1. Rambus, Inc. v. Infineon Technologies AG Eastern District of Virginia 2004 Neil Gutekunst

2. Parties Rambus, Inc. – Plaintiff. Technology licensing and computer memory company. Became infamous for aggressive intellectual property litigation. Infineon Technologies – Defendant. Spin-off of Siemens AG; main businesses are semiconductors and memory products.

3. Facts Early 1998, Rambus institutes document retention policy. September 1998 – Presentations given to employees describing policy. “LOOK FOR THINGS TO KEEP.” September 3 rd, 1998 – Shred day! Rambus employees given burlap bags to fill with discoverable documents. Beer, champagne and pizza did follow.

4. Facts Estimated 20,000 lbs of documents, 2 million pages, were shredded on Shred Day alone. Reason behind Shred Day? “Some of that stuff is discoverable.” Testimony from Rambus in-house counsel. Fall of 1998 – Several additional Shred Days take place. Unknown if more champagne was served. 2000 – Rambus institutes this patent litigation.

5. Rules Effected FRCP 37(f) – Failure to Make Disclosures or Cooperate in Discovery; Sanctions – “Sanctions cannot be imposed for loss of electronically stored information resulting from the routine, good-faith operation of an electronic information system.” – “Safe Harbor” provision for records lost in the regular course of a routine document retention program. – Good faith requirement; not permitted to exploit program to thwart discovery

6. eDiscovery Issues Applying FRCP 37(f) to plaintiffs “Good faith” requirement. Is document discoverability a poor reason for instituting a document retention program? Litigation hold applicable for plaintiffs. Is a spoilation finding warranted when documents are destroyed pursuant to a document retention policy?

7. eDiscovery Perspective Usually, it is the defendant whose actions come into question. However, plaintiffs also have a duty to place a litigation hold on files when they reasonably anticipate litigation. Plaintiffs are aware much sooner than defendants that litigation may be pending!

8. Conclusion Rambus had a “Document Retention Program” in name only. Court finds Rambus to have instituted a document destruction program to improve its litigation posture. Spoilation!

9. Questions If Rambus had not testified that the reason behind Shred Day(!) was document discoverability, would this case have come out different? Two years lapsed between Shred Day(!) and litigation. Isn’t discoverability the reason behind every document retention program? Should plaintiffs who spoil evidence be punished more severely than defendants? After all, they are coming to court with unclean hands! Negative inference? Dismissal? Monetary sanctions?