By John Presper
On December 9, 2013, ALJ Theodore R. Essex issued the public version of Order No. 35 (dated November 18, 2013) in Certain Omega-3 Extracts from Marine or Aquatic Biomass and Products Containing the Same (Inv. No. 337-TA-877).

According to the Order, Respondents Enzymotec Ltd.; Enzymotec USA; Olympic Seafood AS; Olympic Biotec Ltd.; Avoca, Inc.; Rimfrost USA, LLC; Bioriginal Food & Science Corp.; Aker BioMarine AS; Aker BioMarine Antarctic AS; and Aker BioMarine Antarctic USA, Inc. (collectively, “Respondents”) filed a motion to compel Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively “Neptune”) to produce Neptune’s CEO for deposition.  Respondents argued that Neptune’s CEO has unique personal knowledge of many topics important to the investigation, such as (1) the conception, reduction to practice, and development of the alleged inventions of the patents-in-suit; (2) Neptune’s manufacturing process; (3) alleged inequitable conduct during the prosecution of the patents-in-suit; (4) Neptune’s alleged domestic industry; and (5) Neptune’s assertions that an exclusion order against Respondents would be consistent with the public interest, including the reconstruction effort at Neptune’s Sherbrooke plant.  In opposition, Neptune maintained that their CEO is an “apex” employee and that Respondents have failed to demonstrate that he has unique knowledge warranting the burden of having him deposed.

ALJ Essex found that Respondents demonstrated that good cause exists for deposing Neptune’s CEO, stating that while he certainly qualifies as an “apex” employee, several other low-level Neptune employees referred to the CEO as the person most knowledgeable regarding several deposition topics.  The ALJ also noted the testimony of several Neptune witnesses which demonstrated that Neptune’s CEO has unique and important information regarding several topic relevant to the investigation.  Accordingly, ALJ Essex granted Respondent’s motion.