By Eric Schweibenz
On October 3, 2012, ALJ Theodore R. Essex issued Order No. 9 (dated October 2, 2012) granting-in-part and denying-in-part Complainant FlashPoint Technology, Inc.’s (“FlashPoint”) motion to supplement the protective order as it relates to source code in Certain Electronic Imaging Devices (Inv. No. 337-TA-850).

By way of background, the investigation is based on a complaint filed by FlashPoint alleging violation of Section 337 in the importation into the U.S. and sale of certain electronic imaging devices that infringe one or more claims of U.S. Patent Nos. 6,400,471, 6,222,538, 6,504,575, and 6,223,190.  See our May 25, 2012 post for more details.

According to the Order, FlashPoint filed a motion to supplement the protective order as it relates to source code, proposing an amendment that would require HTC to provide a source code computer for attorney review at its counsels’ office in Washington D.C., and that the source code computer would be available during depositions of expert and 30(b)(6) witnesses.  FlashPoint’s motion was opposed by Respondents HTC Corporation and HTC America, Inc. (“HTC”), who proposed a different amendment to the protective order.  Specifically, HTC proposed that the computer be available at FlashPoint’s counsels’ branch office in San Diego, California.  FlashPoint filed a motion for leave to reply to HTC’s opposition that was granted based on the ALJ’s determination that good cause existed.

The ALJ settled the issue of the location of the source code computer for review by noting that FlashPoint “admits it is amenable to storing one source code computer in San Diego, CA.”  As for providing a source code computer during depositions, the ALJ agreed that “FlashPoint’s interest in more efficient discovery outweighs the economic burden and security concerns that HTC alleges may be realized if a second source computer is produced.”  Thus, HTC is ordered to ship a second source code computer to Taiwan to be present during depositions at HTC’s Taiwan facilities.  The ALJ also addressed the parties’ disagreement about the timing of the disclosure of the log of source code review and sided with HTC, determining that the log should be disclosed before a decision is reached, as the log may be used for impeachment purposes.  The Order included text amending Order No. 1 to address the amendments discussed above.