On December 6, 2013, ALJ David P. Shaw issued Order No. 31 denying Complainant Black Hills Media, LLC’s (“BHM”) motion for leave to file out of time various motions to compel in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).

According to the Order, BHM had filed three motions to compel against Respondents Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; and Samsung Telecommunications America, LLC (collectively, “Samsung”); Respondents LG Electronics, Inc.; LG Electronics U.S.A., Inc.; and LG Electronics MobileComm U.S.A., Inc. (collectively, “LG”); and non-party Netflix, Inc. (“Netflix”) 41 minutes after the deadline of 5:15 p.m. on November 1, 2013.  Soon after, BHM learned that the motions contained confidential business information of Samsung, LG and Netflix, and requested that the motions not be made available as public documents on EDIS.  BHM did not re-file the motions as confidential, and sent an email to Samsung, LG and Netflix on November 4, 5 and 11 regarding filing a motion for leave to late file the motions to compel.  The instant motion was filed on November 21.  BHM asserted that it “believed it had filed this motion for leave to file out of time on November 12, 2013, but due to internal miscommunication, it was not.”  BHM argued that good cause exists to grant its motion for leave inasmuch as Samsung, LG and Netflix were not prejudiced by the late filing of the motions to compel, and because BHM spent significant time attempting to obtain the requested discovery through meet and confer efforts with Samsung, LG and Netflix.

ALJ Shaw explained that while he was encouraged by BHM’s efforts to resolve the disputes without resorting to motion practice, this did not excuse BHM from waiting 20 days after the deadline to file the motion for leave.  The ALJ also noted that BHM sent an email to Samsung and LG on November 11 stating its intention to file the motion for leave, but never did so.  Further, ALJ Shaw found BHM’s “internal miscommunication” explanation for its delay unpersuasive.  Observing that the prehearing phase of the investigation was now at an advanced stage (with expert rebuttal reports due this week and prehearing briefs due in two months), the ALJ determined that BHM failed to show good cause as to why its motions to compel should be accepted out of time, and therefore denied the motion for leave.