Judge James McBride doesn’t trust the U.S. Court of Appeals for the Federal Circuit. 

In a ruling Tuesday in Rambus’s $4.38 billion antitrust case against archfoes Micron and Hynix, the San Francisco superior court judge said Micron and Hynix are not entitled to a jury instruction that Rambus destroyed documents as part of its legal strategy. As Dan Levine reports for Reuters, Judge McBride said he didn’t want to contradict a ruling by his superior court colleague Richard Kramer, who’s overseeing a parallel Rambus antitrust case. 

That was a strange conclusion for Judge McBride to reach, considering that circumstances are quite different now than when Judge Kramer ruled in 2009. Back then, there was a split between two federal district court judges on the question of whether Rambus destroyed documents as part of its litigation strategy. Delaware judge Sue Robinson, in Rambus’s patent case against Micron, ruled in 2007 that the company deliberately destroyed evidence on self-described “shred days.”  But San Jose federal district court senior judge Ronald Whyte, in the California branch of the Rambus patent war, had ruled in 2006 that Hynix couldn’t show Rambus expected litigation when it shredded tons (yes, tons) of potential evidence. So in 2009, when Micron asked Judge Kramer to issue a judicial order in the state court antitrust case based on Judge Robinson’s Delaware ruling, Kramer denied the request, finding that there wasn’t a “sufficiently clear” judicial determination of Rambus’s intent. 

But there is now. On May 13, in a pair of related opinions, the Federal Circuit essentially said the Delaware judge was right and the California judge was wrong. The appellate judges said Rambus anticipated litigation at least as early as December 1998, before the company held its second “shred day”. There’s no ambiguity in the Federal Circuit rulings, as both Micron’s Quinn Emanuel Urquhart & Sullivan lawyers and Hynix counsel from O’Melveny & Myers argued in briefs to Judge McBride in the California state antitrust case. 

“The Federal Circuit’s opinions provide a final and definitive ruling,” the Micron brief says. “[The appellate decisions] change the playing field for purposes of Micron’s request for collateral estoppel. As a result of these opinions, the narrow relief requested in this motion is warranted, and Judge Kramer’s statements in the context of prior motions are not an obstacle.” 

The Hynix brief reminds Judge McBride that he should accept the Delaware and Federal Circuit findings even though they came in patent cases and he’s overseeing an antitrust case. “Once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving the party to the prior litigation,” the brief says. (OTC e-mailed and called Rambus’s spokesperson to request Rambus’s collateral estoppels brief and comment on McBride’s ruling, but didn’t hear back.) 

Judge McBride nevertheless opted to side with Judge Kramer. “I don’t find any reason to change [his] original ruling,” McBride said, according to Dan Levine’s story. (The judge did not issue a written opinion but ruled from the bench.)

McBride's ruling means jurors in the antitrust trial won't be instructed that as a matter of law, Rambus has been found to have destroyed documents deliberately. It doesn't mean, though, that Hynix and Micron can't show jurors evidence of Rambus's so-called shred days. "We look forward to presenting these facts to the jury at trial," Micron general counsel Rod Lewis told Levine.

And that's why Judge McBride's decision may end up helping Hynix and Micron, not hurting them. This trial is expected to last for months, with 12 jurors and six alternates hearing complicated antitrust evidence. When Micron and Hynix put on their by now well-honed evidence of Rambus "Shredding Parties" (another Rambus-coined phrase), jurors will probably drink it in like desert wanderers stumbling upon an oasis. Jurors don't remember the details of expert testimony about restricted production and price collusion. They remember shredding parties that consumed tons of potentially damaging documents.

Jury selection is expected to conclude Wednesday or Thursday. Opening statements should take place this week. Don't be surprised if Hynix and Micron make "shred days" a centerpiece of their initial presentation to jurors.

(Reporting by Alison Frankel)