Rambus (RMBS)

[docrew0]

`<font color=green>1:00-cv-00792 Micron v. Rambus

U.S. District Court
District of Delaware (Wilmington)
CIVIL DOCKET FOR CASE #: 1:00-cv-00792-KAJ


03/08/2006 728 Letter to The Honorable Kent A. Jordan from Mary B. Graham regarding Rambus's position on scheduling order issues in response to Micron's letter re same (D.I. 727) - re 727 Letter,. (Graham, Mary) (Entered: 03/08/2006)

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MORRIS , NICHOLS , ARSHT & TUNNELL LLP

1201 NORTH MARKET STREET
P.O. BOX 1347
WILMINGTON, DELAWARE 19899-1347
302 658 9200
302 658 3989 FAX

MARY B. GRAHAM
[phone]

March 8, 2006

VIA ELECTRONIC FILING AND HAND DELIVERY

The Honorable Kent A. Jordan
United States District Court
Federal Building
844 King Street
Wilmington, DE 19801

Re: Micron Technologies, Inc. v. Rambus Inc., C.A. No. 00-792 (KAJ)

Dear Judge Jordan:

This responds to Mr. Cottrell’s letter of today (D.I. 727) and sets forth Rambus’s position on the remaining scheduling order issues between the parties:

1. Depositions (paragraph 2a): Rambus submits that witnesses should not have to be burdened with multiple depositions in supplemental discovery, absent good cause such as new evidence being produced. Nothing here would warrant imposing that unconventional, extra burden on Rambus and witnesses. The unclean hands trial is set for the end of October 2006; the fact discovery cutoff for that first phase is July 31, 2006 and, for the patent and conduct phases, February 2, 2007. There is no reason supplemental discovery in the patent and conduct cases cannot be proceeding even as unclean hands discovery is proceeding, and indeed, we had understood that it would be proceeding.

Micron says (without citation) that the Court “has made it quite clear to the parties that discovery will be broken down into phases,” and that “the Court has requested that the parties focus on the first phase of the trial, unclean hands, during the initial discovery period.” If by its statements, Micron means that discovery on the patent and conduct phases will not be proceeding while unclean hands discovery proceeds, then our understanding of the Court’s directions is different. We understood that the approach adopted in the scheduling conference was that, while patent and conduct discovery did not need to be completed by the date of the cutoff for unclean hands discovery (now July 31, 2006), such discovery need not wait to begin until after proceedings on unclean hands (tr. 19). Given that the case has been significantly prepared before, as the Court recognized, and given the extent of earlier testimony from the unclean hands witnesses, there is no reason not to require that, when a witness is now deposed on unclean hands, the witness be deposed on all subjects.

The Honorable Kent A. Jordan
March 8, 2006
Page 2

With discovery proceeding in all phases, we suggest that it makes more sense to set an overall deposition time limit of 200 hours (although it is hard to conceive of how that much time would be needed given the discovery that has already occurred and the development of witness testimony in the other cases), rather than separating out the limits for 100 hours for the unclean hands phase and 100 hours for the patent and conduct phases. There would not seem to be any benefit to dividing up the hours according to subjects, because if doing so were to have any meaning, the parties would need to start counting the time a witness is testifying on onesubject versus another, which seems an unnecessary descent into trivia. It also invites possible recourse to the Court over such matters.

2. Trial of patent infringement damages and willful infringement (paragraph 13): Paragraph 13 as submitted by Micron states that there should be a fourth trial on damages and willfulness: “Issues of damages and willfulness will be tried, if necessary, after a verdict has been rendered on the liability issues presented in the [third] ‘conduct’ phase of the trial.” Prior to Micron’s submission of the scheduling order, we asked it to note that this sentence reflected its position only, and to include our suggested language in paragraph 13 (that there should not be a fourth trial and that damages should be tried in the patent trial and willfulness in the conduct trial), but Micron declined. Accordingly, our proposed language is attached.

Rambus’s reasons are as follows. First, the court in the scheduling conference ordered that there would be three trials, not four. Micron did not at that time suggest that there should be a fourth trial. Second, Rambus submits that it makes sense to have patent infringement damages tried in the customary fashion with the patent issues, rather than in yet a fourth trial of damages following the third conduct trial. This is also the approach that Judge Whyte will be taking in the Hynix trial. Finally, we submit that it makes sense to try willful infringement with the conduct trial, as willful infringement may involve issues relating to JEDEC which are the subject of the conduct trial. (Willfulness is not an issue in Hynix so there is no model for guidance from that case to apply here on that issue.)

Rambus therefore asks that the Court enter a scheduling order with Rambus’s proposed language for paragraph 2.a as reflected in the attachment to Mr. Cottrell’s letter, and with our proposed language to paragraph 13 attached.

Respectfully,
/s/ Mary B. Graham

Mary B. Graham (#2256)

MBG/dam
Enclosure
cc: Clerk of the Court (via electronic filing)
Frederick L. Cottrell, III, Esquire (via hand delivery)
Matthew D. Powers, Esquire (via facsimile)
Gregory P. Stone, Esquire
V. Bryan Medlock, Esquire

509747

RAMBUS’S PROPOSED LANGUAGE FOR
PARAGRAPH 13 OF THE SCHEDULING ORDER

13. The trial for this action shall proceed in three phases, on the schedule set forth below in Exhibit A. In the first “unclean hands” phase, the Court will hold a bench trial on Micron’s affirmative defense of unclean hands. In the second “patent” phase, the parties will try Rambus’s claims of patent infringement and Micron’s claims of non-infringement and invalidity. In the third “conduct” phase, the parties will try all of Micron’s remaining claims for affirmative relief and defenses. Issues of patent infringement damages should be tried in the “patent” phase of the trial and willful patent infringement should be tried in the “conduct” phase.

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