Case 5:05-cv-00334-RMW Document 2286 Filed 09/24/2008 Page 1 of 5

1
Matthew D. Powers (Bar No. 104795)
2 matthew.powers@weil.com
Steven S. Cherensky (Bar No. 168275)
3 steven.cherensky@weil.com
WEIL, GOTSHAL & MANGES LLP
4 201 Redwood Shores Parkway
Redwood Shores, California 94065
5 Telephone: (650) 802-3000
Facsimile: (650) 802-3100
6
Robert S. Berezin (pro hac vice)
7 robert.berezin@weil.com
Matthew J. Antonelli (pro hac vice)
8 matthew.antonelli@weil.com
WEIL, GOTSHAL & MANGES LLP
9 767 Fifth Avenue
New York, New York 10153
10 Telephone: (212) 310-8000
Facsimile: (212) 310-8007
11

12 IN THE UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION

14
RAMBUS, INC., Case No. C 05-00334 RMW
15
Plaintiff,
16 v. SAMSUNG’S CORRECTED BENCH
BRIEF OPPOSING RAMBUS’S
17 HYNIX SEMICONDUCTOR INC., et al., EXPECTED HEARSAY TESTIMONY
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
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Samsung respectfully submits this bench brief opposing the admission of Mr. Nigel
1
Shepherd’s expected hearsay testimony. Rambus advised Samsung at nearly the close of business
2
on September 19, 2008, that, pursuant to Federal Rule of Evidence 807, it intends to offer
3
evidence through the testimony of one of its will-call witnesses, Mr. Nigel Shepherd, that “the
4
statements Samsung attributes to the Korean auditors were not made by them and that, to the
5
contrary, In-Sang Yoo of the Younghwa Accounting Firm had informed Samsung that as of
6
January 18, 2005, the auditors had not obtained information they needed from Samsung to
7
successfully complete the audit.” See Declaration of Sarah Barrows (“Barrows Decl.”), Ex. A
8
(Email from Burton Gross to Matthew Antonelli and Sarah Barrows, dated September 19, 2008).1
9
I.
10
MR. SHEPHERD’S EXPECTED TESTIMONY DOES NOT MEET THE
11 REQUIREMENTS OF THE RESIDUAL HEARSAY EXCEPTION
12
The Federal Rules of Evidence provide a catchall exception to the hearsay rule embodied by
13
Rule 807 that permits the introduction of hearsay statements possessing circumstantial
14
guarantees of trustworthiness akin to, but not otherwise covered by, the existing exceptions to
15
the hearsay rule.2 Fed. Rule Evid. 807. Before admitting evidence under the residual hearsay
16
exception, the court must find that the evidence satisfies the prerequisites of trustworthiness,
17
notice, necessity, and materiality, and must also determine that the purposes of these rules and
18
the interests of justice will be served by admission of the evidence. Id.; U.S. v. McKinney, 187
19
F.3d 650 (9th Cir. 1999); JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE, § 324 (6th ed.
20

21 1
This expected testimony is threatened in the event that “Samsung trial exhibits 4438 or 4439 are
22 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
23 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.
24 2
Specifically, Rule 807 provides, in relevant part:
25 A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the
26 court determines that (A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than any other evidence
27 which the proponent can procure through reasonable efforts; and (C) the general purposes
of these rules and the interests of justice will best be served by admission of the statement
28 into evidence.
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1 2006). “The residual hearsay exception is to be used only rarely, in truly exceptional cases.”

2 United States v. Phillips, 219 F.3d 404, 419 n. 23 (5th Cir. 2000) (internal citations omitted).

3 “The proponent of the statement bears a heavy burden to come forward with indicia of both

4 trustworthiness and probative force.” Id. (quoting United States v. Washington, 106 F.3d 983,

5 1001-02 (D.C. Cir.), cert. denied, 522 U.S. 984, 118 S.Ct. 446, 139 L.Ed.2d 382 (1997)). The

6 expected testimony of Nigel Shepherd is blatant hearsay, does not constitute an “exceptional

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

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

9 the totality of the circumstances that surround the making of the statement).

10 In applying the residual exception to the hearsay rule, the most important issue is whether
11 the statement offers “equivalent circumstantial guarantees of trustworthiness” to those found in
12 the various other specific hearsay exceptions. JOHN W. STRONG ET AL., MCCORMICK ON
13 EVIDENCE, § 324 (6th ed. 2006). Significantly, the “circumstantial guarantees of
14 trustworthiness” required by Rule 807 are not present where the statement of the declarant is
15 “plainly self-serving and no corroboration [is] available.” Bulthuis v. Rexall Corp., 789 F.2d
16 1315, 1316 (9th Cir. 1985); Boyd v. City of Oakland, 458 F.Supp. 2d 1015 (N.D. Cal. 2006).
17 This is precisely the situation here – according to Rambus, the Rule 807 evidence it “intends to
18 elicit involves a conversation that Mr. Shepherd, the Ernst & Young lead auditor, had with Mr.
19 In-Sang Yoo, the Korean field auditor, concerning statements Mr. Yoo made in late-December
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).
28
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1 2004 or January 2005 to Mr. Gil Young Heo of Samsung about the status of the audit . . .” See

2 Barrows Decl., Ex. B (Email from Burton Gross to Matthew Antonelli, dated September 20,

3 2008.). Importantly, Mr. Shepherd’s conversation took place “recently.”4 As Mr. Gross made

4 clear in his September 19th email, Nigel Shepherd “supervised the work of Mr. Yoo and the

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

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

7 that Mr. Yoo might have been motivated to tell Mr. Shepherd whatever it is that Mr. Shepherd

8 wanted to hear in advance of being called to testify in open court.5 Further, nothing corroborates

9 Mr. Yoo’s hearsay statement. Larez v. City of Los Angeles, 946 F.2d 630, 643 n. 6 (9th Cir.

10 1991) (recognizing that corroborating evidence is a valid consideration in determining the

11 trustworthiness of out-of-court statements).6 Moreover, Rambus could have brought Mr. Yoo to

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

13 In fact, nearly every “recurring factor” in the laundry list of factors found to be “particularly
14 significant to the determination of admissibility” of a Rule 807 statement undermines the
15 trustworthiness of Mr. Yoo’s hearsay statement. JOHN W. STRONG ET AL., MCCORMICK ON
16 EVIDENCE § 324 (6th ed. 2006) (listing “certain recurring factors” supporting and undermining
17 trustworthiness). Specifically, Mr. Yoo’s statement was not made under oath,8 he did not record
18

19
4
Ex. C (September 22, 2008 Rambus v. Samsung Trial Transcript at 157:4-6).
20 5
Particularly where, as here, communication concerning the status of an audit that took place
21 nearly four years prior and is now the subject of litigation where Mr. Shepherd is expected to
testify.
6
22 To the contrary, Trial Exhibits 4438 and 4439 contradict this testimony and are the very reason
Rambus seeks to admit Mr. Shepherd’s hearsay testimony.
7
23 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
24 and Mr. Simon Yoo of Younghwa Accounting Firm on their may-call witness list submitted as
25 part of the parties Joint Pretrial Statement, dated August 27, 2008 (see Barrows Decl., Ex. D) and
Rambus Inc.’s Submission of A Revised Trial Witness List, dated September 15, 2008 (see
26 Barrows Decl., Ex. E).
8
United States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998) (relying, inter alia, on the fact
27 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
28 other things, declarant did not make statement under oath).
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1 his statement,9 the statement was not videotaped,10 Mr. Yoo’s statement was not spontaneous,

2 but made in response to a recent inquiry from Mr. Shepherd11 concerning an event that occurred

3 nearly four years ago,12 and the hearsay statement was not subject to cross-examination at the

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

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

6 (refusing to admit hearsay testimony where neither the declarant nor records of the hearsay

7 assertions were available at trial).

8 II.
9 CONCLUSION
10
For the reasons stated above, the Court should not permit the expected hearsay testimony
11
from Mr. Shepherd.
12
Dated: September 24, 2008 WEIL, GOTSHAL & MANGES, LLP
13
By: /s/ Matthew D. Powers
14 Matthew D. Powers
Attorneys for Defendants
15 Samsung Electronics Co., Ltd.,
Samsung Electronics America, Inc.,
16 Samsung Semiconductor, Inc., and
Samsung Austin Semiconductor, L.P.
17

18

19

20
9
21 U.S. v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993).
10
Sanchez-Lima, 161 F.3d 545, 547 (9th Cir. 1998); State v. Rojas, 524 N.W.2d 659, 663 (Iowa
22 1994).
11
Wright, 479. U.S. at 821-822 (1990) (observing that spontaneity of the statement may indicate
23 trustworthiness); see also United States v. Ellis, 935 F.2d 385, 394 (1st Cir. 1991).
12
Braun v. Lorillard, Inc., 84 F.3d 230 (7th Cir. 1996) (excluding testimony about statement
24 made several years after the facts in question)
13
25 United States v. McPartlin, 595 F.2d 1321, 1350-51 (7th Cir. 1979) cert. denied 444 U.S. 833
(1979) (noting “the degree of reliability necessary for admission is greatly reduced where, as
26 here, the declarant is testifying and is available for cross-examination, thereby satisfying a central
concern of the hearsay rule.”); United States v. Leslie, 542 F.2d 285, 290 (5th Cir. 1976) (“We
27 agree with Judge Learned Hand’s observation that when the jury decides the truth is not what the
witness says now but what he said before, they are still deciding what they see and hear in
28 court.”).
SAMSUNG’S BENCH BRIEF OPPOSING RAMBUS’S CASE NO. C 05 00334 RMW
EXPECTED HEARSAY TESTIMONY CASE NO. C 05 02298 RMW
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