On March 27, 2012, ALJ Charles E. Bullock issued the public versions of Order No. 36 and Order No. 37 (dated March 16, 2012) concerning motions to compel filed by the Complainant Vizio, Inc. (“Vizio”) in Certain Digital Televisions and Components Thereof (337-TA-789).
By way of background, the investigation is based on a complaint filed by Vizio alleging violation of Section 337 in the importation into the U.S. and sale of certain digital televisions and components thereof that infringe several U.S. Patents. See our June 21, 2011 post for more details.
According to Order 36, Vizio filed a motion to compel Respondent Curtis International, Inc. (“Curtis”) to respond to outstanding requests for admission (or deem them admitted) and to provide a witness for deposition. Vizio argued that Curtis had not filed any responses to date to Requests for Admission filed in January 24, 2012 and failed to provide a deposition witness after agreeing to do so. In short, “since the withdrawal of Curtis’ counsel on January 30, 2012, Curtis has failed to participate in this litigation.” Commission Investigative Staff (“OUII”) filed a motion in support of Vizio. The other Respondents in the case responded without taking a position, requesting that any admissions deemed to be admitted should be deemed admitted solely against Curtis. Curtis did not file a response.
ALJ Bullock agreed that the requested discovery was relevant and permissible, and since Curtis failed to respond to Vizio’s motion, “Curtis has waived its right to object.” The ALJ granted Vizio’s motion, giving Curtis five days to respond. Relying on 19 C.F.R. § 210.32(c), the ALJ also determined “should Curtis fail to respond to Vizio’s First Set of Requests for Admission, Curtis shall be deemed to have admitted the matters set forth therein.”
According to Order 37, Vizio moved to compel Respondent Renesas Electronics Corporation (“Renesas”) to produce information and documents related to foreign sales, development, marketing, and advertising of the accused products, claiming that Renesas improperly refused to do so on the basis of relevance. Vizio argued that Commission precedent is clear that sales to foreign customers are relevant and discoverable. Renesas opposed the motion, arguing that it had provided all necessary information and that Vizio sought this discovery not because it related to sale for importation, but merely to harass its customers. OUII supported Vizio’s motion, noting that Vizio is entitled to discovery into Renesas’ foreign sales because importation of the accused Renesas products remained a disputed issue in the investigation.
ALJ Bullock determined that the requested discovery is relevant, or at least reasonably calculated to lead to the discovery of admissible evidence. The ALJ noted in particular that, where the issue of importation is in dispute, a complainant “is generally entitled to discovery regarding the identity of a respondent’s foreign customers as well as information regarding sales to foreign customers.” As such, ALJ Bullock granted Vizio’s motion, and gave Renesas five days to supplement its discovery responses and productions in relation to foreign customers and sales.