01
Feb
By Eric Schweibenz
On January 28, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 35 in Certain Bulk Welding Wire Containers and Components Thereof and Welding Wire (Inv. No. 337-TA-686).  In the Order, ALJ Rogers denied Complainants The Lincoln Electric Company and Lincoln Global, Inc.’s (collectively, “Lincoln”) motion to compel Respondent Sidergas SpA (“Sidergas”) to respond to Lincoln’s Interrogatory Nos. 33-36.

In its motion, Lincoln stated that Sidergas had taken the position that it was not obligated to respond to Lincoln’s Interrogatory Nos. 33-36 because Lincoln had already exceeded the maximum number of interrogatories allowed under the Ground Rules to the investigation.  Lincoln argued that Sidergas’s position was unreasonable because Sidergas was attempting to count every interrogatory subpart as a separate interrogatory.

In its opposition, Sidergas cited to Ground Rule 4.5 -- which limited each party to 175 interrogatories -- and argued that Lincoln had violated the rule by already serving over 370 discrete interrogatories before counting Interrogatory Nos. 33-36.  Sidergas further argued that Lincoln had violated the Ground Rules by failing to make an intensive good faith effort to resolve the discovery dispute before filing its motion to compel.  The Commission Investigative Staff (“Staff”) agreed with Sidergas on this latter argument, and filed an opposition to Lincoln’s motion arguing that Lincoln had failed to make an intensive good faith effort to resolve the dispute.  However, the Staff took no position on Sidergas’s argument that Lincoln had already exceeded the maximum number of interrogatories allowed under the Ground Rules.

Lincoln filed a reply to address the assertion that it had failed to make an intensive good faith effort to resolve the dispute.  In the reply, Lincoln stated that the parties had addressed Sidergas’s failure to answer the interrogatories at a December 23, 2009 Discovery Committee meeting, and that that discussion had resulted in an agreement that the parties had reached an impasse.  Lincoln further stated that it had notified the parties that it would be moving to compel interrogatory responses on December 29, 2009, and that it had filed its motion on January 4, 2010.

ALJ Rogers found that Lincoln had complied with the requirement of making an intensive good faith effort to resolve the discovery dispute, but that Sidergas was not required to respond to Lincoln’s Interrogatory Nos. 33-36 because Lincoln had already served 190 discrete interrogatories, thereby exceeding the 175 interrogatory limit set forth in the Ground Rules.  In particular, ALJ Rogers first found that some of Lincoln’s numbered interrogatories, e.g. on claim construction, non-infringement, and invalidity, actually consisted of six separate interrogatories because Lincoln was asserting six patents against Sidergas in the investigation.  ALJ Rogers also found that certain interrogatories regarding alleged prior art bulk wire containers needed to be counted as fourteen separate interrogatories -- one interrogatory for each of the fourteen different containers alleged to be prior art.  Finally, ALJ Rogers found that some interrogatories needed to be counted as two separate interrogatories, because two of the fourteen prior art bulk wire containers were addressed in those interrogatories.  Through these calculations, ALJ Rogers found that Lincoln had already served 190 interrogatories.  Since this exceeded the 175 interrogatory limit set forth in the Ground Rules, Sidergas was not required to respond to Lincoln’s Interrogatory Nos. 33-36, and ALJ Rogers denied Lincoln’s motion to compel.
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