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Case 5:05-cv-00334-RMW

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Document 2301

Filed 09/24/2008

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]

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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]

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Attorneys for RAMBUS INC.

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Page 1 of 12

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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

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RAMBUS INC., Plaintiff,

18 vs.

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CASE NO.: C 05-00334 RMW RAMBUS INC.’S OPPOSITION TO NANYA’S MOTION TO REOPEN DISCOVERY AS TO CERTAIN DEPOSITIONS

HYNIX SEMICONDUCTOR INC., et al., Defendants.

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Date: Time: Judge: Courtroom:

October 1, 2008 8:30 a.m. Hon. Read A. Ambler (Ret.) Telephonic Hearing

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RAMBUS’S OPPOSITION TO NANYA’S MOTION TO REOPEN DISCOVERY; CASE NO. C 05-334 RMW

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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

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Reopen Discovery as to Certain Depositions. Although styled as a motion to reopen discovery,

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Nanya’s motion is a motion to modify the Court’s case management order dated July 16, 2008

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(“Patent Trial Scheduling Order” or “Order”) to allow Nanya to take six third-party depositions

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after the deadline set in the Order for the close of fact discovery. It is therefore subject to the

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“good cause” standard stated in Rule 16(b), which “primarily considers the diligence of the party

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seeking the amendment.” Hynix Semicon. Inc. v. Rambus Inc., 2008 WL 4155655, at *3 (Sept. 5,

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2008) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992)).

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Nanya cannot show “good cause” to modify the Patent Trial Scheduling Order because

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Nanya was not diligent in attempting to complete these depositions before the close of discovery.

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Nanya’s only explanation for not completing this discovery by the discovery cut-off is its

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supposed reliance on Rambus’s agreement to allow all depositions noticed or subpoenaed on or

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before a certain date to go forward after the close of discovery. There was no such agreement.

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And Nanya’s own conduct leading up to and following this supposed agreement reveals that this

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explanation is nothing more than an excuse for its own lack of diligence in complying with the

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Order’s deadlines. First, Nanya waited to notice these depositions until two weeks before the

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close of discovery, even though these witnesses and the issue Nanya claims it needs their

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testimony to defend against have been known to Nanya for years. Second, Nanya noticed these

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depositions for the last week of discovery—a week in which numerous other depositions were

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already scheduled to take place. Third, even if at the time these depositions were noticed Nanya

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could somehow have taken them during the last week of discovery, one week before the

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discovery cut-off and before the supposed agreement with Rambus, Nanya admitted that it had no

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intention or ability to take these depositions before the close of discovery.

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Nanya’s attempt to blame Rambus for its own lack of diligence in taking these depositions

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before the close of discovery does not constitute “good cause” to modify the Order, which would

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impose a significant burden on Rambus at this stage of the case. Accordingly, the Court should

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deny Nanya’s motion. 6003914.1

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RAMBUS’S OPPOSITION TO NANYA’S MOTION TO REOPEN DISCOVERY; CASE NO. C 05-334 RMW

Case 5:05-cv-00334-RMW

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I.

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A.

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Two Weeks Before the Close of Discovery, Nanya Noticed Seven Third-Party Depositions for the Last Week of Discovery. The Patent Trial Scheduling Order set August 29, 2008, as the deadline for

completing fact discovery. With just over two weeks remaining before the discovery cut-off, Nanya began emailing a wave of subpoenas to Rambus as “notice” of third-party depositions to be taken during the last week of discovery. The first subpoena arrived on August 12, 2008, for Juan Pineda. Declaration of Rollin A. Ransom, Exh. A. Three days later, on August 15, 2008, four more arrived for Howard Kalter, David Chapman, Earnest Powell, and Mark Kellogg. Id., Exh. B. On August 20, 2008, another arrived for Winston Lee. Id., Exh. C. And, finally, one more arrived for Wingyu Leung on August 21, 2008. Id., Exh. D.

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Filed 09/24/2008

STATEMENT OF FACTS

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Document 2301

Nanya did not confer with Rambus before selecting the noticed dates, as required by Civil Local Rule 30-1, and set all of them for the last week of discovery, during which time there were already at least nine other depositions taking place. Declaration of Rosemarie T. Ring, ¶ 13. Rambus heard nothing more from Nanya about these depositions until August 22, 2008, when Rambus contacted lead counsel for the Manufacturers in an attempt to resolve issues that parties had been discussing with respect to specific witnesses, including scheduling for the depositions of Craig Hampel, Donald Stark, and a third-party witness subpoenaed by Rambus, and Rambus’s objections to the 30(b)(6) notice served on Rambus by the Manufacturers. Ransom Decl., ¶ 6. The parties held a telephone conference that afternoon (the “August 22 Meeting”). Id.

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At the August 22 Meeting, Nanya Informed Rambus that the Third Party Witnesses Were Not Available on the Noticed Dates and that Nanya Intended to Take Their Depositions After the Close of Discovery. During the August 22 Meeting, after the parties completed their discussion of the

above topics, Nanya read off the names of the seven third-party witnesses that had been noticed the week before (two days for Lee and one day for Leung). Ransom Decl., ¶ 7. Nanya stated that it had not been in contact with three of the third-party witnesses. Id. With respect to the remaining four, Nanya did not indicate that any of the depositions would go forward on the noticed dates. On the contrary, Nanya stated that, with the exception of one, none of the

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witnesses were available until September—after the close of discovery. Id. Nanya did not

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propose any dates for depositions because Nanya was not sure of its own availability on the

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identified dates. Id. Essentially, Nanya announced to Rambus that it had no intention or ability

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to take the third-party depositions before the discovery cut-off but nevertheless was planning to

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go forward with them after the close of discovery.

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This was the first time the issue of scheduling these depositions was ever raised

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with Rambus. Ransom Decl., ¶ 7. Unlike the other depositions addressed on the call, there had

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been no discussion of these third-party witnesses leading up to the August 22 Meeting—only one

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week before the discovery cut-off. Id. Given Nanya’s unilateral decision to take these

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depositions after the discovery cut-off, Rambus made it clear that the parties’ discussion of

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allowing certain depositions to go forward after the close of discovery was not a license to ignore

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the discovery cut-off in scheduling new depositions. Id. Nanya never sought Rambus’s

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agreement to allow the third-party depositions to go forward after the close of discovery, and

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Rambus never gave it. Id.

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C.

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Rambus Never Agreed to Extend the Discovery Cut-Off for All Depositions Noticed on or Before August 22, 2008. In its motion, Nanya asserts that, in the August 22 Meeting, Rambus agreed that all

17 depositions that had been noticed or subpoenaed on or before August 22, 2008, could go forward 18 after the discovery cutoff, including those for the third-party witnesses. Motion at 2-3. No such 19 agreement was made during the August 22, 2008 Meeting. Ransom Decl., ¶ 7. The following 20 email from the Manufacturers to Rambus on August 28, 2008, six days after the August 22, 2008 21 Meeting, seeking Rambus’s agreement on this and other terms of the “proposed agreement” 22 regarding depositions to be taken after the close of discovery, removes any doubt on this issue: 23 In response to your email, the Manufacturers have no objection to proceeding with the depositions of Messrs. Stark and Hampel on September 9th, assuming the parties can agree to the general framework for the extension of the discovery cut-off for depositions discussed last Friday. Under this proposed agreement, the parties will not object on the basis of timeliness to depositions taken after the close of discovery, as long as the corresponding deposition notices or subpoenas were sent on, or before, August

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Ring Decl., ¶ 3 and Exh. A (emphasis added). The following morning, on August 29, 2008, Rambus called the Manufacturers to meet and confer regarding the above email. Ring Decl., ¶ 4. The substance of that conversation is documented in an email from Rambus to the Manufacturers on September 3, 2008, excerpted, in relevant part, as follows: As you and I discussed over the phone this past Friday morning, Rambus did not agree in the August 22, 2008 meet and confer to a blanket agreement that would allow all depositions noticed on or before a particular date to go forward after the close of discovery and therefore would not agree to include such language in the stipulation. The purpose of my call to you on Friday was to discuss your email to Jen Polse dated August 28, 2008. I told you that Rambus agreed to your proposal allowing for supplementation of the parties’ opening expert reports based on depositions taken after the close of discovery and setting the deadline for such supplementation as September 19. Rambus also agreed that the deadline for filing motions to compel related to depositions taken after the close of discovery would be 7 calendar days after the date of the deposition (tracking L.R. 26-2). But, with respect to the blanket agreement referred to in your August 28, 2008 email, and again below, allowing all depositions noticed by August 22, 2008 to go forward after the close of discovery, I told you that Rambus had not and would not agree to such a rule. I said that, instead, the stipulation would identify specific witnesses that the parties had agreed could go forward after the discovery cutoff. You agreed and I began drafting the stipulation to reflect that approach. If you have a different understanding, please say so.

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Please confirm by noon tomorrow whether this proposal is acceptable to Rambus. If so, I understand from Rosemarie that Rambus is willing to file a stipulation tomorrow on any agreement the party reach on an extension of the discovery cut-off for depositions.

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Filed 09/24/2008

22, 2008. Further, the parties also will not object to supplementation of the parties’ opening expert reports based on the depositions taken after the close of discovery. The Manufacturers propose September 19th as the date for such supplementation rather than September 16th mentioned in your letter…

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Ring Decl. ¶ 4, Exh. B (emphasis added). The above communications speak for themselves. Rambus never agreed to allow depositions noticed on or before August 22, 2008 to go forward after the close of discovery. Even the Manufacturers acknowledged this on August 28, 2008,

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when it sought Rambus’s acceptance of a “proposed agreement” addressing this point. The

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following day, on August 29, 2008, Rambus informed the Manufacturers in no uncertain terms

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that it did not accept their “proposed agreement.” None of the Manufacturers, including Nanya,

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have ever disputed the above email from Rambus detailing the parties’ meet and confer on

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August 29, 2008. Nor, of course, have they ever disputed the content of their own email to

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Rambus on August 28, 2008, making clear that the supposed agreement in the August 22 Meeting

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Nanya now relies on to excuse its lack of diligence in taking these depositions never existed. But

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Nanya has chosen not to cite or attach these communications to its motion, which also speaks for

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itself.

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D.

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The Delay in Filing the Discovery Stipulation Was Due to Nanya’s Continued Lack of Diligence in Addressing Discovery Issues With Rambus. On August 28, 2008, in light the impending discovery cutoff the following day,

12 Rambus contacted the Manufacturers and suggested that the parties file a stipulation and proposed 13 order addressing the depositions that the parties had agreed could be taken after the close of 14 discovery. Ring Decl., ¶ 2. That evening, the Manufacturers sent an email to Rambus seeking 15 Rambus’s acceptance of a “proposed agreement” regarding depositions to be taken after the close 16 of discovery. Id. ¶ 3 and Exh. A. Rambus called lead counsel for the Manufacturers the 17 following morning, on August 29, 2008, accepting some terms of the proposed agreement and 18 rejecting others. Id. ¶ 4 and Exh. B. Of most significance here, Rambus rejected the 19 Manufacturer’s proposal to extend the discovery cutoff for all depositions noticed or subpoenaed 20 on or before August 22, 2008, and made clear that the stipulation would “identify specific 21 witnesses that the parties had agreed could go forward after the discovery cutoff.” Exh. B. Lead 22 counsel for the Manufacturers agreed to these terms and Rambus began drafting the stipulation in 23 accordance with that agreement. Ring Decl., Exh. B. 24 Later that day, Nanya called Rambus directly to discuss scheduling for the 25 deposition of Wingyu Leung, one of the third-party witnesses. Ring Decl., ¶ 5. Rambus agreed 26 to allow Mr. Leung’s deposition to be taken after the close of discovery on September 11, 2008. 27 Id. Based on this agreement, Rambus informed Nanya that Mr. Leung would be included in the 28 6003914.1

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discovery stipulation. Id. At this point, Nanya volunteered that it would send an email later that

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day with other information to be included in the stipulation. Ring Decl., ¶ 4. Contrary to

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Nanya’s assertion, Rambus never asked Nanya to send “a list of the individuals to be included in

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the stipulation.” Motion at 3; Ring Decl., ¶ 4.

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At 4:25 p.m. that afternoon, having received no email from Nanya, Rambus sent

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the following email to the Manufacturers expressing concern over whether they would be able to

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file the stipulation that day given the late hour:

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As noted below, I am drafting a stipulation and proposed order extending the discovery cutoff with respect to specific depositions and related discovery issues. I understand that Nanya is to provide information that must be included in the stipulation. Given the late hour, I am concerned as to whether we will be able to file this today given the number of people who must review and sign off on the stipulation and proposed order before filing.

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Would Nanya please advise on when it expects to provide this information and would the rest of the group please advise on your availability to review the stipulation this evening or over the weekend, if need be.

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Ring Decl., ¶ 6 Exh. D. At 5:30 p.m., Rambus received an email from Nanya identifying a list of 30(b)(6) topics and witnesses that Rambus had never agreed could go forward after the close of discovery. Ring Decl., ¶ 7 Exh. E. Rambus sent the following email in response:

18 As I have not heard from counsel for Hynix or Samsung, and need time to review with my client the list of deposition witnesses and topics provided by Nanya below as most of them were not among those addressed in Sven’s email, we will have to postpone filing the stipulation until next week.

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Ring Decl., ¶ 7 Exh. E. The following week, on September 3, 2008, the Manufacturers sent an email to Rambus which ignored the substance of the parties’ meet-and-confer on August 29, 2008, in which Rambus rejected the Manufacturers’ proposal made the day before to extend the discovery cut-off for all depositions noticed or subpoenaed on or before August 22, 2008. Ring Decl., ¶ 9. Not surprisingly, that email, excerpted below, is the only communication between the Manufacturers and Rambus quoted in Nanya’s motion: We still have not heard back on the stipulation, even though it

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should be very simple. The parties agreed during our August 22, 2008 meet and confer call that Rambus would not object on the basis of timeliness to depositions taken after the discovery cut-off last Friday, as long as the corresponding deposition notices or subpoenas were sent on, or before, August 22, 2008. This was what I circulated last week without objection from Rambus and all these depositions fall within that category. Indeed, the parties specifically discussed the individuals mentioned in Tess’s email during the August 22 call. Please let us know when Rambus will be circulating a stipulation.

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Ring Decl., ¶ 9 Exhibit G. Counsel for Rambus responded to this email immediately detailing the

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parties’ agreement regarding the substance of the stipulation as discussed on August 29, 2008.

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Ring Decl., ¶ 4 Exhibit B. The following day, on September 4, 2008, counsel for Rambus

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circulated a draft stipulation with the cover email explaining that it was limited to witnesses and

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30(b)(6) topics for which the parties had reached agreement. Ring Decl., ¶ 10 Exhibit H.

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On September 4, 2008, lead counsel for the Manufacturers and Nanya called

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Rambus to discuss the third-party witnesses. Ring Decl. ¶ 11. Nanya stated its view that the

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third-party witnesses should be included in the stipulation based on the supposed agreement

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reached by the parties in the August 22 Meeting to allow all depositions noticed or subpoenaed on

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or before August 22, 2008 to go forward after the close of discovery. Id. Rambus again stated its

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disagreement with Nanya on this issue. Rambus and Nanya agreed to disagree. Id. Nanya then

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asked Rambus if it would now agree to extend the discovery cutoff for these witnesses. Id. On

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September 5, 2008, Rambus informed Nanya that it would not. Ring Decl., ¶ 12. Nanya

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informed Rambus that it would make a motion to reopen discovery with respect to the third-party

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witnesses and this Motion followed. Id.

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II.

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ARGUMENT Nanya’s motion should be denied because Nanya was not diligent in attempting to

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take the third-party depositions within the time period set by the court for fact discovery and

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therefore cannot show “good cause” for modifying the Patent Trial Scheduling Order to allow

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them to go forward now. “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence

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of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609

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(9th Cir. 1992). “If that party was not diligent, the inquiry should end.” Id. In addition,

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allowing these depositions to go forward now would prejudice Rambus and impose a significant

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burden on Rambus given the Samsung trial that is currently ongoing and other impending

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deadlines in the Patent Trial Scheduling Order. Accordingly, the court should deny Nanya’s

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motion.

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Nanya’s Claimed Reliance on Rambus’s Supposed Agreement to Allow the Third-Party Depositions to Go Forward After the Discovery Cutoff Does Not Constitute “Good Cause.”

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Nanya’s only explanation for its failure to take the third-party depositions before

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A.

the discovery cutoff is its claimed reliance on Rambus’s supposed agreement to allow these

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depositions to go forward after the close of discovery. This does not constitute “good cause” for

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modifying the Patent Trial Scheduling Order.

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First, as set forth above, there was no agreement by Rambus, before, during, or

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after the August 22 Meeting, to allow all depositions noticed or subpoenaed on or before August

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22, 2008 to go forward after the close of discovery.

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Second, Nanya’s attempt to blame its failure to take these depositions before the

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close of discovery on this supposed agreement is disingenuous and belied by its own conduct.

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Nanya waited until two weeks before the close of discovery to notice these depositions, even

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though the issue to which this testimony is supposedly relevant has been in the case since it was

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filed, and Nanya has either known about or could easily have identified these witnesses early in

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the discovery process based on documents and testimony in related cases that have been available

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to it and the other Manufacturers for years.

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Nanya states that it identified the JEDEC witnesses through an “investigation”

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showing that they “attended [JEDEC] meetings … in the late 1980s and mid 1990s time frame”

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which is expected by Nanya to result in “testimony that will, among other things, rebut Rambus’

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claims that the JEDEC member companies stole Rambus’ inventions.” Motion at 1-2, 5. But

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Nanya and the rest of the Manufacturers have had the JEDEC attendance lists for the relevant

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time frame for years and could have used them to “investigate,” identify, and depose the JEDEC

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witnesses long before now. In addition, testimony of the so-called JEDEC witnesses (or 6003914.1

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testimony about them) taken in other Rambus Related Actions has been available to Nanya and

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the other Manufacturers for years. For example, Kalter, Kellogg and Powell were all deposed in

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the Micron Delaware case in mid-2001 and in the FTC proceedings in early 2003. In addition,

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Howard Sussman testified in the Micron Delaware case (also in mid-2001) about Chapman’s and

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Pineda’s involvement in early SDRAM development. Nanya and the other Manufacturers would

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have gotten these transcripts long ago under the JCMO.

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Nanya offers no explanation for its delay in noticing these depositions until two

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weeks before the close of discovery. If it is true, as Nanya now contends, that its inability to

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obtain testimony from these witnesses would be “severely prejudicial” to its case, Nanya should

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have noticed these depositions long ago. Motion at 5. Moreover, most of the witnesses reside

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out-of-state and none have given Nanya reason to believe that they would voluntarily appear to

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testify at trial. Under these circumstances, and in light of the already busy deposition schedule

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leading up to the discovery cut-off, Nanya could not have realistically expected to complete these

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depositions within a two-week period.

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Even if at the time these depositions were noticed Nanya and the other parties

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could somehow have been able to find the resources to take them during the last week of

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discovery, Nanya’s statements during the August 22 Meeting make plain that, at least by that

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date, Nanya had no intention or ability to do so. During that meeting, Nanya informed Rambus

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and the other Manufacturers that none of the third-party witnesses were available on the noticed

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dates and, except for one, none were available until after the close of discovery. Nanya’s

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assertion that it relied on an agreement supposedly entered into by the parties during the August

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22 Meeting to explain why it did not take these depositions before the close of discovery is belied

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by its admitted inability as of that date to take these depositions during the last week of discovery.

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********************

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At bottom, Nanya’s attempt to blame Rambus for its own lack of diligence in

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taking these third-party depositions rings hollow and by no stretch constitutes “good cause” to

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modify the Patent Trial Scheduling Order.

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B.

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Rambus Will Be Prejudiced If the Patent Trial Scheduling Order Is Modified to Allow the Third Party Depositions to Go Forward. Under Rule 16(b)’s “good cause” standard, although “the focus of the inquiry is

upon the moving party’s reasons for seeking modification,” “the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion.” Wordtech Sys., Inc. v. Integrated Network Solutions, Inc., No 2:04-cv-01971, 2008 WL 4145440, at *1 (E.D. Cal. Sept. 3, 2008). Here, if these depositions are allowed to go forward, the burden imposed on Rambus would be significant and would prejudice Rambus both in the ongoing trial in the Samsung matter and in its ability to prepare for trial. In addition to the time and expense involved in traveling to attend the out-of-state depositions, the time it will take to prepare for these depositions will be a significant hardship on Rambus, as its counsel is currently in trial in the Samsung matter and, at the same time, preparing for trial in this matter.

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Document 2301

Under the Patent Trial Scheduling Order, the parties must meet an aggressive schedule of deadlines for expert discovery, dispositive motions, Daubert motions, motions in limine, and other pre-trial filings, all of which were adopted by the court based on the understanding that fact discovery would be completed on August 29, 2008. Requiring Rambus to take several third-party depositions, most of which are out-of-state, at the same time it is trying to prepare for trial in this case would be extremely burdensome and prejudicial. It would also be manifestly unfair. Despite Nanya’s attempt by this motion to find a scapegoat for its failure to complete these third-party depositions before close of discovery, there is no one to blame but Nanya itself.

21 III. 22 23

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

Nanya’s motion.

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DATED: September 24, 2008

MUNGER, TOLLES & OLSON LLP

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SIDLEY AUSTIN LLP

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McKOOL SMITH P.C.

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By:

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/s/ Rosemarie T. Ring ROSEMARIE T. RING

Attorneys for RAMBUS INC.

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