Sun Microsystems Inc., v. Hynix Semiconductor Inc. et al

Filing 402

STIPULATION AND ORDER RE SUN PURCHASE DATA re 401 Stipulation, filed by Hynix Semiconductor America Inc., Hynix Semiconductor Inc. Signed by Judge Phyllis J. Hamilton on 9/15/08. (nah, COURT STAFF) (Filed on 9/15/2008)

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KENNETH R. O'ROURKE (S.B. #120144) [e-mail] PAUL B. SALVATY (S.B. #171507) [e-mail] STEVEN H. BERGMAN (S.B. #180542) [e-mail] O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: [phone] Facsimile: [phone] MICHAEL F. TUBACH (S.B. #145955) [e-mail] THOMAS BROWN (S.B. # 182916) [e-mail] O'MELVENY & MYERS LLP 275 Battery Street San Francisco, CA Telephone: [phone] Facsimile: [phone] Attorneys for Defendants HYNIX SEMICONDUCTOR INC. and HYNIX SEMICONDUCTOR AMERICA INC. [Other counsel listed on signature page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 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, et al., Defendants. Case Nos. C 06-01665 PJH STIPULATION AND [PROPOSED] ORDER RE SUN PURCHASE DATA THIS STIPULATION RELATES TO DEFENDANTS' MOTION TO DISMISS
CLAIMS BASED ON FOREIGN PURCHASES FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(H)(3) Date: Time: Place: December 10, 2008 9:00 A.M. Courtroom 17

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STIPULATION & [PROPOSED] ORDER RE SUN PURCHASE DATA C 06-01665 PJH

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STIPULATION This Stipulation between Plaintiff Sun Microsystems, Inc. and Defendants Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Elpida Memory, Inc., Elpida Memory (USA) Inc., Nanya Technology Corporation and Nanya Technology Corporation USA (collectively "Defendants") is made with reference to the following facts: A. WHEREAS on July 8, 2008, Defendants filed a Motion to Dismiss

Claims Based on Foreign Purchases for Lack of Subject Matter Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(h)(3) ("Motion to Dismiss"); and B. WHEREAS in support of the Motion to Dismiss Defendants lodged

with the Court the Declaration of Steven H. Bergman which included, among other exhibits, Exhibit 17 which consisted of five spreadsheets labeled SUN000001. These five spreadsheets are: (i) Alwin_DRAM_FY01_FY02_Commodity.xls, containing Sun purchase data for the period of July 2000 through June 2002; (ii) Alwin_Memory.xls, containing Sun purchase data for the period of August 2002 through September 2002; (iii) Alwin_Memory _Jan98_Jun02.xls, containing Sun purchase data for the period of October 1998 through November 2001; (iv) FY-3Q3_Wk13_Raw.xls, containing Sun purchase data for the period of November 2002 through March 2003; and (v) FY03Q4_Final_Raw.xls, containing Sun purchase data for the period of March 2003 through June 2003; and C. WHEREAS Sun has designated the spreadsheets labeled SUN000001

as "Highly Confidential" under the August 21, 2006 Protective Order entered in this action; and D. WHEREAS Defendants rely upon the spreadsheets labeled
STIPULATION & [PROPOSED] ORDER RE SUN PURCHASE DATA C 06-01665 PJH

SUN000001 and attached as Exhibit 17 to the Declaration of Steven H. Bergman in
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support of the Motion to Dismiss primarily to: (i) identify the parties to DRAM purchase transactions which are the DRAM purchase transactions upon which Sun is claiming damages in this action; and (ii) identify which DRAM purchase transactions are part of the claims based on foreign purchases that Defendants have moved to dismiss ; and E. WHEREAS on July 8, 2008 Defendants filed an Administrative

Motion to file SUN000001 and certain other documents under seal; and F. WHEREAS on July 15, 2008 Sun filed a Declaration in support of

keeping SUN000001 and certain other documents under seal, but has consented to other exhibits attached to the Bergman Declaration being filed; and G. consideration; and H. WHEREAS Sun and Defendants have met-and-conferred regarding WHEREAS Defendants' Administrative Motion remains under

alternatives to filing SUN000001 under seal. THEREFORE, SUBJECT TO APPROVAL OF THE COURT, IT IS HEREBY STIPULATED AND AGREED BETWEEN Sun and Defendants as follows: 1. The Declaration of Steven H. Bergman lodged with the Court on July

8, 2008 shall be returned to Defendants Hynix Semiconductor Inc. and Hynix Semiconductor America Inc.; and 2. Defendants shall be permitted to refile the Declaration of Steven H.

Bergman along with any exhibits thereto for which "Confidential" or "Highly Confidential" designations have been removed or for which the Court's August 7, 2008 Order would preclude filing under seal; and 3. The files contained in Exhibit 17 currently lodged with the Court will

be returned to Defendants Hynix Semiconductor Inc. and Hynix Semiconductor America Inc.; and 4. Sun admits that SUN000001 shows that Sun Microsystems Scotland

B.V. , a Netherlands entity, and Sun Microsystems International B.V., a Netherlands entity, purchased DRAM from European affiliates of DRAM manufacturers and other
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foreign entities, including Benchmark Electronics Ireland, Celestica Italia SRL, Celestica Ltd., Elpida Memory Europe GmBH, Hitachi Europe Ltd., Hynix Semiconductor UK Ltd., Infineon Technologies AG, LG Semicon Co. Ltd., Micron Europe Ltd., Mitsubishi Electric UK Ltd., Samsung Ltd., and Synnex Information Technologies UK Ltd. Sun further admits that these DRAM purchases total more than $762 million between August 1998 and June 2002 and more than $732 million between April 1999 and June 2002. These admissions shall be admissible by any party for any and all purposes in connection with Defendants' Motion to Dismiss; and 5. The facts admitted to in the preceding paragraph are deemed

established and no further evidence is necessary for Defendants to prove the admitted facts; and 6. The transactions identified with "Plant Codes" "200" or "201" in

SUN000001 refer to plants located outside of the United States; and 7. The transactions in SUN00001 associated with "Plant Codes" "200"

and "201" are individually and collectively the transactions at issue in the Motion to Dismiss.

SO STIPULATED. Dated: September 10, 2008 O'MELVENY & MYERS LLP

By:

/Steven H. Bergman/ Steven H. Bermgan

Attorneys for Defendants HYNIX SEMICONDUCTOR INC. and HYNIX SEMICONDUCTOR AMERICA INC.

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STIPULATION & [PROPOSED] ORDER RE SUN PURCHASE DATA C 06-01665 PJH

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Dated: September 10, 2008

ORRICK, HERRINGTON & SUTCLIFFE LLP

By:

/Howard Ullman/ Howard Ullman

Attorneys for Defendants NANYA TECHNOLOGY CORPORATION and NANYA TECHNOLOGY CORPORATION USA Dated: September 10, 2008 SIMPSON THACHER & BARTLETT LLP

By:

/Harrison J. Frahn/ Harrison J. Frahn

Attorneys for Defendants ELPIDA MEMORY, INC. and ELPIDA MEMORY (USA) INC. Dated: September 10, 2008 CROWELL & MOORING LLP

By:

/Jerome B. Murphy/ Jerome B. Murphy

Attorneys for Plaintiff SUN MICROSYSTEMS, INC.

ATTESTATION OF FILING I hereby attest that I have obtained concurrence in the filing of this document from the Plaintiff and Defendants listed in the signature blocks above.

/Steven H. Bergman/ Steven H. Bergman Counsel for Defendants HYNIS SEMICONDUCTOR INC. and HYNIX SEMICONDUCTOR AMERICA INC.
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[PROPOSED] ORDER PURSUANT TO THE STIPULATION OF THE PARTIES, IT IS SO ORDERED.

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Dated:

9/15/08

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STIPULATION & [PROPOSED] ORDER RE SUN PURCHASE DATA C 06-01665 PJH

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DERED SO OR SPhyllis J. Hamilton Hon. IT I United States District Judge

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