Case 5:05-cv-00334-RMW Document 3155 Filed 01/27/2009 Page 1 of 5

1 Gregory P. Stone (SBN 078329) Rollin A. Ransom (SBN 196126)

Andrea Weiss Jeffries (SBN 183408) SIDLEY AUSTIN LLP
2 Fred A. Rowley, Jr. (SBN 192298) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, CA 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, CA 90071-1560 Facsimile: (2130 896-6600
4 Telephone: (213) 683-9100 E mail: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: Gregory.Stone@mto.com Pierre J. Hubert (Pro Hac Vice)
Email: Andrea.Jeffries@mto.com Craig N. Tolliver (Pro Hac Vice)
6 Email: Fred.Rowley@mto.com MCKOOL SMITH PC
300 West 6th Street, Suite 1700
7 Peter A. Detre (SBN 182619) Austin, TX 78701
Rosemarie T. Ring (SBN 220769) Telephone: (512) 692-8700
8 Jennifer L. Polse (SBN 219202) Facsimile: (512) 692-8744
MUNGER, TOLLES & OLSON LLP Email: phubert@mckoolsmith.com
9 560 Mission Street, 27th Floor Email: ctolliver@mckoolsmith.com
San Francisco, CA 94105-2907
10 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
11 Email: Peter.Detre@mto.com
Email: Rose.Ring@mto.com
12 Email: Jen.Polse@mto.com
13 Attorneys for RAMBUS INC.
14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
16 RAMBUS INC., CASE NO. C 05-00334 RMW
17 Plaintiff, RAMBUS INC.’S OPPOSITION TO
SAMSUNG’S MOTION TO TAKE
18 vs. JUDICIAL NOTICE AND TO RE-OPEN
THE RECORD OF THE UNCLEAN
19 HYNIX SEMICONDUCTOR INC., et al., HANDS SEPTEMBER TRIAL SOLELY TO
ADMIT EVIDENCE RELATED TO
20 Defendants. COLLATERAL ESTOPPEL, AND TO
HYNIX’S REQUEST FOR JUDICIAL
21 NOTICE AND NOTICE OF JOINDER IN
SAMSUNG’S MOTION TO TAKE
22 JUDICIAL NOTICE
23 Date: January 30, 2009
Courtroom: 6
24 Judge: Hon. Ronald M. Whyte
25 Trial Date: February 17, 2009
26

27

28
RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S
7001274.1 REQUESTS FOR JUDICIAL NOTICE;
CASE NOS. 05-334; 05-2298; 06-244; 00-20905
 Case 5:05-cv-00334-RMW Document 3155 Filed 01/27/2009 Page 2 of 5

1 RAMBUS INC., CASE NO. C 05-02298 RMW

2 Plaintiff,
3 vs.
4 SAMSUNG ELECTRONICS CO., LTD.,
et al.,
5
Defendants.
6
RAMBUS INC., CASE NO. C 06-00244 RMW
7
Plaintiff,
8
vs.
9
MICRON TECHNOLOGY INC., et al.,
10
Defendants.
11

12 HYNIX SEMICONDUCTOR, INC., et al., CASE NO.: CV 00-20905 RMW

13 Plaintiffs,
14 vs.
15 RAMBUS INC.,
16 Defendant.
17

18

19

20

21

22

23

24

25

26

27

28
RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S
7001274.1 REQUESTS FOR JUDICIAL NOTICE;
CASE NOS. 05-334; 05-2298; 06-244; 00-20905
 Case 5:05-cv-00334-RMW Document 3155 Filed 01/27/2009 Page 3 of 5

1 Samsung Electronics Co., Ltd, Samsung Electronics America, Inc., Samsung

2 Semiconductor, Inc., and Samsung Austin Semiconductor, L.P. (collectively “Samsung”) have
3 asked this Court to take judicial notice of a raft of exhibits in support of Samsung’s motion for
4 collateral estoppel and summary judgment (the “Samsung Exhibits”). (See Samsung’s Notice of
5 Motion and Motion to Take Judicial Notice and to Re-Open the Record of the Unclean Hands
6 September Trial Solely to Admit Evidence Related to Collateral Estoppel, Jan. 19, 2009
7 (“Samsung RFN”).) These exhibits include everything from court judgments (e.g., Declaration of
8 Steven Cherensky (“Cherensky Decl.”) at ¶ 3), to trial transcripts (e.g., id. at ¶ 26), to
9 demonstrative charts apparently prepared by Samsung for its summary judgment motion (e.g., id.
10 at ¶ 22). Midday on January 26, 2009, Hynix Semiconductor Inc., Hynix Semiconductor
11 America Inc., Hynix Semiconductor Manufacturing America Inc., Hynix Semiconductor U.K.
12 Ltd., and Hynix Semiconductor Deutschland GmbH (collectively “Hynix”) joined the Samsung
13 RFN and requested judicial notice of 14 additional documents (the “Hynix Exhibits”). (See
14 Hynix’s Request for Judicial Notice and Notice of Joinder in Samsung’s Motion to Take Judicial
15 Notice, January 26, 2009 (“Hynix RFN”).) Hynix’s requests all relate to PTO reexamination
16 documents. (See Hynix RFN, at 1-2.) For the reasons set forth below, Rambus opposes Samsung
17 and Hynix’s requests.
18 Rambus agrees that court documents are public records of which judicial notice
19 may be taken. The permissible extent of such notice, however, is (1) the existence of the
20 documents, (2) that the documents were filed or generated in a given proceeding, and (3) that the
21 documents include certain statements. It is absolutely not proper to take judicial notice of these
22 documents for the truth of the statements contained therein. See Lee v. City of Los Angeles, 250
23 F.3d 668, 689-90 (9th Cir. 2001) (“[W]hen a court takes judicial notice of another court’s
24 opinion, it may do so not for the truth of the facts recited therein, but for the existence of the
25 opinion, which is not subject to reasonable dispute over its authenticity.” (internal quotation
26 marks and citation omitted)).
27 Thus, to take one example, Rambus does not oppose this Court’s taking notice of,
28 and Samsung’s arguing from, the fact that on September 23, 2008, Jay Shim testified in this
RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S
7001274.1 -1- REQUESTS FOR JUDICIAL NOTICE;
CASE NOS. 05-334; 05-2298; 06-244; 00-20905
 Case 5:05-cv-00334-RMW Document 3155 Filed 01/27/2009 Page 4 of 5

1 Court. (See Cherensky Decl. at ¶ 26; id. Ex. 25 [Sept. Trial Tr.] at 304:19-306:21.) But Rambus
2 emphatically does oppose Samsung’s use of that testimony in order to assert the truth of Shim’s
3 allegations: “Rambus, desperate to avoid its one-time choice of forum in Virginia in order to
4 remain before this Court, issued an ultimatum to Samsung in June 2005: either permit Rambus to
5 select the forum should litigation ensue in thirty days or face immediate termination of the license
6 and litigation.” (See Samsung’s Motion for Entry of J. of Unenforceability of Rambus’s Asserted
7 Patents or, in the Alternative, for Summ. J. (“Samsung CE Mot.”), 5 (citing Ex. 25).) To the
8 extent Samsung is attempting to use its request for judicial notice of these documents as a way of
9 establishing the truth of such contested facts, the request is improper and must be denied. The
10 same problem arises with, inter alia, all of the briefing filed in the Delaware Court as to which
11 Samsung seeks judicial notice (Cherensky Decl. ¶¶ 12-18), the contents of which—rather than the
12 existence of which—Samsung employs in its brief. (See, e.g., Samsung CE Mot., at 11 n.8.)
13 Distinct from these documents—which can be judicially noticed, but not taken as
14 true—are Samsung’s charts, of which judicial notice cannot be taken at all. (See Cherensky Decl.
15 ¶ 23-24; id. at Exs. 22-23.) Samsung has articulated no grounds on which these would be the
16 proper subject of judicial notice, and in fact they are not subject to such notice. A party to a
17 litigation is plainly not “a source whose accuracy cannot reasonably be questioned” for purposes
18 of judicial notice in that very action. Fed. R. Evid. 201(b).
19 Accordingly, Rambus categorically opposes judicial notice of Samsung’s Exhibits
20 22 and 23, and opposes judicial notice of all other Samsung Exhibits to the extent Samsung or
21 Hynix seeks judicial notice of the truth of their contents, rather than the fact of their existence.
22 Rambus also opposes judicial notice of all Hynix Exhibits because they are
23 irrelevant to any issue before the Court, including whether to stay the action. See Rosco, Inc. v.
24 Mirror Lite Co., 2007 WL 2296827, at *3 (E.D.N.Y. Aug. 6, 2007) (refusing to stay injunction
25 pending outcome of reexamination proceedings in light of prejudice to patentee); Magnesystems,
26 Inc. v. Nikken, Inc., 1994 WL 808421, at *7 (C.D. Cal. Aug. 8, 1994) (refusing to stay injunction
27 pending outcome of reexamination proceedings because “this Court may not abdicate its
28 responsibility to adjudicate this matter to the PTO”). Cf. Fresnius Med. Care Holdings, Inc. v.
RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S
7001274.1 -2- REQUESTS FOR JUDICIAL NOTICE;
CASE NOS. 05-334; 05-2298; 06-244; 00-20905
 Case 5:05-cv-00334-RMW Document 3155 Filed 01/27/2009 Page 5 of 5

1 Baxter Int’l, Inc., 2007 WL 1655625, at *5 (N.D. Cal. June 7, 2007) (refusing to stay damages
2 phase of trial despite first office action rejecting claims where “[o]nly once Fresnius received an
3 adverse judgment—nearly four years after initiating the litigation before this Court rather than
4 seeking the alternative route of reexamination—did it suggest that these proceedings should yield
5 to the reexamination process”); NTP v. Research In Motion, Ltd., 397 F. Supp. 2d 785, 788 (E.D.
6 Va. 2005) (refusing to stay proceedings pending reexamination, despite issuance of first office
7 actions, where “any attempt at suggesting a likely time frame and outcome of the PTO
8 reexamination process is merely speculation”). To the extent the Court concludes that the fact of
9 the reexamination proceedings is relevant, Rambus nonetheless opposes judicial notice of the
10 contents of those proceedings.
11 Finally, Rambus opposes Samsung’s request to reopen the record of its September
12 spoliation trial. (See Samsung RFN, at 5-6.) Samsung has made no showing that the documents
13 it now seeks to put into evidence were unavailable to it at the time of trial, nor has it made any
14 effort to show that these documents are not duplicative or cumulative of evidence already
15 submitted, or even relevant to the issues in the case. “The purpose of a Rule 59(a)(2) motion ‘is
16 to correct manifest errors of law or fact, or, in some limited situations, to present newly
17 discovered evidence’ … not ‘to introduce new evidence that was available at the time of trial but
18 was not proffered, to advance new theories, or to secure a rehearing on the merits.’” Waugh v.
19 Williams Companies, Inc., 2008 WL 3835729, at *1 (N.D. Okla. 2008) (quoting Lyons v.
20 Jefferson Bank & Trust, 793 F.Supp. 989, 991 (D. Colo. 1992)).
21
DATED: January 26, 2009 MUNGER, TOLLES & OLSON LLP
22 SIDLEY AUSTIN LLP
McKOOL SMITH P.C.
23

24
By: /s/ Gregory P. Stone
25 GREGORY P. STONE
26 Attorneys for RAMBUS INC.
27

28
RAMBUS’S OPP. TO SAMSUNG AND HYNIX’S
7001274.1 -3- REQUESTS FOR JUDICIAL NOTICE;
CASE NOS. 05-334; 05-2298; 06-244; 00-20905