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

1. Rambus, Inc. v. Infineon Tech. AG222 F.R.D. 280 (E.D. Va. 2004) Frank Mieczkowski eDiscovery – September 13, 2010

2. 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

3. 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

4. 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.

5. 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

6. 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

7. 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

8. 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)