09
May
By Eric Schweibenz
On May 3, 2011, ALJ E. James Gildea issued the public version of Order No. 13 (dated April 26, 2011) in Certain Products Containing Interactive Program Guide and Parental Controls Technology (Inv. No. 337-TA-747).

By way of background, the Complainants in this investigation are Rovi Corporation, Rovi Guides, Inc., United Video Properties, Inc., and Index Systems, Inc.’s (collectively, “Rovi”) and the Respondents are Toshiba Corporation, Toshiba America, Inc., Toshiba America Consumer Products, L.L.C., and Toshiba America Information Systems, Inc.’s (collectively, “Toshiba”).

According to the Order, on April 1, 2011, Toshiba filed an unopposed motion to extend the target date in this Investigation in view of the “earthquake and tsunami in Japan, as well as the resultant nuclear crisis, rolling blackouts, and other related hardships [which] affected the parties ability to complete discovery.”  ALJ Gildea granted this motion and the initial determination was not reviewed by the Commission.  ALJ Gildea further ordered the parties “to take Toshiba’s circumstances into account with respect to discovery that Toshiba was ordered to produce.”

On April 8, 2011, Rovi filed a motion seeking to compel Toshiba to present its foreign witnesses for deposition in the U.S.  In support of their motion, Rovi argued that Toshiba gained an “economic advantage” from the delay in the target date and “an equitable balance must be struck” by requiring Toshiba’s foreign witnesses to be compelled to testify in the U.S.  Rovi further argued that Toshiba did not fully represent Rovi’s position when Toshiba indicated that its motion to extend the target date was unopposed, because Rovi’s approval was contingent on whether Toshiba would present its witnesses for deposition in the U.S.  Lastly, Rovi requested an amendment to the procedural schedule and target date to account for a five-day hearing after October 4, 2011.

Toshiba opposed Rovi’s motion.  Toshiba argued that “Rovi never conditioned its approval of Toshiba’s motion to extend the target date on where the Toshiba depositions would take place.”  Toshiba explained that it did, however, offer to have the depositions in Taiwan or Korea, reducing the burden on the witnesses.  Toshiba further opposed Rovi’s request to move the evidentiary hearing in light of scheduling conflicts for counsel for Toshiba and opposed reducing the eight-day hearing set by the ALJ to a five-day hearing because a shorter hearing “would be inadequate to address the myriad issues raised in this Investigation.”

ALJ Gildea first rejected Rovi’s request for a five-day hearing and noted that the ALJ “has the discretion to shape the direction of the proceedings, and here has determined that an eight-day hearing is necessary.”  ALJ Gildea further noted that “Rovi has not presented a sufficient basis to reconsider the number of hearing days, having merely raised the ‘belief’ that five days are sufficient.”  ALJ Gildea also rejected Rovi’s argument that Toshiba will gain an unfair economic advantage by the extension of the investigation, particularly since Rovi did not provide any evidence to support its assertion.  Lastly, ALJ Gildea rejected Rovi’s request to move the Toshiba depositions to the U.S.  Specifically, ALJ Gildea noted that Rovi “failed to articulate or attach any support for its claim that having the depositions in Taiwan or Korea creates a hardship on Rovi which would outweigh any considerations of witness convenience.”