By Eric Schweibenz
On May 29, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 41 (dated May 12, 2009) in Certain Semiconductor Integrated Circuits and Products Containing Same (337-TA-665).  In the Order, ALJ Rogers granted-in-part and denied-in-part Complainant Qimonda AG’s (“Qimonda”) motion to compel respondent LSI Corporation (“LSI”) to produce certain documents as kept in the ordinary course of business.

ALJ Rogers first determined that Qimonda met its meet and confer obligations under the ground rules by raising the issue of LSI’s purported failure to produce documents as they are kept in the ordinary course of business during a Discovery Committee meeting and a follow-up letter.

In its motion, Qimonda raised four issues regarding LSI’s document production.  Specifically, Qimonda asserted that LSI: (1) produced Microsoft Excel spreadsheets in TIFF format, making them difficult to understand and manage; (2) improperly redacted certain documents for relevance purposes; (3) withheld document file names for the documents that it produced; and (4) produced incomplete documents that are excerpts from larger documents.

Regarding TIFF documents, ALJ Rogers found that the parties agreed in a January 2009 Discovery Committee Report to exchange documents in TIFF format, provided that the documents are searchable.  ALJ Rogers therefore determined that he would not disturb the parties’ agreement by requiring LSI to produce the subject Microsoft Excel worksheets in native format.

With respect to redacted documents, LSI argued that some of its documents included information about accused products and non-accused products, so it was proper to redact the information relating to the non-accused products, because such information was not relevant.  ALJ Rogers rejected this argument and held that “it is improper practice to redact documents based on relevance, as LSI has admittedly done.”  ALJ Rogers further determined that there is no requirement in the Commission Rules that every document produced only contain relevant information and the fact that “some documents may contain both relevant and irrelevant information is not a valid basis for a party to redact data from documents required to be produced.”

As to file names, ALJ Rogers found that LSI was not required to produce such file names since LSI had previously provided the necessary correlation information in its interrogatory responses.

Lastly, regarding allegedly incomplete documents, ALJ Rogers determined that LSI produced exactly what its employees maintained in the usual course of business and it was not required to “provide an entire document when only a portion is retained by its employees in the usual course of business."
Tags: ALJ Orders