On January 5, 2014, ALJ Lord issued Order No. 25 in Certain Non-Volatile Memory Chips and Products Containing the Same, Inv. No. 337-TA-916, granting in part the motion of Complainant Spansion LLC to strike portions of Respondents’ expert report because it contained public interest theories not previously disclosed during discovery by Respondents Macronix International Co, Ltd., Macronix America, Inc., Macronix Asia Limited, and Macronix (Hong Kong) Co., Ltd. (“Macronix”). ALJ Lord noted that while Commission policy favors the admission of evidence regarding the public interest, Commission Rule 210.10(b) authorizes an ALJ to “limit public interest discovery appropriately,” and Commission Rule 210.27(f) imposes “a duty seasonably to amend a prior response to an interrogatory … if the party learns that the response is in some material respect incomplete or incorrect.” ALJ Lord held that she would not allow Macronix to introduce contentions and evidence for the first time during expert discovery that should have been disclosed during fact discovery. In determining whether the public interest theories contained in the expert report had been previously disclosed, ALJ Lord looked at the public interest statements that had been made by Macronix and the Downstream Respondents, as well as Macronix’s interrogatory responses concerning the statutory public interest factors.
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