Motion To Exclude Turner
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Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
TESSERA, INC., Plaintiff, vs. MICRON TECHNOLOGY, INC., a Delaware corporation, MICRON SEMICONDUCTOR PRODUCTS, INC., an Idaho corporation, INFINEON TECHNOLOGIES AG, a German corporation, INFINEON TECHNOLOGIES RICHMOND, LP, a Delaware corporation, and INFINEON TECHNOLOGIES NORTH AMERICA CORP., a Delaware corporation, Defendants.
§ § § § § § § § § § § § § § § § §
Civil Action No. 2-05cv-94 JDL The Honorable John Love JURY TRIAL DEMANDED
BENCH BRIEF Infineon moves to exclude a purported internal Micron e-mail, proposed Exhibit 1863, from trial. This two-line e-mail from “lturner” to “jlin,” “llim,” and “yunsong” is inadmissible for five reasons: •
Tessera does not (and cannot) show that the two-line e-mail is a routine or reliable business record—instead, it is personal and casual and therefore hearsay. FED. R. EVID. 803(6).
•
The e-mail—a casual comment about past events—is hearsay, and not a coconspirator statement in furtherance. FED. R. EVID. 801(d)(2)(E).
•
The e-mail—which does not mention Tessera—is irrelevant and unduly prejudicial. FED. R. EVID. 401, 403.
•
Tessera, not having come forth with more than a scintilla of evidence, has no standing to complain of actions that lowered prices for consumers.
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 2 of 6
Moreover, counsel has reason to believe that the statement made in the email was a sarcastic joke, which is the very reason why emails such a this are nothing but hearsay and should be excluded as evidence. 1.
The Turner E-Mail Inadmissible As A Business Record.
The two-line e-mail is inadmissible as a business record. FED. R. EVID. 803(6) advisory committee’s note (business records marked by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”). The e-mail contains no such features: It has an exclamation point (“No problem!”), a run-on sentence, and incorrect capitalization (“thanks”). It adds to an e-mail string with informalities, sentence fragments, and personal commentary. See Ex. A (“Scary!”, “Just several tens pieces.”, and “Heard Hynix… ??”).
Hence, the e-mail lacks the precision and protocol required.
State of New York v.
Microsoft Corp., No. CIV A. 98-1233(CKK), 2002 WL 649951 at *2 (D.D.C. Apr. 12, 2002) (“the method or circumstances of preparation [of e-mail] indicate lack of trustworthiness”); Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994) (excluding e-mail for being “far less of a systematic business activity than a monthly inventory printout”). Additionally, the e-mail seems a result of Turner’s personal discretion. Where motivation (to claim credit or avoid blame) influences a record, it is unreliable. Westfed Holdings, Inc. v. U.S., 55 Fed. Cl. 544, 565-66 (Cl. Ct. 2003), rev’d on other grounds, 407 F.3d 1352 (Fed. Cir. 2005) (“e-mails recounting telephone or hallway conversations” or “chit-chat that would be expected to occur on the phone” too informal).1 The e-mail must be barred. FED. R. EVID. 803(6).
1
Nor was the e-mail necessarily created “at or near the time” of the occurrence as required.
2
Case 2:05-cv-00094-JDL
2.
Document 637
Filed 07/27/2006
Page 3 of 6
The Turner E-Mail Is Hearsay Not Exempt As A Coconspirator Statement.
The Turner e-mail is hearsay not exempt as a coconspirator statement. FED. R. EVID. 801(d)(2)(E); United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999) (proponent must prove by a preponderance: existence of conspiracy; that statement was made by party’s co-conspirator; that statement was made during the conspiracy; and that it was made in furtherance of it). Tessera cannot show a conspiracy to boycott its μBGA existed, or that the declarant (allegedly Micron) and Infineon are members of the same conspiracy to boycott μBGA. FED. R. EVID. 801(d)(2)(E) advisory committee’s note (“the declarant’s statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated”); WEINSTEIN’S FEDERAL EVIDENCE § 801.34[3][a] (2d ed. 2006). Significantly, the Turner e-mail—a comment casually made about a past event—is not made in furtherance of the conspiracy and is not admissible. United States v. El-Zoubi, 993 F.2d 442, 446 (5th Cir. 1993) (statement not to coconspirator inadmissible for not having been made in furtherance); Cornett, 195 F.3d at 784 (“mere idle chatter” or “mere narratives of past conduct” not in furtherance of conspiracy); United States v. Means, 695 F.2d 811, 818 (5th Cir. 1983) (statement should have been excluded as “mere idle conversation” and “nothing exists in the record to indicate that he somehow intended to further the scheme by announcing it to the witness.”) Here, the Turner e-mail is about an apparent past request, not a future occurrence, and is inadmissible. Ex. A (“We… have actually been requesting…”) (emphasis added); United States v. Phillips, 664 F.2d 971, 1027 (5th Cir. 1981) (“retrospective statement” not in furtherance of conspiracy);2 cf. Viazis v. American Ass’n of Orthodontists, 314 F.3d 758, 767 (5th Cir. 2002).
2
Other circuits agree. United States v. Lieberman, 637 F.2d 95, 102 (2d Cir. 1980); United States v. Santos, 20 F.3d 280, 286 (7th Cir. 1994) (“idle chatter” and “superfluous casual (Continued…) 3
Case 2:05-cv-00094-JDL
3.
Document 637
Filed 07/27/2006
Page 4 of 6
The Turner E-Mail Is Irrelevant And Unduly Prejudicial.
This case involves a group boycott of Tessera’s μBGA. (2d Am. Compl. ¶¶ 4, 19, 50) The Turner e-mail (which does not mention Tessera) is unrelated to this conspiracy and should be excluded. FED. R. EVID. 401, 403; United States v. Hays, 872 F.2d 582, 587-88 (5th Cir. 1989) (evidence of misapplication of funds and making false entries in another savings and loan association irrelevant to suit). To allow the Turner e-mail into evidence would allow Tessera to conflate a boycott against RDRAM with a boycott against μBGA packaging—and thereby accomplish through the backdoor what this Court has explicitly said it could not do: Prove an illegal antitrust conspiracy against its packaging through an alleged antitrust conspiracy against RDRAM. (2/24/06 Or. at 1) (Court stating that Tessera may “only pursue anti-competitive conspiracy claims if the conspiracy specifically targeted Tessera.”). 4.
Tessera Has No Standing To Complain Of Lower Consumer Prices.
Tessera has standing to complain where alleged collusion lowers prices and benefits consumers. Cape & Sons Co. v. PCC Construction Co., 2006 WL 1751886 (7th Cir. 2006) (no antitrust injury undercutting competitor’s bid “provided lower bids to the consumer… bidrigging activities actually increased rather than restricted, competition”): While Cape may have been injured because, absent a conspiracy, the defendants might have inflated their prices in hopes of receiving more profit from the project and therefore not received the bid, the conspiracy still would have resulted in the consumer paying a price below Cape’s bid. Such a loss would not “come[ ] from acts that reduce output or raise prices to consumers.” Cape & Sons Co., 2006 WL 1751886, at *2. Thus, the Turner e-mail should be excluded.
conversations” not in furtherance of conspiracy); United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986) (“casual aside” not in furtherance of conspiracy).
4
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 5 of 6
ALBRITTON LAW FIRM
By: ________________________________ Eric M. Albritton Texas State Bar No. 00790215 P.O. Box 2649 Longview, Texas 75606 Telephone: (903) 757-8449 Facsimile: (903) 758-7397 E-Mail: [email protected] Attorneys for Defendants INFINEON TECHNOLOGIES AG, a German corporation, INFINEON TECHNOLOGIES NORTH AMERICA CORP., a Delaware corporation, and QIMONDA AG, a German corporation.
Of Counsel: John M. Desmarais [email protected] Gregory S. Arovas [email protected] Thomas D. Pease [email protected] KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 J. Robert Robertson [email protected] KIRKLAND & ELLIS LLP Aon Center 200 East Randolph Drive Chicago, IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
Chong S. Park [email protected] KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200
5
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 6 of 6
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email, on this the 27th day of July, 2006.
____________________________________ Eric M. Albritton
6
Document 637
Filed 07/27/2006
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
TESSERA, INC., Plaintiff, vs. MICRON TECHNOLOGY, INC., a Delaware corporation, MICRON SEMICONDUCTOR PRODUCTS, INC., an Idaho corporation, INFINEON TECHNOLOGIES AG, a German corporation, INFINEON TECHNOLOGIES RICHMOND, LP, a Delaware corporation, and INFINEON TECHNOLOGIES NORTH AMERICA CORP., a Delaware corporation, Defendants.
§ § § § § § § § § § § § § § § § §
Civil Action No. 2-05cv-94 JDL The Honorable John Love JURY TRIAL DEMANDED
BENCH BRIEF Infineon moves to exclude a purported internal Micron e-mail, proposed Exhibit 1863, from trial. This two-line e-mail from “lturner” to “jlin,” “llim,” and “yunsong” is inadmissible for five reasons: •
Tessera does not (and cannot) show that the two-line e-mail is a routine or reliable business record—instead, it is personal and casual and therefore hearsay. FED. R. EVID. 803(6).
•
The e-mail—a casual comment about past events—is hearsay, and not a coconspirator statement in furtherance. FED. R. EVID. 801(d)(2)(E).
•
The e-mail—which does not mention Tessera—is irrelevant and unduly prejudicial. FED. R. EVID. 401, 403.
•
Tessera, not having come forth with more than a scintilla of evidence, has no standing to complain of actions that lowered prices for consumers.
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 2 of 6
Moreover, counsel has reason to believe that the statement made in the email was a sarcastic joke, which is the very reason why emails such a this are nothing but hearsay and should be excluded as evidence. 1.
The Turner E-Mail Inadmissible As A Business Record.
The two-line e-mail is inadmissible as a business record. FED. R. EVID. 803(6) advisory committee’s note (business records marked by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”). The e-mail contains no such features: It has an exclamation point (“No problem!”), a run-on sentence, and incorrect capitalization (“thanks”). It adds to an e-mail string with informalities, sentence fragments, and personal commentary. See Ex. A (“Scary!”, “Just several tens pieces.”, and “Heard Hynix… ??”).
Hence, the e-mail lacks the precision and protocol required.
State of New York v.
Microsoft Corp., No. CIV A. 98-1233(CKK), 2002 WL 649951 at *2 (D.D.C. Apr. 12, 2002) (“the method or circumstances of preparation [of e-mail] indicate lack of trustworthiness”); Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994) (excluding e-mail for being “far less of a systematic business activity than a monthly inventory printout”). Additionally, the e-mail seems a result of Turner’s personal discretion. Where motivation (to claim credit or avoid blame) influences a record, it is unreliable. Westfed Holdings, Inc. v. U.S., 55 Fed. Cl. 544, 565-66 (Cl. Ct. 2003), rev’d on other grounds, 407 F.3d 1352 (Fed. Cir. 2005) (“e-mails recounting telephone or hallway conversations” or “chit-chat that would be expected to occur on the phone” too informal).1 The e-mail must be barred. FED. R. EVID. 803(6).
1
Nor was the e-mail necessarily created “at or near the time” of the occurrence as required.
2
Case 2:05-cv-00094-JDL
2.
Document 637
Filed 07/27/2006
Page 3 of 6
The Turner E-Mail Is Hearsay Not Exempt As A Coconspirator Statement.
The Turner e-mail is hearsay not exempt as a coconspirator statement. FED. R. EVID. 801(d)(2)(E); United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999) (proponent must prove by a preponderance: existence of conspiracy; that statement was made by party’s co-conspirator; that statement was made during the conspiracy; and that it was made in furtherance of it). Tessera cannot show a conspiracy to boycott its μBGA existed, or that the declarant (allegedly Micron) and Infineon are members of the same conspiracy to boycott μBGA. FED. R. EVID. 801(d)(2)(E) advisory committee’s note (“the declarant’s statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated”); WEINSTEIN’S FEDERAL EVIDENCE § 801.34[3][a] (2d ed. 2006). Significantly, the Turner e-mail—a comment casually made about a past event—is not made in furtherance of the conspiracy and is not admissible. United States v. El-Zoubi, 993 F.2d 442, 446 (5th Cir. 1993) (statement not to coconspirator inadmissible for not having been made in furtherance); Cornett, 195 F.3d at 784 (“mere idle chatter” or “mere narratives of past conduct” not in furtherance of conspiracy); United States v. Means, 695 F.2d 811, 818 (5th Cir. 1983) (statement should have been excluded as “mere idle conversation” and “nothing exists in the record to indicate that he somehow intended to further the scheme by announcing it to the witness.”) Here, the Turner e-mail is about an apparent past request, not a future occurrence, and is inadmissible. Ex. A (“We… have actually been requesting…”) (emphasis added); United States v. Phillips, 664 F.2d 971, 1027 (5th Cir. 1981) (“retrospective statement” not in furtherance of conspiracy);2 cf. Viazis v. American Ass’n of Orthodontists, 314 F.3d 758, 767 (5th Cir. 2002).
2
Other circuits agree. United States v. Lieberman, 637 F.2d 95, 102 (2d Cir. 1980); United States v. Santos, 20 F.3d 280, 286 (7th Cir. 1994) (“idle chatter” and “superfluous casual (Continued…) 3
Case 2:05-cv-00094-JDL
3.
Document 637
Filed 07/27/2006
Page 4 of 6
The Turner E-Mail Is Irrelevant And Unduly Prejudicial.
This case involves a group boycott of Tessera’s μBGA. (2d Am. Compl. ¶¶ 4, 19, 50) The Turner e-mail (which does not mention Tessera) is unrelated to this conspiracy and should be excluded. FED. R. EVID. 401, 403; United States v. Hays, 872 F.2d 582, 587-88 (5th Cir. 1989) (evidence of misapplication of funds and making false entries in another savings and loan association irrelevant to suit). To allow the Turner e-mail into evidence would allow Tessera to conflate a boycott against RDRAM with a boycott against μBGA packaging—and thereby accomplish through the backdoor what this Court has explicitly said it could not do: Prove an illegal antitrust conspiracy against its packaging through an alleged antitrust conspiracy against RDRAM. (2/24/06 Or. at 1) (Court stating that Tessera may “only pursue anti-competitive conspiracy claims if the conspiracy specifically targeted Tessera.”). 4.
Tessera Has No Standing To Complain Of Lower Consumer Prices.
Tessera has standing to complain where alleged collusion lowers prices and benefits consumers. Cape & Sons Co. v. PCC Construction Co., 2006 WL 1751886 (7th Cir. 2006) (no antitrust injury undercutting competitor’s bid “provided lower bids to the consumer… bidrigging activities actually increased rather than restricted, competition”): While Cape may have been injured because, absent a conspiracy, the defendants might have inflated their prices in hopes of receiving more profit from the project and therefore not received the bid, the conspiracy still would have resulted in the consumer paying a price below Cape’s bid. Such a loss would not “come[ ] from acts that reduce output or raise prices to consumers.” Cape & Sons Co., 2006 WL 1751886, at *2. Thus, the Turner e-mail should be excluded.
conversations” not in furtherance of conspiracy); United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986) (“casual aside” not in furtherance of conspiracy).
4
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 5 of 6
ALBRITTON LAW FIRM
By: ________________________________ Eric M. Albritton Texas State Bar No. 00790215 P.O. Box 2649 Longview, Texas 75606 Telephone: (903) 757-8449 Facsimile: (903) 758-7397 E-Mail: [email protected] Attorneys for Defendants INFINEON TECHNOLOGIES AG, a German corporation, INFINEON TECHNOLOGIES NORTH AMERICA CORP., a Delaware corporation, and QIMONDA AG, a German corporation.
Of Counsel: John M. Desmarais [email protected] Gregory S. Arovas [email protected] Thomas D. Pease [email protected] KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, New York 10022 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 J. Robert Robertson [email protected] KIRKLAND & ELLIS LLP Aon Center 200 East Randolph Drive Chicago, IL 60601 Telephone: (312) 861-2000 Facsimile: (312) 861-2200
Chong S. Park [email protected] KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200
5
Case 2:05-cv-00094-JDL
Document 637
Filed 07/27/2006
Page 6 of 6
CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email, on this the 27th day of July, 2006.
____________________________________ Eric M. Albritton
6
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