Del Final Brief

8/13/2019 Del Final Brief

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No. 13-1294

UNITED STATES COURT OF APPEALSFOR THE FEDERAL CIRCUIT

________________

MICRONTECHNOLOGY,INC.,Plaintiffs/Counterclaim Defendant-Appellee,

and

MICRON ELECTRONICS,INC. andMICRON SEMICONDUCTOR PRODUCTS,INC.,

Counterclaim Defendants-Appellees,

v.

RAMBUS INC.,Defendant/Counterclaimant-Appellant.

________________

Appeal from the United States District Court for the District of Delaware in Case No.00-CV-0792, Judge Sue L. Robinson

________________

REPLY BRIEF OF RAMBUS INC.________________

GREGORY P.STONE CARTER G.PHILLIPS

FREDA.ROWLEY,JR. ROLLINA.RANSOMJEFFREYY.WU MICHELLE B.GOODMANMUNGER,TOLLES &OLSON LLP RYAN C.MORRIS355 South Grand Ave., JENNIFERJ.CLARK35th Floor SIDLEYAUSTIN LLPLos Angeles, C.A. 90071 1501 K Street, N.W.(213) 683-9100 Washington, D.C. 20005

Telephone: (202) 736-8000MICHAELJ. SCHAENGOLD Facsimile: (202) 736-8711PATTON BOGGS LLP [email protected]

2550 M Street, N.W.Washington, D.C. 20037(202) 457-6523

Counsel for Rambus Inc.

Case: 13-1294 Document: 44 Page: 1 Filed: 11/22/2013


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CERTIFICATE OF INTEREST

Counsel for appellant Rambus Inc. certifies the following:

1. The full name of every party represented by me is:

Rambus Inc.

2. The name of the real party in interest represented by me is:

Rambus Inc.

3. There are no parent corporations and publicly held companies that own10% or more of the stock of Rambus Inc.

4. The names of all law firms and the partners or associates who appearedfor Rambus Inc. in proceedings before the United States District Court for theDistrict of Delaware, or are expected to appear in this Court, are:

SIDLEYAUSTIN LLPCarter G. Phil lips, Rollin A. Ransom, Eric A. Shumsky, Eric Solovy, Peter S.Choi, Rachel H. Townsend, Ryan C. Morris , Stephen C. Carlson, John A. Heller,Brian A. McAleenan, Benjamin Guthrie Stewart, Timothy Powderly, Michelle B.Goodman, Charles W. Douglas, Thomas K. Cauley, Jr., Peter H. Kang, Matthew L.McCarthy, Philip W. Woo, Teague Donahey, Peter Suen, Anne Mayer Turk, William

Baumgartner, Marc Raven, Courtney Rosen, Jennifer J. Clark

MORRIS,NICHOLS,ARSHT &TUNNELL LLPMary B. Graham, James Walter Parrett , Jr., Rodger D. Smith

MUNGER,TOLLES &OLSON LLPGregory P. Stone, Aaron M. May, Paul J. Watford, Fred A. Rowley, Jr., RichardDrooyan, Andrea Weiss, Catherine Augustson, Peter A. Detre, Carolyn H. Luedtke,

Jeffrey Y. Wu

PATTON BOGGS LLPMichael J. Schaengold

FARR &TARANTORichard G. Taranto



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DLAPIPER RUDNICK GRAY CARY USLLP(f/k/a GRAY CARYWARE &FREIDENRICHLLP)David E. Monahan, Jeffrey M. Shohet, Barbara J. Orr, David Pendarvis, Sean C.Cunningham, John M. Guaragna, John Allcock, Charles L. Deem, James Pooley,

James W. Huston, James W. Cannon

MCDONNELL BOEHNEN HULBERT &BERGHOFF LLPDenis A. Berntsen, Thomas E. Wettermann, Stephen Lesavich

DATE: November 22, 2013 /s/ Carter G. PhillipsCARTER G.PHILLIPS



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TABLE OF CONTENTS

CERTIFICATE OF INTEREST............................................................................................ iTABLE OF AUTHORITIES ................................................................................................. vINTRODUCTION .................................................................................................................. 1

ARGUMENT ............................................................................................................................ 2I. The District Courts Bad-Faith Determination Is Erroneous. ............................... 2

A. The District Court Applied A Legally Incorrect Standard. ......................... 2B. The Evidence And The District Courts Own Factual Findings Do

Not Support A Bad-Faith Finding. ................................................................. 51. Rambus Did Not Adopt Its Policy In Bad Faith. ............................. 62. Rambus Did Not Acknowledge The Impropriety Of Its

Policy. ....................................................................................................... 93. Rambus Did Not Selectively Execute Its Policy. ............................ 104. Rambuss Alleged Litigation Misconduct Has No Bearing On

Whether Rambus Intentionally Destroyed HarmfulDocuments. ........................................................................................... 12

II. The District Courts Prejudice Determination Is Erroneous. .............................. 13A. The District Court Misapplied The Legal Standard. .................................. 13B. Rambuss Spoliation Did Not Materially Affect Microns Substantial

Rights. ................................................................................................................ 151. Micron Has No Legally Viable JEDEC-Based Defense. ............... 152. Micron Has No Legally Viable Inequitable Conduct Defense. .... 193. Microns Other Defenses Were Not Prejudiced. ............................ 21

C. Micron Failed To Provide Plausible, Concrete Suggestions OfDocuments Destroyed After The Preservation Duty Arose. ................... 21



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III. The District Court Abused Its Discretion By Imposing TerminatingSanctions. ...................................................................................................................... 24

A. The Degree Of Fault Does Not Justify Terminating Sanctions. .............. 24B. The Prejudice, If Any, Does Not Justify Terminating Sanctions. ............ 26C. The District Court Failed To Select The Least Onerous Sanction. ......... 28

CONCLUSION ...................................................................................................................... 31



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TABLE OF AUTHORITIES

Page(s)CASES

Arthur Andersen LLPv. United States,544 U.S. 696 (2005) ....................................................................................................... 3, 4

In re BP Lubricants USA, Inc.,637 F.3d 1307 (Fed. Cir. 2011) ........................................................................................ 19

Bullv. United Parcel Serv.,665 F.3d 68 (3d Cir. 2012)................................................................................................ 25

Centimark Corp.v.Pegnato & Pegnato Roof Mgmt.,No. 05-708, 2008 WL 1995305 (W.D. Pa. May 6, 2008) ............................................. 22

Chambersv.NASCO,501 U.S. 32 (1991) ............................................................................................................. 24

Estate of Spearv.Commr,41 F.3d 103 (3d Cir. 1994)................................................................................................ 13

Exergen Corp.v. Wal-Mart Stores, Inc.,575 F.3d 1312 (Fed. Cir. 2009) ........................................................................................ 19

Free Speech Coal., Inc.v.Attorney Gen. of U.S.,677 F.3d 519 (3d Cir. 2012) ............................................................................................. 18

Gutmanv. Klein,No. 03-1570, 2008 WL 4682208 (E.D.N.Y. Oct. 15, 2008) ....................................... 27

Hechinger Inv. Co. of Del.v. Universal Forest Prods. (In re Hechinger),489 F.3d 568 (3d Cir. 2007) ............................................................................................. 20

Hynix Semiconductor Inc.v.Rambus Inc.,609 F. Supp. 2d 988 (N.D. Cal. 2009), affd, 645 F.3d 1336 (Fed. Cir. 2011),cert. denied, 132 S. Ct. 1540 (2012) ....................................................................... 17, 18, 21

Hynix Semiconductor Inc.v. Rambus Inc.,645 F.3d 1336 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 1540 (2012) ..................... 15, 25

Kingsdown Med. Consultants, Ltd.v. Hollister Inc.,863 F.2d 867 (Fed. Cir. 1988) .......................................................................................... 16



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KSR Intl Co.v.Teleflex Inc.,550 U.S. 398 (2007) ........................................................................................................... 21

Leonv. IDX Sys. Corp.,464 F.3d 951 (9th Cir. 2006) ..................................................................................... 26, 27

Micron Tech., Inc.v.Rambus Inc.,645 F.3d 1311 (Fed. Cir. 2011) ..................................................................................passim

Nelsonv.Original Smith & Wesson Bus. Entities,449 F. Appx 581 (9th Cir. 2011) .................................................................................... 13

Rambus Inc.v. Infineon Techs. AG,318 F.3d 1081 (Fed. Cir. 2003) ................................................................................. 15, 16

Rimkus Consulting Grp., Inc.v. Cammarata,688 F. Supp. 2d 598 (S.D. Tex. 2010) ............................................................................ 29

Schmidv.Milwaukee Elec. Tool Co.,13 F.3d 76 (3d Cir. 1994) .................................................................................................. 20

Shepherdv.ABC,62 F.3d 1469 (D.C. Cir. 1995) ......................................................................................... 30

State Indus., Inc.v.Mor-Flo Indus., Inc.,948 F.2d 1573 (Fed. Cir. 1991) ........................................................................................ 14

Stevensonv. Union Pac. R.R.,354 F.3d 739 (8th Cir. 2004) ............................................................................................ 25

Telectron, Inc.v. Overhead Door Corp.,116 F.R.D. 107 (S.D. Fla. 1987) ...................................................................................... 27

Therasense, Inc.v. Becton Dickinson & Co.,649 F.3d 1276 (Fed. Cir. 2011) .......................................................................................... 5

OTHERAUTHORITIY

Jamie S. Gorelick et al., Destruction of Evidence (1989) ........................................................... 5



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INTRODUCTION

The District Court failed to follow this Courts instruction to reevaluate its

findings of bad faith and prejudice using the proper legal standards, and to select the

least onerous sanction, if any, corresponding to Rambuss conduct. Micron Tech., Inc.

v.Rambus Inc., 645 F.3d 1311, 1328-29 (Fed. Cir. 2011)(Micron II).

The District Court found bad faith based on its determination that Rambus,

before it had a preservation duty, adopted a document-retention policy to eliminate

documents that might be harmful in possible future litigation. That, however, is a

common objective of all document-retention policies, and one the Supreme Court has

deemed legitimate. Yet Micron argues that this was bad faith because the District

Court found that Rambuss intent had not dissipated by the time Rambus destroyed

documents while under a preservation duty in August 1999. But bad faith requires a

finding that Rambus destroyed documents during the 1999 shred day with the specific

intent to hamstring a litigation opponent. The District Court made no such finding,

and the bad-faith findings it did make are clearly erroneous.

Microns answering brief also confirms that the evidence cannot support a

conclusion that Rambuss spoliation materially affect[ed] [Microns] substantial

rights. Micron II, 645 F.3d at 1328. Rambus preserved and produced over 700,000

pages of documents relating to every issue in this case, and even the District Court

agreed that most of Microns defenses were unaffected by Rambuss document

destruction. As to the few purportedly prejudiced defenses, Micron does not dispute



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that the District Court failed to consider whether they were legally viable, or whether

they would fail for reasons unrelated to the unavailability of Rambuss internal

documents. Instead, Micron defends the District Courts dispositive sanction based

on speculation that additional documents similar to those Rambus preserved may

have been destroyed in August 1999. Such speculation does not amount to

prejudiceand certainly not the extreme prejudice that warrants terminating

sanctions.

Finally, the District Courts uncritical resort to the atomic bomb of patent

law, and its manifest failure to meaningfully consider less onerous remedies, constitute

a clear abuse of discretion. Judge Whytes decision in Hynixto impose a targeted

sanction short of dismissal conclusively establishes the adequacy of lesser sanctions.

This Court should reverse.

ARGUMENT

I. The District Courts Bad-Faith Determination Is Erroneous.A. The District Court Applied A Legally Incorrect Standard.In its opening brief, Rambus demonstrated that the District Court erred as a

matter of law by basing its bad-faith determination almost exclusively on a finding

that Rambus adopted its document-retention policy while contemplating the

possibility of futurebut not reasonably foreseeablelitigation. RambusBr. 24-28.

Because it is now undisputed that Rambus adopted its document-retention policy

beforea preservation duty arose, the Supreme Courts decision inArthur Andersen



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makes clear that it was not inherently malign for Rambus to adopt that policy, and

destroy documents pursuant to that policy, even for the express purpose of keeping

documents from potential adversaries. Arthur Andersen LLPv. United States, 544 U.S.

696, 704 (2005); RambusBr. 25-26. Therefore, even accepting the District Courts

conclusion that the raison detre for Rambus document retention policy was to

further Rambus litigation strategy by frustrating the fact-finding efforts of parties

adverse to Rambus, JA37(Op.28), that cannot constitute bad faith. RambusBr. 26.

Micron urges this Court to ignore when the preservation duty attached, arguing

that taking it into account would conflate[] the subjective issue of intent with the

objective question of litigations foreseeability. MicronBr. 26. Microns notion of bad

faith untethered to any preservation duty is contrary toArthur Andersen. Because

companies may legitimately adopt document-retention policies, and destroy

documents, to keep harmful documents from adversaries in the absence of a duty to

preserve, 544 U.S. at 704, the timing of the onset of that duty bears directly on the

existence of bad faith.

Instead of addressingArthur Andersen, which Micron relegates to a single

parenthetical, MicronBr. 27, Micron insists the District Courts analysis was not

limited to Rambuss intent at the time it adopted the policy, id. 29. But this is belied

by the District Courts opinion. The courts finding that Rambus initially adopted its

policy to further Rambus litigation strategy wasthe bad faith that underlies the



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entire policy and permeates any action taken pursuant to the policy. JA37(Op.28)

(emphasis added).

The District Courts exclusive reliance on the initial intent underlying Rambuss

policy is confirmed by the evidence it cited. Virtually all of that evidence relates to

events that occurred before December 1998, when the District Court found the

preservation duty arose, including the adoption and implementation of the document-

retention policy in early 1998, JA32(Op.23) JA35(Op.26); the July 1998 degaussing of

backup tapes (and Karps retention of a single backup tape), JA34(Op.25); the

presentation of the policy to Rambus employees, and one employees testimony

regarding one of those presentations in July 1998, JA33(Op.24); and the first shred

day in September 1998, JA33(Op.24). AsArthur Andersen makes clear, until the duty

to preserve arose, neither Rambuss adoption of the policy, nor its destruction of

documents under that policy, could legally amount to bad faith. 544 U.S. at 704.

Micron is also wrong to suggest that the District Courts reliance on the raison

detre of Rambuss document-retention policy was appropriate because that intent

had not dissipated when Rambus destroyed documents in August 1999. MicronBr.

29. By arguing that Rambus must prove the dissipation of its legitimate purpose in

adopting the policy, and then asserting that nothing in the record suggests that

Rambus had any intent other than to gain litigation advantage, MicronBr. 29, Micron

impermissibly shifts its burden onto Rambus. Micron IImade clear that Micron alone

bears the burden to show bad faith, and that the question is not whether the policys



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initial, legitimate purpose has dissipated but whether, after the duty to preserve

arose, Rambus intended to impair the ability of [Micron] to defend itself. 645 F.3d

at 1326.

Micron does not dispute that bad faith is an exacting standard akin to the

standard for inequitable conduct. RambusBr. 25. Under that standard, Micron must

prove that Rambus held the shred day in 1999 with a specific intent to target adverse

documents it knew would be harmful in future litigation. SeeTherasense, Inc.v. Becton,

Dickinson & Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (en banc). The District Court

did not apply this standard, and Micron cannot satisfy it merely by asserting that one

of the purposes underlying Rambuss document-retention policy, like alldocument-

retention policies, was to reduce[] [the] legal exposure through the destruction of

incriminating evidence. Jamie S. Gorelick et al., Destruction of Evidence 8.2 (1989).

Otherwise, the adoption of any policy would presumptively mean that all subsequent

document destruction was in bad faith.

B. The Evidence And The District Courts Own Factual Findings DoNot Support A Bad-Faith Finding.

Rambus demonstrated that the factors on which the District Court relied to

find bad faith contradict the record and the courts own factual findings. RambusBr.

28-38. Microns answering brief ignores those errors and inconsistencies. It also fails

to identify evidence that Rambus acted with the requisite bad faith in destroying

documents in 1999.



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1. Rambus Did Not Adopt Its Policy In Bad Faith.Even if bad faith before the onset of a preservation duty is legally possible, the

District Courts own findings show that Rambus adopted its document-retention

policy not in bad faith, but at the urging of informed outside counsel at Cooley

Godward. RambusBr. 29-31. In particular, the District Court itself found that before

Cooley advised Rambus to adopt a document-retention policy, Rambus told its

outside counsel of its so-called litigation objectives. RambusBr. 30-31.

The District Court specifically found that Karp told Cooley attorney Leal in

their initial meeting on January 13, 1998:

that Rambus wanted the following: litigation strategy by[the] March board meeting, [n]o negotiations [without]full strategy and prep[aration], [g]o in quickly [and]proceed to either a license or litigation, [t]ry win-win first;do not prejudice [good faith] for litigation, [l]oo[k] forroyalty rate that tells them it costs to infringe, and [g]o to

first meeting but be ready (in advance) to go to litigation.

JA14-15(Op.5-6) (quoting JA20730(MTX285)). Leals colleague Johnson first raised

the issue of document retention a month later, at a February 12, 1998 meeting that

Leal also attended. JA20737(MTX290).

Micron completely ignores this finding and the additional evidence of what

Rambus told its outside counsel, JA20731(MTX285); JA20732(MTX287), and argues

that Johnson did not know Tate had instructed Karp to set a royalty rate that would

show competitors that it would cost to infringe. MicronBr. 32 (quoting JA35).

This fails for two reasons. First, there can be no question that Leal knew about



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Rambuss initial royalty strategy and that Leal participated in the February 12, 1998

meeting with Johnson and Karp. Second, Micron admitsthat Johnson knew Karp

initially considered seeking a high royalty rate: When Rambus mentioned seeking an

incredibly high royalty rate, Johnson advised Rambus that such a rate would push

[Rambus] into litigation quickly. MicronBr. 32 n.3.1 Microns contention that

Johnson was unaware that Rambus would actually take that route is belied by the

record. MicronBr. 32. Johnson testified that Karp consulted him about an

appropriate rate, JA18704(Tr.1492-93), and Karp sent Johnson for review the Board

presentation in which Karp proposed a 5% rate, JA18458(Tr.445-46); JA20741-

48(MTX295). Rambuss outside counsel was not in the dark.

Micron also wrongly asserts that Johnson had no idea that Rambuss

motivation for adopting a document retention policy in the first place was to get

battle ready for litigation. MicronBr. 31. Although Johnson testified that the

phrase battle ready was not his, he acknowledged that the phrase was consistent

with what was discussed at the February 12, 1998 meeting at which he recommended

that Rambus adopt a document-retention policy. RambusBr. 31.

Microns citation to Johnsons testimony regarding his knowledge of Rambuss

plans in 1999long afterJohnson recommended that Rambus adopt a document-

1Johnson merely testified that he did not know specifically what Tate said to

Karp. SeeJA18713-15(Tr.1555-56, 1558, 1562-63, 1568-69). He never suggested thathe did not know of Rambuss plans or the substanceof what Tate communicated toKarp.



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retention policyhas no bearing on whether the Cooley lawyers were informed of

Rambuss plans before they recommended a document-retention policy. MicronBr. 32.

Moreover, the degree of Johnsons involvement with Rambus in the summer of 1999

likewise has no bearing on whether Rambus held the second shred day to keep

harmful documents from potential adversaries.

Micron next contends that Rambus employees understood the policy as

necessary to prepare for litigation. MicronBr. 28. But employees merely indicated

that the policy was discussed in relationship to documents that might be

discoverable if Rambus were ever involved in a lawsuit. JA18628(Tr.1181-82);

JA18697-98(Tr.1451-52); JA18945-46(Tr.101-02). That is precisely the concern

Johnson identified, and the instruction Johnson gave Rambus. JA18704(Tr.1493-94);

JA18705(Tr.1498); JA18709(Tr.1528-30). Indeed, the description of Rambuss policy

as a precursor to litigation came from the slide presentationJohnson gave to Rambus.

JA74-75(17); JA20791-807; JA18710-11(Tr.1532-38). Consistent with Johnsons

advice, Rambus viewed the policy as a means of getting its house in order in the event

that it later became involved in a lawsuit that was not yet reasonably foreseeable. That

is not bad faith.



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2. Rambus Did Not Acknowledge The Impropriety Of ItsPolicy.

Microns defense of the District Courts finding that Rambus acknowledged

the impropriety of the document retention policy, JA34(Op.25), is based on two

documents. Neither supports Microns argument.

The first is a version of Karps third-quarter 1999 goals in which he changed

the name shredding party to document retention compliance and moved this

event from the Licensing/Litigation Readiness category to Database

Maintenance. MicronBr. 36. These changes merely reflected Rambuss

implementation of a routine document-destruction program and in no way suggest

that Karp considered the program improper. Had he modified his goals to obfuscate

[Rambuss] true intentions, MicronBr. 36, Karp surely would not have preserved

both of the prior versions, RambusBr. 34. And there is nothing improper about

Rambuss withholding of these documents until after its privilege was pierced. As

Micron notes, Karps goals reflected the advice of counsel. MicronBr. 36.

The second document cited by Micron is an email Karp sent in May 1998

before the duty to preserve aroseregarding the forthcoming document-retention

policy. MicronBr. 37. Micron admits that the District Courts finding that Rambus

tried to keep the policy quiet was incorrect. MicronBr. 37 ([t]he policy was widely

disseminated within Rambus and thus was not itself a secret). But Micron now

contends that what the court meant was that Rambus kept quiet the details of its



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selective execution of the policy. Id. In fact, nowhere in the email does Karp tell

anyone to keep the policy or its implementation quiet. JA20775(MTX314). Rather,

Karp stated his preference to answer questions regarding the proposed policy face-to-

face, and expressed his desire that any email questions be brief and narrowly

distributed. Id.

3. Rambus Did Not Selectively Execute Its Policy.Micron does not dispute that the District Courts finding of selective execution

is erroneously premised primarily on evidence concerning thepreservation of

documents. RambusBr. 34-35. Micron argues that the court was free to reject[]

Karps self-serving testimony that his instruction to employees to look for things to

keep was intended to ensure that employees did not make tough decisions about

what was important. MicronBr. 33. But even so, nothing about the instruction

suggests that employees were told to selectively destroy potentially harmful

documents. Micron cites no testimony that employees understood look for things to

keep to mean preserve only favorable documents and destroy everything else,

notwithstanding the content-neutral categories identified in the policy. Micron points

to a lone employees testimony that in the July 1998 rollout meeting, Karp noted that

it would not be a good idea to keep stuff around. MicronBr. 34 n.4. But this is a



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perfectly legitimate reason for adopting a document-retention policy, and it casts no

doubt on the facially neutral and industry-standard categories identified in the policy.2

Johnsons advice to Karp regarding this presentation was not based on

concerns about selective destruction. MicronBr. 34. Johnson testified that he

objected to Karps instruction not because Rambus would retain favorable evidence

and destroy unfavorable evidence, but because employees would keep all sorts of

junk, like pictures, [or] memos that dont relate to anything instead of looking for

things to get rid of. JA18711(Tr.1539-40).3

That is not advantage-seeking

conduct. JA33(Op.24).

With no evidence that Rambus designed or rolled out a selective policy, Micron

is left pressing the District Courts finding that Karp went through great lengths to

preserve a single back-up tape. MicronBr. 34. Micron does not dispute, however,

that preserving that tape was entirely consistent with Rambuss document-retention

policy. RambusBr. 35. Moreover, the retrieval of that tape was triggered by

inadvertence, after opening a computer file caused unintended changes.

JA18403(Tr.264); JA18454(Tr.420-21); JA18464(Tr.485-87). There is no evidence

2Micron repeats the District Courts statement regarding an email from 2001,MicronBr. 34 n.5, but the email complains aboutpreservationof a document and doesnot show selective destruction in 1999. RambusBr. 35.

3This testimony also confirms that, contrary to Microns assertion, MicronBr.34, Johnson reviewed Karps presentation slides. JA18711(Tr.1539) (I saw his slidesand I saw th[e] expression look for things to keep).



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that Rambus systematically examined the contents of its backup tapes to identify and

segregate favorable information to retain.

4. Rambuss Alleged Litigation Misconduct Has No BearingOn Whether Rambus Intentionally Destroyed HarmfulDocuments.

Micron spends four pages describing the District Courts finding of litigation

misconduct. MicronBr. 37-41. But Micron cannot show that any of this alleged

conduct concealed the existence of Rambuss document-retention policy. Micron

nowhere disputes that Rambuss 30(b)(6) deponents accurately testified about the core

issue for which they were designated to testifywhether Rambus destroyed

documents pursuant to a document-retention policy. JA19014-17(Tr.170-73);

JA18564(Tr.962); JA18624(Tr.1159); JA18644(Tr.1290-91). Nor does Micron dispute

that the deponents who gave this long-since-corrected testimony lacked personal

knowledge of the issues, were not Rambus employees during the relevant time period,

and understood the questions were outside the scope of the deposition notices.

RambusBr. 37.

Micron describes the District Courts findings that Crisp and Tate testified

inaccurately, MicronBr. 39, but nowhere refutes Rambuss showing that these

statements were, in fact, accurate. RambusBr. 37 n.4. Nor does Micron explain how

testimony regarding Rambuss patent strategy several years before Rambus adopted its

document-retention policy in 1998 has any bearing on that policy or its

implementation in 1999. Similarly, Micron offers no explanation for how Rambuss



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even reach trial. Micron notes that none of the claims or defenses included in

Microns complaint have been dismissed, and argues that none of the cases cited by

Rambus requires a district court to consider motions to dismiss as part of a prejudice

analysis. MicronBr. 45-46. These points miss the mark; even an adequately pleaded

defense will not necessarily survive to trial. To the extent the court cannot assess the

viability of Microns defenses on the pleadings alone, that suggests it should have

postponed its decision or issued a sanction short of dismissal.

Micron also argues that this Court already rejected Rambuss argument that

Micron has no viable defense that could have been prejudiced. MicronBr. 45. Not

so. This Court expressly did not rule on the viability of any of Microns defenses,

noting the possibility as Rambus argues, that all the documents destroyed were either

redundant or irrelevant to the trial. Micron II, 645 F.3d at 1328 (emphasis added).

Instead, the Court vacated the District Courts prior decision and remanded to the

District Court to reassess[] on remand its determination of prejudice. Id.

Similarly, the law of the case doctrine does not bar further litigation on an issue

the Court specifically remanded for further consideration. State Indus., Inc.v.Mor-Flo

Indus., Inc., 948 F.2d 1573, 1577 (Fed. Cir. 1991) (The trial courts subsidiary findings

can hardly be the law of the case when the judgment based on those findings was

vacated and the court was explicitly directed to reconsider its decision.).



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B. Rambuss Spoliation Did Not Materially Affect MicronsSubstantial Rights.

Far from supporting the District Courts prejudice determination, the record

refutes the notion that internal Rambus documents could be relevant to, much less

dispositive of, Microns JEDEC-based or inequitable conduct defenses. JA39(Op.30).

1. Micron Has No Legally Viable JEDEC-Based Defense.During the remand proceedings, neither Micron nor the District Court

disputed that Rambuss internal documents would have no bearing on whether

Rambus breached a duty of disclosure to JEDEC given this Courts rulings in Infineon

and Hynix II. The District Court found prejudice only as to defenses not based on a

breach of that duty. JA40(Op.31); JA19904-06; JA19971-73. That is because this

Court held as a matter of law that Rambuss internal documents are irrelevant to both

the scope of the disclosure duty and whether Rambus breached that duty. As Infineon

held, JEDECs disclosure duty erects an objective standard. It does not depend on a

members subjective belief that its patents do or do not read on the proposed

standard. Rambus Inc.v.Infineon Techs., AG, 318 F.3d 1081, 1104 (Fed. Cir. 2003). In

Hynix II, this Court deemed Infineons holding dispositive in this case. Hynix

Semiconductor Inc.v. Rambus Inc., 645 F.3d 1336, 1348 (Fed. Cir. 2011) (Hynix II).

Although Infineonand Hynix IIdid not address patent misuse, antitrust, or

unfair competition claims, there is no basis to treat those claims differently to the

extent they are based on allegations that Rambus breached a disclosure duty. Indeed,



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this Court held that Infineonwas binding in Hynix IIeven though Hynix IIinvolved

different claims (equitable estoppel and waiver) from Infineon(fraud).

Citing Judge Whytes decision on remand in Hynix III, Micron now argues for

the first time that Infineonand Hynix IImight have been decided differently but for

Rambuss document destruction. MicronBr. 47. That assertion is belied by Hynix II,

where this Court, after addressing spoliation, still held that Infineonforeclosed Hynixs

claims based on a breach of the JEDEC disclosure duty. After all, the scope of the

disclosure duty was fixed by JEDECs own policies, not by the undisclosed internal

documents of Rambus, which was just one among many JEDEC members. See

Infineon, 318 F.3d at 1102 (JEDEC could have drafted a patent policy with a broader

disclosure duty. ... It could have. It simply did not).

The District Court found prejudice as to Microns JEDEC-based defenses to

the extent they are based on two other theories notinvolving a disclosure duty: (1)

Rambuss use of information learned at JEDEC to gain market power, and (2)

affirmative misrepresentations Rambus made at JEDEC. Id.

As to the first theory, Micron does not dispute that there is nothing improper,

illegal or inequitable in filing a patent application for the purpose of obtaining a right

to exclude a known competitors product from the market. Kingsdown Med.

Consultants, Ltd.v. Hollister Inc., 863 F.2d 867, 874 (Fed. Cir. 1988). Micron tries to

distinguish Kingsdown because it assumes the patentee otherwise followed the law.



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MicronBr. 48 n.11. But this is a distinction without a differenceMicron cannot

identify any way in which Rambuss prosecution efforts failed to comply with the law.

Microns second theorythat Rambus made affirmative misrepresentations at

JEDEC meetingsis foreclosed by the Consolidated Conduct Trial verdict and

findings. Micron does not dispute that Judge Whyte expressly found that Rambus

made no affirmative representations that it had no intellectual property pertaining to

the work of JEDEC. Hynix Semiconductor Inc.v. Rambus Inc.,609 F. Supp. 2d 988,

1016 (N.D. Cal. 2009), affd 645 F.3d 1336 (Fed. Cir. 2011) (Conduct Trial Findings).

Micron attempts to avoid this finding by asserting waiver. But Rambus specifically

argued below that Micron was not prejudiced because Micron chose to try that claim

in California. JA26182(Tr.76). Rambus explained that Micron went to trial on that

because they wanted to be part of a consolidated trial, [a]nd they went to trial there,

and the jury found against them. Id. The jury found there was no affirmative

misrepresentations and no half-truths uttered. Id.

Nor has Rambus misrepresented the jurys verdict. MicronBr. 49. Rambuss

textual change is fully consistent with Judge Whytes understanding of the jurys

findings, as reflected in his findings rejecting Microns equitable claims and defenses:

Rambus made no affirmative representations that it had nointellectual property pertaining to the work of JEDEC. See

Jurys Special Verdict 12, 19 and 26. Further, Rambusuttered no half-truths . Id.at 31. Consistent with the

jurys finding, the court agrees that Rambus made nomisrepresentations and uttered no deceptive half-truths to

JEDEC and its members.



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Conduct Trial Findings, 609 F. Supp. 2d at 1016 (emphasis added). Moreover, Microns

contention that its claim required evidence of Rambuss intent is wrong. MicronBr.

50. The only intent at issue in this claim was whether Rambus intend[ed] or

reasonably expect[ed] that the representations would be heard by or repeated to

others including Micron. It is nonsensical to suggest that Rambus made an

important representation, but did not intend that anyone hear it.

While Micron argues that the jurys verdict was affected by spoliation,

MicronBr. 50, Micron cannot explain how the question of whether Rambus made a

public representation heard and relied upon by JEDEC members could be prejudiced

by the destruction of internal Rambus documents. That Crisp preserved all of his

detailed JEDEC trip reports only confirms there was no possible prejudice.

Finally, the fact that only Hynix, and not Micron, appealed the jurys finding in

no way renders it less binding on Micron. Hynix challenged that finding and lost.

Moreover, the absence of an appeal does not preclude the application of collateral

estoppel. Free Speech Coal., Inc.v.Attorney Gen. of U.S., 677 F.3d 519, 541 (3d Cir.

2012). An interlocutory decision can have collateral estoppel effect so long as

litigation of [the] particular issue has reached a stage that there is no really good

reason for permitting it to be litigated again. Id.(internal quotation marks omitted).

That is the case here.



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2. Micron Has No Legally Viable Inequitable ConductDefense.

Rambus demonstrated that Microns inequitable conduct defense is facially

defective. RambusBr. 44-47. Contrary to Microns assertion, the District Court did

not find this argument barred byMicron IIand waived. MicronBr. 51. Rather, the

District Court did not find it appropriate at this time to determine the sufficiency of

Microns pleadings. JA44(Op.35). A finding of prejudice cannot be based on an

assertion of inequitable conduct that does not even state a cognizable defense.

Unable to defend the sufficiency of its complaint under the heightened

pleading standard inExergen Corp.v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir.

2009), Micron argues that its failure to plead its defense adequately was due to

allegedly missing evidence [that] would have been found in internal Rambus

documents. MicronBr. 52. It is Micron, not Rambus, that puts the cart before the

horse. Id. The whole purpose of Rule 9(b) is to prevent parties from using

discovery as a fishing expedition by ensuring that only viable claims alleging fraud

or mistake are allowed to proceed to discovery. In re BP Lubricants USA, Inc., 637

F.3d 1307, 1310 (Fed. Cir. 2011). And although Micron asserts that it could amend

its pleading to satisfy Rule 9(b) based on information in its expert reports, MicronBr.

52-53, it must do so beforeRambuss patents are deemed unenforceable.

Micron insists that Rambuss internal documents might have been relevant to

the materiality prong of the inequitable conduct defense. MicronBr. 53. But the



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District Court made no such finding, as it refused to address Rambuss argument that

the materiality prong is objective and cannot be affected by internal Rambus

documents. JA46(Op.37). Instead, the District Courts decision was based

exclusively on its speculation that Rambuss spoliation precluded Micron from

possibly obtaining evidence of affirmative acts of egregious misconduct.

JA46(Op.37).4

The District Court cited no evidence suggesting that Rambus may have

engaged in affirmative acts of egregious misconduct. Microns complaint contains no

such allegation, RambusBr. 46, and Micron never argued it below. On appeal, Micron

now claims that Farmwald may have done so by submit[ing] a false oath claiming he

was the original and true inventor after he supposedly derived the inventions from

MIPS. But the email stating that Farmwald had the idea for Rambus at a time when

he was at MIPS in no way suggests that Farmwald derived the idea for the original

applicationfromothers at MIPS. MicronBr. 54 (emphasis added).5 Microns

newfound theory is nothing more than rank speculation that cannot sustain a finding

of prejudice. Schmidv.Milwaukee Elec. Tool Co., 13 F.3d 76, 80 (3d Cir. 1994); Hechinger

4This is not, as Micron suggests, an alternative finding. MicronBr. 54. It isthe only finding the District Court made regarding prejudice to the materiality prongof Microns inequitable conduct defense. JA46(Op.37).

5Farmwalds employment agreement with MIPS provided that anyinventionssuch as the Rambus inventionsdeveloped on his own time and not atMIPSs facilities were his property. JA24005-07(RAMTX138); JA18630(Tr.1195-97).



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Inv. Co. of Del.v. Universal Forest Prods. (In re Hechinger), 489 F.3d 568, 579 (3d Cir.

2007).

3. Microns Other Defenses Were Not Prejudiced.This Court can easily dispose of Microns conclusory assertion that Rambuss

spoliation may have prejudiced certain of Microns other defenses. MicronBr. 54.

Rambuss document destruction could not have prejudiced Microns anticipation and

obviousness defenses because, as the District Court found, both are based on an

objective test; the subjective intent of the patentee is not pertinent. JA39(Op.30);

KSR Intl Co.v.Teleflex Inc., 550 U.S. 398, 419-20 (2007). Microns standing, license,

and derivation defenses, which are based on allegations regarding Farmwalds prior

employment at MIPS, are completely speculative as stated above, and in any event

MIPS disclaimed ownership of Rambuss inventions. JA23999-24004(RAMTX135).

And Microns prosecution laches defense is so weak that Micron and the other

manufacturers abandoned it in the Consolidated Conduct Trial. Conduct Trial Findings,

609 F. Supp. 2d at 1025.

C. Micron Failed To Provide Plausible, Concrete Suggestions OfDocuments Destroyed After The Preservation Duty Arose.

The District Court erroneously required Rambus to prove there was no

conceivable non-public document that could ever be relevant to any of Microns

claims or defenses. RambusBr. 39. This improperly absolved Micron of its burden to

come forward with plausible, concrete suggestions of spoliated documents. Id.



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documents and twelve broad categories of documents Micron identified in discovery,

RambusBr. 15. Instead, after years of discovery and a five-day trial, Microns only

response to the overwhelming evidence of Rambuss preservation of documents is

that hundreds of thousands of documents serendipitously escaped, were retained

by happenstance, or were a fortuitous discovery. MicronBr. 36 n.6, 43-44. But

there is nothing accidental about the existence of these documentsRambuss

document-retention policy instructed employees to look for things to keep and they

did.

Crisp testified that as part of our document retention program, I was asked to

look for things to keep. And so part of what I did was went through my email files

and sought out and kept things that related to JEDEC. JA18543(Tr.825-26). Crisp

retained all of his internal emails pertaining to JEDEC and produced two setsof those

emails, each comprising 200 pages, only one of which was from a personal computer

in his attic. JA23259-374(RAMTX69); JA23713-911(RAMTX85); JA18542-

43(Tr.820-26); JA18571(Tr.1010-11).6 Care was also taken when Horowitzs office

was cleaned during the first shred day, before the preservation duty arose. JA18635-

36(Tr.1233-34). The only internal documents destroyed from his office were clear-

acetate sheets, paper copies of which were preserved. JA18636(Tr.1236-38). And,

6The District Court did not reject[] Rambuss assertion that it preserved all ofCrisps internal emails pertaining to JEDEC. MicronBr. 43. Instead, the courtaccepted Microns speculative assertion that other individuals may have generateddocuments related to Rambus JEDEC participation. JA42(Op.33 n.21).



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despite Microns speculation, MicronBr. 44, nothing in Farmwalds email suggests that

documents regarding prior art or knowledge thereof were destroyed. JA20268-69. To

the contrary, the uncontroverted testimony establishes that all prior art was retained.

JA18689(Tr.1396-97).

III. The District Court Abused Its Discretion By Imposing TerminatingSanctions.

For the foregoing reasons, the District Courts judgment should be reversed.

At a minimum, however, the judgment should be vacated because the District Court

did not meet the exceptionally high standard necessary to impose the particularly

severe sanction of declaring the patents-in-suit unenforceable against Micron.

Chambersv.NASCO, 501 U.S. 32, 45 (1991);Micron II, 645 F.3d at 1328-29.

Contrary to Microns suggestion, a court abuses its discretion not only when

it is clear that no reasonable personwould agree [with] the trial courts assessment,

MicronBr. 56 (emphasis and alteration in original), but also when it fails to select the

least onerous sanctioncorresponding to the willfulness of the destructive act and the

prejudice suffered by the victim. Micron II, 645 F.3d 1328-29 (internal quotation

marks omitted) (emphasis added). The District Court failed to do that here.

A. The Degree Of Fault Does Not Justify Terminating Sanctions.Micron ignores Supreme Court and Third Circuit precedent requiring the

violation of a clear and known duty before terminating sanctions can be imposed.

RambusBr. 50-51. Instead, Micron maintains that a known and clear duty to



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preserve is not required, erroneously asserting that the Eighth Circuit in Stevensonv.

Union Pacific Railroad, 354 F.3d 739 (8th Cir. 2004), approved a terminating sanction

for prelitigation destruction of evidence. MicronBr. 58. Stevensondid not approve a

terminating sanction. It affirmed the district courts decision to sanction the

Railroad through an adverse inference instructionfor its prelitigation destruction of

[evidence]. 354 F.3d at 748 (emphasis added).

Microns assertion that the preservation duty is clearer for parties planning to

sue, MicronBr. 59 n.14, is belied by the fact that multiple judges have evaluated the

issue and none of them agrees on when Rambuss duty arose. Indeed, Judge Whyte

originally held that Rambus correctly determined that the preservation duty did not

arise until late 1999, and two judges of this Court would have affirmed that

conclusion. Hynix II, 645 F.3d at 1355-57 (Gajarsa, J., dissenting-in-part). Such a

close call cannot support terminating sanctions.

Microns contentions that Rambuss destruction was thorough and resulted

in the loss of an incalculable number of documents, MicronBr. 57, are dramatically

overblown, Bullv. United Parcel Serv., 665 F.3d 68, 76 (3d Cir. 2012). The only

document destruction at issue is the second shred day, during which Rambus

destroyed 300 boxes of documents. Uncontradicted testimony from SureShred,

which shredded documents throughout Silicon Valley during this period, was that

many customers shredding volume exceeds a hundred boxes a week.

JA18699(Tr.1461-62) (emphasis added).



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B. The Prejudice, If Any, Does Not Justify Terminating Sanctions.The District Court based its finding of prejudice on its conclusion that three

categories of internal Rambus documents would be relevant to two of Microns

defenses. JA41(Op.32). Micron does not dispute that Rambus preserved and

produced documents falling within each of these categories. RambusBr. 48-49. Nor

does Micron identify a single document or category of documents that it cannot

locate.

Instead, Microns claimed prejudice is based only on the possibility that

additional documents similar to those Rambus preservedmay have been destroyed. Thus,

Micron argues that the production of a 1994 email from Tate to Crisp relating to

Rambuss attempts to draft patent claims to read on JEDEC standards leads to an

inference that other emails regarding that same topic might have been destroyed.

MicronBr. 43. Even if this speculation could support a finding of prejudice (and it

cannot) it certainly cannot support terminating sanctions. Micron II, 645 F.3d at 1328

(no prejudice from destruction of redundant documents).

Micron does not cite a single case in which terminating sanctions were issued

based on the possible loss of documents similar to documents that were preserved.

Rather, in each of the cases Micron cites, unique, identifiable documents were

destroyed. In Leonv. IDX Systems Corp., the plaintiff in an employment dispute

deleted all personal files from his laptop including his correspondence with

realtors and financial institutions (relevant to the timing of his decision to resign from



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IDX); communications with health care providers regarding work-related illness

(relevant to his ADA claim); and the timing of and efforts to find other employment.

464 F.3d 951, 960 (9th Cir. 2006). These documents would likely be at the heart of

IDXs defense, and, unlike here, there was no evidence that the plaintiff otherwise

preserved these types of documents. Similarly, in Telectron, Inc.v. Overhead Door Corp.,

the defendant destroyed all sales correspondence, over two years old, generated by

OHDs Advance radio control division after receiving plaintiffs discovery requests.

116 F.R.D. 107, 110 (S.D. Fla. 1987). And in Gutmanv. Klein, the defendant deleted

files on his laptop, including documents from a folder named Gutman Litigation

and documents related specifically to entries listed on his privilege log. No. 03-1570,

2008 WL 4682208 at *8 (E.D.N.Y. Oct. 15, 2008).

Unable to identify a single document or category of documents that may have

been destroyed, Micron claims that the volume of material discarded makes it

impossible for Micron to meet its burden. MicronBr. 59. But Microns failure has

nothing to do with the volume of material destroyed. Micron cannot identify any

such documents because there are none. As the trial counsel acting on Microns behalf

at the Consolidated Conduct Trial conceded, [i]n this case, theres a good written

record of what was going on really in the 90s. JA19422(Tr.5912);



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JA19421(Tr.5888).7 The degree of prejudice, if any, does not justify terminating

sanctions.

C. The District Court Failed To Select The Least Onerous Sanction.Judge Whytes decision in Hynix IIIconclusively establishes that the District

Court failed to select the least onerous sanction. Micron II, 645 F.3d at 1329.

Judge Whyte concluded that Rambuss conduct did not warrant dismissal, and he

crafted a targeted remedy limiting Rambus to a RAND royalty. RambusBr. 55-56.

Microns assertion that the fact that Judge Whytein his broad discretion to

fashion a remedydiffered does not render the district courts choice of sanction

unreasonable, MicronBr. 56, misunderstands the standard of review. To determine

whether the District Court abused its discretion, this Court looks not at whether the

courts choice of sanction is unreasonable but whether terminating sanctions are the

least onerous sanction. Micron II, 645 F.3d at 1329. Judge Whytes decision proves

that they are not. And this is especially so because, unlike Judge Whyte (who had

already completed all trials in the Hynix litigation), the District Court here had the full

universe of lesser, trial-related sanctions available. RambusBr. 56. It failed to

adequately consider any of them.

7Micron cannot distance itself from this statement. Counsel stated: I havethe honor now to speak to you on behalf of Hynix. And also to speak to you onbehalf of Micron . JA19421(Tr.5888).



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Adverse-inference instruction. Micron presses the District Courts erroneous

assumption that an adverse-inference instruction would be ineffective because Micron

would be unable to rebut testimony that Rambus might use to try to overcome the

presumption. MicronBr. 61. But that can be said in any spoliation case. Yet, this

sanction is often viewed as among the most severe sanctions a court can administer.

Rimkus Consulting Grp., Inc.v. Cammarata, 688 F. Supp. 2d 598, 619 (S.D. Tex. 2010).

Under Microns view, an adverse-inference instruction would never be suitable for

spoliation.

Evidentiary sanctions. Micron also has no explanation for the District Courts

failure to consider the adequacy of evidentiary sanctions. RambusBr. 57. Micron

asserts that an evidentiary sanction on a non-dispositive issue would not remedy the

missing evidence that Micron would have introduced but for the spoliation.

MicronBr. 62. But Micron cannot identify any unique missing documents, and there

is no reason to think that the lack of documents similar to those preserved would be

so prejudicial as to warrant a dispositive sanction. RambusBr. 41-47.

Monetary sanctions. Micron claims that a monetary sanction would not

adequately remedy its harm or sufficiently deter future spoliation. MicronBr. 63.

Again, Microns reasoning would lead to the absurd conclusion that a monetary

sanction is never appropriate in a spoliation case. RambusBr. 58.

Issue sanctions. To justify the District Courts failure to consider an issue

sanction, Micron improperly purports to shift the burden to Rambus, arguing that



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Rambus never raised the prospect of an issue sanction below. MicronBr. 63. The

District Courtnot Rambushas the burden to consider and establish on the

record why lesser sanctions will not adequately deter and punish the misconduct.

Shepherdv.ABC, 62 F.3d 1469, 1479 (D.C. Cir. 1995). Microns claim that the only

adequate sanction is dismissal ignores that Rambuss internal documents do not bear

on many elements of its supposedly affected defenses. RambusBr. 41-47.

Combined sanctions. Micron cannot defend the District Courts illogical view that

combined sanctions would be inadequate because the sanctions individually are

inadequate. Instead, Micron asserts that Rambus failed to provide a reason why the

District Court should consider combined sanctions. MicronBr. 63. As explained, it

was the District Courts obligation to do so.



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CONCLUSION

The Court should reverse, or, at a minimum, vacate the terminating sanctions

and remand for the District Court to determine a properly tailored sanction.

Dated: November 22, 2013Respectfully submitted,

/s/ Carter G. PhillipsGREGORY P.STONE CARTER G.PHILLIPSFREDA.ROWLEY,JR. ROLLINA.RANSOM

JEFFREYY.WU MICHELLE B.GOODMANMUNGER,TOLLES &OLSON LLP RYAN C.MORRIS355 South Grand Ave., 35th JENNIFERJ.CLARKFloor SIDLEYAUSTIN LLPLos Angeles, C.A. 90071 1501 K Street, N.W.(213) 683-9255 Washington, D.C. 20005

Telephone: (202) 736-8000MICHAELJ.SCHAENGOLD Facsimile: (202) 736-8711PATTON BOGGS LLP [email protected] M Street, N.W.

Washington, D.C. 20037

(202) 457-6523 Counsel for Rambus Inc.



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CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of November, 2013, I electronically filed

the foregoing with the Clerk of the Court for the United States Court of Appeals for

the Federal Circuit through the Courts CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system, including

Jared BobrowWeil, Gotshal & Manges LLP201 Redwood Shores ParkwayRedwood Shores, CA 94065(650) 802-3000

[email protected]

/s/ Carter G. PhillipsCARTER G.PHILLIPS



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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Federal Rule of

Appellate Procedure 32(a)(7)(B) and the Rules of this Court, because it contains 6998

words (as determined by the Microsoft 2007 word-processing system used to prepare

the brief), excluding the parts of the brief exempted by Federal Rule of Appellate

Procedure 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced

typeface using the Microsoft Word 2007 word-processing system in 14-point

Garamond font.

/s/ Carter G. PhillipsCARTER G.PHILLIPS


Del Final Brief

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