Case 5:05-cv-00334-RMW Document 2055 Filed 08/14/2008 Page 1 of 10

1 Attorney list on signature page

2

7 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION
8

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

10 Plaintiff,
11 v. SAMSUNG’S OPPOSITION TO
RAMBUS’S MOTION TO COMPEL
12 HYNIX SEMICONDUCTOR INC., HYNIX DISCOVERY ON GDDR5 AND
SEMICONDUCTOR AMERICA INC., HYNIX UNDER-DEVELOPMENT DRAM
13 SEMICONDUCTOR MANUFACTURING PRODUCTS
AMERICA INC.,
14 [PUBLIC VERSION]
SAMSUNG ELECTRONICS CO., LTD.,
15 SAMSUNG ELECTORNICS AMERICA, INC., Hearing Date: August 20, 2008
SAMSUNG SEMICONDUCTOR, INC., Time: 8:30 a.m.
16 SAMSUNG AUSTIN SEMICONDUCTOR, Location: Telephonic
L.P.,
17 Judge: Hon. Read Ambler (Ret.)
NANYA TECHNOLOGY CORPORATION,
18 NANYA TECHNOLOGY CORPORATION
U.S.A.,
19
Defendants.
20

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

22 Plaintiff,
23 v.
24 SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA, INC.,
25 SAMSUNG SEMICONDUCTOR, INC.,
SAMSUNG AUSTIN SEMICONDUCTOR,
26 L.P.,
27 Defendants.
28
SAMSUNG’S OPPOSITION TO RAMBUS’S MOTION TO
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1 I. INTRODUCTION
2 Rambus has very recently decided to attempt to add GDDR5 to this case and to seek far-

3 ranging discovery related to it. But Rambus knew about GDDR5 long ago and could have sought

4 to add it to this case, and to seek discovery relating to it, much earlier. Instead, Rambus has

5 waited until the eleventh hour, when Samsung is in the middle of preparing for trial, to demand

6 that Samsung provide extensive discovery related to GDDR5. Because the discovery that

7 Rambus seeks has only marginal, if any, relevance to the issues in this case, the Court should

8 reject Rambus’s attempt to impose burdensome discovery on Samsung at this late date.

9 II. BACKGROUND
10 A. Rambus Knew About GDDR5 Much Earlier, But Did Not Attempt To Add It
To This Lawsuit Until Now
11

12 Rambus knew about GDDR5 long ago, but only recently attempted to add it to this

13 lawsuit or to seek extensive discovery relating to it. GDDR5 was publicly known at least as early

14 as a year ago. See, e.g., Declaration of Dana K. Powers In Support Of Samsung’s Opposition To

15 Rambus’s Motion To Compel Discovery on GDDR5 And Under-Development DRAM Products

16 (“Powers Decl.”), Ex. 1 at 2 [August 15, 2007 JEDEC Press Release] (explaining that “GDDR5 is

17 currently under development in JEDEC (JC-42.3 subcommittee), with an expected specification

18 release date of mid-to-late ’08”). There can be no dispute that Rambus knew about GDDR5 at

19 this time. As early as a year ago, Rambus asked specific questions about GDDR5 at depositions

20 of Samsung employees. See, e.g., Powers Decl., Ex. 2 at 313 [Excerpts from the 8/30/07

21 Deposition of J.B. Lee] REDACTED

22 Despite its knowledge of GDDR5 at that time, Rambus did not serve specific discovery requests

23 directed to it, nor did Rambus attempt to add GDDR5 to this lawsuit.

24 B. Rambus’s Attempt To Add GDDR5 To This Case Is In Contravention Of The

Patent Local Rules
25

26 On August 1, 2008, Rambus served without leave of court a set of final infringement

27 contentions. These contentions purport to add GDDR5 as well as other previously non-accused

28 products to the case. See, e.g., Powers Decl., Ex. 3 at 5-6 [Excerpts From Rambus’s 8/1/08
SAMSUNG’S OPPOSITION TO RAMBUS’S MOTION TO
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1
Disclosure of Asserted Claims and Final Infringement Contentions]. Under Patent L.R. 3-6
2
Rambus was permitted to serve final infringement contentions as of right, but only to the extent
3
that the Court’s claim construction ruling so required. Patent L.R. 3-6 does not permit a party to
4
add new products to a case. Samsung is currently preparing a motion to strike Rambus’s
5
improper final infringement contentions and expects to file it with Judge Whyte this week.
6
C. Rambus Served Its Rule 30(b)(6) Notice Seeking Wide-Open Discovery Into
7 GDDR5 And All DRAM Products Currently Under-Development
8
Although Rambus knew about GDDR5 at least a year ago, Rambus did not demand a
9
30(b)(6) witness or serve document requests directed to GDDR5 until June of this year. See
10
Powers Decl., Ex. 4 [6/19/08 Notice for 30(b)(6) Deposition]; Powers Decl., Ex. 5 [7/2/08 Sixth
11
Set of Requests for Production].
12
Rambus’s 30(b)(6) notice demands that Samsung designate a witness to testify about
13
broad areas relating to GDDR5 and to other DRAM products currently under development. The
14
first topic for which Rambus demands 30(b)(6) testimony is the “conception, design, and
15
development of Samsung’s GDDR5 products.” See Powers Decl., Ex. 4 at 2 [6/19/08 Notice for
16
30(b)(6) Deposition]. The second topic is the “implementation and manufacturing of Samsung’s
17
GDDR5 products.” See id. at 2. The third topic is the “features, capabilities, and operation of
18
Samsung’s GDDR5 products.” See id. at 2. The fourth is the “testing of each of Samsung’s
19
GDDR5 products, during manufacture, production, or otherwise before customer delivery.” See
20
id. at 2. The fifth and sixth topics are the same as the first and third topics, but they ask for
21
Samsung witnesses to testify about “any Samsung DRAM products currently under development”
22
instead of “Samsung’s GDDR5 products.” See id. at 2. The seventh topic is “any efforts by
23
Samsung, either alone or in combination with other companies, to design-around the inventions
24
claimed in the patents-in-suit in its GDDR5 products or any Samsung DRAM products currently
25
under development.” See id. at 2.
26

27

28
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1 D. Rambus Served Its Sixth Set of Requests For Production Seeking A Broad
Range Of Documents Relating To GDDR5
2

3 Rambus also very recently served a set of document requests directed to GDDR5. It was

4 not until July of this year that Rambus sought this discovery. See Powers Decl., Ex. 5 [7/2/08

5 Sixth Set of Requests for Production].

6 Rambus’s document requests are far-ranging and seek from Samsung virtually all

7 documents that relate in any respect to GDDR5. Request No. 157 demands all “licenses, cross-

8 licenses, sub-licenses, or covenants not to sue relating to . . . GDDR5 technology to which

9 Samsung is a party, including all documents relating to royalties or other consideration paid by

10 Samsung or received by Samsung under any such license.” See Powers Decl., Ex. 5 at 9 [7/2/08

11 Sixth Set of Requests for Production]. Request No. 158 demands all “documents relating to the

12 conception, design, development, or implementation of each GDDR5 Product . . . .” See id. at 9.

13 Request No. 159 demands all “documents relating to the manufacture, packaging or assembly of

14 any GDDR5 product . . . .” See id. at 10. Request No. 160 demands all “documents relating to

15 any evaluation, testing, experimentation, or research involving any GDDR5 product . . . .” See id.

16 at 10. Request No. 161 demands all “documents relating to preliminary and final data sheets and

17 schematics for each GDDR5 Product.” See id. at 10. Request No. 162 demands all “documents

18 relating to the history of the development of any GDDR5 product . . . .” See id. at 10. Request

19 No. 163 demands all “documents relating to the theory of operation, method, or manner of

20 operation, operation, function of each GDDR5 Product.” See id. at 10. Request No. 164

21 demands all “documents relating to any demonstaration, evaluation, or presentation of any

22 GDDR5 Product.” See id. at 11. Request No. 165 demands all “documents relating to marketing,

23 promotion, sales, discounts, demonstrations or advertising of each GDDR5 Product . . . .” See id.

24 at 11. Request No. 166 demands all “documents relating to the making, using, selling, offering

25 for sale, or importing into the United States of any GDDR5 Product, including any documents

26 relating to revenues, unit sales, dollar sales, costs, and profits for each GDDR5 Product and the

27 means and agents by which any GDDR5 Product is imported into the United States.” See id. at

28 11. Request No. 167 demands all “documents relating to any agreement or consultation between
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1
Samsung and any third party relating to the design, development, making, testing, importing,
2
marketing, or sales of any GDDR5 Product, or the incorporation of any GDDR5 Product into any
3
other device.” See id. at 11. Request No. 168 demands documents “sufficient to identify all
4
persons who were or are involved in the design, development, making, testing, marketing, or sales
5
of each GDDR5 Product.” See id. at 11. Request No. 169 demands all “documents related to the
6
implementation or incorporation of any GDDR5 Product into any other devices or products.” See
7
id. at 11. Request No. 170 demands “[t]hree samples of every version, generation, or revision of
8
each GDDR5 Product, and documents sufficient to show all differences between each such
9
version, generation, or revision.” See id. at 12. Request No. 171 demands all “documents
10
relating to any license involving any GDDR5 Product, or any license of any patent covering
11
GDDR5 Product, including any cross-license, sublicense, or covenant not to sue.” See id. at 12.
12
Request No. 172 demands “[d]ocuments sufficient to identify all persons employed by Samsung
13
who participated in negotiating any license involving any GDDR5 Product or nay license of any
14
patent covering any GDDR5 Product, including any cross-license, sublicense, or covenant not to
15
sue.” See id. at 12. Request No. 173 demands all “documents relating to any GDDR5 Product
16
provided by Samsung to customers, potential customers, inventors, investment bankers,
17
underwriters, joint venture partners, competitors, and industry associations.” See id. at 12.
18
Request No. 174 demands all “documents relating to any product evaluations, analysis or
19
comparisons of features or functions of any GDDR5 Product with any device or any other device
20
or process.” See id. at 12. Request No. 175 demands all “documents relating to any
21
communications between Samsung [the other defendants, Infineon, or JEDEC] relating to the
22
design, manufacture, using, or selling of any GDDR5 Product.” See id. at 12. Request No. 176
23
demands “[d]ocuments sufficient to identify any GDDR5 Product made, used, imported into, sold
24
or offered for sale in the United States.” See id. at 12. Request No. 177 demands “[d]ocuments
25
sufficient to identify any controller(s), processor(s), or chipset(s) used in conjunction with each of
26
the . . . GDDR5 Products.” See id. at 13. Request No. 178 demands “[d]ocuments reflecting any
27
communications relating to the operation of any . . . GDDR5 Product with any controller(s),
28
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1
processor(s), or chipset(s).” See id. at 13.
2
In summary, at the eleventh hour Rambus has served a comprehensive set of document
3
requests seeking to cover every possible topic and document related in any way to GDDR5
4
products.
5
E. Rambus Did Not Meet And Confer Regarding Its Document Requests
6
Before this motion was noticed by Rambus, counsel for Samsung and Rambus met and
7
conferred over Rambus’s Rule 30(b)(6) Notice of Deposition and agreed to have a hearing set
8
regarding that notice on August 20, 2008. Rambus’s motion, however, seeks to compel on
9
Rambus’s sixth set of document requests, which Samsung had not yet even responded to at the
10
time that Rambus filed its motion, and on which Rambus never even attempted to meet and
11
confer with Samsung. Additionally, Rambus’s motion seeks to compel documents in response to
12
requests for production nos. 33 and 38 to Samsung, which were served by Rambus and responded
13
to by Samsung long ago. See, e.g., Powers Decl., Ex. 6 at 33-34, 38-40 [3/23/07 Responses of
14
Samsung to Rambus’s 1st set of Document Requests]. Rambus made no attempt to meet and
15
confer with Samsung regarding its demand for GDDR5 related documents in response to
16
document request nos. 33 and 38.
17
III. THE ONLY ISSUE PROPERLY BEFORE THE COURT IS RAMBUS’S MOTION
18 TO COMPEL A RESPONSE TO ITS RULE 30(B)(6) NOTICE OF DEPOSITION
19
As explained above, Rambus has not even attempted to meet and confer regarding its old
20
document requests (its 1st set served on 10/13/05), or its new set of document requests (its sixth
21
set, served on July 2, 2008, to which Samsung did not even submit responses before Rambus
22
moved). Because Rambus has utterly failed to meet and confer on either its old document
23
requests or its new document requests, the Court should deny the portions of Rambus’s motion
24
seeking to compel responses to them.
25
IV. RAMBUS IS NOT ENTITLED TO BURDENSOME DISCOVERY HAVING
26 MARGINAL, IF ANY, RELEVANCE
27
Rambus’s motion presents a one-sided view of the law. It is true that that discovery is
28
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liberally allowed under Fed. R. Civ. P. 26. But that does not mean that Rambus is entitled to far-
2
reaching, wide-open discovery that is incredibly burdensome to Samsung and relates to issues
3
that are of only marginal, if any, relevance to the case. And it certainly does not mean that
4
Rambus is entitled to impose these burdens on Samsung at the eleventh hour, when Samsung and
5
Rambus are only one month away from trial, especially given that Rambus was well aware of
6
GDDR5 and could have sought discovery about it at least as early as a year ago.
7
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that in general, “parties
8
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
9
defense . . . .” Rule 26(b)(2)(C), however, provides specific instances in which the Court must
10
limit the frequency or extent of discovery:
11
On motion or on its own, the court must limit the frequency or
12 extent of discovery otherwise allowable by these rules or by local
rule if it determines that:
13
(i) the discovery sought is unreasonably cumulative or duplicative,
14 or can be obtained from some other source that is more convenient,
less burdensome, or less expensive;
15
(ii) the party seeking discovery has had ample opportunity to obtain
16 the information by discovery in the action; or
17 (iii) the burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
18 controversy, the parties’ resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving
19 the issues.
20
Fed. R. Civ. P. 26(b)(2)(C). This Court has often restricted discovery where the burden
21
associated with it clearly outweighed its marginal relevance, especially where broad discovery is
22
demanded shortly before trial. See, e.g., Planned Parenthood Fed. of Am., Inc. v. Ashcroft, No. C
23
03-4872 PJH, 2004 WL 432222, at *1, (N.D. Cal., Mar. 5, 2004) (denying motion to compel
24
production of individual patient records because of tremendous burden of production in light of,
25
among other considerations, the marginal probative value of the requested information, the short
26
time frame before trial, and the enormity of the discovery requests); Meijer, Inc. v. Abbott Labs’,
27
No. C 07-5985 CW, 2008 WL 2503007, at *3, (N.D. Cal., June 18, 2008) (denying motion to
28
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1
compel sales information because the burden of producing it far outweighed the limited potential
2
of the requested data to provide insight into the issues of the case); Lawyers Title Ins. Corp. v.
3
U.S. Fidelity & Guar. Co., 122 F.R.D. 567, 570 (N.D. Cal. 1988) (denying motion to compel
4
production of claims information because the requested information “is too marginal in utility to
5
justify the burden on defendant that complying with the requests as originally framed would
6
entail”).
7
Here, Rambus has had more than ample opportunity to obtain the information by
8
discovery in the action. Rambus knew about GDDR5 at least a year ago, and has since deposed
9
many Samsung witnesses who could have provided testimony about it. Instead of seeking
10
discovery on GDDR5 at that time, Rambus has chosen to attempt to inject GDDR5 into this case
11
at the eleventh hour, which unfairly prejudices Samsung’s ability to prepare for trial.
12
Additionally, the burden that Rambus seeks to impose on Samsung far outweighs the
13
importance of the discovery it seeks in resolving the issues in this case. (Indeed, if the discovery
14
were important, Rambus would have undoubtedly sought it earlier.) The discovery sought by
15
Rambus relating to GDDR5 in this case is of marginal relevance at best.
16
As an initial matter, although Rambus has recently served, improperly, Final Infringement
17
Contentions in an attempt to add GDDR5 to this case as an accused product, Rambus wisely does
18
not attempt to claim that the discovery it is seeking is relevant to whether GDDR5 infringes its
19
patents. Such an argument must fail, since GDDR5 has not been accused in Rambus’s
20
infringement contentions, and Rambus has not sought leave—let alone obtained leave—from the
21
Court to amend its infringement contentions to add a new product to the case at this late date.
22
Instead, Rambus argues that discovery relating to GDDR5 is relevant to other issues, such
23
as willful infringement by earlier products that are accused in this lawsuit, non-infringing
24
alternatives, design around, and the value of Rambus’s patents. (See Mot. to Compel Samsung
25
and Micron to Provide Disc. on Their New DRAM Products, Including GDDR5, and On Their
26
Under-Development DRAM Products at 1). But the discovery that Rambus seeks bears marginal,
27
if any, relevance to these issues.
28
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1
For example, Rambus argues that the discovery it seeks about GDDR5 is relevant to the
2
issue of willful infringement, design-around issues, and non-infringing alternatives because it
3
may turn “out that [Samsung’s] new products do not utilize certain of the features claimed by
4
Rambus’s patents . . . .” (See Mot. to Compel Samsung and Micron to Provide Disc. on Their
5
New DRAM Products, Including GDDR5, and On Their Under-Development DRAM Products at
6
6). But whether Samsung has willfully infringed Rambus’s patents by making or selling a non-
7
accused product is not relevant to whether Samsung willfully infringed Rambus’s patents in
8
making or selling the accused products at an earlier date. Moreover, even if information about
9
Samsung’s new products was somehow relevant to whether Samsung willfully infringed
10
Rambus’s patents when it made or sold its old products, the discovery Rambus seeks is not
11
tailored in any way to this issue. Rambus does not need a Rule 30(b)(6) witness to testify on
12
dozens of wide-ranging topics, nor does Rambus need production of documents in response to a
13
slew of extremely broad document requests, in order to determine what features are present in
14
Samsung’s GDDR5 product.
15
Rambus also argues that the discovery it seeks is relevant to failure to design around, and
16
thus relevant to the value of Rambus’s inventions and the existence of non-infringing alternatives.
17
(See Mot. to Compel Samsung and Micron to Provide Disc. on Their New DRAM Products,
18
Including GDDR5, and On Their Under-Development DRAM Products at 6-7). But Samsung has
19
already stated in its response to Rambus’s discovery requests that it has never believed that it has
20
infringed any valid, enforceable patent claim asserted by Rambus and therefore has made no
21
specific efforts to design around them. See Powers Decl., Ex. 7 at 7 [7/31/08 Objections To Rule
22
30(b)(6) Notice of Deposition]. Rambus thus has no need to force Samsung to prepare witnesses
23
to testify on its broad 30(b)(6) topics or to produce the broad range of documents that it has
24
demanded in its requests for production.
25
V. CONCLUSION
26
The discovery that Rambus is seeking is of marginal relevance to the issues in this case. It
27
certainly is not tailored to correspond to the narrow grounds of relevance that Rambus argues in
28
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its motion to compel. Rather, Rambus is seeking comprehensive discovery relating to GDDR5 as
2
if it were an accused product in this case - it is not. Given that Samsung and Rambus are
3
scheduled to commence trial on September 22, 2008, Samsung should not be forced to provide
4
wide-ranging discovery on GDDR5 at this time, especially because Rambus could have sought
5
this discovery much earlier if it were really important to Rambus’s case.
6

8 Dated: August 13, 2008

9
WEIL, GOTSHAL & MANGES, LLP
10
By: /s/ David J. Healey
11 David J. Healey

12 MATTHEW D. POWERS (Bar No. 104795)

Email: matthew.powers@weil.com
13 EDWARD R. REINES (Bar No. 135930)
Email: edward.reines@weil.com
14
WEIL, GOTSHAL & MANGES LLP
15 201 Redwood Shores Parkway
Redwood Shores, CA 94065
16 Telephone: (650) 802-3000
Facsimile: (650) 802-3100
17
DAVID J. HEALEY (admitted pro hac vice)
18 Email: david.healey@weil.com
ANITA E. KADALA (admitted pro hac vice)
19 Email: anita.kadala@weil.com

20 WEIL, GOTSHAL & MANGES LLP

700 Louisiana, Suite 1600
21 Houston, TX 77002
Telephone: (713) 546-5000
22 Facsimile: (713) 224-9511

23 Attorneys for Defendants

SAMSUNG ELECTRONICS CO., LTD.,
24 SAMSUNG ELECTRONICS AMERICA, INC.,
SAMSUNG SEMICONDUCTOR, INC., and
25 SAMSUNG AUSTIN SEMICONDUCTOR, L.P.

26

27

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