On June 14, 2012, ALJ Thomas B. Pender issued the public version of Order No. 33 (dated June 4, 2012) denying Complainant’s motion to supplement its expert reports in Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-785).
By way of background, the Complainant in this investigation is OSRAM GmbH (“OSRAM”) and the Respondents are Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., Samsung LED Co., Ltd., and Samsung LED America, Inc. (collectively, “Samsung”), and LG Electronics, Inc., LG Innotek Co., Ltd., LG Electronics U.S.A., Inc., and LG Innotek U.S.A., Inc. (collectively, “LG”). See our July 7, 2011 post for more details on this investigation.
According to the order, OSRAM filed a motion for leave to file out of time a motion for leave to supplement four expert reports. Samsung and LG each filed oppositions to the motion with respect to supplementing the expert reports. Although ALJ Pender granted the motion to the extent it sought leave to file out of time, the request to supplement the expert reports was denied for failure to show good cause.
OSRAM’s first argument was that supplementation was necessary “to conform the technical domestic industry analyses of their reports to Order No. 31.” However, the ALJ dismissed OSRAM’s argument, noting that he previously explained that “Order No. 31 is not the trigger or cannot be the trigger” for supplementing expert reports, and that only later acquired information can constitute good cause sufficient to allow supplementation of expert reports.
OSRAM also argued that two of its experts needed to file supplemental reports to address newly accused products. However, the ALJ was not persuaded, pointing out that OSRAM delayed almost one month after receiving technical documents on these products before seeking to supplement the report, and failed to identify any evidence received later that would be the basis of a supplemental report. ALJ Pender considered this delay to be “unacceptable given the current procedural schedule” (noting that there were only three days remaining in the expert discovery period when OSRAM filed its proposed supplemental reports). Furthermore, ALJ Pender noted the inconsistency of OSRAM’s ability to make infringement accusations without the benefit of a product sample or reverse engineering report for several products, although maintaining now that “reverse engineering reports were necessary to accuse the other Samsung products of infringement.” The ALJ also noted that OSRAM had “at least one thousand samples” of a particular product as of 2011 and included analysis of this product in its complaint, and thus “OSRAM’s failure to include such analysis in its initial expert reports does not support a finding of good cause to now supplement the expert reports with this information.” Thus, ALJ Pender denied OSRAM’s motion for leave to supplement its expert reports.