UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`Before Charles E. Bullock
`Administrative Law Judge
`
` In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Inv. No. 337-TA-626
`
`COMMISSION INVESTIGATIVE STAFF'S RESPONSE
`TO PHITEK’S MOTION TO COMPEL COMPLAINANT BOSE
`TO COMPLY WITH 19 C.F.R. 210.30(b)(2)
`
`I.
`
`INTRODUCTION
`
`On April 22, 2008, Respondent Phitek Systems (“Phitek”) filed a motion to compel
`
`Complainant Bose Corporation (“Bose”) to comply with Commission Rule 210.30(b)(2) by
`
`producing documents that have been organized and labeled to correspond to the categories in
`
`Phitek’s requests for production or “as they are kept in the usual course of business.” Phitek
`
`asserts that Bose has not produced documents as they are kept in their usual course of business
`
`because the folder structure used to organize the documents in Bose’s electronic production do
`
`not give any indication as to which department they are from, in which person’s files they were
`
`stored, or how they are kept in the normal course of business. For the reasons stated herein, the
`
`Staff partly supports Phitek’s motion to compel.
`
`
`Washington, D.C.
`
`Before Charles E. Bullock
`Administrative Law Judge
`
` In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Inv. No. 337-TA-626
`
`COMMISSION INVESTIGATIVE STAFF'S RESPONSE
`TO PHITEK’S MOTION TO COMPEL COMPLAINANT BOSE
`TO COMPLY WITH 19 C.F.R. 210.30(b)(2)
`
`I.
`
`INTRODUCTION
`
`On April 22, 2008, Respondent Phitek Systems (“Phitek”) filed a motion to compel
`
`Complainant Bose Corporation (“Bose”) to comply with Commission Rule 210.30(b)(2) by
`
`producing documents that have been organized and labeled to correspond to the categories in
`
`Phitek’s requests for production or “as they are kept in the usual course of business.” Phitek
`
`asserts that Bose has not produced documents as they are kept in their usual course of business
`
`because the folder structure used to organize the documents in Bose’s electronic production do
`
`not give any indication as to which department they are from, in which person’s files they were
`
`stored, or how they are kept in the normal course of business. For the reasons stated herein, the
`
`Staff partly supports Phitek’s motion to compel.
`
`
`
`2
`
`II.
`
`LEGAL STANDARD
`
`Commission Rule 210.30(b)(2) requires that:
`
`A party who produces documents for inspection shall produce them as they are
`kept in the usual course of business or shall organize and label them to correspond
`to the categories in the request.
`
`19 C.F.R. § 210.30(b)(2). Commission Rule 210.30(b)(2) mirrors Federal Rule of Civil
`
`Procedure 34(b). Fed. R. Civ. P. 34(b)(i). Therefore, the Staff submits that cases interpreting
`
`that Federal Rule are instructive for purposes of deciding the pending motion.
`
`Courts have consistently held that a party that produces documents in response to a
`
`request for production may choose to produce documents “as they are kept in the usual course of
`
`business or . . . [to] organize and label them to correspond with the categories in the request.”
`
`Rowlin v. Alabama Dep’t of Public Safety, 200 F.R.D. 459, 462 (M.D. Ala. 2001). An index or
`
`categorization of the documents is generally not required as long as they were not maintained in
`
`bad faith or produced in a disorganized manner. Id.; see also 3M Co. v. Kanbar, 2007 U.S. Dist.
`
`LEXIS 45232, *8-9 (N.D. Cal. June 14, 2007); In re G-I Holdings, Inc., 218 F.R.D. 428 , 439
`
`(D.N.J. 2003). When producing documents, however, the responding party cannot attempt to
`
`“hide a needle in a haystack” by mingling responsive documents with large numbers of non-
`
`responsive documents. See Hagemeyer North America, Inc. v. Gateway Data Science Corp., 222
`
`F.R.D. 594, 598 (E.D. Wisc. 2004); see also In re Thomas Consolidated Industries, Inc., 2005
`
`U.S. Dist. LEXIS 40761, *21 (N.D. Ill. May 11, 2005) (finding that although the Federal Rules
`
`allow a party to produce documents as they are kept in the ordinary course of business, the
`
`producing party remained obligated to sort through the documents and produce only those that
`
`
`
`3
`
`are responsive to the document requests). Moreover, when documents are normally kept within
`
`the files of a particular individual, the producing party may be required to identify the custodian
`
`of those documents. See Requa v. C.B. Fleet Holding Co., 2007 U.S. Dist. LEXIS 55486, *2 (D.
`
`Colo. July 31, 2007); United States v. Magnesium Corp., 2006 U.S. Dist. LEXIS 53911, *24 (D.
`
`Utah Aug. 2, 2006); Scripps Clinic and Research Foundation v Baxter Travenol Labs., 1988
`
`U.S. Dist. LEXIS 7495, *11-12 (D. Del. June 21, 1988).
`
`The same standards have been applied in Commission proceedings when enforcing
`
`compliance with Rule 210.30(b)(2). In Certain Video Graphics Display Controllers and
`
`Products Containing Same, Inv. No. 337-TA-412, Order No. 11 (Oct. 5, 1998), the Judge held
`
`that “[i]f [the complainant] produced documents as kept in the ordinary course, it has no further
`
`obligation in this regard; but if the documents were not produced as kept in the ordinary course,
`
`[the complainant] is ordered to designate . . . which documents correspond to which categories in
`
`the requests.” The requirement that documents must be produced “as they are kept in the usual
`
`course of business” has been interpreted to prevent a party from producing documents out of
`
`order or mixing critical documents with others in order to obscure their significance. See Certain
`
`Optical Disk Controller Chips and Chipsets and Products Containing Same, Including DVD
`
`Players and PC Optical Storage Devices II, Inv. No. 337-TA-523, Order No. 8, 2004 ITC LEXIS
`
`989, at *21 (Dec. 9, 2004) (holding that “[i]t is no less ludicrous to accept that Mediatek, in the
`
`usual course of business, combines 29,000 pages of disparate information into a single,
`
`unsegregated computer file than it would be accept that Mediatek, in the usual course of
`
`business, takes all 29,000 paper versions of each page, staples them end to end, and keeps them
`
`
`
`4
`
`rolled them up into a single scroll.”); see also Certain Display Controllers and Products
`
`Containing Same, Inv. No. 337-TA-491, Order No. 10, 2003 ITC LEXIS 493, at *3 (Sept. 8,
`
`2003) (denying motion to compel because there was no allegation that the producing party
`
`“deliberately . . . mixed critical documents with others in the hope of obscuring significance”).
`
`III.
`
`DISCUSSION
`
`In response to Phitek’s document requests, Bose has produced documents in electronic
`
`format on CDs and DVDs. Bose’s counsel has indicated that Bose has chosen the option of
`
`producing documents as they are kept in their usual course of business rather than organizing and
`
`labeling them to correspond to the categories in the request. Phitek, however, asserts that Bose
`
`cannot meet its burden of proving that it has produced the documents as they are kept in the usual
`
`course of business because “no company, even Bose, would keep its documents loose and
`
`unorganized without any indication of which department they are in, in which person’s files they
`
`are stored, or how they are kept in the normal course of business.” Phitek Mem at 2.
`
`The Staff generally agrees with Phitek’s characterization of Bose’s document production.
`
`The Staff is not in a position to determine whether the documents produced by Bose were
`
`produced in the manner they were kept in the usual course of business. The Staff, however, notes
`
`that because Bose’s production consists of CDs and/or DVDs of tiff files that each contain an
`
`image of a single page, it is not always possible to determine whether certain pages were stapled
`
`together as part of a single document or whether certain documents were grouped together.
`
`Insofar as the grouping of pages as they are kept in the usual course of business is not readily
`
`
`
`5
`
`apparent from the format of Bose’s production, the Staff submits that Bose should be compelled
`
`to provide such information. See Bergersen v Shelter Mutual Insurance Co., 2006 U.S. Dist.
`
`LEXIS 17452,*5 (D. Kan. Feb. 13, 2006).
`
`Furthermore, the Staff submits that if the documents produced by Bose were obtained
`
`from the files or the computer of particular individuals, Bose should be compelled to identify the
`
`custodian of those documents. As stated above, courts have required such information when the
`
`documents were kept by a particular custodian in the usual course of business. For example, in
`
`Requa, the court noted that the “Defendant contends that its records are kept by reference to each
`
`custodian, but it has produced the documents based on six relevant categories.” 2007 U.S. Dist.
`
`55486, at *2. The court held that “[t]o comply with Rule 34, Defendant must specify, for each of
`
`the six categories, the documents produced from each custodian.” Id. Similarly, in Scripps
`
`Clinic and Research Foundation, the court found that it was insufficient under Rule 34(b) to
`
`gather documents from many people and produce them in an unintelligible manner without
`
`specifying the custodial source of each file. 1988 U.S. Dist. LEXIS, at *11-12.
`
`IV.
`
`CONCLUSION
`
`For the reasons stated herein, Phitek’s motion to compel should be granted-in-part.
`
`Specifically, Bose should be compelled to identify the custodian that keeps each of its produced
`
`
`
`6
`
`documents in the usual course of business, as well as provide the grouping of pages as they are
`
`kept in the usual course of business.
`
`Respectfully submitted,
`
` /s/Christopher G. Paulraj
`Lynn I. Levine, Director
`T. Spence Chubb, Supervisory Attorney
`Christopher G. Paulraj, Investigative Attorney
`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-3052
`(202) 205-2158 (Facsimile)
`
`May 5, 2008
`
`
`
`Certain Noise Cancelling Headphones
`
`Investigation No. 337-TA-626
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on May 5, 2008, he caused the foregoing COMMISSION INVESTIGATIVE
`STAFF'S RESPONSE TO PHITEK’S MOTION TO COMPEL COMPLAINANT BOSE TO COMPLY
`WITH 19 C.F.R. 210.30(B)(2) to be filed with the Secretary, served by hand upon Administrative Law Judge
`Charles E. Bullock (2 copies), and served upon the parties (1 copy each) in the manner indicated below:
`
`Counsel for Complainant Bose Corporation
`
`Ruffin B. Cordell
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J. Hwang, Esq.
`FISH & RICHARDSON P.C .
`1425 K Street, N.W., Suite 1100
`Washington, DC 20005
`Telephone: 202-783-5070
`Facsimile: 202-783-2331
`
`Jordan Fowles
`FISH & RICHARDSON P.C .
`717 Main Street, Suite 5000
`Dallas, TX 75201
`Telephone: 214-747-5070
`Facsimile: 202-747-2091
`
`BY EMAIL AND FIRST CLASS MAIL
`
`BY EMAIL AND FIRST CLASS MAIL
`
`Counsel for Respondents Creative Labs, Inc., Phitek
`Systems Limited, GN Netcom, Inc., and Logitech Inc.
`
`BY EMAIL AND FIRST CLASS MAIL
`
`BY EMAIL AND FIRST CLASS MAIL
`
`William B. Nash
`Dan Chapman
`Mark Fassold
`JACKSON WALKER L.L.P.
`112 E. Pecan Street, Suite 2400
`San Antonio, Texas 78205
`Telephone: 210-978-7700
`Facsimile: 210-242-4620
`
`Alan Cope Johnson
`G. Brian Busey
`Cynthia Lopez
`MORRISON & FOERSTER LLP
`2000 Pennsylvania Ave, N. W.
`Washington, DC 20006
`Telephone: 202-887-1500
`Facsimile: 202-887-0168
`
`
`
`Counsel for Respondent Audio Technica U.S., Inc.
`
`-ii-
`
`BY EMAIL AND FIRST CLASS MAIL
`
`Arthur Wineburg
`Daniel E. Yonan
`AKIN GUMP STRAUSS HAUER & FELD LLP
`1333 New Hampshire Avenue, N.W.
`Washington, DC 20036
`Telephone: 202-887-4000
`Facsimile: 202-887-4288
`
`BY EMAIL AND FIRST CLASS MAIL
`
`James P. White
`Gerald T. Shekleton
`J. Aron Carnanhan
`WELSH & KATZ, LTD.
`120 South Riverside Plaza, 22”d Floor
`Chicago, IL 60606
`Telephone: 312-655-1500
`Facsimile: 312-655-1501
`
`Counsel for Respondent Panasonic Corporation of North America
`
`BY EMAIL AND FIRST CLASS MAIL
`
`Tom M. Schaumberg
`Jamie D. Underwood
`ADDUCI, MASTRIANI & SCHAUMBERG, LLP
`1200 Seventeenth Street, N.W., Fifth Floor
`Washington, DC 20036
`Telephone: 202-467-6300
`Facsimile: 202-466-2006
`
`BY EMAIL AND FIRST CLASS MAIL
`
`Daniel S. Ebenstein
`Abraham Kasdan
`Joseph M. Casino
`David A. Boag
`AMSTER, ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue
`New York, NY 10016
`Telephone: 212-336-8000
`Facsimile: 212-336-8001
`
` /s/ Christopher G. Paulraj
`Christopher G. Paulraj
`Investigative Attorney
`
`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-2575
`(202) 205-2158 (fax)
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
