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KENNETH L. NISSLY (SBN 77589) knissly@omm.com SUSAN van KEULEN (SBN 136060) svankeulen@omm.com OMELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 KENNETH R. OROURKE (SBN 120144) korourke@omm.com OMELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 [Additional counsel listed on signature page.]

9 10 11 12 13 14 15 16 17 18 19 Plaintiff, 20 v. 21 RAMBUS INC., 22 Defendant. 23 24 25 26 27 28

HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

Attorneys for Plaintiff HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and DEUTSCHLAND GmbH,

Case No. C-00-20905 RMW HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION Date: Time: Ctrm: Judge: December 16, 2011 9:00 a.m. 6, 4th Floor Hon. Ronald M. Whyte

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TABLE OF CONTENTS Page 1 2 3 4 III. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iHYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

I. II.

INTRODUCTION ............................................................................................................. 1 ADDITIONAL PROPOSED FINDINGS OF FACT ........................................................ 1 A. Additional Proposed Findings of Fact Regarding Rambuss Bad Faith ................ 1 B. Additional Proposed Findings of Fact Regarding Destruction of Documents from Patent Prosecution Files ............................................................. 6 ADDITIONAL PROPOSED CONCLUSIONS OF LAW ................................................ 7 A. Additional Proposed Conclusions of Law Regarding Spoliation .......................... 7 B. Additional Proposed Conclusions of Law Regarding Rambuss Advice of Counsel Argument ................................................................................................. 7 C. Additional Proposed Conclusions of Law Regarding Availability of Sanctions Other than Dismissal ............................................................................. 8

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TABLE OF AUTHORITIES Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASES Art Metal Works v. Abraham & Straus, 70 F.2d 641 (2d Cir. 1934) ...................................................................................................... 9 Bihun v. AT&T Info. Sys., Inc., 13 Cal. App. 4th 976 (1993).................................................................................................... 8 Datascope Corp. v. SMEC, Inc., 879 F.2d 820 (Fed. Cir. 1989) ................................................................................................. 7 Gaudiosi v. Mellon, 269 F.2d 873 (3d Cir. 1959) .................................................................................................... 8 Harris v. City of Phila., 47 F.3d 1333 (3d Cir. 1995) .................................................................................................... 8 Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160 (3d Cir. 2001) .................................................................................................... 9 In re Itel Sec. Litig., 791 F.2d 672 (9th Cir. 1986)................................................................................................... 9 Johns Hopkins Univ. v. Cellpro, 978 F. Supp. 184 (D. Del. 1997) ......................................................................................... 7, 8 Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998)................................................................................................... 7 Lakin v. Watkins Associated Indus., 6 Cal. App. 4th 664 (1993)...................................................................................................... 8 Link v. Wabash R. Co., 370 U.S. 626 (1962) ................................................................................................................ 9 Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592 (3d Cir. 1972) .................................................................................................... 8 Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992) ................................................................................................. 7 Silvestri v. General Motors Corp., 271 F.3d 583 (4th Cir. 2001)................................................................................................... 9 Stevens v. F/V Bonnie Doon, 731 F.2d 1433 (9th Cir. 1984)................................................................................................. 8 United States v. Ibarra-Alcarez, 830 F.2d 968 (9th Cir. 1987)............................................................................................... 7, 8 United States v. Polland, 56 F.3d 776 (7th Cir. 1995)..................................................................................................... 8 West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999) .................................................................................................... 9 West v. Goodyear Tire & Rubber Co., No. 92 Civ. 0938(RO), 1998 WL 60942 (S.D.N.Y. Feb. 13, 1998) ....................................... 9 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ............................................................................................ 7 - ii HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

I. INTRODUCTION This document supplements Hynixs Proposed Findings of Fact and Conclusions of Law on Spoliation (D.E. 4082) filed on November 14, 2011 (Hynix Proposed Findings). As with the Hynix Proposed Findings, the Additional Proposed Findings set forth below that are based on evidence from other proceedings are identified in italics. II. ADDITIONAL PROPOSED FINDINGS OF FACT Additional Proposed Findings of Fact Regarding Rambuss Bad Faith F494. As set forth in Hynix Proposed Finding F332, Rambus expressly waived any reliance on an advice of counsel defense. See, e.g., Trial Tr. 1801:25 (Rambus Closing Argument). F495. To the extent that Rambus is now arguing that evidence of its lawyers advice is offered not to prove an advice of counsel defense, but to show that it acted in good faith, the Court rejects that argument. All the advice of counsel defense does, where it is proved, is to negate a finding of bad faith. Rambus thus seeks the benefit of the advice of counsel defense but without establishing its essential elements. F496. Separate and apart from the fact that Rambus has waived any advice of counsel argument, Rambus has not, and cannot, demonstrate that it relied on the advice of, or acted at the behest of, counsel. F497. Rambus does not point to any particular advice it was given by its attorneys, but apparently is arguing that Dan Johnson (a) advised Rambus to implement a document retention policy and (b) did not tell Rambus that it should suspend operation of that policy because Rambus anticipated litigation. F498. Johnsons suggestion that Rambus adopt a document retention policy was generic advice he offered to all start-up companies. Trial Tr. 1678:1-1679:9 (Johnson). F499. Similarly, when Johnsons partner, Diane Savage, provided Karp with a generic template for a document retention policy, she told Karp that it was for information purposes only and would need to be customized. Although Savage instructed Karp to contact David Lisi with litigation-oriented issues, Karp never did so. He simply condensed and -1HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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paraphrased the generic template Savage had provided and proposed the result as Rambuss document retention policy. See Hynixs Proposed Findings F132 to F138. F500. Johnson did not regard his participation in the July 22, 1998 presentation of Rambuss document retention policy to Rambus employees as a legal opinion that Rambus was free to dispose of evidence relevant to the potential patent claims he had discussed with Rambus. Hynix Tr. 1724:20-1726:2 (Johnson). F501. Moreover, Johnson expressly told Rambus that, if Rambus was anticipating filing a lawsuit, it could not commence a document retention policy. Hynix Tr. 1721:2-1722:6 (Johnson); see also 1/31/05 Crime Fraud Order at 6:15-18 (Rambus had been cautioned that if it were anticipating filing a lawsuit, it should not implement a document retention policy ). F502. As the overwhelming evidence showed, Rambus anticipated litigation by July 1998 when it implemented its document retention policy. See Hynix Proposed Findings F229 to F248 and F264 to F287. Accordingly, Rambus did not follow the specific course of conduct recommended by Johnson. Instead, Rambus defied Johnsons advice by implementing a document retention policy when it anticipat[ed] filing a lawsuit. F503. Johnson did not advise Rambus that Rambus was not, in fact, anticipating litigation, nor did he advise Rambus that it could destroy documents that were potentially relevant to the litigation for which Rambus was preparing. Trial Tr. 1696:22-1699:10, 1723:24 1726:2 (Johnson). F504. If Johnson had advised Rambus that Rambus was not anticipating litigation as of July 1998 or that Rambus could destroy documents that were potentially relevant to the litigation that was contemplated (and the record is clear that he gave no such advice), that advice would have been patently unreasonable based on the facts proved at trial, and Rambus would not have been entitled to rely upon it. F505. Following his participation in the July 1998 presentation regarding Rambuss document retention policy, Johnson asked Rambus if it wanted the Fenwick firm to assist Rambus with its document retention policy, but Rambus declined to employ Johnson or his -2HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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firm for this purpose. Given that refusal, Johnson believed that he had no duty to advise Rambus concerning whether or not it had to cease destroying documents pursuant to its document retention policy. Trial Tr. 1722:121723:19 (Johnson). F506. Johnson understood that from and after July 22, 1998, Steinberg was the lawyer advising Rambus on its patent litigation and licensing strategy. Trial Tr. 1720:51720:18 (Johnson). F507. Even if the Court were to assume (contrary to the record) that Johnson advised Rambus with respect to its duty to retain documents or that Rambus followed Johnsons advice precisely, the advice of counsel defense would not negate Rambuss bad faith because, as discussed in the following findings, the evidence demonstrates that Rambus failed to make full disclosure to Johnson of all material facts. F508. Rambus withheld from Johnson that Rambus intended to implement the document retention policy in a way that was not content neutral. For example, before Rambuss wholesale destruction of more than 1200 backup tapes in July 1998, Karp went to the backup tapes to locate a document to evidence the conception date of a Rambus invention for which Rambus was seeking patent protection. Rambus thus had the ability to use the backup tapes to locate evidence helpful to its patent claims while depriving its future litigation adversaries the opportunity to use those tapes to marshal evidence helpful to their defenses against Rambuss patent infringement claims. See Hynix Proposed Finding F181. F509. Johnson reviewed the document retention policy and related slides that Karp prepared and participated in presenting the Rambus document retention policy to Rambus employees in July 1998. One element of Karps slides that Johnson disagreed with was the statement to Look for things to keep. Johnson advised against that statement out of concern it would lead to retention of document that were not needed. Trial Tr. 1700:8-1701:4 (Johnson); HTX 112; Micron Tr. 1539:8-1540:16 (attached as Ex. B to the Declaration of Susan Roeder filed together with these Additional Proposed Findings [Roeder Decl.]). Johnson did not participate in Karps discussions with Rambus personnel about how to implement the document retention policy, however. See Trial Tr. 1722:12-17 (Johnson); Micron Tr. 1590:5-14 (Ex. B to -3HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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Roeder Decl.). Johnson therefore did not know that Karp used the phrase Look for things to keep along with other verbal instructions to Rambus employees to assure that the document retention policy, as implemented, was not content neutral. F510. Specifically, Rambus engineer Craig Hampel was told that under the document retention policy he was not to keep things you dont need, except for proof of invention. Thats probably the one exception. Moreover, Hampel was told to destroy certain documents harmful to Rambuss patent claims: he was told not to keep documents that questioned the patentability of Rambus inventions. Micron Tr. 1300:12-21; 1302:7-20 (emphasis added) (Ex. B to Roeder Decl.); see also Hynix Proposed Findings F155, F156, F302. F511. These are not the only material facts that Rambus failed to disclose to Johnson. For example, in the June 1999 timeframe, Rambuss internal IP goals included objectives to prepare for litigation and to commence litigation against a DRAM manufacturer by the end of the year. Micron Tr. 1583:19-1584:3 (Ex. B to Roeder Decl.). Johnson did not know that fact and, when confronted with that fact at the Micron trial, stated that he did not believe it. Id. F512. Based on the evidence presented, the Court finds that Rambus withheld key information about its litigation intentions from its counsel. Rambus did not in good faith seek counsels advice about adopting and implementing a document retention program; to the contrary, Rambus seized on generic advice from its counsel regarding document retention programs as cover for its own decision to destroy discoverable documents, and rejected its counsels suggestions and offers to advise it as to its document retention program. Rambus has not demonstrated that it relied in good faith on any specific course of conduct recommended by its attorney. F513. Rambus also withheld information from Johnson that would have assisted him in determining the likelihood of litigation and the scope of issues that might arise in litigation. For example, Rambus did not ask Johnson to review its patents and did not inform Johnson about any JEDEC issues or about the possibility of litigation between Rambus and Intel. See Hynix Proposed Findings F158 to F162. -4HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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F514. The Court finds that Rambuss efforts to conceal its destruction of documents is further evidence that Rambus acted in bad faith, rather than in good faith reliance on the advice of counsel. F515. Steinberg testified falsely in his Rule 30(b)(6) deposition that the 1998 shred party was a one-time event and that there had been no later shred days. Steinberg gave this testimony even though he (a) had been employed by Rambus since April 1999, (b) had moved to Rambuss California office in May or June 1999, and (c) he and Karp led Rambuss IP department whose mid-1999 goals included organizing a 1999 shred day. Rambus Proposed Finding No. 122; HTX 139; HTX 140; Hynix Tr. 163:9-14; 315:17-317:25; Micron Tr. 1572:51573:5 (Ex. B to Roeder Decl.). Steinberg thus had to know that there had been a shred day at Rambus in 1999 yet he denied it as Rambuss designated corporate representative. See Steinberg January 16, 2001 Deposition at 48:18-50:16; 52:14-15; 95:4-10; Steinberg August 1, 2001 Deposition at 9:6-20; 10:15-25; 11:9-18 and Depo. Ex. 1214; 12:10-13; 28:13-29:13; 64:3-10 and Depo. Ex. 1215; 83:20-85:14; 86:10-87:6; Steinberg April 21, 2004 Deposition at 84:5-90:24 and Depo. Ex. 4135; 93:4-17; 103:10-23 and Depo. Ex. 4139; 111:5-14; Steinberg July 17, 2006 Deposition at 582:9-584:7 (the Steinberg deposition excerpts and exhibits are attached as Exs. C, D, and E to Roeder Decl.); see also Hynix Proposed Finding F326. F516. Thereafter, Rambus tendered Robert Kramer as a Rule 30(b)(6) witness on Rambuss document retention and destruction even though Kramer was not with the company when the document retention policy was adopted in 1998 nor was he with the company for the 1998, 1999 and 2000 shred days. Although Kramer spoke with a number of Rambus employees who were involved in and present at all three shred days, none told him about the shred days in 1999 or 2000. As a result, Kramer testified as Rambuss 30(b)(6) witness that the 1998 shred day was a one-time only event and did not reveal that that event was repeated in 1999 and 2000. In fact, Kramer only learned of those shred days by reading a brief submitted by Infineon after the privilege piercing order. Kramer December 20, 2002 Deposition at 4:23-5:2; 9:18-10:8; 14:2415:4; 20:25-21:16 and Depo. Ex. 1031; 341:12-342:25 and Depo. Ex. 1045; 345:18-347:1; Kramer Infineon Trial at 386:14-388:2; 389:11-14; 400:11-401:13; 402:2-403:14; 404:17-406:17; -5HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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416:17-417:5; 432:21-434:10; 435:1-10 (the Kramer deposition excerpts and exhibits are attached as Exs. F and G to Roeder Decl. and the excerpt of his Infineon trial testimony is attached as Ex. H to Roeder Decl.); see also Hynix Proposed Finding F327. F517. Rambuss efforts to hide its spoliation through false testimony show its consciousness of guilt and that it did not act in good faith reliance on the advice of counsel. Rather, Rambus acted in bad faith. B. Additional Proposed Findings of Fact Regarding Destruction of Documents from Patent Prosecution Files F518. At Karps direction, Rambuss outside patent prosecution counsel, Lester Vincent, destroyed materials from the files relating to the prosecution of Rambuss patents. See Hynix Proposed Findings F191 to F203. F519. Karps direction to Vincent to purge BSTZs files regarding the prosecution files relating to Rambuss patents came in around April 1999, which was between the first and second shred days. Trial Tr. 806:5-18 (Vincent); HTX 324; HTX 325. Vincents purging of the files continued beyond the second shred day, until at least June 2000. HTX 327. F520. On June 23, 2000, long after Rambuss preservation duty arose, Vincent (still acting at Rambuss direction) purged documents from files related to the patents in suit. Vincents file numbers for three of the patents in suit were as follows: Patent No. 5,915,105 was Vincent File No. P001C5; Patent No. 5,954,804 was Vincent File No. P0101DCD; and Patent No. 6,101,152 was Vincent File No. P043D2C2C1. HTX 005A. Vincents log shows he purged documents from these prosecution files on June 23, 2000. HTX 327 at pp. 1, 2, and 4. Vincent also purged documents from the files relating to other Farmwald-Horowitz patents on this and other occasions. Compare HTX 005A with HTX 327. Rambus has not shown that no relevant documents were destroyed by Vincent in his cleansing of the files. F521. Although Rambus claims that Vincents firm, BSTZ, had a policy and practice of conforming patent prosecution files for issued patents (Rambus Brief 8:22-24), the evidence is undisputed that regardless of BSTZs policies and practices, there were documents in

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the Rambus patent prosecution files at the time of Karps instruction to Vincent that were subsequently discarded at Karps direction. HTX 324; HTX 325; HTX 327. F522. Numerous material documents and potentially discoverable documents from Vincents patent prosecution files were most likely destroyed and never produced in this litigation. While Vincent kept track of the files that were cleaned, there is no record of the documents he destroyed in the course of implement[ing] [Rambuss] document retention policy. See HTX 137; HTX 164. III. ADDITIONAL PROPOSED CONCLUSIONS OF LAW A. Additional Proposed Conclusions of Law Regarding Spoliation C153. Once litigation becomes reasonably foreseeable, a party has an obligation to suspend its routine document retention/destruction policy and put in place a litigation hold. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). B. Additional Proposed Conclusions of Law Regarding Rambuss Advice of Counsel Argument C154. Advice of counsel is not a separate and distinct defense; it is a circumstance indicating good faith, which the trier of fact may consider on the issue of fraudulent intent. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987). C155. To negate a showing of bad faith based on advice of counsel, the proponent of that defense must show that there was full disclosure to his attorney of all material facts, and that he relied in good faith on the specific course of conduct recommended by the attorney. United States v. Ibarra-Alcarez, 830 F.2d at 973. C156. One factor to consider in determining whether a party reasonably relied on the advice of its counsel is whether counsels opinion contains sufficient internal indicia of credibility, such as whether the opinion contains merely conclusory statements without discussion of facts or obviously presents only a preliminary, superficial, or off-thecuff analysis. Read Corp. v. Portec, Inc., 970 F.2d 816, 829 (Fed. Cir. 1992); Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 828 (Fed. Cir. 1989); Johnson v. Jones, 149 F.3d 494, 504 (6th Cir. 1998); Johns Hopkins Univ. v. Cellpro, 978 F. Supp. 184, 192 (D. Del. 1997). -7HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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C157. In determining whether a party reasonably relied on the advice of counsel, the Court must consider whether the party in fact relied on or acted in accordance with counsel's opinion. United States v. Ibarra-Alcarez, 830 F.2d at 973; Johns Hopkins Univ . v. Cellpro, 978 F. Supp. at 194. C158. A partys efforts to cover up or conceal its suppression of evidence supports an inference that the party has a consciousness of guilt. Bihun v. AT&T Info. Sys., Inc., 13 Cal. App. 4th 976, 992-995 (1993), disapproved on other grounds in Lakin v. Watkins Associated Indus., 6 Cal. App. 4th 664 (1993). C. Additional Proposed Conclusions of Law Regarding Availability of Sanctions Other than Dismissal C159. The mandate rule requires a lower court to adhere to the commands of a higher court on remand. United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995). C160. The appellate courts mandate is controlling as to all matters within its compass, but leaves to the district court any issue not expressly or impliedly disposed of on appeal. Stevens v. F/V Bonnie Doon, 731 F.2d 1433, 1435 (9th Cir. 1984). C161. Both the unclean hands doctrine and the inherent power doctrine are designed to ensure that the federal courts protect the integrity of the judicial process, and thus impose an affirmative duty upon federal courts to police discovery abuses. See, e.g., Harris v. City of Phila., 47 F.3d 1333, 1342 (3d Cir. 1995) (unclean hands doctrine is designed to ensure[] that courts protect their own integrity.) (citation and internal quotation marks omitted); Monsanto Co. v. Rohm & Haas Co., 456 F.2d 592, 598 (3d Cir. 1972) (courts must apply unclean hands doctrine to avoid becoming the abettor of iniquity, and where a suit in equity concerns the public interest as well as the private interests of the litigants this doctrine assumes even wider and more significant proportions [because] if an equity court properly uses the maxim to withhold its assistance in such a case it not only prevents a wrongdoer from enjoying the fruits of his transgression but averts an injury to the public); Gaudiosi v. Mellon, 269 F.2d 873, 882 (3d Cir. 1959) (unclean hands doctrine is confessedly derived from the unwillingness of a court, originally and still nominally one of conscience, to give its peculiar relief to a suitor who in the -8HYNIXS ADDITIONAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON SPOLIATION CASE NO. C-00-20905 RMW

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very controversy has so conducted himself as to shock the moral sensibilities of the judge. It has nothing to do with the rights or liabilities of the parties; indeed the defendant who invokes it need not be damaged, and the court may even raise it sua sponte. (quoting Art Metal Works v. Abraham & Straus, 70 F.2d 641, 646 (2d Cir. 1934) (J. Learned Hand, dissenting))); Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (upholding dismissal based on spoliation: The policy underlying this inherent power of the courts is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.) C162. Accordingly, both the unclean hands doctrine and the inherent power doctrine can properly be invoked by courts even if they are never raised by litigants. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 630 (1962) (The authority . . . to dismiss sua sponte for lack of prosecution has generally been considered an inherent power, governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs.); In re Itel Sec. Litig., 791 F.2d 672, 675 (9th Cir. 1986) (Sanctions may also be awarded sua sponte under the courts inherent power.); Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 174 (3d Cir. 2001) (courts may apply unclean hands doctrine sua sponte). C163. Once spoliation is established, courts have broad discretion to fashion appropriate sanctions, and are not limited to specific sanctions requested by litigants. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999); West v. Goodyear Tire & Rubber Co., No. 92 Civ. 0938(RO), 1998 WL 60942, at *1 (S.D.N.Y. Feb. 13, 1998).

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Dated: December 5, 2011

By:

/s/ Kenneth L. Nissly

KENNETH L. NISSLY KENNETH R. OROURKE SUSAN van KEULEN SUSAN ROEDER OMELVENY & MYERS LLP THEODORE G. BROWN III KILPATRICK TOWNSEND & STOCKTON LLP Attorneys for Plaintiff HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR U.K. LTD., and HYNIX SEMICONDUCTOR DEUTSCHLAND GmbH

OMM_US:70134669.1

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