Hyundai Electronics, et al v. Rambus, Inc.

Filing 3897

ORDER by Judge Ronald M. Whyte denying 3879 Motion for Summary Judgment. (rmwlc1, COURT STAFF) (Filed on 2/3/2009)

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH, Plaintiffs, v. RAMBUS INC., Defendant. No. C-00-20905 RMW ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS [Re Docket No. 3879] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION E-filed: 2/3/2009 Rambus has accused Hynix1 of infringing various patents. In response, Hynix asserted the defense of unenforceability alleging that Rambus has unclean hands resulting from its destruction of documents in the late 1990's. The court held a bench trial on Hynix's unclean hands defense and ruled in Rambus's favor. Hynix Semiconductor Inc. v. Rambus, Inc., -- F. Supp. 2d --, 2006 WL 565893 (N.D. Cal. Jan. 5, 2006). Since then, the district court in Delaware held a bench trial with respect to an essentially identical claim by Micron that Rambus spoliated evidence. The Delaware court concluded that Rambus's patents were unenforceable against Micron. Micron Tech., Inc. v. Rambus Inc., -- F.R.D. --, 2009 WL 54887 (D. Del. Jan. 9, 2009). 1 The court collectively refers to all of the Hynix entities as "Hynix." ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Invoking the doctrine of issue preclusion, Hynix moves for summary judgment of unenforceability based upon the Micron decision, which is later in time than this court's decision rejecting the defense. In the alternative, Hynix seeks reconsideration of the court's unclean hands decision and other relief. The bottom line is that Hynix wants to substitute the favorable decision in Micron for the unfavorable decision it received here. Rambus opposes the motion. The court has reviewed the papers and considered the arguments of counsel.2 For the following reasons, the court denies Hynix's motion. I. ISSUE PRECLUSION A. Equitable Discretion Non-mutual issue preclusion is a "distinctively risky" doctrine. 18 Wright & Miller 4416, at 402 (2d ed. 2002). Its "[w]ise administration requires a delicate balance between broad generalities that too frequently permit unfair preclusion and searching scrutiny that costs more than can be gained by whatever unblemished preclusion survives." 18A Wright & Miller 4465, at 730 (2d ed. 2002). Thus, the Supreme Court observed that, "no one set of facts, no one collection of words or phrases, will provide an automatic formula for proper rulings on estoppel pleas." Blonder-Tongue Labs., Inc. v. Univ. of Illinois, 402 U.S. 313, 333-34 (1971). "In the end, decision will necessarily rest on the trial courts' sense of justice and equity." Id. at 334. Here, it is difficult to see how it would be just or equitable to give Hynix the benefit of a decision between Rambus and a third party when Hynix fully litigated the issue with Rambus and lost. Despite these admonitions, litigants and the courts all too frequently reduce this rigorous inquiry to a collection of labels. Here, Hynix urges that the court only possesses discretion regarding the application of non-mutual issue preclusion in "offensive" situations, and that in "defensive" contexts, the court has no discretion regarding the application of issue preclusion. The Supreme Court's jurisprudence rejects the blanket application of preclusion principles urged by Hynix. "'[T]here is no intrinsic difference between 'offensive' as distinct from 'defensive' issue The court notes that of the four Manufacturers and Rambus' briefs addressing the issues raised by the Delaware court's opinion, Hynix's were particularly helpful to the court in grappling with the issues thanks to Hynix's concrete suggestions for how to proceed. ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 2 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 preclusion, although a stronger showing that the prior opportunity to litigate was adequate may be required in the former situation than the latter.'" Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331 fn.16 (1979) (quoting the Restatement (Second) of Judgments 88, Reporter's Note). Indeed, the first endorsement by the Supreme Court of non-mutual issue preclusion related to the "defensive" use of a prior judgment that a patent was invalid. Blonder-Tongue, 402 U.S. at 334. Yet the Court, as quoted above, emphasized the need for careful, equitable application of the doctrine. See id. at 333-34. Hynix cites various cases for the principle that this court lacks discretion in the application of non-mutual issue preclusion in the "defensive" context. The first, Blonder-Tongue, does not support this proposition, as shown above. In the second, Liberty Mutual Insurance Co. v. FAG Bearings Corp., the Eighth Circuit described Parklane Hosiery in a parenthetical as "adopting a test of discretion with respect to nonmutual offensive collateral estoppel only." 335 F.3d 752, 757 (8th Cir. 2003). As shown above, this characterization is questionable. Nonetheless, the Eighth Circuit's ensuing discussion of issue preclusion doctrine was correct: "Because mutuality is not lacking in this case, the equitable considerations requiring deference to the district court's evaluation of the overall fairness to the litigants in a nonmutual case are not present." Id. at 757-58. Liberty Mutual thus neatly recognizes the Supreme Court's discussion of the need for careful, equitable consideration when applying non-mutual issue preclusion. Hynix also relies on a case from the Third Circuit electing to review de novo a trial court's decision regarding the application of "defensive" issue preclusion. Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006). This authority is not binding on this court, and not persuasive for the reasons discussed. Furthermore, this case provides a good illustration of the folly of labeling the use of issue preclusion as "defensive" or "offensive." The terms do not capture the fluidity of a party's identity created by the ability to seek a declaratory judgment. While Rambus has lost on Micron's unclean hands defense to Rambus's infringement claims, Rambus was forced to litigate as a counter-claimant when Micron sued it for a declaratory judgment in Delaware. Thus, while Rambus brought an infringement claim against Micron, it did not choose the time, venue, or adversary. The unfairness of being precluded based on a trial that a party did not choose animates substantial concern about the ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 application of non-mutual issue preclusion and the need for a trial court to exercise discretion. See generally 18A Wright & Miller 4465.1 (2d ed. 2002) ("One of the most general concerns attending the abandonment of mutuality has been that it may be unfair to bind a party who did not take the initiative in the first action."). Those concerns and the need for discretion apply equally here, even though Hynix's preclusion argument is properly termed "defensive." Idaho Potato Commission v. G & T Terminal Packaging, Inc., 425 F.3d 708, 713 fn.3 (9th Cir. 2005) (defining "defensive" nonmutual issue preclusion as "a defendant['s] attempt[] to preclude a plaintiff from relitigating an issue that the plaintiff previously litigated unsuccessfully against a different party"). In reply, Hynix argues that Stevenson v. Sears, Roebuck & Co. precludes this court's discretion to apply the non-mutual issue preclusion doctrine. The court disagrees. In Stevenson, the Federal Circuit explained that inconsistent judgments as to validity should not prevent a court from applying non-mutual issue preclusion to stop a patentee's infringement case. 713 F.2d 705, 709-10 (Fed. Cir. 1983). Moreover, the court explained that the third court should not attempt to discern which prior court was "correct," in large part because such an inquiry would often fail given the potential for different arguments and allegedly invalidating prior art references. Id. Instead, the third court should stick to applying Blonder-Tongue's searching "full and fair opportunity to litigate" inquiry. Id. at 709. But as explained above, this inquiry is not an "automatic formula." Id. Conflicting invalidity decisions should not lead the third court to reflexively enter judgment of invalidity. Id. at 710. On the contrary, such inconsistent outcomes form a "red flag warning" to the trial court to be especially careful when applying the doctrine of non-mutual issue preclusion. Id. As the Supreme Court has made clear repeatedly, the application of non-mutual issue preclusion requires a careful weighing of the equities. The court therefore turns to examine the myriad factors that influence its exercise of discretion. B. Inconsistent Outcomes "The existence of inconsistent prior judgments is perhaps the single most easily identified factor that suggests strongly that neither should be given preclusive effect." 18A Wright & Miller 4465.2, at 764 (2d ed. 2002); Rest. 2d Judgments 29(4). The Delaware court's decision on spoliation differs from this court's as to both factual and legal conclusions. For example, the ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 4 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Delaware court determined that Rambus anticipated litigation, and thus possessed a duty to preserve evidence, "no later than December 1998" based on Joel Karp's "nuclear winter" memorandum. Micron, 2009 WL 54887 55. On similar evidence, this court concluded that Rambus did not anticipate litigation until Rambus actually sought out and retained litigation counsel in late 1999. Hynix, 2006 WL 565893, *24. As an example of the latter, the Delaware court concluded that Micron's ability to defend against Rambus's claim had been prejudiced because "the record demonstrates that there were documents relevant to [Micron's JEDEC claims and inequitable conduct defense]" that had been destroyed. Micron, 2009 WL 54887 56. Considering the same issue, this court concluded otherwise: Although Hynix has made a showing that Rambus destroyed some relevant documents, Rambus established that adequate similar and material documents or classes of documents were not destroyed. The evidence showed that Rambus has produced to Hynix a large volume of relevant and material documents. According to the testimony of Hynix's counsel, Rambus has produced approximately 1.2 million pages of documents responsive to Hynix's discovery requests in this case. Moreover, for each category of documents material to the validity or enforceability of Rambus's patents that Hynix argued Rambus did not preserve and produce, Rambus has shown by clear and convincing evidence that documents in that category were in fact produced. Although Hynix complained that a notebook, models, and detailed diagrams authored by Dr. Farmwald that Farmwald himself described as being from early to mid-1988 in a September 1995-mail to Crisp were never produced, Rambus has produced various documents relating to the conception and reduction to practice of the patented inventions prior to the April 1990 filing date of the '898 application. These include inventor notes, computer simulations, drafts of patent applications, technical presentations given by the inventors, and several boxes of documents that had been in Farmwald's possession (and thus not subjected to Rambus's enforcement of its Document Retention Policy). Rambus also produced several boxes of prior art. The prior art produced by Rambus included prior art references with fax lines showing that the art was ordered in 1996, prior art references with a few underlines, and prior art references containing a few notations. No evidence suggested that material, non-cumulative prior art exists that Rambus has not produced. Thus, it does not appear that Hynix has been deprived of material, non-privileged, and non-cumulative documents. Additionally, to the extent that documents such as notes of interviews with the inventors and draft responses to the patent examiner may have been discarded when Attorney Vincent conformed the issued patent files to the PTO file wrapper, those documents would probably be privileged and not been discoverable. . . . With regard to the prior license agreement between Rambus and Hyundai, Hynix acknowledges that a "fairly complete record" has been produced[.] . . . The court concludes that Hynix has not been prejudiced by the destruction of Rambus documents. Hynix, 2006 WL 565893, *27-28. The existence of inconsistent judgments counsels against the application of issue preclusion. ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 5 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See Parklane Hosiery, 439 U.S. at 330. The judicious application of issue preclusion rests on an assumption that a prior decision was more or less correct. Crawford v. Ranger Ins. Co., 653 F.2d 1248, 1252 (9th Cir. 1981). This assumption is not warranted where inconsistent decisions have been reached; it instead suggests that "'the outcomes may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence[.]'" Id. (quoting State Farm Fire & Cas. Co. v. Century Home Components, Inc., 550 P.2d 1185, 1192 (Or. 1976)). The unfairness of applying non-mutual issue preclusion in the face of conflicting adjudications is heightened when those issues are "slippery subjective appraisals or application of generalized standards of conduct." 18A Wright & Miller 4465.2, at 764; cf. Rest. 2d Judgments 29(7) (considering whether "[t]he issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based"). One of the central issues to the spoliation question in these cases is whether or not any Manufacturer has suffered prejudice from Rambus's document destruction. This subjective determination is plainly an issue on which reasonable minds can differ and, to the extent legal issues are involved, will appropriately require the attention of the Federal Circuit Court of Appeals. But the issue's "slippery" nature suggests it would be unfair to preclude Rambus from relitigating it. Hynix argues that a "last in time" rule should apply, citing Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1530 (9th Cir. 1985). A critical feature of Americana Fabrics' "last in time" discussion is that it involves mutual, not non-mutual, preclusion. See 754 F.2d 1527-28. The purpose of the rule is to create finality as between two parties, a value lacking in the non-mutual context. Id. at 1530. The "last in time" rule has little basis in non-mutual issue preclusion. It implicitly hypothesizes the existence of conflicting judgments. But the Supreme Court's discussion in Parklane Hosiery explained that it "may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant." Parklane Hosiery, 439 U.S. at 330 & fn.14. Yet, if the "last-in-time" rule governed in non-mutual preclusion cases, the concern regarding inconsistent judgments would be moot. Thus, Hynix's attempt to extend the last-in-time rule to this context fails. C. Hynix's Ability to Have Joined in Micron ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 6 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A special consideration highlighted in Parklane Hosiery supports denial of the application of issue preclusion as to Hynix. The law of preclusion must not be applied in such a way that it encourages parties to adopt a "'wait and see' attitude, in the hope that the first action by another plaintiff will result in a favorable judgment." Parklane Hosiery, 429 U.S. at 330. Instead, the doctrine of issue preclusion should be interpreted to create strong incentives to "join all potential defendants in the first action if possible." Id. at 329-30. The Supreme Court's use of "defendants" is an artifact of its failure to discuss the declaratory judgment context. Ideally, this patent litigation would have proceeded before a single court, as done when Rambus sued the Hynix, Nanya, and Infineon entities in the 05-00334 case, and then joined the Samsung entities when Rambus terminated Samsung's patent license.3 But that is not how this litigation, broadly conceived, begun. Micron sued Rambus for declaratory judgment on August 28, 2000 in Delaware. Hynix sued Rambus for declaratory judgment the next day here in San Jose, California. Persuasive circumstantial evidence suggests that Micron and Hynix coordinated their filing of the declaratory judgment lawsuits. See Conduct Trial Tr. 4006:8-4008:12 (Mar. 5, 2008) (former Hynix employee Farhad Tabrizi admitting to his belief in 2000 prior to litigation with Rambus that Hynix would litigate "to the end of Rambus company"); 5131:1-25; 5135:1-16 (Mar. 18, 2008) (testimony of Micron CEO Steve Appleton that he met with Hynix personnel in early August of 2000 and that he cancelled licensing meetings with Rambus to sue for declaratory judgment); 5633:16-5634:1 (Mar. 20, 2008) (testimony from Hynix employee D.S. Chung about licensing meetings Hynix scheduled with Rambus, then cancelled by suing for declaratory judgment); cf. Licensing Trial Tr. 420:24-423:6 (Sept. 24, 2008) (testimony of Samsung employee Jay Shim regarding joint defense agreement between Samsung, Hynix, Micron, and Infineon entered into in August 2000). Hynix now seeks to take advantage of its coordinated, dual-front litigation against Rambus to capitalize on Rambus's loss in Delaware. Were the court to now apply issue preclusion in Hynix's favor, it would be rewarding Hynix's efforts to multiply the scope of this conflict, thus confirming Rambus could not join the Micron entities at the time. When it could, Rambus sued the Micron entities in the 06-00244 case in this court, and the cases were consolidated when appropriate. ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 7 3 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Supreme Court's fear that improper use of non-mutual issue preclusion "will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action." Parklane Hosiery, 439 U.S. at 330. This consideration highlights the inequity of permitting Hynix to invoke the Delaware court's spoliation order over the order from the venue it chose. D. Lack of Efficiency A fundamental purpose of non-mutual issue preclusion is to promote efficiency in the judicial system. See generally 18A Wright & Miller 4464, at 710-711 (2d ed. 2002); BlonderTongue, 402 U.S. at 328-29 (listing two justifications for non-mutual issue preclusion as the need for "efficient judicial administration" and to dispel "the aura of the gaming table"); cf. SEC v. Monarch Funding Corp., 192 F.3d 295, 305-07 (2d Cir. 1999) (reflecting "upon whether the efficiency rationale for collateral estoppel would be advanced or hindered" if applied to criminal sentencing decisions). "If the economies achieved by applying collateral estoppel are not readily apparent, why risk the permanent encapsulation of a wrong result?" Monarch Funding, 192 F.3d at 306. The case of Mozart Co. v. Mercedes-Benz of North America, Inc. illustrates these concerns. 833 F.2d 1342 (9th Cir. 1987). The case arises from parallel antitrust cases. Id. at 1343-44. In the California case, the plaintiff lost after an 11-week jury trial when the jury found that a business justification excused the allegedly anticompetitive conduct. Id. at 1343. Meanwhile, the same defendant lost in Maryland when a jury did not find that such a business justification existed. Id. at 1347. The Ninth Circuit's holding appears to be that although the cases both involved allegedly anticompetitive tying, the cases turned on different facts, defeating any potential for issue preclusion. See id. at 1348 (noting that "the case before us is based on different evidentiary facts"). But the court further explained that "[i]t would be a curious use of affirmative collateral estoppel to permit one who had lost before the jury on certain facts to overturn that verdict by pointing out that on different facts, but identical legal principles, the winner before the jury had lost a jury verdict to a stranger on an earlier day and in a different court." Id. The court did not further illuminate its reasoning, but it seems likely that its conclusion stems from the complete absence of efficiency gained by reversing an existing decision simply because a second, contrary decision now exists. ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 8 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Similarly, in Gough v. Natural Gas Pipeline Co. of America, the plaintiff failed to seek nonmutual issue preclusion prior to trial. 996 F.2d 763, 768 (5th Cir. 1993). When the jury found the plaintiff contributorily negligent, the plaintiff sought to preclude the defendant from asserting the defense based on a prior verdict that the defendant had been solely responsible for the accident. Id. at 768-69. The Fifth Circuit rejected the argument, noting first that the plaintiff might have been able to join in the first action. Id. at 769. The court further observed that "efficiency is [offensive] collateral estoppel's only true justification." Id. at 769.4 Thus, "[i]t is too late to invoke the virtue of efficiency when the case has already been tried." Id. Hynix has already tried and lost the issue of spoliation. Nothing would be gained by permitting Hynix to invoke "efficiency" now, particularly when it previously collaborated to defeat judicial efficiency. E. Conclusion For the foregoing reasons, the court is not persuaded that "justice and equity" will be served by permitting Hynix to rely on the Delaware court's opinion finding that Rambus engaged in spoliation. Hynix directly litigated the issue with Rambus and lost. The existence of inconsistent decisions calls into question the correctness of both of the existing orders. Moreover, Hynix's litigation tactics confirm the Parklane Court's fears about the potential for abuse of non-mutual issue preclusion. Finally, the application of issue preclusion in this context would generate no efficiency for the court or the parties. II. RECONSIDERATION Hynix argues in the alternative that the court should reconsider its prior decision based on the Micron decision. Specifically, Hynix urges this court to adopt the Delaware court's conclusion that the facts show that Rambus anticipated litigation in September 1998 based on Joel Karp's "nuclear winter" memo. Rambus does not argue that reconsideration in this context is inappropriate. The court agrees that in this situation "the first court should be free to reconsider, and in deciding The Fifth Circuit added the word "offensive." The law review article it paraphrased did not include the word "offensive." Compare id. with Jack Ratliff, Offensive Collateral Estoppel and the Option Effect, 67 Texas L.Rev. 63, 101 (1988). ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 9 4 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whether to reconsider may take account of the advantage of consistent results." 18 Wright & Miller 4404, at 79-80 (2d ed. 2002). But the court is not persuaded that its prior opinion is erroneous. The memo was in evidence (as Hynix Trial Exhibit 4) and subject to substantial testimony. Spoliation Trial Tr. 294:10-309:22 (Oct. 18, 2005). The court discussed the nuclear winter memo in its findings. See Hynix, 2006 WL 565893 53, 54. The court did not specifically discuss the memo in its conclusions of law, see id. at *22-*24, but the court gave it careful consideration and decided that it did not show an intent to litigate. To begin, the Delaware court described the document as outlining what Mr. Karp believed Rambus's strategy should be "in the 'very unlikely' event that Intel cancelled its RDRAM production and moved instead to a competing technology." Micron, 2009 WL 54887 24. The Delaware court's description alone suggests the tentative and contingent nature of Mr. Karp's thinking, and not Rambus's "anticipation of litigation." The remainder of the document's contents confirms the hesitant, contingent nature of Mr. Karp's planning. The memo begins with its "major assumption," described as, "Intel decides to cancel ramp and move away from Rambus to something else (DDR, SLDRAM, PC133, or something else that may be totally new, having been developed in secret by elves in the Black Forest at a cost of $10B, for example)." Roeder Decl., Ex. J at HTX 004.002. It is a rare memo that sets forth a company's policy and anticipated court actions and also begins its first sentence with an offthe-cuff reference to Black Forest elves. The memo continued: "I need to point out at this time that this is a very unlikely scenario, even for something that's purely hypothetical." Id. Nonetheless, the memo proceeded to outline a scenario in which Rambus's intellectual property could be used to persuade Intel to stick with Rambus. See id. To the extent the nuclear winter memo discussed suing DRAM makers, it did so in the context of maneuvering to put pressure on Intel to continue to support Rambus's DRAM designs. The memo concluded its assessment of suit against a DRAM maker by noting that for such a suit "costs would be high ($1.5-3.0M) since we would be fast-tracking everything." Id. at HTX 004.006 (emphasis added). "The case could be prepared in 1-3 months." Id. (emphasis added). Beside being ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 10 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ironically wrong, these estimates show both the speculative, contingent nature of Mr. Karp's planning and the amount of time and effort still needed before litigation would be something that Rambus considered "reasonably foreseeable" or "anticipated," i.e., "look[ed] forward to, look[ed] for (an uncertain event) as certain." Oxford English Dictionary (2d ed. 1989) (ninth definition of "anticipate, v."). Thus, the court remains unpersuaded that Rambus considered litigation "reasonably foreseeable" as of the date of Joel Karp's "nuclear winter" memo. III. HYNIX'S REQUESTED STAY Hynix also moves for a stay of proceedings in 00-20905 and for the spoliation issue to be certified for interlocutory appeal with the Micron spoliation order. As described in an accompanying order, the court agrees with Hynix that consolidated review of the two conflicting spoliation decisions is prudent and that a stay of the 05-00334 action is appropriate. The court does not, however, agree that certification and a stay of the 00-20905 case is appropriate. Instead, the court aims to resolve the outstanding issues in this case to permit appellate review of a final judgment. Hynix's briefs also explore some of the difficult issues looming, like the mechanics for posting an adequate appellate bond in light of the battered credit markets. These issues concern the court, but they do not provide a basis for not forging ahead. They may be addressed by motion, if not resolved by a meet-and-confer between the parties. The court requests that Rambus and Hynix meet and confer about the form and content of the final judgment to be entered in the 00-20905 action and, if unable to agree, to arrange a conference call with the court during the week of February 16, 2009. IV. ORDER For the foregoing reasons, the court denies Hynix's motion. DATED: 2/3/2009 RONALD M. WHYTE United States District Judge ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 11 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to counsel in: 00-20905. Counsel Rambus: Kathryn Kalb Anderson Peter A. Detre Erin C. Dougherty Sean Eskovitz Burton Alexander Gross Keith Rhoderic Dhu Hamilton, II Pierre J. Hubert Andrea Jill Weiss Jeffries Miriam Kim Carolyn Hoecker Luedtke Steven McCall Perry Jennifer Lynn Polse Matthew Thomas Powers Rollin Andrew Ransom Rosemarie Theresa Ring Gregory P. Stone Craig N. Tolliver Donald Ward David C. Yang Douglas A. Cawley Scott L Cole William Hans Baumgartner, Jr Scott W. Hejny Kelly Max Klaus Catherine Rajwani Thomas N Tarnay Hynix: Theodore G. Brown , III Daniel J. Furniss Joseph A. Greco Julie Jinsook Han Tomomi Katherine Harkey Jordan Trent Jones Patrick Lynch Kenneth Lee Nissly Kenneth Ryan O'Rourke Belinda Martinez Vega Geoffrey Hurndall Yost Susan Gregory van Keulen Allen Ruby Micron: Robert Jason Becher John D Beynon Jared Bobrow Yonaton M Rosenzweig Harold Avrum Barza Email Appearances: 05-00334 05-02298 06-00244 00-20905 Kate.Anderson@mto.com detrepa@mto.com erin.dougherty@mto.com sean.eskovitz@mto.com Burton.Gross@mto.com keith.hamilton@mto.com phubert@mckoolsmith.com Andrea.Jeffries@mto.com Miriam.Kim@mto.com carolyn.luedtke@mto.com steven.perry@mto.com jen.polse@mto.com mpowers@sidley.com rransom@sidley.com rose.ring@mto.com gregory.stone@mto.com ctolliver@mckoolsmith.com Bill.Ward@mto.com david.yang@mto.com dcawley@mckoolsmith.com scole@mckoolsmith.com wbaumgartner@sidley.com shejny@sidley.com kelly.klaus@mto.com crajwani@sidley.com ttarnay@sidley.com x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x tgbrown@townsend.com djfurniss@townsend.com jagreco@townsend.com JJHan@townsend.com tharkey@omm.com jtjones@townsend.com plynch@omm.com kennissly@omm.com korourke@omm.com bvega@omm.com gyost@thelenreid.com svankeulen@omm.com ruby@allenrubylaw.com x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x robertbecher@quinnemanuel.com john.bey non@weil.com jared.bobrow@weil.com y oniro senzweig@quinnemanuel.com halbarza@quinnemanuel.com x x x x x x x x x x x x x x x ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 12 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Linda Jane Brewer Aaron Bennett Craig Leeron Kalay David J. Lender Rachael Lynn Ballard McCracken Sven Raz David J. Ruderman Elizabeth Stotland Weiswasser Nanya: Jason Sheffield Angell Kristin Sarah Cornuelle Chester Wren-Ming Day Jan Ellen Ellard Vickie L. Feeman Robert E. Freitas Craig R. Kaufman Hao Li Cathy Yunshan Lui Theresa E. Norton Mark Shean Kaiwen Tseng Samsung: Steven S. Cherensky Dana Prescott Kenned Powers Matthew Douglas Powers Edward Robert Reines United States Dept. of Justice May Lee Heye Eugene S. Litvinoff Niall Edmund Lynch lindabrewer@quinnemanuel.com aaroncraig@quinnemanuel.com kalay@fr.com david.lender@weil.com rachaelmccracken@quinnemanuel.com sven.raz@weil.com davidruderman@quinnemanuel.com elizabeth.weiswasser@weil.com x x x x x x x x x jangell@orrick.com kcornuelle@orrick.com cday@orrick.com jellard@orrick.com vfeeman@orrick.com rfreitas@orrick.com hlee@orrick.com hli@orrick.com clui@orrick.com tnorton@orrick.com mshean@orrick.com ktseng@orrick.com x x x x x x x x x x x x x x x x x x x x steven.cherensky@weil.com dana.powers@weil.com matthew.powers@weil.com, matthew.antonelli@weil.com Edward.Reines@weil.com x x x x x x x x x x may.heye@usdoj.gov eugene.litvinoff@usdoj.gov Niall.Lynch@USDOJ.GOV x x x Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program in each action. Dated: 2/3/2009 TSF Chambers of Judge Whyte ORDER DENYING HYNIX'S MOTION FOR SUMMARY JUDGMENT OF UNCLEAN HANDS -- C-00-20905 RMW TSF 13

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