On May 9, 2013, ALJ E. James Gildea issued the public version of Order No. 38 (dated May 1, 2013) in Certain Wireless Consumer Electronics Devices and Components Thereof (Inv. No. 337-TA-853).

By way of background, on April 23, 2013, ALJ Gildea had issued Order No. 27 which granted-in-part Respondents Garmin Ltd., Garmin International, Inc., Garmin U.S.A., Inc., ZTE Corporation, and ZTE (USA) Inc.’s (collectively, “Respondents”) motion to compel discovery. Before ruling on Respondents’ request for unredacted attorney invoices, ALJ Gildea requested further briefing on the issue of whether Complainants Technology Properties Limited LLC, Phoenix Digital Solutions, LLC (“PDS”), and Patriot Scientific Corporation (collectively, “Complainants”) had waived the right to rely on legal fees and/or litigation expenses to prove domestic industry.

According to Order No. 38, Respondents submitted a supplemental memorandum asserting that Complainants waived the right to rely on legal fees and litigation expenses to establish a domestic industry. Specifically, Respondents argued that Complainants stated in a letter and in interrogatory responses that they did not intend to rely on legal fees to prove domestic industry. Further, Respondents stated that Complainants waited until two weeks after the deadline for contention interrogatory responses to assert the use of legal fees to prove domestic industry.

In opposition, Complainants filed a supplemental memorandum arguing that they should be able to use attorney invoices which documented the legal fees, and PDS financial documents to support their domestic industry case. Specifically, Complainants asserted that they should be able to rely on these documents to prove their domestic industry case because they were produced before the close of fact discovery.

ALJ Gildea held that the Complainants unequivocally waived their right to use the attorney invoices. Further, the ALJ determined that Complainants could not rely on the PDS financial documents because their request to use those documents was already denied in Order No. 28. Accordingly, ALJ Gildea denied Respondents’ request for unredacted attorney invoices as moot on the grounds that Complainants waived their right to rely on them to prove the domestic industry requirement.