On November 15, 2013, ALJ Theodore R. Essex issued Order No. 33 in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively “Neptune”) filed a motion to compel respondents Enzymotec Ltd. and Enzymotec USA, Inc. (collectively, “Enzymotec”) to produce emails in response to Neptune’s email requests.  Neptune argued that Enzymotec conducted its email search using extremely narrow search parameters.  Neptune asserted that their proposed search terms are needed to produce information relevant to “indirect infringement, secondary considerations of non-obviousness, and the public interest.”  Neptune further argued that “consistency” required granting Neptune’s motion because the ALJ granted Enzymotec’s motion to compel.

In opposition, Enzymotec argued that Neptune’s proposed single-word search terms were overly broad and inconsistent with the parties’ agreement to exchange “limited email discovery.”  Furthermore, Enzymotec asserted that any information that Neptune would obtain from the proposed search terms would be cumulative of information already obtained through discovery.

ALJ Essex determined that Enzymotec excessively narrowed Neptune’s email requests, but also found that Neptune’s proposed search terms are overbroad and improper.  ALJ Essex held that in such situations the Ground Rules require the parties to negotiate in good faith to resolve the dispute or at least narrow the dispute.  ALJ Essex determined that Neptune failed to abide by the Ground Rules because Neptune did not attempt to offer any concessions.  Furthermore, ALJ Essex held that Neptune’s motion failed to offer any substantive justification for the sought-after, additional discovery.  ALJ Essex rejected Neptune’s “consistency” argument because, unlike Neptune’s motion, Enzymotec’s motion offered specific reasons for their discovery requests.  Accordingly, ALJ Essex denied Neptune’s Motion to Compel.