Rambus (RMBS)

[anatural]

In the opinion of this long, not a lawyer, no posts on TMF and a few on Yahoo as g3q7......

Re: Hynix IA

On or after 2/24, Hon. Judge Whyte will either deny certification of this petition, or he must state in writing that this petition
1. involves a controlling question of law as to which there is substantial ground for difference of opinion and
2. that an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Prong 1. "Addressing the first of those questions, the opinion in McFarlin notes that the drafters of the statute envisioned appeals presenting "an abstract legal issue or what might be called one of 'pure' law, matters the court of appeals 'can decide quickly and cleanly without having to study the record.'.....When a district court certifies an order for appeal, it should specify the controlling question of law it had in mind. According to the appellate court, if the district court is unsure what questions of law, if any, qualify for immediate interlocutory review, it should refrain from certifying any issues for appeal." **
Even though this spoliation order is loaded with case specific findings of fact,and even though both Hynix and payne are completely silent regarding a nexus, and even though Hynix cannot show prejudice in waiting for final appeal,let us assume anyway that this first prong is satisfied in terms of "substantial ground for difference of opinion".

Prong 2. "may materially advance the ultimate termination of the litigation.....mandates that resolution of the question could either resolve the case altogether or at least substantially shorten the litigation."**
Instead of filing this petition immediately, Hynix exhausted their full 10 busniness day time limit. Hon. Judge Whyte has responded in kind, scheduling this hearing just 6 business before trial. If he were to certify this petition, Hynix will again have 10 business days counting from the day after his written order to file with the appeals court motions panel. If they survive this hurdle of being declared dead on arrival, their petition is sent to a merits panel which will begin the process of summoning briefs.
Since it is clear that our case could theoretically be concluded before this appeal can be processed, it borders on absurd to claim this petition accelerates termination of this litigation. Hynix admits to this weakness, and begs the court to consider the idea that this petition will substantially shorten or terminate all pending dram cases.
Considering pretrial appeals burden appellate courts by requiring immediate consideration of issues that may become moot or irrelevant, I think the Hon. Judge Whyte has ample grounds to deny certification. And even if he should decide to certify, I do not believe he will delay the trial, and has signaled as much to Hynix by scheduling this IA hearing on the 24th.
Reasoning;
1. By the 24th, a large number of attorneys, parties, witnesses, exhibits, documents, courtroom reservations and equipment have all been arranged.

2. It is the very nature of a firm trial date which encourages settlement.

3. Hynix could petition the appeals court for a stay, but we may be at trial's end by then, or at least in session.

4. Should he feel it necessary, I believe Hon. Judge Whyte can suspend some portion of the trial as is suggested in the Manual for Comples Litigation, or more specifically, he could separate, stay, or suspend the issues of liability and damages as he himself mentions in this article; http://www.abtl.org/report/nc/abtlnorcalvol11no2.pdf

In any case, I look forward to a far more eloquent, reasoned and inclusive reply to this petition from Rambus.

** http://hjbashman.blogspot.com/2004_09_01_hjbashman_archive.html

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RE: fact-finder bob

If there were one thing I could say directly to him, it would be....

" that courts do not close their doors because of plaintiff's misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations
between the parties in respect of something brought before the court for adjudication.
They apply the maxim, not by way of punishment for extraneous
transgressions, but upon considerations that make for the advancement of right and justice. They are not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion."

Thank you, most Honorable Judge Whyte, for saying it for me.