MUNGER, TOLLES & OLSON, LLP
BY: STEVEN M. PERRY, ESQ.
BART H. WILLIAMS, ESQ.
SEAN ESKOVITZ, ESQ.
For Defendant Micron Technology, Inc. and Micron Semiconductor Products, Inc.:
QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP
BY: JON R. STEIGER, ESQ.
WILLIAM C. PRICE, ESQ.
PATRICK M. SHIELDS, ESQ.
JON C. CEDERBERG, ESQ.
KEVIN Y. TERUYA, ESQ.
For Defendant Hynix Semiconductor America, Inc. and Hynix Semiconductor, Inc.:
O’MELVENY & MYERS, LLP:
CHARLES C. LIFLAND, ESQ.
TAD ALLAN, ESQ.
RICHARD W. BUCKNER, ESQ.
[My own comments are italicized and bracketed.]
[Most of this session focused on the privilege issue, i.e., the Rambus briefs that were accidentally posted on the web at some point some time ago. Some of this information has spoliation implications. Some of the source material for the briefs is from the deposition of Steinberg, a former Rambus employee. Rambus believes that these documents, despite the error, remain privileged and confidential and cannot be entered into evidence. Micron asserts that this privilege was pierced and that a waiver is justified.]
Perry stated that there are only portions of the material where he believes there’s a privilege issue, and they’ve raised that to the attention of the defendants. HJM has not read the material and suggests that he cannot ruke on it until he does. But Perry then told HJM he should not be looking at it to determine whether it’s privileged, but rather to determine whether there’s a waiver due to the website.
HJM suggested again that he needs to look at it. Perry responds that this is the essence of their objection under Rule 915 which says that he cannot compel it. HJM agrees, but responds that "the horse is out of the barn."
Perry: "Your Honor, we still have a privilege.,,,,,,we believe that they should stipulate that these two documents that we’re objecting to are, in fact, privileged and that they’re arguing that there’s a waiver."
HJM said to Perry that he was led to believe that on this deposition they had a lot of agreements about things. Is that not true?
Perry: "No, Your Honor, that’s not."
Shields (Micron) acknowledged that a lot of things had been removed that were going to be disagreements but there were still a lot of disagreements.
[This topic is set aside for the moment.]
Price announced that he had some scheduling updates and Perry complained that the schedule keeps changing. Perry wants to know the next witness after McAlexander (to be continued tomorrow). Next live witness will be Professor Willig [an expert witness I think].
Shields said that they were aware that they owed Rambus their witness list for next week. They didn't think that the defense case will take all of next week.
[That is the reason for this seemingly courteous gesture. This means it will be time for Rambus to begin its rebuttal and they are seeking Rambus' disclosure of what they intend to offer in rebuttal].
Perry is not prepared for rebuttal so soon. He was told by the court that the defendants' case would take all of next week.
HJM: [to Perry] "......it may behoove you to make your argument for a rebuttal case sooner than later....
Perry: "Your Honor, a lot of that depends on the upcoming live witnesses, the damages expert that they’re bringing, both economists that they’re bringing, and Mr. McAlexander who’s on the stand."
[Perry clearly suspects that the defendants are trying to catch him unprepared.]
Perry stated that he does not know what these last expert witnesses will come up with concerning damage to the marketplace or antitrust damages and needs time to prepare rebuttal. HJM asked him if the defense rested today, would he have a rebuttal case? Perry replied that he would have some of it----they might try to demonstrate that the categories of documents that are supposedly missing are, in fact, alive and well. They might do I.U. Kim because of the way they tried their case, you’d previously excluding that Rambus tried to use it in our case, e.g., Samsung’s efforts to fix prices of RDRAM with Toshiba and Elpida.
HJM: "What’s that relevant to? What does that rebut that could not be anticipated in your case in chief that came up in their case?"
Perry: "Toshiba. You tied it to Toshiba when we were arguing the I.U. Kim designations that they wanted to put in. You tied it to evidence regarding Toshiba’s support for RDRAM and Samsung’s support for RDRAM."
There's also an Appleton excerpt from an early deposition in 2001 about an issue that they’ve been pushing in their Defense case regarding Micron. In addition, with the remaining experts they might have some rebuttal to. Rambus might need to call back their experts depending upon what they do.
Perry then pointed out that Judge Kramer entered an order about what the expert reports should include, which went beyond the code, and the experts in all areas then prepared voluminous bibles. There’s quite a bit of McAlexander's opinion so far about costs, which Rambus was told was not going to be within the scope of his testimony. He’s offered opinions about power. He’s offered opinions about latency and performance.
Shields thought that their case may finish next Wednesday, but Perry thought that there was no chance of that with two expert economists testifying. HJM finally just said to Perry, "You’ll get enough notice", and that was that.
Then, a little side note from the judge.
HJM: "By the way, I’ve got to jump in right now before I forget because this is the kind of valuable inside information that I give to everyone in hopes that they’ll use it. Juror Number 2 asked if we could take the second break at about quarter to 12:00 or 10 minutes to 12:00 so they can beat the rush for lunch, something I have occasionally tried to do. But for those of you who pander shamelessly to the needs of the jury in face of my relentless pressure, it’s a little tip you can use. I haven’t kept tally, but each side has been guilty of it when they’ve had the opportunity, all sides. So keep that in mind. All right. Now, back to your problems."
(Recess taken at 3:33 p.m.)(Proceedings resumed at 3:54 p.m.)