On November 14, 2012, ALJ E. James Gildea issued the public version of Order No. 28 (dated October 19, 2012) granting Respondent Apple Inc.’s (“Apple”) motion for leave to reopen fact discovery in Certain Electronic Devices with Graphics Data Processing Systems, Components Thereof, and Associated Software (Inv. No. 337-TA-813).

According to the Order, Apple sought to reopen fact discovery for the limited purpose of including source code produced from Pixar and documents produced from Lockheed Martin Corp. (“Lockheed”).  Apple argued that it diligently sought production of the Pixar source code by serving Pixar with a subpoena and deposing Pixar’s Chief Technical Officer.  Apple asserted that it diligently sought production of the Lockheed documents by contacting Lockheed on numerous occasions and timely obtaining the necessary permissions required prior to Lockheed releasing the desired documents.  Further, Apple argued that Complainants S3 Graphics Co., Ltd and S3 Graphics, Inc. (collectively, “S3G”) would not be prejudiced because S3G was aware of the source code and documents since Apple filed its original and amended Notices of Prior Art.  The Commission Investigative Staff supported the motions for the reasons cited by Apple.

In opposition, S3G argued that Apple had not diligently pursued the discovery at issue.  S3G asserted that Apple was not diligent because it delayed in filing the subpoena on Pixar and only contacting Pixar three times in the final four months of discovery.  Regarding the Lockheed documents, S3G argued that Apple was not diligent because it never served Lockheed with subpoenas and provided no evidence of diligent communications.

ALJ Gildea granted Apple’s motion finding that good cause supported the motion based on Apple’s diligent pursuit of the discovery documents and the relatively short period, two-weeks, between the end of the discovery period and the production of the documents.