FTC vs. Rambus

Rambus announced that the Federal Trade Commission will

“reopen the record of its case against Rambus to include certain attorney-client privileged documents included in the Rambus vs. Infineon retrial recently concluded in Virginia.”

The announcement can be found here.

At this juncture, it is not clear exactly what the reopened record will include. In a 26 page Memorandum filed with the FTC dated March 30, 2005, Complaint Counsel concluded in part as follows:

“Complaint Counsel respectfully renew our request that the Commission compel Rambus to produce the remaining Spoliation Documents, and reopen the record in this case to admit all Spoliation Documents used by Rambus or Infineon in open court and now in possession of Complaint Counsel (including those documents attached hereto), as well as all additional Spoliation Documents yet to be produced by Rambus.”

Rambus announcement reads in part:

“The order granting Complaint Counsel's motion addresses a limited set of materials relating to alleged document spoliation as to which the Infineon trial judge permitted discovery in the Virginia retrial.”

Is the “limited set of materials” less than the

“all the Spoliation Documents Spoliation Documents used by Rambus or Infineon in open court and now in possession of Complaint Counsel (including those documents attached hereto), as well as all additional Spoliation Documents yet to be produced by Rambus?”

The ruling is not available at this time.

Rambus assures all that it takes the spoliation allegations seriously, but suggests that the real facts not be lost in the smoke and mirrors of Complaint Counsel’s fixation on spoliation. Those facts being

“the presiding Chief Administrative Law Judge (ALJ) of the FTC issued a lengthy opinion that recommended the dismissal of all FTC claims against Rambus. The ALJ ruled, among other things, that the JEDEC standard setting body had imposed no duty of disclosure. He also ruled that the DRAM industry had no reasonable alternatives to Rambus technology and was, in any event, on notice of the potential scope of Rambus patent rights. Based on these rulings and others, and because each was independently dispositive of the FTC's claims against Rambus, the ALJ further found that there was "no indication that any documents, relevant and material to the disposition of the issues in this case, were destroyed.”

The Rambus announcement also notes that the motion of Rambus to add redacted language to paragraph number 557 of the FTC ALJ’s February 23, 2004 decision was granted. The motion was unopposed. The motion can be found here.

As a reminder to world of the bad behavior of certain members of the DRAM industry, Rambus states that if the record is opened

“the FTC record ought to include other new evidence as well, including recent DRAM industry guilty pleas that go to the motives and admitted anticompetitive conduct of those DRAM companies who urged the FTC to bring this case and on whose testimony the FTC staff relied heavily at trial."

Now that seems fair. The criminal behavior of certain members of the DRAM industry should be part of the record.

Also, the FTC should avoid the appearance that its investigation is politically motivated or inspired . . . but that is a topic for another day.

Hat tip to Rambus Investor Relations for the Press Release.

Hat tip to the myriad of Rambus "Longs" that emailed me with the link - Joe was first.