On April 23, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 27 in Certain Electronic Devices Including Handheld Wireless Communications Devices (337-TA-667) denying Complainant Saxon Innovations, LLC’s (“Saxon”) unopposed motion to seek a recommendation to the U.S. District Court for the District of Columbia to issue a letter rogatory to allow Saxon to obtain deposition testimony in Japan.

Saxon sought to depose corporate representatives of Respondents Panasonic Corporation, Panasonic Corporation of North America, and Panasonic Consumer Electronics (collectively “Panasonic”) in Japan on or about May 7, 8, and 11, 2009.  Panasonic’s representative volunteered to sit for the depositions.  Under Japanese law and practice and the mutually agreed interpretation of the U.S. – Japan Bilateral Consular Convention concerning the obtaining of evidence in Japan, a deposition of a willing witness may be taken in Japan: (1) if the deposition is presided over by a U.S. consular official; (2) is conducted on U.S. consular premises; (3) is taken pursuant to an American court order or commission; and (4) if any non-Japanese participant travelling to Japan applies for and obtains a Japanese Special Deposition visa.  The U.S. State Department recommends that one must apply for a Special Deposition visa at least two weeks prior to departure for Japan.  A copy of the court order or commission must accompany the application for the Special Deposition visa.

ALJ Rogers denied Saxon’s motion as untimely.  Specifically, ALJ Rogers determined that since Saxon’s counsel would have to leave for Japan on May 6 or 7 in order to conduct the deposition as scheduled, Saxon’s counsel would have needed to apply for the Special Deposition visa by April 22, 2009.  According to the Order, Saxon filed its motion on April 16, 2009 and thus left ALJ Rogers and the U.S. District Court for the District of Columbia six days to receive and consider the motion and to issue the letter rogatory. 

In its motion, Saxon cited Commission precedent supporting its request for a recommendation to the district court.  However, according to ALJ Rogers, in that case, the complainant filed its motion four weeks in advance of the deadline to obtain the Special Deposition visa.  Here, Saxon filed its motion only six days before the deadline.
ALJ Rogers denied Saxon’s motion but noted that due to the consolidation of the current investigation with Investigation No. 337-TA-673, the deadline for fact discovery was extended until August 3, 2009.  This would give Saxon the additional time needed to take the deposition and also give ample time to request a letter rogatory.