On March 10, 2014, ALJ E. James Gildea issued the public version of Order No. 17 (dated February 27, 2014) in Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof (Inv. No. 337-TA-879).  In the Order, ALJ Gildea granted-in-part Complainants ResMed Inc., ResMed Ltd., and ResMed Corp.’s (collectively, “ResMed”) motion to compel Respondents Apex Medical Corp. and Apex Medical USA Corp. (collectively, “Apex”) to present Mr. P. J. Hsueh for completion of his deposition and for Apex to pay the costs and fees associated with the completion of the deposition and the filing of the instant motion.

According to the Order, ResMed asserted that Apex had unilaterally ended the deposition of Mr. Hsueh before it had been completed, leaving ResMed with an unfinished deposition of a crucial witness.  ResMed stated that Mr. Hsueh had provided a declaration included with Apex’s request for an advisory opinion that indicated that Mr. Hsueh was familiar with the facts related to the redesign of Apex’s products.  See our December 16, 2013 post for more details on this advisory opinion proceeding.  Accordingly, ResMed argued that it was improper for Apex to unilaterally terminate the deposition.  ResMed further argued that it was entitled to its costs and fees associated with preparing the instant motion and pursuing a second deposition of Mr. Hsueh.

Apex opposed the motion, arguing that the parties had narrowed the issues in the advisory opinion proceeding to three non-infringement topics and that ResMed had improperly sought to explore irrelevant topics during Mr. Hsueh’s deposition.  Apex further argued that ResMed’s questioning was harassing and duplicative of testimony provided by another witness, and that ResMed’s motion was moot.  In addition, Apex argued that ResMed’s request for sanctions was improper because there had been no violation of an order compelling discovery.  Moreover, Apex argued that ResMed’s purpose for requesting a continued deposition was to inflict punitive costs on Apex.

The Commission Investigative Staff (“OUII”) supported ResMed’s motion in part.  OUII argued that ResMed’s questioning of Mr. Hsueh fell within the scope of permissible discovery, especially since Mr. Hsueh’s declaration stated that he was fully familiar with the facts related to the redesign of Apex’s products.  OUII argued that the Commission Rules do not permit a party to unilaterally terminate a deposition, and that therefore ResMed’s motion should be granted to the extent that it sought completion of Mr. Hsueh’s deposition.  However, OUII opposed the motion to the extent that it sought sanctions against Apex.

After considering the arguments, ALJ Gildea determined to grant the motion in part.  ALJ Gildea found that ResMed’s questioning of Mr. Hsueh was unquestionably within the scope of permissible discovery, and that it had been improper for Apex to unilaterally terminate the deposition.  Accordingly, the ALJ ordered that Apex produce Mr. Hsueh for an additional half day of testimony for the completion of his deposition.  ALJ Gildea also found that fairness dictated that the costs associated with the deposition be paid by Apex.  However, the ALJ further found that while he had the discretion to order this cost-shifting for the deposition itself, ResMed had failed to set forth a sufficient basis under the Commission Rules to support its broader request for sanctions against Apex.