Case 5:05-cv-00334-RMW Document 2268 Filed 09/23/2008 Page 1 of 6

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
16 OPPOSING RAMBUS’S EXPECTED
HYNIX SEMICONDUCTOR INC., et al., HEARSAY TESTIMONY
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 OPPOSING RAMBUS’S CASE NO. C 05 00334 RMW
EXPECTED HEARSAY TESTIMONY CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2268 Filed 09/23/2008 Page 2 of 6

1 Samsung respectfully submits this bench brief opposing the admission of Mr. Nigel

2 Shepherd’s expected hearsay testimony. Rambus advised Samsung at nearly the close of business

3 on September 19, 2008, that, pursuant to Federal Rule of Evidence 807, it intends to offer

4 evidence through the testimony of one of its will-call witnesses, Mr. Nigel Shepherd, that “the

5 statements Samsung attributes to the Korean auditors were not made by them and that, to the

6 contrary, In-Sang Yoo of the Younghwa Accounting Firm had informed Samsung that as of

7 January 18, 2005, the auditors had not obtained information they needed from Samsung to

8 successfully complete the audit.” See Declaration of Sarah Barrows (“Barrows Decl.”), Ex. A

9 (Email from Burton Gross to Matthew Antonelli and Sarah Barrows, dated September 19, 2008).1

10 I.
11 MR. SHEPHERD’S EXPECTED TESTIMONY DOES NOT MEET THE
REQUIREMENTS OF THE RESIDUAL HEARSAY EXCEPTION
12

13 The Federal Rules of Evidence provide a catchall exception to the hearsay rule embodied by
14
Rule 807 that permits the introduction of hearsay statements possessing circumstantial
15
guarantees of trustworthiness akin to, but not otherwise covered by, the existing exceptions to
16
the hearsay rule.2 Fed. Rule Evid. 807. Before admitting evidence under the residual hearsay
17

18 exception, the court must find that the evidence satisfies the prerequisites of trustworthiness,

19 notice, necessity, and materiality, and must also determine that the purposes of these rules and

20 1
This expected testimony is threatened in the event that “Samsung trial exhibits 4438 or 4439 are
21 admitted into evidence or raised by Samsung at trial or if Samsung seeks to elicit testimony from
its witnesses concerning statements purportedly made to Samsung by the Korean auditors
22 affiliated with Ernst & Young (Younghwa Accounting firm) that were involved in the
Rambus/Samsung royalty audit about there being no problem with the audit results . . .” Id.
23
2
Specifically, Rule 807 provides, in relevant part:
24
A statement not specifically covered by Rule 803 or 804 but having equivalent
25 circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if
the court determines that (A) the statement is offered as evidence of a material
26 fact; (B) the statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable efforts;
27 and (C) the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence.
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the interests of justice will be served by admission of the evidence. Id.; U.S. v. McKinney, 187
1

2 F.3d 650 (9th Cir. 1999); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE, § 324 (6th

3 ed.2006). “The residual hearsay exception is to be used only rarely, in truly exceptional cases.”

4 United States v. Phillips, 219 F.3d 404, 419 n. 23 (5th Cir. 2000) (internal citations omitted).
5 “The proponent of the statement bears a heavy burden to come forward with indicia of both
6
trustworthiness and probative force.” Id. (quoting United States v. Washington, 106 F.3d 983,
7
1001-02 (D.C. Cir.), cert. denied, 522 U.S. 984, 118 S.Ct. 446, 139 L.Ed.2d 382 (1997)). The
8
expected testimony of Nigel Shepherd is blatant hearsay, does not constitute an “exceptional
9

10 case” or a “near miss”3 and, when considered amidst the totality of the circumstances, is not

11 trustworthy. Idaho v. Wright, 497 U.S. 805, 821-22 (1990) (trustworthiness must be shown from

12 the totality of the circumstances that surround the making of the statement).
13
In applying the residual exception to the hearsay rule, the most important issue is whether
14
the statement offers “equivalent circumstantial guarantees of trustworthiness” to those found in
15
the various other specific hearsay exceptions. JOHN W. STRONG ET AL., MCCORMICK ON
16

17 EVIDENCE, § 324 (6th ed. 2006). Significantly, the “circumstantial guarantees of

18 trustworthiness” required by Rule 807 are not present where the statement of the declarant is

19 “plainly self-serving and no corroboration [is] available.” Bulthuis v. Rexall Corp., 789 F.2d
20
3
21 Statements that narrowly, but clearly, fail to qualify under one of the enumerated hearsay
exceptions are sometimes characterized as a “near miss” and can sometimes qualify as residual
22 exceptions to the hearsay rule where “little else is needed to establish equivalent trustworthiness.”
JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE, § 324 (6th ed. 2006). In particular,
23 statements that come close to qualifying under the business record exception to the hearsay rule
are common in the “near miss” line of cases. The trustworthiness concerns explained herein
24
demonstrate the many reasons Mr. Yoo’s statement does not qualify under Rule 807 as a “near
25 miss” business record. See e.g. In re Mendez, No. 05-62634-A-7, 2008 WL 597280 (E.D. Cal.
Feb. 29, 2008) (observing that courts have long recognized bank statements may be admitted
26 under the residual exception to hearsay because of the circumstantial guarantees of
trustworthiness inherent in the fact that customers regularly rely on the accuracy of such records);
27 see also U.S. v. Laster, 258 F.3d 525 (6th Cir. 2001) (purchase orders for chemicals and related
documents admissible under Rule 807 because “no indication” records were not reliable).
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1315, 1316 (9th Cir. 1985); Boyd v. City of Oakland, 458 F.Supp. 2d 1015 (N.D. Cal. 2006).
1

2 This is precisely the situation here – according to Rambus, the Rule 807 evidence it “intends to

3 elicit involves a conversation that Mr. Shepherd, the Ernst & Young lead auditor, had with Mr.

4 In-Sang Yoo, the Korean field auditor, concerning statements Mr. Yoo made in late-December
5 2004 or January 2005 to Mr. Gil Young Heo of Samsung about the status of the audit . . .” See
6
Barrows Decl., Ex. B (Email from Burton Gross to Matthew Antonelli, dated September 20,
7
2008.). Importantly, Mr. Shepherd’s conversation took place “recently.”4 As Mr. Gross made
8
clear in his September 19th email, Nigel Shepherd “supervised the work of Mr. Yoo and the
9

10 Korean audit team, directed their activities, and received reports concerning the progress of field

11 work on the audit.” See Ex. A. With all due respect to Mr. Yoo, there exists the real possibility

12 that Mr. Yoo might have been motivated to tell Mr. Shepherd whatever it is that Mr. Shepherd
13
wanted to hear in advance of being called to testify in open court.5 Further, nothing corroborates
14
Mr. Yoo’s hearsay statement. Larez v. City of Los Angeles, 946 F.2d 630, 643 n. 6 (9th Cir.
15
1991) (recognizing that corroborating evidence is a valid consideration in determining the
16
trustworthiness of out-of-court statements).6 Moreover, Rambus could have brought Mr. Yoo to
17

18 testify at trial, but apparently chose not to.7

19
4
20 Ex. C (September 22, 2008 Rambus v. Samsung Trial Transcript at 157:4-6).
5
21 Particularly where, as here, communication concerning the status of an audit that took place
nearly four years prior and is now the subject of litigation where Mr. Shepherd is expected to
22 testify.
23 6
To the contrary, Trial Exhibits 4438 and 4439 contradict this testimony and are the very reason
24 Rambus seeks to admit Mr. Shepherd’s hearsay testimony.
7
25 Mr. Stone’s comment at trial September 22, 2008 that the Korean auditors of Younghwa
Accounting Firm will not voluntarily appear is belied by Rambus’s inclusion of Mr. In Sang Yoo
26 and Mr. Simon Yoo of Younghwa Accounting Firm on their may-call witness list submitted as
part of the parties Joint Pretrial Statement, dated August 27, 2008 (see Barrows Decl., Ex. D) and
27 Rambus Inc.’s Submission of A Revised Trial Witness List, dated September 15, 2008 (see
Barrows Decl., Ex. E).
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In fact, nearly every “recurring factor” in the laundry list of factors found to be “particularly
1

2 significant to the determination of admissibility” of a Rule 807 statement undermines the

3 trustworthiness of Mr. Yoo’s hearsay statement. JOHN W. STRONG ET AL., MCCORMICK ON

4 EVIDENCE § 324 (6th ed. 2006) (listing “certain recurring factors” supporting and undermining
5 trustworthiness). Specifically, Mr. Yoo’s statement was not made under oath,8 he did not record
6
his statement,9 the statement was not videotaped,10 Mr. Yoo’s statement was not spontaneous,
7
but made in response to a recent inquiry from Mr. Shepherd11 concerning an event that occurred
8
nearly four years ago,12 and the hearsay statement was not subject to cross-examination at the
9

10 time the statement was made.13 In essence, there is no “good way to test the reliability of the

11 evidence.” See e.g., Romstad v. Contra Costa County, 103 Fed. Appx. 108 (9th Cir. 2004)

12 (refusing to admit hearsay testimony where neither the declarant nor records of the hearsay
13
assertions were available at trial).
14

15 8
United States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998) (relying, inter alia, on the fact
16 that videotaped statement was under oath); United States v. Wilson, No. 06-5082, 2008 WL
2333023 at *3 (3d. Cir. June 9, 2008) (finding hearsay statement untrustworthy where, among
17 other things, declarant did not make statement under oath).
18 9
U.S. v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993).
19 10
Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998); State v. Rojas, 524 N.W.2d 659, 663 (Iowa
20 1994).
11
21 Wright, 479. U.S. at 821-822 (1990) (observing that spontaneity of the statement may indicate
trustworthiness); see also United States v. Ellis, 935 F.2d 385, 394 (1st Cir. 1991).
22
12
Braun v. Lorillard, Inc., 84 F.3d 230 (7th Cir. 1996) (excluding testimony about statement
23 made several years after the facts in question)
24 13
United States v. McPartlin, 595 F.2d 1321, 1350-51 (7th Cir. 1979) cert. denied 444 U.S. 833
25 (1979) (noting “the degree of reliability necessary for admission is greatly reduced where, as
here, the declarant is testifying and is available for cross-examination, thereby satisfying a central
26 concern of the hearsay rule.”); United States v. Leslie, 542 F.2d 285, 290 (5th Cir. 1976) (“We
agree with Judge Learned Hand’s observation that when the jury decides the truth is not what the
27 witness says now but what he said before, they are still deciding what they see and hear in
court.”).
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II.
1
CONCLUSION
2

3 For the reasons stated above, the Court should not permit the expected hearsay testimony

4 from Mr. Shepherd.

5 Dated: September 23, 2008 WEIL, GOTSHAL & MANGES, LLP

6 By:
7 Matthew D. Powers
Attorneys for Defendants
8 Samsung Electronics Co., Ltd.,
Samsung Electronics America, Inc.,
9 Samsung Semiconductor, Inc., and
Samsung Austin Semiconductor, L.P.
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