On September 30, 2013, ALJ E. James Gildea issued the public version of Order No. 28 (dated September 18, 2013) in Certain Microelectromechanical Systems (“MEMS Devices”) and Products Containing the Same (Inv. No. 337-TA-876).  In the Order, ALJ Gildea granted Complainant STMicroelectronics, Inc.’s (“STM”) motion to enforce Order No. 7 against Respondent InvenSense, Inc. (“InvenSense”).

By way of background, in Order No. 7, InvenSense was ordered to produce documents responsive to numerous document requests by no later than July 1, 2013.  See our July 3, 2013 post for further details.  In its motion to enforce, STM argued that InvenSense had not complied with Order No. 7 because the deposition of InvenSense’s corporate witness demonstrated that it had been withholding nonparty material responsive to STM’s discovery requests. STM’s motion also requested sanctions if InvenSense should further fail to produce the requested discovery. 

ALJ Gildea found that InvenSense had exhibited a “pattern of resisting discovery.”  The ALJ noted that in Order No. 7, InvenSense was ordered to produce responsive documents and no exception was carved out for nonparty confidential materials within InvenSense’s possession, custody, or control.  Similarly, the ALJ cited Order No. 11, where InvenSense was ordered to supplement certain interrogatory responses.  See our August 7, 2013 post for further details. Again, the ALJ pointed out that in this order, no exception for nonparty confidential materials within InvenSense’s possession, custody, or control was provided.  In Order No. 21, ALJ Gildea had also further clarified that nonparty confidential materials should be produced by InvenSense, to the extent they were within InvenSense’s possession, custody, or control.  Despite this, ALJ Gildea determined that now InvenSense was continuing to withhold relevant, non-privileged documents and evidence with respect to the accused products in violation of Order No. 7.  ALJ Gildea ordered InvenSense to immediately produce documents and things responsive to the requests at issue in Order No. 7; to allow STM’s counsel and/or approved experts to inspect non-party portals over which InvenSense has possession, custody, and control; and to file a verification under oath, by no later than September 30, 2013 that it had complied in full with Order No. 7.  With regard to future sanctions, the ALJ warned that InvenSense’s “pattern of thwarting discovery has to stop, and InvenSense is on notice that it faces sanctions if it continues to withhold responsive, non-privileged discovery within its possession, custody, or control, regardless of whether it may include nonparty confidential material.”