Rambus, Inc. v. Infineon Technologies Ag

• Decision Date: 15 December 2004
• Docket Number: No. CIV.A. 300CV524.,CIV.A. 300CV524.
• Citation: 348 F.Supp.2d 698
• Parties: RAMBUS, INC., Plaintiff, v. INFINEON TECHNOLOGIES AG, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

348 F.Supp.2d 698

RAMBUS, INC., Plaintiff, v. INFINEON TECHNOLOGIES AG, et al., Defendants.

No. CIV.A. 300CV524.

United States District Court, E.D. Virginia, Richmond Division.

December 15, 2004.

Michael W. Smith, Craig T. Merritt, R. Braxton Hill, Christian & Barton, L.L.P.,

Richmond, VA, Gregory P. Stone, Peter A. Detre, Munger, Tolles & Olson LLP, Los Angeles, CA, for Plaintiff.

Brian C. Riopelle, Robert M. Tyler, McGuire Woods, LLP, Richmond, John M. Desmarais, Gregory S. Arovas, Michael P. Stadnick, Kirkland & Ellis, New York, NY, for Defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

This matter is before the Court on the defendants' ("Infineon") Motion In Limine To Exclude Certain Documents (Docket No. 832) that Rambus, Inc. ("Rambus") proposes to offer into evidence at the trial of this action. For the reasons set forth below, the motion in limine is granted.

FACTS AND BACKGROUND

Rambus filed this action in August 2000. Discovery in this case closed in January 2001. A trial was held in May 2001. The judgment was appealed, affirmed in part, reversed in part, and remanded. On remand, Rambus and Infineon were accorded limited supplemental discovery, including, inter alia, all documents as to which production was previously requested, but which had not been produced. Rambus contends that the documents at issue are relevant to Infineon's claim of unfair business practices under the California Business & Professions Code Section 17200, which was added after the case was remanded.

Infineon filed the motion in limine to preclude Rambus from offering into evidence fourteen third-party declarations made pursuant to Federal Rule of Evidence 902(11) and 148 documents purportedly authenticated by those declarations. The 148 underlying documents were trial exhibits in a proceeding initiated by the Federal Trade Commission ("FTC") against Rambus.

The underlying documents were among some five hundred thousand pages of documents that were produced by DRAM manufacturers other than Infineon ("third parties") pursuant to subpoenas issued by the FTC and Rambus in the FTC proceeding. Production of the subpoenaed documents was pursuant to an FTC protective order so that until recently Infineon has not had access to the 148 documents that Infineon wants to use here and has never had access to the larger body of documents from which these few were selected by Rambus.

Rambus claims that the documents fall within the business records exception to the hearsay rule, Rule 803(6), and has offered purportedly authenticating declarations under Rule 902(11) in an effort to have them admitted. Infineon objects to the admission of those documents for several reasons. Infineon advances three grounds for its motion.

First, Infineon claims that these documents go beyond the scope of discovery authorized by the Court on remand. Second, Infineon argues that the declarations do not satisfy Rule 902(11) because they were produced too late to afford Infineon sufficient opportunity to challenge them, and because they fail to meet the specific requirements of Rule 902(11) and Federal Rule of Evidence 803(6). Third, Infineon claims that these documents should be excluded to the extent that Rambus intends to publish them to jury untethered to any witness testimony.

DISCUSSION

I. Rule 803(6) and Rule 902(11)

The starting point for assessing this motion is the text of Rules 803(6) and 902(11). Rule 803(6) excepts records of regularly conducted activity from the disqualifying consequence of the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Fed.R.Evid. 803(6). The rule was amended in 2000 to add that, in lieu of live testimony, the foundation for admissibility of a business record may be established by a certification that complies with Rule 902(11), which provides that:

The original or duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person ... certifying that the record—

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

Fed.R.Evid. 902(11).

Rules 803(6) and 902(11) go hand in hand. Making reference to Rule 803(6), the Advisory Committee Notes explain that Rule 902(11) "sets forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness."¹ Additionally, the Advisory Committee Notes to Rule 803 respecting the 2000 amendments, explain that Rule 902(11) "provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses."²

Thus, the most appropriate way to view Rule 902(11) is as the functional equivalent of testimony offered to authenticate a business record tendered under Rule 803(6) because the declaration permitted by Rule 902(11) serves the same purpose as authenticating testimony. Therefore, the declaration must satisfy the substantive criteria set forth in Rule 902(11) in order to lay a proper foundation for admission of the record. Unfortunately, there is very little decisional law respecting the meaning and application of Rule 902(11). However, because Rule 902(11) contains the same requirements, and almost the same wording, as Rule 803(6), decisions explaining the parallel provisions of Rule 803(6) are helpful in resolving the issues here presented. The fourteen declarations offered by Rambus will be considered with that in mind and thus the framework for analysis is whether each declaration meets the self-evident requirements of Rule 902(11) which are that:

a declarant, who is a custodian or other "qualified person," certify that the record "(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice."

Fed.R.Evid. 902(11).³

The theory behind the business records exception embodied in Rule 803(6) is that "[r]eports and documents prepared in the ordinary course of business are generally presumed to be reliable and trustworthy." Certain Underwriters at Lloyd's, London v. Sinkovich, 232 F.3d 200, 204-05 (4th Cir.2000). Records of that sort are considered trustworthy because "businesses depend on such records to conduct their own affairs; accordingly, the employees who generate them have a strong motive to be accurate and none to be deceitful" and secondly, because "routine and habitual patterns of creation lend reliability to business records." Id. at 205. In determining admissibility courts are to consider "the character of the records and their earmarks of reliability ... from their source and origin and the nature of their compilation." Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645 (1943).

A. The Declarant: A Custodian or Other Qualified Person

The first requirement of Rule 902(11) is that the declaration be made by a "custodian or other qualified witness." This requirement is not overly exacting. As explained by a leading evidence treatise, "the certification has to be executed by a person who would be qualified to testify as a custodial or other foundation witness." 5 Weinstein's Federal Evidence, § 803.08[8][b] (2d ed.2004).

The Fourth Circuit is in accord with the view expressed in Weinstein. See e.g., United States v. Porter, 821 F.2d 968, 977 (4th Cir.1987) (to be a "qualified witness" under Rule 803(6), one must be the custodian of records, or know the company's record keeping requirements) More recent decisions are to the same effect. For example, the Court of Appeals has held that a "qualified witness" is one "who has sufficient knowledge of the record-keeping system and the creation of the contested record to establish their trustworthiness." United States v. Hernandez, 1998 WL 841504, at *2 (4th Cir.1998) (unpublished) (finding that the witness was not "qualified" because he failed to "testify that he was familiar with the creation and maintenance of ... records"); see also United States v. Jacobs, 1995 WL 434827, at *1-2 (4th Cir.1995) (finding record inadmissible because the witness "did not testify that he was familiar with the creation and maintenance of the records"). The Fourth Circuit has also held that the term "qualified witness" is to be interpreted broadly, and requires "only someone who understands the system used to record and maintain the information... someone with knowledge of the procedure governing the creation and maintenance of the type of record to be admitted." United States v. Sofidiya, 1998 WL 743597, at *3 (4th Cir.1998) (unpublished) (finding bank employee qualified to lay foundation who was familiar with the procedure used to generate the bank records).⁴

The Fifth Circuit has taken a similar view, holding that the affiant need only have enough "personal knowledge to testify as custodian...