2311[1]
This document was uploaded by user and they confirmed that they have the permission to share it. If you are author or own the copyright of this book, please report to us by using this DMCA report form. Report DMCA
Overview
Download & View 2311[1] as PDF for free.
More details
- Words: 3,265
- Pages: 8
Case 5:05-cv-00334-RMW
1 2 3 4 5 6 7
Document 2311
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: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendants NANYA TECHNOLOGY CORPORATION NANYA TECHNOLOGY CORPORATION U.S.A.
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13 14 15 16 17 18 19 20 21 22 23 24
RAMBUS, INC.,
Case No. C 05-00334 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 AND NANYA TECHNOLOGY CORPORATION USA’S REPLY TO RAMBUS’ OPPOSITION TO THE MOTION TO RE-OPEN DISCOVERY AS TO CERTAIN DEPOSITIONS Date: Time: Location: Judge:
October 1, 2008 8:30 a.m. Telephonic Hearing Hon. Read A. Ambler (Ret.)
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants. AND RELATED CROSS ACTIONS
25 26 27 28 NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 2 of 8
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation USA
1 2
(“Nanya USA”) have moved the Court to reopen discovery to permit them to depose five
3
additional third party witnesses: David Chapman, Howard Kalter, Mark Kellogg, Juan Pineda,
4
and Earnest Powell (collectively “the JEDEC witnesses”).1 As set forth in Nanya and Nanya
5
USA’s opening brief, all of the parties, including Rambus Inc. (“Rambus”), agreed during a
6
teleconference on August 22, 2008 that these depositions could go forward after the close of
7
discovery. Although Rambus now denies that it made this agreement, Rambus’ own conduct
8
contradicts its position. First, Rambus knew that Nanya and Nanya USA were making plans to
9
take these depositions in September (like many other depositions the parties had discussed), and
10
yet Rambus waited until after the close of discovery to raise any objection to this timing. Second,
11
Rambus’ characterization of its own statements supports Nanya and Nanya USA’s position on the
12
parties’ agreement. And third, Rambus relied on this very same agreement to schedule its own
13
third party deposition in September after the close of discovery. The Court should not permit
14
Rambus to engage in this sort of gamesmanship in which Rambus “lies in wait,” allows the time
15
for discovery to run out, and only then surprises Nanya and Nanya USA with its position that it
16
never made the agreement Nanya and Nanya USA (and the other parties) had understood. Moreover, Nanya and Nanya USA exercised diligence in scheduling and preparing for
17 18
these depositions. Nanya and Nanya USA served the subpoenas following months of
19
investigation to locate and identify witnesses who could ostensibly rebut Rambus’ claims. Lastly,
20
the prejudice to Nanya and Nanya USA, if Rambus were successful in preventing these
21
depositions from going forward, would be great. There is no significant corresponding prejudice
22
to Rambus that would result from permitting these depositions to proceed. Thus, this Court
23
should reopen discovery and allow Nanya and Nanya USA to take these depositions.
24
I.
25
RAMBUS DID NOT OBJECT WHEN NANYA PROPOSED DATES IN SEPTEMBER FOR THE DEPOSITIONS OF THE JEDEC WITNESSES Rambus argues that the parties never agreed to allow the JEDEC witnesses’ depositions to
26 proceed in September, after the discovery cut-off of August 29, 2008. Yet, Rambus’ own conduct 27 1
28
In light of the filing of the parties’ stipulation to dismiss claims relating to the Ware patents, Nanya and Nanya USA are not pursuing this motion with respect to Winston Lee. -1-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 3 of 8
1
tells a different story. Rambus acknowledges that in the course of the parties’ August 22 meet
2
and confer teleconference, both Rambus and the Manufacturers proposed deposing several
3
individuals after the discovery cut-off, and agreed that the discovery cut-off would be extended as
4
to these individuals. See Declaration of Rollin A. Ransom in support of Rambus’ opposition
5
(“Ransom Decl.”), ¶ 7; see also Declaration of Theresa E. Norton in support of Nanya and Nanya
6
USA’s motion (“Norton Decl.”), ¶¶ 9-10. Rambus appears to now take the position that it had
7
agreed that some of the parties’ noticed depositions could forward after the close of discovery, but
8
not others. However, if this were truly Rambus’ position, Rambus did not articulate it during the
9
August 22 teleconference. Rather, Rambus agrees that Nanya and Nanya USA listed each of the
10
JEDEC witnesses who had been subpoenaed by name and discussed their availability both in
11
August and in September. See Ransom Decl., ¶ 7 (detailing August and September dates that
12
were discussed for the JEDEC witnesses). Rambus does not dispute that it made no objection at
13
that time to these depositions taking place in September. In light of the parties’ undisputed agreement that other depositions (including, but not
14 15
limited to Craig Hampel, Donald Stark, and Nanya’s 30(b)(6) witness, see Ransom Decl., ¶ 7)
16
could go forward after the close of discovery, Rambus’ position that the JEDEC witnesses were
17
not included in this agreement makes no sense. The JEDEC witnesses were named in the course
18
of the same discussion as Mr. Hampel, Mr. Stark, and Nanya’s 30(b)(6) witness. The parties
19
discussed dates for all of these witnesses in September. Rambus made no objection2 to the dates
20
for the JEDEC witnesses. Obviously the parties’ agreement to extend the discovery cut-off
21
included them.3
22
2
23 24 25
Rambus did make an objection as to a different witness – Wingyu Leung – on the basis that his deposition date was past the discovery cut-off. The parties discussed their disagreement, and the matter was not resolved during the August 22 teleconference. See Norton Decl., ¶ 10. The fact that Rambus articulated its objection as to Mr. Leung’s deposition being scheduled after the close of discovery, but remained silent as to the JEDEC witnesses, reinforces the conclusion that the JEDEC witnesses were part of the parties’ agreement.
3
26 27 28
Following the close of discovery, Rambus attempted to create a paper trail to support its new position that the parties had not in fact reached an agreement on August 22 to extend the discovery cut-off as to previously noticed depositions. Rambus’ self-serving correspondence should not be given the same weight as Rambus’ conduct. Moreover, the author of this correspondence was not a participant on the August 22 teleconference, and was not in a position to know what Rambus did or did not agree to on that call. Lastly, Rambus attempts to -2-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 4 of 8
1
Rambus’ silence would be sufficient evidence of its agreement to allow the JEDEC
2
witnesses’ depositions to proceed in September. However, in addition, Rambus agrees that it also
3
made an affirmative comment regarding the scheduling of depositions after the discovery cut-off.
4
While the parties recall that comment slightly differently, arguably the meaning is the same.
5
Nanya and Nanya USA recall that Rambus stated that:
6
the agreement to extend the discovery cut-off only applied to depositions that had already been noticed to take place in the first instance prior to the discovery cut-off, and the parties should not interpret the agreement to be a license to serve new notices or subpoenas scheduling depositions to take place after the close of discovery.
7 8 9 10
Norton Decl., ¶ 9.4 Remarkably, Rambus’ own recollection of this statement uses similar words. Rambus’ recollection is that it stated that:
11
the parties’ discussion of allowing certain depositions to go forward after the close of discovery was not a license to ignore the discovery cut-off in scheduling new depositions.
12 13
Ransom Decl., ¶ 7. Clearly Rambus’ reference to “new depositions” could only have been a
14
reference to a prohibition on serving new deposition notices or subpoenas. It would not have
15
made sense for Rambus’ reference to “new depositions” to refer to previously noticed, but not yet
16
scheduled depositions. This is because several of the depositions that Rambus agrees fell within
17
the parties’ agreement had not yet been scheduled, including at least Mr. Stark and SGI. It was not until September 3, 2008, after the close of discovery, that Rambus first objected
18 19
to the depositions of the JEDEC witnesses going forward in September. Norton Decl., ¶¶ 12-14;
20
see also Ring Decl., Exh. B.
21 22 23 24 25 26 27 28
mischaracterize Micron’s correspondence as supporting its position that no agreement was reached. Micron’s August 28th reference to a “proposed agreement” related instead to the stilluncertain issue of whether the parties would agree on a date for the parties to supplement their expert reports based on the depositions that would go forward after the close of discovery. See Norton Decl., ¶ 11. Notably, after Rambus mischaracterized Micron’s position, Micron corrected Rambus’ misstatements and confirmed that the parties had indeed reached an agreement during the August 22 teleconference. See Norton Decl., ¶ 13 and Exh. G. 4
Micron also stated that it understood the parties’ agreement to be that all currently noticed depositions and subpoenas fell within the parties’ agreement to extend the discovery cut-off. See Norton Decl., Exh. G. -3-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
1
II.
Document 2311
Filed 09/29/2008
Page 5 of 8
RAMBUS RELIED ON THE PARTIES’ AGREEMENT IN SCHEDULING ITS OWN THIRD PARTY DEPOSITION IN SEPTEMBER
2 3
Throughout its opposition, Rambus stresses its position that Rambus never agreed to
4
permit third-party depositions to go forward after the close of discovery. Rambus’ Opposition at
5
3:12-14; 3:17-20; 8:12-14. Again, this position is belied by Rambus’ own conduct. During the
6
August 22 teleconference, one of the depositions discussed was that of a company called Silicon
7
Graphics, Inc. (“SGI”). Like the JEDEC witnesses, SGI is a third party. Rambus had served a
8
subpoena on SGI on August 14, 2008, two weeks before the discovery cutoff and on
9
approximately the same day that Nanya and Nanya USA had subpoenaed the JEDEC witnesses.
10
Declaration of Jacob M. Heath in support of Nanya and Nanya USA’s reply (“Heath Reply
11
Decl.”), ¶ 3. During the August 22 teleconference, Rambus was unable to provide the parties
12
with any proposed date for SGI’s deposition, and the potential dates that the parties discussed for
13
this deposition were in September, after the discovery cut-off. Declaration of Theresa E. Norton
14
in support of Nanya and Nanya USA’s reply (“Norton Reply Decl.”), ¶ 2. Thus, as of August 22,
15
the circumstances of third party SGI’s deposition were identical to the depositions of the third
16
party JEDEC witnesses.
17
If, as Rambus argues, Rambus would never have agreed to permit third-party depositions
18
to go forward after the close of discovery (Rambus’ Opposition at 3:12-14), then the SGI
19
deposition should have been excluded from the parties’ agreement. However, on September 4,
20
when Rambus circulated its proposed stipulation to extend the discovery cut-off as to certain
21
depositions, the SGI deposition was included in the stipulation. Norton Reply Decl., ¶ 3 and Exh.
22
A. Rambus deposed SGI on September 17, 2008, well-after the discovery cut-off. Norton Reply
23
Decl., ¶ 4. The only difference between SGI and the similarly-situated third-party JEDEC
24
witnesses is that Rambus is the party that noticed SGI.
25
Rambus’ own conduct thus directly contradicts its argument that it would never have
26
agreed to permit third-party depositions to go forward after the close of discovery. In scheduling
27
and taking SGI’s deposition after the close of discovery, Rambus clearly relied on the parties’
28 -4-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 6 of 8
1
August 22 agreement that the third party depositions noticed as of that date could go forward after
2
the close of discovery.
3
III.
4 5
NANYA AND NANYA USA EXERCISED DILIGENCE IN SEEKING THE DEPOSITIONS OF THE JEDEC WITNESSES In the same way, Rambus’ argument that Nanya and Nanya USA failed to exercise
6
diligence in scheduling the JEDEC witnesses’ depositions is without merit. Rambus criticizes
7
Nanya and Nanya USA’s act of serving subpoenas on these third-party witnesses two weeks
8
before the discovery cut-off, arguing Nanya and Nanya USA should have identified these
9
witnesses and served the subpoenas earlier in the discovery process. As an initial matter, Rambus
10
did the same thing via its subpoena to SGI. More importantly, however, Rambus fails to
11
appreciate the significant undertaking that was necessary to identify, locate, and ultimately
12
determine which JEDEC attendees to depose.
13
Over 100 individuals attended JEDEC meetings during the 1980s and 1990s on behalf of
14
JEDEC member companies. Heath Reply Decl., ¶ 2. Based on JEDEC meeting minutes and
15
attachments, prior deposition and trial testimony, and other publications, Nanya and Nanya USA
16
identified more than 80 individuals who possessed information that could potentially rebut
17
Rambus’ claims. Id., ¶ 2. Relying in some instances on contact information more than two-
18
decades old, Nanya spent a great deal of time locating potential witnesses and considering their
19
ability to testify. Id., ¶ 2. Contrary to Rambus’ suggestion, determining a final list of JEDEC
20
witnesses was not as easy as reviewing a list of attendees and prior deposition testimony. When
21
Nanya and Nanya USA finally served their subpoenas on these witnesses in mid-August, it was
22
the culmination of great investigation effort which had commenced months before.
23
Equally baseless is Rambus’ speculation that Nanya and Nanya USA could not have
24
deposed the JEDEC witnesses prior to the discovery cut-off. Although Nanya and Nanya USA
25
did provide depositions dates for these witnesses past the August 29 discovery cut-off, they had
26
also confirmed that if necessary, most of the witnesses would be available during the last week of
27
August. Howard Kalter, for example, was tentatively available on August 25, 2008; David
28
Chapman on August 27, 2008; and Juan Pineda during the week of the August 25, 2008. Heath -5-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 7 of 8
1
Reply Decl., ¶¶ 4-5; Norton Decl., ¶ 10 (“Most of the JEDEC witnesses had communicated that
2
they were available on various dates from the end of August to mid September, and I relayed this
3
information to Rambus”); see also Ransom Decl., ¶ 7 (Nanya advised that Chapman was
4
available August 27-29.) Rambus’ claims that Nanya and Nanya USA were incapable of
5
deposing these witnesses before the discovery cut-off is simply not accurate. Had Rambus
6
refused to include the JEDEC witnesses in the parties’ agreement to extend the discovery cut-off,
7
Nanya and Nanya USA would have made every effort to go forward with the originally noticed
8
dates, or other dates prior to the discovery cut-off, even if these dates were not perfectly
9
convenient to either Nanya, Nanya USA, or the witnesses themselves. Norton Decl., ¶ 18. In
10
mid-August, Nanya and Nanya USA were already engaged in contingency preparations to do so.
11
Id., ¶ 18; Heath Reply Decl., ¶ 6. Thus, but for their reliance on Rambus’ agreement that the
12
JEDEC witnesses could be deposed after the discovery cut-off, Nanya and Nanya USA would
13
have taken the depositions of the JEDEC witnesses during the last week of August 2008.
14
IV.
15
RAMBUS WILL NOT SUFFER UNDUE PREJUDICE IF THE COURT REOPENS DISCOVERY TO PERMIT NANYA AND NANYA USA TO DEPOSE THESE WITNESSES
16
The significant prejudice to Nanya and Nanya USA in lost evidence, if Rambus succeeds
17
in preventing these depositions from going forward, is already discussed in Nanya and Nanya
18
USA’s opening briefing on this motion. In its opposition, Rambus does not attempt to refute the
19
arguments regarding prejudice to Nanya and Nanya USA. Rather, Rambus complains that it
20
would be a “significant” burden to have to incur the time and expense to travel and prepare for
21
out-of-state depositions. Rambus also argues that it would be burdensome to attend these
22
depositions because the parties are in the middle of expert discovery and are preparing to file
23
dispositive motions. Finally, Rambus argues that it would be prejudicial to “requir[e]” Rambus to
24
take these depositions while Rambus is preparing for the Samsung trial. Opposition at 10. None
25
of these arguments has any merit, and all of them pale in contrast to the prejudice of precluding
26
Nanya and Nanya USA from obtaining crucial evidence.
27
First, Rambus would have incurred the same time and expense to attend and prepare for
28
these out-of-state depositions whether they had occurred before or after the discovery cutoff. In -6-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 8 of 8
1
addition, it would not be prejudicial for Rambus to attend additional depositions, despite the fact
2
that the parties are concurrently engaging in expert discovery. Rambus is once again engaging in
3
a double standard – Rambus has filed its own pending motions to compel various fact discovery
4
(including depositions) from Nanya and Nanya USA, and presumably does not consider its own
5
motions to be prejudicial on the basis of their timing. Nor would it be prejudicial to permit these
6
depositions to go forward while Rambus is also preparing its case against Samsung. It is hard to
7
imagine that with counsel from three separate law firms, Rambus would be unable to find one or
8
two attorneys to attend these depositions. And if Rambus determines that the burden is truly too
9
great, Rambus may simply choose not to attend these fact-gathering third party depositions.
10
Contrary to Rambus’ belief, there would be no “requir[ement]” compelling Rambus’ attendance.
11
V.
12
CONCLUSION For the foregoing reasons, Nanya and Nanya USA respectfully request the Court to grant
13
their motion to reopen discovery and allow them to take the depositions of third parties Howard
14
Kalter, David Chapman, Earnest Powell, Juan Pineda, and Mark Kellogg.
15
Respectfully submitted,
16 17
Dated: September 29, 2008
18 19
ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN THERESA E. NORTON Orrick, Herrington & Sutcliffe LLP
20 21
/s/ Theresa E. Norton THERESA E. NORTON Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA
22 23 24
OHS West:260522310.1
25 26 27 28 -7-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
1 2 3 4 5 6 7
Document 2311
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: +1-650-614-7400 Facsimile: +1-650-614-7401 Attorneys for Defendants NANYA TECHNOLOGY CORPORATION NANYA TECHNOLOGY CORPORATION U.S.A.
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11 12 13 14 15 16 17 18 19 20 21 22 23 24
RAMBUS, INC.,
Case No. C 05-00334 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 AND NANYA TECHNOLOGY CORPORATION USA’S REPLY TO RAMBUS’ OPPOSITION TO THE MOTION TO RE-OPEN DISCOVERY AS TO CERTAIN DEPOSITIONS Date: Time: Location: Judge:
October 1, 2008 8:30 a.m. Telephonic Hearing Hon. Read A. Ambler (Ret.)
NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION U.S.A., Defendants. AND RELATED CROSS ACTIONS
25 26 27 28 NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 2 of 8
Nanya Technology Corporation (“Nanya”) and Nanya Technology Corporation USA
1 2
(“Nanya USA”) have moved the Court to reopen discovery to permit them to depose five
3
additional third party witnesses: David Chapman, Howard Kalter, Mark Kellogg, Juan Pineda,
4
and Earnest Powell (collectively “the JEDEC witnesses”).1 As set forth in Nanya and Nanya
5
USA’s opening brief, all of the parties, including Rambus Inc. (“Rambus”), agreed during a
6
teleconference on August 22, 2008 that these depositions could go forward after the close of
7
discovery. Although Rambus now denies that it made this agreement, Rambus’ own conduct
8
contradicts its position. First, Rambus knew that Nanya and Nanya USA were making plans to
9
take these depositions in September (like many other depositions the parties had discussed), and
10
yet Rambus waited until after the close of discovery to raise any objection to this timing. Second,
11
Rambus’ characterization of its own statements supports Nanya and Nanya USA’s position on the
12
parties’ agreement. And third, Rambus relied on this very same agreement to schedule its own
13
third party deposition in September after the close of discovery. The Court should not permit
14
Rambus to engage in this sort of gamesmanship in which Rambus “lies in wait,” allows the time
15
for discovery to run out, and only then surprises Nanya and Nanya USA with its position that it
16
never made the agreement Nanya and Nanya USA (and the other parties) had understood. Moreover, Nanya and Nanya USA exercised diligence in scheduling and preparing for
17 18
these depositions. Nanya and Nanya USA served the subpoenas following months of
19
investigation to locate and identify witnesses who could ostensibly rebut Rambus’ claims. Lastly,
20
the prejudice to Nanya and Nanya USA, if Rambus were successful in preventing these
21
depositions from going forward, would be great. There is no significant corresponding prejudice
22
to Rambus that would result from permitting these depositions to proceed. Thus, this Court
23
should reopen discovery and allow Nanya and Nanya USA to take these depositions.
24
I.
25
RAMBUS DID NOT OBJECT WHEN NANYA PROPOSED DATES IN SEPTEMBER FOR THE DEPOSITIONS OF THE JEDEC WITNESSES Rambus argues that the parties never agreed to allow the JEDEC witnesses’ depositions to
26 proceed in September, after the discovery cut-off of August 29, 2008. Yet, Rambus’ own conduct 27 1
28
In light of the filing of the parties’ stipulation to dismiss claims relating to the Ware patents, Nanya and Nanya USA are not pursuing this motion with respect to Winston Lee. -1-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 3 of 8
1
tells a different story. Rambus acknowledges that in the course of the parties’ August 22 meet
2
and confer teleconference, both Rambus and the Manufacturers proposed deposing several
3
individuals after the discovery cut-off, and agreed that the discovery cut-off would be extended as
4
to these individuals. See Declaration of Rollin A. Ransom in support of Rambus’ opposition
5
(“Ransom Decl.”), ¶ 7; see also Declaration of Theresa E. Norton in support of Nanya and Nanya
6
USA’s motion (“Norton Decl.”), ¶¶ 9-10. Rambus appears to now take the position that it had
7
agreed that some of the parties’ noticed depositions could forward after the close of discovery, but
8
not others. However, if this were truly Rambus’ position, Rambus did not articulate it during the
9
August 22 teleconference. Rather, Rambus agrees that Nanya and Nanya USA listed each of the
10
JEDEC witnesses who had been subpoenaed by name and discussed their availability both in
11
August and in September. See Ransom Decl., ¶ 7 (detailing August and September dates that
12
were discussed for the JEDEC witnesses). Rambus does not dispute that it made no objection at
13
that time to these depositions taking place in September. In light of the parties’ undisputed agreement that other depositions (including, but not
14 15
limited to Craig Hampel, Donald Stark, and Nanya’s 30(b)(6) witness, see Ransom Decl., ¶ 7)
16
could go forward after the close of discovery, Rambus’ position that the JEDEC witnesses were
17
not included in this agreement makes no sense. The JEDEC witnesses were named in the course
18
of the same discussion as Mr. Hampel, Mr. Stark, and Nanya’s 30(b)(6) witness. The parties
19
discussed dates for all of these witnesses in September. Rambus made no objection2 to the dates
20
for the JEDEC witnesses. Obviously the parties’ agreement to extend the discovery cut-off
21
included them.3
22
2
23 24 25
Rambus did make an objection as to a different witness – Wingyu Leung – on the basis that his deposition date was past the discovery cut-off. The parties discussed their disagreement, and the matter was not resolved during the August 22 teleconference. See Norton Decl., ¶ 10. The fact that Rambus articulated its objection as to Mr. Leung’s deposition being scheduled after the close of discovery, but remained silent as to the JEDEC witnesses, reinforces the conclusion that the JEDEC witnesses were part of the parties’ agreement.
3
26 27 28
Following the close of discovery, Rambus attempted to create a paper trail to support its new position that the parties had not in fact reached an agreement on August 22 to extend the discovery cut-off as to previously noticed depositions. Rambus’ self-serving correspondence should not be given the same weight as Rambus’ conduct. Moreover, the author of this correspondence was not a participant on the August 22 teleconference, and was not in a position to know what Rambus did or did not agree to on that call. Lastly, Rambus attempts to -2-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 4 of 8
1
Rambus’ silence would be sufficient evidence of its agreement to allow the JEDEC
2
witnesses’ depositions to proceed in September. However, in addition, Rambus agrees that it also
3
made an affirmative comment regarding the scheduling of depositions after the discovery cut-off.
4
While the parties recall that comment slightly differently, arguably the meaning is the same.
5
Nanya and Nanya USA recall that Rambus stated that:
6
the agreement to extend the discovery cut-off only applied to depositions that had already been noticed to take place in the first instance prior to the discovery cut-off, and the parties should not interpret the agreement to be a license to serve new notices or subpoenas scheduling depositions to take place after the close of discovery.
7 8 9 10
Norton Decl., ¶ 9.4 Remarkably, Rambus’ own recollection of this statement uses similar words. Rambus’ recollection is that it stated that:
11
the parties’ discussion of allowing certain depositions to go forward after the close of discovery was not a license to ignore the discovery cut-off in scheduling new depositions.
12 13
Ransom Decl., ¶ 7. Clearly Rambus’ reference to “new depositions” could only have been a
14
reference to a prohibition on serving new deposition notices or subpoenas. It would not have
15
made sense for Rambus’ reference to “new depositions” to refer to previously noticed, but not yet
16
scheduled depositions. This is because several of the depositions that Rambus agrees fell within
17
the parties’ agreement had not yet been scheduled, including at least Mr. Stark and SGI. It was not until September 3, 2008, after the close of discovery, that Rambus first objected
18 19
to the depositions of the JEDEC witnesses going forward in September. Norton Decl., ¶¶ 12-14;
20
see also Ring Decl., Exh. B.
21 22 23 24 25 26 27 28
mischaracterize Micron’s correspondence as supporting its position that no agreement was reached. Micron’s August 28th reference to a “proposed agreement” related instead to the stilluncertain issue of whether the parties would agree on a date for the parties to supplement their expert reports based on the depositions that would go forward after the close of discovery. See Norton Decl., ¶ 11. Notably, after Rambus mischaracterized Micron’s position, Micron corrected Rambus’ misstatements and confirmed that the parties had indeed reached an agreement during the August 22 teleconference. See Norton Decl., ¶ 13 and Exh. G. 4
Micron also stated that it understood the parties’ agreement to be that all currently noticed depositions and subpoenas fell within the parties’ agreement to extend the discovery cut-off. See Norton Decl., Exh. G. -3-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
1
II.
Document 2311
Filed 09/29/2008
Page 5 of 8
RAMBUS RELIED ON THE PARTIES’ AGREEMENT IN SCHEDULING ITS OWN THIRD PARTY DEPOSITION IN SEPTEMBER
2 3
Throughout its opposition, Rambus stresses its position that Rambus never agreed to
4
permit third-party depositions to go forward after the close of discovery. Rambus’ Opposition at
5
3:12-14; 3:17-20; 8:12-14. Again, this position is belied by Rambus’ own conduct. During the
6
August 22 teleconference, one of the depositions discussed was that of a company called Silicon
7
Graphics, Inc. (“SGI”). Like the JEDEC witnesses, SGI is a third party. Rambus had served a
8
subpoena on SGI on August 14, 2008, two weeks before the discovery cutoff and on
9
approximately the same day that Nanya and Nanya USA had subpoenaed the JEDEC witnesses.
10
Declaration of Jacob M. Heath in support of Nanya and Nanya USA’s reply (“Heath Reply
11
Decl.”), ¶ 3. During the August 22 teleconference, Rambus was unable to provide the parties
12
with any proposed date for SGI’s deposition, and the potential dates that the parties discussed for
13
this deposition were in September, after the discovery cut-off. Declaration of Theresa E. Norton
14
in support of Nanya and Nanya USA’s reply (“Norton Reply Decl.”), ¶ 2. Thus, as of August 22,
15
the circumstances of third party SGI’s deposition were identical to the depositions of the third
16
party JEDEC witnesses.
17
If, as Rambus argues, Rambus would never have agreed to permit third-party depositions
18
to go forward after the close of discovery (Rambus’ Opposition at 3:12-14), then the SGI
19
deposition should have been excluded from the parties’ agreement. However, on September 4,
20
when Rambus circulated its proposed stipulation to extend the discovery cut-off as to certain
21
depositions, the SGI deposition was included in the stipulation. Norton Reply Decl., ¶ 3 and Exh.
22
A. Rambus deposed SGI on September 17, 2008, well-after the discovery cut-off. Norton Reply
23
Decl., ¶ 4. The only difference between SGI and the similarly-situated third-party JEDEC
24
witnesses is that Rambus is the party that noticed SGI.
25
Rambus’ own conduct thus directly contradicts its argument that it would never have
26
agreed to permit third-party depositions to go forward after the close of discovery. In scheduling
27
and taking SGI’s deposition after the close of discovery, Rambus clearly relied on the parties’
28 -4-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 6 of 8
1
August 22 agreement that the third party depositions noticed as of that date could go forward after
2
the close of discovery.
3
III.
4 5
NANYA AND NANYA USA EXERCISED DILIGENCE IN SEEKING THE DEPOSITIONS OF THE JEDEC WITNESSES In the same way, Rambus’ argument that Nanya and Nanya USA failed to exercise
6
diligence in scheduling the JEDEC witnesses’ depositions is without merit. Rambus criticizes
7
Nanya and Nanya USA’s act of serving subpoenas on these third-party witnesses two weeks
8
before the discovery cut-off, arguing Nanya and Nanya USA should have identified these
9
witnesses and served the subpoenas earlier in the discovery process. As an initial matter, Rambus
10
did the same thing via its subpoena to SGI. More importantly, however, Rambus fails to
11
appreciate the significant undertaking that was necessary to identify, locate, and ultimately
12
determine which JEDEC attendees to depose.
13
Over 100 individuals attended JEDEC meetings during the 1980s and 1990s on behalf of
14
JEDEC member companies. Heath Reply Decl., ¶ 2. Based on JEDEC meeting minutes and
15
attachments, prior deposition and trial testimony, and other publications, Nanya and Nanya USA
16
identified more than 80 individuals who possessed information that could potentially rebut
17
Rambus’ claims. Id., ¶ 2. Relying in some instances on contact information more than two-
18
decades old, Nanya spent a great deal of time locating potential witnesses and considering their
19
ability to testify. Id., ¶ 2. Contrary to Rambus’ suggestion, determining a final list of JEDEC
20
witnesses was not as easy as reviewing a list of attendees and prior deposition testimony. When
21
Nanya and Nanya USA finally served their subpoenas on these witnesses in mid-August, it was
22
the culmination of great investigation effort which had commenced months before.
23
Equally baseless is Rambus’ speculation that Nanya and Nanya USA could not have
24
deposed the JEDEC witnesses prior to the discovery cut-off. Although Nanya and Nanya USA
25
did provide depositions dates for these witnesses past the August 29 discovery cut-off, they had
26
also confirmed that if necessary, most of the witnesses would be available during the last week of
27
August. Howard Kalter, for example, was tentatively available on August 25, 2008; David
28
Chapman on August 27, 2008; and Juan Pineda during the week of the August 25, 2008. Heath -5-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 7 of 8
1
Reply Decl., ¶¶ 4-5; Norton Decl., ¶ 10 (“Most of the JEDEC witnesses had communicated that
2
they were available on various dates from the end of August to mid September, and I relayed this
3
information to Rambus”); see also Ransom Decl., ¶ 7 (Nanya advised that Chapman was
4
available August 27-29.) Rambus’ claims that Nanya and Nanya USA were incapable of
5
deposing these witnesses before the discovery cut-off is simply not accurate. Had Rambus
6
refused to include the JEDEC witnesses in the parties’ agreement to extend the discovery cut-off,
7
Nanya and Nanya USA would have made every effort to go forward with the originally noticed
8
dates, or other dates prior to the discovery cut-off, even if these dates were not perfectly
9
convenient to either Nanya, Nanya USA, or the witnesses themselves. Norton Decl., ¶ 18. In
10
mid-August, Nanya and Nanya USA were already engaged in contingency preparations to do so.
11
Id., ¶ 18; Heath Reply Decl., ¶ 6. Thus, but for their reliance on Rambus’ agreement that the
12
JEDEC witnesses could be deposed after the discovery cut-off, Nanya and Nanya USA would
13
have taken the depositions of the JEDEC witnesses during the last week of August 2008.
14
IV.
15
RAMBUS WILL NOT SUFFER UNDUE PREJUDICE IF THE COURT REOPENS DISCOVERY TO PERMIT NANYA AND NANYA USA TO DEPOSE THESE WITNESSES
16
The significant prejudice to Nanya and Nanya USA in lost evidence, if Rambus succeeds
17
in preventing these depositions from going forward, is already discussed in Nanya and Nanya
18
USA’s opening briefing on this motion. In its opposition, Rambus does not attempt to refute the
19
arguments regarding prejudice to Nanya and Nanya USA. Rather, Rambus complains that it
20
would be a “significant” burden to have to incur the time and expense to travel and prepare for
21
out-of-state depositions. Rambus also argues that it would be burdensome to attend these
22
depositions because the parties are in the middle of expert discovery and are preparing to file
23
dispositive motions. Finally, Rambus argues that it would be prejudicial to “requir[e]” Rambus to
24
take these depositions while Rambus is preparing for the Samsung trial. Opposition at 10. None
25
of these arguments has any merit, and all of them pale in contrast to the prejudice of precluding
26
Nanya and Nanya USA from obtaining crucial evidence.
27
First, Rambus would have incurred the same time and expense to attend and prepare for
28
these out-of-state depositions whether they had occurred before or after the discovery cutoff. In -6-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
Case 5:05-cv-00334-RMW
Document 2311
Filed 09/29/2008
Page 8 of 8
1
addition, it would not be prejudicial for Rambus to attend additional depositions, despite the fact
2
that the parties are concurrently engaging in expert discovery. Rambus is once again engaging in
3
a double standard – Rambus has filed its own pending motions to compel various fact discovery
4
(including depositions) from Nanya and Nanya USA, and presumably does not consider its own
5
motions to be prejudicial on the basis of their timing. Nor would it be prejudicial to permit these
6
depositions to go forward while Rambus is also preparing its case against Samsung. It is hard to
7
imagine that with counsel from three separate law firms, Rambus would be unable to find one or
8
two attorneys to attend these depositions. And if Rambus determines that the burden is truly too
9
great, Rambus may simply choose not to attend these fact-gathering third party depositions.
10
Contrary to Rambus’ belief, there would be no “requir[ement]” compelling Rambus’ attendance.
11
V.
12
CONCLUSION For the foregoing reasons, Nanya and Nanya USA respectfully request the Court to grant
13
their motion to reopen discovery and allow them to take the depositions of third parties Howard
14
Kalter, David Chapman, Earnest Powell, Juan Pineda, and Mark Kellogg.
15
Respectfully submitted,
16 17
Dated: September 29, 2008
18 19
ROBERT E. FREITAS CRAIG R. KAUFMAN VICKIE L. FEEMAN THERESA E. NORTON Orrick, Herrington & Sutcliffe LLP
20 21
/s/ Theresa E. Norton THERESA E. NORTON Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA
22 23 24
OHS West:260522310.1
25 26 27 28 -7-
NANYA’S REPLY IN SUPPORT OF ITS MOTION TO REOPEN DISCOVERY TO PERMIT JEDEC DEPOSITIONS CASE NO. 05-00334 RMW
