By Eric Schweibenz
On April 30, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 30 (dated April 2, 2009) in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (337-TA-658).  In the Order, ALJ Luckern denied Nintendo Co. Ltd and Nintendo of America Inc.’s (collectively “Nintendo”) motion to stay the procedural schedule.

According to the Order, Nintendo sought to extend the time in which they would be permitted to obtain discovery from Mr. James D. Richards III (“Mr. Richards”) and Mr. Donald S. Odell (“Mr. Odell”).  Such an extension, Nintendo argued, would provide ample time for Nintendo to supplement its expert reports.  Nintendo additionally sought a temporary stay of the procedural schedule, including the evidentiary hearing, until at least six weeks after Mr. Richards complied with a subpoena directed to him.  In response, complainant Hillcrest Laboratories, Inc. (“Hillcrest”) argued that (1) Mr. Richards had no critical information, (2) Nintendo could have previously obtained the discovery it sought from Mr. Richards, and (3) delaying the procedural schedule would cause severe prejudice to Hillcrest and the integrity of Section 337 proceedings.  The Commission Investigative Staff opposed Nintendo’s motion arguing that (1) Nintendo failed to demonstrate a further need for the documents and prototypes currently in Mr. Richard’s possession, (2) discovery of the information sought by Nintendo would not simplify the issues, (3) Nintendo would not be unduly prejudiced without a stay, and (4) a stay would not facilitate the most efficient use of Commission resources.

ALJ Luckern denied Nintendo’s motion to stay because the “appropriate circumstances” did not exist to issue a stay of the investigation.  Specifically, ALJ Luckern determined that because Nintendo requested an “indefinite stay,” sought discovery that was not of “critical importance,” and otherwise failed to make “diligent efforts” to gather the information requested, Nintendo would not be the victim of undue prejudice.