UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`
`
`COMPLAINANT BOSE CORPORATION’S RESPONSE TO COMMISSION
`INVESTIGATIVE STAFF’S RESPONSE TO PHITEK’S MOTION TO COMPEL
`COMPLAINANT BOSE CORPORATION TO COMPLY WITH 19 C.F.R. 210.30(b)(2)
`
`Complainant Bose Corporation (“Bose”) respectfully disagrees with the Commission
`
`Investigative Staff’s Response to Phitek’s Motion to Compel Complainant Bose Corporation to
`
`Comply with 19 C.F.R. 210.30(b)(2) (hereinafter, “Staff Resp.”), filed on May 5, 2008.
`
`The Staff has taken the position that Phitek’s motion should be granted in part, and Bose
`
`should be compelled to provide the grouping of pages as they are kept in the usual course of
`
`business and to identify the custodian of each produced document. Staff Resp. at 5-6. The
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`Staff’s position seems to be based upon its belief that “Bose’s production consists of CDs and/or
`
`DVDs of tiff files that each contain an image of a single page,” and therefore, “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.” Id. at 4. Thus, the Staff contends, grouping
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`and custodian information is necessary to properly discern the individual documents within
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`Bose’s production. See id. at 4-5.
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`Bose submits that the Staff is mistaken. Although Bose has produced its documents as
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`single-page tiff files (because that is what most document management systems require), Bose
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`has also provided “load files” with each of its productions; thus, the documents, when loaded
`
`into a database, are clearly discernible. This is the procedure the parties agreed upon at the
`
`
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`
`
`COMPLAINANT BOSE CORPORATION’S RESPONSE TO COMMISSION
`INVESTIGATIVE STAFF’S RESPONSE TO PHITEK’S MOTION TO COMPEL
`COMPLAINANT BOSE CORPORATION TO COMPLY WITH 19 C.F.R. 210.30(b)(2)
`
`Complainant Bose Corporation (“Bose”) respectfully disagrees with the Commission
`
`Investigative Staff’s Response to Phitek’s Motion to Compel Complainant Bose Corporation to
`
`Comply with 19 C.F.R. 210.30(b)(2) (hereinafter, “Staff Resp.”), filed on May 5, 2008.
`
`The Staff has taken the position that Phitek’s motion should be granted in part, and Bose
`
`should be compelled to provide the grouping of pages as they are kept in the usual course of
`
`business and to identify the custodian of each produced document. Staff Resp. at 5-6. The
`
`Staff’s position seems to be based upon its belief that “Bose’s production consists of CDs and/or
`
`DVDs of tiff files that each contain an image of a single page,” and therefore, “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.” Id. at 4. Thus, the Staff contends, grouping
`
`and custodian information is necessary to properly discern the individual documents within
`
`Bose’s production. See id. at 4-5.
`
`Bose submits that the Staff is mistaken. Although Bose has produced its documents as
`
`single-page tiff files (because that is what most document management systems require), Bose
`
`has also provided “load files” with each of its productions; thus, the documents, when loaded
`
`into a database, are clearly discernible. This is the procedure the parties agreed upon at the
`
`
`
`outset of this litigation. See Ltr. from Kopsidas to Bullock, J. dated Feb. 11, 2008 at 2 (First
`
`Discovery Committee Report) (Ex. C to Bose’s Opp.). Exhibit A is an image from Bose’s first
`
`document production. On the second page, it shows two files that were included with the
`
`production. The file “Vol001.lfp” is the load file which shows the beginning and end of each
`
`document—the grouping to which the Staff refers. When the documents are loaded into a
`
`database, the database uses the load file to segregate each document.
`
`Bose was unaware until now that the Staff was having technical difficulties discerning
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`Bose’s document production and regrets the confusion this has caused. Bose will work with the
`
`Staff to ensure that the Staff has easier access to Bose’s document production.
`
`Given that Bose has provided the information necessary to segregate its documents, and
`
`provided evidence that its documents were produced as Bose keeps them, the present situation is
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`distinguishable from cases such as Certain Optical Disk Controller Chips and Chipsets and
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`Products Containing Same, Including DVD Players and PC Optical Storage Devices II, Inv. No.
`
`337-TA-523, Order No. 8, 2004 ITC LEXIS 989 (Dec. 9, 2004), and Scripps Clinic and
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`Research Foundation v. Baxter Travenol Labs., 1988 U.S. Dist. LEXIS 7495 at *10-11 (D. Del.
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`Jun. 21, 1988), cited by the Staff. See Staff Resp. at 3, 5. Moreover, nothing in Rule 19 C.F.R.
`
`210.30 or ITC case law supports the broad precedent Phitek advances that a party opting to
`
`produce documents as they are kept in the usual course of business is further obligated to provide
`
`a description of each document’s custodian when there is no evidence that the documents have
`
`been purposefully disorganized. See 19 C.F.R. 210.30(b)(2).
`
`For the foregoing reasons, Bose respectfully requests that Phitek’s motion be denied.
`
`
`
`
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`BOSE’S RESPONSE TO STAFF’S RESPONSE TO PHITEK’S 2ND MOTION TO COMPEL—PAGE 2
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`
`
`
`
`
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`Dated: May 13, 2008
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`FISH & RICHARDSON P.C.
`
`/s/ Andrew R. Kopsidas
`
`Ruffin B. Cordell
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`FISH & RICHARDSON P.C.
`1425 K Street, N.W.
`11th Floor
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`
`Charles Hieken
`Gregory A. Madera
`FISH & RICHARDSON P.C.
`225 Franklin Street
`Boston, MA 02110
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
`
`Jordan T. Fowles
`FISH & RICHARDSON P.C.
`1717 Main Street
`Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
`
`Attorneys for Complainant
`Bose Corporation
`
`
`
`
`
`BOSE’S RESPONSE TO STAFF’S RESPONSE TO PHITEK’S 2ND MOTION TO COMPEL—PAGE 3
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 13, 2008, a copy of
`
`COMPLAINANT BOSE CORPORATION’S RESPONSE TO COMMISSION
`INVESTIGATIVE STAFF’S RESPONSE TO PHITEK’S MOTION TO COMPEL
`COMPLAINANT BOSE CORPORATION TO COMPLY WITH 19 C.F.R. 210.30(b)(2)
`__________________________________
`was served on the following as indicated:
`
`
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112-F
`Washington, DC 20436
`
`
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317-I
`Washington, DC 20436
`
`
`
`T. Spence Chubb, Esq.
`Christopher G. Paulraj, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E Street, S.W., Room 404-I
`Washington, DC 20436
`
`
`
`William B. Nash, Esq.
`Daniel D. Chapman, Esq.
`Mark Fassold, Esq.
`Jackson Walker L.L.P.
`112 E. Pecan Street., Suite 2400
`San Antonio, TX 78209
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
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`BOSE’S RESPONSE TO STAFF’S RESPONSE TO PHITEK’S 2ND MOTION TO COMPEL—PAGE 4
`
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`
`
`Alan Cope Johnston, Esq.
`G. Brian Busey, Esq.
`Cynthia Lopez Beverage, Esq.
`Morrison & Foerster LLP
`2000 Pennsylvania Ave., N.W., Suite 5500
`Washington, DC 20006-1888
`
`Counsel for Respondents Phitek Systems
`Limited, GN Netcom, Inc., Creative Labs, Inc.,
`and Logitech Inc.
`
`
`James P. White, Esq.
`J. Aron Carnahan, Esq.
`Welsh & Katz, Ltd.
`120 South Riverside Plaza, 22nd Floor
`Chicago, IL. 60606
`
`Counsel for Respondent Audio Technica U.S.,
`Inc.
`
`
`Arthur Wineburg, Esq.
`Daniel E. Yonan, Esq.
`Akin Gump Strauss Hauer & Feld LLP
`1333 New Hampshire Ave., N.W.
`Washington, DC 20036
`
`Counsel for Respondent Audio-Technica U.S.,
`Inc.
`
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, Esq.
`David A. Boag, Esq.
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Counsel for Respondent Panasonic
`Corporation of North America
`
`
`Tom M. Schaumberg, Esq.
`Jamie D. Underwood, Esq.
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventh Street, N.W., Fifth Floor
`Washington, DC 20036
`
`Counsel for Respondent Panasonic
`Corporation of North America
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` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`
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`BOSE’S RESPONSE TO STAFF’S RESPONSE TO PHITEK’S 2ND MOTION TO COMPEL—PAGE 5
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`/s/ Patrick E. Edelin
`
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`BOSE’S RESPONSE TO STAFF’S RESPONSE TO PHITEK’S 2ND MOTION TO COMPEL—PAGE 6
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