Illustrating the dangers of non-compliance with ITC discovery orders, Administrative Law Judge MaryJoan McNamara, on May 9, 2016, issued the public version of her sanctions order against two of the respondents in Light-Emitting Diode Products, Inv. No. 947. The two respondents violated discovery orders by producing more than 1,000 pages of documents shortly before the evidentiary hearing. Judge McNamara ordered a combination of monetary sanctions, findings adverse to the respondents, and preclusion of evidence supporting respondents’ non-infringement arguments.
Background: Discovery Orders
On July 13, 2015, Complainant Cree, Inc. moved to compel all respondents to produce testing documents and provide complete interrogatory responses regarding the accused products (LED bulbs and other LED products). Certain Light-Emitting Diode Products, Inv. No. 337-TA-947. In response to the motion, respondents claimed that they had already produced all responsive documents. Respondents Unity Opto Technology Co. and Unity Microelectronics, Inc. (“Unity Respondents”) also submitted a declaration purporting that no datasheet was ever created for the accused products.
Judge McNamara ordered that the other respondents—Feit Electric Inc., USA and Feit Electric Inc. (“Feit Respondents”)—submit a declaration confirming that all testing documents had been produced and provide verified interrogatory responses.
On September 28, 2015, complainant moved to enforce this discovery order. Judge McNamara issued another discovery order, instructing the respondents to produce any remaining documents, unequivocal declarations, and interrogatory responses by the close of business on October 16, 2015.
Production of New Documents
On October 16 and 17, 2015, the Feit Respondents produced over 1,000 pages of new documents, including many testing reports for the accused products. Complainant argued that the new documents contradicted certain of respondents’ witness declarations and witness statements. The new documents were from a server that ostensibly had been collected during discovery.
Judge McNamara found that the Feit Respondents failed to produce those documents despite two discovery orders. Judge McNamara also found that certain respondent representatives or witnesses submitted statements without the requisite knowledge or knowing that the statements were false. The judge also found that the new documents called into question other material statements of fact made during discovery.
Sanctions Imposed on Respondents
The Feit Respondents produced the new documents two days before the evidentiary hearing. Granting in part the complainant’s motion for sanctions, Judge McNamara issued the following bench orders:
(1) allowing complainant to use the new documents for cross-examination without rebuttal;
(2) imposing monetary sanctions on the Feit Respondents to cover complainant’s fees and expenses for its two discovery motions and emergency briefing, and for wading through the new documents;
(3) finding that the Feit Respondents falsely advertised certain accused products and precluding further evidence or testimony on the subject;
(4) precluding evidence or testimony to support respondents’ non-infringement arguments for certain limitations of the asserted patent claims;
(5) denying respondents’ motion for reconsideration; and
(6) ordering reasonable costs incurred by Staff, such as postage and copying costs (but not attorneys’ fees).
After the evidentiary hearing, respondents moved to waive Commission Rule 210.24 for interlocutory review of the sanctions order. The Commission denied the respondents’ motion on June 29, 2016, but noted that the parties could seek review of the sanctions order in a petition for review of the initial determination. Judge McNamara issued an initial determination on July 29, 2016, finding a violation of Section 337, and the parties filed their petitions for review on the confidential record on August 15, 2016.