By Eric Schweibenz
On January 3, 2012, Chief ALJ Charles E. Bullock issued Order No. 37 in Certain Automated Media Library Devices (Inv. No. 337-TA-746).  In the Order, ALJ Bullock determined to strike Respondents BDT AG, BDT Automation Technology, BDT de Mexico, S. de R.L. de C.V., and BDT Products, Inc.’s (collectively, “BDT”) post-trial reply brief in its entirety.

According to the Order, Complainant Overland Storage, Inc. (“Overland”) moved to strike certain arguments in Respondents’ joint post-hearing reply brief on the basis that Respondents had failed to assert these arguments in their pre-hearing or initial post-hearing briefs.  In Order No. 33, ALJ Bullock granted-in-part Overland’s motion and ordered the Respondents to submit a revised joint-reply post-hearing brief where all references to testing in the U.S. regarding the technical prong of the domestic industry requirement were removed.  Respondents failed to submit the revised post-hearing reply brief.  

Respondents International Business Machines Corp. (“IBM”) and Dell, Inc. (“Dell”) were terminated from the Investigation based upon a settlement agreement.  Because it was unclear from the joint post-hearing briefs what issues remained now that IBM and Dell were no longer in the Investigation, ALJ Bullock directed the private parties to submit revised post-hearing briefs.  The parties submitted these revised briefs on December 19, 2011.   

Upon reviewing the parties briefs, ALJ Bullock determined that BDT’s brief included arguments that were already stricken by his prior Order No. 33.  In light of BDT’s failure to submit a revised reply brief in response to Order No. 33 and its insertion of arguments that were already ordered to be removed by Order No. 33, ALJ Bullock determined that “BDT’s reply brief is hereby stricken in its entirety” and noted that “[s]uch blatant disregard of an Order is not only unacceptable, but shall not be tolerated.”