[On to rebuttal arguments about expert witnesses and damages].
Perry said that they had Mr. Tucker available Mr. Woo who can respond to some things Mr. McAlexander said that he hadn't said before in his deposition or his expert report. Also Mr. Ching.
HJM pointed out again that to be included in rebuttal, it has to be something Rambus lawyers couldn't reasonably anticipate in their case-in-chief. McAlexander was supposed to be their technical expert and Perry didn't understand why he was opining on damages. He's not a damages expert.
HJM: ".....he said it didn't work here and it didn't work there and, so, there's no damage. That's an inference."
Perry: "He wasn't a damages expert. He was a technical expert, and we were not able --"
HJM: "I would have to suggest to you that the issue of whether or not RDRAM was suitable for any or all segments of the market was front and center from day one. Yes?"
Perry: "Yes, Your Honor, it was."
HJM: "So why is it appropriate rebuttal?"
Perry: "Because they had multiple experts and industry witnesses and company witnesses, over 150, as I recall, witnesses on their witness list. We could not anticipate in our case the testimony of every single one of those. So when they decided in their case to bring a particular witness and have him say things that we had not anticipated, that's appropriate rebuttal."
HJM: "Saying things you don't anticipate is not the definition of rebuttal. The definition of rebuttal is they came up with some off-the-wall theory."
Perry: "Mr. McAlexander did, and tomorrow morning Mr. Eskovitz can come and explain to you exactly what Mr. McAlexander did that was off the wall and unexpected and wrong."
Nissly then chimed in that he'd like to speak to Mr. Woo too.
HJM: "You know what? This rebuttal thing is going nowhere. We're going to have to get specific offers of proof on specific items at the end of the case.........this whole document destruction adverse inference thing, I need a little guidance on what it is it means to reasonably anticipate your case-in-chief."
Perry was instructed to prepare for this. McBride gave him some extreme and theoretical, outlandish examples. [HJW sounded frustrated].
Perry assured HJM that Eskovitz would be there in the morning to explain everything to him.
[Price left the court at this saying, "This brainiac stuff I'm not good at."]
[Next topic is argument over the Cartwright Act in connection with jury instructions. Per Se and Rule of Reason are going to be hotly debated from here forward, especially tomorrow. This is big stuff and it is going to take some time for me to summarize---these are much bigger and richly-worded transcripts than previous exhibits that I have summarized. The needle is now definitely beginning to move on Per Se.]
Lifland (Hynix) said that the first instruction is the Cartwright Act definition of agreement. This would normally come after the instruction that deals with the basic Cartwright Act violation, whether it's rule of reason instruction or per se instruction.
The instructions are being taken point-by-point.
The first discussion begins with a focus on a Rambus instruction that suggests that there's evidence from which the jury could infer that Micron coerced Samsung to enter into this conspiracy based on the threat of further ITC, Department of Commerce, dumping charges at a 2000 meeting. Shields began to laugh, which angered Perry. Part of the defendants' arguments are that many of these things are not supported by CACI guidelines.
[Going forward, there will be more references to "CACI" which means California Advisory Committee on Civil Jury Instructions, or just California Civil Jury Instructions.]
Perry: "Your Honor, we understand it not being in CACI might mean it's not given, but we think it is a simple sentence that's consistent with the law and consistent with the case we've put on."
HJM: "Well, okay, I agree with that, but .............what am I covering that the jury needs guidance on?"
[Perry is arguing that there is more than one motive among the conspirators, which is going to influence the composition of the jury instructions. HJM does not agree.]
Perry: "The Defendants have argued that the conspiracy makes no sense because Samsung was making it and making money from making this stuff And Micron wasn't making it and Hynix was sort of sitting on the fence getting its feet wet; and, therefore, they couldn't have conspired because they would have had different incentives, different motives, different states of mind about whether or not RDRAM should succeed."
HJM: "No. At the end of the day, it's all about the big arrow that goes up when DDR takes over; right?"
Perry: "It's not all about that. It's all about the vanquishing of RDRAM, which is --"
HJM: "Exactly. Getting this pesky outfit off their backs. That's motive number one. So everybody takes a different seat at the table; right?"
HJM: "And motive number two is, after September when we've got them, then we all cut a fat hog on DDR; right?"
Perry: "And SDRAM, right."
HJM: "I don't see the different motives. I see different roles; right?"
Perry: "That's true."
HJM then formulated another not-quite-fitting analogy to illustrate his point, and Perry went along.
Next instruction is intentional interference. Easy one, according to HJM.
Next jury instruction item, the Cartwright Act. The parties' first four sentences are identical and then the defendants have additional language that is optional from the ABA (American Bar Assoc.) model instructions.
HJM asked Shields what the theory is on this "apportionment instruction". Shields explained that there's an order that was entered in this case by Judge Kramer where the defendants filed a Motion for Summary Judgment based on the SOL (statute of limitations). Judge Kramer ordered them to refile it as a MIL (Motion in Limine) and he ruled that, for the antitrust claim, all acts more than four years before the filing of the complaint were time barred and Rambus can only recover damages caused by acts of the defendants after the limitations cutoff which is May 5, 2000.
HJM, however, thought liability for a conspiracy attached all the way to the beginning of the conspiracy. The only cutoff would be damages. Shields said true for civil torts, but for antitrust, not true, as Judge Kramer specifically found in his order. It is in the green binder.
Shields then tried to assert that the apportionment language in defendants' proposed instructions is taken from the ABA model instruction that both sides used as a basis.
Watford (Rambus): "Your Honor, that is not correct. If you look at the ABA instruction at G2, the page they cite, it's talking about a completely different concept. It's talking about when the damages were sustained. Rambus is not seeking to recover damages for the period prior to the statute of limitations cutoff.
HJM: "When did the damages start here?"
Perry: "Your Honor, we used DDR sales as a benchmark after January 1st, 2001. So DDR sales after that point in time would have been RDRAM sales in our damages model.
HJM: "You mean to say that if I form a conspiracy in 1998 to fix prices in this and I commit acts ongoing after May 5th, 2000, which is only to call my coconspirators up and say, 'How are we doing, in other words, there are only acts of collecting the damages after May 5th, 2000, that the jury can't consider evidence of prior acts?"
Shields responded that the jury can consider evidence for some purposes-----for example, to show the formation of the alleged conspiracy. But they can't award damages based on those acts absent some exceptions, and there is a large body of law about when there's exceptions and they briefed all that in front of Judge Kramer.
Rambus' instruction is written in terms of when the damages were sustained and the defendants' instruction is written in terms of when the acts happened that caused the damage. It doesn't matter when the damage was sustained.
Shields then read Kramer's order: "Damages are limited to those occurring after May 4, 2000. Any damages occurring after May 4, 2000, must have been caused by acts of Defendants occurring after May 4, 2000."
So if the acts occurred before the cutoff but the damages occurred after the cutoff, that's not recoverable. If the acts occurred after and the damage occurred after, that's recoverable. If it's both, then it's apportioned.
But Watford disagreed, saying that it's not an issue of apportionment. There are two concurrent causes-----that some of the harm was caused in part by acts that occurred prior to May 5th, 2000, and part by acts that occurred afterwards. In that situation, as long as the damages that Rambus is trying to recover post SOL were caused in part by acts that occurred after that date, Rambus is entitled to recover 100 percent of its damages. Watford can give Court the citations that support that if they would be helpful.
What follows is many minutes of complex debate, the bottom line of which is:
1) When did Intel really change its roadmap according to all of the testimony?
2) When they did, was it the result of a conspiracy or not?
[Remember, this is all about jury instructions on damages].
Shields: "It is important that the jury understand that Rambus can recover only based on acts after May 5, 2000.
HJM: "Yes. But, you see, almost always when I give an instruction, I like to understand the evidentiary basis because the purpose of the instruction is to deal with the law that applies to the potential set of facts that can be found."
Shields: "Well, if Rambus is, as I think they must under Judge Kramer's order, disclaiming any claim for damages based on acts before May 5, 2000, then it is important the jury understand that the evidence that came in, and there's been a lot of evidence from the time period before, all those emails and all the testimony from Mr. Tabrizi and lots of stuff, it's important that they understand that that is not a basis for liability.
HJM did not accept his argument at that point. Nissly then jumped in. He said that Rambus has put in a lot of evidence that predates the statute of limitations period and it did so with the pretrial claim that this proved the conspiracy on which they were alleging.
Perry : We put in an instruction that follows Judge Kramer's order and the law.
HJM: All right. We'll find out. I got it now. [But this is still not decided.]
[End of PART B]