UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN NOISE CANCELLING HEADPHONES
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`Inv. No. 337-TA-626
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`ORDER NO. 7: DENYING JOINT MOTION TO AMEND THE PROTECTIVE 0
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`(March 17,2008)
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`On March 14, 2008, Complainant Bose Corporation (“Bose”) and Respondents P&k
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`Systems Ltd.’s (NZ) (“Phitek”), GN Netcom, Inc., Creative Labs, Inc., Logitech, Inc., Au@-
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`- “‘.
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`Technica U.S., Inc. (“AT”) and Panasonic Corporation of North America (“Panasonic”) filed a
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`motion (626-008) to amend the protective order to provide guidance for the treatment of privileged
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`documents or information that are inadvertently disclosed in this investigation. The motion states
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`that the Commission Investigative Staff (“Staff ’) does not oppose the motion.
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`The parties requests that the protective order be amended to add a paragraph, which reads as
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`follows:
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`The inadvertent production of any information protected from disclosure by the
`attorney-client privilege, the work product doctrine, the common interest doctrine,
`or other applicable immunities, shall not be deemed a waiver of any claim of
`privilege or protection from disclosure, provided that the producing party shall
`promptly notify the receiving party in writing when the inadvertent production is
`discovered, request that the documents or materials containing such information be
`returned, and attach a privilege log including an entry pertaining to all such
`documents or materials. Within five (5) business days of receiving written notice
`from the producing party, the receiving party shall return or destroy all such
`privileged or protected information and all copies thereof. The receiving party shall
`also retrieve and destroy all descriptions of the privileged or protected information.
`The receiving party may only challenge the designation of the inadvertently-produced
`information by moving for a court order compelling production of the material. If
`such a motion is filed, the producing party shall have the burden of proving that the
`documents and things in dispute are protected by the attorney-client privilege, work
`product immunity, or any other applicable privileges or immunities. Furthermore,
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`unless and until such motion to compel is granted by the Court, the receiving party
`shall neither use nor refer to any privileged information contained within the
`document(s) at issue, except to the extent such information is reflected in an
`appropriate privilege log.
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`The undersigned finds that it is not appropriate for the parties to amend the protective order to
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`address issues as to attorney client privilege or work product immunity.’ The protective order is put
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`in place to protect confidential business information (“CBI”), not attorney client privilege or work
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`product immunity. The protective order allows certain individuals to sign onto the protective order,
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`who are then given permission to receive CBI. Privileged documents, however, fall into a
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`completely separate category of documents that are withheld from others and listed in detail on an
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`accompanying privilege log.
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`While the undersigned is not permitting the parties to amend the protective order, the parties
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`are free to enter into a stipulation among themselves regarding how they will handle the inadvertent
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`disclosure of privileged documents. Therefore, the parties themselves will be responsible for
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`resolving their disputes on their own. The parties are put on notice, however, that even if a
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`stipulation is entered into among the parties, if a dispute cannot be resolved by the parties, it is the
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`undersigned’s view that the inadvertent disclosure of the document constitutes waiver of that
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`The undersigned is aware that, in one of the undersigned’s previous investigations, the
`protective order was amended to address the inadvertent disclosure of documents. See Certain Laser
`Bar Code Scanners and Scan Engines, Components Thereof and Products Containing Same, Inv.
`No. 337-TA-551, Order No. 4 (January 18,2006). Upon further consideration, the undersigned finds
`that allowing the parties to amend the protective order to address non-CBI issues is not appropriate.
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`-2-
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`privilege, which the undersigned has stated in many previous orders in other investigations2
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`SO ORDERED.
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`Administrative Law Judge
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`See Certain NOR and NAND Flash Memory Devices and Products Containing Same, Inv.
`No. 337-TA-560, Order No. 29 (October 10,2006); Certain Zero Mercury AddedAlkaline Batteries,
`Inv. No. 337-TA-493, Order No. 18 (August 20,2003), which noted that:
`The Federal Circuit recognized that, generally, “disclosure of confidential
`communications or attorney work product to a third party, such as an adversary in
`litigation, constitutes a waiver of privilege as to those items.” Genentech, 122 F.3d
`at 1415. In addition, “[olnce the attorney-client privilege has been waived, the
`privilege is generally lost for all purposes and in all forums” with respect to “the
`communication in question.”
`Genentech, Inc. v. US. Int’l Trade Comm’n, 122 F.3d 1409, 1416-17 (Fed. Cir. 1997).
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`-3-
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`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
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`337-TA-626
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`CERTIFICATE OF SERVICE
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`I, Marilyn R. Abbott, hereby certify that the attached ORDER was served upon, T. Spence
`Chubb, Esq., Commission Investigative Attorney, and the following parties via first class mail
`and air mail where necessary on March 1 -
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`U.S.b.nkrnationa1 Trade Commission
`500 E Street, S.W., Room 112A
`Washington, DC 20436
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`FOR COMPLAINANT BOSE CORPORATION:
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`Autumn J. Hwang, Esq.
`Ruffin B. Cordell, Esq.
`Andrew R. Kopsidas, Esq.
`Jeffrey R. Whieldon, Esq.
`FISH & RICHARDSON, P.C.
`1425 K Street, N.W., 1 lth Floor
`Washington, DC 20005
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`Charles Hieken, Esq.
`Gregory A. Madera, Esq.
`Adam J. Kessel, Esq.
`FISH & RICHARDSON, P.C.
`225 Franklin Street
`Boston, MA 021 10
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`Jordan Fowles, Esq.
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
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`

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`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
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`FOR RESPONDENTS PHITEK SYSTEMS LIMITED
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`Alan Cope Johnson, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Ave, N. W.
`Washington, DC 20006
`
`Dan Chapman, Esq.
`Mark Fassold, Esq.
`JACKSON WALKER L.L.P.
`112 E. Pecan Street, Suite 2400
`San Antonio, TX 78205
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`FOR RESPONDENT AUDIO TECHNICA U.S., INC.
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`Daniel E. Yonan, Esq.
`Arthur Wineburg, Esq.
`AKIN GUMP STRAUSS HAUER & FELD LLP
`1333 New Hampshire Avenue, N.W.
`Washington, DC 20036
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`James P. White, Esq.
`Gerald T. Shekleton, Esq.
`J. Aron Carnanhan, Esq.
`WELSH & KATZ, LTD.
`120 South Riverside Plaza, 22"d Floor
`Chicago, IL 60606
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`FOR RESPONDENT CREATIVE LABS INC.
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`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Avenue, N.W., Suite 5500
`Washington, DC 20006
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`

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`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
`
`337-TA-626
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`FOR RESPONDENT PANASONIC CORPORATION OF NORTH AMERICA
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`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`1200 Seventh Street, N. W., Fifth Floor
`Washington, DC 20036
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`Daniel S. Ebenstein, Esq.
`AMSTER ROTHSTEIN & EBENSTEIN, L.L.P.
`90 Park Avenue
`New York, NY 10016
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`RESPONDENTS:
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`GN NETCOM, INC.
`77 Northeastern Boulevard
`Nashua, NH 03062
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`LOGITECH INC.
`6505 Kaiser Drive
`Fremont, CA 94555
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`Sherry Robinson
`LEXIS - NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
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`Ronnita Green
`Thomson West
`1100 - 13'h Street NW
`Suite 200
`Washington, DC 20005
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`PUBLIC MAILING LIST