On April 19, 2012, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 16 (dated March 20, 2012) granting-in-part Respondent Xiamen Kingdomway Group Company’s (“XKGC”) motion to compel discovery from Complainant Kaneka Corporation (“Kaneka”) in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).
According to the Order, XKGC sought (1) a Kaneka deponent knowledgeable about pre-2002 sales of coenzyme Q10; (2) documents responsive to requests for purchase orders, invoices and shipping records related to Kaneka’s pre-2002 sales, and answers to interrogatories seeking identification of the requested documents; and (3) proper responses to document requests and interrogatories relating to Kaneka’s pre-2002 technical standard covering its process for extracting, purifying and oxidizing coenzyme Q10.
Kaneka argued in opposition that (1) its corporate witness was adequately prepared for the deposition, that the information XKGC seeks (details from 11 year-old emails) is not within Kaneka’s institutional knowledge such that it can prepare another designee to testify about such information, and that XKGC’s deposition notice was too vague because it did not specifically identify the documents shown to the witness during the deposition; (2) it does not have any documents responsive to requests for purchase orders, invoices and shipping records related to Kaneka’s pre-2002 sales, noting that such documents are only retained for seven years according to Kaneka’s document retention policy; and (3) XKGC misconstrues what is required by the interrogatory (No. 58) relating to Kaneka’s technical standard, Kaneka is still investigating the facts surrounding another interrogatory (No. 57) and document request (No. 147) relating to sales of products under the standard, and no documents can be located after a diligent search regarding another document request (No. 148) relating to sales under the standard.
The Commission Investigative Staff (“OUII”) supported the motion, asserting that (1) the testimony of Kaneka’s witness showed he was not prepared to talk about the emails Kaneka produced, and that Kaneka should be compelled to provide a knowledgeable witness; (2) XKGC discovered at least one document in Kaneka’s production responsive to the requests for highly relevant pre-2002 purchase orders and invoices after Kaneka contended that no such documents existed; and (3) Kaneka did not explain why it failed to provide a response to Document Request No. 147 and Interrogatory No. 57 which seek highly relevant information. OUII further argued that Kaneka should be ordered to produce documents and information in connection with (2) and (3) or submit a declaration detailing its search efforts if no such information is available.
ALJ Rogers rejected Kaneka’s arguments with respect to its corporate designee and XKGC’s deposition notice, finding that (i) the topics in the deposition notice were adequate, and that the notice need not specifically identify the documents that would be used during the deposition; (ii) the emails produced by Kaneka gave the impression that Kaneka may have been selling coenzyme Q10 prior to 2002, and that Kaneka should not have been surprised by XKGC’s desire to ask Kaneka’s witness about the emails produced during discovery; (iii) the deposition testimony indicated that other Kaneka employees may have knowledge regarding the subject matter; and (iv) other Kaneka employees who were not corporate designees and testified that they had no knowledge of pre-2002 sales activities does not demonstrate that Kaneka’s 30(b)(6) witness was sufficiently prepared for the deposition and “does not bear the same import as 30(b)(6) testimony.” With respect to XKGC’s documents requests and interrogatories relating to purchase orders, invoices and shipping records for Kaneka’s pre-2002 sales, the ALJ found that XKGC offered no evidence that Kaneka purposefully withheld documents or failed to perform an adequate search. Finally, as to XKGC’s document requests and interrogatories relating to Kaneka’s technical standard, ALJ Rogers found that (i) Kaneka had sufficient time to search for and locate documents responsive to Document Request No. 147 and Interrogatory No. 57, and must fully respond to same; (ii) Kaneka sufficiently answered Interrogatory No. 58 seeking dates and revision numbers for each revision of the technical standard; and (iii) XKGC offered no evidence that Kaneka purposefully withheld sales documents responsive to Document Request No. 148 or failed to perform an adequate search for same. Accordingly, the motion was granted-in-part and denied-in-part.