[On to the Steinberg deposition].
Rambus has asserted a 350 and 352 objection to all of Micron's designations. Micron wants to try to establish that Mr. Steinberg gave incorrect testimony about when he was employed by Samsung just before he came to Rambus. The issue is whether or not there was an overlap in his employment and his time as an outside Counsel for Rambus, and that goes on for pages and pages and Perry has no idea why that issue is relevant at all to this case.
Shields responded that Mr. Steinberg testified in January of 2001 that he started working for Rambus in August 1998 and among the very first things he started doing for Rambus was preparing for patent litigation, involving SDRAM. When Rambus began preparing for litigation is a disputed fact in this case. Mr. Karp denied it. Other people denied it.
Later it was revealed, through subsequent depositions, that, in fact, he started working for Rambus earlier than that, in June 1998, while he was still working at Samsung; and that he, at a minimum, misspoke if not lied about it in a declaration in a letter to Samsung and in testimony. So his start date of when he started working on these things for Rambus is relevant, and the fact that he arguably misrepresented it is relevant.
Perry specifically named the start date as June 30th. According to Shields, the dates are important because Rambus’s first shred day was the very beginning of September in 1998 and there is a very big difference between after the first shred day and before the first shred day.
Perry then said that Steinberg was outside counsel based in Maryland in June, July, and August of 1998. (HJM: "Did they FedEx him a burlap sack?" Perry: "No."). He wasn't even on Rambus' e-mail system. Nissly said that the point is not whether he participated or not but when they started preparing for litigation.
HJM then wanted to read the depositions later in detail.
[On to the privilege issues. There was discussion whether to go off the record for this part but Perry agreed to stay on as long as specific items weren't mentioned in open court. All agree. For this reason, there will be some gaps in my reporting of this segment.]
The first privilege dispute is on Page 68 of the proposed order and it concerns Exhibit 7082 in the binder. They are now the sixth transcript, October 6th, 2004, long after Mr. Steinberg
had left Rambus.
Exhibit 7082 is an e-mail associated with the Steinberg testimony. Shields handed it up to HJM, but he could not read it out loud (privilege). He then refers to Micron's Posttrial Brief Regarding Rambus Litigation Misconduct and the Proper Sanction for Rambus Spoliation in an action called Micron versus Rambus in the United States District Court for District of Delaware. The relevant discussion is on Page 13 of the brief and the same exhibit, Exhibit 7082, is referenced there as MTX 581.
Perry disagreed that a link to a brief that’s publicly available, publicly filed, causes any waiver of any privileged communication at all even though the court and Judge Kramer have ruled otherwise.
In addition, he asserts, certainly not the entire document is subject to a waiver. Perry calrified that it had been posted in the litigastion update section of the Rambus corporate website.
HJM: "Available to anybody with an Internet connection in the world. So I found that to be an affirmative waiver and it reaches exactly what was posted, and that is exactly what is in the brief."
The question about the entirety of the document is the second layer. A reading of the brief says: (HJM reading) “On January 12, 2001, when Rambus was involved in litigation with Micron, Hynix, and Infineon, Steinberg sent an email to Rambus executives regarding a Rambus business plan that was found to not be confidential and, as a result, would be available to the public.” Footnote 34 takes it to MTX 581, which is the privileged email. The brief goes on after the footnote: (HJM reading) “In Steinberg’s email, he reveals his view that the Document Retention Policy was supposed to get rid of evidence in litigation.”
[Don't forget that this evidence is nothing new.]
HJM: "Mechanically and rigorously applying the Court’s prior rulings, one would say only the matter directly revealed in the brief is subject to the waiver and that can be presented to this jury. So your task, Mr. Perry, should you choose to undertake it, is to tell me what in the email would fall outside of that rubric."
[This is where I'm flying blind because I cannot see the full content of the e-mail and brief.]
Perry directed HJM to some specific lines in the material followed by a statement that this was a result of the email from Mr. Tate to Mr. Steinberg. "The email at the bottom was the original email and it has that subject line. That’s a request to [opposing] Counsel that’s not been waived in the subject line; and, so, the subject line reappears in Mr. Steinberg’s email."
HJM: "So you want the subject line out anywhere it appears?"
Perry: "Correct. There’s two places."
Shields disagrees, but HJM said that he is leaning toward redacting the subject line (and he eventually does).
Perry: "Also, in the second paragraph, the third and fourth sentences are not disclosed in the brief."
[A big debate ensues concerning each and every sentence in this paragraph under the scrutiny of all present. HJM sorts it all out with a considerable number of redacted items.]
[Next privilege disputed item. Flying blind again].
Perry objected to page 66, beginning in the middle of the page where it says: “Q. All right. So let me ask you follow-ups.” He asserts that the rest of Page 66 and all of Page 67 is work product.
[After considerable debate on all sides, Rambus' objection is overruled by HJM. We are not privy to the content of these pages].
The last privilege dispute exhibit starts on Page 87 of the proposed order. It’s Exhibit 6920 in the Court’s binder which is 1456 in the deposition.
Shield's handed up to HJM more paper from Micron’s Posttrial Brief in Delaware. This brief was dated August 4, 2008.
[Shields is offering the entire document as being subject to the waiver. A tense debate ensues about what should be subject to waiver. Hynix (Buckner) speaks up very assertively to add weight to the defendants' argument. Snippets of the conversation reveal that this section has to do with testimony related to negotiations with Intel and an email from Gary Harmon, but we cannot really know what Perry is arguing so passionately about. This argument is left unresolved as HJM wants to sit down and read all of this material later, on his own.]
Perry (to HJM): "They’re going to run a truck through this in closing argument and you’ll find out then how prejudicial it is and it’s not subject to a Web site waiver. This is very meaningful, Your Honor, given what they’ll do in closing on this one."
HJM: "So I’m going to read the whole thing and let you know."
[Last item for today is jury instructions. HJM confirmed that he had everyone's binders, and sarcastically commented on the considerable thickness of them].
(Proceedings adjourned at 4:29 p.m.)