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Sean Royall’s article in the September issue of AmLaw Tech [" The Art of Destruction"] should be seen as what it is: a trial lawyer’s effort to repeat and spin the allegations he failed (on multiple independent grounds) to prove in a three-month trial. All this is presented with a thin but false veil of neutrality. Royall revisits his view of the Rambus case under the guise of giving helpful “practice tips” on how corporations ought to conduct (or not conduct) document retention programs. In many respects, however, Royall’s article omits critical facts and judicial findings, and thus merits a response. To begin with, Royall was not merely-as his article’s biography says-”directly involved” in the Federal Trade Commission’s 2003 trial against Rambus. He ran the case. He therefore presumably had a large say in shaping the arguments advanced against Rambus, including the document retention arguments. Royall’s leadership role is also important to note given the decision (apparently his, or greatly influenced by him) to continue to litigate against Rambus after Federal Circuit rulings in early 2003 that ran directly counter to his theory of the case. Royall himself announced the decision to continue in an FTC press release issued the day after the Federal Circuit rulings were released. These Federal Circuit rulings hinged on facts (ignored in Royall’s article) that no imaginable Rambus document (retained or not) could have changed. The Federal Circuit ruled that, given the limits of Rambus patent claims and applications, Rambus did not breach the JEDEC standard-setting rules that Royall sought to have the FTC enforce. Indeed, the Federal Circuit also said (and the FTC trial record ultimately confirmed) that those JEDEC rules suffered from a “staggering lack of defining details” and therefore risked “after-the-fact morphing” to try to cover conduct they were never meant to cover. That Royall’s article ignores these rulings is, frankly, disappointing. But the article also ignores other key facts. It ignores that Rambus prevailed in the FTC trial on several other grounds that, like the Federal Circuit rulings, could not have been affected by any imaginable Rambus document, retained or not. These multiple additional grounds for dismissal of the FTC claims were found by the FTC’s own chief administrative law judge to have rendered “moot” or “immaterial” each of the presumptions that Royall states were imposed against Rambus in early, pretrial proceedings. These grounds included: (1) that no cost-effective alternatives existed to the Rambus technologies at issue; (2) that JEDEC would not have behaved materially differently even if Rambus made further disclosures as postulated by Royall’s misreading of JEDEC rules; and (3) that, in any event, the JEDEC members were on sufficient notice of potential Rambus intellectual property interests and so did not rely on any statement or omission of Rambus. Given that he ignores these facts and the substance of the admistrative law judge’s and the Federal Circuit’s rulings, it is perhaps unsurprising that Royall postulates that Rambus’s document retention policies create “the potential for additional sanctions against Rambus, including �outright dismissal’ of its [patent] case.” In context, however, such a result seems unlikely, to say the least. As for the Rambus document retention policy itself, it has indeed been an attractive fallback target (following the 2003 Federal Circuit opinion, which removed other issues) for Rambus’s many litigation opponents. But details of the Rambus retention policy merit attention. It looked very much like many or most other corporate document retention policies, none of which (in my experience and according to all of the authorities of which I am aware) mandate the “inventories” of discarded documents that Rambus was criticized for lacking. The policy was instituted just after Rambus went public, and almost two years before the issuance of the Rambus patents currently in litigation. The retention policy was, as Royall recommends, conducted with the input of outside legal counsel. And employees were expressly warned to “LOOK FOR THINGS TO KEEP” and “LOOK FOR REASONS TO KEEP IT.” As to the intent and effect of the Rambus retention policy, there is no evidence that documents related to what Royall calls “JEDEC patents” were targeted by the retention policy or were, in fact, even inadvertently discarded. Indeed, in his opening arguments in the FTC trial, Royall himself stated that “we have an unusual degree of visibility into the precise nature of Rambus’s conduct, as well as the underlying motivations for what Rambus did.” The FTC’s administrative law judge amplified this conclusion, and he did so in a way far less equivocal than Royall states in his article. The judge did not merely find (as Royall puts it) “no clear proof that any materials directly relevant to the disposition of the case had been destroyed.” Instead, the judge actually found that “the process here has not been prejudiced as there is no indication that any documents, relevant and material to the disposition of the issues in this case, were destroyed.” As to ongoing private litigation concerning the Rambus document retention plan, two other facts merit note. First, in none of those aggressively litigated cases have specific documents relevant to the case been identified as actually missing from the Rambus production. (In contrast, showing that document retention issues can be a two-edged sword, Rambus has identified specific-apparently quite damning-documents that ought to have been in its opponents’ productions but that showed up only in Rambus or third-party files.) Second, the Virginia rulings that Royall cites were admitted by the district court there to be novel, and the opposing party in that case, Infineon Technologies AG, has recently been ordered to reply to Rambus’s request for en banc Federal Circuit review of the district court’s rulings. What then are the lessons of lasting value that can be taken from the Rambus case regarding document retention? Certainly there is a question about whether document retention issues of this type given these facts ought to become the tail wagging the litigation dog-particularly given the significant expenditure of government funds and resources that the Rambus case (and its three-month trial and pending appeal) have required. And there is indeed a lesson here as well: Given cases where the stakes are high enough, the lawyers are zealous enough, and the available resources (governmental and private) are vast enough, any document retention plan can probably be turned into a potential vulnerability. In this, Royall and I can find common ground. John Danforth Senior Vice President andGeneral Counsel Rambus Inc.

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