Case 5:05-cv-00334-RMW Document 2677 Filed 12/03/2008 Page 1 of 3

MUNGER, TOLLES &. OLSON LLP

ROBERT K. JOHNSONt
ALAN V. FRIEOMANt
RONALD L. OLSONI
RICHARD S. VOLPERT
DENNIS C. BROWNt
ROBERT E. DENHAM
JEFFREY I. WEINBERGER
CARV B. LERMAN
CHARLES D. SIEGAL
RONALD K. ,.,EYER
GREGORY P. STONE
VILMA S. MARTINEZ
BRAD D. BRIAN
BRADLEY S. PHILLIPS
GEORGE M. GARVEY
WILLIAM O. TEMKO
STEVEN L. GUISE'
ROBERT B. KNAUSS
STEPHEN M. KRISTOVtCH
JOHN W. SPIEGEL
TERRY E. SANC~EZ
STEVEN M. PERRY
MARK B. HELM
JOSEPH D. LEE
MICHAEL R. DOYEN
MICHAEL E. SOLOFF
GREGORY D. PHILLIPS
LAWRENCE C. BARTH
KATI-lLEEN M. "'<;DOWELL
GLENN 0 POMERANTZ
RONALO C. HAUSMANN
PATRICK J. CAFFERTY, JR
JAV M. FUJITANI
O'MALLEY M. MILLER
SANDRA A. SEVILLE-JONES
MARK H. EPSTEIN
HENRV WEISSMANN
KEVIN S. ALLRED
BART H. WILLIAMS
JEFFREY A HEINTZ
JUDITH T. KITANO
KRISTIN LINSLEY MYLES
MARC T.G. DWORSKV
JEROME C. ROTH
STEPHEN 0 ROSE
JEFFREY L. BLEICH
GARTH T. VINCENT
II'. PROFESSIONAL CORPORATION
TEO DANE 355 SOUTH GRAND AVENUE SHONT E. MILLER LEE S. TAYLOR
MARK SHINDER MAN MARIA SEFERIAN DEREK J. KAUFMAN
STUART N. SENATOR MANUEL F. CACHAN
MARTI N O. BERN
THIRTY-FIFTH FLOOR KIMBERLV D. ENCINAS
ERIC J. LORENZINI MARCUS J. SPIEGEL
DANIEL. P. COLLINS KATHERINE K. HUANG GABRIEL P. ':iANCHEZ
RICHARD E. OROOVAN LOS ANGELES, CALIFORNIA 90071-1560 ROSEMARIE T. RING BETHANV C. WOODARD
ROSERT L DELL ANGELO JOSEPH J. YBARRA PAULA R. LEVY
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TELEPHONE (213) 683-9100 KATE K. ANDERSON CONNIE Y. CHIANG
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KELLV M. KLAUS SUSAN TRAUB BOYD BlLL WARD
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BURTON A. GROSS TODD J. ROSEN BENJAMIN W. HOWELL
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KRIST'N S. ESCALANTE JASON RANTANEN PAUL J. KATZ
DAVID C. DINIELLI AMY C. TOVAR TYLER A ROOZEN
ANDREA WEISS JEFFRIES 560 MISSION STREET REBECCA GOSE LVNCH JONATHAN M. WEISS
PETER A. DETRE JONATHAN H. BLAVIN ZACHARY KATZ
PAUL J. WATFORD SAN FRANCISCO, CALIFORNIA 94105-2907 JOHN R. GRIFFIN DANIEL A. LVONS
DANA S. TREISTER KAREN J. FESSLER ELISABETH J. NEUBAUER
CARL H. MOOR MICHELLE T. FRIEDLAND TREVOR D. DRYER
DAVID M. ROSENZWEIG
TELEPHONE (415) 512-4000
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DAVID H. FRY LI KA C. M IVAKE HEATHER E. TAKAHASHI
LISA J. DEMSKY FACSIMILE (415) 512-4077 MELINDA EADES LE""OINE KRISTINA L. WlLSON
""lALCOLM A. HEINICKE ANDREW W. SONG KEVIN A. GOLDMAN
GREGORY J. WEINGART VOHANCE C. EDWARDS ROBVN KALt BACON
TAMERLIN J. GODLEY JULIE D. CANTOR BERNARD A. ESKANDARI
JAMES C. RUTTEN SETH GOL.OMAN JENNY M. JIANG
J. MARTIN WILLHITE FADIA RAFEEDIE KHOURY KEITH R.D. HAMILTON, II
RICHARD ST. JOHN JOSHUA P. GROBAN SORAYA C. KELLy
ROHlf K. SINGLA VICTORIA L. BOESCH PATRICK ANDERSON
LUIS LI HAILVN J. CHEN MARK R. YOHALEM
CAROLVN HOECKER LUEDTKE BRAD SCHNEIDER JEFFREY Y. WU
C. DAVID LEE ALEXANDRA LANG SUSMAN
MARK H. KIM
BRETT J. RODDA
December 3, 2008 GENEVIEVE A. cox
MIRIAM KIM
YUVAL MILLER
MARK R. CONRAD
DANIEL R. M<;CARTHY
SEAN ESKOVITZ MISTY M. SANFORD
FRED A. ROWLEY. JR. BRIAN P. DUFF
KATHERINE M. FORSTER RICHARD D. ESBENSHADE!"
AIMEE FEINBERG
BLANCA FROMM YOUNG ALLISON B, STEIN
JOEL D. WHITLEY
SUSAN R. SZABO PETER R. TAFTt
KATHARINE L. HALL
NATALIE PAGES STONE OF COUNSEL
KATHERINE KU
MONlKA S. WIENER KIMBERLY A. CHI
LYNN HEALEY SCADUTO SHOSHANA E. BANNETT E. LEROY TOLLES
RANDALL G. SOMMER TINA CHAROENPONG (1922-2008)

WRITER'S DIRECf UNE

(213) 683-9255
(213) 683-5155 FAX
The Honorable Ronald M. Whyte Gregory.Stone@mto.com
United States District Judge
U. S. District Court, Northern District of California
280 South First Street
Courtroom 6
San Jose, California 95110

Re: Proposed Procedure and Schedule for the Trial of Rambus's Willfulness
Claims in Case Nos. C 05-02298, C 05-00334, and C 06-00244

Dear Judge Whyte:

Mr. Cherensky wrote to you on behalf of all the Manufacturers, on December 1,

2008, proposing to defer pretrial submissions in connection with Rambus's claims of willful
infringement until after the completion of the January 19, 2009 infringement trial. The
Manufacturers' proposal, if adopted, would result in an inefficient use ofthe Court's time, and of
the parties' time, would unnecessarily delay the resolution of this litigation, and would be
prejudicial to Rambus.

Rambus suggests, instead, that immediately following the infringement trial the
Court hear any further evidence on willfulness and conclude the case at that time. 1 To the extent
a witness who testifies during the infringement trial also would give testimony bearing on
willfulness, Rambus proposes that the Court hear the willfulness testimony at the end of the trial
day, outside the presence of the jury. This will avoid the need for witnesses to return to testify a

I Rambus's proposal is consistent with the schedule and trial plan as outlined by the Court on September 24,2008.
Transcript (9/24/08) at 4 ("And then at the end I could take any further evidence on willfulness and conclude the
case.").
 Case 5:05-cv-00334-RMW Document 2677 Filed 12/03/2008 Page 2 of 3
MUNGER. TOLLES & OLSON LLP
The Honorable Ronald M. Whyte
December 3, 2008
Page 2

second time for what will generally be short additional questioning. 2 Further, it will avoid
prejudice to Rambus by ensuring that witnesses who are outside the Court's subpoena power will
be available to testify in both the jury trial of infringement and the non-jury trial of willfulness.

In regard to the potential overlap of witnesses, Rambus anticipates that several of

the witnesses it will call will testify to issues of both infringement and willful infringement. It
would be preferable for these witnesses to testify on only one occasion. Witnesses Rambus is
likely to call who are likely to testify with regard to both sets of issues include Dr. Farmwald,
Professor Horowitz, Mr. Tate and Mr. Karp. Micron's witnesses who, ifthey are called to testify
live,3 will have testimony bearing on both sets of issues include: Steve Appleton, Terry Lee,
Brian Shirley, Todd Farrell, Kevin Ryan, Jeff Koelling, Brett Debenham, and Keith Weinstock.
Samsung's witnesses who may be called to testify live and who may have testimony bearing on
both sets of issues include: J.B. Lee, K.H. Kyung, C.H. Kim, Jay Shim, and Charles Donohoe,
among others. Hynix's witnesses whose testimony would overlap both infringement and
willfulness issues include: J.J. Lee, Y.K. Kim, K.W. Kim, D.S. Chung, and S.B. Kil. Nanya's
witnesses whose testimony might bear on both infringement and willfulness issues include:
Willie Liu, Kai Tseng, Steve Wang, Ken Hurley, and Pei Lin Pai.

If the Manufacturers call some or all of these witnesses during the infringement
trial, it would make sense at the same time to ask them about the willfulness issues, but to do so
outside the presence of the jury. The Court can determine what questioning should occur in the
jury's presence and what should occur outside the jury's presence. The Court will, in any event,
need to make decisions regarding what evidence is admissible in the infringement trial and the
timing of the trial ofthe willfulness issues will not affect this. 4

The Manufacturers have espoused four enumerated arguments that they say
justify delaying the trial of Rambus's willfulness claims until late Spring or Summer. Rambus
responds briefly to each argument.

First, the amount of time that might be saved by not preparing for a willfulness
trial will be more than offset by the waste of time in delaying the final resolution of these cases
and the need to recall a dozen or more witnesses. When multiple issues are tried together, the
argument always can be advanced that first one issue should be tried and decided before the next

2 Rambus notes that, contrary to Mr. Cherensky's suggestion, the Court has not yet decided whether the trial of
damages issues will be bifurcated from liability (see Transcript (9/24/08) at 29-31). Not surprisingly, there will be
witnesses whose testimony will bear on both liability and damages issues and it would be preferable to avoid the
need for those witnesses to have to testify twice as well. Indeed, under the Manufacturers' proposal, some witnesses
would need to testify on at least three separate occasions.
3 Obviously, Rambus cannot compel but a few of the Manufacturers' witnesses to testify live; almost all of them

reside outside the Court's subpoena power. But, if they do testify live, their testimony should be available for the
trial of willful infringement as well as for the infringement trial.
4 The Manufacturers' expressed concern that evidence relevant to willfulness will mistakenly be admitted in the
infringement trial unless the two trials are separated in time (Mr. Cherensky's letter at 2) is flawed. The Court will
be deciding what evidence is relevant to each trial regardless of when the trials occur.
 Case 5:05-cv-00334-RMW Document 2677 Filed 12/03/2008 Page 3 of 3
MUNGER, TOLLES & OLSON LLP
The Honorable Ronald M. Whyte
December 3, 2008
Page 3

is prepared for trial. But most courts do not see this as creating efficiency. Rather, they see it as
creating delay - ultimately to the prejudice of one or more of the parties.

Second, the fact that many motions for summary judgment are pending does not
justify stopping trial preparation. The manufacturers' proposa1- that trial preparation should not
start until all motions are decided - would be paralyzing. Nor does the work involved in trial
preparation justify further delay. The Manufacturers' argument that they have "an enormous
amount of work" to do to prepare to try willfulness is not credible and, in any event, does not
justify delaying trial preparation. Much work has already been done - including in preparing the
Manufacturers' two summary judgment motions on willfulness - and the willfulness issues
involve but a fraction of the work involved in preparing the infringement case for trial.

Third, as noted in footnote 4 above, the Court will need to make evidentiary
rulings throughout the trial. A separation in time between the two trials will have no effect on
these issues or on the Court's ability to make correct rulings.

Fourth, since evidence regarding willfulness will be taken throughout the course
of the infringement tria1- both during that trial and after the jury has left for the day - the parties
should serve and file their proposed findings of fact and conclusions of law before trial
commences on January 19,2009, so that the other side will know how that evidence may fit into
their adversary's case, and so that they can be prepared to meet it. The Manufacturers' proposal
that findings and conclusions be prepared after much or all of the evidence has been admitted is
contrary to this Court's well-considered procedures and presents a significant risk of unfair
surprise, and possibly of inconsistent positions.

In sum, it is Rambus' s position that the case - and all of its issues - should be
prepared for trial now and should be tried as expeditiously as possible. When evidence is
relevant to both jury and non-jury issues, it should be presented to the jury. When a witness
testifying in the infringement case has testimony relevant to the non-jury issues, that witness
should be held over and the testimony relevant only to non-jury issues taken at the end of the
trial day. Other witnesses who have testimony relevant to willfulness, but who do not testify in
the infringement trial, should be heard as soon as the infringement trial ends.

Rambus's counsel will be prepared to address these issues further and to respond
to any questions the Court may have during tomorrow's 3:00 p.m. telephonic hearing unless, of
course, the Court feels the hearing is not necessary.

Respectfully submitted,

At/; ~.·~.I-//~l~
f))-I- .
GrU r P. Stone
GPS:ros
cc: Manufacturers' Counsel