By Eric Schweibenz
On June 21, 2010, ALJ E. James Gildea issued the public version of Order No. 13 (dated June 10, 2010) in Certain Electronic Devices, Including Mobile Phones, Portable Music Players, and Computers (Inv. No. 337-TA-701).  In the Order, ALJ Gildea denied Complainants Nokia Corp. and Nokia, Inc.’s (collectively “Nokia”) motion seeking an order requiring Respondent Apple, Inc. (“Apple”) to show cause why it should not be sanctioned for failing to comply with certain orders requiring Apple to produce responsive documents.

In its motion, Nokia asserted that Apple failed to produce plainly relevant documents from one of its engineers by the deadline imposed by Order Nos. 4 and 6.  In particular, Nokia asserted that the unproduced documents related to whether Apple’s speaker box assembly infringes the asserted claims of the patent-in-suit.  In support of its motion, Nokia alleged that it had been unduly prejudiced by Apple’s failure to timely produce the emails of one of its engineers.  Nokia also argued that Apple should therefore be precluded from arguing that its speaker box did not meet certain limitations of the asserted claims and that Apple should be ordered to pay Nokia’s attorney’s fees and expenses in connection with its attempts to obtain the discovery in question, including any subsequent depositions that may be necessary.

In its opposition, Apple asserted that “it complied with Orders Nos. 4 and 6 by providing responsive documents to Nokia’s requests for production of documents by the April 9, 2010 deadline” and that “additional supplementations to its April 9, 2010, production were necessary because of the enormous amount of time it took to cull through its emails and documents for production.”  Apple also asserted that Nokia cannot show any prejudice.  The Commission Investigative Staff filed a response in opposition to the motion, arguing that Apple’s delay in producing responsive documents “was justifiable due to corresponding delays in processing the large volume of emails and documents for production” and as such did not warrant sanctions.

In denying Nokia’s motion, ALJ Gildea noted that Order No. 6 provided that “[t]o the extent that Apple can fairly demonstrate that it has unavoidable processing delays due to sheer volume … it may make prompt, good faith supplementation.”  In this regard, ALJ Gildea assessed the number of persons that Apple used “to collect, process, review and produce the [number of] pages of documents by the April 9, 2010 deadline” and determined that “Apple made a good faith effort to comply with Order Nos. 4 and 6 . . . and that Apple’s inability to complete its production by the deadline was at least in part attributable to the large volume of documents and email that had to be reviewed and processed.”