By Eric Schweibenz
On August 28, 2009, ALJ Theodore R. Essex issued Order No. 47 in Certain Semiconductor Chips with Minimized Chip Package Size and Products Containing Same (Inv. No. 337-TA-630).  In the Order, ALJ Essex denied a motion brought by third party Qualcomm Incorporated (“Qualcomm”) for an order granting access to a non-confidential version of the evidentiary hearing testimony of Tessera, Inc.’s (“Tessera”) infringement expert, Dr. Qu.

In support of its motion, Qualcomm argued that the First Amendment of the U.S. Constitution guarantees members of the public the right to access non-confidential records of judicial and administrative proceedings in order to “ensure transparency and consistency in Commission adjudications.”

Tessera opposed Qualcomm’s motion arguing that Qualcomm’s request was “burdensome” and “inextricably interlaced with the confidential information of the 630 Respondents, consultant CAE, and dozens of third parties” who produced their confidential data under the terms of the Protective Order.  Tessera further argued that “there is no basis for imposing any such expense on the parties or burden on the Court” and “Qualcomm’s real interest in the [subject] testimony is to find inconsistencies in Dr. Qu’s testimony as compared to Qualcomm’s own recently closed [605] investigation” that might support a motion for reconsideration of the Commission’s determination in the 605 investigation.  For its part, the Commission Investigative Staff (the “Staff”) also opposed Qualcomm’s motion arguing that while the ALJ could order the parties to provide a public version of the testimony, such an order “would be a considerable amount of work.”  Staff further argued that “Qualcomm’s purposes are misplaced given that the time period for filing a motion for reconsideration in the 605 [i]nvestigation has already expired” and Dr. Qu’s testimony from the 605 investigation could not be used on appeal in the 630 investigation since such testimony “would constitute new evidence that was not considered by the Commission.”

ALJ Essex determined that the issue presented by Qualcomm’s motion required him to “balance [Qualcomm’s] need and desire to obtain a public version [of Dr. Qu’s hearing testimony] against the burden that this will impose on the parties and the Commission in complying with that request as well as against the Commission’s broader fact finding abilities.”  ALJ Essex noted that Qualcomm failed to cite any Commission authority “where the ALJ ordered parties to an investigation to produce a public, non-confidential version of an exhibit admitted into evidence, including a witness’s testimony, at the request of a third party.”  ALJ Essex further found that “the Commission’s practice has historically been to keep the witness’s testimony and/or exhibit confidential in its entirety, absent an objection or request from a party to the investigation.”  Accordingly, ALJ Essex determined that Qualcomm’s arguments were “unpersuasive” and “requiring parties in an investigation to produce a public version of an exhibit at the request of a third party could ultimately have a chilling effect on the Commission’s fact finding abilities, especially were the ALJ to grant such a request on a basis as nebulous as Qualcomm’s ‘First Amendment’ right.”  In sum, ALJ Essex found that “Qualcomm’s alleged ‘First Amendment’ right to access the information does not outweigh the burden that the nonparty request can impose on the parties and the likely effect granting such a request would have on the Commission’s fact gathering abilities, which include the voluntary submission of confidential information by the parties and nonparties.”