18
Feb
By Eric Schweibenz
On February 17, 2011, Chief ALJ Paul J. Luckern issued Order No. 22 in Certain Electronic Imaging Devices (Inv. No. 337-TA-726).  In the order, ALJ Luckern ruled that no expert reports will be received into evidence at the evidentiary hearing and that witness statements may be offered when they only involve uncontroverted facts.

According to the order, Complainant FlashPoint Technology, Inc. (“FlashPoint”) represented in a submission dated February 14, 2011 that it does not intend to offer expert reports into evidence, although attachments to expert reports, if independently admissible, may be offered into evidence at the hearing subject to the normal procedures for offering materials into evidence, including rulings on any related objections raised; that FlashPoint also reserves the right to use any expert report submitted in the investigation for purposes of impeachment at the hearing; that FlashPoint further reserves the right to use any additional expert reports submitted in the investigation up to the time of the evidentiary hearing for purposes of impeachment at the hearing; and that FlashPoint has met and conferred with Respondents and the Commission Investigative Staff (“OUII”) on these issues and understands that none of the parties intend to offer expert reports into evidence.

Respondents represented in a submission dated February 14, 2011 that it was their understanding that no parties intend to offer expert reports into evidence.  OUII indicated in a February 17, 2011 email with ALJ Luckern’s attorney advisor that it was joining with FlashPoint’s submission regarding expert reports.

After considering the parties’ submissions regarding expert reports, ALJ Luckern ruled that no expert reports will be received into evidence at the evidentiary hearing.

Additionally, according to the order, FlashPoint represented in a further submission dated February 14, 2011 that it believes that the development of a full and fair record at trial will be best and most efficiently facilitated by the use of direct testimony rather than witness statements whenever possible; that FlashPoint does not presently anticipate problems presenting live testimony at trial; that FlashPoint will submit witness statements as to witnesses’ biographical data and non-controversial matters to the extent the ALJ so requests or requires, or as otherwise appropriate; and that FlashPoint has met and conferred with Respondents and OUII on this issue and understands that all parties generally agree with FlashPoint’s submission regarding the use of witness statements.

Respondents argued that at this time they believe that direct testimony of all witnesses through live testimony is more appropriate than relying, in whole or in part, on written witness statements; that Respondents would consider presenting certain non-controversial testimony, such as expert witness qualifications, through written witness statements, should it appear that the parties will have difficulty presenting all live testimony in the time available for trial; and that, currently, Respondents do not anticipate presenting live testimony during trial.  OUII indicated that it was joining FlashPoint’s submission regarding witness statements.

After considering the parties’ submissions, ALJ Luckern ruled that witness statements may be offered when they only involve uncontroverted facts.  The ALJ further ruled that, before any offer, all parties should agree that any witness statements so offered contain only uncontroverted facts.
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