On October 18, 2012, ALJ E. James Gildea issued the public version of Order No. 52 (dated October 5, 2012) in Certain Devices for Mobile Data Communication (Inv. No. 337-TA-809).  In the Order, ALJ Gildea denied Respondents Research In Motion, Ltd., Research In Motion Corp. (collectively, “RIM”) and Apple Inc.’s (“Apple”) motion for sanctions against Complainant Unwired Planet, Inc. (“Unwired Planet”).

According to the Order, RIM and Apple (collectively, “Respondents”) argued that Unwired Planet had repeatedly misrepresented its contacts with inventor Allain Rossman and that severe sanctions, including dismissal, were warranted.  In particular, RIM asserted that it had made it known that it was attempting to contact and depose Mr. Rossman, but that Unwired Planet had indicated that it did not represent Mr. Rossman and could not produce him for deposition.  According to Respondents, Unwired Planet’s representations had led Respondents to believe that there had been no substantive communications between Unwired Planet and Mr. Rossman.  However, Respondents later discovered that there had been active communications between Unwired Planet and Mr. Rossman since shortly after Unwired Planet filed its complaint, including 153 emails that were not produced until June 21, 2012—just before Mr. Rossman’s deposition.  Respondents further argued that Unwired Planet had misrepresented both its efforts to contact Mr. Rossman and Mr. Rossman’s willingness to cooperate in the investigation, and that Unwired Planet had therefore violated its duty of candor under Commission Rule 210.4.

Unwired Planet opposed the motion, arguing that it had been completely honest and correct in its representations regarding its contact with Mr. Rossman.  Unwired Planet asserted that it had made repeated efforts to get Mr. Rossman to meet with its counsel, but that he had consistently declined those requests and declined to help in the investigation.  Unwired Planet stated that it had not produced its emails with Mr. Rossman earlier because Mr. Rossman never had an account on Unwired Planet’s email server and in any event RIM had not propounded a document request that covered those emails until June 15, 2012.

The Commission Investigative Staff (“OUII”) also opposed the motion.  OUII argued that Unwired Planet’s statements regarding Mr. Rossman had been objectively reasonable under the circumstances.  According to OUII, the evidence indicated that Mr. Rossman had wished to remain neutral in the investigation, had declined to be represented by Unwired Planet’s counsel, and would only appear for deposition if compelled to do so.  OUII also argued that the timing of the June 21, 2012 email production was not unreasonable given the context.

After considering the arguments, ALJ Gildea determined to deny Respondents’ motion.  ALJ Gildea agreed that the statements made by Unwired Planet to Respondents were objectively reasonable under the circumstances.  The ALJ found that, when considered in the appropriate context, the evidence showed that Unwired Planet had made efforts to gain Mr. Rossman’s cooperation in the investigation, but that those efforts had been rebuffed.  ALJ Gildea further found that the fact that Unwired Planet had not produced emails between itself and Mr. Rossman until June 21, 2012 was not unreasonable under the circumstances.  In particular, the ALJ found that Respondents had not pointed to any specific document request that would have covered these emails prior to the specific request served on June 15, 2012.  Accordingly, ALJ Gildea denied Respondents’ motion for sanctions.