03
Apr
By Barry Herman
On April 2, 2009, ALJ E. James Gildea issued Order No. 17 granting in part Respondents’ joint motion to compel Complainant to fully respond to specific discovery requests in Certain Coaxial Cable Connectors and Components Thereof and Products Containing Same (Inv. No. 337-TA-650).

According to the order, Respondents Fu Ching Technical Industry Co. Ltd.  and Gem Electronics, Inc. (“Respondents”) moved to compel Complainant John Mezzalingua Associates, Inc. d/b/a PPC, Inc. (“PPC”) to fully respond to an interrogatory and a request for admission, and produce documents responsive to a request for production, relating to whether representatives of PPC had separated the locking member of Respondents’ accused products from the connector body and whether the locking member has a radially protruding shoulder circumscribing the member at a first position.  Respondents argued that PPC waived all privilege with respect to separation of the locking member of the accused products from the connector body because PPC disclosed that its counsel had accomplished such a separation in 2004.

PPC argued that (1) it did not waive privilege or work product immunity because the separation accomplished by its counsel occurred well before contemplation or initiation of the investigation and thus was not privileged, (2) it already responded to the interrogatory and request for admission, (3) Respondents had “exhaustive discovery on the issue of inseparability,” particularly through the course of several depositions, (4) responding to the interrogatory would be unduly burdensome, and (5) the request for admission is irrelevant, unlikely to lead to admissible evidence, and unintelligible.

The Commission Investigative Staff agreed with PPC that (1) the separation accomplished by PPC’s counsel was not privileged and thus no waiver occurred, (2) PPC adequately responded to the three discovery requests at issue, and (3) the request for admission is irrelevant.

ALJ Gildea found that (1) Respondents failed to show that the separation accomplished by PPC’s counsel was protected by the attorney-client privilege or work product doctrine, (2) PPC did not adequately respond to the interrogatory or adequately explain how its search for the requested information would require extraordinary effort or expense, and (3) the request for admission is relevant to infringement, but objectionable as worded, and the parties shall meet and confer in order to re-word the request.
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