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Rambus, Inc. v. Infineon Tech. AG 222 F.R.D. 280 (E.D. Va. 2004)

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Rambus, Inc. v. Infineon Tech. AG 222 F.R.D. 280 (E.D. Va. 2004). Frank Mieczkowski e Discovery – September 13, 2010. Parties. Plaintiff – Rambus Develops and licenses technologies to companies that manufacture semi-conductor memory devices Relies on licensing for revenue

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rambus inc v infineon tech ag 222 f r d 280 e d va 2004

Rambus, Inc. v. Infineon Tech. AG222 F.R.D. 280 (E.D. Va. 2004)

Frank Mieczkowski

eDiscovery – September 13, 2010

parties
Parties
  • Plaintiff – Rambus
    • Develops and licenses technologies to companies that manufacture semi-conductor memory devices
    • Relies on licensing for revenue
  • Defendant – Infineon Technologies
    • Developer and manufacturer of technology-related products
facts
Patent infringement – March 17 Opinion

Infineon establishes Rambus intentionally destroyed evidence relevant to this litigation from 1998-2000

Document Retention and Destruction Policy (1998)

March – VP of IP

Summer – presentation to employees

Sept. 3 – “Shred Day”

Celebration or morale boost?

20,000 lbs = 2mm pages

possible other days, as well

Outside counsel also told to destroyed docs

Depositions – purge files because “such materials are discoverable in subsequent litigations”

Rambus argues the policy’s legitimate business purpose

“Look for things to keep”

Trade secrets (life); personnel records (3)

Pack-rat type of business

Streamline discovery-related concerns

Search, review and costs

NOT for the purpose of eliminating potentially dangerous documents

Facts
legal framework
Legal Framework
  • Whether certain sanctions for spoliation are warranted despite a DRDP
    • Did Rambus engage in intentional destruction of evidence in anticipation of litigation it intended to bring?
  • Rule 37 (e) Failure to Provide Electronically Stored Information. (2006)

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

analysis
Analysis
  • Document/ records retention policy is an integral part of licensing but not litigation strategy
  • Timeframe of policy’s action in light of the litigation
  • Characteristics of litigation
      • action specified litigants, venues and Rambus destroyed its related documents
  • Overall purpose – program and policy had an illegitimate purpose
issues
Issues
  • Both parties must adhere to preserving documents and files
      • What is the “trigger date” for a plaintiff?
      • Plaintiff controls the commencement of litigation
  • Document retention and destruction
      • Regulatory and legal requirements, business practices and needs
  • Cost of storage v. Cost of retrieval
outcome
Outcome
  • Infineon made a prima facie showing of intentional spoliation on the part of Rambus
  • Rambus destroyed the information in anticipation of litigation it brought as it improved its “litigation posture”
      • 2-3 years before commenced litigation
  • Sanctions warranted but reserved for a later opinion
class discussion
Class Discussion
  • As it becomes easier and more cost-effective to store (but maybe not retrieve) ESI, what are potential factors in creating a document retention policy?
      • Should a plaintiff suspend the initial implementation of a policy if litigation is in the future (“anticipated”, “probable”, “possible”)?
  • Should the plaintiff be expected to maintain a higher standard with respect to retaining documents and ESI?
      • Does that encourage too much retention?
      • Could not retaining enough damage a claim?
      • Consider 2006 amendment to Rule 37(e) and Sarbanes-Oxley Act (p.72)
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