DBall Law Office

Can You Shred Before Filing Suit? Not A Good Idea.

admin — Mon, 16 Feb 2009 17:18:21 +0000

In Micron Technology, Inc. v. Rambus Inc., Civ. No. 792-SLR (January 9, 2009), the U.S. District Court for the District of Delaware held that Rambus could not enforce 12 patents against Micron because it had intentionally destroyed documents prior to filing its lawsuit. The destruction of documents in the context of anticipated or ongoing litigation is call “spoliation of evidence.” Here, Rambus’ spoliation was extensive and in bad faith. Rambus adopted a company wide document retention policy and employees participated in a “Shred Day”. After retaining outside patent counsel and identifying potential litigation targets, Rambus instructed its outside counsel to purge their patent files and Rambus employees participated in a second “Shred Day.” The District Court found that the document retention policy was adopted with litigation in mind, and Rambus should have known that some of the documents being destroyed in the second “Shred Day” would have been material and discoverable in the litigation against Micron. The District Court found that Rambus had a duty to preserve the relevant documents instead of purging them. The sanction entered against Rambus for its bad faith spoliation of evidence was an order barring Rambus from enforcing its patents against Micron.

2008 FINRA Arbitration “Win” Statistics

admin — Fri, 13 Feb 2009 19:56:42 +0000

Prospective clients frequently ask me about their “chances” in securities arbitration. FINRA reports the “win” rate of customer initiated arbitrations. For the past decade, the “win” rate has never been more 50%. I recall that in the late 80s and early 90s, the “win” rate was occasionally in the 51% – 54% range. FINRA recently reported the statistics for arbitration cases filed in 2008 compared to prior years. In 2008, the “win” rate for customer initiated arbitrations that actually went to a hearing and were decided by the arbitrators was 42%. That was up from 36% in 2007, but was comparable to the 2006 statistics. It is not a very high percentage, but one argument is that the better cases settle before going to hearing and the weaker cases actually get tried and decided by the arbitrators. You have to keep in mind, however, that a “win” is any amount decided in favor of the customer. If a customer is awarded 10% of his or her damages, that is considered a “win.” It is very infrequent that a customer is awarded 100% of his or damages. For a link to the 2008 FINRA statistics, click here:

http://www.finra.org/ArbitrationMediation/AboutFINRADR/Statistics/index.htm

Legal Alerts And Newsletter Content

admin — Tue, 10 Feb 2009 17:00:08 +0000

The Legal Blog of Ball Law Offices, P.C. features legal alerts, developments in the law, and newsletter content appropriate for the practice areas of the firm.