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Case3:10-cv-05437-RS Document46
Filed07/28/11 Page1 of 31
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(All parties and counsel listed on Signature Page)
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION RAMBUS INC., Plaintiff, v. BROADCOM CORP., Defendant. Date: Time: Judge: August 4, 2011 10:00 a.m. Hon. Richard Seeborg Courtroom 3, 17th Floor Case No. 3:10-cv-05437 RS JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
RAMBUS INC., Plaintiff, v. LSI CORPORATION, Defendant. RAMBUS INC.,
Case No. 3:10-cv-05446 RS
22 Plaintiff, 23 v. 24 MEDIATEK INC., 25 Defendant. 26 27 28

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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 Rambus also filed the related action Rambus Inc. v. Freescale Semiconductor, Inc., Case No. 3:10-cv-05445 RS, which subsequently was dismissed pursuant to settlement on June 7, 2011. -1JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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RAMBUS INC., Plaintiff, v. STMICROELECTRONICS N.V.; STMICROELECTRONICS INC., Defendants.
Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure and Civil Local Rule 16-9, Plaintiff Rambus Inc. (Rambus) and Defendants Broadcom Corporation (Broadcom), LSI Corporation (LSI), Mediatek Inc. (Mediatek), and STMicroelectronics N.V. and STMicroelectronics Inc. (collectively, STMicro) hereby submit the following Joint Case Management Statement and Rule 26(f) Report (Statement). This Statement relates only to the management of issues relating to the Farmwald/Horowitz patents, as Rambuss claims of infringement of the other asserted patents (the Dally and Barth patents) have been stayed by this Court in their entireties. A. Date Cases Were Filed
All of the above-captioned cases were filed on December 1, 2010.1 A separate case was filed by Rambus against NVIDIA in July of 2008 involving some of the same families of patents (including the Barth and Farmwald/Horowitz families, as discussed below) now asserted against Broadcom, LSI, Mediatek, and STMicro. See Rambus Inc. v. NVIDIA Corp., Case No. 3:08-cv-03343-SI (NVIDIA I). At the same time that Rambus brought suit against Broadcom, LSI, Mediatek, and STMicro on the Barth, Farmwald/Horowitz, and Dally patents, Rambus also brought a second suit against NVIDIA on the Dally patents only. See Rambus Inc. v. NVIDIA Corp., Case No. 3:10-cv-05448-RS (NVIDIA II). NVIDIA II, which
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involved only the Dally patents and was assigned to this Court, was stayed in its entirety on January 25, 2011. For that reason, the parties do not understand a CMC statement to be due from NVIDIA at this juncture, and this CMC statement is not submitted on behalf of NVIDIA. B. List of All Parties
The Related Cases are as follows: Case No. 3:10-cv-05437 RS 3:10-cv-05446 RS 3:10-cv-05447 RS 3:10-cv-05447 RS 3:10-cv-05449 RS Plaintiff Rambus Inc. Rambus Inc. Rambus Inc. Rambus Inc. Rambus Inc. Defendant(s) Broadcom Corporation LSI Corporation Mediatek Inc. NVIDIA Corporation STMicroelectronics N.V. and STMicroelectronics Inc. (collectively, STMicro)
As noted above, NVIDIA II has been stayed in its entirety, and NVIDIA I is not before this Court. C. Summary of All Claims and Counterclaims
The Related Cases are patent infringement actions arising under 35 U.S.C. 1 et seq., including 35 U.S.C. 271. Rambus has alleged infringement by Defendants of nineteen patents from three patent families: ten patents claiming technology invented by Rambus founders Michael Farmwald and Mark Horowitz (the Farmwald/Horowitz patents), three patents claiming technology invented by Richard Barth and others (the Barth patents), and six patents claiming technology invented by William J. Dally (the Dally patents) (collectively, the Asserted Patents). Broadcom, LSI, MediaTek, and STMicro have asserted a number of affirmative defenses to Rambuss claims. In addition, Broadcom, LSI, and STMicro have asserted counterclaims for declaratory judgment of invalidity, unenforceability, and noninfringement of each the Asserted Patents. MediaTek did not assert any counterclaims in its Answer. Because the case against NVIDIA has been stayed (see below for more detail), NVIDIA has not yet answered the Complaint. -2JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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D.
Brief Description of the Events Underlying the Action
Rambus has asserted the following patents against Defendants in the Related Cases: Family Farmwald/ Horowitz U.S. Patent Broadcom 6,034,918 6,038,195 6,260,097 6,304,937 6,426,916 6,564,281 6,584,037 6,715,020 6,751,696 7,209,997 Barth 6,470,405 6,591,353 7,287,109 Dally 6,542,555 7,099,404 7,580,474 7,602,857 7,602,858 7,715,494 X X X X X X X X X X X X X X X X X X X LSI 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 MediaTek X X X X X STMicro 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 NVIDIA2
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The Barth and Dally patent families are the subject of an investigation pending before the United States International Trade Commission, Inv. No. 337-TA-753 (the 753 Investigation). Because Rambus asserted only patents from the Barth and Dally families against NVIDIA, on January 25, 2011, Judge Alsup granted NVIDIAs unopposed motion pursuant to 28 U.S.C. 1659 to stay the NVIDIA II case pending the resolution of the 753 Investigation. Subsequently, on June 13, 2011, this Court stayed proceedings related to the Barth and Dally patents in the Related Cases.
As noted above, NVIDIA II has been stayed in its entirety, and, therefore, this CMC statement is not submitted on behalf of NVIDIA and the NVIDIA II case is not addressed here. -3JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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As a result, only claims related to the Farmwald/Horowitz patents are proceeding at this time. Rambus has alleged that Defendants have infringed, contributed to the infringement of, and/or actively induced others to infringe the claims of the Farmwald/Horowitz Patents by making, using, offering to sell, selling (directly or through intermediaries), and/or importing products in the United States consisting of or including SDR (Single Data Rate) memory controllers, DDR-type memory controllers (including DDR or Double Data Rate memory controllers, DDR2 or Double Data Rate 2 memory controllers, and DDR3 or Double Data Rate 3 memory controllers), GDDR-type memory controllers (including GDDR3 or Graphic Double Data Rate 3 memory controllers), and mobile and/or low power versions of the aforementioned memory controllers. E. Description of Relief Sought and Damages Claimed
Rambus seeks actual damages adequate to compensate Rambus for Defendants acts of patent infringement, together with prejudgment and postjudgment interest, as well as an award of enhanced damages pursuant to 35 U.S.C. 284 for Defendants willful infringement of the asserted patents, as well as costs and attorneys fees pursuant to 35 U.S.C. 285. Rambus also seeks a permanent injunction enjoining Defendants from further acts of infringement. Defendants Broadcom, LSI, and STMicro request declaratory relief, namely, a judgment declaring that they have not infringed any valid and enforceable claim of the Asserted Patents and denying Rambuss request for damages. In addition, Defendants seek an award of reasonable attorneys fees and costs pursuant to 35 U.S.C. 285. F. Proposed Discovery Plans3 1. Rambuss Proposed Discovery Plan4
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Because the Court has stayed discovery related to the Barth and Dally patent families, the proposals in this section refer only to discovery related to the Farmwald/Horowitz patents. Rambus objects to the lengthy arguments (nearly 11 pages in length) in Defendants Proposed Discovery Plan and disputes Defendants characterizations of the document production in the 753 Investigation, as well as other facts in Defendants proposal, but, in view of the Courts limit on the length of Joint Statements, Rambus has endeavored to keep its proposal as brief as possible. -4JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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(a) These Cases Should Proceed Without Further Delay, in Accordance With the Patent Local Rules and Federal Rules Rambus proposes that discovery in the Related Cases proceed according to the schedule
3 set forth in the Patent Local Rules and Federal Rules. Rambus believes that the staged discovery 4 proposed by Defendants is unnecessary and will serve only to delay the Related Cases. The law 5 firms who represent Defendants in these cases are the same law firms who represent Defendants 6 in the 753 Investigation in fact, most of the individual defense counsel in the Related Cases 7 are counsel of record in the 753 Investigation. As a result, defense counsel have had access to 8 the litigation record from Rambuss prior cases involving the Farmwald/Horowitz patents for 9 many months now. Significantly, Defendants argued in their respective motions to stay that the 10 Farmwald/Horowitz patents cover essentially the same technology, involve the same issues and 11 defenses (including overlapping prior art references), and will require proof of operation of the 12 same accused memory-controller chip products as the patents at issue in the 753 Investigation. 13 (Docket No. 19 at 7:11-14 [Broadcoms Motion to Stay].) Defendants thus are already familiar 14 with the issues and defenses relevant to the Farmwald/Horowitz patents. 15 Accordingly, there is no reason to depart from standard discovery and claim construction 16 schedules, and Rambus respectfully urges the Court to adopt its proposed pretrial schedule, which 17 conforms with the dates set forth in the Patent Local Rules. Rambus, LSI, and STMicro have 18 already served discovery requests, and Rambus is prepared to serve its Disclosures of Asserted 19 Claims and Infringement Contentions on August 18, two weeks after the initial case management 20 conference, pursuant to Patent L.R. 3-1. 21 (b) 22 Rambus will produce documents in accordance with the Federal Rule of Civil Procedure, 23 which do not require parties to create an index of documents produced (except as required by 24 Patent Local Rule 3-2). According to Rule 34, a party must produce documents as they are kept 25 in the usual course of business or must organize and label them to correspond to the categories in 26 the request. Fed. R. Civ. P. 34(b)(2)(E)(i). If the producing party produces documents in the 27 order in which they are kept in the usual course of business, the Rule imposes no duty to organize 28 -5JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
Defendants Request for a Document Production Index
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and label the documents, provide an index of the documents produced, or correlate the documents to the particular request to which they are responsive. MGP Ingredients, Inc. v. Mars, Inc., No. 06-cv-2318, 2007 WL 3010343, at *3 (D. Kan. Oct. 15, 2007) (collecting cases). Defendants proposal would shift the burden of preparing Defendants case to Rambus, and improperly seeks the disclosure of attorney work product concerning the significance of the documents. (c) Coordination Among the Related Cases and with NVIDIA I
Rambus proposes that the parties coordinate discovery in the Related Cases and with NVIDIA I to the extent possible. In particular, Defendants in the Related Cases should coordinate their initial document requests to avoid unnecessary duplication and should coordinate depositions so the deponents with information relevant to multiple cases are not deposed multiple times. Moreover, six of the ten Farmwald/Horowitz patents asserted in the Related Cases are at issue in NVIDIA I, and for that reason Rambus believes it would be efficient to coordinate at least certain depositions in these cases. Although NVIDIA I was filed in 2008, the case was stayed for some period and the parties only recently began full-scale discovery. To the extent a deponent has information relevant to both NVIDIA I and one or more of these Related Cases, it would be most efficient to have all interested parties attend a single deposition. (d) Discovery Limits
In view of the fact that Defendants here will have use of the extensive discovery in prior district court and ITC proceedings involving the Farmwald/Horowitz patents and other issues relevant to this litigation, Rambus proposes the following discovery limits: Interrogatories: Defendants may propound fifteen (15) joint interrogatories, and the Defendants in each case may propound an additional five (5) interrogatories, for a total of thirty-five (35) interrogatories by Defendants. Rambus may propound twentyfive (25) interrogatories in each of the Related Cases. Fact Depositions: In light of the extensive prior record of testimony by Rambus witnesses regarding the Farmwald/Horowitz patents and the affirmative defenses and counterclaims raised by Defendants, as well as ITC discovery on issues relating to many of those affirmative defenses and counterclaims, Rambus proposes that -6JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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defendants may collectively take one-hundred (100) hours of additional deposition testimony.5 Rambus further proposes that a party shall not repeat prior lines of questioning of a deponent without a good-faith basis to do so. Rambus may propound sixty (60) hours of deposition testimony in each of the Related Cases. Each deposition of an individual witness shall be limited to seven (7) hours of testimony, unless the parties otherwise agree or it is otherwise ordered upon a showing of good cause. Only one-half of the hours spent on depositions requiring an interpreter will count toward any hour limitation. Requests for Admission: Each Defendant may propound up to fifteen (15) joint requests for admission (RFA) to Rambus, and the Defendants in each case may propound an additional five (5) RFAs to Rambus, for a total of thirty-five (35) RFAs by Defendants, and Rambus may propound twenty-five (25) RFAs in each of the Related Cases, exclusive of RFAs addressed solely to the authentication or foundation of documents or other evidence. Rambus reserves its right to seek modifications of such limits and agrees to confer in good faith if a need arises for additional discovery. (e) It Would Be Premature to Limit the Number of Asserted Patent Claims
The Court should deny Defendants request to limit the number of asserted patent claims as premature. Patent L.R. 3-1(a) does not require a patentee to disclose the asserted claims until two weeks after the case management conference. Further, Rambus is entitled to discovery of defendants accused products and invalidity contentions before it attempts to narrow its asserted claims beyond what it has disclosed in its infringement contentions. The reduction in the number
Rambuss current and former officers, directors, employees and agents have already given more than 1,585 hours of sworn testimony, generally all of which may be used by Defendants in the Related Cases. (Rambuss current and former officers, directors, employees and agents have testified in deposition or trial during which their testimony was time-stamped for more than 1,409 hours. They also have testified in depositions and trial where their testimony was not timestamped for an additional 8,820 pages. Assuming 50 pages to the hour, that adds another 176 hours of testimony.) -7JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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of claims asserted at trial in the Coordinated Cases litigation before Judge Whyte, referred to by defendants, occurred only after the accused infringers there had provided their invalidity contentions. 2. Defendants Proposed Discovery Plan (a) Discovery Should be Phased Defendants propose discovery should proceed in phases to minimize burden and inefficiency and in recognition of the complex and lengthy history of the asserted patents. As this Court may be aware, the Farmwald/Horowitz patents (and patents involving related technologies) have been asserted by Rambus many, many times in the past (see Attachment A) and have been the subject of antitrust claims brought private parties, the FTC, and the European Union. Moreover, Rambus conduct in shredding documents relating to the Farmwald/Horowitz patentsalong with other patents involving similar technologieshas earned Rambus a place in treatises and the case law, including a pair of recent Federal Circuit decisions. See Micron Technology, Inc. v. Rambus Inc., __ F.3d __, 2011 U.S. App. LEXIS 9730 (Fed. Cir. May 13, 2011) and Hynix Semiconductor Inc. v. Rambus Inc., __ F.3d __, 2011 U.S. App. LEXIS 9728 (Fed. Cir. May 13, 2011). More than twenty relevant litigations have preceded the Related Cases now before this Court, each creating volumes of pleadings, orders, written discovery requests and responses, invalidity and infringement contentions, deposition transcripts and exhibits, expert reports, and trial transcripts and exhibitssome of which involved party and third-party confidential information, much of which is not publicly available, and all of which is enormously complex. Rambus is necessarily thoroughly familiar with this history; with the arguments made in each action relating to claim construction, infringement, and validity; with its own best responses to spoliation defenses; and with the volumes and volumesmore than 54 million pages (the equivalent of 18,000 bankers boxes stuffed full of documents)of documents from the prior litigations. The defendants in these Related Cases, by contrast, are relative newcomers to the facts, having just been sued by Rambus in the ITC in December, with parallel claims brought at the same time here in the Northern District of California. Although discovery has proceeded in -8JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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the ITC, that discovery has largely focused on the Barth and Dally patents asserted there. The Farmwald/Horowitz patents are not asserted at all in the ITC, likely because they are expired. Rambus argues that phasing discovery is not necessary because Defendants counsel are also representing Defendants in the 753 Investigation and, therefore, should already be familiar with the issues in these cases and the litigation records from Rambuss prior cases. Rambuss position is unpersuasive for several reasons. First, the discovery in the 753 Investigation does not completely overlap with the discovery that is expected to be produced in these cases. The Farmwald/Horowitz patents that are at issue here are not even asserted in the 753 Investigation. Indeed, Rambus itself has refused to produce in the 753 Investigation all documents that are relevant to the Farmwald/Horowitz patents. Defendants therefore expect that Rambus will be producing another unknown volume of documents in these Related Cases. Additionally, given the 753 Investigations aggressive schedule and the millions of disorganized pages that Rambus has produced in that action, many of which were not produced until very recently, it is simply not possible for Defendants to be fully familiar with Rambuss document production or all the issues relating to the Farmwald/Horowitz patents. Accordingly, Defendants propose that the first phase of discovery before this Court be designed to help level the playing field by giving the Defendants a period of time to discover and become familiar with the voluminous litigation records from the past cases. A first phase of discovery should include the following steps: (1) the parties should produce in the Related Cases all document productions, discovery materials, privilege logs, correspondence, declarations, infringement and invalidity contentions, expert reports, orders, filings, deposition transcripts and exhibits, and trial testimony (oral and written) and exhibits from ITC Investigation No. 337-TA-753 (the 753 Investigation); and (2) to the extent not incorporated into step (1) above, Rambus should also produce in the Related Cases all document productions, discovery materials, privilege logs, correspondence, declarations, infringement and invalidity contentions, orders, filings, deposition transcripts and exhibits, trial testimony (oral and written) and exhibits from all other, previous and pending litigations and other proceedings involving the Farmwald/Horowitz patent family (and any others involving related technologies), -9JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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as listed in Attachment A, in any respect, including the matters before any state or district court, the International Trade Commission, the Federal Trade Commission and in the European Union. During this initial document review phase of the Related Cases, discovery will be limited to document productions, and no depositions, other written discovery, or Patent Local Rule exchanges will take place. Additionally, during this first phase of discovery, Rambus should identify the specific patent claims (out of the 432 issued claims in the Farmwald/Horowitz patents) that Rambus asserts against Defendants in these Related Cases. Although a schedule that allows a period of time for focused discovery into past litigation materials and records may seem unusual, it is completely appropriate here and, notably, is precisely the approach that Judge Susan Illston adopted in NVIDIA I. See id. at Dkt. No. 127 (Order dated April 13, 2009). In NVIDIA I, which involves six of the ten asserted patents in the Related Cases, Judge Illston ordered that discovery should proceed in phases and that the first phase should be limited to document production in order to minimize burden and inefficiently. Id. at 3. Indeed, because the few months allotted for Phase I discovery in NVIDIA I proved inadequate, the initial discovery phase there ultimately had to be extended several times. Defendants propose a number of interim deadlines designed to ensure that the case moves forward during Phase I discovery, including deadlines for Rambus to identify third parties whose confidential information is implicated by the contemplated productions, deadlines for Rambus to obtain permission from third parties for the production of their confidential materials, and, failing such consent, for Defendants to raise issues relating to such disputes to the Court.6 After the parties have had an opportunity to at least partially digest the voluminous produced materials, the parties should meet and confer to decide on a proposed schedule for the remainder of the Related Cases, and the Court should hold a further case management conference, as outlined in Defendants proposed case schedule in Section I below, to confirm that Phase I
Defendants note that, in the 753 Investigation, there are numerous materials from past litigations that Rambus has not produced after approximately six months of discovery, based on claims of third-party confidential information, and despite Defendants attempts to get those materials. This point reinforces the reasonablenessindeed, the necessityof Defendants proposed Phase I approach. - 10 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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discovery has been completed successfully and to determine next steps in the case management plan. At that point, the direction and timing of the 753 Investigation may be more certain, and this Court may be better equipped to enter a more definite schedule for the remainder of the case. Should the Court prefer to set deadlines for additional discovery events in addition to or beyond the Phase I discovery schedule proposed by Defendants, it is important to recognize that the schedule proposed by Rambus is neither tenable nor necessary. As discussed, the asserted patents have a complex and lengthy history, implicate a large volume of prior art, and are not patents that can be mastered or reasonably addressed on the default schedule set forth in the Local Patent Rules for the typical, garden-variety patent case. Additionally, although this Court stayed only the Dally and Barth claims, allowing the Farmwald/Horowitz claims to proceed, Rambus has not moved forand the Court has not orderedbifurcation of trial. In other words, although discovery may proceed on the Farmwald/Horowitz claims and defenses, there will necessarily be some point at which the Dally and Barth patent claims and discovery must catch up. If the Farmwald/Horowitz patents have gotten too much of a head start, the Court and parties will wastefully have to repeat certain stages of the litigation multiple times. It simply makes no sense to hold two claim construction hearings on patent families involving related technologies, to conduct expert discovery twice, and to have the same witnesses be deposed multiple times. For this additional reason, the Court should wait until Phase I discovery is complete before setting additional deadlines. At that time, the parties and the Court will be in a much better position to determine an efficient case schedule for the completion of the Related Cases. (b) Rambus Should Provide a Document Production Index
For Defendants to be able to even begin to digest the large volume of relevant prior litigation materials in only four months, Rambus must provide Defendants with a gross-level index of the documents it will produce in this litigation. Given the over ten-year history of litigation surrounding the Farmwald/Horowitz patents and related patents and issues in multiple cases and courts and Defendants own experience in the 753 Investigation, Defendants anticipate Rambuss document production will be voluminous, difficult to search, and disorganized. For - 11 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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example, the Bates numbers on Rambuss production documents in the 753 Investigation have already exceeded the 54-million-page mark. Defendants counsel, having experience with that production, have found it extremely difficult to search for and identify relevant documents in the 753 Investigation because there is no discernible organization to Rambuss production. For example, Defendants have observed that Rambuss voluminous production has multiple gaps, does not contain logical divisions between sets of documents from separate actions or relating to separate issues, contains filings and pleadings with missing exhibits and declarations, contains poorly scanned documents with missing or absent OCR, and contains multiple copies of the same document with the different production numbers. With respect to production documents from former litigations, it is oftentimes impossible to discern the litigations in which they were produced. Documents produced in this manner do not satisfy the obligations of Fed. R. Civ. P. 34. Wagner v. Dryvit Sys., 208 F.R.D. 606, 610 (D. Neb. 2001) ([P]roducing large amounts of documents in no apparent order does not comply with a party's obligation under Rule 34.). Additionally, Defendants understand that Rambus did not produce in the 753 Investigation all documents related to the Farmwald/Horowitz patents, so it is expected that, in these Related Cases, Rambus will be producing an additional unknown volume of documents, which, if history is any indication, will presumably be similarly poorly organized. Rambuss document productions have not been produced in an order in which one would expect documents to be kept in the ordinary course of a typical business. Any electronic search or review of Rambuss voluminous document production will be both unmanageable and unduly burdensome without a useful production index. To comply with Fed. R. Civ. P. 34, Rambus must do more than merely represent that documents have been produced as they are kept in the ordinary course of business. Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008). Rambus must provide reasonable information about the contents of its productions. See, e.g., id. at 338 (ordering a party that had produced approximately 400,000 documents, supposedly as kept in the "ordinary course of business," to produce an index identifying the custodian, location, and general description of all documents produced); Residential Constructors, LLC v. Ace Prop. & Cas. Ins. - 12 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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Co., 2006 U.S. Dist. LEXIS 36943, 4-5 (D. Nev. June 5, 2006) (requiring producing party to provide a general production index where the producing party gathered documents together from different entities and locations and has assembled the documents together , which have now been imaged onto a computer data base); Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618-19 (D. Kans. 2005) (mere assertions that documents are produced as kept in the ordinary course of business are insufficient, and a party producing nine bankers' boxes was ordered to specifically point out which ranges corresponded to various document requests); In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Lit., MDL No. 2004. 2009 WL 152495, at *2 (M.D. Ga. Jan. 22, 2009) (even providing an index to documents asserted to have been produced as kept in the ordinary course of business is not sufficient unless the index is sufficiently understandable that the receiving party can "reasonably locate which documents are responsive to specific requests"). Moreover, Rambus is required to provide any document production, pleadings, and other similar factual indices prepared during the course of the litigations identified in Attachment A that might make the productions relating to those litigations more understandable, even if such indices might ordinarily be considered "fact" work product. See, e.g., Washington Bancorporation v. Said, 145 F.R.D. 274 (D.D.C. 1992) (objective index of 2400 boxes cannot be withheld on work product grounds). Accordingly, Rambus should provide Defendants with a production index that includes: (1) separately for each lawsuit identified in Attachment A, the Bates ranges corresponding to documents from such prior litigation, including an indication of where in each range are the following: document productions (including a listing of which parties from each litigation produced which documents), written discovery including infringement and validity contentions required under any local rules, privilege logs, case-related correspondence, expert reports, orders, pleadings/filings, deposition transcripts and exhibits, and trial testimony and exhibits, (2) all indices created during the course of the litigations identified in Attachment A, including "fact" work product indices of any document productions, sets of pleadings or deposition or trial exhibits, (3) for all documents that were produced by Rambus in any prior litigation identified in Attachment A, an identification of the source of the documents produced (i.e., an identification of - 13 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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the custodian, network drive, law firm, or other person/place from which the documents were originally obtained), (4) an identification, by Bates number, of all prior art documents relating to the Farmwald/Horowitz patents, which have been relied upon by any party in any prior litigation identified in Attachment A, and (5) an identification of which documents, by Bates number, relate to the conception and reduction to practice of the inventions claimed in the Farmwald/Horowitz patents or Rambuss development, use or embodiment of any such claimed invention in an integrated circuit, including, e.g., intrinsic evidence (by patent number), invention disclosures, inventor notebooks (in whole or in part), inventorship documents, agendas, meeting minutes, emails and memoranda. (c) The Court Should Limit the Number of Asserted Patent Claims to a Reasonable Number
Pursuant to Federal Rules of Civil Procedure 1 and 16, it is within a courts discretion to order parties to choose representative claims for discovery and trial as a means to manage the courts docket and streamline the litigation and trial of complex litigations.7 See In re Katz Interactive Call Processing Litigation, 639 F.3d 1303, 1312-13 (Fed. Cir. 2011) (limiting a plaintiff patentee to smaller subset of asserted claims was permissible). The ten asserted Farmwald/Horowitz patents at issue in the Related Cases include 432 issued claims and claim priority back to a single, common patent application filed on April 18, 1990.8 At this time, Rambus has refused to identify the number of claims it will assert against Defendants in the Related Cases. Given Rambuss litigation tactics in other cases, Defendants anticipate Rambus will identify dozens, if not hundreds, of asserted claims in its preliminary infringement contentions. Indeed, in the NVIDIA I case, Rambus has accused NVIDIA of infringing more than
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Rule 1 permits a Court to secure the just, speedy, and inexpensive determination of every action[,] and Rule 16 allows a court to streamline and control the proceedings to further the intent and meaning of Rule 1. More specifically, Rule 16 permits the Court to formulat[e] and simplify[] the issues . . . ; (L) adopt[] special procedures for managing potentially difficult or protracted actions that may involve complex issues. . .; [and] (P) facilitat[e] in other ways the just, speedy, and inexpensive disposition of the action. Fed. R. Civ. P. 16(c)(2).
In the Related Cases, Defendants contend that the claims of the patents-in-suit are not adequately supported by the specification of the originally-filed application and are, therefore, invalid in view of the written description requirement of 35 U.S.C. 112. - 14 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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80 claims of the Farmwald/Horowitz patents. Because it will be impractical and unduly burdensome for the parties to prepare to litigate such a large number asserted claims, the Court should limit to 20 the number of patent claims Rambus can assert against each Defendant for purposes of fact and expert discovery. Rambus should identify the 20 claims it is asserting against each Defendant by September 8, 2010, which is the same date Defendants propose that Rambus produce in these Related Cases documents from other litigations. See Defendants proposed schedule in Section I below. Defendants further propose that within sixty (60) days after the Court issues its claim construction order, the Court should further limit Rambus to 10 claims for purposes of trial. Given the broad discretion permitted under the Federal Rules of Civil Procedure, courts routinely require parties to select representative claims prior to the close of discovery. For example, Judge Ronald M. Whyte similarly limited Rambus in another case involving patents from the same Farmwald/Horowitz patent family. In Rambus v. Hynix Semiconductor et al., Rambus asserted 22 patents containing over 700 claims against multiple defendants. In that case, before the exchange of infringement and invalidity contentions, Judge Whyte directed the parties to limit the number of claims that would be litigated. Id., No. 05-cv- 00334 RMW (N.D. Cal.), Docket No. 130 at 3 (Order dated November 16, 2006). After the parties could not agree on a number to limit the claims, Judge Whyte limited Rambus to 25 claims for the remainder of discovery. Id., Docket No. 222 at 3-4 (Order dated June 27, 2007). In his August 27, 2008 supplemental claim construction order, Judge Whyte cautioned that the parties must focus the issues both in fairness to each other and to the jury which will face the daunting task of understanding complex technology and applying its factual findings to the applicable patent law, and directed Rambus to further limit the number of claims at issue for trial. Id., Docket No. 2084 at 9. Rambus later reduced the number of claims at issue to 12 for trial. Id., Docket No. 2128. Other courts have similarly limited the number of asserted claims during discovery. See, e.g., Stamps.com, Inc. v. Endicia, Inc., No. CV 06-7499 (C.D. Cal. Mar. 17, 2008) (Docket No. 106) aff'd, 2011 U.S. App. LEXIS 12120 (Fed. Cir. June 15, 2011) (limiting a patentee to 15 claims during discovery and summary judgment); Fenster Family Patent Holdings, Inc. v. Siemens Med. - 15 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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Solutions USA, Inc., No. 04-0038-JJF, 2005 U.S. Dist. LEXIS 20788, at *8 (D. Del. Sept. 20, 2005) (holding 90 asserted claims to be unreasonable and ordering the patentee to select ten representative claims). (d) Coordination Among the Related Cases and with NVIDIA I
Defendants agree to make reasonable best efforts to coordinate discovery between the Related Cases. Defendants, however, do not believe it is feasible or appropriate for the discovery in the Related Cases to be coordinated with the NVIDIA I case, because that case has been litigated for almost three years to date and accordingly discovery in the NVIDIA I case is farther along that in the Related Cases. Defendants cannot be prepared to take depositions as early as they may start in the NVIDIA I case, nor should Defendants be forced to prematurely accelerate the schedule in the Related Cases to match the schedule of the NVIDIA I case that has been pending for three years. (e) Discovery Limits
Rambuss attempt to unduly constrain discovery in these cases is unwarranted. Rambus has brought numerous actions against a host of defendants alleging hundreds of millions of dollars in damages against each. Defendants should be provided adequate and ample discovery to defend themselves against such claims and to build their cases without being constrained to the choices made by entities who happen to have litigated with Rambus earlier. Given the broad and aggressive litigation campaign being waged by Rambus, its complaints about the burden of discovery carry little force. Accordingly, with respect to discovery limits, Defendants do not agree to the dramatic limitation on interrogatories proposed by Rambus. Defendants also do not agree to the dramatic time limitations on depositions proposed by Rambus. Finally, Defendants do not agree with Rambuss proposal that all parties be barred from asking a witness who had been previously deposed the same line of questioning from the previous depositions. After the initial document review phase of discovery has been completed and the Court has scheduled the commencement of written discovery and depositions, Defendants propose the following discovery limits:
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Interrogatories: Defendants propose that they may propound fifteen (15) joint interrogatories to Rambus, and each Defendant in each case may propound an additional twenty (20) interrogatories, for a maximum of ninety-five (95) interrogatories. Each response to these interrogatories can be used by any party in any of the Related Cases without restriction and with all objections preserved. Rambus may propound twenty-five (25) interrogatories in each of the Related Cases, for a maximum of one-hundred (100) interrogatories.
Fact Depositions: Defendants propose that they may collectively take up to onehundred-sixty (160) hours of deposition testimony. All deposition testimony can be used by any party in any of the Related Cases without restriction and with all objections preserved. Rambus may take up to sixty (60) hours of deposition testimony in each of the Related cases, for a maximum of two-hundred-forty (240) hours of deposition testimony. Defendants do not agree that they should be required, as Rambus proposes, to not repeat prior or similar lines of questioning from depositions that occurred in other cases, although ST proposes that parties not repeat prior or similar lines of questioning of those witnesses who were deposed in the 753 Investigation. While Defendants do not intend to waste witnesses time by wholesale repetition of prior questions, Defendants should be able to conduct their own depositions as they see fit in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Additionally, limiting Defendants scope of deposition questions would be unduly burdensome and prejudicial because it would require Defendants to memorize tens of thousands of lines of deposition testimony in the scores of depositions that have occurred in multiple prior cases in which the Defendants did not participate.9 Such a requirement would also undoubtedly raise unproductive discovery disputes during depositions, which would disrupt the
Indeed, Rambus has informed us that as of 2006, over 950 hours of deposition testimony has been taken in related, pending litigations/proceedings, as well as many more hours since then. - 17 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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10 11
deposition process.10 Defendants agree that each deposition of an individual witness shall be limited to seven (7) hours of testimony, unless the parties otherwise agree or it is otherwise ordered upon a showing of good cause. Requests for Admission: Defendants propose that they may propound up to twenty (20) joint requests for admission (RFA) to Rambus, and each Defendant in each case may propound an additional forty (40) RFAs to Rambus, for a total of onehundred-eighty (180) RFAs. Each response to these RFAs can be used by any party in any of the Related Cases without restriction and with all objections preserved. Rambus may propound up to fifty (50) RFAs in each of the Related Cases, for a total of two-hundred (200) RFAs. Defendants agree that these limits are exclusive of RFAs addressed solely to the authentication or foundation of documents or other evidence. Defendants further propose that each Defendant in each Related Case can use any written discovery response of Rambus or deposition testimony taken in any of the Related Cases. Defendants agree that the parties reserve all rights to seek modifications of such limits and agree to confer in good faith if a need arises for additional discovery. 3. The Parties Agreement on Cross-Use of Discovery
All discovery and testimony (including, e.g., responses to written discovery, documents, depositions, declarations and affidavits, and trial or hearing testimony) cross-produced in these Related Cases from any other action (including the 753 Investigation and the cases/proceedings identified in Attachment A) may beused in these Related Cases as if the discovery or testimony had been taken in these Related Cases, (i) subject to any rights of and obligations owed to third parties, (ii) subject to any applicable protective order(s), and (iii) subject to and without waiving any objection that may be applicable to the use, for any purpose, of any discovery or testimony, or the admissibility, relevance, or materiality of any such discovery or testimony to any issue in these Related Cases.11 Although cross-produced discovery from other cases/proceedings may be
ST believes that its proposal is a reasonable compromise on this issue. Rambus understands that this provision does not allow the use of documents or testimony from other litigation over which Rambus continues to claim privilege or work product immunity and - 18 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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used in these Related Cases, such discovery shall not count against any discovery limits (e.g., written discovery or deposition limits) that may be set in these Related Cases. 4. The Parties Agreement on Document Production
The parties have agreed to abide by the provisions set forth in Attachment B. In addition, the parties agree to meet and confer in an attempt to prepare a joint submission and proposed order regarding the production of privileged documents previously ordered produced in other Rambus litigation, similar to the order entered by the Special Master, Judge Edward I. Infante, in NVIDIA I, Docket No. 210. 5. Other
The parties intend to exchange initial disclosures pursuant to Rule 26(a)(1) on the same day that this Joint Case Management Statement is filed. The parties consent to accept service of all service papers (e.g., pleadings, discovery, expert reports, and briefs) by electronic means, as contemplated by Federal Rule of Civil Procedure 5(b)(2)(E). The parties further agree that the service of all discovery requests will include copies in Word format. G. Procedural History of the Related Cases and ADR Agreement
As discussed above, on January 25, 2011, Judge Alsup granted NVIDIAs unopposed motion pursuant to 28 U.S.C. 1659 to stay the Rambus/NVIDIA case pending the resolution of ITC Investigation No. 337-TA-753. On June 13, 2011, this Court stayed proceedings related to the Barth and Dally patents in the other Related Cases, pending the resolution of the same 753 Investigation. No motions are currently pending before the Court. The parties in the cases that are not stayed in their entirety have agreed to employ private ADR pursuant to the JAMS rules. The parties have submitted the required stipulation and certifications pursuant to Civil Local Rule 3-5. The parties have further agreed to hold the ADR session within 60 days from the date of the Courts claim construction order.
does not agree otherwise by signing this Joint Statement. Absent a court order, Rambus will not produce such privileged materials. Defendants disagree with Rambuss position and intend to seek a court order absent an agreement between the parties. - 19 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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H.
Other Deadlines in Place
The only deadline currently in place is the deadline on December 7, 2011, for Rambus and NVIDIA to file a joint status report providing an update to the Court on the progress of the ITC investigation, pursuant to Judge Alsups order entered January 25, 2011. I. Proposed Pretrial Schedule
Subject to the Courts approval, the parties agree to the following schedule: Rambuss Defendants Proposed Proposed Event Dates Dates Initial Case Management Conference Rambuss production of all prior litigation documents for the proceedings identified in Attachment A (except any materials Rambus is unable to produce due to third-party confidentiality issues) Rambuss identification of asserted claims12 Thursday, August 4, 2011 Thursday, August 4, 2011 Thursday September 8, 2011 Thursday September 8, 2011 Thursday September 22, 2011 Thursday October 13, 2011 Thursday November 10, 2011 Thursday, December 1, 2011 Thursday January 12, 2012 TBD at Further CMC
Rambuss production of a document production index
Rambuss identification of prior litigation materials not produced due to third-party confidential information Deadline for Rambus to obtain consent to produce thirdparty confidential materials or notify the Court that it is unable to do so Deadline for Defendants to report to the Court on any objections or plan for addressing unresolved third-party confidentiality issues Further Case Management Conference
Written discovery relating to all Farmwald/Horowitz claims and defenses begins
Defendants propose that Rambus identify the claims it is asserting against each Defendant early in the Phase I discovery period. Rambuss early disclosure of the asserted claims will increase the efficiency of Defendants review of Rambuss voluminous document production by, for example, helping Defendants focus in on the most relevant documents including, for example, prior art. - 20 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
12
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 - 21 Initial Expert Reports on Issues where party Bears Burden of Proof. Rambus will provide any report on secondary considerations at this time. Rebuttal Expert Reports Rambuss Reply Brief (7 days after Responsive Brief) (P.L.R. 4-5) Claim Construction Hearing (14 days after reply brief, subject to Courts Calendar) (P.L.R. 4-6) Deadline for Joining Parties and Amending Pleadings Fact Discovery Cut-Off Deadline for Disclosure of Expert Witness for Claim Construction Exchange of Preliminary Claim Constructions and Extrinsic Evidence (21 days after Exchange of Proposed Terms for Construction) (P.L.R. 4-2) Joint Claim Construction and Prehearing Statement (60 days after Invalidity Contentions) (P.L.R. 4-3) Completion of Claim Construction Discovery (30 days after Joint Claim Construction Statement) (P.L.R. 4-4) Rambuss Opening Brief on Claim Construction (45 days after Joint Claim Construction Statement) (P.L.R. 4-5) Defendants Responsive Briefs (14 days after Opening Brief) (P.L.R. 4-5) Event Disclosure of Asserted Claims and Infringement Contentions (14 days after Initial Case Management Conference) (P.L.R. 3-1) Invalidity Contentions (45 days after Infringement Contentions) (P.L.R. 3-3) Exchange of Proposed Terms for Construction (14 days after Invalidity Contentions) (P.L.R. 4-1)
Rambuss Proposed Dates Thursday, August 18, 2011 Monday, October 3, 2011 Monday, October 17, 2011 Monday, October 17, 2011 Monday, November 7, 2011 Friday, December 2, 2011 Friday, January 6, 2012 Friday, January 20, 2012 Friday, February 3, 2012 Friday, February 10, 2012 Friday, February 24, 2012 Friday, March 23, 2012 Friday, June 22, 2012 Friday, July 27, 2012 Friday, August 24, 2012
Defendants Proposed Dates TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC
TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC TBD at Further CMC
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 DATED: July 28, 2011 Respectfully submitted, J. Consent to Magistrate Judge Last Day to File Dispositive Motions Pretrial Conference Trial Expert Discovery Cut-Off Event
Rambuss Proposed Dates Friday, September 7, 2012 Friday, October 5, 2012 To be determined. To be determined.
Defendants Proposed Dates TBD at Further CMC TBD at Further CMC To be determined To be determined
The parties do not consent to have a Magistrate Judge conduct trial in this matter.
MUNGER, TOLLES & OLSON LLP By: /s/ Heather E. Takahashi Gregory P. Stone (SBN 078329) gregory.stone@mto.com Peter E. Gratzinger (SBN 228764) peter.gratzinger@mto.com Heather E. Takahashi (SBN 245845) heather.takahashi@mto.com David H. Pennington (SBN 272238) david.pennington@mto.com MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Peter A. Detre (SBN 182619) peter.detre@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for RAMBUS INC. QUINN EMANUEL URQUHART & SULLIVAN LLP - 22 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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 By: /s/ David E. Sipora David E. Sipora (SBN 124951) dsipiora@kilpatricktownsend.com 1400 Wewatta Street, Suite 600 Denver, CO 80202 Telephone: (303) 571-4000 Facsimile: (303) 571-4321 - 23 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
By: /s/ Gillian Thackray Charles K. Verhoeven (SBN 170151) charlesverhoeven@quinnemanuel.com Sean Pak (SBN 219032) seanpak@quinnemanuel.com Gillian Thackray (SBN 196756) gillianthackray@quinnemanuel.com 50 California Street, 22nd Floor San Francisco, California 94111-4788 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Attorneys for BROADCOM CORPORATION Attorneys for MEDIATEK INC. PERKINS COIE LLP By: /s/ Amanda Tessar Bobbie Wilson (SBN 148317) E-mail: BWilson@perkinscoie.com Heather R. Bobkova (SBN 257014) E-mail: HBobkova@perkinscoie.com Perkins Coie LLP 3150 Porter Drive Palo Alto, CA 94304 Telephone: (650) 838-4300 Facsimile: (650) 838-4350 Amanda Tessar (pro hac vice admission pending) E-mail: ATessar@perkinscoie.com Perkins Coie LLP 1900 Sixteenth St., Suite 1400 Denver, CO 80202 Telephone: (303) 291-2357 Facsimile: (303) 291-2487 Attorneys for BROADCOM CORPORATION KILPATRICK TOWNSEND & STOCKTON LLP
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Julie J. Han (SBN 215279) jhan@kilpatricktownsend.com 379 Lytton Avenue Palo Alto, CA 94301 Telephone: (650) 326-2400 Facsimile: (650) 326-2422 Attorneys for LSI CORPORATION K&L GATES LLP
By: /s/ Elaine Y. Chow Michael J. Bettinger (SBN 122196) mike.bettinger@klgates.com Stephen M. Everett (SBN 121619) stephen.everett@klgates.com Curt Holbreich (SBN 168053) curt.holbreich@klgates.com Elaine Y. Chow (SBN 194063) elaine.chow@klgates.com Four Embarcadero Center, Suite 1200 San Francisco, CA 94111 Tel: (415) 882-8200 Fax: (415) 882-8220 Attorneys for STMICROELECTRONICS N.V. and STMICROELECTRONICS, INC.
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1 2 3 being used to file this JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] 4 ORDER. In compliance with General Order 45.X.B., I hereby attest that the above-named 5 signatories concur in this filing. 6 7 8 9 10 11 12 13 Case Management Order 14 The Case Management Statement and Proposed Order submitted by the parties is hereby 15 adopted by the Court as the Case Management Order for the case and the parties are ordered to 16 comply with this Order. 17 18 DATED: August _____, 2011 19 20 21 22 23 24 25 26 27 28 - 25 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
Filers Attestation I, Heather Takahashi, am the ECF user whose identification and password are
DATED: July 28, 2011 /s/ Heather E. Takahashi
Judge Richard Seeborg UNITED STATES DISTRICT JUDGE
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Attachment A - Other Actions Rambus Inc. v. Infineon Tech. AG, Case No. Civ.A. 3:00-CV-524 REP (E.D. Va. 2000); Micron Tech. Inc. v. Rambus Inc., Case No. Civ. 00-792-SLR (D. Del. 2000); Samsung Elecs. Co., Ltd., et al. v. Rambus, Inc., Court of Chancery of the State of Delaware, Case No. 1454-N; Hynix Semiconductor Inc. v. Rambus Inc., Case No., 5:00-CV-20905 RMW (N.D. Cal. 2000); FTC v. Rambus Inc. (2002); Rambus Inc. v. Micron Tech., Inc., Micron Semiconductor Prods., Inc., Hynix Semiconductor, Inc., Hynix Semiconductor America, Inc., Siemens AG, Siemens Corp., Infineon Techs. AG, Infineon Techs North America Corp., Case No. CGC-04-431105 (Cal. Sup. Ct. 2004); Samsung Electronics Co. v. Rambus Inc., Case No. 3:05-CV-406 REP (E.D. Va. 2005); Rambus Inc. v. Hynix Semiconductor Inc., Hynix Semiconductor America Inc., Hynix Semiconductor Manufacturing America, Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung Semiconductor, Inc., Samsung Austin Semiconductor, L.P., Nanya Tech. Corp., Nanya Tech. Corp. U.S.A., Case No. CV-05-00334 RMW (N.D. Cal. 2005); Rambus Inc. v. Samsung Electronics Co., Case No. 5:05-CV-2298 RMW (N.D. Cal. 2005); Rambus Inc. v. Micron Tech. Inc., Case No. 5:06-CV-244 RMW (N.D. Cal. 2006); Rambus Inc. v. Hitachi Ltd, 1:00-CV-29 (D. Del. 2000), 1:00-CV-130 (D. Del. 2000), 4:00-CV-1351 (N.D. Cal. 2000), 4:00-CV-1716 (N.D. Cal. 2000); Alberta Telecommunications Research Centre v. Rambus Inc., (aka T.R. Labs.) C-0602595 (N.D. Cal.), 05CV789 (E.D. Va.); Holiday Matinee v. Rambus, CV-806325 (Cal. Sup. Ct, Santa Clara, 2002); European Commission (EC) Directorate-General matter; In re Rambus Antitrust Litigation, 5:06-cv-04852-RMW (N.D. Cal.); Micron Technology, Inc., v. Rambus Inc., 1:06-cv-00269-SLR (D. Del. 2006); Rambus / Infineon case filed August 7, 2000, in Manheim, Germany (see, e.g., Rambuss orm 10-K for the year ending December 31, 2003, at page 69); Rambus / Micron cases filed in September 2000 in Germany, France, Great Britain and Italy (see, e.g., Rambuss Form 10-K for the year ending December 31, 2003, at page 70); Rambus / Micron cases filed in December 2000 in Italy and Germany (see, e.g., Rambuss Form 10-K for the year ending December 31, 2003, at page 70);
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
20)
Rambus / Hyundai (later known as Hynix) cases filed in September 2000 in Germany, France and Great Britain (see, e.g., Rambuss Form 10-K for the year ending December 31, 2003, at page 71); The Hynix and Micron European Patent Infringement Cases (see, e.g., Rambuss Form 10-K for the fiscal year ending December 31, 2005, at pages 75, 76-77; Rambuss Form 10-K for the fiscal year ending December 31, 2008, at pages 86 and 88); In the Matter of Certain Semiconductor Chips Having Synchronous Dynamic Random Access Memory Controller and Products Containing Same, Inv. No. 337-TA-661; Rambus, Inc. v. NVIDIA Corporation, Case No. 3:08-cv-03343-SI (N.D. Cal.); and In the Matter of Certain Semiconductor Chips and Products Containing Same, Inv. No. 337-TA-753.
21)
22) 23) 24)
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Attachment B - The Parties Agreement on Document Production 1. Tiff Images All paper documents and electronically stored information, except as indicated below, will be produced as: black-and-white, single page, 300 DPI, Group IV TIFF images that can be loaded into popular litigation software packages. The parties will accommodate reasonable requests for production of specific images in color. Each TIFF file will be labeled with a production number on the corresponding page and/or as an electronically stamped filename (e.g., BATES000001.TIF). The producing party will provide a document image load file (e.g., IPRO .LFP file and Concordance .DAT file) for each set of page images produced. Data load files shall be provided in Concordance .DAT delimited text format and shall contain document breaks indicating the beginning and ending production numbers for each document and each document family (e.g., e-mail and attachments). For electronic documents, extracted text will be provided as single page text files (.txt) and each text file will be named using its corresponding image file (e.g., BATES000001.TXT). For scanned paper documents and electronic documents that do not have extractable text, the parties agree to provide optical character recognition (OCR) data for each image in document level .TXT files. Each party shall bear its own costs of producing relevant paper documents in its possession or control. 2. Metadata No party shall be required to produce metadata (other than document text) associated with any document produced in electronic form. However, upon a showing of good cause, any party may request the production of metadata files for specifically-identified, individual documents. Any disputes regarding the production of metadata or native-format files shall be handled in accordance with Fed. R. Civ. P. 37. 3. Source Code If a party agrees to produce electronically-stored source code, the parties will meet-andconfer in good faith to determine the format and conditions of production.
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4. Native Files The parties further agree that, in the event a party requests that certain information be produced in its native format, the producing party shall confer in good faith with the requesting party to comply with such request. Upon written request from an opposing party, a producing party will produce Microsoft Excel files in native file format to the extent such files are still available and are reasonably accessible to the producing party. The parties will accommodate other reasonable requests for production of specific electronically stored information in native file format. Text will be extracted from native files during processing and provided as single page text (.txt) files. A link will be provided to the native files with the matching TIFF image, and the native file will be named with the production number identifying the native file with the appropriate file extension (e.g., BATES00001.XLS). Electronically stored information requested to be produced in native file format (including Microsoft Excel files) containing information that requires redaction will be produced as TIFF files per specifications outlined in Section F.4.(a) above. Finally, parties may produce other files in native format that are not suitable for production in TIFF format (e.g., voluminous spreadsheets and database reports, file formats that are not traditionally produced in TIFF format, such as CAD files, etc., including as discussed below). Any disputes regarding the production of native-format files shall be handled in accordance with Fed. R. Civ. P. 37. 5. Non-Convertible Files Certain types of files such as system, program, and sound files may not be amenable to conversions into anything meaningful in TIFF format. These will be produced in native format. Other files may not be able to be converted to TIFF due to password protection or corruption (for example). If reasonable efforts to obtain useful TIFF images of these files are unsuccessful, these will be produced in native format. Some examples of file types that may not convert include file types with the following extensions: *.exp *.ilk *.res *.trg *.tlh *.idb *.pdb *pch *.opt *.lib *.cab *.mov *.mp3 *.swf *.psp *.chi *.chm *.com *.dll *.exe *.hlp *.ivi *.ivt *.ix *.msi *.nls *.obj
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
*.ocx *.rmi *.sys *.tmp *.ttf *.vbx *.wav *.wpg *.iso *.pdb *.eps *.mpeg *.mpg *.ram *.rm *.psd *.ai *.aif *.bin *.hqx *.snd *.mpe *.wmv *.wma *.xfd *.db.
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Case3:10-cv-05437-RS Document46

(All parties and counsel listed on Signature Page)

RAMBUS INC., Plaintiff, v. LSI CORPORATION, Defendant. RAMBUS INC.,

Case No. 3:10-cv-05446 RS

Case No. 3:10-cv-05447 RS

22 Plaintiff, 23 v. 24 MEDIATEK INC., 25 Defendant. 26 27 28

RAMBUS INC., Plaintiff, v. STMICROELECTRONICS N.V.; STMICROELECTRONICS INC., Defendants.

Case No. 3:10-cv-05449 RS

Brief Description of the Events Underlying the Action

Defendants Request for a Document Production Index

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

Other Deadlines in Place

Rambuss production of a document production index

Written discovery relating to all Farmwald/Horowitz claims and defenses begins

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

DATED: July 28, 2011 /s/ Heather E. Takahashi

Judge Richard Seeborg UNITED STATES DISTRICT JUDGE

22) 23) 24)

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

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