By Eric Schweibenz
On January 8, 2010, ALJ Carl C. Charneski issued the public version of Order No. 19 (dated December 30, 2009) in Certain Digital Televisions and Certain Products Containing Same and Methods of Using Same (Inv. No. 337-TA-617) denying Complainants Funai Electric Co., Ltd. and Funai Corporation, Inc.’s (collectively, “Funai”) motion to compel Respondents Vizio, Inc., AmTran Technology Co., Ltd., Suzhou Raken Technology, Ltd., TPV Technology, Ltd., TPV International (USA), Inc., Top Victory Electronics (Taiwan) Co., Ltd., Envision Peripherals, Inc., and Top Victory Investments, Ltd. (collectively, “Respondents”) to produce communications relating to opinions of counsel or alternatively preclusion of such opinions.

In the Order, ALJ Charneski determined that it was unclear from Funai’s motion just what Funai was seeking to compel by way of discovery.  According to the Order, “Funai generally seeks that discovery be compelled with respect to [an opinion letter]” provided to Respondents by opinion counsel” concerning the subject of the new design around DTVs.  In opposition, Respondents asserted that Funai has not identified “a single Request for Production, Interrogatory, or deposition topic as to which the [Respondents refused to permit such discovery]” and that only Funai’s attempted discovery into Respondents’ communication with trial counsel has been blocked.  The Commission Investigative Staff supported Funai’s motion “insofar as it seeks production of any information that has not already been disclosed concerning the opinion letters . . . [but did] not support the motion insofar as it seeks disclosure of communications between the Enforcement Respondents and trial counsel.”

In the Order, ALJ Charneski determined that Funai was not entitled to any relief in light of the Federal Circuit’s decisions in Echostar Communications Corporation, 448 F.3d 1294 (Fed. Cir. 2006), and particularly Seagate Technology, 497 F.3d 1360, 1374 (Fed. Cir. 2007) and Funai’s “failure to identify with any specificity the discovery it now seeks and the reasons why such discovery should be compelled.”  ALJ Charneski also rejected Funai’s argument that the “chicanery exception” articulated in the Seagate decision was applicable, because Funai had not established that Respondents had engaged in chicanery.  Accordingly, ALJ Charneski denied Funai’s motion to compel.