my post on TMF today****. hope that helps.
from Whyte's 4/22/05 order referring to what Payne said:
Plaintiffs Hynix . . .seek to dismiss the patent claims of defendant Rambus Inc. under the doctrine of "unclean hands" on the basis of collateral estoppel. On March 1, 2005, Judge Robert Payne in the Eastern District of Virginia dismissed Rambus's patent claims in Rambus, Inc. v. Infineon Technologies AG, No. 3:00CV524, stating "I have concluded that [Infineon] has proved, by clear and convincing evidence, a spoliation that warrants dismissal of [the patent infringement case] as the only appropriate sanction after having considered the alternatives."
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Although I am very sure about "clear and convincing" as the standard, here is my email request to Currin yesterday:
(Note: spoliation alone is sanctionable, but proof of unclean hands is needed for an Aptix-type result)
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Please follow up and address these, and hopefully get Danforth's confirmation.
# 1 Hynix has the burden of proof on unclean hands, and that means, in the 1st instance the burden of proof on spoliation
# 2 Each element of the proof must be established by "clear and convincing" evidence
<<<The standard (# 2) IS NOT "more likely than not">>>
Hynix must adduce CLEAR AND CONVINCING EVIDENCE IN SUPPORT OF EACH ELEMENT OF ITS DEFENSE!
elements:
= duty to preserve (timeline)
= destruction of evidentiary materials, i.e., not pizza boxes
= materials are RELEVANT EVIDENCE (nexus)
= prejudice to Hynix
THEN, for unclean hands,
= Rambus acted in bad faith or something close to that like "reckless disregard"
Thanks,
