27
Jan
By Eric Schweibenz
On January 24, 2011, ALJ Carl C. Charneski issued the public version of Order No. 61 (dated December 7, 2010) granting-in-part Complainants Apple Inc. and NeXT Software Inc.’s (collectively, “Apple”) motion to compel in Certain Personal Data and Mobile Communications Devices and Related Software (Inv. No. 337-TA-710).

According to the order, Apple moved to compel Respondents HTC Corp., HTC America, Inc., and Exedea, Inc. (collectively, “HTC”)  to produce certain outstanding discovery.  In particular, Apple asserted that HTC should be compelled to provide (i) witness testimony in the United States on Android 2.2, since HTC belatedly produced the Android 2.2 source code after the depositions of HTC’s key technical witnesses, (ii) knowledgeable witnesses to testify in response to Deposition Topic Nos. 59 and 61 “regarding components in the Accused HTC Android Products,” and (iii) discovery regarding “[d]ata on the use, testing, marketing, customer complaints, and other dealings with customers [] relevant to, inter alia, direct infringement and induced infringement.”  HTC opposed Apple’s motion asserting that (i) “it promptly produced the Android 2.2 source code . . . as it became available after [its] products were upgraded to Android 2.2,” (ii) the witnesses it provided to testify regarding Deposition Topic Nos. 59 and 61 “were knowledgeable, ‘to the extent that HTC has knowledge,’” and (iii) the data sought by Apple was either “not relevant to the present investigation” or “moot in light of HTC’s production of its sales and revenue data.”

In the order, ALJ Charneski granted-in-part Apple’s motion.  Specifically, ALJ Charneski determined that Apple was entitled to depose HTC software engineers and a corporate designee on the Android 2.2 since “it is not disputed that Apple did not receive the subject Android 2.2 source code until after the completion of certain depositions.”  ALJ Charneski also ordered that HTC designate a knowledgeable witness to testify as to Deposition Topic Nos. 59 and 61.  Finally, ALJ Charneski denied the remainder of Apple’s motion having found that “Apple has failed to show that the involved deposition topics are relevant to this investigation” or “that HTC has failed to produce the documents sought in [the] subject Requests for Production.”