1. Rambus v. Infineon Technologies AG 22 F.R.D. 280 (E.D. Va. 2004)

2. Parties Rambus instituted patent infringement litigation against Infineon in 2000 The present case comes after an opinion, referred to as the March 17 th 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

3. 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

4. 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?

5. Analysis of case Rambus defense ◦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

6. 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”

7. 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

8. 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

9. 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?