By Eric Schweibenz
On February 1, 2010, ALJ Carl C. Charneski issued Order No. 23 in Certain Digital Televisions and Certain Products Containing Same and Methods of Using Same (Inv. No. 337-TA-617) granting Complainants Funai Electric Co., Ltd. and Funai Corporation, Inc.’s (collectively, “Funai”) motion to file a supplemental expert report of V. Michael Bove, Jr.  The Order simultaneously denied a motion by 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 strike the supplemental expert report of V. Michael Bove.

Funai argued that its motion to supplement was necessitated by new arguments raised within Respondents’ expert report, which “to Dr. Bove’s surprise,” opined that VCTs that fit into single packets are “hypothetical” or a “remote” likelihood, and that VCTs are not routinely placed at the start of packets.

Respondents opposed and moved to strike on the basis that good cause to supplement does not exist because (1) the supplemental report “seeks merely to rebut criticism” for not providing “adequate support for positions” in the original expert report, and (2) the proposed supplementation includes a disc containing over 400 megabytes of previously undisclosed data.

ALJ Charneski acknowledged that Funai’s expert “considered addressing the VCT issue in his initial expert report,” and “was mistaken” when “he did not think that it would be in dispute.”  Nonetheless, ALJ Charneski noted that “unless Funai is permitted to file the proposed supplemental expert report, the issue will not be developed adequately at the hearing,” and therefore, “good cause for permitting the requested supplementation has been shown.”

As to the 400 megabytes of data, ALJ Charneski held “it will not unduly burden respondents or this investigation,” because this data constitutes only 10 video clips (each three to 15 seconds in duration ), recorded from domestic television broadcasts.