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Case4:10-cv-04340-PJH Document62
Filed06/20/11 Page1 of 211
G. Charles Nierlich Direct: +1 415.393.8239 Fax: +1 415.393.8306 GNierlich@gibsondunn.com Client: 63440-00019
JUNE 20, 2011 VIA HAND DELIVERY & ECF Hon. Joseph C. Spero United States Magistrate Judge United States District Court, N.D. Cal. 450 Golden Gate Avenue San Francisco, CA 94102 Re:
Oracle America, Inc. v. Micron Technology, Inc. and Micron Semiconductor Products, Inc., Case No. 10-cv-04340-PJH (N.D. Cal.)
Dear Judge Spero: Defendants Micron Technology, Inc. and Micron Semiconductor Products, Inc. (Micron) seek an order permitting depositions of up to 20 party witnesses per side, plus any depositions of third parties. In the alternative, Micron proposed a limit of 120 hours of depositions of party witnesses per side. Plaintiff Oracle America, Inc. (Oracle) opposes Microns request to exceed the limit under Fed. R. Civ. P. 30 of 10 depositions for party witnesses per side. Micron and Oracle agree that any limit on the number of party depositions will not affect the number of depositions of third parties. The parties have pursued the Dispute Resolution Procedures set forth in the Courts December 15, 2010 Order Re Discovery Procedure, and having failed to reach a resolution, submit this joint letter brief. Microns Position As in a number of other cases that have been before this Court in recent years, a purchaser of DRAM or products containing DRAM (in this case, Oracle, following its purchase of Sun Microsystems) has brought antitrust claims under both federal and state law against a manufacturer or seller of DRAM, alleging a global conspiracy among various manufacturers or sellers of DRAM between 1998 and mid-2002. See Docket No. 1 (Complaint). Adding to the complexity of allegations concerning a worldwide multi-year price-fixing conspiracy, Oracle/Sun seeks to recover both as a direct purchaser of DRAM and also as an indirect purchaser of DRAM or products containing DRAM. Id. Sun (before Oracle acquired it) previously brought a somewhat similar action against various other manufacturers or sellers of DRAM, but elected not to sue Micron at that time. See Exh. A (Complaint in Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., et al. (Sun)). In Sun and the related opt-out cases, the parties agreed toand this Court ordereda limit of 45 party depositions per side (in addition to any depositions of third parties). Exh. B (Order dated
June 20, 2011 Page 2 January 8, 2008). Ultimately, the defendants in Sun took 16 depositions of Sun personnel and 12 depositions of personnel affiliated with other opt-out plaintiffs. Exh. C (Declaration of G. Charles Nierlich), 2. Micron was not a party to, and did not participate in, any of the defendants fact depositions of Sun personnel in Sun. Id., 3. Indeed, many of the key Sun witness depositions were captioned and noticed only for Sun and not the related opt-out cases to which Micron was a party. Id., 4. Micron and Oracle have agreed to seek to avoid unnecessary duplicative discovery by using, to the extent practicable, the discovery produced in the related MDL litigation and the previous Sun case. See Exh. D (Joint Case Management Statement dated 12/2/2010) at 4. In addition, Micron and Oracle agreed to maximize the use of previous depositions of Micron and Sun employee depositions. Id. Nonetheless, it is crucial to Microns defense to have the opportunity to depose certain Oracle/Sun personnel, focusing primarily on issues relating to Micron, which understandably were not explored thoroughly in the previous Sun litigation to which Micron was not a party. The matters on which Micron may seek non-duplicative deposition testimony here include topics such as: the relationship between Sun and Micron; communications between Sun and Micron personnel with respect to the purchase of DRAM; the relationship between the DRAM Sun purchased from Micron and DRAM available from other sources; pricing determinations with respect to DRAM or products containing DRAM from Micron; product qualification issues relating to Micron DRAM products; Oracles requirements for DRAM from Micron; the extent to which Oracle is claiming damages based on Micron DRAM purchased through third parties; the extent of Oracles alleged damages based on purchases of Micron DRAM; and pricing and other information concerning Suns sales of products containing DRAM to other potential indirect purchaser claimants (for purposes of allocation among downstream purchasers pursuant to Clayworth v. Pfizer, Inc., 49 Cal. 4th 758, 786 (2010)). Even for issues that were addressed to some extent in certain previous depositions, such as Oracles relationship with its third-party external manufacturers, Micron has a number of questions for Oracle witnesses that were not asked in Sun. Micron sent Oracle a list of 25 witnesses that Micron anticipated deposing because it believes they have information that is directly relevant to the claims and defenses here and that was not sufficiently developed in Sun. Micron stated that it would seek to conduct targeted, nonduplicative depositions focusing primarily on matters of particular relevance to Micron and matters not covered in the previous deposition, similar to what this Court had ordered in Sun regarding previously-deposed witnesses. Exh. E (Letter dated 4/26/2011). Oracle declined Microns request. Exh. F (Letter dated 5/19/2011). Micron reiterated that the repeat depositions it wished to take would be limited to non-repetitive questions and targeted issues of interest to Micron, and that some of those depositions might require only a half day. Exh. G (Letter dated 5/26/2011).
June 20, 2011 Page 3 The potential Oracle/Sun deposition witnesses identified by Micron include: Suns account managers for the Micron DRAM procurement account during the relevant period (Michael Riley, Manuel Raposa, Peter Wilson) and their supervisor (Dick Ellis); employees who evaluated using Micron as a supplier and Microns performance (Marissa Peterson, Sonia Syngal); an employee responsible for DRAM pricing strategies (Linda Park); other employees who have knowledge of Suns DRAM procurement specifically relating to Micron (Rebecca Burns, Michael Hoffman, Benjamin Ma); a DRAM supply manager (Kurt Doelling); and employees knowledgeable about topics such as the marketing of Sun memory products (David Tillman), the adoption of dynamic bidding event auctions (Kevin Carroll) and administration of those auctions (Scott Wong), document collection and preservation (Lisa Ripley), sales of Sun products (Warren Mootrey), qualification of DRAM suppliers and the types of memory used by Sun, including Micron custom products for Sun (Christopher Dewar, Neil Duncan, Clement Fang, David Jeffrey), Suns transactional purchase data (Alwin Sulaiman), Suns use of legacy DRAM (Alistair Grant), and Suns relationship with external manufacturers, including managing the relationships between Micron, Sun, and the external manufacturers (Christopher Maxwell, Kenneth Gibbons). Micron could have deposed all of these Sun personnel in the previous Sun litigation without running afoul of the 45 party deposition limit there, but Sun chose not to name Micron in that case. Suns decision to strategically delay its claims against Micron should not deny Micron an opportunity to develop evidence in defense of the claims in the present case. During the meet-and-confer process, Oracle/Sun objected that witnesses deposed in Sun should not be deposed in this action. But this Court expressly allowed non-duplicative questioning of witnesses in Sun who had been deposed in the MDL. See Exh. B at 1 (any limitation on depositions in the opt-out cases does not prohibit non-repetitive deposition questioning of witnesses already deposed in the MDL litigation.). The same rule should apply here, and it makes good sense: while the parties should work to be reasonably efficient and seek to avoid unnecessary and duplicative questioning, a party such as Micron should not be penalized or limited by the questioning and strategic decisions made by some of its competitors in a previous case to which Micron was not a party. The reasonableness of Microns request for a limit of 20 depositions of party witnesses is also evident in light of the magnitude of this case. Suns damages expert in Sun asserted total single damages of $800 million, and Oracle seeks treble damages on a joint-and-several basis here, suggesting claims potentially exceeding $2 billion. See Docket No. 1 (Complaint), 126; Exh. H (Excerpt of Report of Halbert L. White, Figure 16). Indeed, Oracle/Sun has previously argued for a substantially greater number of depositions than Micron seeks here. In conjunction with a joint letter brief regarding the number of depositions in Sun, Oracle/Sun proposed that it be allowed to take 105 30(b)(1) depositions of defendants, including 15 depositions of numerous defendants that had been deposed in the MDL.
June 20, 2011 Page 4 Exh. I (Plaintiffs Prop. Order submitted with Sept. 4, 2007 Letter Brief) at 2-3.1 Sun also sought 168 hours of 30(b)(6) depositionsthe equivalent of another 24 depositions. Oracle/Suns request for the equivalent of 129 depositions helps to demonstrate how reasonable Microns request for 20 party depositions is. Microns request here is not only reasonable, but also authorized and appropriate under the Federal Rules. If a party seeks leave of court to conduct more than ten depositions, the court must grant leave [to take additional depositions] to the extent consistent with Rule 26(b)(2). Fed. R. Civ. P. 30(a)(2). Rule 26(b)(2) limits discovery where: (a) the discovery sought is unreasonably cumulative or duplicative or can be obtained from a source that is more convenient, less burdensome, or less expensive; (b) the party seeking discovery has had ample opportunity to obtain the information through discovery; or (c) the burden or expense of the discovery sought outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake, and the importance of the discovery in resolving those issues. Fed. R. Civ. P. 26(b)(2)(C). Here, ample reasons exist to permit 20 depositions of party witnesses. First, the additional depositions that Micron requests are not unreasonably cumulative or duplicative, nor can the information be obtained from a source that is more convenient, less burdensome or less expensive. Fed. R. Civ. P. 26(b)(2)(C)(i). The fact that certain Oracle/Sun witnesses were deposed in earlier litigation should not prevent Micron from seeking nonduplicative testimony in this case. Micron had no opportunity to attend, let alone ask questions at, the Oracle/Sun witness depositions in Sun. Microns defense should not be limited by the strategic decisions and questions posed by different defendants (who, it should be noted, are or were Microns competitors). Moreover, Oracle cannot establish an unreasonable burden or risk of excessive duplication here. Additional depositions to obtain information about issues central to Oracles claims and Microns defense are necessary for Micron to mount an adequate defense. See C & C Jewelry Mfg., Inc. v. West, 2011 WL 767839, at *2 (N.D. Cal. Feb. 28, 2011) (permitting additional depositions where testimony sought would not be unreasonably cumulative or duplicative and the deponents possessed relevant information relating to potential defenses and claims). In addition, the complexity of this case warrants the additional depositions Micron seeks. See Martinez v. California, 2008 WL 5101359, at *2 (E.D. Cal. Dec. 3, 2008) (holding that granting leave for additional depositions would prevent delays at both the dispositive motion stage and trial and that additional depositions were warranted due to the complex nature of Plaintiffs [case] and the number of individuals involved [].); Lent v. Signature Truck Sys., Inc., 2010 WL 1707998, at *4 (W.D.N.Y. Apr. 26, 2010) (permitting additional depositions due to the
1 Oracles argument that Sun also involved other opt-out cases, and therefore required far more
depositions, is something of a red herring. Of the six opt-out plaintiffs, Suns alleged DRAM damages accounted for 85% of all opt-out plaintiffs alleged damages. Exh. H (Excerpt of Report Halbert L. White, Figure 16).
June 20, 2011 Page 5 complex issues and multiple defendants). And, of course, Micron has already committed to the Court to seek to avoid unnecessary duplicative discovery. Second, Micron has not had ample opportunity to conduct this discovery; indeed, Micron was not even a party in Sun and thus could not have questioned these witnesses previously. See Fed. R. Civ. P. 26(b)(2)(C)(ii). In addition, it should be noted that some witnesses were not deposed before but have critical information that was of no moment to the defendants in Sun. Moreover, Oracles counsel has stated in meet-and-confer discussions concerning Oracles written discovery responses that Oracle believes certain information Micron requested by interrogatories or other written discovery is more appropriately addressed through depositions. Exh. C, 5. Third, in a case where a plaintiff purports to seek over two billion dollars, the likely benefit of allowing Micron an opportunity to depose a few additional witnesses far outweighs the burden and expense of the proposed discovery. Fed. R. Civ. P. 26(b)(2)(C)(iii). Microns focused depositions will impose minimal burden on Oracle. Indeed, Micron has informed Oracle that it believes that for some witnesses who were deposed in earlier litigation, those depositions may not even last a full day. Exhs. E, G. Finally, [w]hile some Courts require a party to exhaust the ten-deposition limit before seeking to take more, that is certainly not true in every case. C & C Jewelry Mfg., Inc. 2011 WL 767839, at *2 (finding exhaustion unnecessary where the witnesses had relevant knowledge and it was not apparent that the testimony sought would be unreasonably cumulative or duplicative). Given the complexity of this case, it would not only be inefficient to require an additional motion for each additional deposition sought, but also prejudicial to require [Micron] to choose the ten depositions to take before they know whether they will be granted more. Del Campo v. Am. Corrective Counseling Servs., Inc., 2007 WL 3306496, at *6 (N.D. Cal. Nov. 6, 2007). A limit of ten depositions of Oracle/Sun personnel, plus depositions of third parties, would unduly limit Microns ability to prepare and present its defense in this large, complex case. Micron has shown good cause and requests that the Court permit each side to take up to 20 depositions of the other sides party witnesses (including a reasonable period for any 30(b)(6) testimony), with the reasonable limitation that, as in Sun, the parties be allowed to take nonrepetitive deposition questioning of witnesses already deposed. Also as in Sun, Micron requests that the Courts order should permit additional third-party depositions either side wishes to take. See Exh. B (Order) at 1-2. Plaintiffs Position Micron has notand cannotmake the particularized showing of need required to exceed, much less double, the presumptive limit on depositions under Fed. R. Civ. P. 30. This case involves only a single plaintiff and essentially a single defendant, and Micron itself has
June 20, 2011 Page 6 acknowledged that the issues in this case already have been covered in extensive discovery in related cases to which Micron was a party. This voluminous discovery is available to the parties here and includes more than 200 depositions, 16 of which were of the plaintiff in this case, Oracle America, Inc.2 Contrary to its prior agreement not to duplicate this discovery,3 Micron now seeks 20 additional depositions of all the same employees, plus four more, of the very same plaintiff regarding, by its own admission, the same claims regarding the same wrongful conduct.4 The only justification Micron has ever offered for this extraordinary request is a claim that this is a complex case with a lot of money at stake. This generic claim falls far short of meeting Microns burden, and it stands in stark contrast to the positions Micron took in the prior cases that produced much of the discovery it now seeks to duplicate. Accordingly, this Court should deny Microns motion with prejudice. A. Micron has failed to make a particularized showing of need for more than ten depositions of Oracle.
Microns motion is very similar to a motion Judge Hamilton denied in AuthenTec, Inc. v. Atrua Techs., Inc., Case No. 08-cv-1423 PJH, 2008 WL 5120767 (N.D. Cal. Dec. 4, 2008), and this Court should reach the same result here. In that case, Judge Hamilton held there that [a] party seeking to exceed the presumptive number of depositions must make a particularized showing of the need for the additional discovery. Id. at *2 (citing Bell v. Fowler, 99 F.3d 262, 271 (8th Cir. 1996) (affirming district courts refusal to grant leave to take additional depositions 2 On February 15, 2010, Oracle USA, Inc. merged with and into Sun Microsystems, Inc. (Sun). Sun, the surviving corporation, was then renamed Oracle America, Inc. As the Court may recall, in Sun Microsystems, Inc. v. Hynix Semincondutor, Inc., et al., Case No. 06cv-01665-PJH (N.D. Cal.) (the Sun Case), Sun brought suit against a number of its DRAM suppliers based on the same price-fixing claims set forth in this case. Sun and Micron had entered into a tolling agreement regarding Suns price-fixing claims. The earlier Sun Case settled on the eve of trial. On September 24, 2010, Oracle, Suns successor in interest, filed this action against Micron, Suns last remaining DRAM supplier to have not compensated Sun for its admitted unlawful conduct. 3 Micron previously represented to the Court that it will avoid unnecessary duplicative discovery by using, to the extent practicable, the discovery produced in related litigations. See Joint Case Management Statement at 4 (Doc. No. 27). 4 Micron acknowledged previously that [t]here is substantial overlap between the various plaintiffs claims in all the DRAM civil litigation before this Court. Significantly, the various plaintiffs claims appear to be based upon substantially similar alleged wrongful conduct and will therefore likely involve overlapping witnesses and documentary evidence. See Defendants Joint Proposal for Revised Pre-Trial & Trial Schedule for All Actions, In re Dynamic Random Access Memory (DRAM) Antirust Litig., Case No. 02-md-01486-PJH (N.D. Cal. Aug. 18, 2006), at 3 (Doc. No. 1030).
June 20, 2011 Page 7 where movant presented no good reason why the additional depositions were necessary) and Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 187 F.R.D. 578, 586 (D. Minn. 1999) (denying a demand for additional depositions for failure to make such a particularized showing)) (emphasis added). In denying the defendants motion for 24 depositions in AuthenTec, Judge Hamilton observed that it was a run-of-the-mill patent case with one plaintiff and one defendant not a complex class action with numerous plaintiffs and defendants. 5 Id. Thus, AuthenTec was much like this case in its simplicity. Additionally, Judge Hamilton found in AuthenTec that the defendant failed to show why the information sought from each of the 24 potential deponents cannot be obtained by less burdensome means. Id. (emphasis added). Likewise, Micron has identified some 26 Oracle employees for depositions in this case, and it has never once made any effort to show why it needs to depose eachor anyof those particular individuals. Micron, instead, has merely cited the purported complexity of this case and the amount of Oracles damages claim from the prior Sun Case, but such generic claims are inadequate to satisfy Microns required particularized showing. Microns reliance on Oracles damages claim is especially misplaced. Although the amount in controversy may be a relevant factor to consider under Rule 26(b)(2)(C) in weighing the cost of the discovery sought against the anticipated benefit, the mere dollar amount at issue says absolutely nothing about whether the discovery sought is needed for a particularor anypurpose, which is the critical showing Micron must make and has, in fact, failed to make for each of the 20 depositions it seeks.
5 The defendant in AuthenTec relied heavily on Del Campo v. American Corrective Counseling Servs., Inc., 2007 WL 3306496 (N.D. Cal. Nov. 6, 2007), in which the court granted a motion for more than ten depositions. See 2008 WL 5120767, at *2. In denying the defendants motion in AuthenTec, Judge Hamilton emphasized that in Del Campo [t]here were five named plaintiffs and eleven defendants remaining at the time of the cited opinion, and the case was a putative class action (seeking to certify a state-wide class going back more than a decade) in which the plaintiffs argued that they required more than 10 depositions to establish typicality and commonality among the plaintiffs in the ten to thirty counties in which defendants had contracts with the District Attorneys. Id. (emphasis added); 2007 WL 3306496, at *5. Judge Hamilton found that no such circumstances were present in AuthenTec, and neither are they present here. Id. Del Campo further undermines Microns motion because, in that case, the court permitted the five named plaintiffs to collectively take a total of 23 depositions, which included 11 depositions of the 11 defendants. 2007 WL 3306496, at *5. Thus, in a complex, state-wide class action involving 16 parties, the court permitted in total only three more depositions than Micron seeks in this case against a single plaintiff (with more than 200 depositions already completed), and the 23 depositions the court permitted there included a dozen third-party depositions, whereas Micron seeks all 20 depositions of Oracle alone.
June 20, 2011 Page 8 The procedural posture of the parties in AuthenTec further demonstrates just how meritless Microns motion is. The defendant in AuthenTec had asserted counterclaims against the plaintiff, which added at least some additional complexity to that case and presumably some need for the defendant to seek discovery from the plaintiff to affirmatively prove up those claims. Id. No such complexity or need exists for Micron here, as it has not asserted any counterclaims against Oracle. Thus, Micron cannot make even the showing Judge Hamilton found inadequate in AuthenTec. In contending that it somehow needs 20 more depositions of Oracle, Micron attempts to brush aside the 16 Oracle depositions taken in the Sun Case by arguing that it did not directly participate in those depositions because it was not a defendant in that case and therefore Micron itself has not yet deposed any Oracle employees. But this fact only further undermines Microns motion. In finding that the defendant had failed to make the required showing in AuthenTec, Judge Hamilton emphasized the fact that the defendant had not yet taken any depositions of the plaintiff in that case. Id. Judge Hamilton found that the defendant, thus, had failed to satisfy the exhaustion rule by failing to exhaust the ten depositions it was permitted under Rule 30 prior to filing its motion for more depositions. Id. (citing Archer, 187 F.R.D. at 586 ([A] party should appropriately exhaust its current quota of depositions, in order to make an informed request for an opportunity to depose more witnesses, before seeking leave to depose a legion of others.)). Judge Hamilton, in enforcing this rule, aptly concluded: Having taken not a single deposition to date, [the defendant] cannot possibly know what information it needs but cannot obtain from its 10 permitted depositions. The same is true of Micron here. Indeed, Micron would have this Court simply presume that it will be unable to obtain the information it needs from fewer than 20 depositions, and thus Micron seeks to turn Rule 30 on its head. This Court is to presume under Rule 30 that ten depositions is sufficient unless and until Micron can demonstrate otherwise, which it cannot possibly do at this stage, just as Judge Hamilton concluded in AuthenTec. Moreover, the presumption Micron seeks this Court to reach is especially inappropriate here, where Micron has more than 200 depositionsincluding 16 of Oraclealready available to it. B. Microns position is inconsistent with its previous positions regarding the appropriate number of depositions in prior related cases involving Oracle.
The impropriety of Microns motion is further demonstrated by Microns own prior arguments before this Court on the very same issue involving the same plaintiff regarding the same claims and same wrongful conduct. The Sun Case effectively was consolidated with five other opt-out cases before this Court.6 Micron was a defendant in three of those casesand a
6 Unisys Corporation v. Hynix Semiconductor, Inc., et al., Case No. 07-2915 PJH; Jaco Electronics, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 06-1212 PJH; Edge Electronics, Inc. v. Hynix Semiconductor, Inc., et al. Case No. 07-1207 PJH; All American Semiconductor,
June 20, 2011 Page 9 named conspirator in all six, including the Sun Caseand directly participated in the coordinated discovery proceedings, including depositions of plaintiffs. In September 2007, Micron and its co-defendants unilaterally submitted in those prior cases a proposed order to this Court seeking a limit of 45 depositions. See Proposed Order Re: Discovery Plan, Sun Case, at 1 (N.D. Cal. Sept. 19, 2007) (Doc. No. 187). This Court adopted that limit. See Order re Entry of Discovery Plan Order, Sun Case (N.D. Cal. Jan. 8, 2008) (Doc. No. 273) and Order Re: Discovery Plan, Sun Case, at 2 (N.D. Cal. Jan. 8, 2008) (Doc. No. 274). This meant that ten defendants collectively could take no more than 45 depositions of six separate plaintiffs, which equaled fewer than seven depositions of each plaintiff, i.e. fewer than that presumptively permitted by Rule 30 and less than a third of what Micron alone seeks of Oracle alone here. And this was before a single Oracle employee had been deposed. Microns prior position thus stands in stark contrast to the 20 depositions it seeks of Oracle now, on top of the 16 already completed in the Sun Case. The defendants ultimately took 16 depositions of Oracle witnesses. The fact that so many defendants, which were required to share time in each deposition in the prior cases, evidently needed no more than 16 Oracle depositions demonstrates the absurdity of Microns insistence now that it alone needs 20 depositions of Oracleand this is, again, on top of the 16 already taken. Micron thus effectively seeks a total of 36 depositions of Oracleonly nine fewer than the number this Court permitted for all six plaintiffs and all ten defendants in the prior cases.7 Microns motion is inconsistent with its positions in the prior related cases in an even more fundamental way. Microns entire motion hangs on the fact that Micron itself elected not to participate in the 16 prior Oracle depositions because Micron was not a defendant in the Sun Case, even though it was a named conspirator and had an existing tolling agreement with the plaintiff in that case. Directly contrary to this argument, in insisting on a limit of 45 depositions for six plaintiffs to take of ten defendants in the prior cases, Micron heavily emphasized at that time the number and substance of the depositions of Micron and other defendants taken by other plaintiffs in the In re DRAM Litigation well before the Sun Case ever existed. Thus, Micron saw no problem at that time with limiting Oracle and the other opt-out plaintiffs to far fewer depositions than they were presumptively permitted under Rule 30 even though none of those Inc. v. Hynix Semiconductor, Inc., et al., Case No. 07-1200 PJH; DRAM Claims Liquidation Trust v. Hynix Semiconductor, Inc., et al., Case No. 07-1381 PJH. 7 The unreasonableness of Microns request for 20 more depositions of Oracle is highlighted by the fact that in the Sun Case all the defendants there collectively requested 20 depositions of Oracle. That request was made by some half dozen defendantsnot just oneand it was before 16 Oracle depositions were completed. Moreover, the defendants actually took four fewer depositions, thus demonstrating the significance of the exhaustion rule applied by Judge Hamilton in AuthenTec. 2008 WL 5120767, at *2.
June 20, 2011 Page 10 plaintiffs had had any opportunity to participate in the depositions that preceded the filing of their cases. Now, Micron self-servingly argues the exact opposite, contending that its deliberate absence from the prior Oracle depositions somehow warrants repeating every one of those 16 depositions, plus permitting four more. Micron cannot have it both ways. It should be held to its own prior position. C. Conclusion
Micron has made absolutely no showingmuch less a particularized onethat it has any need for any information that is not available in the more than 200 depositions, millions of pages of documents, and hundreds of written discovery responses presently available to Micron regarding the same claims and same wrongful conduct involving the same plaintiff and same conspirators. During the prior Oracle depositions, the witnesses provided extensive, detailed testimony relating to the companys procurement and use of DRAM and their knowledge of the admitted conspirators, including Micron. One of Oracles Rule 30(b)(6) witnesses was deposed for three days on numerous, detailed topics.8 Courts have refused to permit additional depositions under these circumstances, where the moving party has access to all of the discovery, inclusive of deposition transcripts, which was amassed in [a prior related] litigation, and which involved issues which overlap certain of those presented here. See Archer, 187 F.R.D. at 586587. This Court should reach the same result here. This case is far from complex given that core issues of liability are undisputed. Micron has, pursuant to an amnesty agreement with the U.S. Department of Justice, admitted its participation in the price-fixing conspiracy at issue in this case, and its co-conspirators have pleaded guilty to participating in that conspiracy and successfully fixing DRAM prices.9 Thus, the only real issues in this case are whether Oracle was injured by Microns admitted conspiracy, and if so, by how much. Micron could not possibly need anything close to 36 depositions of Oracle to address these two basic issues, which turn on the conduct of Micron and its admitted co-conspirators, not Oracle, the victim here. Oracle repeatedly proposed during the parties several meet-and-confers that Micron first exhaust its ten depositions before insisting on additional depositions, per the exhaustion rule. AuthenTec, 2008 WL 5120767, at *2. Micron refused without reason. Having needlessly burdened this Court and Oracle with this issue now, it should not be permitted to do so again later. This Court should deny Microns motion for the reasons sets forth above and should do so with prejudice.
8 A set of the Rule 30(b)(6) deposition notices served on Sun are attached hereto as Exhibit AA. 9 A copy of Microns amnesty agreement and the guilty pleas of Microns admitted coconspirators are attached hereto as Exhibit BB.
June 20, 2011 Page 11
Respectfully submitted, Joel S. Sanders G. Charles Nierlich Michael Cecchini Counsel for Micron Defendants /s/ G. Charles Nierlich Jerome A. Murphy Matthew J. McBurney Suzanne E. Rode Counsel for Oracle /s/ Matthew J. McBurney
101095466.11
EXHIBIT A
Case4:10-cv-04340-PJH Document62 Filed06/20/11 Page13 of 211 Case4:06-cv-01665-PJH Document127 Filed05/04/07 Page1 of 39
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Kent A. Gardiner (pro hac vice) Kathryn D. Kirmayer (pro hac vice) Jerome A. Murphy (pro hac vice) CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: 202-624-2500 Facsimile: 202-628-5116 E-mail: kgardiner@crowell.com kkirmayer@crowell.com jmurphy@crowell.com Daniel A. Sasse (CA Bar No. 236234) Christine E. Cwiertny (CA Bar No. 222098) CROWELL & MORING LLP 3 Park Plaza, 20th Floor Irvine, California 92614 Telephone: 949-263-8400 Facsimile: 949-263-8414 E-mail: dsasse@crowell.com ccwiertny@crowell.com Counsel for Plaintiffs Sun Microsystems, Inc. and Unisys Corporation UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SUN MICROSYSTEMS, INC., a California corporation, and UNISYS CORPORATION, a Delaware corporation, Plaintiffs, v. HYNIX SEMICONDUCTOR, INC., a Korean corporation, HYNIX SEMICONDUCTOR AMERICA INC., a California corporation, MOSEL VITELIC INC., a Taiwanese corporation, MOSEL VITELIC CORPORATION, a California corporation, NANYA TECHNOLOGY CORPORATION, a Taiwanese corporation, NANYA TECHNOLOGY CORPORATION, USA, a California corporation, WINBOND ELECTRONICS CORPORATION, a Taiwanese corporation, WINBOND ELECTRONICS CORPORATION AMERICA, a Delaware corporation, ELPIDA MEMORY, INC., a Japanese corporation, ELPIDA MEMORY (USA) INC., a Delaware corporation, MITSUBISHI ELECTRIC CORPORATION, a Japanese corporation, MITSUBISHI ELECTRIC AND Case No. C 06-01665 PJH (Consolidated) AMENDED CONSOLIDATED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR (1) VIOLATION OF THE SHERMAN ACT PURSUANT TO 15 U.S.C. 1 (2) VIOLATION OF CALIFORNIAS CARTWRIGHT ACT PURSUANT TO 16700 ET SEQ. OF CAL. BUS. & PROF. CODE (3) VIOLATION OF CALIFORNIAS UNFAIR COMPETITION ACT PURSUANT TO 17200 ET SEQ. OF CAL. BUS. & PROF. CODE DEMAND FOR JURY TRIAL
AMENDED CONSOLIDATED COMPLAINT OF SUN & UNISYS (C06-01665 PJH)
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ELECTRONICS USA, INC., a Delaware corporation, and MITSUBISHI ELECTRIC EUROPE B.V., a Netherlands corporation, INFINEON TECHNOLOGIES AG, a German corporation, INFINEON TECHNOLOGIES NORTH AMERICA CORPORATION, a Delaware corporation, and DOES 1 through 5, Defendants.
Plaintiffs Sun Microsystems, Inc. (Sun) and Unisys Corporation (Unisys) (collectively, Plaintiffs), for their Amended Complaint against Hynix Semiconductor, Inc.; Hynix Semiconductor America, Inc.; Mosel Vitelic Inc.; Mosel Vitelic Corporation; Nanya Technology Corporation; Nanya Technology Corporation (USA); Winbond Electronics Corporation; Winbond Electronics Corporation America; Elpida Memory, Inc.; Elpida Memory (USA), Inc.; Mitsubishi Electric Corporation; Mitsubishi Electric and Electronics USA, Inc.; Mitsubishi Electric Europe B.V.; Infineon Technologies AG; Infineon Technologies North America Corporation; and Doe defendants 1 through 5 (collectively, Defendants), allege as follows: A. Nature of Action 1. Plaintiffs bring this action to recover damages caused by long-standing
collusion by suppliers of dynamic random access memory computer chips (DRAM). As described in more detail below, in June 2002 the United States Department of Justice (the DOJ) announced that it had begun to investigate a conspiracy among the worlds DRAM suppliers. During the conspiracy, the DRAM suppliers conspired to control production capacity, raise prices or slow their decline, allocate customers, and otherwise unlawfully overcharge their DRAM customers. During that same period, Plaintiffs, both American companies, purchased several billion dollars worth of DRAM from the conspirators and were substantially injured in U.S. commerce. 2. As a result of the DOJs investigation, five of the worlds largest DRAM
suppliers have now admitted their involvement in the conspiracy, including Hynix Semiconductor, Inc.; Infineon Technologies AG; Elpida Memory, Inc.; Micron 2
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Technology, Inc.; and Samsung Electronics Co., Ltd. Two of these companies Micron Technology, Inc. and Samsung Electronics Co., Ltd. are not named as Defendants in this action, but, along with various other individuals, partnerships, corporations, and associations (collectively, Co-conspirators), nevertheless participated in the DRAM conspiracy. Micron Technology, Inc. obtained amnesty from criminal prosecution by being the first to admit its participation in the illegal cartel. Infineon Technologies AG, Hynix Semiconductor, Inc., Elpida Memory, Inc., and Samsung Electronics Co., Ltd. have agreed to enter guilty pleas and pay fines based on their involvement in the conspiracy. In doing so, Elpida Memory, Inc. admitted that it conspired with an unnamed DRAM manufacturer to rig a bid for a DRAM lot sold to Sun. A senior official at Elpida Memory (USA), Inc. also admitted to conspiring with respect to the same bid, as well as another bid submitted to Sun. Furthermore, senior officials at Micron, Hynix, Samsung, and Infineon have pled guilty to colluding with their competitors to fix and raise DRAM prices. The DOJ investigation is ongoing, and additional guilty pleas are expected. 3. Plaintiffs now seek treble damages and injunctive relief to remedy the
injuries they sustained as a result of the cartels illegal activities beginning in or about January 1997, the exact date being unknown to Plaintiffs, and continuing thereafter at least through 2002 (the Cartel Period). B. Jurisdiction and Venue 4. Plaintiffs bring this action pursuant to Sections 4, 12, and 16 of the Clayton
Act, 15 U.S.C. 15, 22, and 26 (2000 suppl. 2), for treble damages and injunctive relief, as well as reasonable attorneys fees and costs, with respect to the injuries they have sustained arising from Defendants and their Co-conspirators violations of Section 1 of the Sherman Act, 15 U.S.C. 1 (2000 suppl. 2). 5. Plaintiffs also bring this action pursuant to Section 16750(a) of the
California Business and Professions Code, for injunctive relief and treble damages that Plaintiffs sustained due to Defendants and their Co-conspirators violations of Section 16700 et seq. of the California Business and Professions Code (the Cartwright Act). 3
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Plaintiffs claims also are brought pursuant to Sections 17203 and 17204 of the California Business and Professions Code, to obtain restitution from and an injunction against Defendants due to their violations of Section 17200 et seq. of the California Business and Professions Code (the Unfair Competition Act). 6. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331
and 1337(a). This Court has supplemental jurisdiction over Plaintiffs state law claims pursuant to 28 U.S.C. 1367(a). In addition, this Court has jurisdiction over Plaintiffs claims pursuant to the Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a (2000 suppl. 2) (the FTAIA), in that Defendants and their Co-Conspirators conduct had a direct, substantial, and reasonably foreseeable effect on U.S. domestic commerce, and such effect gave rise to Plaintiffs antitrust claims. 7. Venue is proper in this judicial district pursuant to 15 U.S.C. 15 and 22,
and 28 U.S.C. 1391(b), (c), and (d), in that at least one Defendant resides in this judicial district or is licensed to do business or is doing business in this judicial district. Venue as to each Defendant is also proper in this judicial district pursuant to the provisions of Sections 16750(a) and 17203 of the California Business and Professions Code. The unlawful conduct undertaken pursuant to the combination and conspiracy alleged herein had and has a direct effect on business within the State of California, and the trade and commerce described below is carried on to a significant degree within the State of California. 8. This Court has in personam jurisdiction over each Defendant, because,
inter alia, each Defendant: (a) transacted business throughout the United States, including this district; (b) manufactured, sold, shipped, and delivered substantial quantities of DRAM throughout the United States, including this district; (c) had substantial contacts with the United States; and (d) was engaged in an illegal scheme and price-fixing conspiracy that was directed at and had the intended effect of causing injury to persons and entities residing in, located in, or doing business throughout the United States. 4
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C.
Intradistrict Assignment 9. Because Sun and a large number of Defendants maintain their principal
places of business within Santa Clara County, this action arises in Santa Clara County for the purposes of Civil Local Rule 3-2(c), and should be assigned to the San Jose Division. However, Plaintiffs actions have been ordered related to the In re DRAM Antitrust Litigation action, Case No. C 02-01486 PJH, and therefore are assigned to the San Francisco Division, Judge Hamilton presiding. D. Parties 10. Sun is a California corporation with its principal place of business in Santa
Clara, California. Sun is a leading maker of computer servers, workstations, and storage systems, with net sales in 2006 of $13.1 billion. Throughout the Cartel Period, Sun procured its worldwide DRAM needs directly from DRAM suppliers, including Defendants and their Co-conspirators, as part of a global procurement strategy formulated and directed by a central purchasing organization based at its headquarters in California. This California-based central purchasing organization negotiated the price of and entered into contracts for Suns global DRAM needs using three procurement mechanisms managed and run in California: (1) face-to-face negotiations; (2) live electronic auctions, called Dynamic Bidding Events (DBEs); and (3) sealed bidding events. The DRAM acquired pursuant to these three procurement mechanisms managed and run in California were incorporated into Sun products containing DRAM (i.e., servers, workstations, and storage systems) by either: (1) Suns facilities in the United States; (2) Suns facilities outside the United States; or (3) one of the third-party external manufacturers used by Sun to manufacture some of its products containing DRAM: (a) MiTAC International Corporation (a Taiwanese company with operations throughout the world, including the United States); (b) Celestica Inc. (a Canadian company with operations throughout the world, including the United States); (c) Benchmark Electronics, Inc. (a U.S. company with operations throughout the world); (d) Smart Modular Technologies, Inc. (a U.S. company with operations throughout the world); (e) Solectron Corporation (a U.S. 5
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company with operations throughout the world); and (f) Expansion Electronics Inc. (a U.K. company with operations throughout the world, including the United States) (collectively, the External Manufacturers). 11. The procurement mechanisms used by Suns California-based central
purchasing organization to effectuate the companys global DRAM procurement strategy worked in the following manner:
a. Prior to approximately 2001, Suns central purchasing organization based
in California acquired the companys global DRAM needs through face-toface negotiations with DRAM suppliers, including Defendants and their Co-conspirators. The DRAM suppliers would negotiate for a share of Suns DRAM business at a certain price, without prior notice of where the DRAM would be delivered (whether it be to a Sun facility in the United States, a Sun facility outside the United States, or to one of the External Manufacturers used by Sun). Upon agreement with a DRAM supplier, Suns central purchasing organization based in California would forward notice to Suns facilities in the United States, facilities outside the United States, and/or External Manufacturers telling them from which DRAM supplier and at which price (as negotiated by Sun in California) they should request a delivery of DRAM. The various Sun facilities and External Manufacturers would then release purchase orders against the prices and volumes established by Suns central purchasing organization based in California. In turn, the identical product would often be shipped at the same price to the various sites around the world where Sun products containing DRAM were manufactured.
b. Beginning in approximately 2001, Sun began procuring the vast majority of
its worldwide DRAM needs primarily though DBEs. These DBEs were organized and run in California at the direction of Suns central purchasing organization based there. Pursuant to the DBEs, DRAM suppliers would 6
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submit electronic bids for a specific portion of Suns worldwide DRAM needs. They did so without notice of where the delivery of DRAM would occur (whether it be to a Sun facility in the United States, a Sun facility outside the United States, or to one of the External Manufacturers used by Sun). Through its central purchasing organization based in California, Sun would determine the winning DRAM suppliers, their share of Suns business, and the price to be paid for DRAM. Suns central purchasing organization would then notify the DRAM suppliers of their allotted share of business and forward notice to Suns facilities in the United States, facilities outside the United States, and/or External Manufacturers telling them from which DRAM supplier and at which price (as negotiated by Sun in California) they should request a delivery of DRAM. The various Sun facilities and External Manufacturers would then release purchase orders against the prices and volumes established by Suns central purchasing organization based in California. In turn, the identical product would often be shipped at the same price to the various sites around the world where Sun products containing DRAM were manufactured.
c. Beginning in approximately 2001, in conjunction with the DBEs, Suns
central purchasing organization based in California acquired a portion of the companys worldwide DRAM needs through sealed bidding events managed and run in California. Like DBEs, sealed bidding events involved DRAM suppliers submitting a bid for a portion of Suns worldwide DRAM needs directly to Suns central purchasing organization based in California, without prior notice of where the DRAM would be delivered (whether it be to a Sun facility in the United States, a Sun facility outside the United States, or to one of the External Manufacturers used by Sun). Through its central purchasing organization based in California, Sun would determine the winning suppliers, their share of Suns business, and the price to be paid 7
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for DRAM. Suns central purchasing organization would then notify the winning DRAM suppliers and forward notice to Suns facilities in the United States, facilities outside the United States, and/or External Manufacturers telling them from which DRAM supplier and at which price (as negotiated by Sun in California) they should request a delivery of DRAM. The various Sun facilities and External Manufacturers would then release purchase orders against the prices and volumes established by Suns central purchasing organization based in California. In turn, the identical product would often be shipped at the same price to the various sites around the world that manufactured Sun products containing DRAM. The sealed bid process was virtually identical to the DBE process, except that it was not electronic and only one bid per DRAM supplier was accepted by Suns central purchasing organization based in California. 12. The prices offered by Defendants and their Co-conspirators in connection
with the above procurement mechanisms managed and run in California by Suns central purchasing organization based there were centrally coordinated by global sales teams at each Defendant and Co-conspirator (usually based at the Defendants or Co-conspirators worldwide headquarters) that were specifically assigned to manage the companys account with Sun. These global sales teams used pricing information including competitive pricing information illegally obtained from other cartel members to set a single, artificially-inflated price that would apply to all deliveries of DRAM to Sun throughout the world (whether it be to a Sun facility in the United States, a Sun facility outside the United States, or to one of the External Manufacturers used by Sun). Thus, global sales teams at each Defendant and Co-conspirator specifically targeted their illegal activities at Sun in California, causing substantial injury to Sun in U.S. commerce. For example, Defendant Hynix treated Sun as a strategic account (along with personal computer manufacturers such as Hewlett Packard Company, Dell Inc., and International Business Machines Corp.), whereby all DRAM pricing to Sun was centrally coordinated 8
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through Hynixs headquarters in Korea. Likewise, the prices offered to Sun by Elpida were centrally coordinated through Elpidas headquarters in Japan. Other Defendants similarly centralized pricing on a global basis to Sun. 13. The DRAM acquired by Suns California-based central purchasing
organization using the above procurement mechanisms managed and run in California was delivered to and used at the following consumption points:
a. During the Cartel Period, approximately 66% of Suns worldwide DRAM
needs were consumed at the companys manufacturing facilities located in the United States and abroad. These facilities incorporated the DRAM acquired by Suns California-based central purchasing organization into finished Sun products (e.g., servers, workstations, and storage systems). Approximately 75% of the DRAM delivered for use at Sun facilities was consumed at Suns manufacturing facilities located in the United States, primarily those located in Beaverton, Oregon and Newark, California. The remaining 25% of the DRAM delivered for use at Sun facilities was consumed in Europe, primarily at Suns manufacturing facility located in Linlithgow, Scotland, with a small amount being used at Suns facility in Amersfoort, Netherlands. The individuals at the Beaverton, Newark, Linlithgow, and Amersfoort facilities responsible for placing purchase orders for DRAM against the prices and volumes established by Suns central purchasing organization based in California reported directly to the California-based manager of the central purchasing organization. At times during the Cartel Period, Suns facilities in the United States would place orders for the delivery of DRAM to the companys European facilities, and likewise, the European facilities would place orders for the delivery of DRAM to the companys U.S. facilities. Suns operations in the United States (Beaverton and Newark) and Europe (Linlithgow and Amersfoort) 9
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acted as a single enterprise and shared a complete unity of interests throughout the Cartel Period.
b. During the Cartel Period, approximately 34% of Suns worldwide DRAM
needs were consumed at the domestic and foreign facilities of the External Manufacturers used by Sun to manufacture its products containing DRAM. Some of the External Manufacturers were headquartered in the United States and all had operations in the United States. Discovery is required to identify the precise percentage of deliveries of DRAM to each of the External Manufacturers various facilities. In approximately 1997, Sun began outsourcing a portion of its server, workstation, and storage systems manufacturing to the External Manufacturers. The DRAM consumed by the External Manufacturers and incorporated into Sun products was requested at a price and share of business established by Sun through the procurement mechanisms organized and run by Suns California-based central purchasing organization. Thus, though an External Manufacturer may have placed a purchase order directly with a selected DRAM supplier on behalf of Sun for a shipment of DRAM to either its domestic or foreign facilities, the price and share of business were determined by Sun in California. In addition, all technical and performance issues associated with the DRAM delivered to the External Manufacturers were managed and communicated to the DRAM suppliers by Sun. To this extent, the External Manufacturers acted as limited agents of Sun with respect to acquisitions of DRAM pursuant to contracts negotiated by Sun for use in the companys server, workstation, and storage systems manufacturing operations. Further, the amounts paid for DRAM by the External Manufacturers were passed through to Sun in their entirety pursuant to Suns agreements with the External Manufacturers, which were negotiated and entered into by Suns headquarters in California, and which permitted the External 10
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Manufacturers to charge Sun 100% of the cost of DRAM plus an additional assembly fee. As a result, Sun in the United States suffered the ultimate financial injury caused by overpriced DRAM being consumed by the External Manufacturers. 14. Thus, regardless of the procurement mechanism used, with respect to all
transactions in which Suns California-based central purchasing organization sought to establish the price and quantity of DRAM, Defendants and their Co-conspirators offered a single, artificially-inflated price that they knew would apply to all deliveries of DRAM to Sun around the globe, whether such DRAM was shipped, as necessary to manufacture Sun products containing DRAM, to: (1) one of Suns U.S. manufacturing facilities (Beaverton, Oregon or Newark, California); (2) one of Suns foreign manufacturing facilities (Linlithgow, Scotland or Amersfoort, Netherlands); or (3) one of the domestic or foreign facilities of Suns External Manufacturers (MiTAC, Celestica, Benchmark, Smart Modular, Solectron, or Expansion). Because of Suns relationship with its foreign manufacturing facilities (closely controlled extensions of the companys U.S. operations) and External Manufacturers (limited agents of Sun who, pursuant to their agreements with Sun, completely passed the cost of DRAM through to Sun), the inflated DRAM prices charged in connection with deliveries to these entities were directly borne by Sun in the United States. As a result, the ultimate financial injury caused by Defendants and their Co-conspirators illegal conduct was sustained in American commerce by an American company and significantly affected the financial status of that American company. 15. Sun is a direct purchaser with respect to all of the DRAM used in the
manners set forth above. Defendants and their Co-conspirators illegal activities were specifically directed at the procurement mechanisms used by Suns California-based central purchasing organization to establish the price of DRAM shipped to Sun around the world. Thus, during the Cartel Period, the anticompetitive effects directed at Sun in California were the proximate cause of the artificially-inflated prices paid for all DRAM 11
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used by Sun around the globe. To the extent that Sun may be determined to be an indirect purchaser of DRAM, the prices paid for such DRAM were artificially inflated, thereby causing Sun to pay higher prices. 16. Unisys is a Delaware corporation with its principal place of business in
Blue Bell, Pennsylvania and significant DRAM consuming operations in Mission Viejo, California. Unisys is a worldwide technology services and solutions company, with expertise in consulting, systems integration, outsourcing, infrastructure, and server technology aimed at achieving secure business operations for its clients. In 2006, Unisys had revenues of over $5.7 billion. During the Cartel Period, Unisys procured DRAM directly from Defendants and their Co-conspirators at artificially-inflated prices for use in its server and personal computer manufacturing operations. 17. During the Cartel Period, Unisys purchased DRAM directly for use in its
California-based server manufacturing operations. These operations consumed both: (1) DRAM manufactured and sold at artificially-inflated prices by Defendants and their Coconspirators; and (2) memory modules (Unisys-specific configurations of DRAM) assembled by U.S.-based third-party module makers (a) Simple Technology, Inc.; (b) Viking Interworks, Inc.; (c) Smart Modular Technologies, Inc.; and (d) White Electronic Design Corp. (collectively, the Module Makers) using DRAM sold at artificiallyinflated prices by Defendants and their Co-conspirators. All prices and contracts for the DRAM and memory modules were negotiated and entered into by a procurement team based at the headquarters of Unisys Corporations server manufacturing operations located in Mission Viejo, California (formerly in Rancho Bernardo, California). Moreover, all such DRAM and memory modules were delivered to and used in Mission Viejo, California (or previously in Rancho Bernardo, California). Approximately 66% of all DRAM purchased by Unisys from Defendants and their Co-conspirators during the Cartel Period (including DRAM contained in memory modules) was delivered to and used by the companys server manufacturing operations based in California. Discovery is required to identify the precise percentage of deliveries of DRAM to each of the 12
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Module Makers various facilities. Further, the amounts paid for DRAM by the Module Makers were passed through to Unisys in their entirety pursuant to Unisys Corporations agreements with the Module Makers, which permitted the Module Makers to charge Unisys 100% of the cost of DRAM plus an additional module assembly fee. As a result, Unisys assumed the position of direct purchaser with respect to all such DRAM purchases, suffering the ultimate and complete financial injury caused by overpriced DRAM being consumed by the Module Makers. Thus, with respect to all of the DRAM (including DRAM contained in memory modules) consumed by its California-based server manufacturing operations, Unisys, an American company, was substantially injured in American commerce. 18. Unisys also purchased DRAM directly for use in its personal computer
manufacturing operations. Up until approximately 1998, Unisys manufactured personal computers at its facilities located in San Jose, California and Villers, France. The companys worldwide personal computer manufacturing operations were based in and coordinated from the San Jose facility, and a global procurement team located in San Jose negotiated the price and volume of and entered into contracts for all of the DRAM used at both the San Jose and Villers facilities pursuant to a global procurement strategy. The sister facility in Villers was closely controlled by San Jose and requested all of its deliveries of DRAM in accordance with the volumes and prices set by the global procurement team located in San Jose. Thus, the same artificially-inflated price charged by Defendants and their Co-conspirators for DRAM delivered to Unisys in San Jose also applied to DRAM delivered to Unisys in Villers. Throughout the Cartel Period, the operations in San Jose and Villers acted as a single enterprise and shared a complete unity of interests. As a result, with respect to all DRAM delivered to Unisys Corporations personal computer manufacturing operations around the world, the ultimate financial injury caused by Defendants and their Co-conspirators illegal conduct was sustained in American commerce by an American company and directly affected the financial status of that American company. During the Cartel Period, approximately 20% 13
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of all DRAM purchased by Unisys from Defendants and their Co-Conspirators was used at the companys facility located in San Jose, California, and another 14% was used at the companys facility located in Villers, France. 19. With respect to all DRAM consumed in connection with its server and
personal computer manufacturing operations based in California, Unisys was a direct purchaser of DRAM. Of all the DRAM (including DRAM contained in memory modules) purchased by Unisys from Defendants and their Co-Conspirators in connection with its server and personal computer manufacturing operations, approximately 86% was used at one of Unisys Corporations facilities in the United States. As a result, the anticompetitive effects of Defendants and their Co-conspirators illegal conduct directed at Unisys in the United States proximately caused the artificially-inflated prices paid for DRAM by Unisys around the world. To the extent that Unisys may be determined to be an indirect purchaser with respect to any of the DRAM used by either its server or personal computer manufacturing operations, the prices paid for such DRAM were artificially inflated, thereby causing Unisys to pay higher prices. 20. Unisys also purchased DRAM indirectly from Defendants and their Co-
conspirators that was incorporated into personal computers sold to Unisys by thirdparties. After closing its personal computer manufacturing operations in approximately 1998, Unisys began rebranding and reselling personal computers manufactured by two U.S.-based companies, Hewlett-Packard Company (HP) and Dell Inc. (Dell). The arrangement with HP lasted from approximately 1998 through 2001, and the arrangement with Dell began in approximately 2001 and continues to the present. The prices set and contracts entered into with HP and Dell were negotiated by a Unisys team based in the United States, and all orders for personal computers under the contracts were routed through Unisys Corporations facilities in California. A number of Defendants and their Co-conspirators have already admitted to price-fixing with respect to the DRAM sold to HP and Dell. Thus, to the extent that Unisys was an indirect purchaser of DRAM, the 14
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price of that DRAM was artificially inflated, thereby causing Unisys to pay a higher price for the personal computers it later resold. 21. Defendant Hynix Semiconductor, Inc., a Korean corporation, maintains its
head offices at San 136-1, Ami-Ri, Bubal-eub, Ichon-si, Kyongki-do, Korea. During the time covered in this Amended Complaint, Hynix Semiconductor, Inc., a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Korea-based manufacturer of DRAM with facilities throughout the world, Hynix Semiconductor, Inc. manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Hynix Semiconductor, Inc.s illegal activities directed at the United States and elsewhere, Plaintiffs paid artificiallyinflated prices for DRAM. 22. Defendant Hynix Semiconductor America, Inc. is a California corporation
located at 3101 North First Street, San Jose, California 95134. Hynix Semiconductor America Inc., on information and belief, is a wholly-owned and controlled subsidiary of Defendant Hynix Semiconductor, Inc. (collectively referred to as Hynix). During the time period covered in this Amended Complaint, Hynix Semiconductor America, Inc. sold and distributed DRAM throughout the United States. 23. Defendant Mosel Vitelic Inc. is a Taiwanese corporation which maintains
its headquarters at No. 1 Creation Rd. 1, Hsinchu Science Park, Hsinchu, Taiwan, 30077, R.O.C. During the time period covered in this Amended Complaint, Mosel Vitelic Inc., a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Taiwan-based manufacturer of DRAM with facilities throughout the world, Mosel Vitelic Inc. manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and 15
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directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Mosel Vitelic Inc.s illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 24. Defendant Mosel Vitelic Corporation is a California corporation located at
3910 North First Street, San Jose, California 95314. Mosel Vitelic Corporation, on information and belief, is a wholly-owned and controlled subsidiary of Defendant Mosel Vitelic Inc. (collectively referred to as Mosel Vitelic). During the time period covered in this Amended Complaint, Mosel Vitelic Corporation sold and distributed DRAM throughout the United States. 25. Defendant Nanya Technology Corporation is a Taiwanese corporation
which maintains its headquarters at Hwa Ya Technology Park, 669 Fu Hsing 3rd Rd. Keuishan, Taoyuan, Taiwan, R.O.C. During the time period covered in this Amended Complaint, Nanya Technology Corporation, a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Taiwan-based manufacturer of DRAM with facilities throughout the world, Nanya Technology Corporation manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusivelyestablished prices for DRAM. As a result of Nanya Technology Corporations illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 26. Defendant Nanya Technology Corporation, USA, a California corporation,
is located at 675 E. Brokaw Road, San Jose, California 95112. On information and belief, Nanya Technology Corporation USA is a wholly-owned and controlled subsidiary of Defendant Nanya Technology Corporation (collectively referred to as Nanya). In addition to its main U.S. office in San Jose, Nanya Technology Corporation operates 16
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sales and technical support offices in San Jose, California, Raleigh, North Carolina, and Austin, Texas and operates a memory design center in Houston, Texas. During the time period covered in this Amended Complaint, Nanya Technology Corporation USA sold and distributed DRAM throughout the United States. 27. Defendant Winbond Electronics Corporation is headquartered at No. 4,
Creation Road 3 and No. 9, Li-Shin Road, Science-Based Industrial Park, Hsinchu, Taiwan, 300, R.O.C. During the time period covered in this Amended Complaint, Winbond Electronics Corporation, a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Taiwan-based manufacturer of DRAM with facilities throughout the world, Winbond Electronics Corporation manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Winbond Electronics Corporations illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 28. Defendant Winbond Electronics Corporation America, a Delaware
corporation, is located at 2727 North First Street, San Jose, California 95134 and is a wholly-owned subsidiary of Winbond Electronics Corporation (collectively referred to as Winbond). During the time period covered in this Amended Complaint, Winbond Electronics Corporation America sold and distributed DRAM throughout the United States. 29. Defendant Elpida Memory, Inc., a Japanese corporation, maintains its
executive offices at Sumitomo Seimei Yaesu Building, 3F, 2-1 Yaesu 2-chome, Chuo-ku, Tokyo, Japan. During the time period covered in this Amended Complaint, Elpida Memory Inc., a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Japan-based 17
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manufacturer of DRAM with facilities throughout the world, Elpida Memory, Inc. manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Elpida Memory, Inc.s illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 30. Defendant Elpida Memory (USA) Inc., a Delaware corporation, is located
at 2001 Walsh Ave, Santa Clara, California, 95050 and is a wholly-owned subsidiary of Elpida Memory, Inc. (collectively referred to as Elpida). During the time period covered in this Amended Complaint, Elpida Memory (USA) Inc. sold and distributed DRAM throughout the United States. 31. Defendant Mitsubishi Electric Corporation, a Japanese corporation, is
headquartered at Tokyo Building, 2-7-3, Marunouchi, Chiyoda-ku, Tokyo 100-8310, Japan. During the time period covered in this Amended Complaint, Mitsubishi Electric Corporation, a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Japan-based manufacturer of DRAM with facilities throughout the world, Mitsubishi Electric Corporation manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Mitsubishi Electric Corporations illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 32. Defendant Mitsubishi Electric & Electronics USA, Inc., a Delaware
corporation, is headquartered at 5665 Plaza Drive, Cypress, CA 90630 and is a whollyowned subsidiary of Mitsubishi Electric Corporation. During the time period covered in 18
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this Amended Complaint, Mitsubishi Electric & Electronics USA, Inc. sold and distributed DRAM throughout the United States. 33. Defendant Mitsubishi Electric Europe B.V., a Netherlands corporation and
a wholly-owned subsidiary of Mitsubishi Electric Corporation (collectively referred to as Mitsubishi), is headquartered at The Atrium, Uxbridge One, 1 Harefield Road, Uxbridge, Middlesex, UB8 1PH, England, with its United Kingdom branch at Travellers Lane, Hatfield, Hertfordshire, AL 10 8XB. During the time period covered in this Amended Complaint, Mitsubishi Electric Europe B.V. sold and distributed DRAM throughout the world, including the United States and the European Union. 34. Defendant Infineon Technologies AG, a German corporation, has its
principal place of business at Am Campeon 1-12, Munich, 85779, Germany. During the time period covered in this Amended Complaint, Infineon Technologies AG, a manufacturer of DRAM, sold and distributed DRAM throughout the world, including the United States. On information and belief, as a Germany-based manufacturer of DRAM with facilities throughout the world, Infineon Technologies AG manipulated the price of DRAM charged around the globe, including in the United States, by intentionally restricting the production capacity of its manufacturing plants located throughout the world and directing its international affiliates, including those located in the United States, to charge collusively-established prices for DRAM. As a result of Infineon Technology AGs illegal activities directed at the United States and elsewhere, Plaintiffs paid artificially-inflated prices for DRAM. 35. Defendant Infineon Technologies North America Corporation, a Delaware
corporation and a wholly-owned subsidiary of Infineon Technologies AG (collectively, Infineon), has its principal place of business at 640 N. McCarthy Boulevard, Milipitas, California 95035. During the time period covered in this Amended Complaint, Infineon Technologies North America Corporation sold and distributed DRAM throughout the United States. Recently, Infineon spun-off its DRAM business, which is now operating as Qimonda, a wholly-owned subsidiary of Infineon Technologies AG. 19
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36.
Doe defendants 1 through 5 are persons and/or entities whose identities are
as yet unknown to Plaintiffs and who have participated in the violations of the federal and state antitrust laws for which Plaintiffs seek relief, and have performed acts and made statements in furtherance thereof. 37. For purposes of this Amended Complaint, Sun brings its causes of action
solely against the following Defendants: Hynix Semiconductor, Inc.; Hynix Semiconductor America, Inc.; Mosel Vitelic Inc.; Mosel Vitelic Corporation; Nanya Technology Corporation; Nanya Technology Corporation, USA; Winbond Electronics Corporation; Winbond Electronics Corporation America; Elpida Memory, Inc.; Elpida Memory (USA) Inc.; Mitsubishi Electric Corporation; Mitsubishi Electric and Electronics USA, Inc.; Mitsubishi Electric Europe B.V.; and Doe defendants 1 through 5. 38. For purposes of this Amended Complaint, Unisys brings its causes of action
solely against the following Defendants: Hynix Semiconductor, Inc.; Hynix Semiconductor America, Inc.; Mosel Vitelic Inc.; Mosel Vitelic Corporation; Nanya Technology Corporation; Nanya Technology Corporation, USA; Winbond Electronics Corporation; Winbond Electronics Corporation America; Mitsubishi Electric Corporation; Mitsubishi Electric and Electronics USA, Inc.; Mitsubishi Electric Europe B.V.; Infineon Technologies AG; Infineon Technologies North America Corporation; and Doe defendants 1 through 5. 39. Various individuals, partnerships, corporations, and associations other than
Defendants named in this Amended Complaint the Co-conspirators have participated in the violations of the federal and state antitrust laws for which Plaintiffs seek relief, and have performed acts and made statements in furtherance thereof. 40. Whenever in this Amended Complaint reference is made to any act, deed,
or transaction of any corporation, the allegation means that the corporation engaged in the act, deed, or transaction by or through its officers, directors, agents, employees, or representatives while they were actively engaged in the management, direction, control, or transaction of the corporations business or affairs. 20
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41.
Co-conspirators Micron Technology Inc. and Micron Semiconductor
Products, Inc. (collectively known as Micron) and Co-conspirators Samsung Electronics Co., Ltd. and Samsung Semiconductor, Inc. (collectively known as Samsung) also participated in the violations alleged herein and performed acts and made statements in furtherance thereof. E. Trade and Commerce 42. During the Cartel Period, Defendants and their Co-conspirators sold and
shipped substantial quantities of DRAM in a continuous and uninterrupted flow of interstate and international commerce to customers located in countries and states other than the countries and states in which Defendants and their Co-conspirators manufacture DRAM. 43. The business activities of Defendants and their Co-conspirators that are the
subject of this Amended Complaint were within the flow of, and substantially affected, interstate and international trade and commerce. The global conspiracy, in which Defendants and their Co-conspirators participated, had a direct, substantial, and reasonably foreseeable effect on United States commerce. 44. During the Cartel Period, Defendants and their Co-conspirators made most
of the DRAM sales in the global marketplace. F. Statement of Facts 45. Defendants and their Co-conspirators manufacture, sell, and distribute
memory chips throughout the world. Memory chips store data in a wide variety of computing and electronic devices. Memory chips are used in the manufacture of, and are critical to the functioning of, such devices as personal computers, workstations, servers, printers, fax machines, digital cameras and video recorders, video game equipment, personal digital assistants, and cellular and wireless telephones. 46. DRAM is the dominant, most common form of memory chip. Random
Access Memory means that the data, stored in the form of 0s and 1s, can be accessed directly from any part of the memory, rather than having to proceed sequentially from 21
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some starting place. DRAM is called dynamic because it must have its storage cells refreshed or given a new electronic charge every few milliseconds. 47. A DRAM chip is a large-scale integrated circuit with simple structures, and
is fairly easy to manufacture. Accordingly, DRAM is a commodity, with each of Defendants and their Co-conspirators products being freely interchangeable with the products of another company. 48. DRAM is sold in individual chips, or in modules with several chips
attached to each module. 49. DRAM sales exceed $20 billion a year. The worlds top six manufacturers
of DRAM, all of which are named as either a Defendant or Co-conspirator here, control roughly 96% of the market. 50. The DRAM industry enjoyed an extended period of prosperity in the mid-
1990s as the personal computer industry boomed. During this time, DRAM manufacturers could not meet the demand for their products. Revenues from DRAM sales nearly tripled between 1993 and 1995. DRAM manufacturers responded by building substantial new chip-making capacity. Factories for the manufacture of DRAM chips are referred to as fabrication plants, or fabs. 51. In 1996, this new capacity, coupled with demand decline, led to pressure on
Defendants and their Co-conspirators to cut their prices. Defendants and their Coconspirators responded by illegally conspiring to limit capacity and artificially fix and raise prices. 52. Specifically, in December 1996, DRAM manufacturers attended a
SyncLink Consortium. SyncLink was a DRAM industry organization whose members consisted of DRAM suppliers. During this December 1996 meeting, DRAM suppliers resolved to establish unified strategies to address market concerns. Although the organization initially appears to have been created to address technology concerns, the industry reorganized the consortium in January 1999, causing the new president of the 22
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organization to acknowledge publicly that the focus of the group would be to coordinate instead of develop new technology. 53. Executives from DRAM suppliers met again in Japan in January 1997.
During this meeting the participants agreed that they would need to continue communicating with each other. The participants also agreed to use an e-mail distribution software program, then known as a reflector e-mail, which permitted industry executives to exchange information via e-mail quickly and confidentially. 54. Shortly after this meeting, in February 1997, DRAM suppliers curtailed
production at their DRAM manufacturing facilities, as part of a collusive effort to maintain and raise prices. 55. This coordinated drop in production had an immediate, but temporary,
effect on prices, which rose during the second quarter of 1997. Prices then began to fall again in the second half of 1997. 56. As DRAM prices continued to fall into early 1998, DRAM manufacturers
held at least two meetings to discuss the problem in April and June. The second meeting, held on June 25, was called an Executive Summit and was attended by industry executives. One of the topics at the Executive Summit was how to Manage Price Competition, Profitability. Upon information and belief, during these meetings, and in communications before and after these meetings, Defendants and their Co-conspirators discussed supply and pricing issues, and agreed that they would limit their capacity to artificially decrease the supply of, and increase, maintain, or control the price of, DRAM chips. 57. Between June and September of 1998, every major DRAM manufacturer
announced that it was curtailing or shutting down DRAM production facilities, because of a lack of demand for the product. Defendant Hynixs corporate predecessor,
23
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Hyundai,1 and Co-conspirator Samsung each shut down its facilities for approximately one to two weeks in the summer of 1998. Other suppliers communicated their intentions to slash production. 58. This coordinated withdrawal of production capacity had an immediate
effect on prices, which began to rise in June 1998, and increased steadily throughout the rest of the year. 59. In August 1998, an email circulated among DRAM suppliers warned that
during the ramp-up in production of a new DRAM standard being implemented by Rambus, DRAM vendors will need a constant flow of information to help make wise decisions and to walk the fine line between a pleasant shortage and a disastrous oversupply. A Hyundai executive noted that a shortage would please DRAM manufacturers because prices go up. 60. A former Samsung employee, Devin Cole, has admitted that before he left
Samsung in July 1998, he spoke with competitors regarding price issues. Cole informed federal authorities that these conversations led to agreements on a range pact that included the ranges of prices, where each competitor felt that others would price in the range, and whether each competitor would move prices a little or a lot. Upon information and belief, this evidence is corroborated by Coles own notes and other documents. 61. DRAM prices continued to climb steadily in 1999. During this time,
Defendants and their Co-conspirators continued their illegal communications with each other about prices, market share, and supply. In July 1999, a Hyundai executive sent an e-mail to Farhad Tabrizi, the vice president of marketing for Hyundai and head of the DRAM industry group SLDRAM Inc. (the successor organization to SyncLink). The email states that [w]ith Samsung building significant amounts of product, we need to
Hyundais semiconductor subsidiary was named Hyundai Electronics. In March 2001 Hyundai renamed this subsidiary Hynix Semiconductor. In August 2001, Hyundai spun off the company. 24
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work with them to limit the supply in the market, otherwise we both will be competing for market share which will result in an oversupply. We have to meet with Samsung and discuss our and their production plan, TAM analysis and targeted market share. In response, another Hyundai employee stated that he had a connection in samsung [sic] and offered to set up a meeting. 62. A short time later, Samsung and Hyundai both began raising prices at an
accelerated rate. Indeed, in September 1999, industry sources noted that South Koreas DRAM suppliers (Samsung and Hyundai) were raising prices in one-to-two week intervals. 63. Despite their unlawful and secret cooperation to reduce DRAM production
and increase price, Defendants and their Co-conspirators publicly misrepresented that DRAM prices escalated due to increased demand resulting from strong sales of lowpriced PCs incorporating large quantities of DRAM. In a September 13, 1999, Electronic News article, Avo Kanadjian, vice president of marketing at Samsung said: Because we see the value PC and free PCs entering the market at extraordinary numbers, DRAM oversupply has silently gone into a shortage. Chee-Wai Ho, director of product marketing for memory products at Infineon, agreed. 64. Because of Defendants and their Co-conspirators collusive activities,
DRAM prices remained artificially inflated from the middle of 1998 through the fall of 2000. 65. In August 2000 prices began to drop once again. By mid-2001, every
major DRAM supplier was reporting losses. Their stock prices fell. Once again, Defendants and their Co-conspirators responded by conspiring with each other to control production and raise prices. Their collusive activities included, but were not limited to, the following:
In July 2001, Hynix announced plans to cut production to boost prices. A spokeswoman for Hynix stated: We understand other companies are also considering cuts. 25
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In August 2001, a Mosel Vitelic executive admitted that Taiwan DRAM manufacturers had discussed curtailing production in an effort to raise prices.
Also in August, Thomas Chang at Mosel Vitelic acknowledged talking to other Taiwanese DRAM manufacturers about reducing supply: Our preliminary agreement is to trim some production starting September.
In November, Micron manager Kathy Radford acknowledged efforts by Infineon and Samsung to raise prices of DRAM, and stated that Micron intended to raise prices for all of its OEM customers: The consensus from all suppliers is that if Micron makes the move, all of them will do the same and make it stick.
In late 2001 and early 2002, representatives of Samsung and Infineon communicated with one another specifically about bidding on DRAM to be purchased by Sun. During one contact, the Samsung employee told the Infineon employee that Samsungs goal in the bidding was to come [in] second.
Alfred Censullo, a former Micron sales manager, also confirmed that Micron spoke with competitors about pricing. Censullo pleaded guilty in January 2004 to federal charges of obstruction of justice for altering and withholding documents responsive to a grand jury subpoena issued to Micron. At his sentencing hearing, Censullo acknowledged that these documents consisted of notes that he took during weekly conference calls with other regional sales managers at Micron, who, like Censullo, were responsible for major OEM customers. During these calls, the managers would discuss price recommendations for major OEM customers and the prices at which competitors would sell their products to these OEM customers. Censullos notes reflected this pricing 26
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information and identified communications between Micron and its competitors about sales and pricing. 66. These collusive activities perpetrated by Defendants and their Co-
conspirators worked by the end of 2001, the price for 128 MB DRAM had increased by 95% over the November 6, 2001, spot price. 67. Nevertheless, Defendants and their Co-conspirators again publicly, and
falsely, attributed the increase in DRAM price to legitimate market forces. In a December 4, 2001, interview published on Simmtester.com, Steve Appleton, chief executive officer of Micron, was asked why prices had recently increased sharply and suddenly. He answered: I have no idea. There clearly was a belated increase in demand as the seasonal rebound we had expected two-and-a-half months earlier finally kicked in. And, clearly the Japanese are cutting back their DRAM production. Even Hynix, which is so unpredictable, cut some production by temporarily closing its Eugene, Ore., fab. When it was running at 40K wafer capacity a month, that fab alone probably had about 2.5% of the worlds DRAM production. 68. DRAM price increases, as well as Defendants and their Co-conspirators
illegal activities, continued into 2002. From November 2001 to April 2002, DRAM prices tripled. In a press release issued on April 15, 2002, Hynix represented that its increased revenues resulted from increased demand in the DRAM market. However, in May 2002, Thomas Chang of Mosel Vitelic contradicted other cartel members assertions that legitimate market forces were driving DRAM prices when he stated: Were trying to encourage a price of US $3. Thats the consensusYou dont need to have a meeting. You just need to have a phone call. Everybody knows each other. We just said try not to sell below US $3. 69. Defendants and their Co-conspirators also specifically targeted Suns DBE
auction process, exchanging pricing information, discussing whether to bid on certain lots of DRAM, and coordinating which place (which percentage of Suns business) each 27
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supplier would seek during a particular auction. As just one example, Elpida, Infineon, Mitsubishi, and others coordinated bids and the share of Suns business each would seek during a DBE conducted in 2002. 70. In furtherance of the conspiracy, Defendants established internal rewards
for employees who participated in the cartel. For example, the compensation of an Elpida employee responsible for managing Suns account was specifically tied to his ability to coordinate Sun pricing with Elpidas competitors. In other words, the better that employee was at conspiring against Sun, the more he was paid by Elpida. Likewise, the management at Hynix promoted a business culture whereby collaboration with competitors was encouraged and rewarded. Other Defendants similarly rewarded such illegal behavior toward customers by their employees. G. The Department of Justice Investigation 71. On June 18, 2002, Co-conspirator Micron announced it had been
cooperating with a DOJ investigation of the DRAM industry. 72. By June 20, 2002, Defendants Hynix and Infineon and Co-conspirator
Samsung confirmed that they had received subpoenas from a grand jury investigating DRAM collusion. 73. On September 12, 2003, Defendant Elpida announced that it had received
subpoenas from the DRAM grand jury. 74. On or about September 4, 2004, Defendant Infineon entered into a plea
agreement with the U.S. government pursuant to which it agreed to plead guilty to conspiring to fix prices in the DRAM market between July 1999 and June 2002. 75. On April 21, 2005, the DOJ announced that it had entered into a plea
agreement with Defendant Hynix pursuant to which Hynix agreed to plead guilty to conspiring to fix prices in the DRAM market between April 1999 and June 2002. 76. On or about October 13, 2005, the DOJ announced that it had entered into a
plea agreement with Co-conspirator Samsung pursuant to which Samsung agreed to plead 28
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guilty to conspiring to fix prices in the DRAM market between April 1999 and June 2002. 77. Three months later, on January 30, 2006, the DOJ announced that it had
entered into a plea agreement with Defendant Elpida pursuant to which Elpida agreed to plead guilty to conspiring to fix prices in the DRAM market between April 1999 and June 2002. In addition, Elpida admitted that it conspired with an unnamed DRAM manufacturer to rig a bid for a DRAM lot sold to Sun. 78. The DOJs investigation has also resulted in former and current Samsung,
Hynix, Infineon, and Elpida executives being fined and imprisoned. H. Violations Alleged FIRST CAUSE OF ACTION (Violation of Sherman Act Against All Defendants) 79. Plaintiffs incorporate by reference, as if fully set forth, the allegations of
paragraphs 1 through 78 of this Amended Complaint. 80. Beginning in or about January 1997, the exact date being unknown to
Plaintiffs, and continuing thereafter at least through 2002, Defendants and their Coconspirators, by and through their officers, directors, employees, agents, or other representatives, entered into a continuing contract, combination and/or conspiracy to unreasonably restrain trade and commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. 1 (2000 suppl. 2). 81. Defendants and their Co-conspirators, by their unlawful conspiracy,
artificially raised, inflated, and maintained the market price of DRAM as herein alleged. 82. The contract, combination, and/or conspiracy consisted of a continuing
agreement, understanding, and concert of action among Defendants and their Coconspirators, the substantial terms of which were to fix, raise, maintain, and stabilize the prices of, and/or allocate the market for, DRAM sold throughout the world, including the United States. 29
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83.
Upon information and belief, for the purposes of formulating and
effectuating their contract, combination, and/or conspiracy, Defendants and their Coconspirators did those things they contracted, combined or conspired to do, including:
a. participating in meetings and conversations to discuss the prices of and/or
allocate the global market for DRAM;

b. agreeing to manipulate capacity, production, and prices so as to boost
sagging DRAM prices in a manner that deprived direct purchasers of free and open competition;
c. issuing price announcements and price quotations in accordance with the
agreements they reached; and

d. selling DRAM to customers throughout the world, including the United
States, at artificially inflated and non-competitive prices. 84. The above contract, combination and/or conspiracy has had the following
effects, among others:

a. price competition in the sale of DRAM by Defendants and their Co-
conspirators has been restrained, suppressed, and eliminated throughout the world, including the United States;
b. prices for DRAM sold by Defendants and their Co-conspirators have been
raised, fixed, maintained, and stabilized at artificially high and noncompetitive levels throughout the world, including the United States; and
c. purchasers of DRAM from Defendants and their Co-conspirators have been
deprived of the benefit of free and open competition in the purchase of DRAM. 85. As a direct and proximate result of the unlawful conduct of Defendants and
their Co-conspirators in furtherance of their continuing contract, combination, and/or conspiracy, Plaintiffs have been injured in their business and property in that they have 30
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paid more for DRAM than they otherwise would have paid in the absence of Defendants and their Co-conspirators unlawful price fixing. SECOND CAUSE OF ACTION (Violation of Californias Cartwright Act Under 16700 Et Seq. Of The California Business & Professions Code Against All Defendants) 86. Plaintiffs incorporate by reference, as if fully set forth, paragraphs 1
through 85 of this Amended Complaint. 87. Beginning in or about January 1997, the exact date being unknown to
Plaintiffs, and continuing thereafter at least through 2002, Defendants and their Coconspirators, by and through their officers, directors, employees, agents, or other representatives, violated Section 16700 et seq. of the California Business and Professions Code (Section 16700 or Cartwright Act) by entering into and engaging in a continuing unlawful trust in restraint of trade and commerce, as described above. During the Cartel Period, Defendants and their Co-conspirators effected this unlawful trust, and violated Section 16700, by combining, conspiring, and/or agreeing to fix, raise, stabilize, and maintain the prices of, and/or allocate the market for, DRAM at supra-competitive levels. Section 16720 of the Cartwright Act expressly forbids the creation of such unlawful trusts. 88. The purpose of Defendants and their Co-conspirators unlawful
combination, conspiracy, and/or agreement was to create artificially-inflated DRAM prices in the marketplace, thereby providing Defendants and their Co-conspirators with substantially higher revenues and profits than would otherwise have been the case in a truly competitive market. 89. In forming, and in furtherance of, this unlawful combination, conspiracy,
and/or agreement, Defendants and their Co-conspirators engaged in acts, practices, and courses of conduct, which included, but are not limited to, the following: a. participating in meetings and/or discussions amongst themselves, as discussed more fully above, for the purpose of coordinating DRAM 31
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production reductions to limit supply and fix, raise, stabilize, and maintain the prices of, and/or allocate the market for, DRAM; b. participating in meetings, discussions, and/or communications amongst themselves, as discussed more fully above, for the purpose of exchanging information about DRAM prices and setting price ranges for DRAM to fix, raise, stabilize, and maintain the prices of, and/or allocate the market for, DRAM; c. participating in meetings, discussions, and/or communications amongst themselves, as discussed more fully above, for the purpose of setting DRAM contract prices for OEM customers to fix, raise, stabilize, and maintain the prices of, and/or allocate the market for, DRAM; and d. using their best efforts to ensure that the prices each charged its customers for DRAM were within the price range, or at the same price, agreed to during the meetings, discussions, and/or communications held amongst themselves. 90. As a direct consequence of Defendants and their Co-conspirators acts,
practices, and course of conduct in implementing the unlawful trust, the following have occurred:
a. DRAM price competition has been restrained, suppressed, and/or
eliminated, including, but not limited to, within and throughout the State of California;
b. DRAM price has been fixed, raised, maintained, and stabilized at a
high and artificial level, including, but not limited to, within and throughout the State of California;
c. Plaintiffs have been deprived of the benefit of free and openly
competitive negotiations for DRAM in the marketplace; and 32

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d. Plaintiffs have been forced to pay artificially high prices for DRAM
for use in their computer systems and network products. 91. As a direct and proximate result of Defendants and their Co-conspirators
unlawful combination, conspiracy and/or agreement, Plaintiffs have been injured in their business and property in that they had to pay more for DRAM than they would have paid in an otherwise free and open marketplace. Plaintiffs are unable to state their damages with precision at this time, because that determination will require discovery and accounting analysis of Defendants and their Co-conspirators books and records. Nevertheless, under Section 16750(a) of the Business and Professions Code, Plaintiffs are entitled to interest on the aforementioned sum from the dates of service of this Amended Complaint until entry of judgment thereon, to its costs of suit, including reasonable attorneys fees and treble damages. THIRD CAUSE OF ACTION (Unfair Competition Under 17200 Et Seq. Of The California Business & Professions Code Against All Defendants) 92. Plaintiffs incorporate by reference, as if fully set forth, paragraphs 1
through 91 of this Amended Complaint. 93. Plaintiffs bring this action pursuant to Sections 17203 and 17204 of the
California Business and Professions Code, to obtain restitution from Defendants for acts, as alleged herein, that violate Section 17200 et seq. of the California Business and Professions Code, commonly known as the Unfair Competition Act. 94. Beginning in or about January 1997, the exact date being unknown to
Plaintiffs, and continuing thereafter at least through 2002, Defendants and their Coconspirators, by and through their officers, directors, employees, agents, or other representatives committed, and continue to commit, acts of unfair competition, as defined by Sections 17200 et seq. of the California Business and Professions Code. Defendants and their Co-conspirators acts of unfair competition, more fully alleged in paragraphs 1 through 91 above, included participating in an unlawful combination, conspiracy, and/or 33
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agreement to fix, raise, stabilize, and maintain the prices of, and/or allocate the market for, DRAM prices and making misrepresentations, or fraudulently concealing relevant information, concerning the reason for increased DRAM prices. 95. Plaintiffs have standing to bring this action, because they purchased DRAM
from Defendants and their Co-conspirators during the period January 1997 to the present. In doing so, Plaintiffs were injured by Defendants and their Co-conspirators unlawful actions, because they paid more for DRAM than they otherwise would have, as described more fully above. These higher prices caused Plaintiffs to lose money and customers, who could not afford to purchase Plaintiffs products containing artificially high-priced DRAM. 96. Defendants and their Co-conspirators conduct as alleged herein violates
Section 17200 et seq. The unlawful combination, conspiracy, and/or agreement effected by Defendants and their Co-conspirators, as well as their acts, omissions, misrepresentations, practices, and non-disclosures in furtherance thereof, as alleged herein, constitute a common continuous and continuing course of conduct of unfair competition by means of unfair, unlawful, and/or fraudulent business acts or practices within the meaning of California Business and Professions Code, Section 17200 et seq. including, but in no way limited to, the following:
a. Defendants and their Co-conspirators violations of 15 U.S.C. 1 and
Section 16700 et seq., of the California Business and Professions Code, as set forth in Paragraphs 1 through 91, above;
b. Defendants and their Co-conspirators acts, omissions,
misrepresentations, practices, and non-disclosures regarding how they set DRAM prices, as described in Paragraphs 1 through 91 above whether or not in violation of 15 U.S.C. 1 and Section 16700 et seq. of the California Business and Professions Code, and whether or not concerted or independent acts are otherwise unfair, unlawful, or fraudulent; 34
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c. Defendants and their Co-conspirators act and practices, as alleged in
paragraphs 1 through 91, are unfair to consumers of DRAM in the State of California and throughout the United States, within the meaning of Section 17200 et seq., California Business and Professions Code; and
d. Defendants and their Co-conspirators acts and practices, as alleged
in paragraphs 1 through 91, are fraudulent or deceptive within the meaning of Section 17200 et seq. of the California Business and Professions Code. 97. The aforementioned unlawful and unfair business practices of Defendants
and their Co-conspirators have injured and present a continuing threat of injury to Plaintiffs. Defendants and their Co-conspirators conduct has restrained competition in the DRAM market, has caused Plaintiffs to pay supra-competitive and artificially-inflated prices for DRAM, and has deceived, and may continue to deceive, Plaintiffs with respect to the manner in which the prices charged for DRAM have been and will be set. Thus, Plaintiffs are informed and believe that Defendants and their Co-conspirators may continue to persist in this conduct and commit the aforementioned acts unless and until the Court orders Defendants to cease and desist. 98. Defendants and their Co-conspirators have been unjustly enriched as a
result of their wrongful conduct and unfair competition. Plaintiffs are accordingly entitled to equitable relief, including restitution and/or disgorgement of all revenues, earnings, profits, compensation, and benefits in order to restore money lost by Plaintiffs and that may have been obtained by Defendants and their Co-conspirators as a result of such unfair business acts and practices, pursuant to the California Business and Professions Code, Sections 17203 and 17204. In addition, Plaintiffs seek a permanent injunction enjoining Defendants, and their officers, directors, employees, agents, or other representatives, and all others acting in concert with Defendants to cease and desist from colluding together to fix, raise, stabilize, and maintain the prices of, and/or allocate the 35
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market for, DRAM prices and making misrepresentations, or fraudulently concealing relevant information, concerning the reason for increased DRAM prices. I. Tolling of the Applicable Statute of Limitations due to Fraudulent Concealment 99. Plaintiffs incorporate by reference, as if fully set forth, the allegations of
paragraphs 1 through 78 of this Amended Complaint. 100. Plaintiffs had no knowledge of the combination and conspiracy alleged
herein, or of any facts that might have led to the discovery thereof in the exercise of reasonable diligence, prior to June 2002 when Defendants Hynix and Infineon and Coconspirators Micron and Samsung first disclosed publicly that the DOJ was investigating the DRAM industry. 101. Defendants and their Co-conspirators engaged in a successful price-fixing
conspiracy concerning DRAM computer chips, which they affirmatively concealed, at least in the following respects:
a. By meeting secretly to discuss prices, and customers and markets, of
DRAM computer chips sold in the U.S. and elsewhere; and

b. By agreeing among themselves at meetings and in communications not to
discuss publicly, or otherwise reveal, the nature and substance of the acts and communication in furtherance of the illegal scheme. 102. Price increases for DRAM before and during the Cartel Period were not
unusual. Plaintiffs were therefore conditioned, by experience in dealing with Defendants and their Co-conspirators in what they believed to be a competitive industry, to expect price increases from time to time. 103. Plaintiffs could not have discovered the existence of the combination and
conspiracy alleged herein at an earlier date by the exercise of reasonable due diligence, because of the deceptive practices and techniques of secrecy employed by Defendants and their Co-conspirators to avoid detection and affirmatively conceal such violations. Defendants and their Co-conspirators consistently ascribed their price increases to 36
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ordinary market forces and consideration including, without limitation, falsely attributing price increases to increased demand, shortages in supply, increased manufacturing costs, increased prices of labor and of raw materials, and/or insufficient production capacity. Such false statements included, without limitation:
a. The statement of Samsungs vice president of marketing, Avo Kanadjian, in
a September 13, 1999, article, alleged more fully above in paragraph 63, that higher prices were attributable to a DRAM shortage, which was concurred upon by Chee-Wai Ho, director of product marketing for memory products at Infineon; and,
b. Hynixs April 15, 2002, representation, alleged in paragraph 68, that its
increased revenues resulted from increased demand in the DRAM market. 104. Defendants and their Co-conspirators also falsely informed their customers
that they were unable to sell their products at a lower price due to increased manufacturing costs, increased prices of labor and of raw materials, and insufficient production capacity. 105. Plaintiffs had no reason to disbelieve these statements. Furthermore, most
of the explanations provided by Defendants and their Co-conspirators involved nonpublic and/or proprietary information completely in Defendants and their Coconspirators control such that Plaintiffs could not verify their accuracy. Defendants and their Co-conspirators purported reasons for their price increases of DRAM were materially false and misleading and were made for the purpose of concealing Defendants and their Co-conspirators anti-competitive scheme, as alleged herein. In truth, at all relevant times, the price of DRAM was artificially inflated and maintained as a direct result of Defendants and their Co-conspirators anticompetitive scheme, the operation of which was a substantial (but undisclosed) factor in the pricing of DRAM during the Cartel Period. 106. As a result of the fraudulent concealment of the conspiracy, Plaintiffs assert
the tolling of the applicable statute of limitations affecting Plaintiffs claims. 37

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J.
Damages/Restitution 107. During the Cartel Period, Plaintiffs purchased DRAM from Defendants and
their Co-conspirators, or their subsidiaries, agents, and/or affiliates, and, by reason of the antitrust violations herein alleged, paid more for such products than they would have paid in the absence of such antitrust violations. As a result, Plaintiffs have sustained damages to their business and property, and Defendants and their Co-conspirators wrongfully acquired money from Plaintiffs in an amount to be determined at trial. K. Prayer for Relief WHEREFORE, Plaintiffs demand judgment against Defendants, and each of them, as follows: 108. A declaration that the unlawful contract, combination and/or conspiracy
alleged herein is an unreasonable restraint of trade of commerce in violation of Section 1 of the Sherman Act, 15 U.S.C. 1 (2000 suppl. 2), and in violation of Sections 16700 et seq. and 17200 et seq. of the California Business and Professions Code; 109. An injunction enjoining, preliminarily and permanently, Defendants and all
those acting in concert or in active participation with Defendants from continuing the unlawful combination and conspiracy alleged herein; 110. An award to Plaintiffs of damages, as provided by law, and joint and
several judgments in favor of Plaintiffs against Defendants, and each of them, in an amount to be trebled in accordance with the federal and California antitrust laws; 111. For restitution and disgorgement of revenues, earnings, profits,
compensation, and benefits that have been wrongfully taken by Defendants and their Coconspirators from Plaintiffs as provided by 17200 et seq. of the California Business & Professions Code; 112. An award to Plaintiffs for the costs of this suit (including expert fees), and
reasonable attorneys fees, as provided by law; and
38
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113.
An award to Plaintiffs for such other and further relief as the nature of this
case may require or as this Court deems just, equitable and proper. DATED: May 4, 2007 CROWELL & MORING LLP
By:
/s/ Daniel A. Sasse Kent A. Gardiner Kathryn D. Kirmayer Jerome A. Murphy 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Phone: 202-624-2578 Fax: 202-628-5116 Daniel A. Sasse Christine E. Cwiertny 3 Park Plaza, 20th Floor Irvine, CA 92614-8505 Phone: 949-263-8400 Fax: 949-263-8414 Counsel for Plaintiffs Sun Microsystems, Inc. and Unisys Corporation
DEMAND FOR JURY TRIAL 114. Sun and Unisys demand a trial by jury, pursuant to Federal Rules of Civil
Procedure, Rule 38(b), of all triable issues. DATED: May 4, 2007 CROWELL & MORING LLP By: /s/ Daniel A. Sasse Kent A. Gardiner Kathryn D. Kirmayer Jerome A. Murphy 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Phone: 202-624-2578 Fax: 202-628-5116 Daniel A. Sasse Christine E. Cwiertny 3 Park Plaza, 20th Floor Irvine, CA 92614-8505 Phone: 949-263-8400 Fax: 949-263-8414 Counsel for Plaintiffs Sun Microsystems, Inc. and Unisys Corporation 39
DCACTIVE 3052733 2
EXHIBIT B
EXHIBIT C
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GIBSON, DUNN & CRUTCHER LLP JOEL S. SANDERS, SBN 107234 JSanders@gibsondunn.com G. CHARLES NIERLICH, SBN 196611 GNierlich@gibsondunn.com MICHAEL CECCHINI, SBN 237508 MCecchini@gibsondunn.com 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
ORACLE AMERICA, INC., Plaintiff, v. MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants.
CASE NO. 10-cv-04340 PJH Action Filed: September 24, 2010 DECLARATION OF G. CHARLES NIERLICH
DECLARATION OF G. CHARLES NIERLICH
Case No. 10-cv-04340 PJH
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1. I, G. Charles Nierlich, am an attorney licensed to practice law in the State of California. I am a partner with the law firm of Gibson, Dunn & Crutcher LLP, counsel of record for defendants Micron Technology, Inc. and Micron Semiconductor Products, Inc. (Micron) in the abovecaptioned matter. I submit this declaration in support of Microns request for up to 20 depositions of party witnesses per side, plus any depositions of third parties. 2. Based on a review of our records concerning the related case Sun Microsystems, Inc., et al. v. Hynix Semiconductor, Inc., et al., Case No. C 06-01665 PJH (N.D. Cal.) (Sun), the defendants in Sun took 16 depositions of Sun Microsystems, Inc. personnel and 12 depositions of personnel affiliated with other opt-out plaintiffs. 3. Micron was not a party to, and did not participate in, any of the defendants fact depositions of Sun Microsystems, Inc. personnel in Sun. 4. Many of the key Sun witness depositions were captioned and noticed only for Sun and not for the related opt-out cases to which Micron was a party. 5. During oral meet-and-confer discussions concerning Oracles deficient written discovery responses, Oracles counsel argued that certain information Micron requested by interrogatories or other written discovery is more appropriately addressed through depositions. I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 20, 2011 in New York, New York. ___________/s/ G. Charles Nierlich G. Charles Nierlich
DECLARATION OF G. CHARLES NIERLICH
Case No. 10-cv-04340 PJH
EXHIBIT D
Case4:10-cv-04340-PJH Document62 Filed06/20/11 Page63 of 211 Case4:10-cv-04340-PJH Document27 Filed12/02/10 Page1 10
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Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP JOEL S. SANDERS, SBN 107234 JSanders@gibsondunn.com G. CHARLES NIERLICH, SBN 196611 GNierlich@gibsondunn.com MICHAEL CECCHINI, SBN 237508 MCecchini@gibsondunn.com JENNA MUSSELMAN YOTT, SBN 251901 JYott@gibsondunn.com 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION
ORACLE AMERICA, INC., Plaintiff, v. MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Defendants.
CASE NO. 10-cv-04340 PJH Action Filed: September 24, 2010 JOINT CASE MANAGEMENT STATEMENT Hon. Phyllis J. Hamilton Date: Time: Location: Judge: December 9, 2010 2:00 p.m. Courtroom 3, 3rd Floor Hon. Phyllis J. Hamilton
Trial Date: None set
JOINT CASE MANAGEMENT STATEMENT CASE NO. CV 10-4340
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Pursuant to the Courts Order Setting Case Management Conference, dated October 26, 2010, Plaintiff Oracle America, Inc. (Oracle), formerly known as Sun Microsystems, Inc. (Sun),1 and Defendants Micron Technology, Inc. and Micron Semiconductor Products, Inc. (Micron) submit this Joint Case Management Statement. Except as indicated, the parties have agreed on the proposals in this statement. This action is related to the various other DRAM antitrust litigation matters with which the Court is familiar. 1. Jurisdiction and Service. The Court has subject matter jurisdiction over the federal
antitrust claims under 28 U.S.C. 1331 and 1337. The Court has subject matter jurisdiction over the various state law claims under 28 U.S.C. 1367. Defendants have accepted service. Defendants do not challenge subject matter or personal jurisdiction regarding the domestic sales of DRAM at issue in this action. 2. Facts. The Court is familiar with the nature of the DRAM litigations in general and
those facts are not repeated here. It is Microns view that there are distinctive facts here that relate to Oracle and Micron, including: (a) extent of damages; (b) how plaintiff and defendants negotiated purchases of DRAM; (c) the extent to which Oracle is claiming damages based on DRAM purchases made through third parties and Oracles relationships with those third parties; and (d) whether there is any evidence of allegedly anticompetitive conduct by Micron relating to Oracles DRAM purchases. It is Oracles view that the issues in this case are essentially identical to those in Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 06-cv-01665-PJH (N.D. Cal.) and related opt-out cases. Micron was a party to those related cases, as well as the DRAM MDL, and participated in most of the depositions in the Sun case because those depositions were cross-noticed in the related cases and all discovery in those cases was coordinated by stipulation of the parties and order of this Court.
Oracle states that on February 15, 2010, Oracle USA, Inc. merged with and into Sun. Sun, the surviving corporation, was then renamed Oracle America, Inc.
1
2
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3.
Legal Issues. Defendants raised a variety of legal issues in the pending motion to
dismiss pursuant to Fed. R. Civ. P. 12 and Fed. R. Civ. P. 8. On December 2, 2010, the parties entered into a stipulation narrowing those issues. As a consequence, the only legal issue presently before this Court in connection with that motion to dismiss is whether Oracle has standing to bring claims under California law based on indirect purchases of DRAM through third-party external manufacturers. 4. Motions. As discussed in paragraph 3 above, there is a pending motion to dismiss
under Fed. R. Civ. P. 12 and Fed. R. Civ. P. 8. Pursuant to stipulation, the parties have agreed to narrow the issues raised in that motion. Briefing is under way, and oral argument has been set for January 12, 2011. This action is not brought as a class action, so there will be no class certification motion. Motion practice may be necessary regarding whether Micron is entitled to the damage limitations of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (ACPERA). It is premature to determine whether some or all issues can be resolved on summary judgment. 5. Amendment of Pleadings. Plaintiff and defendants currently do not anticipate adding
or dismissing any parties. As noted above in paragraph 4, there is a pending motion to dismiss. Following the Courts ruling on that motion, plaintiffs complaint may need to be amended. The parties agree that the Court should provide a deadline for plaintiffs amendment of its complaint, if any is allowed or required, when ruling on the motion to dismiss. Defendants have not yet answered the complaint, so it is premature to determine whether any defenses will need to be added or dismissed or schedule a deadline for the amendment of defendants answer. 6. Evidence Preservation. The parties have taken appropriate steps to preserve evidence
relating to the issues that are likely to be relevant to this action. Micron states that it has maintained and produced all documents during the relevant time period that relate to the various DRAM antitrust litigations before this Court. Those document collection and preservation efforts also applied to DRAM sales made to Sun. Oracle states that it has maintained all documents from the relevant time period that were collected and produced by its predecessor, Sun, in Sun Microsystems, Inc. v. Hynix Semiconductor, 3
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Inc., et al., Case No. 06-cv-01665-PJH (N.D. Cal.), an action Sun brought against other DRAM suppliers based on allegations that are essentially identical to those asserted against Micron here. 7. Disclosures. The parties have made full and timely compliance with the initial
disclosure requirements of Fed. R. Civ. P. 26. The parties have disclosed (a) the individuals likely to have discoverable information regarding this case; and (b) categories of documents, electronically stored information, and tangible things that the parties expect to provide support for their claims and defenses, to the extent that such materials can be or have been identified at this early stage in the litigation. 8. Discovery. The parties seek to avoid unnecessary duplicative discovery by using, to
the extent practicable, the discovery produced in related litigations, In re Dynamic Random Access Memory (DRAM) Antirust Litigation, Case No. 02-md-01486-PJH (N.D. Cal.), and Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 06-cv-01665-PJH (N.D. Cal.). To that end, the parties agree to maximize use of their own documents, discovery responses, and employee depositions produced in those litigations. However, under the protective orders in those actions, the documents and discovery responses of other parties (e.g., Samsung) cannot be used in any other case absent those parties consent. The parties will work together to address any confidentiality concerns that may be raised by those producing entities as to their discovery materials. Oracle notes that this Court has already related this case to In re Dynamic Random Access Memory (DRAM) Antirust Litigation, Case No. 02-md-01486-PJH (N.D. Cal.), see Docket No. 16, and believes that this case should be treated as part of the DRAM MDL, and that any discovery produced in the DRAM MDL or any related cases, should be made available for use in this case. In Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 06-cv-01665-PJH (N.D. Cal.), the Court ordered that All discovery propounded and/or received by any party in the MDL shall be made available to all parties to these Actions for use therein, see Docket No. 144 at 4, subject to the protective orders entered in that case and the DRAM MDL. Oracle believes that a similar order should be made in this case. Micron notes that the use of depositions from other cases or relating to parties other than Micron and Sun may be limited by the terms of various protective orders, the Federal Rules of Civil 4
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Procedure, and the Federal Rules of Evidence. See e.g., Fed. R. Civ. P. 32(a)(8) and Fed. R. Evid. 804(b)(1). Oracle believes that the Federal Rules generally allow for the use of former testimony and would permit the parties to use most of the deposition testimony taken in the DRAM MDL and related cases in this action. See, e.g., Federal Rule of Evidence 804(b)(1). Micron believes that Oracle already possesses all Micron-related discovery from the related DRAM matters. However, in response to Oracles request for such information, Micron has agreed to provide Oracle with a list of all Micron-related discovery produced by Micron in related DRAM matters in order to enable Oracle to determine whether such discovery is already in its possession. To the extent plaintiff notifies Micron that it does not already possess that discovery, Micron will produce it. In addition, Micron has offered to provide Oracle the types of cooperation specified in the civil damage limitation provisions of ACPERA. Oracle disputes whether the damage limitations of ACPERA apply to Micron. Oracle provided Micron with its document production from the Sun v. Hynix case, Bateslabeled SUN000001 through SUN0546795, which was sent on November 24, 2010 and received by Microns counsel on November 29, 2010. In addition, Oracle is in the process of gathering and producing discovery responses and deposition transcripts from Sun v. Hynix that are not in Microns possession. Micron has not yet reviewed copies of Oracles discovery responses and document productions from the Sun v. Hynix case. The parties expect that they will need to engage in additional discovery from each other and third parties, including document requests, interrogatories and depositions, relating to key issues and issues that are specific to this case. 9. 10. Class Actions. This case is not a class action. Related Cases. Other than the related DRAM antitrust litigations before this Court,
there are no other related cases or proceedings pending before another judge of this Court, or before another court or administrative body. 11. Relief. Plaintiff seeks money damages, including treble damages, in an amount to be
proven at trial, along with restitution and disgorgement under 17200 et seq. of the California Bus. & Prof. Code, injunctive relief, declaratory relief, costs and fees. There are no counterclaims. The 5
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parties expect to set forth the basis on which they contend damages, if any, should be calculated in expert reports following the conclusion of fact discovery. 12. Settlement and ADR. The parties engaged in settlement discussions and mediation
with Randall Wulff before Oracle filed its complaint. There are currently no ongoing settlement discussions. Consistent with ADR L.R. 3-5, the parties have discussed ADR options and will explore those options as the case continues. The parties anticipate that if an ADR option is pursued, it would be accomplished through private mediators jointly selected by the parties. 13. Consent to Magistrate Judge for All Purposes. The parties are not prepared to consent
to trial before a Magistrate Judge at this time. The parties agree that any discovery disputes should be referred to Magistrate Judge Spero, as has been done in other DRAM matters. 14. Other references. The case is not suitable for reference to binding arbitration, a
special master, or the Judicial Panel on Multidistrict Litigation. 15. Narrowing of Issues. It may be possible to narrow some of the factual issues relating
to liability by stipulation, although it is presently premature to do so. The parties will revisit this question as discovery progresses and trial nears. 16. Expedited Schedule. Micron does not believe that this is the type of case that can be
handled on an expedited basis with streamlined procedures. Micron notes that it just received (on November 29) Oracles document production from Sun v. Hynix, which consists of over 500,000 pages. Micron has not had an opportunity to review these documents, nor does Micron yet possess Oracles discovery responses and all deposition transcripts from the Sun case. Micron also notes that it will be required to take discovery of third parties, and may be required to take discovery of other DRAM suppliers because Micron was not a party to the Sun case. Although Micron believes that, as Oracle indicates below, it possesses the discovery taken by Sun of those suppliers in the Sun case, Micron cannot independently verify this fact. Moreover, Micron is not, and should not be, bound by the discovery decisions made by Sun and other parties. In short, Micron anticipates taking some additional discovery. Oracle, on the other hand, believes that, because discovery is largely complete and the relevant legal issues have, for the most part, already been addressed, this is the type of case that can 6
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be handled on an expedited basis. Oracle notes that Micron was, and still is, a party to Jaco Electronics, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 07-cv-01212-PJH (N.D. Cal.), All American Semiconductor, Inc. v. Hynix Semiconductor, Inc., et al., Case No. 07-cv-01200-PJH (N.D. Cal.), and DRAM Claims Liquidation Trust, By Its Trustee Wells Fargo Bank, NA v. Hynix Semiconductor, Inc., et al., Case No. 07-cv-01381-PJH (N.D. Cal.). Any discovery taken of other DRAM suppliers in the Sun action would have also been taken as part of the Jaco, All American, and DRAM Claims actions, so Micron would already have access to that discovery. 17. Scheduling. The parties were not able to agree on a suggested pretrial and trial
schedule. Consequently, this paragraph and paragraph 18 contain each partys respective suggestions on the case schedule. Micron notes that since it has only just received Oracles document production from Sun and does not possess Oracles discovery responses or all deposition transcripts from that action, it will be in a better position to propose a pretrial schedule after having had an opportunity to review those materials. In addition, at this time it is unknown if other DRAM suppliers will consent to the use of their discovery and documents produced in the prior DRAM litigations. Given these uncertainties, Micron suggests that the Court defer setting a pretrial schedule at this time and instead schedule a Case Management Conference for February 2011 so the parties may provide a more informed proposed schedule at that time. If, however, the Court is inclined to set the schedule now, Micron submits the dates proposed in the table below. Oracle submits that, as Micron told this Court in a case management submission in earlier litigation, [t]here is substantial overlap between the various plaintiffs claims in all the DRAM civil litigation before this Court. Significantly, the various plaintiffs claims appear to be based upon substantially similar alleged wrongful conduct and will therefore likely involve overlapping witnesses and documentary evidence. See DRAM MDL, Docket No. 1030 at 3. The various parties to the DRAM MDL and related cases have fleshed out the discovery record substantially. There is little reason to prolong the discovery period as requested by Micron. Additionally, if the Court makes this action part of the DRAM MDL and orders that the parties be permitted to use the discovery made
7
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available in the DRAM MDL, as set forth in paragraph 8 above, any costs and delay caused by duplicative discovery would be reduced, streamlining even more the discovery in this case.
Event Oracle provides Micron with all of Oracles discovery materials from the Sun v. Hynix litigation; Micron provides Oracle with a list of all Micron-related discovery produced by Micron in related DRAM matters Deadline for service of initial supplemental Requests for Production Fact discovery closes Deadline for Oracles expert reports Deadline for Microns expert reports Deadline for Oracles expert rebuttal reports Expert discovery closes Deadline for ADR Deadline for dispositive motions Deadline for oppositions to dispositive motions Deadline for reply briefs in support of dispositive motions Oracles Proposed Date December 15, 2010 Microns Proposed Date December 15, 2010
February 28, 2011
February 28, 2011
July 1, 2011 August 1, 2011 (+31 days) September 14, 2011 (+75 days) October 31, 2011 (+122 days) November 28, 2011 (+150 days) January 12, 2012 (+195 days) February 13, 2012 (+227 days) March 27, 2012 (+ 270 days) April 26, 2012 (+300 days)
December 23, 2011 January 23, 2012 (+31 days) March 23, 2012 (+90 days) May 7, 2012 (+135 days) June 21, 2012 (+180 days) August 6, 2012 (+226 days) September 19, 2012 (+270 days) November 5, 2012 (+317 days) December 20, 2012 (+362 days)
18.
Trial. Plaintiff demands a trial by jury. It is premature to know whether the case can
be bifurcated. Regarding the anticipated length of trial, the parties have slightly differing views as follows: Microns Position: It is also too early to know how long trial will last. However, it is likely that trial of all issues would take 4 to 6 weeks. Oracles Position: It is not currently able to estimate the anticipated length of trial, or to determine whether it is possible to reduce the length of trial by stipulation, use of summaries, or other expedited means of presenting evidence. However, because in 8
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the Sun v. Hynix case, which involved two defendants, the Court allotted two weeks for trial, Oracle does not believe that trial in this case, which involves just one defendant, is likely to require more than two weeks. 19. Disclosure of Non-party Interested Entities or Persons: The following listed
corporations or other entities (i) have a financial interest in the subject matter in controversy or is a party to the proceeding, or (ii) have a non-financial interest in the subject matter or is a party that would be substantially affected by the outcome of the proceeding: (a) Oracle America, Inc. states that Oracle Systems Corporation is its parent
corporation and owns 100% of its common stock. Additionally, Oracle Global Holdings, Inc. owns more than 10% of the Series A preferred stock of Oracle America, Inc. Pursuant to Civil Local Rule 3-16, the undersigned counsel of record for Oracle America, Inc. certifies that, as of this date, the following listed persons, associations of persons, firms, partnerships, corporations (including parent corporations), or other entities have such an interest to report: Oracle Systems Corporation, Oracle Global Holdings, Inc., StorageTek International Corporation, and Oracle Corporation. (b) Micron Technology, Inc. states that it is a publicly traded company, it has no
parent corporation, and no publicly traded entities own more than 10% of Micron Technology, Inc. stock. Micron Semiconductor Products, Inc. is wholly owned by Micron Technology, Inc. Pursuant to Civil L.R. 3-16, the undersigned, counsel of record for Defendants Micron Technology, Inc. and Micron Semiconductor Products, Inc., certifies that as of this date, other than the plaintiffs and defendants in the actions consolidated by the Judicial Panel on Multidistrict Litigation, there is no such interest to report. These representations are made to enable the Court to evaluate possible disqualification or recusal. /// /// /// /// /// 9
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The parties look forward to working with each other and the Court at the December 9, 2010 hearing and throughout this litigation, in order to maximize efficiency for the Court and all concerned.
DATED: December 2, 2010 GIBSON, DUNN & CRUTCHER LLP JOEL S. SANDERS G. CHARLES NIERLICH MICHAEL CECCHINI JENNA MUSSELMAN YOTT
By:___/s/_Joel S. Sanders__________ Joel S. Sanders Attorneys for Defendants MICRON TECHNOLOGY, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC.
CROWELL & MORING LLP JEROME A. MURPHY KENT A. GARDINER MATTHEW MCBURNEY SUZANNE E. RODE By:___/s/_Jerome A. Murphy__________ Jerome A. Murphy Attorneys for Plaintiff ORACLE AMERICA, INC. ATTESTATION OF CONCURRENCE IN FILING In accordance with the Northern District of Californias General Order No. 45, Section X.(B), I attest that concurrence in the filing of this document has been obtained from each of the signatories who are listed above. ___ /s/_Michael Cecchini__________ Michael Cecchini
10
EXHIBIT E
EXHIBIT F
EXHIBIT G
May 26, 2011 Via E-Mail and U.S. Mail Matthew J. McBurney, Esq. Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Re: Oracle America, Inc. v. Micron Technology, Inc and Micron Semiconductor Technology Products, Inc., Case No. 10-CV-04340-PJH (N.D. Cal.) Dear Matt:
Michael Cecchini Direct: 415.393.8371 Fax: 415.374.8430 MCecchini@gibsondunn.com Client: 63440-00019
I am writing to follow up concerning the scheduling of depositions of Oracle and Sun witnesses. Your May 19 letter objects to Micron taking more than a total of ten depositions on the ground that most of the potential witnesses listed in your letters already have been deposed in those related actions. May 19 Letter at 1. But in the related actions to which you refer, Sun Microsystems, Inc. v. Hynix Semiconductor, Inc., et al. (Sun), Sun elected not to name Micron as a defendant, and thus counsel for Micron did not attend any of the Oracle/Sun employee depositions. Accordingly, Micron did not conduct any deposition questioning of Oracle/Sun employees. Moreover, Oracle/Sun elected not to provide official notice of those depositions to Micron before they occurred. 1 Your May 19 letter asserts that Micron taking depositions of witnesses who were deposed in the previous opt-out cases is somehow inconsistent with Microns agreement to avoid unnecessary duplicative discovery. May 19 Letter at 1. This assertion is incorrect. As I explained in my April 26 letter to you on this subject: We expect the depositions of witnesses previously deposed in the Sun litigation will be targeted, focusing primarily on matters of particular relevance to Micron and matters not covered in the previous deposition. April 26 Letter at 1. In fact, as I noted in my April 26 letter, we believe that for some witnesses who have previously been deposed, it may be possible to complete two depositions in one day. Id.
1 Your letter makes much of the fact that certain aspects of deposition scheduling in Sun
were coordinated with other opt-out cases to which Micron was a party. However, based on our records, it appears that few or none of the depositions of Oracle/Sun employees in Sun were noticed in those other opt-out cases. And in reviewing the transcripts of those depositions, many of themincluding key witnesses like Pete Wilson and Dick Ellis are captioned only in Sun and not the other opt-out cases.
Crowell & Moring May 26, 2011 Page 2 Your May 19 letter also states that Microns preliminary assessment of its deposition needs in this case somehow contradicts what Micron requested in those actions. But Micron had no role in negotiating the total number of depositions of Oracle/Sun witnesses because Micron was not a party to the case brought by Sun. Micron looks forward to completing the depositions in this case efficiently. We note, however, that if Oracle/Sun had wanted to avoid its employees with relevant knowledge being deposed once in the previous opt-out cases and again by Micron in this case, Oracle/Sun could have named Micron as a defendant in the previous opt-out cases, and then Micron would have questioned the witnesses with relevant knowledge at that time. Micron should not be prevented from non-duplicative questioning of witnesses who may have relevant knowledge because Oracle/Sun made the strategic litigation decision to name other DRAM manufacturers previously, but to wait to name Micron until the present lawsuit. Finally, we note that Judge Speros Order re Discovery Plan that you cited from the previous opt-out cases clearly contemplates limited questioning of witnesses who have previously been deposed in related cases, stating that any limitation on depositions in those cases does not prohibit non-repetitive deposition questioning of witnesses already deposed in the MDL litigation. Order at 1. We hope that you will reconsider your position that Micron should not be permitted to take more than ten depositions in this case. Assuming you do not reconsider, we recognize that this matter will need to be resolved by the Court following an in-person meet-and-confer. We request an in-person meet-and-confer within ten days of the date of this letter. We are amenable to conducting that in-person meet-and-confer at the same time as the in-person meet-and-confer concerning Oracles deficient discovery responses, provided that the meetand-confer takes place within ten days, so that we may get this issue resolved as soon as possible. Please advise whether Oracle has changed its position and, if not, when you are available for the in-person meet-and-confer session. Sincerely,
/s/ Michael Cecchini MGC

101083327.2
EXHIBIT H
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) In re: Dynamic Random Access Memory (DRAM) ) Antitrust Litigation ) ) ) ) THIS DOCUMENT RELATES TO: ) ) Sun Microsystems, Inc. and Unisys Corporation, ) ) v. ) Hynix Semiconductor, Inc., et al. ) ) ) All American Semiconductor, Inc., ) v. ) Hynix Semiconductor, Inc., et al. ) ) ) Edge Electronics, Inc., ) v. ) Hynix Semiconductor, Inc., et al. ) ) ) Jaco Electronics, Inc., ) v. ) Hynix Semiconductor, Inc., et al. ) ) ) Dram Claims Liquidation Trust, By Its Trustee, ) Wells Fargo Bank, N.A., ) v. ) Hynix Semiconductor, Inc., et al. ) ) )
Docket No. 06-cv-1665
EXPERT REPORT OF HALBERT L. WHITE, JR., PH.D. December 14, 2007 HIGHLY CONFIDENTIAL
Highly confidential
Expert Report of Halbert L. White, Jr., Ph.D.

I. Executive summary
Figure 16: Plaintiffs' U.S. purchases, overcharge percentages, and single damages by defendants during the plea and lingering effects period
Plaintiff Entity Supplier Hynix Micron Mosel Samsung Winbond NEC Micron Mosel NEC Hynix Mosel Samsung Hynix Mosel Samsung Elpida NEC Micron Mosel Nanya Samsung Purchases $17,357,558 $145 $637,009 $79,836,620 $93,920 $97,925,252 $7,785,710 $4,646,399 $3,647 $12,435,755 $800 $577,956 $3,111 $213,731 $795,598 $2,448,521 $12,240 $43,257,034 $45,717,795 $190,078 $(7,212) $25,915,898 $187 $432,006 $42,980,440 $69,511,396 $116,024,789 $9,322,221 $18,487,991 $34,094,809 $1,500 $460,200 $49,953,007 $112,319,728 $194,652 $65,286,380 $92,093,813 $37,256,833 $318,630,099 $295,786,551 $1,255,136,116 $2,064,189,792 $2,064,384,444 $1,824,401 $2,885,041 $8,289,337 $8,336,169 $26,455,989 $610,208 $34,276,701 $82,677,846 $2,485,767,815 Overcharge 40.2% 31.6% 42.5% 33.9% 4.7% 35.0% 34.6% 42.7% 46.5% 37.7% 29.1% 35.4% 2.4% 32.6% 34.5% 38.2% 9.2% 31.4% 31.8% 9.5% 12.6% 15.4% 23.7% 12.0% 26.7% 22.4% 26.1% 49.3% 34.7% 38.3% 66.0% 65.2% 61.6% 49.1% 3.0% 28.8% 45.6% 8.9% 42.0% 40.2% 39.6% 39.4% 39.4% 15.1% 18.5% 15.6% 31.2% 23.7% 10.1% 24.3% 23.4% 38.5% Single damages $6,977,069 $46 $270,908 $27,055,324 $4,396 $34,307,742 $2,696,459 $1,984,938 $1,696 $4,683,093 $232 $204,730 $75 $69,761 $274,798 $936,521 $1,121 $13,578,773 $14,516,415 $18,076 $(911) $3,985,624 $44 $51,677 $11,485,230 $15,539,740 $30,330,953 $4,593,140 $6,421,832 $13,044,019 $990 $300,268 $30,792,453 $55,152,703 $5,917 $18,813,712 $41,995,139 $3,315,900 $133,841,584 $118,779,365 $496,417,846 $813,163,547 $813,169,464 $276,329 $533,274 $1,291,953 $2,597,575 $6,264,105 $61,795 $8,312,480 $19,337,510 $956,981,464
All American
All American
All American Total Edge Edge Total Edge
Interface
Interface Total Jaco Jaco Jaco Total
Reptron
Reptron Total Jaco Total Elpida Hitachi NEC Hynix Micron Samsung Micron Elpida Hynix Infineon Micron Mitsubishi Samsung
SGI
SGI
SGI Total Cobalt
Sun
Sun
Sun Total Sun Total Hitachi NEC Hynix Infineon Micron Mitsubishi Samsung
Unisys
Unisys
Unisys Total Total
Highly confidential
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EXHIBIT I
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Kent A. Gardiner (pro hac vice) Kathryn D. Kirmayer (pro hac vice) Jerome A. Murphy (pro hac vice) David D. Cross (pro hac vice) Matthew J. McBurney (pro hac vice) CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Telephone: (202) 624-2500 Facsimile: (202) 628-5116 E-mail: kgardiner@crowell.com kkirmayer@crowell.com jmurphy@crowell.com dcross@crowell.com mmcburney@crowell.com Daniel A. Sasse (CA Bar No. 236234) Theresa C. Lopez (CA Bar No. 205338) CROWELL & MORING LLP 3 Park Plaza, 20th Floor Irvine, California 92614 Telephone: 949-263-8400 Facsimile: 949-263-8414 E-mail: dsasse@crowell.com tlopez@crowell.com Counsel for Plaintiffs Sun Microsystems, Inc., Unisys Corporation, Jaco Electronics, Inc., Edge Electronics, Inc., and All American Semiconductor, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION This document pertains to the following: Sun Microsystems, Inc., et al. v. Hynix Semiconductor, Inc., et al. (Case No. C06-01665 PJH (Consolidated)) Unisys Corporation v. Hynix Semiconductor, Inc., et al. (Case No. C06-02915 PJH) Jaco Electronics, Inc. v. Hynix Semiconductor, Inc., et al. (Case No. C06-01212 PJH) Edge Electronics, Inc. v. Hynix Semiconductor, Inc., et al. (Case No. C06-01207 PJH) All American Semiconductor, Inc. v. Hynix Semiconductor, Inc., et al. (Case No. C06-01200 PJH) DRAM Claims Liquidation Trust, by its Trustee Wells Fargo Bank, NA v. Hynix Semiconductor Inc., et al. (Case No. C07-01381 PJH)
[PROPOSED] ORDER RE: DISCOVERY PLAN CASE NOS. C06-01665 PJH (CONSOLIDATED), C06-02915 PJH, C07-01200 PJH, C07-01207 PJH,C07-01212 PJH and C07-
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
Case No. C06-01665 PJH (Consolidated) Case No. C06-02915 PJH Case No. C07-01200 PJH Case No. C07-01207 PJH Case No. C07-01212 PJH Case No. C07-01381 PJH [PROPOSED] ORDER RE: DISCOVERY PLAN
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The Court, having considered the papers filed by plaintiffs and defendants and the oral argument of counsel, along with all other papers on file in this action, and good cause appearing, HEREBY ORDERS THAT: 1. Coordination of Discovery
The parties on each side of these actions, collectively across all six actions, will coordinate with one another to avoid the duplication of discovery, including deposition notices and examinations of witnesses. The parties may divide their respective time allocations for depositions among themselves however they choose, but no plaintiff or defendant may duplicate the examination, or any portion thereof, already taken of a witness by a co-plaintiff or codefendant. For the purpose of this Discovery Plan, parent-subsidiary defendant entities shall be treated as a single Defendant Group. The parties may deviate from these limitations by mutual agreement. 2. Limits on Rule 30(b)(6) Depositions
Plaintiffs, collectively as a group across all six of these actions, are permitted to take Rule 30(b)(6) depositions of each Defendant Group according to the following limitations: 28 hours for each of the Samsung Defendant Group and Hitachi Defendant Group; 21 hours for each of the Elpida Defendant Group, NEC Defendant Group, Infineon Defendant Group and Hynix Defendant Group; and 14 hours for each of the Micron Defendant Group, Winbond Defendant Group, Mosel Defendant Group and Nanya Defendant Group. Defendants, collectively as a group across all six of these actions, are permitted to take Rule 30(b)(6) depositions of each plaintiff according to the following limitations: 14 hours of Sun Microsystems, Inc. and 10 hours of each of the remaining plaintiffs. 3. Limits on Rule 30(b)(1) Depositions
Plaintiffs, collectively as a group across all six of these actions, are permitted to take Rule 30(b)(1) depositions of each Defendant Groups employees, agents or representatives according to the following limitations: 20 depositions of the Samsung Defendant Group; 15 depositions for each of the Hitachi Defendant Group, Elpida Defendant Group and Hynix Defendant Group; 10
1 [PROPOSED] ORDER RE: DISCOVERY PLAN CASE NOS. C06-01665 PJH (CONSOLIDATED), C06-02915 PJH, C07-01200 PJH, C07-01207 PJH,C07-01212 PJH and C07-
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depositions for each of the Infineon Defendant Group and NEC Defendant Group; and 5 depositions for each of the Micron Defendant Group, Winbond Defendant Group, Mosel Defendant Group and Nanya Defendant Group. Defendants, collectively as a group across all six of these actions, are permitted to take Rule 30(b)(1) depositions of each plaintiffs employees, agents or representatives according to the following limitations: 10 depositions of Sun Microsystems, Inc. and 5 depositions of each of the remaining plaintiffs. No single witness may be deposed for more than 7 hours, except as provided in Paragraph 5 with respect to depositions requiring translation. For any witness designated as a Rule 30(b)(6) deponent, any Rule 30(b)(1) deposition of that witness must occur in conjunction with the Rule 30(b)(6) deposition such that the witness will not be examined more than once and, to the extent those depositions require multiple days, those days will occur back to back. 4. Locations of Depositions
All depositions, including Rule 30(b)(6) witnesses, will be held at a mutually convenient location within 100 miles of this Court, and each party will bear its own costs associated with the depositions. Should any depositions be taken outside the United States, they need not be held at an embassy or consulate, but rather may be held at any facility agreed upon by the parties. 5. Depositions Requiring Translation
For any witness who uses a translator during the deposition, the witness deposition shall be completed within twice the amount of time otherwise allowed and only half of the actual time of the deposition shall count against the corresponding time limits set forth herein. All witnesses who are reasonably fluent in English will be deposed in English so that no translator will be used except where necessary. 6. Deposition Rules
All objections during depositions shall be succinctly stated only as objection to form. Should the examiner request that the objecting party state the grounds for any objection, the grounds shall be stated as succinctly as possible. Speaking objections or other improper
commentary during depositions will be grounds for sanctions. All depositions taken in the
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United States will be governed by the Federal Rules of Civil Procedure. For any deposition taken outside of the United States, the parties shall meet and confer on the reconciliation of the applicable foreign law with the Federal Rules of Civil Procedure. Counsel shall not instruct witnesses not to answer except on grounds of attorney-client privilege, work-product privilege, Fifth Amendment, violations of this Discovery Plan, beyond the scope of a Rule 30(b)(6) topic for which the witness is designated, or any other applicable privilege that prevents the witness from testifying. SO ORDERED: Dated: _____________, 2007 ____________________________ ______________________________________ Hon. Joseph C. Spero United States Magistrate Judge
EXHIBIT AA
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Case4:10-cv-04340-PJH Document62

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G. Charles Nierlich Direct: +1 415.393.8239 Fax: +1 415.393.8306 GNierlich@gibsondunn.com Client: 63440-00019

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June 20, 2011 Page 11

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AMENDED CONSOLIDATED COMPLAINT OF SUN & UNISYS (C06-01665 PJH)

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Co-conspirators Micron Technology Inc. and Micron Semiconductor

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AMENDED CONSOLIDATED COMPLAINT OF SUN & UNISYS (C06-01665 PJH)

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AMENDED CONSOLIDATED COMPLAINT OF SUN & UNISYS (C06-01665 PJH)

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Upon information and belief, for the purposes of formulating and

allocate the global market for DRAM;

agreements they reached; and

effects, among others:

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competitive negotiations for DRAM in the marketplace; and 32

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c. Defendants and their Co-conspirators act and practices, as alleged in

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DRAM computer chips sold in the U.S. and elsewhere; and

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