UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`Before the Honorable 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 SYSTEMS
`LIMITED’S (NZ) MOTION TO MODIFY ORDER NO. 4: SETTING THE
`PROCEDURAL SCHEDULE
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`I.
`
`INTRODUCTION
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`On May 9, 2008, Respondent Phitek Systems limited (“Phitek”) filed a motion to modify
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`certain dates in the procedural schedule set forth in Order No. 4. Specifically, Phitek requests
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`that the deadline for serving its initial expert report be moved from May 28, 2008 to June 11,
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`2008 and the deadline for all the private parties to exchange rebuttal reports be moved from June
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`11, 2008 to June 18, 2008. Phitek asserts that it is not asking to modify any other dates in the
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`procedural schedule. For the reasons set forth herein, the Staff does not believe that Phitek has
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`established good cause to modify the procedural schedule.
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`II.
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`DISCUSSION
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`Under the current procedural schedule set forth in Order No. 4, initial expert reports must
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`be exchanged by May 28, 2008 and rebuttal expert reports must be exchanged by June 11, 2008.
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`Phitek asserts that good cause to modify these dates exists because Complainant Bose
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`2
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`Corporation (“Bose”) has refused to produce discovery concerning its pre-suit testing
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`methodology and results, and that it is unduly burdensome and impossible for Phitek’s experts to
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`properly prepare their expert reports without such information. Phitek further asserts that it is
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`consistent with federal practice for the party with the burden of proof to produce its expert report
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`prior to the party without the burden of proof, and that the International Trade Commission has
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`utilized such a procedure in the past when requested to do so.
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`The Staff does not believe that Phitek has provided any good cause to modify the
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`procedural schedule that was initially agreed upon by the parties. See Ground Rule 2
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`(“Modifications of the procedural schedule by any party shall be made by written motion
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`showing good cause.”). In support of its motion, Phitek cites to the Staff’s response to Phitek’s
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`prior motion to compel discovery into Bose’s pre-suit compliance testing methodologies. As the
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`Staff noted in its response to that motion, Bose should not be required to produce any work-
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`product relating to its pre-suit compliance testing unless those test results are affirmatively relied
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`upon by Bose to support its infringement contentions.
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`While the Staff submits that Bose should be precluded from relying upon its pre-suit
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`testing based on the representations it made in response to Phitek’s motion to compel, that does
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`not preclude Bose from presenting new compliance testing in its initial expert reports. If Bose
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`chooses to do so, Phitek will have the opportunity to assess and respond to these test results and
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`methodologies in its own rebuttal expert reports, currently due June 11, 2008. Phitek does not
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`provide any explanation as to why it will need more than the two weeks provided for in the
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`current procedural schedule to have its own experts address any testing identified in Bose’s
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`initial expert reports. Moreover, to the extent that supplementation of Phitek’s expert reports is
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`3
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`necessary, Phitek may do so in the manner provided for in Commission Rule 210.27(c). See
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`Ground Rule 6. 1
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`Phitek argues that it is consistent with both federal and Commission practice to have the
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`party with the burden of proof to produce its expert reports prior to the party without the burden
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`of proof. There is nothing in the current procedural schedule that is inconsistent with this
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`practice. It is the Staff’s understanding that under the current procedural schedule, the private
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`parties will file their initial expert reports on issues as to which they bear the burden of proof two
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`weeks prior to the filing of their rebuttal expert reports. Thus, on May 28, Bose will file its
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`expert report addressing any opinions to be provided by its experts on infringement and domestic
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`industry, and Phitek will file its expert report addressing any opinions to be provided by its
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`experts on invalidity, unenforceability, and any other affirmative defenses. The parties will
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`thereafter have the opportunity to file their rebuttal expert reports on June 11 addressing those
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`issues on which they do not bear the burden of proof. Phitek does not provide adequate
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`justification as to why it will need two extra weeks to file its initial expert report and one extra
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`week to file its rebuttal expert report. The Staff also notes that extending these dates in the
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`procedural schedule will reduce the amount of time available for expert depositions to take place
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`before the close of expert discovery set on June 27, 2008, and will also reduce the amount of
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`time the parties have to prepare for the evidentiary hearing scheduled for August 4-12, 2008.
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` Ground Rule 6 provides that “[t]he parties shall supplement these [expert report]
`1
`disclosures as needed in the manner provided in Commission Rule 210.27(c).” Order No. 2 at
`10. Commission Rule 210.27(c) states that “[a] party who has responded to a request for
`discovery with a response is under a duty to supplement or correct the response to include
`information thereafter acquired . . . .” 19 C.F.R. § 210.27(c).
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`

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`III.
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`CONCLUSION
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`4
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`For the reasons stated herein, Phitek’s motion should be denied because good cause does
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`not exist to modify the expert report dates set forth in the procedural schedule.
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`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) 205-2575
`(202) 205-2158 (Facsimile)
`
`May 21, 2008
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`

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`Certain Noise Cancelling Headphones
`
`Investigation No. 337-TA-626
`
`CERTIFICATE OF SERVICE
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`The undersigned certifies that on May 21, 2008, he caused the foregoing COMMISSION INVESTIGATIVE
`STAFF’S RESPONSE TO PHITEK SYSTEMS LIMITED’S (NZ) MOTION TO MODIFY ORDER NO. 4:
`SETTING THE PROCEDURAL SCHEDULE 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 E-MAIL AND FIRST CLASS MAIL
`
`BY E-MAIL AND FIRST CLASS MAIL
`
`Counsel for Respondents Creative Labs, Inc., Phitek
`Systems Limited, GN Netcom, Inc., and Logitech Inc.
`
`BY E-MAIL AND FIRST CLASS MAIL
`
`BY E-MAIL 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
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`

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`Counsel for Respondent Audio Technica U.S., Inc.
`
`BY E-MAIL 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 E-MAIL 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 E-MAIL 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 E-MAIL 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)
`
`-ii-