By Eric Schweibenz
On September 30, 2009, ALJ E. James Gildea issued the public version of Order No. 28 (dated September 16, 2009) in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing the Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea denied a motion to compel filed by Complainants O2 Micro International Ltd. and O2 Micro Inc.  (collectively, “O2 Micro”) seeking sales and/or importation data stored in the electronic systems of Respondents Asustek Computer, Inc. and Asus Computer International (collectively, “ASUS”).

In support of its motion, O2 Micro argued that (1) ASUS did not provide an export of sales and/or importation data that is stored on ASUS’s electronic systems, including order management systems referred to as “TipTop”; (2) ASUS provided only a partial list of the fields of the data stored on ASUS’s electronic systems, rather than a full identification of the fields of data; and (3) ASUS did not supplement its document productions to include recent sales or importation data.  In response, ASUS argued that (1) ASUS complied with its discovery obligations and responded to all of O2 Micro’s discovery requests, including its production of “over three million pages of documents (as well as nearly one million additional pages from a subsidiary)”; (2) none of O2 Micro’s discovery requests sought the “export” of sales and importation data; and (3) “O2 Micro possesses current sales data through June 30, 2009 and ‘a complete set of sales data for the time period of August 26, 2008, through June 30, 2009.’”

In the Order, ALJ Gildea determined that while the scope of discovery in Section 337 investigations is “broad,” the ALJ “will not order a party to re-produce documents, which said party represents have already been produced; nor can a party produce documents that do not exist.”  ALJ Gildea further determined that “ASUS complied with its duty to produce sales and/or importation data stored in its electronic systems, including TipTop, to the extent that such data relates to their sales and/or importation of products incorporating CCFL inverter circuitry for 2008 and 2009.”  In addition, ALJ Gildea determined that “O2 Micro has failed to identify any specific documents or categories of documents that it believes are missing from ASUS’s production.”  Accordingly, ALJ Gildea denied O2 Micro’s motion to compel.