Case 5:05-cv-00334-RMW Document 2277 Filed 09/23/2008 Page 1 of 3

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 REPLY IN SUPPORT OF
16 ADMISSION OF EXHIBITS 4434 AND
HYNIX SEMICONDUCTOR INC., et al., 4435
17

18 Trial Date: September 22, 2008

Defendants. Courtroom: 6
19 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 REPLY IN SUPPORT OF ADMISSION OF CASE NO. C 05 00334 RMW
EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2277 Filed 09/23/2008 Page 2 of 3

1 Samsung disclosed its intention to offer these Exhibits during Dr. Ugone’s testimony on
2 Friday morning. This morning, Rambus filed a trial brief opposing admission of summary
3 Exhibits 4434 and 4435. Samsung respectfully submits this brief in response to issues raised in
4 Rambus’s recently filed trial brief.
5 Rambus’s trial brief “ignores the realities of modern business litigation, where many
6 business records are kept in databases, and parties query these databases in order to provide
7 responses to discovery requests.” See Health Alliance Network, Inc. v. Continental Cas. Co., 245
8 F.R.D. 121, 129 (S.D.N.Y. 2007). “Where . . . there are sufficient indicia of reliability of the data
9 produced, and the underlying database is maintained through the ordinary course of business . . . a
10 smaller subset of data provided as evidence from the database is subject to the business records
11 exception of the hearsay rule.” Id. at 129. In response to Rambus’s requests for production,
12 Samsung queried its internal databases in order to produce sales data to Rambus. Samsung also
13 produced a 30(b)(6) witness, Wooksang Chung, for two days of deposition on this information.
14 Rambus did not and has not objected to Mr. Chung as an inadequate 30(b)(6) deponent on the
15 topics for which he was designated. Nor did Rambus challenge the accuracy or authenticity of the
16 data produced. In fact, Rambus’s damages expert, David Teece, relies without objection on the
17 data that Rambus now seeks to exclude as a basis for his damages calculation of approximately
18 $715 million. See Supplemental Expert Report David J. Teece, at Table 12S-1.
19 Rambus’s brief also tellingly ignores the Rule 902(12) declarations submitted by Samsung
20 in support of its bench brief. Rule 902(12) provides for the self-authentication of “certified
21 foreign records of regularly conducted activity.” Fed. R. Evid. 902(12). Rule 803(6) expressly
22 looks to Rule 902(12) certifications as a source for establishing a business records foundation.
23 Fed. R. Evid. 803(6). The certifications submitted by Samsung establish that the business records
24 at issue were “created from information that was transmitted by a person with knowledge of the
25 underlying transactions on which the records . . . are based” and that the records were “made at or
26 near the time that the underlying transactions on which those records are based occurred.” See
27 Chung Decl. ¶ 3; Shin Decl. ¶ 3. Further, the certifications confirm that “[i]t is the regular
28 practice of Samsung to make the records” from which the spreadsheets were generated, and the
SAMSUNG’S REPLY IN SUPPORT OF ADMISSION 1 CASE NO. C 05 00334 RMW
OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW
 Case 5:05-cv-00334-RMW Document 2277 Filed 09/23/2008 Page 3 of 3

1 data from which the underlying records was generated “are kept in the course of a regularly
2 conducted business activity at Samsung.” Sse Chung Decl. ¶ 3; Shin Decl. ¶ 3. Each certification
3 includes a representation that the declarant has “knowledge of how this data is made and
4 maintained by Samsung” and is executed under penalty of perjury under the laws of the United
5 States and Korea. See Chung Decl. ¶ 3; Shin Decl. ¶ 3. These declarations authenticate the
6 documents underlying the summaries marked as Exhibits 4434 and 4435 and lay a business-
7 records foundation for those documents.
8 Lastly, Rambus challenges Dr. Ugone as a sponsoring witness for Exhibits 4434 and
9 4435. Dr. Ugone was identified as the sponsoring witness for Exhibits 4434 and 4435 in the
10 Exhibit List provided to Rambus on August 27, 2008. Dr. Ugone has personal knowledge
11 regarding the preparation of the summaries, and Rambus will have an opportunity to cross-
12 examine Dr. Ugone regarding the accuracy of the summaries. Dr. Ugone does not intend to offer
13 any opinions based upon Exhibits 4434 or 4435, so the failure to disclose these summaries in his
14 report is immaterial.
15 For the reasons stated above, the Court should admit Exhibits 4434 and 4435 into
16 evidence pursuant to Federal Rules of Evidence 803(6), 902(12), and 1006.
17

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

19
By: Matthew D. Powers
20 Matthew D. Powers

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

25

26

27

28
SAMSUNG’S REPLY IN SUPPORT OF ADMISSION 2 CASE NO. C 05 00334 RMW
OF EXHIBITS 4434 AND 4435
CASE NO. C 05 02298 RMW