On January 13, 2016, ALJ Dee Lord issued Order No. 22 in Certain Activity Tracking Devices, Systems, and Components Thereof (Inv. No. 337-TA-963).
By way of background, this investigation is based on a July 8, 2015 complaint filed by AliphCom d/b/a Jawbone and BodyMedia, Inc. (collectively “Jawbone”) alleging violation of Section 337 in the importation into the U.S. and sale of certain wearable fitness and activity tracker devices, systems, and components thereof that infringe one or more claims of U.S. Patent Nos. 8,446,275; 8,529,811; 8,793,522; 8,961,413; 8,073,707; and 8,398,546. The complaint further alleges that the Proposed Respondents have engaged in unfair competition and unfair acts by their access and improper use of Jawbone’s trade secret confidential information related to Jawbone’s technology and wearable product development plans, roadmaps, and financial information. See our July 8, 2015and August 18, 2015 posts for more details on the complaint and Notice of Investigation, respectively.
According to Order No. 22, Jawbone filed a motion to compel Respondents Flextronics International Ltd. and Flextronics Sales & Marketing (A-P) Ltd. (collectively, “Flextronics”) to produce certain witnesses for depositions in the U.S. The primary dispute raised by Jawbone's motion centered around the interpretation of the parties’ Joint Discovery Statement which requires depositions of “foreign witnesses testifying on behalf of a party” to take place at the “location of a party’s U.S. counsel or a party’s U.S. headquarters or offices, at the election of the producing party.” In support of its motion, Jawbone argued that this provision “requires that all of a parties’ foreign witnesses appear in the United States.” On the other hand, Flextronics argued that this provision is limited to corporate designees.
ALJ Lord determined that the provision in question was ambiguous and thus applied the ITC's "default rule” that “depositions should be ‘conducted at the location most convenient for the witness, unless the deposing party makes a showing of hardship or unusual circumstances associated with that location.’” Because Jawbone did not make the required showing under the aforementioned default rule, the motion to compel was denied and thus it was ordered that the “depositions of Flextronics’s non-corporate witnesses shall take place at locations convenient for the witnesses.”