By Eric Schweibenz
On March 29, 2010, ALJ E. James Gildea issued Order No. 4 in Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers (Inv. No. 337-TA-701).  In the Order, ALJ Gildea granted in part the motion of Complainants Nokia Corp. and Nokia, Inc. (collectively “Nokia”), seeking to compel Respondent Apple, Inc. (“Apple”) to produce certain documents and witnesses.

According to the Order, Nokia served document requests on January 26 and February 11, 2010.  Nokia served its Notice of Examination of Apple’s corporate witnesses on February 15, 2010.  Apple did not produce any documents or identify any witnesses.  On March 15, 2010, Nokia filed its motion, seeking an order compelling Apple to (1) produce responsive documents within ten days, and (2) make corporate-designee witnesses available for deposition no later than March 31, 2010.  Nokia also asked ALJ Gildea to order Apple to produce those corporate witnesses without the condition that Nokia take the deposition of those witnesses in their individual capacities at the same time.

In its opposition filed March 25, 2010, Apple argued that Nokia’s motion to compel should be denied as moot or premature.  Apple pointed out that, as of the time Nokia filed its motion, the parties were still engaged in negotiations regarding document production and neither party had produced any documents.  Moreover, Apple argued that it was prepared to produce a large volume of documents from at least 11 custodians, beginning on March 29, 2010 – which Apple characterized as exactly what Nokia sought with its motion to compel.

Regarding corporate designees, Apple argued that Nokia had not yet formally served its Notice of Examination, having only provided Apple with a courtesy copy.  Moreover, Apple objected to the scope and appropriateness of Nokia’s notice, but explained that it was working to identify witnesses and dates.  Apple noted that Nokia had yet to identify any witnesses or dates for deposition.

Apple argued that Nokia’s request that Apple produce corporate witnesses without the condition that Nokia take the deposition of those witnesses in their individual capacities at the same time was unreasonable.  Pointing out that the ITC disfavors multiple depositions of the same party, Apple argued that Nokia should be prepared to depose witnesses in both their corporate and individual capacity at the same time or offer good cause as to why additional examination is necessary.   Finally, pointing out that Nokia had yet to identify a witness it intends to depose twice, Apple argued that Nokia’s request was hypothetical, and not ripe for consideration.

The Commission Investigative Staff (“OUII”) generally supported Nokia’s motion because Apple had failed to produce documents or identify witnesses, despite their stated intent to do so in the near future.  OUII argued that Apple had sufficient time to comply.  However, OUII agreed with Apple, arguing that Nokia’s request regarding taking corporate and individual depositions separately was not ripe for adjudication.

In the Order, ALJ Gildea noted the expedited pace of Section 337 investigations and that the hearing in this matter was scheduled for November 30, 2010.  ALJ Gildea determined that Apple’s delay was unwarranted and ordered it to produce responsive documents, beginning March 29, 2010, completing the process by April 2, 2010.  He also ordered Apple to provide as soon as possible, and no later than April 2, 2010, the identities of persons with knowledge of the topics in Nokia’s Notice of Examination, along with proposed dates for depositions.  Lastly, ALJ Gildea found Nokia’s request regarding the separation of corporate and individual depositions not ripe for adjudication.