By Eric Schweibenz
On April 1, 2010, Chief ALJ Paul J. Luckern issued Order No. 11 in Certain DC-DC Controllers and Products Containing the Same (Inv. No. 337-TA-698).  In the Order, ALJ Luckern denied Complainants Richtek Technology Corp. and Richtek USA, Inc.’s (collectively, “Richtek”) motion to permit Richtek’s expert, Dr. Chen-huei Wu, to receive confidential business information (“CBI”) under the Protective Order (“PO”).

In its motion, Richtek argued that Dr. Wu is presumptively entitled to receive CBI under the PO, that foreign experts may appropriately subscribe to the PO, and that Dr. Wu does not consult for and is not employed by a party.  Richtek further argued that Respondents uPI Semiconductor Corp. and Sapphire Technology Ltd. (collectively, the “uPI Respondents”) have failed to explain why they believe that Dr. Wu is “less trustworthy, or more likely to violate the terms of the Protective Order, than American experts.”

The uPI Respondents opposed Richtek’s motion.  In their opposition, the uPI Respondents argued that sanctions often fail to deter foreign individuals from disclosing CBI, that the Commission “rarely” allows foreign individuals to sign onto protective orders to receive a party’s CBI over that party’s objection, and that Richtek has not explained how Commission sanctions can constitute an actual deterrent for Dr. Wu.  The uPI Respondents further argued that Richtek has failed to identify how it would be prejudiced if Dr. Wu does not receive the uPI Respondents’ CBI.  Lastly, the uPI Respondents noted that Dr. Wu worked as a prosecutor in the Taiwan Taipei District Court Prosecutorial Office from 2001 to 2005, where Richtek has filed criminal charges based on the same facts as in the ITC investigation.

The Commission Investigative Staff (“OUII”) supported Richtek’s motion.  OUII argued that none of the available sanctions provided for in the Commission’s rules depend on obtaining personal jurisdiction over the person accused of violating the PO, that sanctions are available in all cases, and that the uPI Respondents have not identified a single reason why sanctions would be less of a deterrent for Dr. Wu than for the uPI Respondents’ own proposed witnesses.

ALJ Luckern denied Richtek’s motion.  The ALJ first noted that Dr. Wu has been presented as an expert whose areas of expertise include Taiwanese criminal law and procedure, and that Richtek has presented no explanation as to why Taiwanese criminal law is relevant to the investigation or generally why an expert on law requires access to CBI to explain that law.  Moreover, ALJ Luckern was “troubled” by Dr. Wu’s past contacts with the Taiwan Taipei District Court Prosecutorial Office, where the uPI Respondents have represented that Richtek has filed criminal charges that are currently pending.  Finally, ALJ Luckern noted that Dr. Wu is not an attorney and that Richtek has made no showing that a Commission sanction would have any deterrent effect on Dr. Wu.  For all of these reasons, ALJ Luckern denied Richtek’s motion and prohibited Dr. Wu from receiving any CBI under the PO.