On September 9, 2009, Chief ALJ Paul J. Luckern issued Order No. 17 regarding witness statements and expert reports in Certain Light Emitting Diode Chips, Laser Diode Chips and Products Containing Same (Inv. No. 337-TA-674).

Complainant Gertrude Neumark Rothschild (“Complainant”) proposed that witness statements should not be used in lieu of live witness testimony, though portions could be used for non-controversial matters such as witness background and qualifications.  Complainant also proposed that all expert reports and exhibits, charts, and tables relating thereto be admitted into evidence to make testimony more comprehensible.

Respondent Toshiba Corporation and the Commission Investigation Staff opposed using witness statements for any purpose and argued that expert reports should not be offered into evidence.  Respondent Panasonic Corporation (“Panasonic”) argued that witness statements should not be used in lieu of live testimony but should be allowed for non-controversial positions.  Panasonic further argued that the parties should not be able to introduce their own expert reports in lieu or in supplementation of live testimony of its own experts but should have the option of submitting an opposing party’s expert reports and exhibits relating thereto.

In the Order, ALJ Luckern determined that witness statements may only be used for non-controversial matters and such statements must be exchanged with the other parties before submission to the ALJ.  Furthermore, ALJ Luckern held that expert reports cannot be entered into evidence but that exhibits, charts, and tables from such expert reports may be offered into evidence if the evidentiary record provides a basis for their admission.  ALJ Luckern also determined that while expert reports would not be admitted into evidence, portions can be read into the record if the credibility of a witness is at issue.