Rambus Letter Sr

Case 1:00-cv-00792-SLR

Document 1096

Filed 02/06/2009

MORRIS, NICHOLS, ARSHT & TUNNELL

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LLP

1201 N O R T H M A R K E T S T R EE T P.O. B O X 1347 W I L M I N G T O N , D E L A W A R E 19899-1347 302 658 9200 302 658 3989 F A X M A R Y B. G R A H A M 302.351.9199 [email protected]

February 6, 2009

BY ELECTRONIC FILING The Honorable Sue L. Robinson United States District Court Federal Building 844 King Street Wilmington, DE 19801 Re:

Micron Technologies, Inc. v. Rambus Inc., C.A. No. 00-792 (SLR)

Dear Judge Robinson: Rambus submits this letter pursuant to the Court’s January 28, 2009 Order (D.I. 1092), which directed the parties to advise the Court of the status of Rambus Inc. v. Micron Technology, Inc., et al., pending before the Honorable Ronald M. Whyte in the Northern District of California (the “California Action”). On February 3, 2009, Judge Whyte entered an order staying the California Action until the Federal Circuit resolves Rambus’s anticipated appeal from this Court’s January 9, 2009 Order (the “January 9th Order”). A copy of Judge Whyte’s February 3, 2009 Order Entering Stay of Proceedings in Case Nos. C-05-00334, C-05-02298 and C-06-00244 (the “Stay Order”) is attached hereto as Exhibit A. Judge Whyte also stated that he intends to act expeditiously to enter a final judgment in Rambus’s litigation with Hynix, which judgment will encompass Judge Whyte’s spoliation findings, “to enable the Federal Circuit to consolidate the appeals from the Micron Del. Action and Hynix I cases.” Exh. A at 5:3-4; see also Exh. A at 3:13-16. As Judge Whyte noted: The desire to prevent inconsistent outcomes persuades this court that the fairest and most economically efficient way to proceed is to expeditiously enter judgment in the Hynix I action so that the Federal Circuit can undertake a consolidated review of the spoliation question and bring some finality to the issue.

Case 1:00-cv-00792-SLR

Document 1096

Filed 02/06/2009

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The Honorable Sue L. Robinson February 6, 2009 Page 2

Exh. A at 6:5-8. In light of Judge Whyte’s stated intention to finalize the judgment in Hynix I so as to permit coordinated appeals, Rambus repeats its request that this Court defer entry of any judgment respecting the January 9th Order until Judge Whyte issues the Hynix I judgment. Rambus also continues to request that the Court stay Micron’s remaining claims in this action pending the outcome of an appeal of the January 9th Order. In the January 30, 2009 hearing before Judge Whyte, Micron’s counsel reaffirmed Micron’s position that Rambus’s alleged spoliation “tainted” the California jury’s verdict in Rambus’s favor on the “conduct” claims that parallel those pending before this Court. Given Micron’s assertions regarding the interrelated nature of the spoliation issues and the “conduct” claims, a stay of those claims until an appeal of the January 9th Order is resolved would promote judicial efficiency and ensure compliance with the requirements of Rule 54(b). See Jan. 26, 2009 Letter from Mary Graham to the Honorable Sue L. Robinson (D.I. 1091) at 3-5. Finally, in its January 26, 2009 letter to this Court, Micron requested that the Court grant Micron thirty days after entry of any Rule 54(b) judgment to file a motion for attorneys’ fees. See Jan. 26, 2009 Letter from Anne Shea Gaza to the Honorable Sue L. Robinson (D.I. 1090) at 4 n.6. Rambus respectfully requests that its requested stay likewise apply to any motion for attorneys’ fees, thus deferring the time for Micron to file its anticipated fee request. Under Rule 54 of the Federal Rules of Civil Procedure, the Court has discretion to defer the filing of a motion for attorneys’ fees until after an appeal of the underlying judgment is resolved. See Fed. R. Civ. P. 54(d)(2)(B) (setting deadline for filing of motion for attorneys’ fees “[u]nless a statute or court order provides otherwise”); see also Fed. R. Civ. P. advisory committee notes (1993 amendments) (“If an appeal on the merits of the case is taken, the court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice, directing under subdivision (d)(2)(B) a new period for filing after the appeal has been resolved.”). In light of the judicial economy resulting from such an approach, courts have routinely exercised this discretion, including in patent cases. For example, in Glaxo Group Ltd. v. Apotex, 272 F. Supp. 2d 772 (N.D. Ill. 2003), the court concluded that the defendant had willfully infringed two of the plaintiff’s patents, and entered judgment accordingly. Id. at 774. The defendant requested that the court defer the consideration of a motion for attorneys’ fees until after the defendant’s appeal of the judgment was resolved, and the court agreed: The court finds defendant’s logic persuasive in this regard. Should defendant prevail on appeal, on either the merits of the infringement issues or the willfulness issue, plaintiff’s fee petition is likely to become moot. Should plaintiff prevail on appeal (as this court predicts), its fee petition will be altered by the time spent on the additional proceedings. Accordingly, the court in the exercise of its discretion grants defendant’s motion to postpone

Case 1:00-cv-00792-SLR

Document 1096

Filed 02/06/2009

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The Honorable Sue L. Robinson February 6, 2009 Page 3

and stays further proceedings on plaintiff’s fee petition until conclusion of the appeal. Id. at 779. See also AstraZeneca AB v. Mutual Pharmaceutical Co., Case No. Civ.A. 00-4731, 2003 WL 22794868, at *2 (E.D. Pa. Nov. 12, 2003) (“Given that this Court’s determination of whether this is an exceptional case will depend, in part, on the outcome of the appeal that is likely in this case, it is within this Court’s discretion to stay the issue of attorney’s fees until such appeals are complete.”) (citation omitted); Digital Privacy, Inc. v. RSA Security, Inc., 199 F. Supp. 2d 457, 460 & n.3 (E.D. Va. 2002) (following claim construction and summary judgment of noninfringement, entering Rule 54(b) judgment on patent infringement claims and staying both remaining counterclaims and motion for attorneys’ fees pending outcome of appeal). This Court has previously taken a similar approach. See, e.g., Medtronic Vascular, Inc. v. Boston Scientific Corp., Civ. No. 98-478-SLR, Feb. 22, 2005 Order (D.I. 351) (attached as Exhibit B) (following entry of Rule 54(b) judgment and stay of antitrust counterclaims, deferring consideration of attorneys’ fees until after completion of Federal Circuit appeal). Indeed, postponing consideration of attorneys’ fees is particularly appropriate here. A Rule 54(b) judgment would be entered, at least in part, to permit immediate review of the January 9th Order – an order upon which Micron’s motion for attorneys’ fees will almost certainly rely. Simultaneously facilitating review of the January 9th Order and moving forward with proceedings that are predicated on that order is simply inefficient. Rambus therefore requests that all proceedings in this Court – including the deadline for filing any motion for attorneys’ fees – be stayed until after the appeal of the January 9th Order is resolved. Respectfully,

/s/ Mary B. Graham Mary B. Graham (#2256) MBG/dam Enclosure cc: Clerk of the Court (by hand delivery) Frederick L. Cottrell, III, Esq. (by e-mail and hand delivery) Jared Bobrow, Esq. (by e-mail) Gregory P. Stone, Esq. (by e-mail) 2720758