FTC v. RMBS - Order

Order Granting In Part Complaint Counsel’s Motion To Compel Production Of, And to Reopen The Record To Admit, Documents Relating To Rambus Inc.’s Spoliation Of Evidence; And Granting Rambus’s Unopposed Motion For Release Of Testimony

Reopening the record to admit supplemental evidence at this stage of the proceeding should only be done in compelling circumstances. Use of the Commission’s power under 16 C.F.R. §3.54(a) to reopen the record to admit supplemental evidence after oral argument should only be countenanced where (1) the party offering the evidence has acted with due diligence; (2) the supplemental evidence is relevant, probative and non-cumulative; and (3) the supplemental evidence can be admitted without undue prejudice to the other party. (cite). The application of this standard to the instant motion weighs strongly in favor of reopening this record to admit evidence from the record of the evidentiary hearing. (p. 2)

Materials supporting the Motion to Compel raise potentially disturbing issues regarding the adequacy, completeness and reliability of the record in this matter. . . We must, therefore, take measures to insure the integrity of the proceeding. (p. 3)

Compliant Counsel’s pursuit of spoliation in this matter has been diligent. Much of the evidence at issue in this Motion either did not exist when the record closed in this matter or was denied Complaint Counsel by claims of privilege that no longer apply. (p. 3)

IT IS FURTHER ORDERED THAT:

1. On or before June 14, 2005, Complaint Counsel and Rambus may each file such parts of the record of the evidentiary hearing in the Infineon litigation as each party may deem relevant to any issue in this matter; provided, however, that the filing of such materials shall be accompanied by a schedule of exhibits which includes both exhibit numbers for each exhibit and a brief description of each exhibit; and

2. On or before June 24, 2005, either party may file any objections to the exhibits filed by the other party, stating with particularity each exhibit to which each objection is made and the nature of and legal basis for the objection;
and

3. On or before July 5, 2005, Rambus and Complaint Counsel shall file their responses, if any, to the filings required or permitted in 2., above . . .(p. 4)

Ft. 6 If significant additional evidence remains in the record after the Commission rules on any objections filed pursuant to Paragraph 2, above, the parties should anticipate being ordered to file, and respond to each other’s filing of, amended proposed findings of fact and conclusions of law cross-referenced to previously filed proposed findings and to the related provisions in the Initial Decision. Such order will also likely request identification of any prior misstatements or misrepresentations of fact by any person in this matter which can now be identified by reason of the admission of any supplemental evidence and the filing of any motions seeking additional relief or inferences arising by reason of any alleged spoliation of evidence. (p. 4).

Donkey Notes:

1. Will the consequences of the decision to ride the Rocket Docket never end?

2. Was the memo wherein the Rocket Docket was recommended shredded too?

3. Once the “relevant” materials are before the Commission, will the Commission decide that to “insure the integrity of this proceeding” it should further open the record?

4. Will Rambus find a way to include the pleas of Infineon, Hynix and statements of “cooperation” of Micron in the record?

5. To “insure the integrity of this proceeding”, should Complaint Counsel move to include evidence of the pleas and cooperation?

6. Is not the goal of Complaint Counsel to find the truth?

7. Did somebody say "You watch too much television?"

8. To “insure the integrity of this proceeding”, should the Commission simply take “judicial notice” or “commission notice” or whatever, on its own motion of the pleas and "cooperation"?

9. Who did you say who made the decision to ride the Rocket Docket?