Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. Samsung Electronics Co., Ltd. (“Samsung”) has moved for an award of attorney’s fees against Rambus Inc. (“Ram-bus”), under 35 U.S.C. § 285 and the Court’s inherent power. In deciding whether an award of attorney’s fees is appropriate under § 285, it is necessary to determine whether this is an exceptional case. For the reasons set forth below, the Court finds that this is an exceptional case, but that an award of attorney’s fees to Samsung is not appropriate under either § 285 or the Court’s inherent power. FACTUAL AND PROCEDURAL BACKGROUND Samsung filed this action seeking a declaratory judgment, inter alia, that four patents held by Rambus are unenforceable by virtue of the doctrines of unclean hands, equitable estoppel, patent misuse, waiver, laches, and laches in the United States Patent and Trademark Office (“PTO”). The patents-in-suit were the same as the four patents-in-suit in Rambus, Inc. v. Infineon Technologies AG, No. CIV. A. 3:00cv524 (E.D.Va.) (“Rambus v. Infineon”): (1) U.S. Pat. No. 5,953,263 (“the ’263 Patent”); (2) U.S. Pat. No. 5,954,804 (“the ’804 Patent”); (3) U.S. Pat. No. 6,032,214 (“the ’214 Patent”); and (4) U.S. Pat. No. 6,034,918 (“the ’918 Patent”). Rambus asserted counterclaims against Samsung, alleging infringement of the ’263 and the ’918 patents. A. Rambus v. Infineon Litigation Rambus develops and licenses technology to companies that manufacture semiconductor memory devices. Its patents are directed to various dynamic random access memory devices (“DRAMs”), Ram-bus DRAMs (“RDRAMs”), Synchronous Dynamic Random Access Memory (“SDRAM”), and Double Data Rate Synchronous Dynamic Random Access Memory (“DDR-SDRAM”). See Rambus, Inc. v. Infineon Tech. AG, 164 F.Supp.2d 743, 747-48 (E.D.Va.2001). Beginning in early 1998 and continuing through 1999 and 2000, Rambus developed, refined, and implemented a patent licensing and litigation strategy, which was aimed at several specifically identified DRAM ‘ manufacturers. Among the targeted DRAM manufacturers were Infineon, Samsung, and Hynix Semiconductor, Inc. (“Hynix”). Pursuant to that strategy, in June 2000, Rambus asserted, 'in this Court, patent infringement claims against Infineon with respect to the same four patents-in-suit that were at issue in Samsung’s action for declaratory judgment. After extensive discovery and issuance of a claim construction opinion, there was a two week trial on Rambus’ infringement claims, as well as Infineon’s counterclaims. Ultimately, the judgment was appealed to the United States Court of Appeals for the Federal Circuit, which affirmed in part, reversed-in part, and-remanded for further proceedings. Additional discovery was conducted at that time and, during those proceedings, it was determined that spoliation of documents by Rambus warranted the piercing of Rambus’ attorney-client privilege and work product protection. See Rambus, Inc. v. Infineon Tech. AG, 222 F.R.D. at 296-99. Subsequent discovery was permitted on the issue of spoliation and other issues. In February 2005, a bench trial was held on Infineon’s defense of unclean hands, which was based on Rambus’ alleged spoliation of evidence and other litigation misconduct. Simultaneously, a corollary evi-dentiary proceeding was held with respect to spoliation of evidence, for which a sanction- of dismissal was requested. At the conclusion of the trial of those issues, the Court ruled from the bench that Infineon had proven, by clear and convincing evidence, that Rambus was liable for unclean hands, thus barring Rambus from enforcing the four patents-in-suit. Additionally, the Court ruled that Infineon -had proven, by -clear and convincing evidence, that Rambus had spoliated evidence, for which dismissal was the appropriate sanction. Following that ruling, and before the Court issued findings of fact and conclusions of law, Rambus and Infineon settled the case: ■ B. Background And Procedural History Of This Action Also pursuant to its licensing and litigation strategy, and while Rambus was prosecuting'its actions against Infineon, Rambus entered license negotiations with Samsung., In October 2000, the parties entered into a license agreement that covered, inter alia, the patents-in-suit in Samsung’s action for declaratory judgment. See Samsung Electronics Co., Ltd. v. Rambus Inc., 386 F.Supp.2d 708, 712 (E.D.Va.2005). Samsung and Rambus amended that license agreement in 2001 because of developments in the litigation between Rambus and Infineon. See id. Samsung and Rambus began to renegotiate -the terms of the license agreement in July 2004. As part of those negotiations, the -parties discussed a so-called “Standstill Agreement” by which any litigation over the' license agreement would be delayed for a year while negotiation continued. However, the negotiations did not go to the liking of Rambus. On June 6, 2005, when Samsung refused to accede to Ram-bus’ demand for a contract provision that would allow. Rambus to file litigation first in the venue of its choice, Rambus terminated the discussions respecting an extension of the license agreement and the license agreement itself. Simultaneously, Rambus filed a patent infringement action against Samsung in the United States District Court for the Northern District of California. See id., at 713-15. In that action, Rambus claimed that Samsung was infringing, inter alia, the ’263 and ’918 patents that were at issue in Rambus v. Infineon and in this action. On June 7, 2005, one day after Rambus brought patent infringement claims against Samsung in the Northern District of California, Samsung filed this action for declaratory judgment, and filed its First Amended Complaint shortly thereafter. See id. at 712. Samsung’s complaint and the amended complaint proceeded on the clearly articulated theory that the decision on the spoliation and unclean hands issues in Rambus v. Infineon barred any claim for infringement of the patents-in-suit. On July 12, 2005, Rambus counterclaimed alleging infringement of the ’263 and ’918 patents. Pursuant to 28 U.S.C. § 1404(a), Ram-bus also moved to transfer this action to the Northern District of California so that Rambus could press the infringement claims in its chosen venue. At an eviden-tiary hearing on that motion, it was established that the General Counsel of Rambus had been directed by the company’s management to avoid litigation in this district and to assure that Rambus controlled the selection of forum for any litigation between Samsung and Rambus. Samsung Electronics Co., Ltd. v. Rambus Inc., 386 F.Supp.2d 708, 713 (E.D.Va.2005). Indeed, it was for that reason that Rambus terminated the license renegotiation with Samsung and precipitously sued Samsung in the Northern District of California. Samsung Electronics, 386 F.Supp.2d at 713, 723. On August 5, 2006, Samsung moved for partial summary judgment on the issues of spoliation and unclean hands. Samsung argued that the Court’s bench ruling in Rambus v. Infineon with respect to Ram-bus’ spoliation and unclean hands should be given collateral estoppel effect and consequently that the four patents-in-suit were unenforceable. A briefing schedule was set for Samsung’s motion for partial summary judgment, and argument was set for September 21, 2005. C. Covenants Not To Sue On September 6, 2005, six days before responding to Samsung’s motion for partial summary judgment, Rambus filed an “unconditional” and “irrevocable” covenant not to assert patent infringement claims against Samsung with respect to the ’804 and ’214 patents (“First Covenant”). The First Covenant expressly extended to actions in the International Trade Commission as well. The scope of the First Covenant extended to “any and all methods, processes, and products made, used, offered for sale, sold, or imported by Samsung currently or at any time prior to the date of this covenant.” However, the First Covenant did not extend to any other patents held by Rambus, related or unrelated, and Rambus expressly declined to concede the merits of Samsung’s allegation that the ’804 and ’214 patents were unenforceable and invalid. On September 12, 2005, Rambus filed its opposition to Samsung’s motion for partial summary judgment on the theory of unclean hands based on spoliation. On September 13, 2005, Rambus and Samsung stipulated that the First Covenant “eliminates any need for declaratory relief that Samsung may have had with respect to the ’804 Patent and the ’214 Patent.” Stipulation (Docket No. 42). Samsung, however, reserved its right to request that the Court declare the case exceptional and order Rambus to pay Samsung’s attorney’s fees under 35 U.S.C. § 285. Rambus expressly reserved the right to oppose such relief, and to argue that the First Covenant moots such relief. The stipulation also provided that Samsung’s declaratory judgment action with respect to the ’804 and ’214 patents was to be dismissed without prejudice. On September 14, 2005, Rambus’ motion to transfer this action to the Northern District of California was denied. On the same date, counsel were ordered to confer about procedures to expedite the trial of this action and to report the results thereof to the Court on September 21, 2005. On September 20, 2005, Samsung filed its reply brief on its motion for partial summary judgment. . On September 21, 2005, the- Court gave notice of its intent to take judicial notice of the record of the spoliation and unclean hands bench trial in Rambus v. Infineon. The hearing on Samsung’s motion for partial summary judgment was rescheduled to September 28, 2005. Also, on September 21, 2005, Mr. John Danforth, Rambus’ General Counsel, signed a second covenant not to sue Samsung (“Second Covenant”), this time with respect to the ’263 and ’918 patents. The Second Covenant was filed with the Court on September 22, 2005. The language in the Second Covenant with respect to the covenant not to sue is identical to the language in the First Covenant. Rambus used the Second Covenant as a vehicle to withdraw its counterclaims in this action as well as its claims against Samsung in the Northern District of California, Rambus Inc. v. Samsung Electronics Co., Ltd., et al., Case. No. C-05-02298-RMW (N.D.Cal.), which asserted infringement of the ’263 and ’918 patents. Rambus’ counterclaims in this action were dismissed with prejudice by Order entered on September 28, 2005. On September 28, 2005, the parties argued Samsung’s motion for partial summary judgment. The motion was then submitted for decision. . Contemporaneous with the filing of the Second Covenant, on September 21, 2005, Rambus filed its motion to dismiss Samsung’s declaratory judgment action for lack of subject matter jurisdiction under Fed.R.Ciy.P. 12(b)(1). Rambus contended that the First and Second Covenants (“Rambus Covenants”) moot any case or controversy, thereby depriving the Court of subject matter jurisdiction, including jurisdiction, to rule on Samsung’s request for attorney’s fees. Notwithstanding its- argument on the latter point, on October 3, 2005, Rambus made a written offer to Samsung to pay reasonable attorney’s fees incurred by Samsung in this action. In Rambus’ view, that offer along with the Rambus Covenants “afford[ed] Samsung all of the relief to which it may otherwise be entitled in this action and therefore moots any fiur-ther proceedings on the merits of any of Samsung’s claims, including its allegations that this action qualifies as an exceptional case entitling Samsung to recover its reasonable attorney’s fees.” However, in making its settlement offer, Rambus expressly declined to concede the merits of Samsung’s allegations. Samsung argued that the Court retained jurisdiction not only to decide whether Samsung was entitled to payment of attorney’s fees under 35 U.S.C. § 285 and the Court’s inherent powers, but also to issue declaratory relief by ruling on Samsung’s motion for partial summary judgment. On November 8, 2005, the declaratory judgment action was dismissed without prejudice as moot. The motion to dismiss Samsung’s claim for attorney’s fees was denied. See Samsung Elec. Co. v. Rambus Inc., 398 F.Supp.2d 470 (E.D.Va.2005). With respect to Samsung’s claim for attorney’s fees, the Court then set a schedule for submission of the Rambus v. Infineon record, for briefing the issue of attorney’s fees, and for submission of proposed findings of fact and conclusions of law on the issue of exceptionality. A hearing was set for December 15, 2005. D. Offer of Judgment On November 29, 2005, Rambus made an offer of judgment to Samsung under Fed.R.Civ.P. 68 for the amount of Samsung’s attorney’s fees of $476,542.30, plus the full amount of any reasonable additional attorney’s fees and costs incurred by Samsung in connection with this action after Samsung’s November 22, 2005 filing, in which Samsung had specified the amount of attorney’s fees it had incurred as of that date. Rambus argues that its offer of judgment with respect to attorney’s fees moots the Court’s jurisdiction to decide to impose sanctions under 35 U.S.C. § 285 and the Court’s inherent power. For the reasons set forth in the accompanying Memorandum Opinion (Docket No. 133), the Court finds that Rambus’ offer of judgment has not divested the Court of jurisdiction to determine whether sanctions are appropriate in this case. Additionally, for the reasons set forth in the accompanying Memorandum Opinion (Docket No. 134), the Court finds that Samsung is a prevailing party under § 285. Thus, there remains for decision whether this is an exceptional case, and whether an award of attorney’s fees under § 285 or the Court’s inherent power is appropriate. DISCUSSION I. EXCEPTIONAL CASE A. Standard “The determination of whether a case is exceptional and, thus, eligible for an award of attorney fees under § 285 is a two-step process.” Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1460 (Fed.Cir.1998). It is first necessary to determine whether exceptionality has been proved by clear and convincing evidence. If the case is determined to be exceptional, then it is necessary to assess whether it is appropriate to impose the sanction of attorney’s fees. See id. An award of attorney’s fees under § 285 serves two purposes. First, it “compensate[s] the prevailing party for its monetary outlays in the prosecution or defense of the suit,” Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir.1983), “where it would be grossly unjust that the winner be left to bear the burden of his own counsel which prevailing litigants normally bear.” Badalamenti v. Dunham’s Inc., 896 F.2d 1359, 1364 (Fed.Cir.1990) (quoting J.P. Stevens Co. v. Lex Tex Ltd., 822 F.2d 1047, 1052 (Fed.Cir.1987)) (emphasis in original). Second, and of equal, if not greater, importance, the sanction serves to deter parties from bringing or prosecuting bad faith litigation, see Mathis v. Spears, 857 F.2d 749, 754 (Fed.Cir.1988). The sanction thus protects litigants, the courts, and the judicial process from abuse. “A case may be deemed exceptional when there has been some material inappropriate conduct related to the matter in litigation, such as willful infringement, fraud or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation, conduct that violates Fed.R.Civ.P. 11, or like infractions.” Brooks Furniture Manf'g, Inc. v. Dutailier Int'l, Inc., 393 F.3d 1378, 1381 (Fed.Cir.2005) (emphasis added). However, “[ajbsent misconduct in conduct of the litigation or in securing the patent, sanctions may be imposed against the patentee only if both (1) the litigation is brought in subjective bad faith, and (2) the litigation is objectively baseless.” Id. (citing Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (defining “sham” litigation)). The Federal Circuit has declined to expand the scope of exceptional cases to include “a patentee’s bad-faith business conduct toward an accused infringer prior to litigation.” Forest Laboratories, Inc. v. Abbott Laboratories, 339 F.3d 1324, 1329 (Fed.Cir.2003). Samsung contends that this is an exceptional case for two reasons. First, Samsung argues that Rambus engaged in the spoliation of evidence as part of its plans for litigation against the DRAM industry, including Samsung. Indeed, Rambus was found to have done precisely that in Rambus v. Infineon. Based in part on that spoliation, Rambus was found in that case to have had unclean hands that barred enforcement against Infineon of the two patents-in-suit in Rambus’ counterclaims. For the reasons outlined in full in Part II, the Court finds that Rambus did in fact spoliate evidence relevant to the patent infringement claims in its counterclaims and at a time when Rambus anticipated litigation with DRAM manufacturers generally and Samsung specifically. Second, Samsung contends that Rambus engaged in misconduct by gaming the system when it filed counterclaims alleging infringement of the patents-in-suit, enforcement of which had been barred by the findings of spoliation and unclean hands in Rambus v. Infineon. According to Samsung’s second theory of exceptionality, Rambus had no intention of ever litigating its counterclaims in this forum. Samsung charges that Rambus has attempted to game the court system by asserting the counterclaims merely to bolster its argument for transferring this action (including Samsung’s action for declaratory judgment) to the Northern District of California, where Rambus had already asserted infringement claims with respect to the same two patents. After the motion to transfer was denied and the motion for partial summary judgment had been fully briefed, Rambus provided covenants not to sue with respect to the ’263 and ’918 patents and voluntarily dismissed its counterclaims with prejudice. Samsung contends that this was an attempt to manipulate the court system, thus providing an independent basis for treating this case as exceptional. B. Pre-Filing Spoliation As A Basis For Exceptionally The first question that must be addressed is whether the spoliation alleged by Samsung, which occurred several years before Rambus filed its counterclaims, constitutes misconduct in the conduct of the litigation within the meaning of Brooks Furniture. According to Rambus, intentional spoliation of evidence that occurs before the commencement of litigation, which is marked by the filing of the relevant claim (here Rambus’ counterclaim), does not constitute misconduct during the litigation, or, “misconduct in conduct of litigation,” as the Federal Circuit put it in Forest Laboratories. Consequently, Ram-bus asserts that Samsung must satisfy the exceptional case standard for vexatious or unjustified litigation set forth by the Federal Circuit in Brooks Furniture. Thus, Rambus argues that Samsung must prove that Rambus filed its counterclaims in subjective bad faith and that the counterclaims were objectively baseless in order to demonstrate exceptionality under § 285. See Brooks Furniture, 393 F.3d at 1381. Given that the parties have framed the applicable legal standard so differently, the Court must first decide whether the intentional destruction of discoverable evidence at a time when the party anticipated litigation, or reasonably should have anticipated litigation, constitutes misconduct during litigation, notwithstanding the fact that no claim has been filed at the time of spoliation. Rambus’ argument, that pre-filing spoliation can only support an exceptional case finding if its counterclaims amounted to sham litigation, requires a tortured reading of Forest Labortories, the decision on which Rambus principally relies. In Forest Labortories, ONY, Inc. and Forest Laboratories, Inc. sought a declaratory judgment of noninfringement and invalidity of two patents, to which Abbott held an exclusive license. Abbott and the patent holder counterclaimed for infringement of the two patents. After trial, the district court awarded the plaintiffs a judgment of noninfringement as a matter of law and held that the defendants were equitably estopped from asserting infringement of the patents against the plaintiffs. The district court found that Abbott had, in bad faith, misled ONY and Forest to believe that it would not assert infringement of the two patents, by encouraging the continued development of the allegedly infringing product and by neglecting to inform the plaintiffs of possible infringement. Based on the conduct underlying the equitable estoppel finding and its determination that Abbott had pursued its counterclaims with reckless disregard for the facts, the district court found the case to be exceptional and awarded attorney’s fees to the plaintiffs under § 285. The Federal Circuit reversed the finding of exceptionality, holding that bad faith business conduct toward an accused in-fringer prior to litigation was not the sort of misconduct on which a court could ground an exceptional case finding. While the Federal Circuit acknowledged that such conduct might support a finding of equitable estoppel, it declined to extend “the consequences to include attorney fees under the rubric of exceptional case.” Forest Laboratories, 339 F.3d at 1329. From that holding, Rambus attempts to extrapolate the general proposition that no misconduct that occurs prior to the filing of a claim, other than inequitable conduct in the procurement of a patent, can form the basis of an exceptional case finding. Rambus’ broad reading of the holding in Forest Labortories strains the Federal Circuit’s language far beyond its logical import. In fact, the Federal Circuit has yet to rule on the question whether pre-filing spoliation of evidence in anticipation of litigation constitutes litigation misconduct that can form the basis for a finding of exceptionality. However, in Molins PLC v. Textron, Inc., 48 F.3d 1172 (Fed.Cir.1995), the Federal Circuit confronted such a scenario, and did not overturn the district court’s finding that pre-filing document destruction constituted litigation misconduct. In Molins, the district court held that the plaintiffs patents were unenforceable as a result of inequitable conduct before the Patent and Trademark Office. The court awarded attorney’s fees under § 285, finding the case to be exceptional as a result of the plaintiffs inequitable conduct before the P.TO and as a result of the plaintiffs litigation misconduct. With respect to litigation misconduct, the district court found that employees of the plaintiff had destroyed records pertaining to the prosecution of one of the patents after the plaintiff had begun contemplating litigation, thereby “precluding any potential defendant from conducting full and fair discovery.” See id. at 1186. According to the plaintiff, the destroyed records were abandoned foreign patent files. The Federal Circuit noted that “[c]om-panies are entitled to maintain file destruction programs without being found to have improperly destroyed evidence,” but deferred to the district court’s judgment as to whether the “destruction was part of an established and legitimate records disposal program.” Id. District courts are “in the best position to monitor parties’ litigation conduct,” and are “the most injured by misconduct at the pretrial and trial stages.” Id. (quoting Rolls-Royce Ltd. v. GTE Valeron Corp., 800 F.2d 1101, 1111 (Fed.Cir.1986)). The Molins court found no clear error in the district court’s findings of litigation misconduct, but because it had reversed some of the district court’s findings with respect to inequitable conduct before the PTO, the Federal' Circuit remanded the case to the district court to reassess the award of attorney’s fees. The Federal Circuit directed the district court to reconsider its exceptional case finding and award of attorney’s fees in light of these holdings. Given the Federal Circuit’s remand and the subsequent settlement, Molins is certainly not controlling precedent. However, Rambus unduly minimizes the effect, of Molins. Rambus contends that, at best, Molins supports the proposition that a district court may consider pre-filing spoliation in determining whether the paten-tee’s infringement claims were brought in subjective bad faith and were objectively baseless. However, the Federal Circuit’s decision cannot be read to foreclose a district court’s reliance on pre-filing spoliation in considering misconduct during the litigation. Moreover, the court certainly did not hold that spoliation .could be the basis for a finding of exceptionality only on a finding that the litigation was vexatious or unjustified. Indeed, the Federal Circuit’s mandate to the district court expressed no concerns or hesitation with respect to grounding an exceptional case finding on a plaintiffs pre-filing destruction of evidence at a time when the plaintiff contemplated litigation. And, one might reasonably conclude from the Federal Circuit’s discussion that pre-filing spoliation would constitute litigation misconduct that could support a finding of ex-ceptionality. In fact, Judge Nies dissented in part on the view that remand was unnecessary because the plaintiffs “destruction of documents, which outright precluded full and fair discovery,” was itself the kind of action that warrants “an award of attorneys fees in the interests of justice and the fair allocation of the burdens of litigation.” Id. at 1192 (Nies, J., dissenting in part). The majority simply considered remand to be thé more prudent course in light of the fact that it had reversed one of the other grounds on which the district court had rested the exceptional case finding. It is important to place the Federal Circuit’s decision in Brooks Furniture in its proper context by recalling that the Brooks Furniture test was based on the Supreme Court’s definition of sham litigation in Professional Real Estate Investors. It follows that the Federal Circuit’s aim was to formulate a test to guide exceptional case determinations when the sole ground asserted for exceptionality is vexatious or unjustified litigation. It defies common sense, however, to extend the Federal Circuit’s pronouncement with respect to vexatious or unjustified litigation in Brooks Furniture to pre-filing litigation misconduct. There is no logic to Rambus’ proposed rale that sanctions may be imposed under § 285 for pre-filing litigation misconduct only if that misconduct meets the standard for sham litigation. In reality, parties often contemplate and plan litigation long before the filing of a claim. As the district court found in Mo-lins, pre-filing destruction of evidence can preclude any potential defendant from a full and fair opportunity to conduct discovery crucial to the defense of a patent infringement claim. To allow a party, which was anticipating litigation, to avoid sanctions under § 285 because it had the foresight to commit the spoliation of evidence before filing its infringement claim would be utterly irrational and would defeat the very purpose for which the judicial system condemns spoliation of evidence. The judicial abhorrence of spoliation is based on the need to protect the integrity of the judicial system. As the Fourth Circuit has clearly explained, “[t]he policy underlying [the spoliation doctrine] is the need to preserve the integrity of the judicial process in order to retain [society’s] confidence that the process works to uncover truth.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). This is not mere hyperbole. The “[d]estraction of evidence undermines two important goals of the judicial system— truth and fairness.” Lawrence B. Solam & Stephen J. Marzen, Truth & Uncertainty: Legal Control of Destruction of Evidence, 36 Emory L.J. 1085, 1138 (1987). As the authors so accurately observe: Evidence destruction impedes the search for truth because it creates inaccuracy if the fact of destruction is unknown and uncertainty if the fact of destruction is revealed. Destruction of evidence is unfair because it potentially creates inequality of access to information. Id. at 1138. It is difficult to imagine conduct that is more worthy of being considered, litigation misconduct or more worthy of sanction than spoliation of evidence in anticipation of litigation because that conduct frustrates, sometimes completely, the search for truth. And, it creates extra expense in the judicial process in the effort to uncover that which has been destroyed. The rule urged by Rambus — that the sanction of an attorney’s fees award cannot be imposed if the spoliation precedes anticipated litigation — would rightly hold the judicial system up to scorn and ridicule. Thus, the Court finds that where a pat-entee has destroyed evidence before the filing of an infringement claim, but at a time when the patentee anticipated, or reasonably should have anticipated, litigation, that spoliation constitutes misconduct during the litigation within the meaning of Brooks Furniture, which after all permits a finding of exceptionality “when there has been some material inappropriate conduct related to the matter in litigation.” Brooks Furniture, 398 F.3d at 1381. It is nonsensical to assert that the fees incurred by Rambus’ litigation targets in dealing with those issues cannot be awarded (if they are otherwise awardable) merely because Rambus destroyed the evidence before it engaged in litigation. Nothing-in Brooks Furniture or Forest Laboratories suggests that the Federal Circuit has countenanced such a result. Thus, it is not appropriate to employ the standard for a finding of sham litigation where the ground asserted for the exceptional case finding is pre-filing spoliation in anticipation of litigation. Consequently, it is necessary for the Court to examine whether the record supports a finding of spoliation against Ram-bus in regard to its anticipation of-litigation with Samsung; and if so whether that spoliation makes this an exceptional case. II. LITIGATION MISCONDUCT A. The Record Respecting The Spoliation Issue The issue respecting the alleged spoliation of evidence by Rambus has been fully developed in discovery in two cases: Rambus v. Infineon and Hynix Semiconductor, Inc. v. Rambus. Inc., No. CC-00-20905, United States District Court for the Northern District of California (“Hynix v. Rambus”). In each case, there has been a complete trial involving scores of witnesses and hundreds of exhibits. Samsung eschewed further discovery on the issue whether Rambus engaged in the spoliation of evidence, choosing instead to rely on the record from the trial of the spoliation and unclean hands issues in Rambus v. Infineon. Rambus opposed consideration of that-record evidence, and proposed some additional discovery. The proposal for additional discovery was rejected because the proposed discovery did not relate to whether Rambus had engaged in spoliation of evidence. For example, much of the proposed discovery was directed to whether Samsung has committed intentional spoliation of evidence. Citing to the finding’ of spoliation entered against Samsung in Mosaid Techs. Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 338-339 (D.N.J.2004), Rambus argues that Samsung destroyed technical emails on a rolling basis for three years with respect to the DRAMs and DRAM technology at issue in Rambus’ infringement counterclaims. According to Rambus, if it had had the opportunity to take discovery on Samsung’s email destruction, it could have proven Samsung’s unclean hands. Rambus grounds this contention oh the proposition that “unclean hands can be asserted in opposition to an equitable defense as well as being asserti-ble as a defense to a claim for equitable relief.” Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1022 (7th Cir.2002). The glaring omission from Rambus’ statement of the law is that “[i]f the plaintiff has unclean hands and seeks equitable relief, the defendant’s own improper behavior serves as no bar to its equitable defenses.” United Cities Gas Co. v. Brock Exploration Co., 995 F.Supp. 1284, 1296 n. 11 (D.Kan.1998). See also Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed. 1381 (1945) (holding that doctrine of unclean hands “is a self-imposed ordinance that closes the doors of a court of equity to one tainted with ineq-uitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.”); Mas v. Coca Cola Co., 163 F.2d 505, 510 (4th Cir.1947) (citing Precision Instrument in rejecting plaintiffs contention that he was entitled to relief notwithstanding his fraudulent conduct because defendant was also guilty of fraud and unlawful conduct). Whether Samsung is guilty of spoliation or has unclean hands is entirely immaterial because it would not preclude Samsung from asserting its equitable defenses. Rambus’ other proposed discovery was equally irrelevant to the issue raised by Samsung: whether Rambus had engaged in spoliation of evidence. And, in any event, to the extent that knowledge of that topic does not reside within Rambus, there has been ample discovery on it. To assure the just, speedy and inexpensive determination of the exceptional case aspect of this action, the Court incorporated the entire record of the unclean hands trial in Rambus v. Infineon (the testimony and exhibits offered by both sides) into this record. Also, because Rambus made arguments in this case respecting the issue of spoliation based on the record of the unclean hands hearing in Hynix v. Ram-bus, that record (transcript and exhibits), in its entirety, was incorporated into this record. The record in Hynix v. Rambus has been reviewed and considered in reaching the decisions reflected herein respecting the issue of spoliation. Rambus objected to consideration of the record of the unclean hands trial in Hynix v. Ram-bus, just as it objected to consideration of the record in Rambus v. Infineon, but Samsung agreed that the record in that action should be incorporated and considered here. Rambus’ objection is overruled because there was no conceivable or articulated basis for the objection by Rambus, which was a litigant in both cases. Samsung chose to rely solely on the Rambus v. Infineon record,- but Rambus was given an opportunity to present additional evidence at the December 15, 2005 hearing on the exceptional case question. Rambus chose not to do so. This choice is perplexing in light of Rambus’ repeated assertions that additional evidence uncovered since Rambus v. Infineon and subsequently introduced at the Hynix v. Rambus spoliation trial in -October 2005 made that record the full and complete record on .Rambus’ alleged spoliation. In lieu-of adducing additional evidence in support of its arguments, Rambus offered the Declaration of Steven M. Perry,-.which appears substantially to be a recap of the evidence presented in Hynix v. Rambus. , At ■ the Court’s direction,-. Samsung supplemented the record in this case by incorporating the record-from Hynix v. Rambus, as Samsung- has - objected to the- Declaration of Mr. Perry as inadmissible hearsay. The findings of fact set forth below are based on Rambus’ business documents, the testimony from Rambus v. Infineon, and to a more limited extent on the record created in Hynix v. Rambus. Where findings are based on the Hynix v. Rambus record, it has been so noted. B. Whether Rambus Engaged In Spoliation Of Evidence 1. General Background Facts Rambus, which was-founded in 1990, is a só-called ' “technology company.” DTX 142. That is to say, Rambus develops and licenses technology to other companies. Rambus’ income and profits come from royalties, paid by others,' for' the right to use Rambus’ intellectual property. In 1990, Rambus filed United States Patent Application Serial No. 07/510,898 (“ ’898 Application”) with claims directed to a computer memory technology known as DRAM. The United States Patent and Trademark Office (“PTO”) determined that the ’898 Application purported to cover several independent inventions and therefore issued an eleven-way restriction requiring Rambus to elect one invention to pursue in its application. In response, Rambus filed numerous divisional and continuation applications, at least 31 of which have resulted in issued patents. The patents-in-suit are directed to the previously identified DRAM technology. ,2. The Background Of The Spoliation -In August .2000, Rambus instituted a patent infringement action against Infi-neon. The four patents-in-suit included the ’263 and ’918 patents, which were the subject of Rambus’ counterclaims in this action. As explained previously, there were two trials in Rambus v. Infineon. The issue of spoliation arose shortly before the beginning of the first trial and was first addressed in a post-trial opinion, wherein Rambus was “found to have committed various acts of litigation misconduct, including the intentional destruction of documents relevant to [Rambus v. Infineon].” Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 286 (E.D.Va.2004) (citing Rambus, Inc. v. Infineon Techs. AG, 155 F.Supp.2d 668, 680-83 (E.D.Va.2001)). Further, it was held there that, while anticipating patent litigation, “Ram-bus implemented a ‘document retention policy,’ in part, for the purpose of getting rid of documents that might be harmful in litigation.” Rambus, Inc. v. Infineon Techs. AG, 155 F.Supp.2d at 682. .Ram-bus did not appeal the findings that it intentionally had destroyed relevant documents in anticipation of the Rambus v. Infineon litigation. Therefore, the decision of the Federal Circuit in Rambus, Inc. v. Infineon Techs. AG, 318 F.3d 1081 (Fed.Cir.2003) left those findings undisturbed and it was the law of the case in Rambus v. Infineon. Following remand from the Federal Circuit, a status conference was convened for the purpose of planning for the second trial. In that conference, Infineon represented that, in litigation between Rambus and Micron Technologies, Inc. (“Micron”), Hynix Semiconductor, Inc. (“Hynix”), and the Federal Trade Commission (“FTC”), Rambus had produced a substantial quantity of documents' that should have been produced before the first trial in Rambus v. Infineon, but were not. Rambus acknowledged that some of the documents produced in those proceedings should have been produced in Rambus v. Infineon, but asserted that others should not have been. After further briefing and several hearings, an order was entered under the crime/fraud exception that pierced Ram-bus’ claims of attorney-client privilege and work product protection based on the preliminary record respecting spoliation. See Rambus Inc. v. Infineon Tech. AG, 222 F.R.D. 280 (E.D.Va.2004). That order was reviewed by the Federal Circuit on Ram-bus’ petition for a writ of mandamus which was denied. Further discovfery on the spoliation issue ensued. The issue of spoliation was tried on remand in Rambus v. Infineon. Evidence of document destruction, as well as other evidence on the issue of unclean hands, was heard by the Court sitting without a jury for three and one-half days. The parties offered testimony (live and on videotape) of 25 witnesses and- offered approximately 175 exhibits. In Hynix, the trial on spoliation and unclean hands consisted of eight days of evidentiary hearings and two days of argument. That record consists of the testimony of 20 witnesses and 127 exhibits. 3. Controlling Legal Principles: Spoliation “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). In ascertaining whether a .party has spoliated evidence, the Court is governed by the law of the regional circuit, rather than the decisional law of the Federal Circuit, because spoliation is not a matter peculiar to patent law, and the redress of spoliation is a procedural matter. See Wang Labs., Inc. v. Applied Computer Sci., Inc., 958 F.2d 355, 357 (Fed.Cir.1992); Silicon Image, Inc. v. Genesis Microchip, Iñc., 271 F.Supp.2d 840, 849 (E.D.Va.2003). Additionally; spoliation issués are resolved under principles of federal law, rather than the law of any state. See Silvestri, 271 F.3d at 590. As the Fourth Circuit has noted, “spoliation is not a substantive claim or defense but a ‘rule of evidence,’ and thus is ‘administered at the discretion of the trial court.’ ” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir.2004) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir.1995)). “The right to impose sanctions for spoliation arises from a court’s inherent power to control the judicial process and litigation, but the' power is limited to that necessary to redress conduct ‘which abuses the judicial process.’” Silvestri, 271 F.3d at 590. The sanctions available to courts include adverse inferences, exclusion of evidence or expert testimony, and dismissal. As the Fourth Circuit explained in Silvestri, The policy underlying this inherent power of the courts [to impose sanctions for spoliation] is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth. ‘[B]e-cause no one has an exclusive insight into the truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions — all directed with unwavering effort to what, in good faith, it believes to be true on matters material to the disposition.’ The courts must protect the integrity of the judicial process because ‘[ajs soon as the process falters — the people are then justified in abandoning support for the system.’ Id. (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 457 (4th Cir.1993)) (emphasis added). District courts have “broad discretion in choosing an appropriate sanction for spoliation,” but “the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.” Id. (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2nd Cir.1999)). (a) Factors In Determining Appropriate Sanction Spoliation can occur when the destruction of evidence in anticipation of litigation is willful. However, it can also occur when the destruction is the result of inadvertent, albeit negligent, conduct. See Silvestri, 271 F.3d at 593-94. See also United States ex rel. Koch v. Koch Industries, Inc., 197 F.R.D. 488, 490 (N.D.Okla.1999) (“Spoliation includes the intentional or negligent destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or defend a claim.”); Townsend v. American Insulated Panel Co., Inc., 174 F.R.D. 1, 4 (D.Mass.1997)(“[S]poliation is the intentional, negligent, or malicious destruction of relevant evidence.”). In Trigon Ins. Co. v. United States, 204 F.R.D. 277, 284 (E.D.Va.2001), this Court defined spoliation as a willful act, drawing on the Fourth Circuit’s language in Vodu-sek. However, the Trigon decision was issued five days before the Fourth Circuit’s decision in Silvestri. Silvestri teaches that both negligent and willful destruction can constitute spoliation and that the appropriate place to assess the effect of the spoliator’s state of mind is in ascertaining an appropriate sanction, not in assessing whether spoliation has occurred. See Silvestri, 271 F.3d at 593-95. And while “a court must find some degree of fault to impose sanctions,” id. at 590, the degree of fault need not rise to the level of willful spoliation. See also Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 108 (2nd Cir.2002) (“[T]he ‘culpable state of mind’ factor is satisfied by a showing that the evidence was destroyed knowingly, even if without intent to breach a duty to preserve it, or negligently.”). For example, the Fourth Circuit has noted that, while the ultimate sanction of dismissal is generally reserved for instances of spoliation involving bad faith by the plaintiff, some instances of negligent spoliation will require dismissal because of the resulting prejudice to the defendant. See id. at 593. This segues to another important point. Unlike the equitable defense of unclean hands, prejudice to the adverse party is not an element that must be proven in order for a court to find that a party’s destruction of evidence amounts to spoliation. Rather, Silvestri instructs that prejudice, like wilfulness, is a factor to be considered in deciding on an appropriate sanction. Id. (“At bottom, to justify the harsh sanction of dismissal, the district court must consider both the spoliator’s conduct and the prejudice caused and'be able to conclude either (1) that the spoliator’s conduct was so egregious as to amount to a forfeiture of his claim, or (2) that the effect of the spoliator’s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.”). In Townsend, the court noted that it was appropriate to consider a number of factors in reaching an appropriate sanction: “(1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the plaintiff was in good faith or bad faith; and (5) the potential for abuse if the evidence is not excluded.” Townsend, 174 F.R.D. at 4. (b) Anticipation Of Litigation Whether or not Rambus anticipated litigation with Samsung at the time of the alleged document destruction is a threshold issue in deciding the spoliation issue. “The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri 271 F.3d at 591. See also Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir.1998) (“This obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation — most commonly when suit has already been filed, providing the party responsible for the destruction with,express notice, but also on occasion in other circumstances, as for example when a. party should have known that the evidence may be relevant to future litigation.”). “Notice does not have to be of actual litigation, but can concern ‘potential’ litigation., Otherwise, any person could shred documents to their heart’s content before suit is brought without fear of sanction.” Bayoil, S.A. v. Polembros Shipping Ltd., 196 F.R.D. 479, 483 (S.D.Tex.2000) (citing ABC Home Health Serv., Inc. v. IBM Corp., 158 F.R.D. 180, 182 (S.D.Ga.1994)). In Kronisch, the district court rejected the defendants’ claims that documents were destroyed to preserve the confidential identities of outside participants in a study sanctioned by the Central Intelligence Agency, to prevent incomplete documents from being misunderstood, and to prevent paper overflow. Instead, the district court found that ’ defendants destroyed the documents out of fear of litigation at some point in the future. The district court held that the defendants had a duty to preserve the documents, even absent imminent litigation, and-the Second Circuit-affirmed. See also Byrnie v. Town of Cromwell, Bd. of Ed., 243 F.3d 93, 108 (2nd Cir.2001), (citing Kronisch.for proposition that ’“documents destroyed years before suit brought could reasonably be found to have been destroyed in anticipation of litigation where fear of potential future litigation plausibly motivated the spoliation.”). The determination of when a party anticipated litigation is necessarily a fact intensive inquiry, and a precise definition of when a party anticipates litigation is elusive. One helpful analytical tool is the more widely developed standard for anticipation of litigation under the work product doctrine. The work product doctrine provides that documents and tangible things prepared in anticipation of litigation or for trial, which are otherwise discoverable, are only discoverable upon a showing that the party seeking them has substantial need of them in preparation of its case and that the materials cannot be obtained by other means without undue hardship. See Fed.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The Fourth Circuit has acknowledged that “litigation is an ever-present possibility in American life.” National Union Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir.1992). Thus, in order for a document to receive protection as attorney work product, it “must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.” Id. The Second Circuit has since clarified that [although the non-occurrence of the events giving rise to the anticipated litigation is a factor that can argue against application of the work product doctrine, especially when the expected litigation is merely a vague abstract possibility without precise form, there is no rule that bars application of work product protection to documents created prior to the event giving rise to litigation. United States v. Adlman, 68 F.3d 1495, 1501 (2nd Cir.1995). The court noted that “[i]n many instances, the expected litigation is quite concrete, notwithstanding that the events giving rise to it have not yet occurred.” Id. For example, where “a party expects to be sued by a particular adverse claimant in the event it undertakes to trade under a disputed mark or publishes a book the copyright of which is contested,” there is “no reason why work-product protection should not apply to preparatory litigation studies undertaken by that party (or its representatives) before it begins to trade under the contested mark or publishes the book.” Id. The Fourth Circuit’s real message in National Union Fire was “to stress the necessary causal relationship between the anticipated litigation and the creation of the document, rather than a requirement that the litigation-causing events have already occurred.” Id. While the work product definition of when a party anticipates litigation is not helpful with respect to negligent spoliation, by virtue of its causal element, it nevertheless provides a helpful guide when assessing intentional spoliation: at the very least, a party has anticipated litigation when it destroys relevant evidence because of the prospect of litigation on an actual or potential claim. (c) Scope Of Duty To Preserve Evidence Corporations are not obligated, “upon recognizing the threat of litigation,” to “preserve every shred of paper, every email or electronic document, and every backup tape.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y.2003). Indeed, “[s]uch a rule would cripple large corporations.” Id. Nevertheless, “[wjhile a litigant is under no duty to keep or retain every document in its possession ..., it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.” Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 593 F.Supp. 1443, 1455 (C.D.Gal.1984). “[A]nyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.” Zubulake, 220 F.R.D. at 217. (d) Document Retention Policies As the Supreme Court has noted, “ ‘[djocument retention policies,’ which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business.” Arthur Andersen LLP v. United States, 544 U.S. 696, 704, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). “It is, of course, not wrongful- for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Id. “In contrast, however, a document retention policy adopted or utilized to justify the destruction of relevant evidence is not a valid document retention policy,” and “[i]t follows that implementing such a policy in advance of reasonably foreseeable litigation would not be proper and could constitute spoliation.” Hynix Semiconductor, Inc. v. Rambus, Inc., 2006 WL 565893, *20 (N.D.Cal.2006) (unpublished). “Once a party reasonably antiei pates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake, 220 F.R.D. at 218. See also Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 510 (D.Md.2005). . “The obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate those obligations to employees in .possession of discoverable materials.” National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557-558 (N.D.Cal.1987). It is no defense that particular employees were not on notice of the duty to preserve evidence or whát kinds of evidence were material to the potential litigation. See Tumage, 115 F.R.D. at 557. “To hold otherwise would permit an agency, corporate officer, or legal department to shield itself from discovery obligations by keeping its employees ignorant.” Id. 4. Spoliation: Findings Of Fact And Conclusions Of Law Rambus does not- contest that, beginning in early 1998, it developed a document retention policy. Nor does Rambus dispute the volume of documents that it destroyed in 1998, 1999, and 2000. The disputed spoliation issues are whether Rambus destroyed documents when it anticipated, or reasonably should have anticipated, litigation, and whether the destroyed documents were relevant to anticipated, or reasonably foreseeable, litigation. The findings of fact pertinent to each of those issues are set forth below. (a) The Destruction Was Accomplished When Rambus Anticipated, Or Reasonably Should Have Anticipated, Litigation i. From 1990 To 1998 Some events that occurred before the period at issue are helpful in understanding the anticipation of litigation issue. A brief look is thus in order. In 1990, the year of its founding, Ram-bus patented its RDRAM technology and began licensing it. DTX 142. By 1992, Rambus was of the view that its technology was “covered by 18 [United States] patents, with over 300 claims.” In its business plan for the five year period 1992-1997, Rambus expressed the opinion that: Because Rambus Technology represents such an innovative and unique way to provide high bandwidth logic-to-memory interconnect, the patents are extensive and fundamental. It is Rambus’ opinion that the patents will be issued largely as filed and that companies will not be able to develop Rambus-compatible technology or Rambus-like technology without infringing on multiple fundamental claims of the patents. DTX 142, § 2.1.2 (emphasis added). It was also disclosed in the company’s 1992 business plan, that Rambus had come to learn that a Joint Electron Device Engineering Council (“JEDEC”) Committee, an industry standard-setting committee, had been working on specifications for a standard for SDRAMs. At the time, Ram-bus believed that JEDEC would establish a standard at the end of 1992, at the earliest. Rambus also was of the view that SDRAMs infringed some of Rambus’ patents and that it could file for additional patents that covered features of the SDRAMs made according to the forthcoming JEDEC standard. DTX 142. It was also Rambus’ view that, when that was accomplished, the company would be “in position to request patent licensing (fees and royalties) from any manufacturer of [SDRAMs].” Id. The company’s articulated “action plan [was] to determine exact claims and file the additional claims by the end of Q3/92. Then to advise [SDRAM] manufacturers in Q4/92.” Id. In late December 1991, Rambus began attending JEDEC meetings, and officially joined JEDEC as a member in February 1992. Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1085 (Fed.Cir.2003). Beginning in 1992, Richard Crisp and Billy Garrett attended the JEDEC meetings on behalf of Rambus. Crisp reported regularly to the Rambus executive staff about the technology being considered for the JEDEC standard and the progress of the standard-setting process. As envisioned by the 1992 business plan, Crisp also discussed with Rambus’ patent lawyers how to amend or develop claims that would bring within the reach of Rambus’ patents products that were made in accord with the forthcoming JEDEC standard. In other words, as the Federal Circuit put it, “Rambus thought it could cover the SDRAM standard and tried to do so while a member of an open-standard setting committee.” Rambus, Inc. v. Infineon Techs. AG, 318 F.3d at 1104. As early as the spring of 1992, the company’s patent counsel, Lester Vincent, a partner in the Blakely Sokoloff Taylor & Zafman firm, advised Richard Crisp and Allen Roberts, who was then in charge of obtaining Rambus’ patents, that the company could encounter a defense of equitable estoppel if Rambus, by attending JE-DEC meetings, created the impression that Rambus would not enforce its patents. DTX 1535; DTX 1523. These warnings were repeated by Vincent and Anthony Diepenbrock, then Rambus’ in-house patent counsel, in 1993 and 1995. By January 1996, Rambus had become sufficiently concerned that its participation in JEDEC could adversely affect its patent enforcement strategy that it determined to attend no more JEDEC meetings. DTX 4169. This decision was made by Rambus’ CEO, Geoff Tate, and other executive staff. Rambus withdrew from JEDEC in June 1996. Rambus Inc. v. Infineon Techs. AG, 318 F.3d at 1085. However, throughout the time that Crisp and Garrett attended JEDEC meetings, they, but mostly Crisp, communicated with the numerous Rambus executives, largely by way of email, about the technological developments at JEDEC and the progress of the JEDEC SDRAM standard. Crisp and Garrett also accumulated a substantial number of documents from JE-DEC, such as agendas, meeting notes, and informational presentations made by other DRAM manufacturers which were JEDEC members. Also, by the late 1990s, Rambus had come to the view that DRAM manufacturers were using its technology and patented inventions to make infringing products. And, by then, Rambus had come to the view that steps must be taken to have the DRAM industry take seriously Rambus’ intellectual property rights. To that end, in October 1997, Rambus hired Joel Karp, formerly employed by Intel and a consultant to Samsung, to implement its plan to secure royalties from DRAM manufacturers whose products Rambus considered to infringe its patents and trench on its technology. ii. 1998 Not long after Karp’s arrival, he became head of the intellectual property department at Rambus, and he began to take steps to formulate a patent licensing and litigation strategy. In DTX 4071, apparently prepared in the fall of 1999, Rambus recounted the company’s “Top Level Key Results for 1998.” Section 18 of the document identified, under the heading, “Develop and enforce IP,” as a 1998 key result: C. Get all infringers to license our IP with royalties > than RDRAM (if it is a broad license) OR sue. Id. Karp testified that, as head of the intellectual property department, he provided the input for that section of the 1998 key results document. To help accomplish these corporate objectives, Karp, in January 1998, telephoned Diane Sava