By Eric Schweibenz
On March 9, 2012, ALJ Theodore R. Essex issued Order No. 15 granting in part Complainants’ motion to compel discovery responses from Respondents Fuzhou F&V Photographic Equipment Co., Ltd. (“F&V”) and Shantou Nanguang Photographic Equipment Co., Ltd. (“Nanguang”) in Certain LED Photographic Lighting Devices and Components Thereof (Inv. No. 337-TA-804).

By way of background, the investigation is based on a complaint filed on behalf of Litepanels, Ltd. of the United Kingdom and Litepanels, Inc. of Van Nuys, California (collectively “LP”) alleging violation of Section 337 through sale of certain LED photographic lighting devices and components thereof that allegedly infringe several U.S. patents.  See our August 8, 2011 post for more details.

According to the Order, LP moved to compel F&V and Nanguang to “provide full and complete responses” to various discovery requests.  With respect to F&V, LP stated that it served its first round of discovery requests on September 20, 2011, and F&V did not serve responses until November 2, 2011.  One month later, LP sent F&V a letter “complaining about perceived deficiencies…including…the failure to include Bates number identifiers” and the fact that F&V has only produced 43 pages of documents.  In addition, F&V had failed to respond to LP’s second set of interrogatories or document requests at the time of filing the motion.  Furthermore, the ALJ had previously instructed F&V to supplement its responses to the first set of interrogatories, but supposedly F&V still has yet to do so. 

With respect to Nanguang, LP outlined a similar pattern of delayed or nonexistent responses.  Nanguang “refused to respond” until LP identified an infringing product, and the ALJ previously instructed them to work together to resolve this issue.  Although LP identified an allegedly infringing product, at the date of the motion Nanguang has not supplemented its responses and has produced only a single document.  LP argued that this “failure to provide discovery has severely prejudiced” its ability to gather sufficient evidence against respondents, and that by failing to respond to any of its discovery requests, F&V and Nanguang have waived all of their objections to LP’s discovery requests.

F&V and Nanguang filed a joint opposition to the motion, arguing that they have responded in a timely manner and promised to continue to provide discovery.  Nanguang also asserted that the delay was due to LP’s failure to identify an infringing product until January 27, 2012.  F&V and Nanguang both argued that they have not waived their objections to discovery responses because the facts of this case can be distinguished from the principal case relied upon by LP.  Last, F&V and Nanguang “apologize for failing to respond” because they claim “they did not fully understand the necessity of a full and complete and timely response” to the discovery requests.

ALJ Essex began by stating that “due to the complexity and fast-paced nature of Section 337 investigations, blatant disregard for the procedural rules and Orders of the ALJ will not be tolerated.”  Next, the ALJ found that all requested discovery was relevant to the subject matter of the investigation and within the scope of permissible discovery.  Further, ALJ Essex held that F&V and Nanguang’s arguments were unpersuasive because “ignorance of the obligations under the Commission Rules and Ground Rules is not an excuse.”  As such, ALJ Essex granted in part the motion to compel F&V and Nanguang to provide fully responsive answers to LP’s interrogatories and to produce all documents and things responsive to requests for production within ten days of this order. 

However, the motion was only granted in part because the ALJ did not find that F&V and Nanguang had waived all objections to the discovery requests at issue as this “seems an overly harsh sanction at this point in the investigation.”  Regardless, ALJ Essex warned F&V and Nanguang of his willingness to reconsider this ruling or to impose sanctions if they continue to refuse or fail to give complete and meaningful answers or responses to the discovery requests, noting that “mere boilerplate objections will not suffice.”