25
Mar
By Eric Schweibenz
On March 24, 2009, Chief ALJ Paul J. Luckern issued Order No. 21 in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, Chief ALJ Luckern determined that “written testimony for direct testimony of witnesses will be limited to non-controversial testimony” and “expert reports are not to be admitted with evidence.”

According to the Order, the parties made submissions on March 20, 2009 regarding the issue of witness statements and expert reports.  With respect to witness statements, all of the parties agreed that the use of witness statements should be permitted in lieu of live direct testimony on certain non-controversial matters, such as, for example, witness qualifications, educational history, work experience, etc. 

Chief ALJ Luckern agreed with the parties’ submissions and determined that written testimony for direct testimony of witnesses will be limited to non-controversial testimony.  Chief ALJ Luckern also determined that “the parties should exchange said witness statements before submission to the administrative law judge to assure that they contain only non-controversial testimony.”

Regarding the admissibility of expert reports, Complainant Hillcrest Laboratories, Inc. (“Hillcrest’) and the Commission Investigative Staff argued that expert reports should not be admitted into evidence.  Respondents Nintendo Co., Ltd and Nintendo of America Inc. (“Nintendo”) argued that expert reports, as well as all exhibits and materials supporting expert reports, should be received into evidence at the hearing.  Nintendo explained that receiving the expert reports (and supporting materials) into evidence would, among other things, benefit the ALJ by permitting him to have before him the full scope of the six expert’s opinions and thereby would help focus live testimony on disputed issues.

Chief ALJ Luckern rejected Nintendo’s arguments and agreed with Hillcrest and the Commission Investigative Staff that expert reports should not be admitted into evidence.
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