ALJ Bullock Grants-In-Part Complainants’ Motion For Sanctions In Certain Ink Application Devices (337-TA-832)

On March 5, 2012, Chief ALJ Charles E. Bullock issued Order No. 24 (dated February 21, 2013) granting-in-part Complainants MT.Derm GmbH and Nouveau Cosmetique USA, Inc.’s (collectively, “Complainants”) Motion for Sanctions against Respondent T-Tech Tattoo Device, Inc. (“T-Tech”) in Certain Ink Application Devices and Components Thereof and Methods of Using Same (Inv. No. 337-TA-832).

According to the Order, Complainants argued for sanctions against T-Tech based on T-Tech’s failure to:  (1) respond to certain paragraphs in the Complaint, and (2)  provide complete responses to Complainants’ interrogatories and requests for production.  As to T-Tech’s Answer, Complainants’ asserted that T-Tech failed to respond to “any paragraphs in the Complaint concerning the patented technology, the accused devices, the asserted patents, importation, or the existence of a domestic industry.”  Based on this assertion, Complainants requested a variety of nonmonetary sanctions.  Regarding T-Tech’s discovery responses, Complainants argued that T-Tech has failed to provide any substantive responses.  Accordingly, Complainants asserted that T-Tech has failed to comply with Order. No. 15, which ordered T-Tech to provide complete discovery responses. The Commission Investigative Staff agreed with Complainants that T-Tech’s discovery responses were incomplete and inconsistent, but disagreed that T-Tech’s Answer warranted sanctions.

ALJ Bullock held that T-Tech failed to comply with Order. No. 15 because T-Tech’s discovery responses were incomplete and inconsistent.  Based on T-Tech’s failure to comply with Order No. 15, ALJ Bullock imposed the following sanctions:  (1) “T-Tech will not be permitted to introduce into evidence any documents not yet produced or identified or otherwise rely upon testimony by any T -Tech witness in support of its position in this Investigation where T-Tech has indicated that such documents or information do not exist;” and (2) “T-Tech will not be heard to object to the introduction and use of secondary evidence to show what the withheld documents would have shown.”  ALJ Bullock denied Complainants’ request for sanctions based on T-Tech’s Answer because  Rule 210.33(b), which permits non-monetary sanctions for a party’s failure to comply with an order compelling discovery, does not apply to deficiencies in a party’s answer.  Accordingly, ALJ Bullock granted-in-part Complainants’ Motion for Sanction.

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