By John Presper
On December 9, 2013, ALJ Theodore R. Essex issued the public version of Order No. 34 (dated November 15, 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, Complainants Neptune Technologies & Bioressources Inc. and Ascati Pharma Inc. (collectively, “Neptune”) filed a motion to compel Respondents Aker BioMarine AS, Aker BioMarine Antarctic AS, and Aker BioMarine Antarctic USA, Inc. (collectively, “Aker”) to produce documents and two witnesses for deposition regarding reexamination testing.  In a status update filed following the 16-day government shutdown, the parties noted that Neptune no longer sought to compel documents or one of the two witnesses; however, Neptune still sought to compel the deposition of J. Mitchell Jones.  According to Neptune, Mr. Jones improperly refused to respond to Neptune’s subpoena on the grounds that he “has no non-privileged information that is responsive or relevant.”  Neptune argued that they are entitled to probe his knowledge and privilege claims in a deposition, just as Aker did with Neptune’s reexamination counsel.  Neptune also asserted that Mr. Jones did not move to quash or sought to narrow the scope of the subpoena, and that any objections he may have had are therefore waived.  In opposition, Aker asserted that Neptune failed to meet and confer regarding the deposition of Mr. Jones, and that Neptune failed to demonstrate that any discovery from his deposition would be relevant to the investigation because Mr. Jones was only reexamination counsel for a patent related to the asserted patents (unlike reexamination counsel for Neptune who prosecuted the asserted patents and were deposed).

ALJ Essex denied Neptune’s motion on the grounds that (1) the proper mechanism to compel the deposition of a third party is not a motion to compel, but a request for judicial enforcement under Commission Rule 210.32(g); and (2) Neptune failed to explain why the deposition of Mr. Jones is necessary or how he has any relevant information.