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July 29,2008 SINGAPORE
WARSAW
WASHINGTON, D.C.

BY EMAIL
Hon. Read Ambler
260 Stratford Place
Los Altos, CA 94022

Re: Rambus v. Hynix, et al (5:05-CV -334) and

Rambus v. Samsung (5:05-CV-2298)

Dear Judge Ambler:

This is Samsung's response to the motion that Rambus set for hearing at 12:00
noon tomorrow. Rambus' motion should be denied for the following three independent
reasons.

1. Fed. R. Evid. 612 Does Not Trump The Attorney-Client Privilege

Rambus' motion fudamentally misunderstands Fed. R. Evid. 612 and its

intersection with the attorney-client privilege. Rule 612 does not trup the attorney-
client privilege. Indeed, in enacting Rule 612, the Advisory Committee in 1974 stated
that "the Committee intends that nothing in this Rule be construed as baring the assertion
ofprivilege with respect to writings used by a witness to refresh his memory." Fed. R.
Evid. 612, 1974 Advisory Committee Note. And nothing in the one case cited by
Rambus suggests otherwise.

In the one case cited by Rambus, Nutramex Labs, Inc. v. Twin Labs, Inc., 193
F.R.D. 472 (D. Md. 1998), plaintiffs' employees had reviewed several non-privileged
documents in preparation for their depositions. During the depositions, some of the
employees testified that the documents they reviewed had refreshed their recollection
regarding issues that they testified about. Plaintiff resisted discovery into the identity of
these documents on the ground that identifying them would disclose counsel's work
product in selecting the documents, not on the ground that the documents themselves
were attorney-client privileged communications. The Cour concluded that the work-
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product doctrine, which is not absolute, had to give way to Fed. R. Evid. 612 in these
circumstances. But in the case of one document that itself was protected by attorney
client privilege, the Cour protected it from disclosure. See id. at 474 (excepting one
document from production because it was "clearly exempt from disclosure under
attorney-client privilege").

In cases where deponents review documents containing attorney-client privileged

communications before their depositions, such documents are not discoverable under
Fed. R. Evid. 612 absent some other independent waiver of the attorney-client privilege.
In Suss v. MSX Intern. Eng. Serv., Inc., 212 F.R.D. 159, 163-64 (S.D.N.Y. 2002), for
example, the Cour explained that cases holding that documents must be produced despite
a claim that production would reveal counsel's work product simply do not apply when
the documents are themselves protected by the attorney-client privilege:

In contrast (to work-product claims), materials protected by the attorney-

client privilege are discoverable only upon a showing of waiver. . . .
Rather than weighing the various factors of "need to know" and
"hardship" to the other par (factors implicated by the work-product
doctrine), a cour faced with a claim of attorney-client privilege should
focus on two inquiries: (1) Was the privilege properly invoked? and (2)
Did some action of the pary seeking to invoke the privilege act as a
waiver of the privilege? Applying this analysis to Rule 612, the relevant
inquiry is not simply whether the documents were used to refresh the
witness's recollection, but rather whether the documents were used in a
maner which waived the attorney-client privilege. This could happen, for
example, if privileged communications were disclosed to an individual
outside the privileged relationship. On the other hand, the privilege would
not be lost if the individual were to review his own already privileged
documents. . . . While (Rule 612) indicates that a cour should use
discretion when documents are reviewed before testifying, it does not
purort to change the law with respect to privilege.

Id. (citations omitted). Because there was no independent waiver of the attorney-client
privilege, the Cour ruled that the documents were not discoverable despite Fed. R. Evid.
612. See also In re Managed Care Litigation, 415 F.Supp.2d 1378 (S.D. Fla. 2006)
(holding that a Rule 30(b)(6) deponent who reviewed attorney-client privilege documents
in preparation for his deposition was not required to produce the document under Fed. R.
Evid. 612 because he had done nothing to waive the privilege).
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In this case, there is no dispute that the documents that Rambus is seeking by its
motion are protected by the attorney-client privilege. The sole basis raised in Rambus'
motion for seeking production of these documents is that it is entitled to them under Fed.
R. Evid. 612 because "Mr. Park canot provide adequate testimony as a 30(b)(6)
designee without relying upon the litigation hold notices that he used to prepare for the
deposition. . .." See Rambus Letter Brief at 1-2. Rambus does not dispute that the
documents it seeks are privileged. See id. ("Rambus is not in a position to assess whether
the notices are privileged in the first instance."); see also Rambus Letter Brief, Ex. B
(Samsung's Privilege Log). Rambus does not argue that the notices were revealed to
someone outside the zone of privilege. Rambus does not argue that Mr. Park's testimony
somehow put the notices at issue. Rambus has not even attempted to show that Samsung
has done anything that would constitute an independent waiver of the attorney-client
privilege. As such, Fed. R. Evid. 612 is inapplicable to the documents that Rambus
seeks.

2. Rambus' Complaint Is That Mr. Park Did Not Review The Litigation Hold
Notices Enough For Them To Have An Impact On His Testimony

Even if Fed. R. Evid. 612 somehow truped the attorney-client privilege,

Rambus' motion would stil fail because Rambus has not shown that Mr. Park used the
documents sought by Rambus to testify. As a threshold matter, the pary seeking
documents under Rule 612 must establish that the deponent actually used the documents
to testify. See Nutramax at 458. This ensures that access is limited to documents that
actually had an impact on the witness' testimony. See id; see also MSX, 212 F.R.D. at
165 ("Unless there is some demonstrated impact on the witness' testimony, the witness
canot be deemed to have relied on the document."); Weinstein, Fed. Evid. 2d Ed.
§ 612.04(2Hb) ("Rule 612 requires that, for an adversar to obtain production of a
writing, the witness must have actually relied on the writing to refresh his or her memory
. . . (T)he averse pary is not entitled to see it unless the writing influenced the witness'
testimony.").

Rambus' argument is that Mr. Park could not answer certain questions without
looking at the document retention notices, not that Mr. Park testified on the basis of the
litigation hold notices:

Mr. Park was unable to provide adequate testimony as Samsung's 30(b)(6)

designee regarding, among other things, Samsung's communications to
employees and actions taken by Samsung to retain or preserve documents
related to potential or actual Rambus litigation. Mr. Park testified that he
could not answer questions on topics for which he was designated without
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seeing the litigation hold notices, including but not limited to questions
regarding the dates of litigation hold notices, the recipients, and the
categories of documents to which the litigation hold notice applies.
Because Mr. Park canot provide adequate testimony as a 30(b)(6)
designee without relying upon the litigation hold notices that use used to
prepare for the deposition, Samsung has waived its privilege claims as to
the notices and their production is necessar in the interests of justice.

Rambus Letter Brief at 2 (citations omitted). This is precisely the opposite of what is
required. In order to meet the threshold requirement under Rule 612, Rambus must show
that Mr. Park testified based on his review of the litigation hold notices, not that he failed
to do so. The testimony cited by Rambus and made exhibit C to its letter brief shows that
Mr. Park failed to remember the details of the litigation hold notices that he reviewed
prior to his deposition, not that he testified based on his review of them.

3. An Exercise Of Discretion In This Case Is Unwarranted

In cases where Rule 612's requirements are actually met, disclosure is only
required "if the court in its discretion determines it is necessary in the interests of
justice." Fed. R. Evid. 612. Putting aside the fact that Rambus has failed to meet the
requirements of Rule 612, and putting aside the fact that Rambus has failed to show that
the attorney-client privilege was independently waived by Samsung, this stil is not a case
where the Court should order production of the documents Rambus seeks.

This is not a case where Samsung has attempted to have Mr. Park testify about the
contents of the notices, and then withheld them from production. Indeed, Samsung has
consistently sought to police the privilege and repeatedly instructed Mr. Park not to
disclose the contents of the hold notices. Accordingly, none of the unfair practices that
Rule 612 was designed to prevent are present here. Moreover, because the information
about the documents sought by Rambus that is not privileged has been provided on a
privilege log, Rambus does not need to access Samsung's privileged documents in order
to obtain the non-privileged information it is entitled to.

Rambus does not really argue the "interest of Rule 612 in its
justice" factor of

letter brief, other than to say that it needs access to Samsung's privileged
communications "to discovery facts regarding the actions Samsung took to preserve
documents related to he Rambus litigation" since Mr. Park allegedly was not able to
provide them. Rambus' Letter Brief at 2. Samsung does not agree that Mr. Park was not
prepared for his deposition. But in any event, Rule 612 is not a rule that allows access to
a pary's privileged communications as some sort of a sanction when a witness is not
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prepared to testify. The reality is that Mr. Park's review of the litigation hold notices was
par of a diligent effort to prepare to testify about the non-privileged information that
Rambus is entitled to discover in response to the Rule 30(b)(6) categories on which it
demanded a witness, and Samsung should not be punished for his attempt to do so.