On October 13, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 34C (dated August 28, 2009) in Certain Electronic Devices, Including Handheld Wireless Communications Devices (Inv. No. 337-TA-667/673).  In the Order, ALJ Rogers granted a motion to strike the supplemental expert report of Complainant Saxon Innovations, LLC’s (“Saxon”) expert witness filed by Respondents Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLP (collectively, “Samsung”).

In support of the motion to strike, Samsung argued that Saxon’s supplemental expert report was untimely because the deadline for initial expert reports was July 24, 2009, but Saxon’s supplemental report had been filed on August 17, 2009.  Further, Samsung argued that since the supplemental expert report relied on documents and information that had already been available to Saxon before the July 24, 2009 deadline, there was no issue of later-acquired information that might have justified a supplemental expert report under Commission Rule 210.27(c).

Saxon responded by arguing that the supplemental expert report was proper because its expert had inadvertently omitted certain arguments from his initial report, and Samsung would not be prejudiced by the delay because it was already aware of the documents that formed the basis for the opinions expressed in the supplemental report.

The Commission Investigative Staff argued that while it would have been better for Saxon to have sought leave to file the supplemental expert report, Samsung was not prejudiced by the report, and the report should therefore be permitted provided that Samsung’s expert be allowed to supplement his own report and Saxon’s expert be made available for an additional deposition.

ALJ Rogers granted Samsung’s motion, finding that “allowing expert discovery to occur out of the sequence and timing set forth in the procedural schedule would prejudice Samsung at this late date, and Saxon’s attempt to file a supplemental expert report clearly violated my Ground Rules and Commission Rule 210.27(c).”