Case 5:05-cv-00334-RMW Document 2257 Filed 09/22/2008 Page 1 of 5

1 Matthew D. Powers (Bar No. 104795)

matthew.powers@weil.com
2 Steven S. Cherensky (Bar No. 168275)
steven.cherensky@weil.com
3 WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
4 Redwood Shores, California 94065
Telephone: (650) 802-3000
5 Facsimile: (650) 802-3100
6 Robert S. Berezin (pro hac vice)
robert.berezin@weil.com
7 Matthew J. Antonelli (pro hac vice)
matthew.antonelli@weil.com
8 WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
9 New York, New York 10153
Telephone: (212) 310-8000
10 Facsimile: (212) 310-8007
11
IN THE UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION
13

14 RAMBUS, INC., Case No. C 05-00334 RMW

15 Plaintiff,
v. SAMSUNG’S BENCH BRIEF IN
16 SUPPORT OF ADMISSION OF
HYNIX SEMICONDUCTOR INC., et al., EXHIBITS 4434 AND 4435
17

18 Date: September 24, 2008

Defendants. Time: 8:00 a.m.
19 Courtroom: 6
Judge: Hon. Ronald M. Whyte
20

21

22 RAMBUS, INC., Case No. C 05-02298 RMW

23 Plaintiff,
v.
24
SAMSUNG ELECTRONICS CO., LTD., et al.,
25
Defendants.
26

27

28
SAMSUNG’S BENCH BRIEF IN SUPPORT OF CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2257 Filed 09/22/2008 Page 2 of 5

1 Samsung respectfully submits this bench brief in support of the admission into evidence of
2 the exhibits summarizing (1) Samsung’s Quarterly Gross Sales of DRAM Memory Products, by
3 Type from Q1 2000 to Q2 2008—marked as Trial Exhibit 4434—and (2) Samsung’s Total
4 Controller Gross Sales Between “Accused.xls” and “Royalty.xls” 2000-2005—marked as Trial
5 Exhibit 4435. (See Declaration of Joseph R. Wetzel [“Wetzel Decl.”] Exs. A-B.) Rambus has
6 objected to the admissibility and authenticity of the underlying documents of both summaries and
7 has objected to the relevance of the summary marked as Trial Exhibit 4435.1 (Wetzel Decl. Ex.
8 C.) Contrary to Rambus’s contentions, the underlying documents summarized in Trial Exhibits
9 4434 and 4435 are relevant, admissible, and authentic. The Court should therefore admit Exhibits
10 4434 and 4435 into evidence.
11 I.
12 SAMSUNG’S SUMMARY EXHIBITS ARE ADMISSIBLE PURSUANT TO RULE 1006
13 Summaries of voluminous records2 are admissible under Rule 1006 provided that (i) the
14 proponent of the summaries makes a showing that the underlying records are admissible; and (ii)
15 the underlying documents were made available to the opposing party for inspection. United States
16 v. Johnson, 594 F.2d 1253, 1254-56 (9th Cir. 1979), cert. denied, 444 U.S. 964 (1979). Rambus
17 does not dispute that Samsung made the documents underlying the summary exhibits available
18 for inspection nor does it dispute the accuracy of the summaries, which were created by and will
19 be sponsored by expert witness Dr. Keith Ugone. The record described below establishes the
20 1
Samsung disclosed its intention to offer Exhibits 4434 and 4435 during Dr. Ugone’s testimony
21 on Friday morning, two business days in advance of Tuesday’s hearing time. Pursuant to the
terms agreed upon in the pretrial conference, the parties were to meet and confer on Friday, with
22 any written submission by Rambus due by 5 p.m. on Friday. Rambus filed no written objection.
After 5 p.m. on Saturday, Rambus emailed objections to Samsung. (Wetzel Decl. Ex. D). In
23
response, Samsung submits this bench brief.
24 2
“Rule 1006 does not require that it be literally impossible to examine all the underlying records,
25 but only that in-court examination would be an inconvenience.” See United States v. Possick, 849
F.2d 332, 339 (8th Cir. 1988) (finding charts summarizing phone records and chart summarizing
26 20 transactions memorialized in receipts and phone bills voluminous for purposes of Rule 1006)
(citing United States v. Scales, 594 F.2d 558, 562 (6th Cir.), cert. denied, 441 U.S. 946 (1979).
27
Exhibit 4434 summarizes data from nine spreadsheets with tens of thousands of lines of data, and
28 Exhibit 4435 summarizes data from two spreadsheets with over 1,500 total rows of data.

SAMSUNG’S BENCH BRIEF IN SUPPORT OF 1 CASE NO. C 05 00334 RMW

ADMISSION OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2257 Filed 09/22/2008 Page 3 of 5

1 admissibility of the records underlying the reports marked as Trial Exhibits 4434 and 4435.
2 A. The Underlying Documents Are Business Records under Rule 803(6)
3 A business record is admissible under Federal Rule of Evidence 803(6) if the record is (1)
4 created by a regularly conducted business activity; (2) kept in the “regular course of business”;
5 (3) created pursuant to the regular practice of that business; and (4) created by an individual with
6 knowledge or from information transmitted by a person with knowledge. Paddack v. Dave
7 Christensen, Inc., 745 F.2d 1254, 1258 (9th Cir. 1984). Samsung has designated and intends to
8 offer the following deposition testimony from Wooksang Chung establishing the elements of
9 Rule 803(6):
10 Q. Mr. Chung, I'm placing before you what has been marked as Chung Exhibit
2. And you may recall that this is a -- one of the spreadsheets that we
11 looked at yesterday. Is that correct?
12 A. Yes.
13 Q. And Exhibit 2 is a summary of certain records that are maintained at
Samsung, is that correct?
14
A. That's correct.
15
Q. Was Exhibit 2 created from information that was transmitted by a person
16 with knowledge of the underlying transactions on which the records
summarized in Exhibit 2 are based?
17
A. Correct.
18
Q. And were the records that were used to generate Exhibit 2 made at or near
19 the time that the underlying transactions on which those records are based
occurred?
20
A. Correct.
21
Q. And is it the regular practice of Samsung to make the kind of records that
22 were used to generate Exhibit 2?
23 A. Yes.
24 Q. Okay. I have one more question about this, which is, are the records from
which Exhibit 2 were generated kept in the course of a regularly conducted
25 business activity at Samsung?
26 A. Yes.
27 Q. Thank you. Rather than go through every single one of the spreadsheets
that have been marked during your deposition, I would just like to know if
28 your answer to these five questions that I asked you about Exhibit 2 would
SAMSUNG’S BENCH BRIEF IN SUPPORT OF 2 CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2257 Filed 09/22/2008 Page 4 of 5

be the same for each and every spreadsheet that has been marked as an
1 exhibit today, which I believe includes Exhibits 7 through 13, 15, 16, 18
through 26, and 27 through 36. So I should actually say 18 through 36.
2
A. Yes.
3

4 (Wetzel Decl. Ex. E [Deposition of Wooksang Chung, Aug. 29, 2008, at 192:14-194:5 (“Chung
5 Depo.”)].) Mr. Chung was a 30(b)(6) designee on, inter alia, the following topics: “[t]he unit
6 sales, gross dollar sales, net dollar sales . . . for each of Samsung’s Accused Products,”
7 “Samsung’s sales and financial records,” “[i]dentification of all documents at Samsung that relate
8 to . . . sales . . . and the manner in which those are maintained at Samsung.” (See Wetzel Decl. Ex.
9 F [Rambus’s Notice of Deposition to Samsung re: Sales of Accused Products, dated July 31,
10 2008].) Moreover, Mr. Chung has personal knowledge about how the records underlying the
11 summary marked as Trial Exhibit 4434 were made and maintained at Samsung. (See Declaration
12 of Wooksang Chung, Sept. 19, 2008, ¶ 3 [“Chung Decl.”].) Rambus neither objected to the
13 questions adducing his testimony on the business-records nature of these materials nor cross-
14 examined Mr. Chung on these topics during his deposition. (Chung Depo. at 194:6-12.)
15 B. The Underlying Documents Are Self-Authenticating under Rule 902(12)
16 The elements of 803(6) may also be satisfied “by certification that complies with Rule
17 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the
18 method or circumstances of preparation indicate lack of trustworthiness.” Fed. R. Evid. 803(6).
19 To avoid any question about the authenticity of the underlying records, Samsung has submitted
20 declarations from Mr. Chung and Sungwoo Shin that further establish that the underlying
21 documents meet the requirements of Rule 803(6). Federal Rule of Evidence 902(12) provides for
22 self-authentication of:
23 the original or a duplicate of a foreign record of regularly conducted activity that
would be admissible under Rule 803(6) if accompanied by a written declaration by
24 its custodian or other qualified person certifying that the record—(A) was made at
or near the time of the occurrence of the matters set forth by, or from information
25 transmitted by, a person with knowledge of those matters; (B) was kept in the
regularly conducted activity; and (C) was made by the regularly conducted activity
26 as a regular practice.
27 Fed. R. Evid. 902(12); see also OKI Am., Inc. v. Advanced Micro Devices, Inc., No. C 04-03171
28 CRB, 2006 WL 2711555, at *3 (N.D. Cal. 2006) (applying Rule 902[11] to domestic business
SAMSUNG’S BENCH BRIEF IN SUPPORT OF 3 CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2257 Filed 09/22/2008 Page 5 of 5

1 records). Mr. Chung’s and Mr. Shin’s declarations each meets the requirements set forth above.
2 (See Chung Decl.; Declaration of Sungwoo Shin, Sept. 18, 2008.) Thus, the certified foreign
3 business records underlying the summary exhibits are self-authenticating and admissible.
4 C. Trial Exhibit 4435 Is Probative of Facts Material to this Litigation
5 Rambus has also challenged the relevance of the summary marked as Trial Exhibit 4435.
6 Exhibit 4435 depicts summary sales data pertaining to sales of Samsung’s memory controllers. In
7 its pleadings and papers, Rambus has alleged that Samsung breached the audit provision of the
8 2000 SDR/DDR License. Under the terms of the 2001 Amendment, Samsung paid only paid
9 running royalties per unit sold on its sales of memory controllers. Consequently, Samsung’s sales
10 of memory controllers would be pertinent to an audit conducted between 2001 and 2003.
11 II.
12 CONCLUSION
13 For the reasons stated above, the Court should admit Exhibits 4434 and 4435 into
14 evidence pursuant to Federal Rules of Evidence 803(6), 902(12), and 1006.
15

16 Dated: September 22, 2008 WEIL, GOTSHAL & MANGES, LLP

17
By: Matthew D. Powers
18 Matthew D. Powers

19
Attorneys for Defendants
20 Samsung Electronics Co., Ltd.,
Samsung Electronics America, Inc.,
21
Samsung Semiconductor, Inc., and
22 Samsung Austin Semiconductor, L.P.

23

24

25

26

27

28
SAMSUNG’S BENCH BRIEF IN SUPPORT OF 4 CASE NO. C 05 00334 RMW
ADMISSION OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW