Case 5:05-cv-00334-RMW Document 2266 Filed 09/22/2008 Page 1 of 5

1
MATTHEW D. POWERS (Bar No. 104795)
2 Email: matthew.powers@weil.com
EDWARD R. REINES (Bar No. 135930)
3 Email: edward.reines@weil.com
WEIL, GOTSHAL & MANGES LLP
4 201 Redwood Shores Parkway
Redwood Shores, CA 94065
5 Telephone: (650) 802-3000
Facsimile: (650) 802-3100
6

7 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION
8
RAMBUS, INC.,
9
Plaintiff.
10 v.
11 HYNIX SEMICONDUCTOR INC., HYNIX
SEMICONDUCTOR AMERICA INC.,
12 HYNIX Case No. C 05-00334 RMW
SEMICONDUCTOR MANUFACTURING
13 AMERICA INC., SAMSUNG’S OPPOSITION TO
14 RAMBUS’S TRIAL BRIEF TO EXCLUDE
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG TRIAL EXHIBITS 4438 AND
SAMSUNG ELECTRONICS AMERICA,
15 4439 FROM EVIDENCE
INC.,
SAMSUNG SEMICONDUCTOR, INC.,
16 Location: Courtroom 6
SAMSUNG AUSTIN SEMICONDUCTOR, Judge: Hon. Ronald M. Whyte
L.P.,
17
NANYA TECHNOLOGY CORPORATION,
18 NANYA TECHNOLOGY CORPORATION
U.S.A.,
19

20 Defendants.
21 RAMBUS, INC.,
22 Plaintiff.
v.
23
SAMSUNG ELECTRONICS CO., LTD.,
24 Case No. C 05-02298 RMW
SAMSUNG ELECTRONICS AMERICA,
INC.,
25 SAMSUNG SEMICONDUCTOR, INC.,
SAMSUNG AUSTIN SEMICONDUCTOR,
26 L.P.,
27 Defendants.
28
CASE NO. C 05 00334 RMW
SAMSUNG’S OPPOSITION TO RAMBUS’S TRIAL CASE NO. C 05 02298 RMW
BRIEF TO EXCLUDE EXHIBITS 4438 AND 4439 i
 Case 5:05-cv-00334-RMW Document 2266 Filed 09/22/2008 Page 2 of 5

1 Samsung respectfully submits opposition to Rambus’s Trial Brief to Exclude Samsung

2 Trial Exhibits 4438 and 4439 from Evidence. Samsung filed a separate Bench Brief in Support of
3 Admissibility of Exhibits 4438 and 4439, which addresses the majority of the arguments
4 advanced in Rambus’s Trial Brief, this morning, and incorporates its Bench Brief herein by
5 reference.
6 Rambus asserts that Exhibits 4438 and 4439—a Korean-language internal progress report
7 on the Ernst & Young audit and a certified English translation—should be excluded from
8 evidence for three reasons: (1) as a discovery sanction for Samsung’s failure to produce the
9 document in a timely manner; (2) because it contains inadmissible hearsay; and (3) because its
10 probative value is substantially outweighed by the danger of unfair prejudice. Rambus’s Trial
11 Brief at 1. Samsung demonstrated in its Bench Brief filed before court today that Exhibit 4438
12 was first discovered during Samsung’s pretrial preparations and that Samsung promptly produced
13 Exhibits 4438 and 4439 as soon as a translation of 4438 could be obtained. See Samsung’s Bench
14 Brief in Support of Admission of Exhibits 4438 and 4439 (“Samsung’s Bench Brief”) at p. 3.
15 Samsung further established that any prejudice alleged by Rambus was in fact of its own making
16 in light of Rambus’s failure to specify audit documents in discovery requests or in meet-and-
17 confer efforts relating to the request for production to which Rambus claims that Exhibits 4438
18 and 4439 are responsive and as a result of its strategic decision to cancel the 30(b)(6) deposition
19 of Mr. Heo (after Mr. Heo had already traveled from Korea to the United States for the
20 deposition) when Rambus had notice of the information contained in the report that it now claims
21 to be “sandbagging.”1 Rambus Trial Brief at 3. Rambus’s objection to the late production of
22 Exhibits 4438 and 4439 should therefore be overruled.
23 Samsung also addressed one level of the hearsay issue that is raised in Rambus’s Trial
24 Brief in Samsung’s Bench Brief filed before court today. Specifically, Samsung demonstrated
25 that the exhibits are business records that are admissible under Rule 803(6). Samsung’s Bench
26 Brief at pp. 1-2. Rambus’s attempt to demonstrate that the reports do not qualify for the business-
27 1
Mr. Heo is the author of the report that Rambus refers to throughout its brief as the “Huh”
28 Report. “Huh” is apparently a phonetic spelling of Mr. Heo’s last name.
CASE NO. C 05 00334 RMW
SAMSUNG’S OPPOSITION TO RAMBUS’S TRIAL CASE NO. C 05 02298 RMW
BRIEF TO EXCLUDE EXHIBITS 4438 AND 4439 1
 Case 5:05-cv-00334-RMW Document 2266 Filed 09/22/2008 Page 3 of 5

1 records exception because “there is no evidence that it was Samsung’s ‘regular practice’ to create
2 or keep reports on the status of the Rambus royalty audit” is based on a tortured reading of the
3 rule. For a document to constitute a business record, it is not a requirement that it be the regular
4 practice of the business to create records relating to the subject matter at issue in the report. The
5 rule merely requires, in the context of Exhibits 4438 and 4439, that it be a regularly conducted
6 business activity at Samsung to report on the status of ongoing business matters. See, e.g., U.S. v.
7 Jacoby, 955 F.2d 1557, 1536 (11th Cir. 1992) (memorandum admissible as business record where
8 custodian testified that he would “from time to time dictate memos to the file explaining his
9 actions in a particular closing if anything needed explaining in the closing”); In re Exide Techs.,
10 340 B.R. 222, (Bkrtcy. D. Del. 2006) (sales forecasts regarding likely effects on debtor’s business
11 if debtor was able to reacquire right to use trademark from licensee and succeeded in its efforts at
12 brand unification were admissible as business records where it was part of debtor’s routine
13 practice to conduct the kind of analyses contained in the forecasts). In any event, it was agreed by
14 the parties and the Court today that the foundation for the document qualifying as a business
15 record would be established during Mr. Shim’s testimony.
16 Rambus’s contention that the statements contained in the report from the Korean auditors
17 are inadmissible hearsay is also flawed, as it is based on the false assertion that the statements
18 “are relevant only for the truth of the matters they assert; namely, that royalties were being paid,
19 and that there was ‘no problem’ with the audit result.” Rambus’s Trial Brief at 3. To the
20 contrary, the documents are being offered to demonstrate their effect on the listener’s—
21 Samsung’s—state of mind; in other words, to demonstrate that Samsung upon hearing from the
22 Korean auditors that Samsung had provided sufficient information for the audit (irrespective of
23 whether that statement was in fact true), reasonably understood that the audit issues had been
24 resolved. Rambus’s breach argument is that Samsung failed to cooperate on the audit, and thus
25 Samsung’s state of mind regarding whether the auditors had what they needed is directly at issue.
26 Indeed, this is entirely consistent with Rambus’s opening statement in its brief that “[o]ne
27 issue in this case is whether Samsung breached its license agreement with Rambus by failing to
28 give Rambus’s auditors…access to information they needed to complete an audit of Samsung’s
SAMSUNG’S OPPOSITION TO RAMBUS’S TRIAL CASE NO. C 05 00334 RMW
2 CASE NO. C 05 02298 RMW
BRIEF TO EXCLUDE EXHIBITS 4438 AND 4439
 Case 5:05-cv-00334-RMW Document 2266 Filed 09/22/2008 Page 4 of 5

1 royalty payments under the SDR/DDR License.” Rambus’s Trial Brief at 1. It is Samsung’s
2 belief that it had not failed to give the auditors access to the information that they needed, and not
3 that the audit was in fact complete or that Samsung was not underpaying royalties, that Samsung
4 seeks to establish by introduction of Exhibits 4438 and 4439. The statements attributed to the
5 Korean auditors contained in the report are thus clearly not hearsay, and Rambus’s hearsay
6 objection should be overruled. Fed. R. Evid. 801(c) (“’Hearsay’ is a statement, other than one
7 made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
8 truth of the matter asserted.”) (emphasis added).
9 Finally, Rambus’s claim that the probative value of Exhibits 4438 and 4439 are
10 outweighed by the danger of unfair prejudice lack merit and should be overruled. This argument
11 appears to be duplicative of the late-production argument which, for the reasons discussed above,
12 has not prejudiced Rambus. Furthermore, Rambus’s obscure claim that the statements in the
13 documents are only “minimally probative” because they were made by a “branch” of the audit
14 team, is based on the same flawed premise that the documents are being offered to prove the truth
15 of the matter asserted. Rather, because the statements are being offered to demonstrate their
16 impact on the mental state of the listener, Samsung, the statements are actually more probative
17 because they were made by the Korean “branch” office with whom Samsung was regularly and
18 directly interfacing on the audit issues. Rambus’s objection under Rule 403 is therefore ill-
19 founded and should be overruled.
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SAMSUNG’S OPPOSITION TO RAMBUS’S TRIAL CASE NO. C 05 00334 RMW
3 CASE NO. C 05 02298 RMW
BRIEF TO EXCLUDE EXHIBITS 4438 AND 4439
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1 Dated: September 22, 2008

2 WEIL, GOTSHAL & MANGES, LLP
3
By: /s/ Matthew D. Powers
4 Matthew D. Powers
5 Attorneys for Defendants
SAMSUNG ELECTRONICS CO., LTD.,
6 SAMSUNG ELECTRONICS AMERICA, INC.,
SAMSUNG SEMICONDUCTOR, INC., and
7 SAMSUNG AUSTIN SEMICONDUCTOR, L.P.
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SAMSUNG’S OPPOSITION TO RAMBUS’S TRIAL CASE NO. C 05 00334 RMW
4 CASE NO. C 05 02298 RMW
BRIEF TO EXCLUDE EXHIBITS 4438 AND 4439