By Eric Schweibenz
On March 10, 2010, ALJ Carl C. Charneski issued the public version of Order No. 25 (dated February 18, 2010) in connection with the enforcement proceeding in Certain Digital Televisions and Certain Products Containing Same and Methods of Using Same (Inv. No. 337-TA-617).  The Order denied Respondents TPV Technology, Ltd., TPV International (USA), Inc., Top Victory Electronics (Taiwan) Co., Ltd., Envision Peripherals, Inc. (“EPI”), and Top Victory Investments, Ltd.’s (collectively, “TPV”) motion for leave to file a Supplemental Expert Report of Phillip Green (“Green”).

According to the Order, TPV requested that Green’s expert report be supplemented to include information regarding the manner in which EPI is compensated for its role in the distribution of TPV-manufactured products and EPI’s financial circumstances.  The Order noted that Green’s original expert report was served December 23, 2009, but that TPV’s motion to supplement was not filed until January 28, 2010.  In accounting for this gap in time, TPV explained that its motion was prompted by a line of questioning posed by the Commission Investigative Staff (“OUII”) during expert depositions.  In response to those questions, TPV made a supplemental document production, and sought to supplement Green’s expert report.  TPV also argued that, although the hearing in this matter was set to begin March 1, 2010, the Complainants Funai Electric Co., Ltd. and Funai Corporation, Inc. (collectively, “Funai”) would not be prejudiced by entry of the supplemental report.  TPV additionally offered to make Green available for a brief deposition on the subject of the supplemental report.

In opposition, Funai argued that the motion was untimely and that it was not based on any justifiable circumstances.  Funai further argued that the motion had also resulted in unfair prejudice to Funai by raising new issues and arguments well after the time for expert reports and depositions had passed, at a time when Funai was busy preparing for the hearing.

In response to the motion, OUII noted that there did not appear to be any reason why the argument could not have been presented earlier and acknowledged the issue of timing, but nonetheless supported TPV’s motion.

In the Order, ALJ Charneski determined that Funai’s arguments of untimeliness and prejudice were persuasive and denied TPV’s motion.