On June 3, 2013, ALJ E. James Gildea issued the public version of Order No. 43 (dated May 10, 2013) in Certain Wireless Consumer Electronics Devices and Components Thereof (Inv. No. 337-TA-853).

According to the Order, Respondent Barnes and Noble (“B&N”) moved to strike and preclude the use of documents that were produced by Complainants Technical Properties Limited LLC, Phoenix Digital Solutions LLC, and Patriot Scientific Corporation (collectively, “Complainants”) after the close of fact discovery.  Specifically, B&N sought to preclude: (1) documents produced by Complainants and third-party Texas Instruments after the close of fact discovery, and (2) documents produced by other Respondents that Complainants failed to disclose in its answers to B&N’s contention interrogatories.  B&N argued that Complainants have not demonstrated good cause as to why they should be permitted to rely on documents produced outside the period allowed for fact discovery.  B&N also alleged that Complainants’ answers to B&N’s contention interrogatories failed to cite any documents produced by other Respondents.

In opposition, Complainants argued that B&N’s motion should be denied because Complainants timely supplemented their discovery disclosures as permitted by Commission Rule 210.27(c).  Complainants argued that they were properly supplementing discovery requests based on information and documents discovered during the preparation for their expert’s report.  Further, Complainants asserted they diligently sought discovery from third-party Texas Instruments, but were unable to acquire the relevant documents from them until after the close of fact discovery.  Lastly, Complainants stated that several of the late-produced documents were merely better copies of documents produced prior to the close of fact discovery.

ALJ Gildea granted B&N’s motion to strike all documents produced after the close of fact discovery that were not duplicative, better copies of documents produced prior to the close of fact discovery.  ALJ Gildea also held that Complainants failed to show that they exercised due diligence in producing the excluded documents.

Additionally, ALJ Gildea granted B&N’s motion with respect to documents produced by other Respondents.  ALJ Gildea held that it was improper and unduly prejudicial to expect B&N to sift through the documents produced by the more than twenty other Respondents in order to determine which documents Complainants may rely on to prove infringement.