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1 Gregory P. Stone (State Bar No. 078329) Rollin A. Ransom (State Bar No. 196126)
Steven M. Perry (State Bar No. 106154) SIDLEY AUSTIN LLP
2 Sean Eskovitz (State Bar No. 241877) 555 West Fifth Street, Suite 4000
MUNGER, TOLLES & OLSON LLP Los Angeles, California 90013-1010
3 355 South Grand Avenue, 35th Floor Telephone: (213) 896-6000
Los Angeles, California 90071-1560 Facsimile: (213) 896-6600
4 Telephone: (213) 683-9100 Email: rransom@sidley.com
Facsimile: (213) 687-3702
5 Email: gregory.stone@mto.com;
steven.perry@mto.com; sean.eskovitz@mto.com
6
Peter A. Detre (State Bar No. 182619) Pierre J. Hubert (Pro Hac Vice)
7 Carolyn Hoecker Luedtke (State Bar No. 207976) Craig N. Tolliver (Pro Hac Vice)
Jennifer L. Polse (State Bar No. 219202) McKOOL SMITH PC
8 MUNGER, TOLLES & OLSON LLP 300 West 6th Street, Suite 1700
560 Mission Street, 27th Floor Austin, Texas 78701
9 San Francisco, California 94105 Telephone: (512) 692-8700
Telephone: (415) 512-4000 Facsimile: (512) 692-8744
10 Facsimile: (415) 512-4077 Email: phubert@mckoolsmith.com;
Email: peter.detre@mto.com; ctolliver@mckoolsmith.com
11 carolyn.luedtke@mto.com; jen.polse@mto.com

12 Attorneys for Plaintiff

RAMBUS INC.
13

14 UNITED STATES DISTRICT COURT

15
NORTHERN DISTRICT OF CALIFORNIA
16
SAN JOSE DIVISION
17

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

19 Plaintiffs, RAMBUS INC.’S OPPOSITION TO NANYA

AND NANYA USA’S MOTION TO COMPEL
20 vs. ON 30(B)(6) TOPICS 35 AND 36
21 Date: October 1, 2008
22 Time: 8:30 a.m. (by telephone)
HYNIX SEMICONDUCTOR INC., HYNIX Judge: Hon. Read A. Ambler (Ret.)
23 SEMICONDUCTOR AMERICA INC., HYNIX
SEMICONDUCTOR MANUFACTURING
24 AMERICA INC.,

25
SAMSUNG ELECTRONICS CO., LTD.,
26 SAMSUNG ELECTRONICS AMERICA,
27 INC., SAMSUNG SEMICONDUCTOR, INC.,
SAMSUNG AUSTIN SEMICONDUCTOR,
28 L.P.,
RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36
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2 NANYA TECHNOLOGY CORPORATION,

NANYA TECHNOLOGY CORPORATION
3 U.S.A.,
4 Defendants.

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RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36
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1 INTRODUCTION

2 Plaintiff Rambus Inc. respectfully submits this opposition to Nanya Technology

3 Corporation and Nanya Technology Corporation USA’s (collectively, “Nanya’s”) motion to compel

4 Rambus Inc. (“Rambus”) to produce a witness to testify on topics 35 and 36 in the Manufacturers’

5 Combined 30(b)(6) Notice of Rambus. Although Nanya describes the topics as “narrowly-tailored,”

6 these topics in fact seek testimony regarding every communication that Rambus has ever had

7 regarding its inventions with any person or entity that has invested in, or was asked to invest in,

8 Rambus. Rambus has been in business since 1990. It received venture capital funding from

9 multiple sources in its early years and had an initial public offering in 1997. It has thousands of

10 shareholders. Given that Rambus’s inventions are at the core of its business, it would literally be

11 impossible for Rambus to prepare a witness to testify as to these topics as drafted.

12 More fundamentally, Rambus’s witnesses have already offered hundreds of pages of

13 testimony regarding communications with investors and potential investors. This includes testimony

14 – on multiple occasions – from the persons involved in Rambus’s original efforts to secure venture

15 capital funding (including depositions of both Rambus personnel and representatives of the venture

16 capital firms) and from the persons involved in Rambus’s IPO. In addition, witnesses have

17 authenticated and testified at length regarding the documents presented to investors and potential

18 investors in connection with these efforts. Thus, the fundamental premise underlying Nanya’s

19 motion – that “no witness has testified previously on these topics” – is just wrong. In fact, these

20 topics seek testimony that has already been given at length, and Nanya has offered no explanation of

21 its need for any further testimony regarding them. The motion should be denied.

22 BACKGROUND

23 On July 11, 2008, Nanya unilaterally served a Notice of Deposition of Rambus that

24 included, among other things, several broadly-worded topics relating to Rambus’s communications

25 with third-parties. Declaration of Theresa E. Norton (“Norton Decl.”) ¶ 3 & Ex. B

26 (“Communications with Others” topics 1 through 4). Because this notice was served in violation of

27 paragraph 4 of the Court’s April 24, 2007 Case Management Order (the “CMO”), which required the
28 Manufacturers to coordinate their discovery through lead counsel, Rambus objected. Norton Decl. ¶
RAMBUS’S OPPOSITION TO NANYA’S MOTION TO COMPEL ON 30(B)(6) TOPICS 35 AND 36
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1 4. In light of Rambus’s objection, the Manufacturers agreed that Rambus need not serve objections

2 to the July 11 notice, and instead combined their various Rule 30(b)(6) deposition notices into a

3 single notice, which the manufacturers served on July 29, 2008. Norton Decl. ¶¶ 4-5. The combined

4 notice included the “communications with others” topics originally set forth in Nanya’s July 11

5 notice. Norton Decl. ¶ 5. By agreement, Rambus served its objections to the combined notice on

6 August 8, 2008, including objections based upon overbreadth, undue burden, and violations of the

7 CMO’s prohibitions against duplicative discovery, and refused to produce a witness. Norton Decl. ¶

8 6 & Ex. A. The parties meet-and-confer efforts were unsuccessful, and this motion followed.

9 DISCUSSION

10 Nanya’s motion should be denied because the topics that are the subject of the motion

11 are unconscionably overbroad and, to the extent they could reasonably be narrowed, have been the

12 subject of extensive deposition testimony.

13 That the deposition topics are overly broad cannot reasonably be denied. Although

14 Nanya summarily asserts that the topics are “narrowly-tailored” and “limited,” it is notable that

15 nowhere in Nanya’s brief are the topics actually set forth. Topic 35 reads as follows:

16 Communications, meetings, presentations, or other discussions

17 between Rambus and any company or person that has invested in, or

18 was asked to invest in, Rambus, including but not limited to Mohr

19 Davidow Ventures, Merrill Pickard Anderson & Erye, and Kleiner

20 Perkins Caufield & Byers, relating to the Farmwald inventions.

21 Norton Decl. Ex. A (emphasis added).

22 The overbreadth is apparent. First, this topic is unlimited in time, and therefore

23 effectively seeks eighteen years of information (i.e., from 1990 to the present). Second, it seeks

24 information regarding every communication to any investor or potential investor. Rambus received

25 initial venture capital funding from the three firms specifically identified in Topic 35. Declaration of

26 Rollin A. Ransom (“Ransom Decl.”) Ex. A (Farmwald Hynix Dep. (Jan. 22, 2004)) at 162:2-15. In

27 connection with that funding, each of the venture capital firms had a representative on Rambus’s
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1 board of directors. Ransom Decl. Ex. B (Heller Infineon Dep. (Jan. 25, 2001)) at 7:8-8:14; Ex. C

2 (Davidow Micron Dep. (Jul. 19, 2006)) at 170:24-171:20; Ex. D (Dunlevie Micron Dep. (Jul. 25,

3 2001) at 11:14-12:20. Indeed, William Davidow, a representative of Mohr Davidow Ventures,

4 served as Chairman of Board from 1990 to 2005. Ransom Decl. Ex. C at 171:5-8. The topic thus

5 effectively seeks every communication between Rambus and three of its board members spanning

6 more than a decade. Third, Rambus went public in 1997, and its stock is now publicly traded.

7 Ransom Decl. ¶ 21. Rambus has had thousands (and likely tens or hundreds of thousands) of

8 shareholders over the past eleven years, with whom it has communicated both directly and

9 indirectly. Id. The topic would thus seek communications between Rambus and all such

10 shareholders. Finally, although the topic purports to be “limited” to communications “relating to the

11 Farmwald inventions,” the inventions of Drs. Farmwald and Horowitz – which underlie Rambus’s

12 proprietary RDRAM product, as well as the infringing SDRAM and DDR SDRAM products at issue

13 here – are at the core of Rambus’s business. This “limitation” is no limitation at all. See, e.g.,

14 Krasney v. Nationwide Mut. Ins. Co., Case No. 3:06 CV 1164(JBA), 2007 WL 4365677, at * 4 & n.5

15 (D. Conn. Dec. 11, 2007) (refusing to order Rule 30(b)(6) deposition as to topic reading “[a]ll

16 communication between Gaynor and anyone at Nationwide regarding Krasney,” finding that there

17 was “absolutely no way for defendant to respond to this inherently overbroad request”).

18 Topic 36 is likewise overly broad. It reads:

19 Communications, meetings, presentations, or disclosures between

20 Rambus and persons outside of Rambus in connection with its initial

21 public offering relating to the Farmwald inventions.

22 Norton Decl. Ex. A. Rambus conducted a “roadshow” in connection with its initial public offering.

23 Rambus’s former CEO, Geoff Tate (who, along with former CFO Gary Harmon, conducted the

24 roadshow) testified that Rambus made sixty to seventy presentations in connection with the

25 roadshow. Ransom Decl. Ex. E (Tate Micron Dep. (Mar. 30, 2001)) at 427:13-17. As with topic 35,

26 because the core of Rambus’s business involves the inventions of Drs. Farmwald and Horowitz,

27 topic 36 necessarily seeks testimony regarding each of these presentations. Such a request is plainly
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1 overbroad.

2 More fundamentally, however, Rambus witnesses have testified repeatedly and at

3 length regarding these topics. For example, the following chart reflects a non-exhaustive list of prior

4 deposition testimony regarding communications with the three venture capital firms identified in

5 topic 35, including discussions with such firms respecting Rambus’s intellectual property, as well as

6 communications regarding Rambus’s inventions in connection with its IPO “roadshow”:

7 Witness Case Deposition Date Representative Pages Subject Matter

Michael Farmwald FTC 1/7/03 (Ransom 96-104 Communications with Kleiner
8 (Rambus co-founder) Decl. Ex. F) Perkins
Gary Harmon (former FTC 1/8/03 (Ransom 155-160 Communications with Morgan
9 Rambus CFO) Decl. Ex. G) Stanley regarding IPO
Michael Farmwald Hynix 1/22/04 (Ransom 160-166 Presentations to Kleiner
10 Decl. Ex. A) Perkins and other venture
capital firms
11 James Mannos (early Hynix 10/24/01 44-54, 72-75, 83-86 Presentations to Mohr
Farmwald VC co- (Ransom Decl. Davidow, Kleiner Perkins, and
12 presenter) Ex. H) other venture capital firms
William Davidow Infineon 1/31/01 (Ransom 15-21, 30-34 Communications with Mohr
13 (Mohr Davidow Decl. Ex. I) Davidow
representative)
14 Bruce Dunlevie Infineon 1/24/01 (Ransom 7-10, 13-23 Communications with Merrill
(Merrill Pickard Decl. Ex. J) Pickard
15 representative)
Andrew Heller Infineon 1/25/01 (Ransom 7-11, 12-18 Communications with Kleiner
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(Kleiner Perkins Decl. Ex. B) Perkins
representative)
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Geoff Tate (former Micron 3/30/01 (Ransom 300-308, 401-403, Communications with Morgan
Rambus CEO) Decl. Ex. E) 421-429, 442-451 Stanley regarding IPO,
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presentation used during IPO
roadshow, and IPO prospectus
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Bruce Dunlevie Micron 7/25/01 (Ransom 12, 57-64 Communications with Merrill
20 Decl. Ex. D) Pickard
Michael Farmwald Micron 7/25/01 (Ransom 182-186, 199-201 Communications with venture
21 Decl. Ex. K) capital firms
Geoff Tate Micron 7/31/01 (Ransom 671-674 Communications with Kleiner
22 Decl. Ex. L) Perkins and other venture
capital firms
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In addition, in the foregoing and similar testimony, Rambus witnesses authenticated and discussed
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documents relating to the presentations that Rambus made to venture capital firms, including the
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presentations themselves and notes regarding same. See, e.g., Ransom Decl. Ex. F (Farmwald FTC
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Dep. (Jan. 7, 2003)) at 96:19-98:3; Ransom Decl. Ex. M (excerpts from Farmwald Exhibit 2 to
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Farmwald FTC Dep. (Jan. 7, 2003)); Ransom Decl. Ex. H (Mannos Hynix Dep. (Oct. 24, 2001)) at
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1 49:13-54:2; Ransom Decl. Ex. N (Exhibit 1005 to Mannos Hynix Dep. (Oct. 24, 2001)); Ransom

2 Decl. Ex. A (Farmwald Hynix Dep. (Jan. 22, 2004)) at 160:5-162:25 (discussing exhibit similar to

3 Mannos Hynix Exhibit 1005). They also authenticated and discussed the slide presentation used

4 with prospective investors during the IPO roadshow. See, e.g., Ransom Decl. Ex. E (Tate Micron

5 Dep. (Mar. 30, 2001)) at 401:13-403:19, 423:2-423:20; Ransom Decl. Ex. O (Exhibit 222 to Tate

6 Micron Dep. (Mar. 30, 2001)). 1

7 Nanya’s entire motion is based upon its contention that “no individual has previously

8 testified on these topics.” As demonstrated above, this claim is plainly false. Rambus has offered an

9 extraordinary volume of testimony respecting these topics, including in depositions taken by

10 Nanya’s co-defendants Micron and Hynix (a fact that may explain why Micron and Hynix have not

11 joined this motion). And the depositions listed above are merely the tip of the iceberg. The

12 witnesses identified in the chart above – that is, the universe of persons with first-hand knowledge of

13 communications with Rambus investors and Rambus’s IPO – have collectively given forty-five days

14 of deposition testimony in the Rambus Related Actions. Ransom Decl. ¶ 20. 2

15 In the CMO, the Court acknowledged the “significant volume of testimony previously

16 elicited from current and former Rambus officers, directors, and employees in the various Rambus

17 Related Actions.” Ransom Decl. Ex. R at ¶ 5(c)(1). Accordingly, the Court imposed strict

18 limitations on discovery, stating that “[d]iscovery for purposes of the 05-06 Cases shall be conducted

19 to avoid unnecessary duplication of efforts and burden on the parties, witnesses, and third parties.”

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In addition, in connection with the conduct trial earlier this year, Rambus stipulated to various facts
21 regarding certain IPO-related documents. Ransom Decl. Ex. P at 4-5 (referring to Exhibit 10); Ex. Q
(portions of “Exhibit 10” in stipulation). Rambus is prepared to stipulate to these same facts for
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purposes of the upcoming patent trial.
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Nor is the above-cited testimony difficult to locate. Rambus identified these excerpts (among
others) by searching deposition transcripts for terms such as “Kleiner,” “Merrill,” “Mohr Davidow,”
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and “IPO.” Contrary to the suggestion in Nanya’s brief, however, it was not incumbent upon
25 Rambus to identify this prior testimony. Instead, it was incumbent upon Nanya to review the prior
testimony and to avoid identifying deposition topics that were the subject of such prior testimony.
26 Nanya clearly failed to satisfy this obligation, as it apparently undertook no effort to identify prior
testimony on these topics either before it served its notice or in connection with the parties’ meet and
27 confer.
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1 CMO ¶ 5(a). To facilitate this general directive, the Court set limits on “further deposition

2 discovery,” directing that the parties “shall not repeat prior lines of questioning” of witnesses. CMO

3 ¶ 5(c)(8).

4 Rambus respectfully submits that the issues raised by topics 35 and 36 have been

5 exhaustively addressed in the prior depositions of Rambus witnesses. Nanya has failed to articulate

6 any respect in which this prior testimony is inadequate, or any previously-unanswered questions that

7 it wishes (or needs) to pursue. 3 In light of these facts, Nanya’s assurance that it will “adhere to [its]

8 obligation to not repeat prior lines of questioning” is meaningless, and its request for a further

9 deposition baseless.

10 CONCLUSION

11 For the reasons discussed above, Rambus respectfully requests that the Court deny

12 Nanya’s motion to compel.

13 DATED: September 24, 2008 MUNGER, TOLLES & OLSON LLP

SIDLEY AUSTIN LLP
14 McKOOL SMITH P.C.
15

16 By: /s/
Rollin A. Ransom
17
Attorneys for RAMBUS INC.
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While denying the existence of prior testimony respecting these topics, Nanya also summarily
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asserts that prior individual testimony, “if any exists,” would not excuse Rambus from producing a
25 Rule 30(b)(6) witness regarding the topics. However, the relevant Rambus witnesses with first-hand
knowledge of investor- and IPO-related communications have been deposed at length on these
26 issues, as described above. Forcing Rambus to provide a Rule 30(b)(6) witness to parrot the
testimony already provided on multiple occasions would do nothing but impose an unwarranted
27 burden on Rambus, in direct contravention of the CMO.
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