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No. 13-1294 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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MICRON TECHNOLOGY, INC., Plaintiffs/Counterclaim Defendant-Appellee, and MICRON ELECTRONICS, INC. and MICRON SEMICONDUCTOR PRODUCTS, INC., Counterclaim Defendants-Appellees, v. RAMBUS INC.,
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Defendant/Counterclaimant-Appellant.

Appeal from the United States District Court for the District of Delaware in Case No. 00-CV-0792, Judge Sue L. Robinson
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REPLY BRIEF OF RAMBUS INC. ________________ GREGORY P. STONE FRED A. ROWLEY, JR. JEFFREY Y. WU MUNGER, TOLLES & OLSON LLP 355 South Grand Ave., 35th Floor Los Angeles, C.A. 90071 (213) 683-9100 CARTER G. PHILLIPS ROLLIN A. RANSOM MICHELLE B. GOODMAN RYAN C. MORRIS JENNIFER J. CLARK SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 Telephone: (202) 736-8000 Facsimile: (202) 736-8711 cphillips@sidley.com

MICHAEL J. SCHAENGOLD PATTON BOGGS LLP 2550 M Street, N.W. Washington, D.C. 20037 (202) 457-6523 Counsel for Rambus Inc.

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CERTIFICATE OF INTEREST Counsel for appellant Rambus Inc. certifies the following: 1. The full name of every party represented by me is: Rambus Inc. 2. The name of the real party in interest represented by me is: Rambus Inc. 3. There are no parent corporations and publicly held companies that own 10% or more of the stock of Rambus Inc. 4. The names of all law firms and the partners or associates who appeared for Rambus Inc. in proceedings before the United States District Court for the District of Delaware, or are expected to appear in this Court, are: S IDLEY A USTIN LLP Carter G. Phillips, Rollin A. Ransom, Eric A. Shumsky, Eric Solovy, Peter S. Choi, Rachel H. Townsend, Ryan C. Morris, Stephen C. Carlson, John A. Heller, Brian A. McAleenan, Benjamin Guthrie Stewart, Timothy Powderly, Michelle B. Goodman, Charles W. Douglas, Thomas K. Cauley, Jr., Peter H. Kang, Matthew L. McCarthy, Philip W. Woo, Teague Donahey, Peter Suen, Anne Mayer Turk, William Baumgartner, Marc Raven, Courtney Rosen, Jennifer J. Clark MORRIS, NICHOLS, ARSHT & TUNNELL LLP Mary B. Graham, James Walter Parrett , Jr., Rodger D. Smith MUNGER, TOLLES & OLSON LLP Gregory P. Stone, Aaron M. May, Paul J. Watford, Fred A. Rowley, Jr., Richard Drooyan, Andrea Weiss, Catherine Augustson, Peter A. Detre, Carolyn H. Luedtke, Jeffrey Y. Wu PATTON BOGGS LLP Michael J. Schaengold FARR & TARANTO Richard G. Taranto

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DLA PIPER RUDNICK GRAY CARY US LLP (f/k/a GRAY CARY WARE & FREIDENRICH LLP) David E. Monahan, Jeffrey M. Shohet, Barbara J. Orr, David Pendarvis, Sean C. Cunningham, John M. Guaragna, John Allcock, Charles L. Deem, James Pooley, James W. Huston, James W. Cannon MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP Denis A. Berntsen, Thomas E. Wettermann, Stephen Lesavich DATE: November 22, 2013 /s/ Carter G. Phillips CARTER G. PHILLIPS

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TABLE OF CONTENTS CERTIFICATE OF INTEREST............................................................................................ i TABLE OF AUTHORITIES ................................................................................................. v INTRODUCTION .................................................................................................................. 1 ARGUMENT ............................................................................................................................ 2 I. The District Court’s Bad-Faith Determination Is Erroneous. ............................... 2 A. B. The District Court Applied A Legally Incorrect Standard. ......................... 2 The Evidence And The District Court’s Own Factual Findings Do Not Support A Bad-Faith Finding. ................................................................. 5 1. 2. 3. 4. Rambus Did Not Adopt Its Policy In Bad Faith. ............................. 6 Rambus Did Not Acknowledge The Impropriety Of Its Policy. ....................................................................................................... 9 Rambus Did Not Selectively Execute Its Policy. ............................ 10 Rambus’s Alleged Litigation Misconduct Has No Bearing On Whether Rambus Intentionally Destroyed Harmful Documents. ........................................................................................... 12

II.

The District Court’s Prejudice Determination Is Erroneous. .............................. 13 A. B. The District Court Misapplied The Legal Standard. .................................. 13 Rambus’s Spoliation Did Not Materially Affect Micron’s Substantial Rights. ................................................................................................................ 15 1. 2. 3. C. Micron Has No Legally Viable JEDEC-Based Defense................ 15 Micron Has No Legally Viable Inequitable Conduct Defense. .... 19 Micron’s Other Defenses Were Not Prejudiced. ............................ 21

Micron Failed To Provide Plausible, Concrete Suggestions Of Documents Destroyed After The Preservation Duty Arose. ................... 21

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III.

The District Court Abused Its Discretion By Imposing Terminating Sanctions. ...................................................................................................................... 24 A. B. C. The Degree Of Fault Does Not Justify Terminating Sanctions. .............. 24 The Prejudice, If Any, Does Not Justify Terminating Sanctions. ............ 26 The District Court Failed To Select The Least Onerous Sanction. ......... 28

CONCLUSION ...................................................................................................................... 31

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TABLE OF AUTHORITIES Page(s) CASES Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) ....................................................................................................... 3, 4 In re BP Lubricants USA, Inc., 637 F.3d 1307 (Fed. Cir. 2011) ........................................................................................ 19 Bull v. United Parcel Serv., 665 F.3d 68 (3d Cir. 2012)................................................................................................ 25 Centimark Corp. v. Pegnato & Pegnato Roof Mgmt., No. 05-708, 2008 WL 1995305 (W.D. Pa. May 6, 2008)............................................. 22 Chambers v. NASCO, 501 U.S. 32 (1991) ............................................................................................................. 24 Estate of Spear v. Comm’r, 41 F.3d 103 (3d Cir. 1994)................................................................................................ 13 Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009) ........................................................................................ 19 Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519 (3d Cir. 2012) ............................................................................................. 18 Gutman v. Klein, No. 03-1570, 2008 WL 4682208 (E.D.N.Y. Oct. 15, 2008) ....................................... 27 Hechinger Inv. Co. of Del. v. Universal Forest Prods. (In re Hechinger), 489 F.3d 568 (3d Cir. 2007) ............................................................................................. 20 Hynix Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 988 (N.D. Cal. 2009), aff’d, 645 F.3d 1336 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 1540 (2012) ....................................................................... 17, 18, 21 Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir. 2011), cert. denied, 132 S. Ct. 1540 (2012) ..................... 15, 25 Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed. Cir. 1988) .......................................................................................... 16 v

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KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) ...........................................................................................................21 Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) ..................................................................................... 26, 27 Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011) ..................................................................................passim Nelson v. Original Smith & Wesson Bus. Entities, 449 F. App’x 581 (9th Cir. 2011) .................................................................................... 13 Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081 (Fed. Cir. 2003) ................................................................................. 15, 16 Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) ............................................................................ 29 Schmid v. Milwaukee Elec. Tool Co., 13 F.3d 76 (3d Cir. 1994).................................................................................................. 20 Shepherd v. ABC, 62 F.3d 1469 (D.C. Cir. 1995) ......................................................................................... 30 State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573 (Fed. Cir. 1991) ........................................................................................ 14 Stevenson v. Union Pac. R.R., 354 F.3d 739 (8th Cir. 2004) ............................................................................................ 25 Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D. Fla. 1987) ...................................................................................... 27 Therasense, Inc. v. Becton Dickinson & Co., 649 F.3d 1276 (Fed. Cir. 2011) .......................................................................................... 5 OTHER AUTHORITIY Jamie S. Gorelick et al., Destruction of Evidence (1989) ........................................................... 5

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INTRODUCTION The District Court failed to follow this Court’s instruction to reevaluate its findings of bad faith and prejudice using the proper legal standards, and to select “‘the least onerous sanction,’” if any, corresponding to Rambus’s conduct. Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1328-29 (Fed. Cir. 2011) (“Micron II”). The District Court found bad faith based on its determination that Rambus, before it had a preservation duty, adopted a document-retention policy to eliminate documents that might be harmful in possible future litigation. That, however, is a common objective of all document-retention policies, and one the Supreme Court has deemed legitimate. Yet Micron argues that this was bad faith because the District Court found that Rambus’s intent had not “dissipated” by the time Rambus destroyed documents while under a preservation duty in August 1999. But bad faith requires a finding that Rambus destroyed documents during the 1999 shred day with the specific intent to hamstring a litigation opponent. The District Court made no such finding, and the bad-faith findings it did make are clearly erroneous. Micron’s answering brief also confirms that the evidence cannot support a conclusion that Rambus’s spoliation “‘materially affect[ed] [Micron’s] substantial rights.’” Micron II, 645 F.3d at 1328. Rambus preserved and produced over 700,000 pages of documents relating to every issue in this case, and even the District Court agreed that most of Micron’s defenses were unaffected by Rambus’s document destruction. As to the few purportedly prejudiced defenses, Micron does not dispute

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that the District Court failed to consider whether they were legally viable, or whether they would fail for reasons unrelated to the unavailability of Rambus’s internal documents. Instead, Micron defends the District Court’s dispositive sanction based on speculation that additional documents similar to those Rambus preserved may have been destroyed in August 1999. Such speculation does not amount to prejudice—and certainly not the extreme prejudice that warrants terminating sanctions. Finally, the District Court’s uncritical resort to the “atomic bomb” of patent law, and its manifest failure to meaningfully consider less onerous remedies, constitute a clear abuse of discretion. Judge Whyte’s decision in Hynix to impose a targeted sanction short of dismissal conclusively establishes the adequacy of lesser sanctions. This Court should reverse. ARGUMENT I. The District Court’s Bad-Faith Determination Is Erroneous. A. The District Court Applied A Legally Incorrect Standard.

In its opening brief, Rambus demonstrated that the District Court erred as a matter of law by basing its bad-faith determination almost exclusively on a finding that Rambus adopted its document-retention policy while contemplating the possibility of future—but not reasonably foreseeable—litigation. RambusBr. 24-28. Because it is now undisputed that Rambus adopted its document-retention policy before a preservation duty arose, the Supreme Court’s decision in Arthur Andersen 2

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makes clear that it was “not inherently malign” for Rambus to adopt that policy, and destroy documents pursuant to that policy, even for the express purpose of keeping documents from potential adversaries. Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005); RambusBr. 25-26. Therefore, even accepting the District Court’s conclusion that the “raison d’etre for Rambus’ document retention policy was to further Rambus’ litigation strategy by frustrating the fact-finding efforts of parties adverse to Rambus,” JA37(Op.28), that cannot constitute bad faith. RambusBr. 26. Micron urges this Court to ignore when the preservation duty attached, arguing that taking it into account would “conflate[]” the subjective issue of intent with the objective question of litigation’s foreseeability. MicronBr. 26. Micron’s notion of bad faith untethered to any preservation duty is contrary to Arthur Andersen. Because companies may legitimately adopt document-retention policies, and destroy documents, to keep harmful documents from adversaries in the absence of a duty to preserve, 544 U.S. at 704, the timing of the onset of that duty bears directly on the existence of bad faith. Instead of addressing Arthur Andersen, which Micron relegates to a single parenthetical, MicronBr. 27, Micron insists the District Court’s “analysis was not limited to Rambus’s intent at the time it adopted the policy,” id. 29. But this is belied by the District Court’s opinion. The court’s finding that Rambus initially adopted its policy “‘to further Rambus’ litigation strategy’” was the bad faith that “underlies the

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entire policy and permeates any action taken pursuant to the policy.” JA37(Op.28) (emphasis added). The District Court’s exclusive reliance on the initial intent underlying Rambus’s policy is confirmed by the evidence it cited. Virtually all of that evidence relates to events that occurred before December 1998, when the District Court found the preservation duty arose, including the adoption and implementation of the documentretention policy in early 1998, JA32(Op.23) JA35(Op.26); the July 1998 degaussing of backup tapes (and Karp’s retention of a single backup tape), JA34(Op.25); the presentation of the policy to Rambus employees, and one employee’s testimony regarding one of those presentations in July 1998, JA33(Op.24); and the first shred day in September 1998, JA33(Op.24). As Arthur Andersen makes clear, until the duty to preserve arose, neither Rambus’s adoption of the policy, nor its destruction of documents under that policy, could legally amount to bad faith. 544 U.S. at 704. Micron is also wrong to suggest that the District Court’s reliance on the “raison d’etre” of Rambus’s document-retention policy was appropriate because that intent had not “dissipated” when Rambus destroyed documents in August 1999. MicronBr. 29. By arguing that Rambus must prove the “dissipation” of its legitimate purpose in adopting the policy, and then asserting that “nothing in the record suggests that Rambus had any intent other than to gain litigation advantage,” MicronBr. 29, Micron impermissibly shifts its burden onto Rambus. Micron II made clear that Micron alone bears the burden to show bad faith, and that the question is not whether the policy’s 4

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initial, legitimate purpose has “dissipated” but whether, after the duty to preserve arose, Rambus “‘intended to impair the ability of [Micron] to defend itself.’” 645 F.3d at 1326. Micron does not dispute that bad faith is an exacting standard akin to the standard for inequitable conduct. RambusBr. 25. Under that standard, Micron must prove that Rambus held the shred day in 1999 with a specific intent to target adverse documents it knew would be harmful in future litigation. See Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011) (en banc). The District Court did not apply this standard, and Micron cannot satisfy it merely by asserting that one of the purposes underlying Rambus’s document-retention policy, like all documentretention policies, was to “reduce[] [the] legal exposure through the destruction of incriminating evidence.” Jamie S. Gorelick et al., Destruction of Evidence § 8.2 (1989). Otherwise, the adoption of any policy would presumptively mean that all subsequent document destruction was in bad faith. B. The Evidence And The District Court’s Own Factual Findings Do Not Support A Bad-Faith Finding.

Rambus demonstrated that the factors on which the District Court relied to find bad faith contradict the record and the court’s own factual findings. RambusBr. 28-38. Micron’s answering brief ignores those errors and inconsistencies. It also fails to identify evidence that Rambus acted with the requisite bad faith in destroying documents in 1999.

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1.

Rambus Did Not Adopt Its Policy In Bad Faith.

Even if bad faith before the onset of a preservation duty is legally possible, the District Court’s own findings show that Rambus adopted its document-retention policy not in bad faith, but at the urging of informed outside counsel at Cooley Godward. RambusBr. 29-31. In particular, the District Court itself found that before Cooley advised Rambus to adopt a document-retention policy, Rambus told its outside counsel of its so-called “litigation objectives.” RambusBr. 30-31. The District Court specifically found that Karp told Cooley attorney Leal in their initial meeting on January 13, 1998: that Rambus wanted the following: “litigation strategy by [the] March board meeting,” “[n]o negotiations [without] full strategy and prep[aration],” “[g]o in quickly [and] proceed to either a license or litigation,” “[t]ry win-win first; do not prejudice [good faith] for litigation,” “[l]oo[k] for royalty rate that tells them it costs to infringe,” and “[g]o to first meeting but be ready (in advance) to go to litigation.” JA14-15(Op.5-6) (quoting JA20730(MTX285)). Leal’s colleague Johnson first raised the issue of document retention a month later, at a February 12, 1998 meeting that Leal also attended. JA20737(MTX290). Micron completely ignores this finding and the additional evidence of what Rambus told its outside counsel, JA20731(MTX285); JA20732(MTX287), and argues that Johnson did not know “Tate had instructed Karp to ‘set a royalty rate that would show competitors that ‘it would cost to infringe.’” MicronBr. 32 (quoting JA35). This fails for two reasons. First, there can be no question that Leal knew about 6

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Rambus’s initial royalty strategy and that Leal participated in the February 12, 1998 meeting with Johnson and Karp. Second, Micron admits that Johnson knew Karp initially considered seeking a high royalty rate: “When Rambus mentioned seeking an ‘incredibly high royalty rate,’ Johnson advised Rambus that such a rate would ‘push [Rambus] into litigation quickly.” MicronBr. 32 n.3.1 Micron’s contention that Johnson was unaware that Rambus would actually “take that route” is belied by the record. MicronBr. 32. Johnson testified that Karp consulted him about an appropriate rate, JA18704(Tr.1492-93), and Karp sent Johnson for review the Board presentation in which Karp proposed a 5% rate, JA18458(Tr.445-46); JA2074148(MTX295). Rambus’s outside counsel was not in the dark. Micron also wrongly asserts that “Johnson had no idea that Rambus’s motivation for adopting a document retention policy in the first place was to get ‘battle ready’ for litigation.” MicronBr. 31. Although Johnson testified that the phrase “battle ready” was not his, he acknowledged that the phrase was “consistent” with what was discussed at the February 12, 1998 meeting at which he recommended that Rambus adopt a document-retention policy. RambusBr. 31. Micron’s citation to Johnson’s testimony regarding his knowledge of Rambus’s plans in 1999—long after Johnson recommended that Rambus adopt a documentJohnson merely testified that he did not know specifically what Tate said to Karp. See JA18713-15(Tr.1555-56, 1558, 1562-63, 1568-69). He never suggested that he did not know of Rambus’s plans or the substance of what Tate communicated to Karp. 7
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retention policy—has no bearing on whether the Cooley lawyers were informed of Rambus’s plans before they recommended a document-retention policy. MicronBr. 32. Moreover, the degree of Johnson’s involvement with Rambus in the summer of 1999 likewise has no bearing on whether Rambus held the second shred day to keep harmful documents from potential adversaries. Micron next contends that “Rambus employees understood the policy as necessary to prepare for litigation.” MicronBr. 28. But employees merely indicated that the policy was discussed in relationship to documents that might be “discoverable” if Rambus were ever involved in a lawsuit. JA18628(Tr.1181-82); JA18697-98(Tr.1451-52); JA18945-46(Tr.101-02). That is precisely the concern Johnson identified, and the instruction Johnson gave Rambus. JA18704(Tr.1493-94); JA18705(Tr.1498); JA18709(Tr.1528-30). Indeed, the description of Rambus’s policy “as a precursor to litigation” came from the slide presentation Johnson gave to Rambus. JA74-75(¶17); JA20791-807; JA18710-11(Tr.1532-38). Consistent with Johnson’s advice, Rambus viewed the policy as a means of getting its house in order in the event that it later became involved in a lawsuit that was not yet reasonably foreseeable. That is not bad faith.

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2.

Rambus Did Not Acknowledge The Impropriety Of Its Policy.

Micron’s defense of the District Court’s finding that “Rambus acknowledged the impropriety of the document retention policy,” JA34(Op.25), is based on two documents. Neither supports Micron’s argument. The first is a version of Karp’s third-quarter 1999 goals in which he changed the name “shredding party” to “document retention compliance” and moved this event from the “Licensing/Litigation Readiness” category to “Database Maintenance.” MicronBr. 36. These changes merely reflected Rambus’s implementation of a routine document-destruction program and in no way suggest that Karp considered the program improper. Had he modified his goals to “obfuscate [Rambus’s] true intentions,” MicronBr. 36, Karp surely would not have preserved both of the prior versions, RambusBr. 34. And there is nothing improper about Rambus’s withholding of these documents until after its privilege was pierced. As Micron notes, Karp’s goals reflected the advice of counsel. MicronBr. 36. The second document cited by Micron is an email Karp sent in May 1998— before the duty to preserve arose—regarding the forthcoming document-retention policy. MicronBr. 37. Micron admits that the District Court’s finding that Rambus tried to keep the policy quiet was incorrect. MicronBr. 37 (“[t]he policy was widely disseminated within Rambus … and thus was not itself a secret”). But Micron now contends that what the court meant was that Rambus kept quiet “the details of its

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selective execution of the policy.” Id. In fact, nowhere in the email does Karp tell anyone to keep the policy or its implementation “quiet.” JA20775(MTX314). Rather, Karp stated his preference to answer questions regarding the proposed policy face-toface, and expressed his desire that any email questions be brief and narrowly distributed. Id. 3. Rambus Did Not Selectively Execute Its Policy.

Micron does not dispute that the District Court’s finding of selective execution is erroneously premised primarily on evidence concerning the preservation of documents. RambusBr. 34-35. Micron argues that the court was free to “reject[] Karp’s self-serving testimony” that his instruction to employees to “look for things to keep” was intended to ensure that employees did not make tough decisions about what was important. MicronBr. 33. But even so, nothing about the instruction suggests that employees were told to selectively destroy potentially harmful documents. Micron cites no testimony that employees understood “look for things to keep” to mean “preserve only favorable documents and destroy everything else,” notwithstanding the content-neutral categories identified in the policy. Micron points to a lone employee’s testimony that in the July 1998 rollout meeting, Karp noted that it “would not be a ‘good idea’ to ‘keep stuff around.’” MicronBr. 34 n.4. But this is a

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perfectly legitimate reason for adopting a document-retention policy, and it casts no doubt on the facially neutral and industry-standard categories identified in the policy.2 Johnson’s advice to Karp regarding this presentation was not based on concerns about selective destruction. MicronBr. 34. Johnson testified that he objected to Karp’s instruction not because Rambus would retain favorable evidence and destroy unfavorable evidence, but because employees would “keep all sorts of junk,” like “pictures, [or] memos that don’t relate to anything” instead of “looking for things to get rid of.” JA18711(Tr.1539-40).3 That is not “advantage-seeking conduct.” JA33(Op.24). With no evidence that Rambus designed or rolled out a selective policy, Micron is left pressing the District Court’s finding that Karp “‘went through great lengths’ to preserve a single back-up tape.” MicronBr. 34. Micron does not dispute, however, that preserving that tape was entirely consistent with Rambus’s document-retention policy. RambusBr. 35. Moreover, the retrieval of that tape was triggered by inadvertence, after opening a computer file caused unintended changes. JA18403(Tr.264); JA18454(Tr.420-21); JA18464(Tr.485-87). There is no evidence

Micron repeats the District Court’s statement regarding an email from 2001, MicronBr. 34 n.5, but the email complains about preservation of a document and does not show selective destruction in 1999. RambusBr. 35. This testimony also confirms that, contrary to Micron’s assertion, MicronBr. 34, Johnson reviewed Karp’s presentation slides. JA18711(Tr.1539) (“I saw his slides and I saw th[e] … expression look for things to keep”). 11
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that Rambus systematically examined the contents of its backup tapes to identify and segregate favorable information to retain. 4. Rambus’s Alleged Litigation Misconduct Has No Bearing On Whether Rambus Intentionally Destroyed Harmful Documents.

Micron spends four pages describing the District Court’s finding of litigation misconduct. MicronBr. 37-41. But Micron cannot show that any of this alleged conduct concealed the existence of Rambus’s document-retention policy. Micron nowhere disputes that Rambus’s 30(b)(6) deponents accurately testified about the core issue for which they were designated to testify—whether Rambus destroyed documents pursuant to a document-retention policy. JA19014-17(Tr.170-73); JA18564(Tr.962); JA18624(Tr.1159); JA18644(Tr.1290-91). Nor does Micron dispute that the deponents who gave this long-since-corrected testimony lacked personal knowledge of the issues, were not Rambus employees during the relevant time period, and understood the questions were outside the scope of the deposition notices. RambusBr. 37. Micron describes the District Court’s findings that Crisp and Tate testified inaccurately, MicronBr. 39, but nowhere refutes Rambus’s showing that these statements were, in fact, accurate. RambusBr. 37 n.4. Nor does Micron explain how testimony regarding Rambus’s patent strategy several years before Rambus adopted its document-retention policy in 1998 has any bearing on that policy or its implementation in 1999. Similarly, Micron offers no explanation for how Rambus’s 12

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argument in a 2001 brief that its document-retention policy was adopted “long before Rambus even contemplated” litigation bears on whether Rambus held the 1999 shred day to destroy potentially harmful documents. II. The District Court’s Prejudice Determination Is Erroneous. A. The District Court Misapplied The Legal Standard.

In Micron II, this Court stated: “Prejudice to the opposing party requires a showing that the spoliation materially affect[s] the substantial rights of the adverse party and is prejudicial to the presentation of his case.” Micron II, 645 F.3d at 1328 (internal quotation marks omitted) (emphasis added). Micron’s brief does not even mention this controlling standard. Nor does Micron address the District Court’s errors in applying it. As Rambus explained, RambusBr. 39-41, the District Court could not properly find that Rambus’s spoliation “‘materially affect[ed] [Micron’s] substantial rights,’” id., without first determining that the spoliation affected an “underlying, viable clai[m],” Nelson v. Original Smith & Wesson Bus. Entities, 449 F. App’x 581, 584-85 (9th Cir. 2011) (emphasis added). In particular, “sanctions that [a]ffect the outcome of the trial” should not be imposed unless the spoliation likely “affect[ed] the outcome of the trial.” Estate of Spear v. Comm’r, 41 F.3d 103, 115 (3d Cir. 1994). Micron does not explain how the District Court could properly impose terminating sanctions, which effectively grant Micron the relief it would obtain if it prevailed at trial, without first assessing whether the allegedly affected defenses would 13

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even reach trial. Micron notes that “none of the claims or defenses included in Micron’s complaint have been dismissed,” and argues that none of the cases cited by Rambus “requires a district court to consider motions to dismiss as part of a prejudice analysis.” MicronBr. 45-46. These points miss the mark; even an adequately pleaded defense will not necessarily survive to trial. To the extent the court cannot assess the viability of Micron’s defenses on the pleadings alone, that suggests it should have postponed its decision or issued a sanction short of dismissal. Micron also argues that “this Court already rejected Rambus’s argument that Micron has no ‘viable’ defense that could have been prejudiced.” MicronBr. 45. Not so. This Court expressly did not rule on the viability of any of Micron’s defenses, noting the possibility “as Rambus argues, that all the documents destroyed were either redundant or irrelevant to the trial.” Micron II, 645 F.3d at 1328 (emphasis added). Instead, the Court vacated the District Court’s prior decision and remanded to the District Court “to reassess[] on remand its determination of … prejudice.” Id. Similarly, the law of the case doctrine does not bar further litigation on an issue the Court specifically remanded for further consideration. State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1577 (Fed. Cir. 1991) (“The trial court’s subsidiary findings can hardly be the law of the case when the judgment based on those findings was ‘vacated’ and the court was explicitly directed to ‘reconsider’ its decision.”).

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B.

Rambus’s Spoliation Did Not Materially Affect Micron’s Substantial Rights.

Far from supporting the District Court’s prejudice determination, the record refutes the notion that internal Rambus documents could be relevant to, much less dispositive of, Micron’s JEDEC-based or inequitable conduct defenses. JA39(Op.30). 1. Micron Has No Legally Viable JEDEC-Based Defense.

During the remand proceedings, neither Micron nor the District Court disputed that Rambus’s internal documents would have no bearing on whether Rambus breached a duty of disclosure to JEDEC given this Court’s rulings in Infineon and Hynix II. The District Court found prejudice only as to defenses not based on a breach of that duty. JA40(Op.31); JA19904-06; JA19971-73. That is because this Court held as a matter of law that Rambus’s internal documents are irrelevant to both the scope of the disclosure duty and whether Rambus breached that duty. As Infineon held, “JEDEC’s disclosure duty erects an objective standard. It does not depend on a member’s subjective belief that its patents do or do not read on the proposed standard.” Rambus Inc. v. Infineon Techs., AG, 318 F.3d 1081, 1104 (Fed. Cir. 2003). In Hynix II, this Court deemed Infineon’s holding “dispositive in this case.” Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336, 1348 (Fed. Cir. 2011) (“Hynix II”). Although Infineon and Hynix II did not address patent misuse, antitrust, or unfair competition claims, there is no basis to treat those claims differently to the extent they are based on allegations that Rambus breached a disclosure duty. Indeed,

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this Court held that Infineon was binding in Hynix II even though Hynix II involved different claims (equitable estoppel and waiver) from Infineon (fraud). Citing Judge Whyte’s decision on remand in Hynix III, Micron now argues for the first time that Infineon and Hynix II might have been decided differently but for Rambus’s document destruction. MicronBr. 47. That assertion is belied by Hynix II, where this Court, after addressing spoliation, still held that Infineon foreclosed Hynix’s claims based on a breach of the JEDEC disclosure duty. After all, the scope of the disclosure duty was fixed by JEDEC’s own policies, not by the undisclosed internal documents of Rambus, which was just one among many JEDEC members. See Infineon, 318 F.3d at 1102 (“JEDEC could have drafted a patent policy with a broader disclosure duty. ... It could have. It simply did not”). The District Court found prejudice as to Micron’s JEDEC-based defenses to the extent they are based on two other theories not involving a disclosure duty: (1) Rambus’s use of information learned at JEDEC to gain market power, and (2) affirmative misrepresentations Rambus made at JEDEC. Id. As to the first theory, Micron does not dispute that “there is nothing improper, illegal or inequitable in filing a patent application for the purpose of obtaining a right to exclude a known competitor’s product from the market.” Kingsdown Med. Consultants, Ltd. v. Hollister Inc., 863 F.2d 867, 874 (Fed. Cir. 1988). Micron tries to distinguish Kingsdown because it assumes the patentee otherwise followed the law.

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MicronBr. 48 n.11. But this is a distinction without a difference—Micron cannot identify any way in which Rambus’s prosecution efforts failed to comply with the law. Micron’s second theory—that Rambus made affirmative misrepresentations at JEDEC meetings—is foreclosed by the Consolidated Conduct Trial verdict and findings. Micron does not dispute that Judge Whyte expressly found that “Rambus made no affirmative representations that it had no intellectual property pertaining to the work of JEDEC.” Hynix Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 988, 1016 (N.D. Cal. 2009), aff’d 645 F.3d 1336 (Fed. Cir. 2011) (“Conduct Trial Findings”). Micron attempts to avoid this finding by asserting waiver. But Rambus specifically argued below that Micron was not prejudiced “because Micron chose to try that claim in California.” JA26182(Tr.76). Rambus explained that Micron “went to trial on that because they wanted to be part of a consolidated trial,” “[a]nd they went to trial there, and the jury found against them.” Id. “The jury found there was no affirmative misrepresentations” and “no half-truths uttered.” Id. Nor has Rambus misrepresented the jury’s verdict. MicronBr. 49. Rambus’s textual change is fully consistent with Judge Whyte’s understanding of the jury’s findings, as reflected in his findings rejecting Micron’s equitable claims and defenses: Rambus made no affirmative representations that it had no intellectual property pertaining to the work of JEDEC. See Jury’s Special Verdict ¶¶ 12, 19 and 26. Further, Rambus uttered no half-truths …. Id. at ¶ 31. Consistent with the jury’s finding, the court agrees that Rambus made no misrepresentations and uttered no deceptive half-truths to JEDEC and its members. 17

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Conduct Trial Findings, 609 F. Supp. 2d at 1016 (emphasis added). Moreover, Micron’s contention that its “claim required evidence of Rambus’s intent” is wrong. MicronBr. 50. The only intent at issue in this claim was whether Rambus “intend[ed] or reasonably expect[ed] that the representations would be heard by or repeated to others including Micron.” It is nonsensical to suggest that Rambus made an important representation, but did not intend that anyone hear it. While Micron argues that the jury’s verdict was affected by spoliation, MicronBr. 50, Micron cannot explain how the question of whether Rambus made a public representation heard and relied upon by JEDEC members could be prejudiced by the destruction of internal Rambus documents. That Crisp preserved all of his detailed JEDEC trip reports only confirms there was no possible prejudice. Finally, the fact that only Hynix, and not Micron, appealed the jury’s finding in no way renders it less binding on Micron. Hynix challenged that finding and lost. Moreover, the absence of an appeal does not preclude the application of collateral estoppel. Free Speech Coal., Inc. v. Attorney Gen. of U.S., 677 F.3d 519, 541 (3d Cir. 2012). An interlocutory decision can have collateral estoppel effect so long as “litigation of [the] particular issue has reached … a stage that” there is “no really good reason for permitting it to be litigated again.” Id. (internal quotation marks omitted). That is the case here.

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2.

Micron Has No Legally Viable Inequitable Conduct Defense.

Rambus demonstrated that Micron’s inequitable conduct defense is facially defective. RambusBr. 44-47. Contrary to Micron’s assertion, the District Court did not find “this argument barred by Micron II and waived.” MicronBr. 51. Rather, the District Court did “not find it appropriate at this time to determine the sufficiency of Micron’s pleadings.” JA44(Op.35). A finding of prejudice cannot be based on an assertion of inequitable conduct that does not even state a cognizable defense. Unable to defend the sufficiency of its complaint under the heightened pleading standard in Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009), Micron argues that its failure to plead its defense adequately was due to “allegedly missing evidence [that] would have been found in internal Rambus documents.” MicronBr. 52. It is Micron, not Rambus, that “puts the cart before the horse.” Id. The whole purpose of Rule 9(b) is to prevent parties from “using discovery as a fishing expedition” by ensuring that “only viable claims alleging fraud or mistake are allowed to proceed to discovery.” In re BP Lubricants USA, Inc., 637 F.3d 1307, 1310 (Fed. Cir. 2011). And although Micron asserts that it “could amend its pleading” to satisfy Rule 9(b) based on information in its expert reports, MicronBr. 52-53, it must do so before Rambus’s patents are deemed unenforceable. Micron insists that Rambus’s internal documents might have been relevant to the materiality prong of the inequitable conduct defense. MicronBr. 53. But the

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District Court made no such finding, as it refused to address Rambus’s argument that the materiality prong is objective and cannot be affected by internal Rambus documents. JA46(Op.37). Instead, the District Court’s decision was based exclusively on its speculation that “Rambus’s spoliation precluded Micron from possibly obtaining evidence of affirmative acts of egregious misconduct.” JA46(Op.37).4 The District Court cited no evidence suggesting that Rambus may have engaged in affirmative acts of egregious misconduct. Micron’s complaint contains no such allegation, RambusBr. 46, and Micron never argued it below. On appeal, Micron now claims that Farmwald may have done so by “submit[ing] a false oath claiming he was the original and true inventor” after he supposedly derived the inventions from MIPS. But the email stating that Farmwald had the idea for Rambus at a time when he was at MIPS in no way suggests “that Farmwald derived the idea for the original application from others at MIPS.” MicronBr. 54 (emphasis added).5 Micron’s newfound theory is nothing more than rank speculation that cannot sustain a finding of prejudice. Schmid v. Milwaukee Elec. Tool Co., 13 F.3d 76, 80 (3d Cir. 1994); Hechinger

This is not, as Micron suggests, an “alternative finding.” MicronBr. 54. It is the only finding the District Court made regarding prejudice to the materiality prong of Micron’s inequitable conduct defense. JA46(Op.37). Farmwald’s employment agreement with MIPS provided that any inventions—such as the Rambus inventions—developed on his own time and not at MIPS’s facilities were his property. JA24005-07(RAMTX138); JA18630(Tr.1195-97). 20
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Inv. Co. of Del. v. Universal Forest Prods. (In re Hechinger), 489 F.3d 568, 579 (3d Cir. 2007). 3. Micron’s Other Defenses Were Not Prejudiced.

This Court can easily dispose of Micron’s conclusory assertion that Rambus’s spoliation may have prejudiced certain of Micron’s other defenses. MicronBr. 54. Rambus’s document destruction could not have prejudiced Micron’s anticipation and obviousness defenses because, as the District Court found, both are based on an objective test; the subjective intent of the patentee is not pertinent. JA39(Op.30); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419-20 (2007). Micron’s standing, license, and derivation defenses, which are based on allegations regarding Farmwald’s prior employment at MIPS, are completely speculative as stated above, and in any event MIPS disclaimed ownership of Rambus’s inventions. JA23999-24004(RAMTX135). And Micron’s prosecution laches defense is so weak that Micron and the other manufacturers abandoned it in the Consolidated Conduct Trial. Conduct Trial Findings, 609 F. Supp. 2d at 1025. C. Micron Failed To Provide Plausible, Concrete Suggestions Of Documents Destroyed After The Preservation Duty Arose.

The District Court erroneously required Rambus to prove there was no conceivable “non-public” document that could ever be relevant to any of Micron’s claims or defenses. RambusBr. 39. This improperly absolved Micron of its burden to come forward with “plausible, concrete suggestions” of spoliated documents. Id. 21

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Micron contends it met this burden by speculating that, because certain documents were produced, other similar documents might have existed and were destroyed during the 1999 shred day. MicronBr. 43-44. But there is nothing in the documents cited by Micron that suggests any additional documents ever existed, much less that such documents were destroyed in 1999. If preserved evidence were sufficient to establish prejudicial spoliation, it would eviscerate the “plausible, concrete suggestions” standard. It is therefore unsurprising that Micron cites no case holding that a party can satisfy its burden by pointing to the retention and production of similar documents. Centimark Corp. v. Pegnato & Pegnato Roof Management, No. 05-708, 2008 WL 1995305 (W.D. Pa. May 6, 2008), upon which Micron relies, MicronBr. 43, says nothing of the sort. In Centimark, unlike here, there was no dispute that particular documents once existed—the defendants produced no internal correspondence, memoranda, or board meeting minutes. 2008 WL 1995305 at *4-5. Thus, the only question was whether those missing documents would have contained relevant content, a question the court answered based on inferences from two documents produced by plaintiffs (an email between the parties and their signed agreement). Id. at *7 (finding plausible that the missing documents “would speak to the issue as well”). Micron does not dispute that Rambus retained and produced hundreds of thousands of documents relevant to every issue in this case, including the three categories identified by the District Court, RambusBr. 48-49, and the nine specific 22

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documents and twelve broad categories of documents Micron identified in discovery, RambusBr. 15. Instead, after years of discovery and a five-day trial, Micron’s only response to the overwhelming evidence of Rambus’s preservation of documents is that hundreds of thousands of documents “serendipitously escaped,” were retained “by happenstance,” or were a “fortuitous discovery.” MicronBr. 36 n.6, 43-44. But there is nothing accidental about the existence of these documents—Rambus’s document-retention policy instructed employees to “look for things to keep” and they did. Crisp testified that “as part of our document retention program, I was asked to look for things to keep. And so part of what I did was went through my email files and sought out and kept things that related to JEDEC.” JA18543(Tr.825-26). Crisp retained all of his internal emails pertaining to JEDEC and produced two sets of those emails, each comprising 200 pages, only one of which was from a personal computer in his attic. JA23259-374(RAMTX69); JA23713-911(RAMTX85); JA1854243(Tr.820-26); JA18571(Tr.1010-11).6 Care was also taken when Horowitz’s office was cleaned during the first shred day, before the preservation duty arose. JA1863536(Tr.1233-34). The only internal documents destroyed from his office were clearacetate sheets, paper copies of which were preserved. JA18636(Tr.1236-38). And, The District Court did not “reject[] Rambus’s assertion that it preserved all of Crisp’s ‘internal emails pertaining to JEDEC.’” MicronBr. 43. Instead, the court accepted Micron’s speculative “assertion” that “other individuals may have generated documents related to Rambus’ JEDEC participation.” JA42(Op.33 n.21). 23
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despite Micron’s speculation, MicronBr. 44, nothing in Farmwald’s email suggests that documents regarding prior art or knowledge thereof were destroyed. JA20268-69. To the contrary, the uncontroverted testimony establishes that all prior art was retained. JA18689(Tr.1396-97). III. The District Court Abused Its Discretion By Imposing Terminating Sanctions. For the foregoing reasons, the District Court’s judgment should be reversed. At a minimum, however, the judgment should be vacated because the District Court did not meet the exceptionally high standard necessary to impose the “particularly severe sanction” of declaring the patents-in-suit unenforceable against Micron. Chambers v. NASCO, 501 U.S. 32, 45 (1991); Micron II, 645 F.3d at 1328-29. Contrary to Micron’s suggestion, a court abuses its discretion not only when “‘it is clear that no reasonable person would agree [with] the trial court’s assessment,’” MicronBr. 56 (emphasis and alteration in original), but also when it fails to select “the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.” Micron II, 645 F.3d 1328-29 (internal quotation marks omitted) (emphasis added). The District Court failed to do that here. A. The Degree Of Fault Does Not Justify Terminating Sanctions.

Micron ignores Supreme Court and Third Circuit precedent requiring the violation of a clear and known duty before terminating sanctions can be imposed. RambusBr. 50-51. Instead, Micron maintains that “a ‘known and clear’ duty to 24

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preserve” is not required, erroneously asserting that the Eighth Circuit in Stevenson v. Union Pacific Railroad, 354 F.3d 739 (8th Cir. 2004), approved a “terminating sanction for prelitigation destruction of evidence.” MicronBr. 58. Stevenson did not approve a “terminating sanction.” It affirmed the “district court’s decision to sanction the Railroad through an adverse inference instruction for its prelitigation destruction of [evidence].” 354 F.3d at 748 (emphasis added). Micron’s assertion that the preservation duty is clearer for parties planning to sue, MicronBr. 59 n.14, is belied by the fact that multiple judges have evaluated the issue and none of them agrees on when Rambus’s duty arose. Indeed, Judge Whyte originally held that Rambus correctly determined that the preservation duty did not arise until late 1999, and two judges of this Court would have affirmed that conclusion. Hynix II, 645 F.3d at 1355-57 (Gajarsa, J., dissenting-in-part). Such a close call cannot support terminating sanctions. Micron’s contentions that Rambus’s destruction was “thorough” and resulted in the loss of an “incalculable number” of documents, MicronBr. 57, are “dramatically overblown,” Bull v. United Parcel Serv., 665 F.3d 68, 76 (3d Cir. 2012). The only document destruction at issue is the second shred day, during which Rambus destroyed 300 boxes of documents. Uncontradicted testimony from SureShred, which shredded documents throughout Silicon Valley during this period, was that many customers’ “shredding volume exceeds a hundred boxes a week.” JA18699(Tr.1461-62) (emphasis added). 25

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B.

The Prejudice, If Any, Does Not Justify Terminating Sanctions.

The District Court based its finding of prejudice on its conclusion that three categories of internal Rambus documents would be relevant to two of Micron’s defenses. JA41(Op.32). Micron does not dispute that Rambus preserved and produced documents falling within each of these categories. RambusBr. 48-49. Nor does Micron identify a single document or category of documents that it cannot locate. Instead, Micron’s claimed prejudice is based only on the possibility that additional documents similar to those Rambus preserved may have been destroyed. Thus, Micron argues that the production of a 1994 email from Tate to Crisp “relating to Rambus’s attempts to draft patent claims to read on JEDEC standards” leads to an inference that other emails regarding that same topic might have been destroyed. MicronBr. 43. Even if this speculation could support a finding of prejudice (and it cannot) it certainly cannot support terminating sanctions. Micron II, 645 F.3d at 1328 (no prejudice from destruction of “redundant” documents). Micron does not cite a single case in which terminating sanctions were issued based on the possible loss of documents similar to documents that were preserved. Rather, in each of the cases Micron cites, unique, identifiable documents were destroyed. In Leon v. IDX Systems Corp., the plaintiff in an employment dispute deleted all “personal” files from his laptop including his “correspondence with realtors and financial institutions (relevant to the timing of his decision to resign from 26

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IDX); communications with health care providers regarding work-related illness (relevant to his ADA claim); and the timing of and efforts to find other employment.” 464 F.3d 951, 960 (9th Cir. 2006). These documents “would ‘likely be at the heart of IDX’s defense,’” and, unlike here, there was no evidence that the plaintiff otherwise preserved these types of documents. Similarly, in Telectron, Inc. v. Overhead Door Corp., the defendant destroyed “all sales correspondence, over two years old, generated by OHD’s Advance radio control division” after receiving plaintiff’s discovery requests. 116 F.R.D. 107, 110 (S.D. Fla. 1987). And in Gutman v. Klein, the defendant deleted files on his laptop, including documents from a folder named “Gutman Litigation” and documents related specifically to entries listed on his privilege log. No. 03-1570, 2008 WL 4682208 at *8 (E.D.N.Y. Oct. 15, 2008). Unable to identify a single document or category of documents that may have been destroyed, Micron claims that the volume of material discarded makes it “impossible” for Micron to meet its burden. MicronBr. 59. But Micron’s failure has nothing to do with the volume of material destroyed. Micron cannot identify any such documents because there are none. As the trial counsel acting on Micron’s behalf at the Consolidated Conduct Trial conceded, “[i]n this case, there’s a good written record of what was going on really in the 90s.” JA19422(Tr.5912);

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JA19421(Tr.5888).7 The degree of prejudice, if any, does not justify terminating sanctions. C. The District Court Failed To Select The Least Onerous Sanction.

Judge Whyte’s decision in Hynix III conclusively establishes that the District Court failed to “‘select the least onerous sanction.’” Micron II, 645 F.3d at 1329. Judge Whyte concluded that Rambus’s conduct did not warrant dismissal, and he crafted a targeted remedy limiting Rambus to a RAND royalty. RambusBr. 55-56. Micron’s assertion that the fact that “Judge Whyte—in his broad discretion to fashion a remedy—differed does not render the district court’s choice of sanction unreasonable,” MicronBr. 56, misunderstands the standard of review. To determine whether the District Court abused its discretion, this Court looks not at whether the court’s choice of sanction is “unreasonable” but whether terminating sanctions are the “‘least onerous sanction.’” Micron II, 645 F.3d at 1329. Judge Whyte’s decision proves that they are not. And this is especially so because, unlike Judge Whyte (who had already completed all trials in the Hynix litigation), the District Court here had the full universe of lesser, trial-related sanctions available. RambusBr. 56. It failed to adequately consider any of them.

Micron cannot distance itself from this statement. Counsel stated: “I have the honor now to speak to you on behalf of Hynix.… And also to speak to you on behalf of Micron ….” JA19421(Tr.5888). 28

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Adverse-inference instruction. Micron presses the District Court’s erroneous assumption that an adverse-inference instruction would be ineffective because Micron would be “unable to rebut testimony that Rambus might use to try to overcome the presumption.” MicronBr. 61. But that can be said in any spoliation case. Yet, this sanction is often viewed as “among the most severe sanctions a court can administer.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 619 (S.D. Tex. 2010). Under Micron’s view, an adverse-inference instruction would never be suitable for spoliation. Evidentiary sanctions. Micron also has no explanation for the District Court’s failure to consider the adequacy of evidentiary sanctions. RambusBr. 57. Micron asserts that an evidentiary sanction on a non-dispositive issue would “not remedy the missing evidence that Micron would have introduced but for the spoliation.” MicronBr. 62. But Micron cannot identify any unique missing documents, and there is no reason to think that the lack of documents similar to those preserved would be so prejudicial as to warrant a dispositive sanction. RambusBr. 41-47. Monetary sanctions. Micron claims that a monetary sanction would not adequately remedy its harm or sufficiently deter future spoliation. MicronBr. 63. Again, Micron’s reasoning would lead to the absurd conclusion that a monetary sanction is never appropriate in a spoliation case. RambusBr. 58. Issue sanctions. To justify the District Court’s failure to consider an issue sanction, Micron improperly purports to shift the burden to Rambus, arguing that 29

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Rambus “never raised the prospect of an issue sanction below.” MicronBr. 63. The District Court—not Rambus—has the burden to consider and “establish on the record why lesser sanctions will not adequately deter and punish the misconduct.” Shepherd v. ABC, 62 F.3d 1469, 1479 (D.C. Cir. 1995). Micron’s claim that the only adequate sanction is dismissal ignores that Rambus’s internal documents do not bear on many elements of its supposedly affected defenses. RambusBr. 41-47. Combined sanctions. Micron cannot defend the District Court’s illogical view that combined sanctions would be inadequate because the sanctions individually are inadequate. Instead, Micron asserts that Rambus failed to provide a reason why the District Court should consider combined sanctions. MicronBr. 63. As explained, it was the District Court’s obligation to do so.

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CONCLUSION The Court should reverse, or, at a minimum, vacate the terminating sanctions and remand for the District Court to determine a properly tailored sanction.

Respectfully submitted, Dated: November 22, 2013 GREGORY P. STONE FRED A. ROWLEY, JR. JEFFREY Y. WU MUNGER, TOLLES & OLSON LLP 355 South Grand Ave., 35th Floor Los Angeles, C.A. 90071 (213) 683-9255 MICHAEL J. SCHAENGOLD PATTON BOGGS LLP 2550 M Street, N.W. Washington, D.C. 20037 (202) 457-6523 /s/ Carter G. Phillips CARTER G. PHILLIPS ROLLIN A. RANSOM MICHELLE B. GOODMAN RYAN C. MORRIS JENNIFER J. CLARK SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, D.C. 20005 Telephone: (202) 736-8000 Facsimile: (202) 736-8711 cphillips@sidley.com

Counsel for Rambus Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of November, 2013, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Federal Circuit through the Court’s CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system, including Jared Bobrow Weil, Gotshal & Manges LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 (650) 802-3000 Jared.Bobrow@Weil.com /s/ Carter G. Phillips CARTER G. PHILLIPS

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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 32(a)(7)(B) and the Rules of this Court, because it contains 6998 words (as determined by the Microsoft 2007 word-processing system used to prepare the brief), excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced typeface using the Microsoft Word 2007 word-processing system in 14-point Garamond font. /s/ Carter G. Phillips CARTER G. PHILLIPS

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