Case 5:05-cv-00334-RMW Document 2241 Filed 09/22/2008 Page 1 of 5

1 Attorney list on signature page

2

3
IN THE UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION
5
RAMBUS, INC.,
6
Plaintiff.
7 v.

8 HYNIX SEMICONDUCTOR INC., HYNIX

SEMICONDUCTOR AMERICA INC.,
9 HYNIX
SEMICONDUCTOR MANUFACTURING Case No. C 05-00334 RMW
10 AMERICA INC.,
SAMSUNG’S BENCH BRIEF IN
11 SAMSUNG ELECTRONICS CO., LTD., SUPPORT OF ADMISSION OF EXHIBITS
SAMSUNG ELECTRONICS AMERICA, 4438 AND 4439
12 INC.,
SAMSUNG SEMICONDUCTOR, INC., Location: Courtroom 6
13 SAMSUNG AUSTIN SEMICONDUCTOR, Judge: Hon. Ronald M. Whyte
L.P.,
14
NANYA TECHNOLOGY CORPORATION,
15 NANYA TECHNOLOGY CORPORATION
U.S.A.,
16

17 Defendants.

18 RAMBUS, INC.,

19 Plaintiff.
v.
20
SAMSUNG ELECTRONICS CO., LTD., Case No. C 05-02298 RMW
21 SAMSUNG ELECTRONICS AMERICA,
INC.,
22 SAMSUNG SEMICONDUCTOR, INC.,
SAMSUNG AUSTIN SEMICONDUCTOR,
23 L.P.,

24 Defendants.

25

26

27

28
SAMSUNG’S BENCH BRIEF IN SUPPORT OF CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4438 AND 4439 CASE NO. C 05 02298 RMW
i
 Case 5:05-cv-00334-RMW Document 2241 Filed 09/22/2008 Page 2 of 5

1 Samsung respectfully submits this bench brief in support of the admission of Exhibits
2 4438 and 4439, which Samsung intends to introduce through the testimony of Jay Shim as early
3 as September 22, 2008.1
4 Pursuant to the parties’ stipulated schedule for disclosure of trial exhibits, Samsung timely
5 disclosed to Rambus its intention to introduce Exhibits 4438 and 4439 on September 18, 2008.
6 Ex. C (Sept. 18, 2008 Email from M. Antonelli to K. Hamilton). On September 20, Rambus
7 stated its intent to object to the admission of these exhibits on grounds of hearsay, late production,
8 and authentication. Ex. D (Sept. 20, 2008 Email from B. Gross to M. Antonelli).2 With respect
9 to authenticity, Rambus suggests that it will object to the introduction and authentication of these
10 documents through the testimony of Jay Shim because he “does not appear to be the author of the
11 documents.” Id. Rambus’s objections are not well-founded and should be overruled.
12 For records to be admissible under the business-records exception of Rule 803(6), the
13 following foundational facts must be established through the custodian of the records or another
14 qualified witness: (1) the records must have been made or transmitted by a person with
15 knowledge at or near the time of the incident recorded; and (2) the record must have been kept in
16 the course of a regularly conducted business activity. Kennedy v. Los Angeles Police Dept., 901
17 F.2d 702, 717 (9th Cir. 1990). The phrase “other qualified witness” is broadly interpreted to
18 require only that the witness understand the record-keeping system. United States v. Ray, 930
19 F.2d 1368, 1370 (9th Cir. 1990); 4 Weinstein and Berger, Weinstein’s Evidence, ¶ 803(6)[02] at
20 803-178.
21 Exhibit 4439, which is an English translation of exhibit 4438, reveals on its face that both
22 exhibits qualify for the business-records exception. The documents are internal reports of the
23 progress and results of an audit relating to Samsung’s performance under the parties’ RDRAM
24 and SDR/DDR licenses performed by the Younghwa Accounting firm (Ernst & Young’s Korean
25 affiliate) titled “Rambus Audit Result Report.” The date of the report indicates that it was
26
1
Copies of these documents are attached as Exhibits A and B, respectively.
27 2
Rambus also objected on these grounds to exhibits 4446 and 4446A. Samsung presently does
28 not intend to use these documents during Mr. Shim’s testimony.
SAMSUNG’S BENCH BRIEF IN SUPPORT OF CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4438 AND 4439 CASE NO. C 05 02298 RMW
1
 Case 5:05-cv-00334-RMW Document 2241 Filed 09/22/2008 Page 3 of 5

1 prepared the day after the auditors visited Samsung—the event described in the report. The cover
2 page of the report establishes that it was prepared by Gil Young Heo—the Associate Senior
3 Manager of the Semiconductor Bookkeeping Group who had responsibility for interfacing with
4 the auditors—and those working under him, and that it was circulated for “approval” and
5 “notification” to the team leaders at Samsung who were involved with and had responsibilities
6 relating to the audit process, including Jay Shim.3 As Mr. Shim will testify, it was a regularly
7 conducted business activity at Samsung in 2005 to generate reports like Exhibit 4439 in order to
8 keep those individuals within the company who had responsibilities relating to some business
9 matter apprised of the status of the matter. Further, as a person responsible for interfacing with
10 the auditors and an attendee of the meeting on which the document reports, Mr. Heo was required
11 to accurately report the events that transpired and the information that was communicated at the
12 meeting. And the statements reflected in Exhibit 4439 are trustworthy because, as Mr. Shim will
13 testify, it was Samsung’s policy in 2005 that reports such as exhibit 4439 were reviewed for
14 accuracy before circulation for approval and notification. Finally, Rambus’s objection to the
15 authentication of Exhibit 4439 through Mr. Shim because he “does not appear to be the author of
16 the document” is ill-founded because Ninth Circuit law makes clear that a witness with
17 knowledge of the system by which records such as Exhibit 4439 are generated and maintained is
18 qualified to authenticate a business record. Mr. Shim will testify at trial to his familiarity with the
19 record-keeping system that resulted in the creation and circulation of Exhibit 4439.
20 Rambus’s objection to Exhibit 4439 on the basis of late production is also without merit.
21 Exhibit 4438—the Korean-language version of 4439—was only recently discovered during
22 Samsung’s pretrial preparations and, as soon as a translation could be obtained for purposes of a
23 privilege review, was promptly produced to Rambus on August 27, 2008. Ex. E (Aug. 27, 2008
24 Email from J. Bonilla to B. Gross). Rambus has not issued a single document request in this case
25 seeking audit reports or even containing the word “audit.” Samsung’s prior production of audit-
26 related documents has encompassed responsive documents that were located as a result of
27
3
Mr. Shim will provide sworn testimony at trial establishing these facts, to the extent they are not
28 apparent from the face of the exhibit.
SAMSUNG’S BENCH BRIEF IN SUPPORT OF 2 CASE NO. C 05 00334 RMW
CASE NO. C 05 02298 RMW
ADMISSION OF EXHIBITS 4438 AND 4439
 Case 5:05-cv-00334-RMW Document 2241 Filed 09/22/2008 Page 4 of 5

1 Samsung’s reasonable search for documents relating to amounts paid or owed under the parties’
2 SDR/DDR License, as requested in Rambus’s Request for Production No. 58. Samsung did not
3 interpret that request to be seeking audit status or compliance documents, and apparently Rambus
4 did not either, as reflected by the fact that Rambus never mentioned audit documents when it
5 recently pursued further documents from Samsung responsive to Request No. 58. See Ex. F (July
6 25, 2008 Letter from A. Jeffries to R. Berezin).
7 More importantly, Rambus has not been prejudiced by the fact that Exhibit 4439 was
8 produced after the close of discovery. Rambus has known about the facts disclosed in that
9 document since February of 2005 when Mr. Shim told Ira Blumberg, Rambus’s Vice President of
10 Licensing, that he had been informed by the Korean auditors that the audit issues were resolved.
11 Ex. G (J. Smith notes of Feb. 2, 2005 meeting between Samsung and Rambus). Indeed, in June
12 of this year—more than a month before the close of fact discovery for the September 22nd trial—
13 Mr. Blumberg testified about this conversation. Ex. H (June 4, 2008 Blumberg Dep. Tr. at 49:5-
14 6). And in July, Samsung’s 30(b)(6) witness on the parties’ negotiations in 2004-2005 for a
15 renewal of the SDR/DDR License, Seung Bum Ko, testified that it was Samsung’s view and
16 understanding, based on statements made by the Korean auditors to Jay Shim, that the auditor
17 agreed to Samsung’s position that Samsung had provided sufficient information for the audit. Ex.
18 I (July 25, 2008 Ko Dep. Tr. at 141-43). With notice of Samsung’s claims relating to the
19 statements by the Korean auditors, Rambus made the strategic decision in late July to cancel a
20 scheduled 30(b)(6) deposition of Gil Young Heo, Samsung’s designee on audit issues, after Mr.
21 Heo had already traveled from Korea to the United States for the deposition. Given these
22 circumstances, any prejudice to Rambus is of its own making.
23 For the foregoing reasons, Rambus’s objections to the admissibility of Exhibits 4438 and
24 4439 should be overruled and the documents should be admitted into evidence.
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SAMSUNG’S BENCH BRIEF IN SUPPORT OF 3 CASE NO. C 05 00334 RMW
CASE NO. C 05 02298 RMW
ADMISSION OF EXHIBITS 4438 AND 4439
 Case 5:05-cv-00334-RMW Document 2241 Filed 09/22/2008 Page 5 of 5

1 Dated: September 22, 2008

2 WEIL, GOTSHAL & MANGES, LLP
3
By: /s/ Matthew D. Powers
4 Matthew D. Powers
5
MATTHEW D. POWERS (Bar No. 104795)
6
Email: matthew.powers@weil.com
7 STEVEN S. CHERENSKY (Bar No. 168275)
Email: steven.cherensky@weil.com
8 WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
9 Redwood Shores, CA 94065
Telephone: (650) 802-3000
10
Facsimile: (650) 802-3100\
11
ROBERT S. BEREZIN (admitted pro hac vice)
12 Email: robert.berezin@weil.com
MATTHEW J. ANTONELLI (admitted pro hac
13 vice)
Email: matthew.antonelli@weil.com
14
WEIL, GOTSHAL & MANGES LLP
15 767 Fifth Avenue
New York, NY 10153
16 Telephone: (212) 310-8000
Facsimile: (212) 310-8007
17

18 Attorneys for Defendants

SAMSUNG ELECTRONICS CO., LTD.,
19 SAMSUNG ELECTRONICS AMERICA, INC.,
SAMSUNG SEMICONDUCTOR, INC., and
20 SAMSUNG AUSTIN SEMICONDUCTOR, L.P.
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SAMSUNG’S BENCH BRIEF IN SUPPORT OF 4 CASE NO. C 05 00334 RMW
CASE NO. C 05 02298 RMW
ADMISSION OF EXHIBITS 4438 AND 4439