On August 24, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 26 in Certain Starter Motors and Alternators (Inv. No. 337-TA-755), denying Complainants Remy International, Inc. and Remy Technologies, Inc.’s (collectively, “Remy”) motion for leave to take the depositions of Jeffrey Sween and Douglas Moul after the close of fact discovery.

According to the Order, Messrs. Sween and Moul are employees of Respondent Wetherill Associates, Inc. d/b/a WAI Global (“WAI”).  Remy sought to depose both witnesses (1) after ALJ Rogers denied on August 9, 2011, WAI’s motion for a protective order to prevent the depositions of both witnesses; (2) after the August 15, 2011, close of fact discovery; and (3) after WAI produced documents from both witnesses, asserting that counsel for WAI agreed that the depositions of Messrs. Sween and Moul could proceed after the close of fact discovery.  WAI responded that the motion violates Ground Rule 3.2 because counsel for Remy did not provide the necessary two business day notice prior to filing the motion, and that it agreed to offer Messrs. Sween and Moul for deposition on August 16, 2011, the day after fact discovery closed, but no later.  WAI further explained that (1) the parties agreed early in the investigation to a discovery protocol involving “A list” and “B list” document custodians under which documents from the “A list” and “B list” custodians would be preserved, but only documents from the “A list” custodians would be produced; (2) Remy had an opportunity to confer regarding the WAI employees placed on each list; (3) Messrs. Sween and Moul were not placed on either list; and (4) WAI nevertheless worked to produce responsive, non-privileged documents from both witnesses prior to August 16.

After noting that Remy said nothing in its motion about notifying the parties at least two business day prior to filing, ALJ Rogers determined that because Remy first gave notice of its intent to file the motion only one day before filing, the motion violated Ground Rule 3.2 and should be denied.