Transcript Rambus v. Infineon Technologies AG

Rambus v. Infineon
Technologies AG
22 F.R.D. 280 (E.D. Va. 2004)

Parties

Rambus instituted patent infringement litigation against
Infineon in 2000

The present case comes after an opinion, referred to as the
March 17th opinion, in which the court found that Rambus
destroyed a significant amount of electronic information
which was subject to discovery
◦ This case concerns possible sanctions against Rambus for spoliation
◦ Spoliation: destruction of records or documents that may be relevant
to ongoing or anticipated litigation, government investigation or audit
◦ Rambus defense:
 Spoliation is not warranted because they destroyed the documents
pursuant to a standard policy



Facts
Infineon has established that Rambus intentionally destroyed
documents relevant to this litigation by way of their document
purging program
Additionally, the court found that the destruction had taken place
at a time when Rambus reasonably anticipated litigation
◦ Duty to preserve had attached
◦ March 1998: Rambus institutes its document retention/destruction
policy
◦ September 1998: document kick off, “shred day” at the company;
20.000 pounds or 2 million pages shredded
◦ Immediately prior to Rambus instituting this action against Infineon,
Rambus’ former outside patent counsel destroyed documents pursuant
to Rambus’ instructions
 But, was done prior to Rambus putting Infineon on notice of possible
patent infringement action

Finally, there was also depositions given by Rambus employees
that they were told to destroy documents because such
documents would be discoverable in any future litigations
E-Discovery Rules affected
 Primarily, Federal Rule Civil Procedure
37(e)

◦ Failure to provide electronically stored
information
 No sanctions for failing to provide ESI lost as a
result of the routine, good-faith operation of an
electronic information system
 Good faith exception
◦ Issue here: did Rambus act in good faith in destroying
documents pursuant to its standard policy?
 Analysis
 Rambus defense
of case
◦ Legitimate document retention program in place
 In accordance with general standards for document
retention programs
 Adopted for legitimate purposes, and not due to
anticipated litigation

On shred day, advised employees to look for
things to keep and reasons to keep it

Reasons for destroying
◦ Kept too much
 Would take too many resources to locate something if
asked in discovery or pursuant to a third party
subpoena


Analysis of case
Court rejects Rambus’ argument
◦ The only litigation Rambus was exposed to was
litigation that itself was initiating against
various companies, including Infineon, for
patent litigation
◦ And….
◦ Even if the program was valid
 Purging programs need to be put on hold when
litigation is “reasonably foreseeable”
Issues regarding E-Discovery
 Spoliation

◦ Court found Rambus retention policy, devised
and implemented by the company with the
advice of lawyers, included plans to destroy
discoverable documents as part of its litigation
strategy
 Destroying documents as part of a litigation
strategy is NOT a legitimate defense
 They initiated the litigation with specific targets
(Infineon, et.al.)
◦ Document policy was set up for an improper
purpose to gain a litigation advantage against
Infineon prior to Infineon having notice of such
action
Issues regarding E-Discovery
 Document Retention Policies

◦ Important to have
◦ MUST be suspended when litigation is
reasonably anticipated

Applied to Rambus
◦ They only started the policy because of
anticipated litigation
 Just by calling it a “document retention policy”
does not make it legitimate
◦ Court finds spoliation against Rambus
Two Student Questions
At the time Rambus created their document
retention policy, they felt their patented
technology was being used illegally. Do you
feel they should be punished for being aware
of such possible infringement and thus
creating document retention policies?



When IS the appropriate time to create
document retention policies?