On September 24, 2013, ALJ Sandra (Dee) Lord issued Order No. 15 denying DeLorme Publishing Company, Inc. and DeLorme InReach, LLC’s (collectively, “DeLorme”) motion to amend the protective order in Certain Two-Way Global Satellite Communication Devices, System and Components Thereof (Inv. No. 337-TA-854). 

By way of background, the International Trade Commission (the “Commission”) instituted the underlying investigation on September 18, 2012 based on BriarTek IP, Inc.’s (“BriarTek”) complaint of August 17, 2012.  See our September 19, 2012 post for more details.  On March 15, 2013, ALJ Robert K. Rogers granted a motion by DeLorme to terminate the investigation and for entry of a proposed consent order (“the consent order”).  See our March 19, 2013 post for more details.  In the consent order, DeLorme agreed that it would not import or sell two-way global satellite communication devices, systems, or components thereof that infringe U.S. Patent No. 7,991,380 (the ‘380 patent) after April 1, 2013.  On April 10, 2013, BriarTek filed an enforcement complaint alleging that DeLorme violated the consent order.  See our April 11, 2013 post for additional details.

According to the Order, DeLorme filed motions to amend the protective order to permit the use of discovery from the violation and enforcement portions of the investigation in currently pending district court litigation between the parties.  Although confidential information from third parties is included in the discovery of this investigation, DeLorme asserted that those parties consented to the cross-use of confidential information in the district court action.

BriarTek asserts that DeLorme is merely re-arguing its motions that were denied by Order No. 12, and that DeLorme has failed to cure the defects of its previous motions, since the rights of all non-parties have not been addressed.  See our September 6, 2013 post for more details on Chief ALJ Bullock’s decision on Order No. 12.  

The Commission Investigative Staff (“OUII”) filed a response agreeing with BriarTek that the proposed amendment to the protective order should be denied.  OUII pointed out that, with DeLorme’s proposed amendment, confidential information from the amendment would only be protected under the protective order of the district court and no longer subject to the ITC’s protective order issued in the investigation.

ALJ Lord denied the motion, noting that DeLorme’s proposed amendment to allow the cross-use of confidential information produced by third parties does not require that the third parties provide written permission before such cross-use, nor provides a mechanism by which third parties can object to the cross-use of their documents or confidential information.  As such, the ALJ concluded that the amendment was insufficient to provide adequate protection for third parties.  Furthermore, the amendment did not specify that any re-production remains subject to the ITC protective order, and thus, the motion was denied.