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ROBERT E. FREITAS (STATE BAR NO. 80948) CRAIG R. KAUFMAN (STATE BAR NO. 159458) VICKIE L. FEEMAN (STATE BAR NO. 177487) THERESA E. NORTON (STATE BAR NO. 193530) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA

8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 RAMBUS INC.,

Case No. CV-05-003334 RMW

13 Plaintiff, 14 v. 15 16 17 18 19 20 21 22 23

HYNIX SEMICONDUCTOR INC.; HYNIX SEMICONDUCTOR AMERICA, INC.; HYNIX SEMICONDUCTOR MANUFACTURING AMERICA, INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG AUSTIN SEMICONDUCTOR, L.P.,

NANYA TECHNOLOGY CORPORATION’S AND NANYA TECHNOLOGY CORPORATION USA’S OPPOSITION TO RAMBUS’ MOTION TO COMPEL DEPOSITION OF NANYA 30(B)(6) DESIGNEES ON CERTAIN DDR3 SDRAM TOPICS Date: Time: Location: Judge:

October 2, 2008 9:00 a.m. Telephonic Hearing Hon. Read Ambler (Ret.)

NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, Defendants.

24 AND RELATED ACTIONS. 25 26 27 28 NANYA’S OPPOSITION TO RAMBUS’ MOTION TO COMPEL 30(B)(6) DEPOSITION CASE NO. 05-00334 RMW

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Both the Federal Rules and the Court’s Joint Case Management Order prohibit parties

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from duplicative depositions covering the same lines of questions as past depositions. Yet that is

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exactly what plaintiff Rambus Inc. (“Rambus”) seeks in its motion – a wholesale repeat of topics

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that Nanya Technology Corporation (“Nanya”) already testified to during its October 2007

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30(b)(6) deposition. Rambus has not met its burden of establishing that good cause exists for a

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second deposition on the same topics. Moreover Rambus waited nearly a year, until nine days

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before discovery closed, to make any objection as to the sufficiency of that earlier deposition.

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Rambus’ unexcused delay in seeking this discovery should result in a waiver of Rambus’ right to

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seek a second deposition. Lastly, the burden on Nanya of producing a witness for deposition is

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far greater than any need Rambus has articulated for the additional testimony. Accordingly, the

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Court should deny Rambus’ motion and not allow Rambus a second bite at the apple.

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I.

RAMBUS ALREADY DEPOSED NANYA ON THESE SAME TOPICS In October 2007, Nanya1 produced its corporate designee, Willie Liu, to testify in

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response to Rambus’ 30(b)(6) deposition notice to Nanya and Nanya Technology Corporation

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USA (“Nanya USA”). Declaration of Theresa E. Norton (“Norton Decl.”), ¶ 3. The topics on

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which Mr. Liu already provided testimony are the same topics that are the subject of Rambus’

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motion. Id., ¶ 3. Nanya provided Rambus with two full days to ask Mr. Liu all of its questions

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relating to these topics. On October 18, 2007, the second day of Mr. Liu’s deposition, Rambus in

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fact spent a substantial amount of time – 82 minutes – questioning Mr. Liu on technical issues

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specific to Nanya’s DDR3 products. Id., ¶ 3. This DDR3-specific line of questions followed an

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even more lengthy line of questions on DDR2 products, and Mr. Liu testified that many of his

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answers to the DDR2 questions were also applicable to the DDR3 questions. See, e.g., id., ¶ 3

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and Exh. A (Liu Depo. Tr. at 130:15-131:14). Rambus also showed Mr. Liu many technical

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documents relating to DDR3 products, asked Mr. Liu detailed questions about those DDR3

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Rambus seeks a further 30(b)(6) deposition of “Nanya” which it defines as collectively both Nanya Technology Corporation and Nanya Technology Corporation USA, two separate defendants. On October 17-18, 2007, Nanya produced Willie Liu as its corporate designee for topics 1-11. On November 8, 2007, Nanya USA produced Steve Wang to provide testimony in response to topics 1-11. Norton Decl., ¶ 2. While Rambus does not explain in its moving papers which entity it seeks to further depose, in this opposition, Nanya and Nanya USA treat Rambus’ motion as one seeking a further 30(b)(6) deposition of Nanya Technology Corporation only.

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documents, and marked those documents as exhibits to his deposition. Id., ¶ 3.

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At no time during Nanya’s 30(b)(6) deposition in October 2007, or for nearly a year

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afterward, did Rambus object that the deposition was insufficient. Rambus never objected that

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Mr. Liu was unable to answer Rambus’ questions or that Rambus did not obtain testimony

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responsive to any of the topics contained in its deposition notice. It was not until August 20,

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2008 – nine days prior to the discovery cut-off – that Rambus first raised any issue regarding the

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sufficiency of Mr. Liu’s testimony. Id., ¶ 4.

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II.

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RAMBUS HAS NO GROUNDS TO SEEK A SECOND 30(B)(6) DEPOSITION COVERING THE SAME ISSUES Discovery is not an unlimited exercise. Rule 26 of the Federal Rules of Civil Procedure

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[T]he Court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

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Fed. R. Civ. P. 26(b)(2)(C). Moreover, the Court’s Case Management Order also prohibits a

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second 30(b)(6) deposition that seeks to repeat prior lines of questions:

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The parties may notice a witness for only one individual deposition in the 05-06 Cases, and, if that person has previously been deposed in one or more of the Rambus Related Actions, shall not repeat prior lines of questioning of such person. A prior individual deposition of a witness includes the deposition of a 30(b)(6) designee on the designated subject. Paragraph 5.c.(8) of the Court’s April 24, 2007 Case Management Order at page 9.

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Here, Rambus is seeking a second deposition relating to DDR3 products, covering all of

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the same topics as the 30(b)(6) deposition of Nanya that Rambus already took in October 2007.

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Rambus does not dispute that it already had the opportunity to question Nanya on these topics

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with respect to DDR3 products. Nor does Rambus dispute that Nanya’s corporate designee -2-

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already provided testimony on the technical features of Nanya’s DDR3 products in development.

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Mr. Liu has first-hand knowledge on Nanya’s DDR3 products because he was a member of a

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Nanya DDR3 part design team and designed DDL and high-speed interface circuits for a DDR3

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product. Norton Decl., ¶ 3 and Exh. A (Liu Depo. Tr. at 142:11-143:20). In addition, Mr. Liu

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already answered Rambus’ questions regarding the operation of DDR3 parts with respect to

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technical features that are at issue in this case, including CAS latency values, additive latency

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feature, burst length, mode register, auto precharge feature, double data rate feature, DDL

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operation, and write data mask operation. Id., ¶ 3 and Exh. A (Liu Depo. Tr. at 123:8-19; 127:12-

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21; 128:5-20; 129:7-130:11; 130:15-131:14; 132:22-133:3).

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Instead, Rambus argues that Nanya’s witness did not give definitive answers in response

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to a few specific questions or on a few of the noticed topics. However, in its motion Rambus did

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not discuss the substance of any of the questions or topics at issue, nor did Rambus explain why

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obtaining answers to any of these specific questions or topics would merit a further deposition.

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Likewise, although Rambus argues that additional DDR3 documents were produced after Mr.

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Liu’s deposition, Rambus makes no effort to explain why any such document would support a

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repeat of Nanya’s 30(b)(6) deposition. Rambus thus utterly failed to justify its request for a

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second deposition with any showing of good cause. See Fed. R. Civ. P. 26(b)(1) (a showing of

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good cause is required for a discovery order).

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III.

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RAMBUS UNREASONABLY DELAYED OBJECTING TO THE SUFFICIENCY OF NANYA’S TESTIMONY In addition, Rambus failed to meet and confer with Nanya in a timely manner regarding

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its objections to Mr. Liu’s testimony. Rambus took this deposition in October 2007. Rambus

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then waited more than 10 months to make any objection as to its sufficiency. Indeed, it was not

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until nine days before the close of discovery that Rambus first raised the issue. This is not a

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reasonable course of action. Rambus had “ample opportunity” to meet and confer with Nanya in

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the weeks and months following Mr. Liu’s October 2007 deposition to discuss Rambus’ alleged

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concerns regarding the deposition’s sufficiency, but chose not to do so. See Fed. R. Civ. P.

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26(b)(2)(C)(ii) (courts may deny discovery if “the party seeking discovery has had ample -3-

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opportunity to obtain the information by discovery in the action”); see also Andamiro U.S.A. v.

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Konami Amusement of America, Inc., 2001 WL 535667, *2 (C.D. Cal. 2001) (denying plaintiff’s

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request for depositions because plaintiff had ample opportunity to obtain relevant information).

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Rambus’ choice to wait until the close of discovery to seek a further 30(b)(6) deposition

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on this issue created a situation in which the deposition Rambus seeks could only have occurred

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after the close of discovery. Nanya has no obligation to produce its witnesses after the close of

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discovery, particularly when the witness was already produced for deposition a year before. The

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Court should conclude that through its own delay, Rambus waived its right to seek a second

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30(b)(6) deposition of Nanya on these issues.

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IV.

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THE BURDEN ON NANYA TO PRODUCE A WITNESS FOR A SECOND DEPOSITION OUTWEIGHS ANY MARGINAL BENEFIT TO RAMBUS Lastly, the burden on Nanya, if this deposition were to go forward, greatly outweighs any

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benefit to Rambus. Nanya’s witnesses are generally located in Taiwan, and it would be a great

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inconvenience to them to travel to California to repeat this deposition a second time.2 In contrast,

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Rambus has failed to explain why it needs any additional testimony from Nanya. This deposition

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is nothing more than a fishing expedition. This is particularly so because DDR3 products are

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only tenuously relevant to Rambus’ damages claims against Nanya. DDR3 is a product still

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under development; Nanya’s sales of DDR3 are de minimus and should not have any impact on

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Rambus’ damages calculations for alleged past infringement. See Norton Decl., ¶¶ 6-7 and Exh.

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B (Hurley Depo. Tr. At 18:12-17 (testifying that Nanya USA is not selling DDR3 products) and

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Exh. C (Pai Depo. Tr. at 17:1-8 (testifying that at this time, Nanya is only sending out samples of

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DDR3, conducting qualification, and has only “some small quantity” of sales of DDR3 products).

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Nor does Rambus need this deposition for its infringement analysis. Rambus’ expert Robert Murphy relied solely on Nanya data sheets to purportedly demonstrate infringement of

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Moreover, Nanya has been willing to make accommodations to address Rambus’ concerns. For example, as Nanya discussed with Rambus during the parties’ meet and confer communications, Nanya is willing to consider withdrawing its objections regarding DDR3 being beyond the scope of the 30(b)(6) notice, and to retroactively designate Mr. Liu’s October 2007 testimony on Nanya’s DDR3 products as 30(b)(6) testimony. Norton Decl., ¶ 5. Nanya also advised Rambus that it was willing to stipulate as to the authenticity of DDR3 documents that Nanya produced after Mr. Liu’s deposition. Id., ¶ 5. Rambus was not interested in either of these proposals.

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each of the accused products (i.e., SDRAM, DDR, DDR2, and DDR3). Mr. Murphy did not rely

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on any deposition testimony or other technical documentation to establish infringement of any of

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the accused products.

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Thus, the burden on Nanya of producing a witness for this deposition is much greater than

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the marginal benefit Rambus would receive in obtaining additional discovery on a product that

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does not play any role in Rambus’ damages calculations. See In re ATM Fee Antitrust Litigation,

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2007 WL 1827635, *2 (N.D. Cal., 2007) (denying in part motion to compel document production

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on the grounds that “theoretical entitlement yields to practical considerations when ‘the burden or

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expense of the proposed discovery outweighs its likely benefit’”) (quoting Fed. R. Civ. P.

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26(b)(2)(C)(iii)).

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V.

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CONCLUSION For the foregoing reasons, Nanya Technology Corporation and Nanya Technology

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Corporation USA respectfully request that the Court deny Rambus’ motion to compel a further

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30(b)(6) deposition on DDR3 products.

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Respectfully submitted, Dated: September 25, 2008

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ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN THERESA E. NORTON Orrick, Herrington & Sutcliffe LLP

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/s/ Theresa E. Norton Theresa E. Norton Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA

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OHS West:260517193.2

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