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Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7
Document 2309
Filed 09/29/2008
Page 1 of 8
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: 650-614-7400 Facsimile: 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.,
13 14 15 16 17 18 19 20 21 22 23
Case No. CV-05-003334 RMW Plaintiff,
v. 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, NANYA TECHNOLOGY CORPORATION USA,
NANYA TECHNOLOGY CORPORATION’S AND NANYA TECHNOLOGY CORPORATION USA’S REPLY TO RAMBUS’ OPPOSITION TO ITS MOTION TO COMPEL RAMBUS TO PRODUCE A WITNESS TO TESTIFY ON 30(B)(6) TOPICS 35 AND 36 (RAMBUS’ COMMUNICATIONS WITH OTHERS) Date: Time: Location: Judge:
October 1, 2008 8:30 a.m. Telephonic Hearing Hon. Read A. Ambler (Ret.)
Defendants.
24 25
AND RELATED ACTIONS.
26 27 28 NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
1
Document 2309
Filed 09/29/2008
Page 2 of 8
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation USA
2
(“Nanya USA”) seek a 30(b)(6) deposition of Rambus Inc. (“Rambus”) on topics 35 and 36 from
3
the Manufacturers’ Combined 30(b)(6) Notice. Rambus refuses to provide a witness on the
4
ground that allegedly responsive individual testimony is already available. However, none of the
5
testimony Rambus identifies is adequately responsive to topics 35 or 36. This is because the cited
6
testimony generally does not provide a complete picture into the substance of Rambus’
7
communications with others. While the testimony generally discusses or authenticates investor
8
proposals Rambus made, it generally does not address representations Rambus may have made to
9
others regarding the Farmwald inventions. Nor is any of this prior testimony designated as
10
30(b)(6) testimony. Similarly, while Rambus identifies a scattershot of offhand comments made
11
by potential investors, the testimony cannot be characterized as industry reaction to Rambus’
12
communications. There is also no suggestion that the identified comments are exhaustive on the
13
issue. Nanya and Nanya USA have the right to conduct discovery into topics 35-36, because they
14
are directly relevant to arguments Rambus may make at trial relating to secondary considerations
15
of non-obviousness. Nanya and Nanya USA will suffer substantial prejudice if they cannot
16
obtain this discovery.
17
Topics 35 and 36 are also not overly broad. The Court should reject Rambus’ attempt to
18
re-write them to cover every communication Rambus has ever had with its board members or
19
investors. Rather, the topics are limited to communications relating to the Farmwald inventions
20
at issue in this case. In addition, nearly all of Rambus’ specific objections to topics 35-36 have
21
been raised for the first time in response to Nanya and Nanya USA’s motion. Rambus failed to
22
satisfy its duty to meet and confer on this issue; Nanya and Nanya USA had to file a motion to
23
compel before Rambus would discuss any specific objections. The motion should be granted on
24
this ground as well.
25
I.
26 27 28
THE TESTIMONY RAMBUS CITES DOES NOT ADEQUATELY PROVIDE THE INFORMATION NANYA SEEKS IN TOPICS 35-36 The essence of this motion is that Rambus has not provided the information Nanya and
Nanya USA seek to discover through topics 35 and 36. Topic 35 covers the substance of 1
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
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communications between Rambus and investors or potential investors relating to the Farmwald
2
inventions. Topic 36 covers the substance of communications between Rambus and others
3
relating to the Farmwald inventions in connection with Rambus’ IPO. Rambus presumably made
4
statements about the nature, value and promise of the Farmwald inventions while it was
5
attempting to secure funding for its company and while on its road show promoting its IPO. It is
6
likely that investors that were considering investing in Rambus, and companies interested in its
7
IPO expressed their reactions. Such evidence is directly relevant to arguments Rambus may
8
make at trial regarding secondary considerations of non-obviousness, among other issues. Nanya
9
and Nanya USA have to right to obtain Rambus’ corporate testimony on these topics. In its
10
opposition brief, Rambus did not object to these topics on the grounds of relevance and appears to
11
agree that these topics are valid areas for discovery.
12
Instead, Rambus generally argues that persons with knowledge of the issues covered by
13
topics 35-36 already had their depositions taken. What Rambus does not argue, however, is that
14
these witnesses were already questioned specifically on the issues of topics 35-36. Rambus’
15
emphasis on the “forty-five days” of depositions given by such persons with knowledge is
16
therefore meaningless when there is no reason to believe that Nanya and Nanya USA’s
17
examination will repeat prior lines of questions. To Nanya and Nanya USA’s knowledge, none of
18
the individuals Rambus lists testified in a 30(b)(6) capacity on topics similar to Topics 35 and 36.
19
And while there are minor snippets of individual testimony that have some overlap with topics
20
35-36 (such as general information relating to Rambus’ IPO or authentication of the presentations
21
to investors), Nanya and Nanya USA should not be denied a deposition focusing specifically on
22
topics 35-36.
23
The prior testimony Rambus cites does not provide complete information on Rambus’
24
communications. While the testimony does bear some relation to topics 35-36, it not sufficient or
25
complete. Rather, it is generally limited to the authentication, verification, or contents of the
26
formal presentation materials, the fact that meetings were held with investors, and in some cases,
27
the names of who attended such meetings. Almost none of the testimony Rambus cites includes
28
testimony regarding the substance of Rambus’ communications with the investors and potential -2-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
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1
investors beyond what is contained in the formal presentation materials.1 See Ransom Decl., Exh.
2
A (Mr. Farmwald discusses Rambus’ presentation to venture capital firms, but his testimony
3
focuses on the document itself, and not Rambus’ comments on the Farmwald inventions, nor any
4
of the reactions by investors or communications with investors relating to the presentation); id.,
5
Exh. E (all questions to Geoff Tate (former Rambus CEO) relate only to documents/exhibits and
6
their content; no information provided by Mr. Tate on what was said during the meeting with
7
Morgan Stanley he testifies occurred, i.e., what Rambus told Morgan Stanley about the Farmwald
8
inventions and/or what Morgan Stanley said in response); id., Exh. L (Mr. Tate testifies that
9
representatives from venture capital firms attended a Rambus board meeting, but does not testify
10
about what was discussed); id., Exh. K (Mr. Farmwald testifies generally that Rambus talked to
11
venture capital firms and identified the companies, but does not testify regarding the substance of
12
the communications or discussions); id., Exh. N-O (business presentation and IPO prospectus).
13
The production and authentication of presentation documents are a starting point, but should not
14
be the entirety of discovery into Rambus’ communications with investors.
15
In addition, the testimony Rambus cites yields very few comments relating to any industry
16
reaction to Rambus’ efforts to secure funding. Rather than evidencing communications with
17
Rambus, the testimony tends to comprise comments made in response to questions about the
18
witnesses’ general understanding of the technology or business model. See, e.g., Declaration of
19
Kristin S. Cornuelle in support of Nanya and Nanya USA’s Reply (“Cornuelle Decl.”), ¶¶ 4-9.
20
Nor did the examining attorneys follow up on any of these questions or ask if the witnesses knew
21
anything else on the subjects. Id. Moreover, nearly all of the deposition testimony Rambus cites is individual testimony.2
22 23
The fact that some prior individual testimony on related topics exists does not justify either
24
1
25 26 27 28
One exception is the deposition of Bruce Dunlevie, a Merrill Pickard representative, in which he provides one answer regarding statements made by Rambus about its company and technology. See Ransom Decl., Exh. J at 19:5-22. This exception proves the point – that discoverable information exists regarding communications between Rambus and others relating to the Farmwald inventions. 2
The one exception is Geoff Tate’s testimony, where a small portion relating solely to Rambus licensing negotiations is designated 30(b)(6). This 30(b)(6) testimony does not overlap with topics 35-36. See Cornuelle Decl., ¶ 3. -3-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
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Rambus’ refusal to provide testimony on topics 35-36, or Rambus’ refusal to provide a 30(b)(6)
2
witness on these topics.3 Nanya and Nanya USA cannot be denied the opportunity to examine a
3
Rambus corporate designee on relevant topics that have not been explored in prior depositions,
4
nor can Rambus hide behind the Case Management Order’s prohibition on duplicative
5
depositions to avoid producing a 30(b)(6) witness to answer questions that have not yet been
6
asked.
7
Thus, despite the fact that the documents reflecting some of the investor presentations
8
have been provided and authenticated, Nanya and Nanya USA still do not know what Rambus
9
may have communicated to investors and others regarding the Farmwald inventions, other than its
10
formal presentation materials, during its search for funding and its IPO road show. Nor do Nanya
11
and Nanya USA have complete or sufficient discovery into how others responded to Rambus’
12
communications. Such evidence is directly relevant to arguments relating to secondary
13
considerations of non-obviousness. Nanya and Nanya USA have the right to conduct a 30(b)(6)
14
deposition of Rambus that is focused on the topic of Rambus’ communications on these issues.
15
II.
16
TOPICS 35 AND 36 ARE NOT OVERBROAD Rambus asserts that topics 35 and 36 are overly broad because they purportedly seek
17
testimony regarding “every communication that Rambus has ever had regarding its inventions
18
with any person or entity that has invested in, or was asked to invest in, Rambus.” Opposition at
19
1. This is inaccurate and misleading. Topics 35 and 36 only cover such communications to the
20
extent they relate to the Farmwald inventions at issue in the current action. They are directly
21
relevant to Rambus’ arguments regarding secondary considerations of non-obviousness because
22
they seek discovery into what Rambus disclosed concerning the Farmwald inventions and others’
23
reactions to Rambus’ disclosures. Contrary to Rambus’ claims, such communications are highly
24
unlikely to touch the bulk of Rambus’ communications with its board members or shareholders.
25
Indeed, topic 36 is further limited as to both scope and time, as it relates specifically to Rambus’
26 27 3
28
Rambus has not offered to designate any prior individual testimony as 30(b)(6) testimony on behalf of Rambus. -4-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
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initial public offering. Rambus’ argument that every communication it has relates in some way to
2
a discussion of the Farmwald inventions is not well-taken.4
3
III.
4 5
MOST OF RAMBUS’ ARGUMENTS WERE NEVER RAISED DURING THE MEET AND CONFER PROCESS Moreover, Rambus’ concern that every communication it has relates in some way to a
6
discussion of the Farmwald inventions was raised for the first time in its opposition to Rambus’
7
motion. Rambus should have raised this objection during the meet and confer process, as well as
8
its objections as to the scope of time covered by the topics, so that the parties could have
9
constructively discussed ways to address Rambus’ concerns. Nanya and Nanya USA have no
10
desire to take a deposition questioning Rambus on every communication it has ever had with its
11
board members or shareholders. Nanya and Nanya USA simply want to know the substance of
12
relevant communications that relate to the Farmwald inventions. Far from this issue being at
13
“impasse” as Rambus claimed (Norton Decl., ¶ 13), it appears that Rambus is now conducting its
14
meet and confer with Nanya and Nanya USA via the parties’ briefs to the Court.
15
This is nowhere more apparent than in the list of deposition testimony identified for the
16
first time in Rambus’ opposition. Nanya and Nanya USA repeatedly asked Rambus to identify
17
what testimony it believed had already been provided in response to topics 35-36, and Rambus
18
repeatedly ignored these requests. See Norton Decl., ¶¶ 7-13 and Exhs. E-I. It is not reasonable
19
for Rambus to force Nanya and Nanya USA to file a motion on this issue before it will identify
20
the allegedly duplicative testimony. Similarly, Rambus ignored Nanya and Nanya USA’s
21
requests that Rambus propose ways to narrow topics 35-36 to address Rambus’ overbreadth
22 23 4
24 25 26 27 28
Rambus cites Krasney to support its contention that Topic 35 is overly broad. However, Krasney is very different than the situation at hand. In Krasney, the plaintiff served a 30(b)(6) notice with over 40 areas of inquiry. See 2007 WL 4365677 at * 1 (D. Conn. 2007). The defendant offered three 30(b)(6) designees with direct knowledge of many of the topics, but estimated having to produce more than twenty witnesses to testify to each of the forty designated topics. See id. at * 3. The court eliminated five topics and narrowed one, and required the defendants to produce witnesses on the remaining topics. See id. at * 4. In contrast, Nanya and Nanya USA have only requested a 30(b)(6) deposition on two topics, both of which are narrow as to scope and subject matter. Rambus has refused to offer a witness on either topic or discuss any proposal to narrow the topics by time to address its concerns. -5-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
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1
concerns. Id., Exh. I (“you claim that the topics are overly broad, but you do not propose any
2
narrower set of issues on which you would be willing to produce a witness”).
3
Rambus' assertion that it was not its burden to identify what testimony it believed to be
4
duplicative is not well-taken. Nanya and Nanya USA were not parties to any of the cases from
5
which the identified testimony originates. Rambus was a party to these cases, and this
6
information was clearly already in Rambus’ possession. Moreover, as detailed above, Nanya and
7
Nanya USA do not agree that the identified testimony is sufficient or complete with respect to
8
topics 35-36. If Rambus had identified this testimony during the meet and confer process, the
9
parties could have discussed these specifics then, and possibly reached an agreement without the
10
need for motion practice. Moreover, Rambus’ position is inconsistent with its conduct with
11
respect to other 30(b)(6) topics, where it readily provided detailed testimony references as part of
12
the meet and confer process. For example, Rambus outlined the prior testimony it believed to be
13
relevant to the topics relating to consideration of alternatives, long-felt need and benefits of
14
invention, as well as Topics 44-46. See Norton Decl., Exh. F at 3-4; 5. Rambus’ decision to treat
15
topics 35-36 differently and ignore Nanya and Nanya USA’s meet and confer requests until after
16
a motion to compel was filed is a waste of judicial resources on a matter that should have been
17
amenable to informal resolution between the parties.
18
///
19
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22
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/// -6-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
1 2
IV.
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CONCLUSION For the foregoing reasons, Nanya and Nanya USA respectfully request that the Court
3
grant their motion to compel Rambus to produce a 30(b)(6) witness to testify in response to topics
4
35 and 36 from the Manufacturers’ Combined 30(b)(6) Notice.
5 Respectfully submitted, 6 7 8
Dated: September 29, 2008
9 10
ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN THERESA E. NORTON Orrick, Herrington & Sutcliffe LLP
11
/s/ Theresa E. Norton Theresa E. Norton
12
Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA
13 14 15 16
OHS West:260519280.2
17 18 19 20 21 22 23 24 25 26 27 28 -7-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
1 2 3 4 5 6 7
Document 2309
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Page 1 of 8
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: 650-614-7400 Facsimile: 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.,
13 14 15 16 17 18 19 20 21 22 23
Case No. CV-05-003334 RMW Plaintiff,
v. 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, NANYA TECHNOLOGY CORPORATION USA,
NANYA TECHNOLOGY CORPORATION’S AND NANYA TECHNOLOGY CORPORATION USA’S REPLY TO RAMBUS’ OPPOSITION TO ITS MOTION TO COMPEL RAMBUS TO PRODUCE A WITNESS TO TESTIFY ON 30(B)(6) TOPICS 35 AND 36 (RAMBUS’ COMMUNICATIONS WITH OTHERS) Date: Time: Location: Judge:
October 1, 2008 8:30 a.m. Telephonic Hearing Hon. Read A. Ambler (Ret.)
Defendants.
24 25
AND RELATED ACTIONS.
26 27 28 NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
1
Document 2309
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Page 2 of 8
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation USA
2
(“Nanya USA”) seek a 30(b)(6) deposition of Rambus Inc. (“Rambus”) on topics 35 and 36 from
3
the Manufacturers’ Combined 30(b)(6) Notice. Rambus refuses to provide a witness on the
4
ground that allegedly responsive individual testimony is already available. However, none of the
5
testimony Rambus identifies is adequately responsive to topics 35 or 36. This is because the cited
6
testimony generally does not provide a complete picture into the substance of Rambus’
7
communications with others. While the testimony generally discusses or authenticates investor
8
proposals Rambus made, it generally does not address representations Rambus may have made to
9
others regarding the Farmwald inventions. Nor is any of this prior testimony designated as
10
30(b)(6) testimony. Similarly, while Rambus identifies a scattershot of offhand comments made
11
by potential investors, the testimony cannot be characterized as industry reaction to Rambus’
12
communications. There is also no suggestion that the identified comments are exhaustive on the
13
issue. Nanya and Nanya USA have the right to conduct discovery into topics 35-36, because they
14
are directly relevant to arguments Rambus may make at trial relating to secondary considerations
15
of non-obviousness. Nanya and Nanya USA will suffer substantial prejudice if they cannot
16
obtain this discovery.
17
Topics 35 and 36 are also not overly broad. The Court should reject Rambus’ attempt to
18
re-write them to cover every communication Rambus has ever had with its board members or
19
investors. Rather, the topics are limited to communications relating to the Farmwald inventions
20
at issue in this case. In addition, nearly all of Rambus’ specific objections to topics 35-36 have
21
been raised for the first time in response to Nanya and Nanya USA’s motion. Rambus failed to
22
satisfy its duty to meet and confer on this issue; Nanya and Nanya USA had to file a motion to
23
compel before Rambus would discuss any specific objections. The motion should be granted on
24
this ground as well.
25
I.
26 27 28
THE TESTIMONY RAMBUS CITES DOES NOT ADEQUATELY PROVIDE THE INFORMATION NANYA SEEKS IN TOPICS 35-36 The essence of this motion is that Rambus has not provided the information Nanya and
Nanya USA seek to discover through topics 35 and 36. Topic 35 covers the substance of 1
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
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1
communications between Rambus and investors or potential investors relating to the Farmwald
2
inventions. Topic 36 covers the substance of communications between Rambus and others
3
relating to the Farmwald inventions in connection with Rambus’ IPO. Rambus presumably made
4
statements about the nature, value and promise of the Farmwald inventions while it was
5
attempting to secure funding for its company and while on its road show promoting its IPO. It is
6
likely that investors that were considering investing in Rambus, and companies interested in its
7
IPO expressed their reactions. Such evidence is directly relevant to arguments Rambus may
8
make at trial regarding secondary considerations of non-obviousness, among other issues. Nanya
9
and Nanya USA have to right to obtain Rambus’ corporate testimony on these topics. In its
10
opposition brief, Rambus did not object to these topics on the grounds of relevance and appears to
11
agree that these topics are valid areas for discovery.
12
Instead, Rambus generally argues that persons with knowledge of the issues covered by
13
topics 35-36 already had their depositions taken. What Rambus does not argue, however, is that
14
these witnesses were already questioned specifically on the issues of topics 35-36. Rambus’
15
emphasis on the “forty-five days” of depositions given by such persons with knowledge is
16
therefore meaningless when there is no reason to believe that Nanya and Nanya USA’s
17
examination will repeat prior lines of questions. To Nanya and Nanya USA’s knowledge, none of
18
the individuals Rambus lists testified in a 30(b)(6) capacity on topics similar to Topics 35 and 36.
19
And while there are minor snippets of individual testimony that have some overlap with topics
20
35-36 (such as general information relating to Rambus’ IPO or authentication of the presentations
21
to investors), Nanya and Nanya USA should not be denied a deposition focusing specifically on
22
topics 35-36.
23
The prior testimony Rambus cites does not provide complete information on Rambus’
24
communications. While the testimony does bear some relation to topics 35-36, it not sufficient or
25
complete. Rather, it is generally limited to the authentication, verification, or contents of the
26
formal presentation materials, the fact that meetings were held with investors, and in some cases,
27
the names of who attended such meetings. Almost none of the testimony Rambus cites includes
28
testimony regarding the substance of Rambus’ communications with the investors and potential -2-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
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1
investors beyond what is contained in the formal presentation materials.1 See Ransom Decl., Exh.
2
A (Mr. Farmwald discusses Rambus’ presentation to venture capital firms, but his testimony
3
focuses on the document itself, and not Rambus’ comments on the Farmwald inventions, nor any
4
of the reactions by investors or communications with investors relating to the presentation); id.,
5
Exh. E (all questions to Geoff Tate (former Rambus CEO) relate only to documents/exhibits and
6
their content; no information provided by Mr. Tate on what was said during the meeting with
7
Morgan Stanley he testifies occurred, i.e., what Rambus told Morgan Stanley about the Farmwald
8
inventions and/or what Morgan Stanley said in response); id., Exh. L (Mr. Tate testifies that
9
representatives from venture capital firms attended a Rambus board meeting, but does not testify
10
about what was discussed); id., Exh. K (Mr. Farmwald testifies generally that Rambus talked to
11
venture capital firms and identified the companies, but does not testify regarding the substance of
12
the communications or discussions); id., Exh. N-O (business presentation and IPO prospectus).
13
The production and authentication of presentation documents are a starting point, but should not
14
be the entirety of discovery into Rambus’ communications with investors.
15
In addition, the testimony Rambus cites yields very few comments relating to any industry
16
reaction to Rambus’ efforts to secure funding. Rather than evidencing communications with
17
Rambus, the testimony tends to comprise comments made in response to questions about the
18
witnesses’ general understanding of the technology or business model. See, e.g., Declaration of
19
Kristin S. Cornuelle in support of Nanya and Nanya USA’s Reply (“Cornuelle Decl.”), ¶¶ 4-9.
20
Nor did the examining attorneys follow up on any of these questions or ask if the witnesses knew
21
anything else on the subjects. Id. Moreover, nearly all of the deposition testimony Rambus cites is individual testimony.2
22 23
The fact that some prior individual testimony on related topics exists does not justify either
24
1
25 26 27 28
One exception is the deposition of Bruce Dunlevie, a Merrill Pickard representative, in which he provides one answer regarding statements made by Rambus about its company and technology. See Ransom Decl., Exh. J at 19:5-22. This exception proves the point – that discoverable information exists regarding communications between Rambus and others relating to the Farmwald inventions. 2
The one exception is Geoff Tate’s testimony, where a small portion relating solely to Rambus licensing negotiations is designated 30(b)(6). This 30(b)(6) testimony does not overlap with topics 35-36. See Cornuelle Decl., ¶ 3. -3-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
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1
Rambus’ refusal to provide testimony on topics 35-36, or Rambus’ refusal to provide a 30(b)(6)
2
witness on these topics.3 Nanya and Nanya USA cannot be denied the opportunity to examine a
3
Rambus corporate designee on relevant topics that have not been explored in prior depositions,
4
nor can Rambus hide behind the Case Management Order’s prohibition on duplicative
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depositions to avoid producing a 30(b)(6) witness to answer questions that have not yet been
6
asked.
7
Thus, despite the fact that the documents reflecting some of the investor presentations
8
have been provided and authenticated, Nanya and Nanya USA still do not know what Rambus
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may have communicated to investors and others regarding the Farmwald inventions, other than its
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formal presentation materials, during its search for funding and its IPO road show. Nor do Nanya
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and Nanya USA have complete or sufficient discovery into how others responded to Rambus’
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communications. Such evidence is directly relevant to arguments relating to secondary
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considerations of non-obviousness. Nanya and Nanya USA have the right to conduct a 30(b)(6)
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deposition of Rambus that is focused on the topic of Rambus’ communications on these issues.
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II.
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TOPICS 35 AND 36 ARE NOT OVERBROAD Rambus asserts that topics 35 and 36 are overly broad because they purportedly seek
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testimony regarding “every communication that Rambus has ever had regarding its inventions
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with any person or entity that has invested in, or was asked to invest in, Rambus.” Opposition at
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1. This is inaccurate and misleading. Topics 35 and 36 only cover such communications to the
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extent they relate to the Farmwald inventions at issue in the current action. They are directly
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relevant to Rambus’ arguments regarding secondary considerations of non-obviousness because
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they seek discovery into what Rambus disclosed concerning the Farmwald inventions and others’
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reactions to Rambus’ disclosures. Contrary to Rambus’ claims, such communications are highly
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unlikely to touch the bulk of Rambus’ communications with its board members or shareholders.
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Indeed, topic 36 is further limited as to both scope and time, as it relates specifically to Rambus’
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Rambus has not offered to designate any prior individual testimony as 30(b)(6) testimony on behalf of Rambus. -4-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2309
Filed 09/29/2008
Page 6 of 8
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initial public offering. Rambus’ argument that every communication it has relates in some way to
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a discussion of the Farmwald inventions is not well-taken.4
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III.
4 5
MOST OF RAMBUS’ ARGUMENTS WERE NEVER RAISED DURING THE MEET AND CONFER PROCESS Moreover, Rambus’ concern that every communication it has relates in some way to a
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discussion of the Farmwald inventions was raised for the first time in its opposition to Rambus’
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motion. Rambus should have raised this objection during the meet and confer process, as well as
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its objections as to the scope of time covered by the topics, so that the parties could have
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constructively discussed ways to address Rambus’ concerns. Nanya and Nanya USA have no
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desire to take a deposition questioning Rambus on every communication it has ever had with its
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board members or shareholders. Nanya and Nanya USA simply want to know the substance of
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relevant communications that relate to the Farmwald inventions. Far from this issue being at
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“impasse” as Rambus claimed (Norton Decl., ¶ 13), it appears that Rambus is now conducting its
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meet and confer with Nanya and Nanya USA via the parties’ briefs to the Court.
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This is nowhere more apparent than in the list of deposition testimony identified for the
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first time in Rambus’ opposition. Nanya and Nanya USA repeatedly asked Rambus to identify
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what testimony it believed had already been provided in response to topics 35-36, and Rambus
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repeatedly ignored these requests. See Norton Decl., ¶¶ 7-13 and Exhs. E-I. It is not reasonable
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for Rambus to force Nanya and Nanya USA to file a motion on this issue before it will identify
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the allegedly duplicative testimony. Similarly, Rambus ignored Nanya and Nanya USA’s
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requests that Rambus propose ways to narrow topics 35-36 to address Rambus’ overbreadth
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Rambus cites Krasney to support its contention that Topic 35 is overly broad. However, Krasney is very different than the situation at hand. In Krasney, the plaintiff served a 30(b)(6) notice with over 40 areas of inquiry. See 2007 WL 4365677 at * 1 (D. Conn. 2007). The defendant offered three 30(b)(6) designees with direct knowledge of many of the topics, but estimated having to produce more than twenty witnesses to testify to each of the forty designated topics. See id. at * 3. The court eliminated five topics and narrowed one, and required the defendants to produce witnesses on the remaining topics. See id. at * 4. In contrast, Nanya and Nanya USA have only requested a 30(b)(6) deposition on two topics, both of which are narrow as to scope and subject matter. Rambus has refused to offer a witness on either topic or discuss any proposal to narrow the topics by time to address its concerns. -5-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2309
Filed 09/29/2008
Page 7 of 8
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concerns. Id., Exh. I (“you claim that the topics are overly broad, but you do not propose any
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narrower set of issues on which you would be willing to produce a witness”).
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Rambus' assertion that it was not its burden to identify what testimony it believed to be
4
duplicative is not well-taken. Nanya and Nanya USA were not parties to any of the cases from
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which the identified testimony originates. Rambus was a party to these cases, and this
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information was clearly already in Rambus’ possession. Moreover, as detailed above, Nanya and
7
Nanya USA do not agree that the identified testimony is sufficient or complete with respect to
8
topics 35-36. If Rambus had identified this testimony during the meet and confer process, the
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parties could have discussed these specifics then, and possibly reached an agreement without the
10
need for motion practice. Moreover, Rambus’ position is inconsistent with its conduct with
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respect to other 30(b)(6) topics, where it readily provided detailed testimony references as part of
12
the meet and confer process. For example, Rambus outlined the prior testimony it believed to be
13
relevant to the topics relating to consideration of alternatives, long-felt need and benefits of
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invention, as well as Topics 44-46. See Norton Decl., Exh. F at 3-4; 5. Rambus’ decision to treat
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topics 35-36 differently and ignore Nanya and Nanya USA’s meet and confer requests until after
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a motion to compel was filed is a waste of judicial resources on a matter that should have been
17
amenable to informal resolution between the parties.
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NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
Case 5:05-cv-00334-RMW
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IV.
Document 2309
Filed 09/29/2008
Page 8 of 8
CONCLUSION For the foregoing reasons, Nanya and Nanya USA respectfully request that the Court
3
grant their motion to compel Rambus to produce a 30(b)(6) witness to testify in response to topics
4
35 and 36 from the Manufacturers’ Combined 30(b)(6) Notice.
5 Respectfully submitted, 6 7 8
Dated: September 29, 2008
9 10
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
12
Attorneys for Defendants and Counterclaim Plaintiffs NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA
13 14 15 16
OHS West:260519280.2
17 18 19 20 21 22 23 24 25 26 27 28 -7-
NANYA’S REPLY RE MOTION TO COMPEL RAMBUS 30(B)(6) DEPOSITION ON TOPICS 35-36 CASE NO. C05-00334 RMW
