On February 17, 2011, ALJ Theodore R. Essex issued the public version of Order No. 13 (dated February 11, 2011) granting a stipulated proposal by Complainant Rambus Inc. (“Rambus”), all Respondents, and the Commission Investigative Staff regarding the piercing of privilege and production of privileged Rambus documents in Certain Semiconductor Chips and Products Containing  Same (Inv. No. 337-TA-753).

According to the order, all parties sought to apply Order No. 15 from Investigation No. 337-TA-661 to the instant investigation.

By way of background, Rambus was ordered by ALJ Essex in Order No. 15 in Investigation No. 337-TA-661 to produce various documents relating to the destruction of documents by Rambus, prosecution of patents-in-suit, and prior art.  According to Order No. 15, ALJ Essex determined (1) that the crime-fraud exception applied because “[t]he record shows that Rambus consulted with its attorneys regarding its document retention policy, which resulted in the destruction of evidence, which Rambus knew or should have known would be relevant in forthcoming litigations,” and (2) Rambus waived privilege after voluntarily disclosing certain documents relating to its document retention policy.  See our December 17, 2010 post for more details.

According to Order No. 13, ALJ Essex determined that Order 15 from Investigation No. 337-TA-661 is also controlling in Investigation 337-TA-753, and that Rambus must produce to the Respondents in Investigation 337-TA-753 all documents covered by Order 15.  According to Order No. 13, ALJ Essex based his determination on and took into account (1) the overlap of three patents in Investigations 337-TA-661 and 337-TA-753; (2) the parties’ desire to proceed with discovery as expeditiously as possible, including Respondents’ desire for the production of documents covered by Order No. 15; (3) the inefficiency that would result from further briefing on the issues that were the subject of Order No. 15; and (4) the appeal by Rambus of Order No. 15 and its desire to reinstate the privileged status of those documents.