License to speed -- but not to shred

The most recent Intellectual Property Bulletin from Australian law firm Allens Arthur Robinson carries a usefully short summary by Sarah Matheson and Kelly Griffiths of the story so far in the saga of Micron Technology Inc. v Rambus Inc. This is a US action relating to the payment of royalties on patents which, thus far, Rambus ("Your license to speed") has not been able to enforce against Micron on the ground that the destruction of documents by Rambus rendered its patents unenforceable.

The plaintiff in these proceedings is actually Micron, which sought and obtained a declaratory ruling from the District Court of Delaware that, by intentionally destroying documents when litigation was reasonably foreseeable, Rambus knew, or should have known, that a general implementation of its document retention policy (sic) on certain "shred days" was inappropriate. Put simply, Rambus had failed in its duty to preserve potentially relevant evidence. In result of this conduct, which materially impugned the litigation process, Micron was materially prejudiced.
Rambus has appealed to the US Federal Court of Appeal. Meanwhile, other proceedings in Delaware and California in relation to similar facts involving Rambus and other parties have been stayed, pending the outcome of this appeal. The authors of this note add:

" ... Micron demonstrates the importance of considering the impact of any actual or anticipated litigation when formulating any document policies to ensure the preservation of potentially relevant documents".

This advice might seem obvious to patent attorneys, but shredding evidence makes perfect sense to the business community and the time to teach them good habits is long, long before litigation looms on the horizon.