From IV:
The most honorable Judge Whyte - December 17th
Here are my notes of the hearing today. Please keep in mind that there probably are some errors and omissions in my notes.
Court started off with Mr. Stone requesting a court date for the consolidated trial He said it is important to set trial dates so that we have that time reserved given the busy schedules of all the attorneys involved., Stone said he expected CAFC arguments to occur in March or April. If an extension is granted, he said maybe later in April. Stone said it is not unreasonable to expect a decision by the end of the summer, probably by the end of August. He said given we were on verge of trial when the case was stayed, October or November would be appropriate to reserve for trial and still avoid the Christmas holiday. Judge Whyte asked and Stone confirmed that the only issues remaining to be tried were the patent issues.
Mr. Bobrow of Micron said the prudent course is to keep the case stayed. He said we are guessing on the date of CAFC arguments and then second guessing when a ruling would be issue. He asserted that Rambus added complexity to the Delaware case by asking that the cases be coordinated and now both are tied at the hip. Bobrow said that once we have the ruling we could either set a trial date or enter judgment based on the collateral estoppel of the Delaware ruling.
Judge Whyte said it does seem to be awfully speculative as to when the appeals will be resolved. He said the one concern he had, given the number of lawyers involved and quality of those lawyers, they tend to be busy and it is hard to coordinate their schedules. Judge Whyte said immediately following the completion of the oral arguments, he will consider blocking out a timeframe for trial.
Mr. Perry of Rambus changed topics and told Judge Whyte that Samsung is arguing to Judge Kramer that it should be allowed to argue cross claims that were dismissed here or were already tried here, or were under agreement to drop. He said Samsung is persisting in claiming their claims regarding JEDEC and Steinberg are allowed because Samsung’s claims are broader in state court. Perry said Samsung persists in retrying allegations of a wrongful breach of the license agreement, which your honor has already given ruling on, and with spoliation, which your honor hasn’t yet ruled on. Perry said Samsung believes that because spoliation hasn’t yet had judgment entered, it is allowed to make the same claim in state court. Perry said Judge Whyte has jurisdiction and the ability to protect an order that has issued and to prevent the misuse of the courts by Samsung. Perry said despite Samsungs assertions in this court that they would clarify its claims in state court, it has done nothing to tell Judge Kramer they were mistaken.
Mr. Cherensky of Samsung said there is no issue once so ever that needs clarification. He said the exact same claims dismissed here were dismissed in San Francisco. He said the stipulation and order were clear and Judge Kramer is perfectly capable of handling any dispute. Judge Whyte then asked Cherensky about spoliation and asked, “Wasn’t the intent of the parties in the dismissal or the issues tried before me weren’t going to go before any other court? So they wouldn’t be tried twice?” Cherensky said Rambus raised that issue with Judge Kramer. He said some claims appropriate in SF case are not related to patent claims. Whyte noted that Samsung was extremely anxious that the court sever it from the trial that the other parties were involved with. Whyte said Samsung had basically said, “The whole intent is if you sever us, we’ll try these cases in your court or we’ll dismiss them.”
Judge Whyte said it seems that if you say there is a distinction between the issues that don’t yet have a judgment, it would be contrary to the intent of the stipulation. Cherensky said Judge Whyte the issue he raised is not a briefed motion. Cherensky also told Judge Whyte he should go back and look a the exact wording of the stipulation. Judge Whyte said he doesn’t disagree that he should have this briefed with a motion, but it does appear that those claims were dismissed as part of the agreement. Judge Whyte said Judge Kramer would have to make evidentiary call on what would be admissible or not on a different claim. Judge Whyte said, “But with respect to the claims that were tried here, what bothers me is that some of the briefing suggested that you can try the spoliation claim in SF because Judge Whyte hasn’t issue a ruling on that claim yet and even if no separate judgment has been issued, then that’s certainly inconsistent with my memory of the intent of the severance.”
Cherensky suggested that we wait for the hearing in San Francisco next week, then we can handle the motion here with a complete record. Judge Whyte asked what the difference is between Samsung’s spoliation claims here and in San Francisco. Cherensky said it relates to different claims because it isn’t a patent case. (I thought at this point this was in contrast to the Samsung position in trying to get CE for Delaware in San Francisco.) Cherensky said when Rambus had duty to preserve and what they had to preserve could be different in San Francisco.
Perry said what Samsung is telling Judge Kramer is directly contrary to what they told your honor, so your honor has a role to play to instead of waiting to see what happens next week. Perry noted that if we wait for next week, the Christmas holidays become an issue. Perry said Samsun’s claims in state court are exactly the same as here - anticipation of patent litigation, the patent prosecution files. Judge Whyte said he feels somewhat feel badly because he has not give the spoliation issue priority because he thought it had no practical impact on what would be tried in Sa n Francisco. He said Samsung’s position of trying spoliaiton issue in San Francisco because he hasn’t issue a ruling bothers him from two standpoints: His memory is that is not his understanding of the motivation of the stipulation, and give the issues were dismissed with prejudice by Judge Krame, it seems to him that that issue should be resolved.
Judge Whyte approximately said, “I guess the bottom line is that I am comfortable that Samsung cannot violate the order, I am not exactly sure of the wording of an order and I’d take some suggestions. I don’t have a problem with an order that in effect enjoins or restrains Samsung from taking position inconsistent with the stipulation or dismissal order. The issues tried here and not ruled on I would needs some briefing on the wording of the two complaints and refresh my memory and see what was said on the record. It also means that I should take some time within the next couple weeks and get that order out and then decide whether judgment should be separate.” To be clear, Judge Whyte seemed to indicate he would issue the Samsung spoliation ruling before the AT trial on January 11th.
Judge Whyte said there doesn’t seem to be any disagreement about what Samsung would do, at least with respect with the items Mr. Perry listed” (JEDEC and Steinberg). Judge Whyte continued, “Samsung runs the risk of being in contempt if it doesn’t comply.” Judge Whyte added, “I want to make it really clear, I think that if Samsung violates that order they are subject to contempt.”
Regarding briefing regarding whether Samsung could pursue claims regarding issues that had been tried, but not ruled on, the moving papers on the 24th of December, the opposition being served on Sat Jan 2nd, and filed on Jan 4. Judge Whyte said, “I think Mr. Cherensky you should pass on that with respect to those issues that were tried, I need to look at your briefing, but my memory is that Mr. Healey begged and pleaded for the severence and that was really clear that those matters were dismissed would not be brought up anywhere else. I think if Samsung tries to do that, that would be in violation of that order.