On April 23, 2012, Chief ALJ Charles E. Bullock issued Order No. 42 in Certain Computer Forensic Devices and Products Containing the Same (Inv. No. 337-TA-799) denying Respondents Guidance Software, Inc. and Guidance Tableau, LLC’s (collectively, “Guidance”) motion to compel Complainant MyKey Technology Inc. (“MyKey”) to make the products MyKey is relying on for the domestic industry requirement available for inspection.
According to the Order, Guidance argued that MyKey’s responses to document requests asking for samples of domestic industry products indicated that MyKey would make such products available for inspection at its counsel’s office in Northern California, but that MyKey had placed restrictions on the inspection making it “difficult, if not almost impossible” for Guidance to properly examine the products (e.g., no samples were “visible” at MyKey’s warehouse, access to inspect samples was denied, an offer to trade product samples between parties was rejected). MyKey responded that its domestic industry products were available for inspection at its counsel’s office since September 2011 and Guidance never asked to inspect them during discovery.
The Commission Investigative Staff (“OUII”) opposed the motion, asserting that “unlike MyKey, Guidance never made an effort to schedule an inspection of MyKey’s alleged domestic industry products.” Further, according to OUII, since MyKey was required to visit the respondents during fact discovery, it would be unfair to require MyKey to ship its domestic industry products to Guidance after Guidance failed to request an inspection during fact discovery.
Having reviewed the parties’ pleadings and arguments, ALJ Bullock agreed with MyKey and OUII and denied the motion, finding that the only barriers to inspection were of Guidance’s own making.