28
Oct
By Eric Schweibenz
On October 26, 2010, ALJ Charles E. Bullock issued the public version of Order No. 43 (dated September 17, 2010) in Certain Mobile Communications and Computer Devices and Components Thereof (Inv. No. 337-TA-704) granting Complainant Apple Inc.’s (“Apple”) motion to compel Respondents Nokia Corporation and Nokia, Inc. (collectively, “Nokia”) to produce certain deposition testimony, documents, and interrogatory responses that Apple alleged were “central to the infringement allegations in this Investigation.”

According to the order, Apple asserted that Nokia failed to (1) designate witnesses on a number of properly noticed topics that Apple narrowed down in an effort to resolve the issue without judicial intervention, and refused to do so unless Apple agreed to an extension of the overall case schedule; (2) produce documents sufficient to show all tests run on the functioning of the accused phones, as well as a number of allegedly relevant marketing documents, on the basis that Nokia had no continuing obligation to produce such documents because fact discovery had closed; and (3) rectify deficient interrogatory responses regarding the patents-in-suit.

Nokia opposed the motion, arguing that (1) Apple waited until the very end of fact discovery to serve some of deposition notices, leaving Nokia with insufficient time to properly address the information Apple was seeking; (2) the topics contained in one of the deposition notices were “impossibly broad” such that Apple was “essentially creating new discovery requests after the deadline;” (3) the documents sought were duplicative of information Nokia already produced related to the testing and marketing of its handsets in the U.S.; and (4) Apple’s interrogatories were overly broad, unduly burdensome, and sought information unrelated to Apple’s infringement allegations since “Apple has never provides [sic] substantive infringement allegations against the S40 operating system with respect to the ‘431 patent.”

The Commission Investigative Staff did not file a response to the motion.

After considering the parties’ arguments, ALJ Bullock granted Apple’s motion.  In particular, ALJ Bullock found Nokia’s reliance on Order No. 20 in Certain Printing and Imaging Devices and Components Thereof (Inv. No. 337-TA-690) misplaced, noting that unlike this investigation where Apple’s deposition notices were served in some instances between one and two months before the close of fact discovery, the party seeking to compel discovery in that investigation waited until the very end of fact discovery to serve it’s first 30(b)(6) notice, which was further complicated by the “strict rules” in place for taking depositions in Japan.  ALJ Bullock also found the mere fact that Nokia would be required to expend considerable time and effort supplementing certain interrogatory answers unavailing; however, the ALJ “strongly         encourage[d]” Apple to narrow the products of interest in order to facilitate the gathering of the requested information.  Lastly, ALJ Bullock found that as the party objecting to discovery on the grounds of relevancy and overbreadth, Nokia must establish that the requested information is not within the scope of the investigation and provide sufficient detail in terms of the time, money and procedure required to produce the requested documents, which Nokia failed to do.
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