On June 25, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 48 in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790).  In the Order, ALJ Rogers granted-in-part and denied-in-part Respondent Xiamen Kingdomway Group Company’s (“XKGC”) motion for sanctions against Complainant Kaneka Corporation (“Kaneka”) for Kaneka’s alleged violation of Order No. 22.  See our May 1, 2012 post for more details on Order No. 22.

According to the Order, XKGC stated that Order No. 22 precludes Kaneka from relying on an untimely expert report of Dr. Jeffrey Kittendorf.  XKGC asserted that despite Order No. 22, Dr. Kittendorf’s witness statement includes testimony that discusses in detail the information contained in the untimely expert report.  Moreover, XKGC asserted that certain Kaneka exhibits consist of material that was previously part of Dr. Kittendorf’s untimely expert report.  Accordingly, XKGC requested the following sanctions against Kaneka:  (1) finding that XKGC’s accused process does not infringe any claim of Kaneka’s asserted patent; (2) precluding Kaneka from introducing any of Dr. Kittendorf’s test results into evidence—whether through Dr. Kittendorf or through another Kaneka expert, Dr. Connors; (3) striking Section II.B of Dr. Kittendorf’s witness statement, Section VI of Dr. Connors’s witness statement, and certain exhibits; (4) precluding Kaneka from relying on XKGC confidential processing documents that were the subject of Motion Docket No. 790-028; and (5) ordering Kaneka to pay XKGC’s reasonable expenses, including attorneys’ fees, caused by Kaneka’s violation of Order No. 22.

Kaneka opposed XKGC’s motion.  According to Kaneka, the motion had been improperly presented as a motion for sanctions when it is actually a motion in limine.  Nevertheless, Kaneka agreed to withdraw certain of the exhibits raised by XKGC, and stated that the remaining exhibits and testimony concerning Dr. Kittendorf’s test results were timely disclosed in Dr. Connors’s expert report.  Kaneka further argued that XKGC’s use of Dr. Kittendorf’s report as an exhibit at Dr. Connors’s deposition meant that Kaneka should be allowed to rely on the report.

The Commission Investigative Staff (“OUII”) supported XKGC’s motion in part.  OUII argued that Kaneka had clearly violated Order No. 22 by attempting to introduce exhibits that contain information found in Dr. Kittendorf’s untimely expert report.  OUII therefore supported XKGC’s request to strike the offending exhibits and preclude Dr. Kittendorf and Dr. Connors from testifying about the information contained in the untimely expert report.  OUII also supported XKGC’s request for an award of reasonable expenses, including attorneys’ fees.  However, OUII believed that the additional relief requested by XKGC was excessive.

After considering the arguments, ALJ Rogers determined to grant-in-part and deny-in-part XKGC’s motion.  The ALJ found that Kaneka had already withdrawn two exhibits subject to XKGC’s motion and that XKGC’s request to exclude those two exhibits was therefore moot.  However, two other exhibits subject to the motion were copies of the untimely Kittendorf report—and ALJ Rogers therefore excluded them.  Another exhibit subject to the motion was an additional copy of the Kittendorf report that had been marked as an exhibit by XKGC at Dr. Connors’s deposition.  For this copy of the report, ALJ Rogers found that to the extent that XKGC seeks to rely on the portions of Dr. Connors’s deposition testimony addressing the Kittendorf report, ALJ Rogers will consider whether or not to admit those portions of the report “upon which that testimony is based or to which it relates.”  However, the ALJ found that if XKGC does not offer into evidence any portions of Dr. Connors’s deposition testimony addressing the Kittendorf report, then the copy of the report previously used as a deposition exhibit will not be admitted.  ALJ Rogers further found that Section II.B of Dr. Kittendorf’s witness statement should be stricken because it is based on the untimely expert report.  However, the ALJ declined to strike the requested portion of Dr. Connors’s witness statement after finding that such a sanction would be “unduly harsh.”  ALJ Rogers also denied the remainder of XKGC’s requested sanctions after finding that “they are excessive based upon the facts giving rise to this motion.”