By Eric Schweibenz
On March 6, 2012, ALJ Theodore R. Essex issued Order No. 15 granting Complainants’ motion to strike Respondents’ rebuttal expert on domestic industry in Certain Universal Serial Bus (“USB”) Portable Storage Devices, Including USB Flash Drives and Components Thereof (337-TA-788).

By way of background, the investigation is based on a complaint filed by Trek 2000 International Ltd., Trek Technology (Singapore) Pte. Ltd., and S-Com System (S) Pte. Ltd. (collectively, “Trek”) alleging violation of Section 337 in the importation and sale of certain universal serial bus (“USB”) portable storage devices that infringe one or more U.S. Patents.  See our June 17, 2011 and July 15, 2011 posts for more details.

According to the Order, Trek filed a motion to strike Respondents’ rebuttal expert on domestic industry, arguing that Respondents identified their expert six weeks after the deadline for doing so.  Trek asserted that it will be “substantially prejudiced by this late identification and Respondents have offered no justification for missing the deadline.”  Respondents admitted to missing the deadline, but argued there was no prejudice and that their late identification was “justified by Trek’s significant change in positions in its expert’s report.”  The Commission Investigative Staff (“OUII”) filed a response in support of Trek’s motion, noting “fairness and judicial efficiency are lost when parties are permitted to ignore the procedural schedule order” and arguing that Respondents had not shown good cause for their delay.

ALJ Essex began by stating that any alleged change in Trek’s position is “simply not a justification” for Respondents’ actions and that a six week delay is “unacceptable.”  The ALJ noted that he has previously explained that complying with the procedural schedule is “essential for providing the fair and expeditious resolution that is the hallmark of these investigations.”  As such, the ALJ “cannot allow Respondents to unilaterally disrupt discovery and dictate such matters in callous disregard of the time schedules imposed” and ALJ Essex granted the motion to strike the expert testimony.