On November 21, 2013, ALJ E. James Gildea issued the public versions of Order Nos. 43 and 45 (dated November 7, 2013 and November 8, 2013, respectively) in Certain Microelectromechanical Systems (“MEMS Devices”) and Products Containing the Same (Inv. No. 337-TA-876)

According to Order No. 43, nonparty GLOBALFOUNDRIES U.S. Inc. (“Nonparty”) filed a motion to limit and quash the subpoena duces tecum and ad testificandum served on it by Complainant STMicroelectronics, Inc. (“Complainant”).  Nonparty argued that most of the discovery sought by Complainant is in the possession of GLOBALFOUNDARIES Singapore (“GFS”), a related entity, and Nonparty lacked the ability to obtain the requested discovery.  Furthermore, Nonparty asserted that it should not have to produce documents that are duplicative of those produced by Respondent InvenSense, Inc. (“InvenSense”).  In opposition, Complainant argued that Nonparty is intimately involved in the dealings between GFS and InvenSense.  Additionally, Complainant asserted that Nonparty has a greater level of control over GFS materials than Nonparty claims.  Specifically, Complainant noted that Nonparty maintains a portal with access to GFS and can obtain data or documents on demand.

ALJ Gildea held that Nonparty must complete its document production and produce a knowledgeable witness(es).  ALJ Gildea determined that a parent entity’s ability to better produce those documents does not affect a nonparty’s obligation to produce all responsive, non-privileged documents within its possession, custody, or control.  Accordingly, ALJ Gildea denied Nonparty’s Motion to Limit or Quash.

According to Order No. 45, Complainant filed a motion to compel additional deposition time of InvenSense’s corporate designee, Dr. Joseph Seeger.  Complainant argued that there was not enough time in a single deposition day to cover all of the accused products.  In opposition, InvenSense asserted that a single day was enough time with the witness and the designation of another witness rendered the issue moot. 

ALJ Gildea determined that a single deposition day was insufficient time for a single witness to testify on so many accused products.  ALJ Gildea further held that InvenSense’s alternative witness was not a sufficient substitute because in the witness’s previous deposition testimony the witness frequently lacked knowledge on technical issues.  In order to streamline the issues in the investigation, ALJ Gildea ordered the parties to meet and confer in good faith to designate representative accused products.  Accordingly, ALJ Gildea granted Complainant’s Motion to Compel, ordering InvenSense to make Dr. Seeger available for up to twelve more hours of deposition.