By Eric Schweibenz
On January 20, 2011, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 11 (dated December 8, 2010) granting Complainant Spansion, LLC’s (“Spansion”) motion to compel in Certain Flash Memory Chips and Products Containing Same (Inv. No. 337-TA-735).

According to the order, Spansion moved to compel Respondent Samsung Electronics Co., Ltd (“Samsung”) to respond to discovery regarding the full scope of the accused products in the investigation.  In this regard, Spansion asserted that the scope of discovery “includes both NAND and NOR flash memory devices.”  Particularly, Spansion asserted that Samsung had limited its discovery responses to NAND flash memory.  In opposition, Samsung asserted that the scope of discovery is limited by Spansion’s complaint which lists only NAND flash memory devices.  The Commission Investigative Staff supported Spansion’s motion.

In the order, ALJ Rogers rejected Samsung’s assertion that Spansion’s complaint limited the scope of discovery in the investigation – finding it factually incorrect and not supported by the cases cited by Samsung.  Instead, ALJ Rogers noted that, pursuant to Commission Rule 210.10(b), “the notice of investigation issued by the Commission ‘will define the scope of the investigation.’”  In granting Spansion’s motion, ALJ Rogers found that “[t]he Notice does not limit the flash memory devices at issue to NAND devices.”  Accordingly, ALJ Rogers ruled that “Spansion’s request for discovery related to Samsung’s NOR flash memory technology is reasonably calculated to lead to discovery of admissible evidence [and that] Samsung shall supplement its discovery responses to include responsive documents and information relevant to Samsung’s NOR flash memory devices.”  Separately, ALJ Rogers found it worth noting that Samsung had recently argued a position to the contrary in Certain Flash Memory and Products Containing Same, Inv. No. 337-TA-685.  In this regard, ALJ Rogers stated, “[t]he discovery rules do not change simply because Samsung is now a respondent instead of a complainant.”