By Eric Schweibenz
On April 12, 2013, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 36 (dated March 5, 2013) in Certain Rubber Resins and Processes for Manufacturing Same (Inv. No. 337-TA-849).

According to the Order, Respondents filed a motion to strike a supplemental interrogatory response filed by Complainant SI Group, Inc. (“SI Group”) after the close of fact discovery.  Respondents assert that the late supplemental interrogatory response contained new allegations of trade secret misappropriation.  Further, Respondents sought to strike SI Group’s opening expert reports to the extent they included opinions alleged for the first time in the untimely supplemental interrogatory response.  Respondents argued that they are prejudiced by the late supplemental interrogatory response because all of their discovery efforts have centered on the trade secrets SI Group identified during discovery. 

In opposition, SI Group argued that Respondents’ own delay tactics are the reason that SI Group could not file the supplemental interrogatory response prior to the close of fact discovery.  Specifically, SI Group alleges that Respondents withheld information about other products that possibly misappropriate SI Group’s trade secrets.  In a further effort to end the dispute, SI Group offered a compromise supplemental interrogatory response, which respondents rejected.  The Commission Investigative Staff asserted that SI Group’s compromise supplemental interrogatory response was the proper response to the dispute.

ALJ Rogers held that some of SI Group’s late supplementation was caused by Respondents’ “late discovery and obfuscation.”  ALJ Rogers determined that the compromise offered by SI Group reflected the appropriate remedy to Respondents’ motion because it only allowed supplementation as to products and allegations that did not come to light until later in discovery due to Respondents’ own discovery delays.  ALJ Rogers further ordered SI Group to submit new opening expert reports in conformity with Order No. 36.  Accordingly, ALJ Rogers granted-in-part and denied-in-part Respondents’ motion.