Rollin A. Ransom (“Ransom Decl.”) Ex. A (Farmwald Hynix Dep. (Jan. 22, 2004)) at 162:2-15. In

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connection with that funding, each of the venture capital firms had a representative on Rambus’s

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board of directors. Ransom Decl. Ex. B (Heller Infineon Dep. (Jan. 25, 2001)) at 7:8-8:14; Ex. C

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(Davidow Micron Dep. (Jul. 19, 2006)) at 170:24-171:20; Ex. D (Dunlevie Micron Dep. (Jul. 25,

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2001) at 11:14-12:20. Indeed, William Davidow, a representative of Mohr Davidow Ventures,

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served as Chairman of Board from 1990 to 2005. Ransom Decl. Ex. C at 171:5-8. The topic thus

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effectively seeks every communication between Rambus and three of its board members spanning

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more than a decade. Third, Rambus went public in 1997, and its stock is now publicly traded.

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Ransom Decl. ¶ 21. Rambus has had thousands (and likely tens or hundreds of thousands) of

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shareholders over the past eleven years, with whom it has communicated both directly and

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indirectly. Id. The topic would thus seek communications between Rambus and all such

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shareholders. Finally, although the topic purports to be “limited” to communications “relating to the

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Farmwald inventions,” the inventions of Drs. Farmwald and Horowitz – which underlie Rambus’s

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proprietary RDRAM product, as well as the infringing SDRAM and DDR SDRAM products at issue

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here – are at the core of Rambus’s business. This “limitation” is no limitation at all. See, e.g.,

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Krasney v. Nationwide Mut. Ins. Co., Case No. 3:06 CV 1164(JBA), 2007 WL 4365677, at * 4 & n.5

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(D. Conn. Dec. 11, 2007) (refusing to order Rule 30(b)(6) deposition as to topic reading “[a]ll

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communication between Gaynor and anyone at Nationwide regarding Krasney,” finding that there

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was “absolutely no way for defendant to respond to this inherently overbroad request”).

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Topic 36 is likewise overly broad. It reads:

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Communications, meetings, presentations, or disclosures between

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Rambus and persons outside of Rambus in connection with its initial

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public offering relating to the Farmwald inventions.

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Norton Decl. Ex. A. Rambus conducted a “roadshow” in connection with its initial public offering.

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Rambus’s former CEO, Geoff Tate (who, along with former CFO Gary Harmon, conducted the

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roadshow) testified that Rambus made sixty to seventy presentations in connection with the

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roadshow. Ransom Decl. Ex. E (Tate Micron Dep. (Mar. 30, 2001)) at 427:13-17. As with topic 35,

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because the core of Rambus’s business involves the inventions of Drs. Farmwald and Horowitz,

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topic 36 necessarily seeks testimony regarding each of these presentations. Such a request is plainly

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overbroad.

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More fundamentally, however, Rambus witnesses have testified repeatedly and at

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length regarding these topics. For example, the following chart reflects a non-exhaustive list of prior

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deposition testimony regarding communications with the three venture capital firms identified in

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topic 35, including discussions with such firms respecting Rambus’s intellectual property, as well as

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communications regarding Rambus’s inventions in connection with its IPO “roadshow”:

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Witness Michael Farmwald (Rambus co-founder) Gary Harmon (former Rambus CFO) Michael Farmwald

Case FTC

Deposition Date 1/7/03 (Ransom Decl. Ex. F) 1/8/03 (Ransom Decl. Ex. G) 1/22/04 (Ransom Decl. Ex. A)

Representative Pages 96-104

James Mannos (early Farmwald VC copresenter) William Davidow (Mohr Davidow representative) Bruce Dunlevie (Merrill Pickard representative) Andrew Heller (Kleiner Perkins representative) Geoff Tate (former Rambus CEO)

Hynix

10/24/01 (Ransom Decl. Ex. H) 1/31/01 (Ransom Decl. Ex. I)

44-54, 72-75, 83-86

Infineon

1/24/01 (Ransom Decl. Ex. J)

7-10, 13-23

Communications with Merrill Pickard

Infineon

1/25/01 (Ransom Decl. Ex. B)

7-11, 12-18

Communications with Kleiner Perkins

Micron

3/30/01 (Ransom Decl. Ex. E)

300-308, 401-403, 421-429, 442-451

Bruce Dunlevie

Micron

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Michael Farmwald

Micron

Geoff Tate

Micron

7/25/01 (Ransom Decl. Ex. D) 7/25/01 (Ransom Decl. Ex. K) 7/31/01 (Ransom Decl. Ex. L)

Communications with Morgan Stanley regarding IPO, presentation used during IPO roadshow, and IPO prospectus Communications with Merrill Pickard Communications with venture capital firms Communications with Kleiner Perkins and other venture capital firms

FTC Hynix

Infineon

155-160 160-166

15-21, 30-34

182-186, 199-201 671-674

Subject Matter Communications with Kleiner Perkins Communications with Morgan Stanley regarding IPO Presentations to Kleiner Perkins and other venture capital firms Presentations to Mohr Davidow, Kleiner Perkins, and other venture capital firms Communications with Mohr Davidow

In addition, in the foregoing and similar testimony, Rambus witnesses authenticated and discussed documents relating to the presentations that Rambus made to venture capital firms, including the presentations themselves and notes regarding same. See, e.g., Ransom Decl. Ex. F (Farmwald FTC Dep. (Jan. 7, 2003)) at 96:19-98:3; Ransom Decl. Ex. M (excerpts from Farmwald Exhibit 2 to Farmwald FTC Dep. (Jan. 7, 2003)); Ransom Decl. Ex. H (Mannos Hynix Dep. (Oct. 24, 2001)) at 4 RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Case No. C 05-00334 RMW

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49:13-54:2; Ransom Decl. Ex. N (Exhibit 1005 to Mannos Hynix Dep. (Oct. 24, 2001)); Ransom

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Decl. Ex. A (Farmwald Hynix Dep. (Jan. 22, 2004)) at 160:5-162:25 (discussing exhibit similar to

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Mannos Hynix Exhibit 1005). They also authenticated and discussed the slide presentation used

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with prospective investors during the IPO roadshow. See, e.g., Ransom Decl. Ex. E (Tate Micron

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Dep. (Mar. 30, 2001)) at 401:13-403:19, 423:2-423:20; Ransom Decl. Ex. O (Exhibit 222 to Tate

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Micron Dep. (Mar. 30, 2001)). 1

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Nanya’s entire motion is based upon its contention that “no individual has previously

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testified on these topics.” As demonstrated above, this claim is plainly false. Rambus has offered an

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extraordinary volume of testimony respecting these topics, including in depositions taken by

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Nanya’s co-defendants Micron and Hynix (a fact that may explain why Micron and Hynix have not

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joined this motion). And the depositions listed above are merely the tip of the iceberg. The

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witnesses identified in the chart above – that is, the universe of persons with first-hand knowledge of

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communications with Rambus investors and Rambus’s IPO – have collectively given forty-five days

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of deposition testimony in the Rambus Related Actions. Ransom Decl. ¶ 20. 2

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In the CMO, the Court acknowledged the “significant volume of testimony previously

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elicited from current and former Rambus officers, directors, and employees in the various Rambus

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Related Actions.” Ransom Decl. Ex. R at ¶ 5(c)(1). Accordingly, the Court imposed strict

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limitations on discovery, stating that “[d]iscovery for purposes of the 05-06 Cases shall be conducted

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to avoid unnecessary duplication of efforts and burden on the parties, witnesses, and third parties.”

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In addition, in connection with the conduct trial earlier this year, Rambus stipulated to various facts regarding certain IPO-related documents. Ransom Decl. Ex. P at 4-5 (referring to Exhibit 10); Ex. Q (portions of “Exhibit 10” in stipulation). Rambus is prepared to stipulate to these same facts for purposes of the upcoming patent trial.

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Nor is the above-cited testimony difficult to locate. Rambus identified these excerpts (among others) by searching deposition transcripts for terms such as “Kleiner,” “Merrill,” “Mohr Davidow,” and “IPO.” Contrary to the suggestion in Nanya’s brief, however, it was not incumbent upon Rambus to identify this prior testimony. Instead, it was incumbent upon Nanya to review the prior testimony and to avoid identifying deposition topics that were the subject of such prior testimony. Nanya clearly failed to satisfy this obligation, as it apparently undertook no effort to identify prior testimony on these topics either before it served its notice or in connection with the parties’ meet and confer. 5 RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Case No. C 05-00334 RMW

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CMO ¶ 5(a). To facilitate this general directive, the Court set limits on “further deposition

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discovery,” directing that the parties “shall not repeat prior lines of questioning” of witnesses. CMO

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¶ 5(c)(8).

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Rambus respectfully submits that the issues raised by topics 35 and 36 have been

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exhaustively addressed in the prior depositions of Rambus witnesses. Nanya has failed to articulate

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any respect in which this prior testimony is inadequate, or any previously-unanswered questions that

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it wishes (or needs) to pursue. 3 In light of these facts, Nanya’s assurance that it will “adhere to [its]

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obligation to not repeat prior lines of questioning” is meaningless, and its request for a further

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deposition baseless.

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CONCLUSION

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For the reasons discussed above, Rambus respectfully requests that the Court deny

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Nanya’s motion to compel.

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DATED: September 24, 2008

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MUNGER, TOLLES & OLSON LLP SIDLEY AUSTIN LLP McKOOL SMITH P.C.

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By:

/s/ Rollin A. Ransom

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Attorneys for RAMBUS INC.

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While denying the existence of prior testimony respecting these topics, Nanya also summarily asserts that prior individual testimony, “if any exists,” would not excuse Rambus from producing a Rule 30(b)(6) witness regarding the topics. However, the relevant Rambus witnesses with first-hand knowledge of investor- and IPO-related communications have been deposed at length on these issues, as described above. Forcing Rambus to provide a Rule 30(b)(6) witness to parrot the testimony already provided on multiple occasions would do nothing but impose an unwarranted burden on Rambus, in direct contravention of the CMO. 6 RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36 Case No. C 05-00334 RMW

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