On April 23, 2013, ALJ David P. Shaw issued the public versions of Order No. 21 and Order No. 25 (dated April 16, 2012 and June 21, 2012, respectively) in Certain Video Analytics Software, Systems, Components Thereof, and Products Containing Same (Inv. No. 337-TA-795).
By way of background, this investigation was terminated in its entirety on November 14, 2012 after Complainant ObjectVideo, Inc. (“ObjectVideo”) and Respondents Robert Bosch GmbH, Bosch Security Systems, Inc., Bosch Sicherheissysteme GmbH, Bosch Security Systems B.V., Bosch Sicherheitssysteme Engineering GmbH, Bosch Security Systems – Sistemas de Seguranca, S.A., Bosch (Zhuhai) Security Systems, Co., Ltd., and Extreme CCTV, Inc. (collectively, “Bosch”) entered into a license agreement. Previously, on July 17, 2012, ObjectVideo withdrew its complaint against Respondents Samsung Techwin Co., Ltd. and Samsung Opto-Electronics America, Inc. (collectively, “Samsung”) after executing a covenant not to sue. The ALJ recently issued the public versions of Order Nos. 21 and 25 involving ObjectVideo and Samsung.
According to Order No. 21, ObjectVideo requested that Samsung be ordered to re-produce certain documents that it had previously clawed back based upon, according to ObjectVideo, an invalid claim of privilege. In opposition, Samsung argued that the documents provide or reflect advice from a U.S. attorney and that ObjectVideo’s allegation that the documents should be produced because they may suggest that documents were destroyed was baseless. Samsung also moved to strike ObjectVideo’s motion from the record because it was not filed under seal and allegedly described documents designated as confidential business information under the protective order.
After an in camera review of the documents, ALJ Shaw determined that both documents were protected from discovery by the attorney-client privilege and that the documents did not evidence the commission of a crime or fraud that would warrant piercing that privilege. Further, the ALJ did not find any confidential business information in ObjectVideo’s motion and, therefore, denied Samsung’s motion to strike. In particular, the ALJ noted that “Samsung’s own motion, the supporting declaration, and the exhibits thereto describe the two documents at issue in far greater detail than does ObjectVideo’s motion, and that Samsung did not file its motion under seal.”
According to Order No. 25, ObjectVideo sought to compel Samsung to produce its source code for signal processors found in the accused products. ObjectVideo argued in the alternative that an adverse inference regarding the missing source code was warranted “if Samsung does not produce the missing code and maintains that it does not have sufficient control over the supplier’s code.” Samsung countered that ObjectVideo’s motion was rendered moot when it produced the missing source code on April 9, 2012. In reply, ObjectVideo maintained that the requested discovery was still relevant because “it appeared” that there was still code missing following Samsung’s supplemental production.
ALJ Shaw determined that ObjectVideo’s continued request for allegedly missing source code was speculative at best since ObjectVideo did not cite to any evidence in support of its request. Accordingly, the ALJ denied ObjectVideo’s motion and request in the alternative for an adverse inference.