22
Mar
By Eric Schweibenz
On March 21, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 17 granting-in-part Respondents Zhejiang Medicine Co., Ltd. and ZMC-USA LLC’s (collectively, “Respondents”) motion to compel in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).

According to the Order, Respondents moved to compel Complainant Kaneka Corporation (“Kaneka”) to produce (1) all documents identified on Kaneka’s privilege log not authored by or sent to an attorney; (2) a list of the positions and entities with which the individuals in the remaining documents on its privilege logs are affiliated; (3) all withheld privileged documents not yet logged; (4) all communications between Kaneka employees and non-attorney members of the intellectual property department; and (5) all documents relating to certain testing.  Respondents asserted that Kaneka’s privilege logs are insufficient to support a claim of privilege for a significant number of documents listed therein.  Kaneka countered that it provided a “full supplemental privilege log” on March 2, 2012 in compliance with Ground Rule 4.10.1 and a separate index of individuals’ names appearing therein, rendering moot a substantial portion of Respondents’ motion.  The Commission Investigative Staff (“OUII”) supported the motion in part, agreeing with Respondents that Kaneka’s privilege logs are incomplete but disagreeing with the scope of the documents Respondents sought to have produced since privilege and work product protection are not limited to communications to or from attorneys.  OUII argued instead that Kaneka should be ordered to produce complete and detailed privilege logs and that Respondents be permitted to re-file the motion if necessary after reviewing the new logs.

ALJ Rogers found that Kaneka’s March 2, 2012 privilege log lacked numerous details required by Ground Rule 4.10.1, such as (1) failing to specify the author(s)/sender(s) for each document (e.g., leaving space blank, listing “No reference,” or listing an entity rather than a person); (2) failing to specify the position and entity associated with the sender(s) and recipient(s) for each document (e.g., specifying name without position or entity, or specifying entity without name or position); (3) failing to provide the general subject matter of each document or properly indicating that documents protected as attorney work product were prepared in anticipation of litigation (e.g., “document containing legal advice regarding patent strategy,” “email related to draft license agreement,” “email attached to document referring to legal advice re: litigation in Europe,” “chart attached to the email from law firm,” “draft memorandum of understanding”); and (4) failing to include a certification.  Accordingly, the ALJ ordered Kaneka to produce a revised privilege log that complies with Ground Rule 4.10.1 and any documents for which Kaneka cannot substantiate its claims of privilege.  ALJ Rogers rejected Respondents’ argument that Kaneka waived privilege, but noted that Respondents may re-file their motion to compel on any remaining issues after receipt of the revised privilege log and/or documents from Kaneka.