By Eric Schweibenz
On September 12, 2011, ALJ Robert K. Rogers, Jr. issued Order No. 28 in Certain Starter Motors and Alternators (Inv. No. 337-TA-755).  In the Order, ALJ Rogers denied Complainants Remy International, Inc. and Remy Technologies, Inc.’s (collectively, “Remy”) motion for sanctions for alleged improper conduct by counsel for Respondent Wetherill Associates, Inc. d/b/a WAI Global (“WAI”).

According to the Order, Remy’s motion related to the deposition of Dr. Vincent Winstead, an expert witness for WAI.  During the deposition, counsel for Remy questioned Dr. Winstead about an obviousness argument raised by the Examiner during prosecution of one of the patents asserted in the investigation.  Counsel for Remy asked if the argument was a “losing argument” at the Patent Office.  Before Dr. Winstead could answer, counsel for WAI objected, and added “[i]n fact, it was a winning argument.”  Dr. Winstead later stated that he could not recall whether the argument was a losing argument.

In its motion, Remy argued that by stating in the objection that the argument was a “winning argument,” counsel for WAI improperly coached the witness during the deposition.  As a sanction for such conduct, Remy sought an order precluding Dr. Winstead from serving as an expert and awarding Remy its attorneys’ fees and costs.  According to Remy, “WAI cannot expect to present an expert at the hearing when it prevented a fair examination of the witness at a deposition.”

After considering the motion, ALJ Rogers determined that while the actions of WAI’s counsel during the deposition demonstrated a lack of professional courtesy, they did not rise to a level that warranted sanctions.  The ALJ stated that “[c]ounsel shall conduct depositions in a courteous and professional manner” and that “[c]ounsel defending the deposition may raise objections; but counsel should merely state the objection and then let the questioning proceed.”  Further, “[t]he objection should not be used to attempt to rebut or respond to the question asked of the witness.”

Regarding the substance of the matter, ALJ Rogers found that Remy had not shown that Dr. Winstead’s testimony was influenced by counsel’s remark about the “winning” argument.    Moreover, the ALJ found that the question itself appeared to be irrelevant because the prosecution history speaks for itself and “[t]he expert witness’s characterization of what occurred during prosecution is not helpful.”

Accordingly, ALJ Rogers denied Remy’s motion for sanctions.