On May 10, 2012, Chief ALJ Charles E. Bullock issued Order No. 54 in Certain Digital Televisions and Components Thereof (Inv. No. 337-TA-789).  In the Order, ALJ Bullock denied Complainant Vizio, Inc.’s (“Vizio”) motion for entry of an Initial Determination finding Respondent Curtis International, Ltd. (“Curtis”) in default.  However, ALJ Bullock also ordered that certain non-monetary sanctions be imposed against Curtis.

According to the Order, Vizio argued that Curtis should be found in default because Curtis had failed to comply with a previous order in which ALJ Bullock had granted a motion to compel responses to Vizio’s requests for admission and to compel production of a Curtis witness for deposition.  See our April 2, 2012 post for more details.  Vizio further argued that a finding of default was appropriate because Curtis had completely failed to participate in the investigation since the time that its counsel withdrew on January 30, 2012.

Curtis opposed Vizio’s motion.  Curtis contended that, contrary to Vizio’s representations, Curtis has participated and is participating in the investigation.  According to Curtis, “after conducting a search for counsel, Curtis is again represented by counsel in this Investigation and can participate in a conventional manner.”  Curtis also argued that Vizio should not be permitted to benefit from “its silence and lack of communication” while Curtis was conducting its search for counsel.  Finally, Curtis argued that it should not be found in default because it is now amenable to scheduling a corporate deposition and responding to Vizio’s requests for admission.

The Commission Investigative Staff (“OUII”) also opposed Vizio’s motion.  OUII argued that “the extreme sanction of default judgment against Curtis is not appropriate at this time” but that “alternative sanctions exist that are sufficient to remedy Curtis’ failure to comply with its discovery obligations.”  OUII therefore argued that ALJ Bullock should impose non-monetary sanctions for Curtis’ failure to cooperate in discovery and to participate in the investigation.

After considering the arguments, ALJ Bullock determined to deny Vizio’s motion but to impose certain non-monetary sanctions against Curtis.  ALJ Bullock found that “it appears that Curtis intends to resume participating in this Investigation” and that default judgment was not appropriate under the circumstances.  However, the ALJ also determined that “Curtis’ selective participation and blatant disregard for its discovery obligations will not be condoned.”  Accordingly, ALJ Bullock ordered that Curtis shall:  (1) not be permitted to introduce into evidence or otherwise rely upon testimony by any Curtis witnesses in support of its position in the investigation; (2) not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown; and (3) be precluded from submitting any expert reports.