On October 26, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 45 (dated March 8, 2012) in Certain Static Random Access Memories and Products Containing Same (Inv. No. 337-TA-792).

According to the Order, the respondents moved to strike complainant Cypress Semiconductor Corporation’s (“Cypress”) amended pre-trial statement, to preclude Cypress from offering late-filed exhibits, and to preclude a previously undisclosed witness from testifying at the evidentiary hearing.  The respondents argued that all of Cypress’s submissions were late under the procedural schedule and would be extremely prejudicial to the respondents, and that Cypress could have determined during the discovery period all of the facts it claimed to have recently learned.  The respondents also argued that Cypress should not be permitted to offer testimony from John Boyd because he was not disclosed on either Cypress’s tentative witness list or its final list of trial witnesses, and because his testimony would be in violation of Ground Rule 9.3 since Cypress neither submitted a witness statement for Mr. Boyd nor attempted to show that he is an adverse witness.  In opposition, Cypress argued, inter alia, that the respondents did not disclose certain relevant facts until two business days before the close of discovery, that Cypress did not learn other relevant facts until after the discovery period, and that Cypress only intends to use the newly discovered evidence if necessary (e.g., for impeachment purposes).

ALJ Bullock first noted that Cypress’s submissions were not accompanied by a motion for leave and should be denied on that basis alone.  Having reviewed the pleadings, the ALJ agreed with the respondents that Cypress was in possession of the relevant information and could have conducted a reverse engineering study after the close of fact discovery, and the fact that Cypress waited until the eve of trial to do so is no fault of the respondents.  The ALJ also found that Cypress provided no explanation as to why it could not have identified Mr. Boyd on its final list of trial witnesses.  Accordingly, the ALJ concluded that Cypress failed to demonstrate good cause to justify its late submissions, and granted the motion.