On July 26, 2012, ALJ Thomas B. Pender issued the public version of Order No. 7 (dated February 29, 2012) in Certain Electronic Devices with Communication Capabilities, Components Thereof, and Related Software (Inv. No. 337-TA-808).  In the Order, ALJ Pender denied Complainant HTC Corp.’s (“HTC”) motion to compel Respondent Apple Inc. (“Apple”) to produce complete copies of commercial builds of source code and maintenance releases for the accused products in the investigation.

According to the Order, HTC argued that the full disclosure of complete copies of source code was essential for ensuring the swift and reliable discovery contemplated under the Procedural Schedule.  HTC stated that the private parties had agreed to simultaneously produce source code on January 17, 2012, but that Apple had omitted critical portions of source code from its production.  HTC argued that these deficiencies in Apple’s production were impairing HTC’s ability to determine the operation, implementation, and functionality of the accused products.  HTC further argued that the deficiencies would impair HTC’s ability to prepare its infringement contentions and meaningfully depose Apple’s witnesses.  HTC also argued that Apple’s production of complete commercial builds of source code would not be unreasonable or harmful to Apple.

Apple opposed the motion, arguing that HTC had no basis to request an order to produce the complete commercial build of Apple’s source code for the accused products because it was undisputed that only a fraction of the source code was relevant to what had been accused of infringement.  Apple also asserted that HTC had filed its motion prematurely, without a meaningful meet and confer process.  Apple further argued that no legitimate dispute remained because Apple had agreed to produce—and in many instances, had already produced—the source code that HTC had specifically requested through its discovery requests.

The Commission Investigative Staff (“OUII”) opposed HTC’s motion, arguing that the motion was premature and overly broad.  In particular, OUII stated that the vast majority of the source code sought by HTC was not relevant to the Investigation.  OUII also argued that HTC had failed to comply with Ground Rule 3.1, which requires that parties make reasonable efforts to resolve discovery disputes among themselves.

After considering the arguments, ALJ Pender determined to deny the motion.  In particular, the ALJ found that the motion was premature as the parties had not reached an impasse and were in the process of resolving their dispute when HTC filed its motion.  However, ALJ Pender found it necessary to “remind the parties of their paramount responsibility to timely respond to discovery requests in good faith.”  Accordingly, the ALJ stated that if the parties are not able to resolve the dispute after adequately meeting and conferring—and HTC again seeks the ALJ’s intervention—then Apple would need to account for any delay in the timely production of relevant source code.