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
`
`Investigation No. 337-TA-626
`
`RESPONDENT PHITEK SYSTEMS LIMITED’S MOTION TO COMPEL
`COMPLAINANT BOSE CORPORATION TO PRODUCE ITS EXPERT WITNESS’S
`vRESONANCE SHIFT TEST DATA, OR ALTERNATIVELY A MOTION FOR NON-
`MONETARY SANCTIONS, AND MEMORANDUM IN SUPPORT THEREOF
`
`Pursuant to the United States Intemational Trade Commission’s Rules of Practice and
`
`Procedures, 19 C.F.R. §§ 210.15, 210.26, 210.27(c), 210.30, 210.33(b), and Ground Rule 6,
`
`Respondent ‘Phitek Systems Limited’s (NZ) (“Phitek”) submits its Motion to Compel Bose
`
`Corporation (“Bose”) to produce testing data obtained and relied on by Bose’s expert witness,
`
`Durand R. Begault (“Dr. Begault”), in preparing his initial expert report, or alternatively a
`
`Motion for Non-Monetary Sanctions; a memorandum in support thereof, attached as Exhibit “1”
`
`’
`
`(“Memorandum”); and appendix of exhibits; a proposed order; and a Certificate of Service as
`
`required by Commission Rules 210.4(f) and (g), and Ground Rules 3.1. Pursuant to Ground
`
`Rule 3.2, counsel for Phitek certifies that reasonable and good faith efforts have been made to
`
`resolve this issue with opposing counsel more than two business days prior to the filing of this
`
`motion. The Staffis also aware of the dispute between Bose and Phitek set out in this motion
`
`and attached Memorandum, and they will take a position after reviewing the parties’ papers.
`
`dc-528461
`
`

`
`By this motion, Phitek seeks an order compelling Bose to produce all testing data its
`
`expert witness, Dr. Begault, testified during his deposition that he obtained while performing
`
`particular tests on all of the Respondents’ accused products, and that Dr. Begault also relied upon
`
`and referred. to in his Initial Report. Dr.‘Begault testified that he performed “in situ” or
`
`resonance shift tests on all of the Respondents’ accused products, and that this test produced data
`that he viewed in anianalyzer. He also testified that this “in situ” or resonance shift test produced
`
`results that were recorded in printouts. However, Dr. Begault testified that he has not produced
`
`this test data. Indeed, neither Dr. Begault nor Bose provided this test data that resulted from the
`
`“in situ” or resonance shift tests nor the printouts that contained the data resulting from the tests.
`
`But Dr. Begault relied on this test data to form an opinion that all of the Respondents’ accused
`
`products infringe, and that some tests relied upon by Respondents’ are “invalid.” As a result,
`
`Phitek respectfully requests production from Bose of the test data and the printouts that show the
`
`results of the resonance shift or “in situ” testing performed by Dr. Begault.
`
`Alternatively, if the data and printouts from Dr. Begault’s “in situ” or resonance shift
`
`tests have been destroyed or “lost,” Phitek respectfully requests the court to find that this data
`
`and the printouts have been spoliated, and to apply 19 C.F.R. § 2l0.33(b)(l). These “in situ”
`tests that Dr. Begault performed, he performed at the Bose headquarters in Framingham,
`
`Massachusetts. Thus, Phitek would respectfully request that a negative inference be applied
`
`against Bose that the data, results and printouts that were produced when Dr. Begault performed
`
`the “in situ” or resonance shift tests, which Phitek states is the proper test to apply, would have
`
`been unfavorable to Bose.
`
`dc—52846l
`
`

`
`Dated: July 2, 2008
`
`Respectfully submitted,
`
`1am B. Nash
`
`Dan Chapman
`Mark Fassold
`
`JACKSON WALKER L.L.P.
`
`112 E. Pecan Street, Suite 2400
`San Antonio, Texas USA 78205
`(210) 978-7700 (phone)
`(210) 242-4620 (fax)
`
`Alan Cope Johnston
`G. Brian Busey
`Cynthia Lopez Beverage
`MORRISON & FOERSTER LLP
`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`(202) 887-1500 (phone)
`(202) 887-0168 (fax)
`
`Counselfor Phitek Systems Limited (NZ)
`
`dc—528461
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`' Investigation No. 337—TA-626
`
`
`
`In the Matter of
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`
`
`
`
`GROUND RULE 3.2 CERTIFICATION
`
`As the moving party on Phitek Systems Limited (NZ)’s (“Phitek”) Motion to Compel
`
`Bose Corporation to Produce Its Expert Witness’s Resonance Shift Test Data, or Alternatively a
`
`Motion for Non-Monetary Sanctions, and Memorandum of Law in Support Thereof, I certify that
`
`I have made reasonable, good faith efforts to contact the opposing party to resolve the matter at
`
`least two business days prior to the filing of this motion.
`
`Respectfiilly submitted,
`
`
`
`7/4,0‘;/We
`
`
`illiam B. Nash
`
`JACKSON WALKER L.L.P.
`
`.
`
`112 E. Pecan Street, Suite 2400
`San Antonio, Texas USA 78205
`(210) 978-7700 (phone)
`(210) 242-4620 (fax)
`
`Counsel for Respondent Phitek Systems
`Limited (NZ)
`
`dc-527273
`
`

`
`APPENDIX OF EXHIBITS
`
`Exhibit 1 — Memorandum of Law In Support of its Motion to Compel Bose Corporation
`1.
`to Produce Its Expert Witness’s Resonance Shift Test Data or Alternatively a Motion for Non-
`Monetary Sanctions
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Exhibit “A” to Memorandum — June 10, 2008 email from A. Kopsidas to all
`Respondents.
`
`Exhibit “B” to Memorandum — Respondent Phitek Systems Limited’s Deposition
`Notice to Durand R. Begault, Ph.D.
`
`Exhibit “C” to Memorandum — Excerpts of the Deposition of Dr. Durand R.
`Begault, taken on June 17-18, 2008
`
`Exhibit “D” to Memorandum — Excerpts of the Initial Expert Report of Dr.
`Durand Bergault, pp. 24 — 25.
`
`Exhibit “E” to Memorandum — Phitek System Limited’s First Set of Requests for
`Production to Complainant
`
`F.
`
`Exhibit “F” to Memorandum — Correspondence dated June 25, 2008
`
`

`
` Exhibit 1
`
`Phitek Systems Limited (NZ)’s Motion to Compel Bose
`Corporation to Produce Its Expert Witness’s Resonance
`Shift Test Data , or Alternatively a Motion for Non-
`Monetary Sanctions
`
`Memorandum of Law in Support Thereof
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`WASHINGTON, D.C.
`
`Before the Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`Investigation No. 337-TA-626
`
`
`
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`
`
`In the Matter of
`
`RESPONDENT PHITEK SYSTEMS LIMITED’S MEMORANDUM OF ‘LAW IN ITS
`MOTION TO COMPEL COMPLAINANT BOSE CORPORATION TO PRODUCE ITS
`
`EXPERT WITNESS’S RESONANCE SHIFT TEST DATA OR ALTERNATIVELY A
`
`MOTION FOR NON-MONETARY SANCTIONS
`
`Because Bose Corporation’s (“Bose”) has refiised to produce test data and printouts its
`
`expert witness, Dr. Durand Begault (“Dr. Begault”), created whileperforming resonance shift
`
`tests (or “in situ” tests) on all of Respondents’ accused products, Respondent Phitek Systems
`
`Limited (NZ) (“Phitek”) respectfully requests assistance from the Administrative Law Judge in
`
`obtaining this data and the resultant printouts that Dr. Begault testified he created when he
`
`performing all these tests, or alternatively application of a negative inference under 19 C.F.R.
`
`210.33(b)(l).
`
`1.
`
`STATEMENT OF FACTS
`
`As offered by counsel for Bose via email on June 10, 2008, Phitek took the oral
`
`deposition of Dr. Begault on June 17 and 18, 2008. _S_g§ attached Exhibit “A,” June 10, 2008
`
`email from A. Kopsidas to all Respondents. Phitek served Bose with a Notice of Deposition for
`
`Dr. Begault on June 16, 2008. E attached Exhibit “B,” Respondent Phitek Systems Limited’s
`
`dc—528460
`
`

`
`Deposition Notice to Durand R. Begault, Ph.D. During the deposition of Dr. Begault, he
`
`admitted that he had performed testing on all of Respondents’ accused products that he identified
`
`as an “in situ” testing:
`
`[Q.] How did you determine that the leaks in the rear cavity of the
`accused product have no effect on the compliance of the air in the rear cavity?
`A. The way -- based on my understanding, my interpretation of the patent
`and testing] did, .
`.
`.
`.
`.
`Q. Okay. Try to follow my question. My question is: How did you
`determine that the leaks in the rear cavity of the accused product had no effect on
`the compliance of the air in the accused -- in the rear cavities of the accused
`product?
`
`A. There was an additional test that I did thatI can describe.
`
`Q. Okay. What is that test?
`A. The same kind ofresonance shift test that we've been describing, and
`i it was a test similar to Dr. Buck's in that we tried a -- what we referred to I gues
`as an in situ test. .
`.
`.
`'
`
`_S_e§ attached Exhibit “C,” Excerpts of the Oral Deposition of Dr. Begault, taken on June 17-18,
`
`2008, pp. 224:1 — 225:3 (emphases added). Dr. Begault testified that he performed this “in situ”
`
`or “resonance shift test” on the premises of the Bose headquarters in Framingham,
`
`Massachusetts:
`
`Q. Where did you test all of these headsets?
`A. There was testing conducted at Bose’s laboratory and then there was
`additional testing performed in our laboratory at Charles M. Salter Associates in
`San Francisco.
`
`Q. What methodologies did you use in Framingham [the location of
`Bose’s headquarters]?
`A. We did driver mechanical compliances as described in the report. And
`then there were measurements ofthe driver in situ, as we were discussing
`yesterday, done in Bose. And then in San Francisco we did the volumetric
`analysis.
`
`E Exhibit “C,” pp. 264:4 — 9; 265:24 — 266: 5 (emphases added). Dr. Begault testified that he
`
`performed the “in situ” tested on all of Respondents products, which were “a minimum of three
`
`dc-528460
`
`2
`
`

`
`and probably more” Panasonic, Creative, and Audio Technica headsets, and “two to four” Phitek
`
`Blackbox headsets. E Exhibit “C,” pp. 226:16 — 18; 262: 15 — 264:4. He performed the test,
`
`reviewed the results in an analyzer and even reviewed and “discussed” the printouts from the “in
`
`situ” testing:
`
`test?
`
`not?
`
`Q. Douyou recall yesterday testifying about how you performed the in situ
`
`A.
`
`I did.
`
`Q. How did you determine whether or not the holes were significant or
`
`A.
`
`In the in situ test
`
`Q. Where is all this test data that you used to determine the significance
`of all the other holes of the accused product?
`A. I don't have that data.
`
`Q. How did you observe that data?
`MR. CORDELL: Again, Counsel, I'm not sure he was through
`with his answer. So you need to let him finish his statements before you ask
`another question.
`'
`A. I observed the answer in the same way thatI observed the answer
`described in my report, with the analyzer.
`Q.
`Just by viewing the analyzer?
`A. Yes.
`
`Q. Were there any printouts?
`A. There were printouts that I looked at and discussed at the time. But as
`I say, I think that was all abandoned. And so I don't know if I have that data.
`Q.
`Is it possible you destroyed that?
`A. Possibly.
`
`Q. Were you hired by Bose at the time that you were doing that pretest?
`A. Yes.
`a
`
`Q. For what purpose?
`A.
`For the purpose that we've been discussing here for the last few days.
`And so at that time you knew that your testimony might be offered in
`Q.
`this litigation; is that correct?
`A. Yes.
`
`_S_e_e Exhibit “C,” pp. 281 :24 — 25; 282:7 — 17; 283:4 — 285:2 (emphases added). Dr. Begault had
`
`already been hired to testify in this case when he perfonned these tests. And though Dr. Begault
`
`dc-528460
`
`3
`
`

`
`attempts to characterize the testing data that Bose did not produce as “pre-testing” data, Dr.
`
`Begault admitted that he did reference, and thus rely on, these “in situ” tests to give his opinions
`
`in his Initial Report:
`
`Q. Okay. And the data that you used to determine that the in situ test was
`valid or invalid has been destroyed by you; is that correct?
`I can't say that for a fact.
`But it is lost to you as you sit here today?
`I don ’t have my hands on it right now today.
`Do you know where you might be able to find it?
`I could check at my lab and see if it's there.
`And you didn't report that data in your expert report, did you?
`The reason I didn't was that --
`
`r.O.>O.>r.O?>/.9.>
`
`I'm asking whether or not you did.
`MR. CORDELL: Counsel, let him answer and if you want to
`follow up you can. But you've got to let him answer.
`A. One more time?
`
`Q. Did you publish that data regarding the validity ofthe in situ test in
`your expert report?
`A. I mentioned a comment about it.
`
`fige attached Exhibit “C,” 286124 — 287:21 (emphases added). And Dr. Begault did more than
`
`“comment” about the in situ test in his initial report. Dr. Begault’s “comments” covered at least
`
`two pages of his report where he described the in situ test, providing complex mathematical
`
`equations, and then providing his expert opinion and conclusion that this test “is no longer valid .
`
`.
`
`. .” S_ee_ attached Exhibit “D,” the Initial Expert Report of Dr. Durand Bergault, pp. 24 — 25
`
`(emphasis added). At the heart of the dispute between the experts is which test correctly
`
`measures the compliance of the driver and the rear cavity, since asserted claims of Bose’s U.S.
`
`Patent No. 5,181,252 (“’252 patent”) contain the limitation that “a high compliance driver with a
`
`driver compliance that is greater than said rear cavity compliance.” Phitek disputes that its
`
`accused product reads on this limitation, and its experts’ tests confirm that Phitek’s accused
`
`products do not so read or infringe.
`
`dc-528460
`
`4
`
`

`
`Nevertheless, despite requesting this resonance frequency or “in situ” test data in
`
`discovery requests beginning in January of 2008,iBose and its expert, Dr. Begault, refuse to
`
`produce this information. Phitek properly request this testing data from Bose on January 4,
`
`2008. On January 4, 2008, Phitek served Requests for Production upon Bose. SE attached
`
`Exhibit “E,” Phitek System Limited’s First Set of Requests for Production to Complainant.
`
`Requests numbered 39, 96-105, and 75 all request documents showing testing data of the
`
`accused products, which includes any testing data produced or relied upon by Bose or its expert
`
`witnesses:
`
`Request No. 39. Documents relating to the design, development, structure,
`testing, evaluation, or operation of any product, whether made by Respondents or
`not that Bose contends infringes or practices any claim of the Asserted Patents.
`
`Request No. 96. Documents related to the Compliance Measurements performed
`by You on Noise Cancelling Headphones.
`
`Request No. 97. Documents describing the test protocol used by You to measure
`compliance of noise cancelling headphones.
`
`Request No. 98. Documents describing the instruments used by You to measure
`the compliance and/or stiffness of noise cancelling headphones.
`
`Request No. 99. Documents describing the instruments used by You to measure
`the effects of a noise cancelling headphones’ compliance and/or stiffiiess.
`
`Request N0. 100. Documents describing the assumptions made by You to
`measure compliance of noise cancelling headphones.
`C
`
`Request No. 101. Documents describing the computations made by You to
`measure compliance of noise cancelling headphones.
`
`Request No. 102. Documents describing the formulas used by You to measure
`compliance of noise cancelling headphones.
`
`Request No. 103. Documents describing the manner in which You determined
`the compliance of noise cancelling headphones.
`
`Request No. 104. Documents describing the manner in which You determined
`the compliance of noise cancelling headphones.
`
`dc-528460
`
`5
`
`

`
`Request No. 105. Documents reflecting computed and/or calculated compliances,
`including the test protocol, assumptions, computations, and formula for arriving at
`the compliances of front and rear cavities and the drivers as such compliances are
`set forth in the ITC documents (alleged infringement and domestic use charts),
`including without limit, the marmer in which the driver compliance was
`determined and the manner in which rear cavity compliance was determined.
`
`Request No. 175. Documents that Bose or anyone acting on Bose’s behalf has
`shown or otherwise made available to any expert witness that Bose may call at a
`trial or any other court proceeding in this action.
`
`E attached Exhibit “E.” pp. 5, 10. However, Bose has failed to produce this testing data.
`
`Indeed,‘Dr. Begault testified:
`
`Q. Did you produce the data to us about it?
`A. No, I did not.
`
`E attached Exhibit “C,” 287:24 — 25 (emphasis added). And as of the filing of this motion,
`
`Bose continues to refuse to produce this testing data. Indeed, Phitek requested this testing data
`
`from Bose via correspondence on June 25, 2008, following completion of the deposition of Dr.
`
`Begault, but Bose has refused any response. gee attached Exhibit “F,” Correspondence dated
`
`June 25,2008. Thus, Phitek is compelled to seek assistance from this court.
`
`II.
`
`LEGAL STANDARD
`
`Federal Rule of Civil Procedure 26(a)(2)(B) (“Rule 26”) requires a party to disclose the
`
`data and other information considered by an expert witness in forming his/her opinions.
`
`According the Rule 26, an expert witness must provide “the data or other information
`
`considered by the witness informing the opinions. . ..” FED.R.CIV.P. 26(a)(2)(B). Indeed, if a
`
`party fails to disclose information upon which their expert relies, a court “act[s] well within [its]
`
`discretion when .
`
`.
`
`. prohibiting [a party’s] experts from referring” to the undisclosed
`
`information. Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 1019 (7th Cir. 1984).
`
`dc-528460
`
`6
`
`

`
`Referencing discovery of expert witnesses, the notes of the Advisory Committee on Rule 26
`
`explains:
`
`[A] prohibition against discovery of information held by expert witnesses
`produces in acute form the very evils that discovery has been created to prevent.
`Effective cross-examination of an expert witness requires advance preparation.
`The lawyer even with the help of his own experts frequently cannot anticipate the
`particular approach his adversary ’s expert will take or the data on which he will
`base his judgment on the stand. A California study of discovery and pretrial in
`condemnation cases notes that the only substitute for discovery of experts’
`valuation materials is “lengthy—and often fruit]ess-cross-examination during
`trial,” and recommends pretrial exchange of such material. Similarly, effective
`rebuttal requires advance knowledge of the line of testimony of the other side. If
`the latter is foreclosed by a rule against discovery, then the narrowing of issues
`and elimination of surprise which discovery normally produces are frustrated.
`
`Gorby, 741 F.2d at l0l8 (citing Advisory Committee on Rules) (emphasis added). Phitek is
`
`‘entitled to the data on which Dr. Begault based his judgment in his report, and on which he will
`
`base his opinions and conclusions on the witness stand.
`
`Indeed, in Certain Audible Alarm Devices for Divers, the Administrative Law Judge
`
`(“ALJ”) ordered a party to “produce copies of any test data or notes relating to those tests or
`
`examinations” that were performed by an expert witness. E Certain Audible Alarm Devices
`
`for Divers, Inv. No. 337-TA-365, Order No. 15 at 2 (Int’l Trade Comm’n Sept. 29, 1994). The
`
`ALJ ordered that the party “is required to disclose any other test that [its expert witness] has
`
`made in his preparation for this hearing.” Li. Bose should be required to produce copies of any
`
`test data or notes that Dr. Begault relied upon in forming his opinions, as set out in his Initial
`
`Report, and that he will, also, testify to at trial as his reason for “invalidating” the test used by
`
`Respondents.
`
`Likewise, has the ALJ held in Certain Mobile Telephone Handsets Wireless
`
`Communication Devices, a party “must produce the test data.” E Certain Mobile Telephone
`
`Handsets Wireless Communication Devices, Inv. No. 337-TA-578, Order No. 43 at 7 (Int’l
`
`dc-528460
`
`7
`
`

`
`Trade Comm’n Apr. 23, 2007) (“Mobile Telephone Handsets”). In Mobile Telephone Handsets,
`
`the respondent sought to compel the complainant to produce test results and summaries related to
`
`field testing. Li at 2. Among other arguments, the complainant contended that because its
`
`expert witness did conduct or rely on this test data, that it should not be required to produce the
`
`“rawitest logs.” I_d. at 4. The ALJ stated that “[t]he fact that these tests were not performed for
`
`this investigation is irrelevant to this analysis. . ..that [complainant] may have chosen not to share
`
`these tests with its expert. . .does not make these tests irrelevant.” I_d. at 5. Thus, because Dr.
`
`Begault not only did perform the “in situ” or “resonance frequency” tests, and because Dr.
`
`Begault relied on these tests in reaching a conclusion in his report, along with discussing this test
`
`and his opinions regarding said test in his Initial Report, Bose should be compelled to produce
`
`these tests results and printouts.
`Alternatively, because these tests results and printouts were claimed to be “invalid” by
`
`Dr. Begault, if these tests results and printouts have been destroyed, then an adverse inference
`
`should be made against Bose for failing to produce this information. In G_o1r_l;y, the Court of
`
`Appeals for the Seventh Circuit held that the district court properly prohibited the appellant from
`
`referring in testimony to information its expert witnesses had relied upon that the appellant had
`
`withheld from the appellee, or from referring to any conclusions the appellant’s experts had
`
`reached on the basis of that withheld information. Q. 1017-19. Of course, in this case, Bose
`
`seems to want to hide the data that resulted from Dr. Begault’s “in situ” or resonance frequency
`
`testing, and just rely on its expert’s claims that the test is “invalid” without any data to back up
`
`why this test would be considered “invalid.” Thus, prohibiting Bose from testifying or
`
`introducing any such evidence of the results of the test is exactly what Bose would seek. As a
`
`result, because Dr. Begault relied on this data in reaching a his conclusion that the test upon
`
`dc-528460
`
`g
`
`

`
`which Respondents rely, is “invalid,” and set out this conclusion in his Initial Report, an adverse
`
`inference under 19 C.F.R. §210.33(b)(l) should be applied if Bose refuses to tum this
`
`information over to the Respondents. As previously pointed out, these tests, the results and the
`
`printouts were all performed and produced on the premises of Bose. Thus, an adverse inference
`
`under 19 C.F.R. § 210.33(b), would be proper since Phitek, and all Respondents, will not be able
`
`to evaluate or analyze whether the bases on which Dr. Begault rejects and claims as “invalid” the
`
`very tests that Respondents state is a proper test to perform.
`
`As a result, Bose should be compelled to produce Dr. Begault’s “in situ” or resonance
`
`frequency test data, results, and printouts. If unable to because destroyed or “lost”, then Phitek
`
`respectfully requests the court to apply a negative inferencehthat the test data, results and
`
`printouts would have proven that this test is the proper test to apply.
`/
`
`dc—528460
`
`9
`
`

`
`Respectfully submitted, '
`
`
`
`D Chapman
`Mark Fassold
`
`JACKSON WALKER L.L.P.
`
`112 E. Pecan Street, Suite 2400
`San Antonio, Texas USA 78205
`(210) 978-7700 (phone)
`(210) 242-4620 (fax)
`
`Alan Cope Johnston
`G. Brian Busey
`Cynthia Lopez Beverage
`MORRISON & FOERSTER LLP
`
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`(202) 887-1500 (phone)
`(202) 887-0168 (fax)
`
`Counselfor Phitek Systems Limited (NZ)
`
`Dated: July 2, 2008
`
`dc-528460
`
`

`
`Exhibit A
`
`to Memorandum of Law
`
`June 10, 2008 email from A. Kopsidas to all Respondents
`
`

`
`Bose Expert Deposition Dates
`
`Page 1 of 1
`
`Beverage, Cynthia Lopez
`
`From: Andrew Kopsidas [ark@fr.com]
`
`Sent:
`
`Tuesday, June 10, 2008 9:59 PM
`
`To:
`
`Bose lTC-Respondents
`
`Subject: Bose Expert Deposition Dates
`
`Counsel,
`
`Following up on our conversation on the last Discovery Committee call, Bose offers its expert witness Dr. Durand
`Begault, for deposition on June 17 and 18 at Fish & Richardson's office in Washington, DC.
`
`Please confirm if you plan to attend so we can inform security. Thanks.
`
`Andy.
`
`Andrew R. Kopsidas
`~ Fish & Richardson P.C.
`
`Intellectual Property | Litigation | Corporate
`1425 K Street, N.W., 11th Fl.
`
`Washington, D.C. 20005
`Tel: 202.626.6407
`
`Fax: 202.783.2331
`
`E-mail: kopsidas@fr.co1'n
`www.fr.com
`
`~k***~k*~k*~k-k~k*~k*-k‘k~k-k~k*~k-k~k-k-k~k**~k*‘k*****~k:l—‘k***~k)\'~k**-k*~k*~k***~k*~k~k-k‘k*-k**~k~k‘k*-k*~k~k***‘k****~k~k*-k*-k*~k*~k>\-~k:
`
`This email message is for the sole use of the intended recipient(s) and may contain
`confidential and privileged information. Any unauthorized use or disclosure is prohibited. If
`you are not the intended recipient, please contact the sender by reply email and destroy all
`copies of the original message.
`‘
`
`tax advice contained in this communication (including
`IRS CIRCULAR 230 DISCLOSURE: Any U.S.
`any attachments)
`is not intended or written to be used, and cannot be used,
`for the purpose
`of
`(i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or
`recommending to another party any transaction or matter addressed herein.
`
`~k~k**-A‘-k~k*‘k*-k‘k*~k*****~k~k~k**~k‘k‘k-k~k'k~k~k***‘k-k~k**-k**-k~k*4:)\-*-.k-k**~k*~k*-k~k~k~k*~k*~k-k~k'kfk*~k****~k**~k~k*****~k~k*****~k:
`
`7/2/2008
`
`

`
`Exhibit B
`
`to Memorandum of Law
`
`Respondent Phitek Systems Limited’s Deposition Notice to
`Durand R. Begault, Ph.D.
`
`

`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`
`Administrative Law Judge
`
`Investigation No. 337—TA-626
`
`
`
`
`
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`In the Matter of
`
`RESPONDENT PHITEK SYSTEMS LIMITED’S
`
`DEPOSITION NOTICE TO DURAND R. BEGAULT, PH.D .
`
`PLEASE TAKE NOTICE that, pursuant to Section 337 of the Tariff Act of 1930, as
`
`amended, and the United States International Trade Commission’s Rules of Practice and
`
`Procedure, 19 C.F.R. §§ 210.27 and 210.28, Respondent Phitek Systems Limited (“Phitek”) will
`
`take the deposition of Durand R. Begault, Ph.D, at 9:00 am, on June 17-18, 2008, at the offices
`
`of Fish & Richardson P.C., 1425 K Street, N.W., 11th Floor, Washington, D.C. 20005, or at such
`
`other time and place as the parties mutually agree. The deposition will continue from day to day
`
`until completed.
`
`The deposition will be taken before a court reporter or other person authorized by law to
`
`administer oaths, and it will be recorded by stenographic means and/or videotape. The
`
`deposition will be taken for the purpose of discovery, for use at the hearing in this matter, and for
`
`any other purpose permitted under the Commission’s Rules of Practice.
`
`You are invited to attend and examine.
`
`5l07l87v.1 128214/00004
`
`

`
`Dated: June 16, 2008
`
`Respectfiilly submitted,
`
`/s/ Mark A. J. Fassold
`William B. Nash
`
`Daniel Chapman 1
`Mark A. J. Fassold
`
`JACKSON WALKER LLP
`
`112 E. Pecan, Suite. 2400
`San Antonio, Texas 78205
`(210) 978-7700
`(210) 242-4620
`Alan Cope Johnson
`G. Brian Busey
`Cynthia Beverage
`MORRISON & FOERSTER, L.L.P.
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`ATTORNEYS FOR PHITEK SYSTEMS LIMITED
`
`5l07187v.l 128214/00004
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of
`
`RESPONDENT PHITEK SYSTEMS LIMITED’s DEPOSITION NOTICE
`
`TO DURAND R. BEGAULT, PH.D
`
`has been served on June 16, 2008, as indicated, on the following:
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room ll2A
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`.
`Administrative Law Judge
`U.S. International Trade Commission
`500 E. Street, S.W., Room 317
`Washington, DC 20436
`
`2 Copies
`
`Jennifer Whang
`Administrative Law Judge Attomey-Advisor
`.
`2 copies w/out attachments
`
`Via First Class Mail
`_
`.
`V13 Hand D€11V6fY
`_
`_
`_
`Via Overnight Delivery
`
`Via Facsimile
`
`Via E-File
`
`Not Served
`
`Via First Class Mail
`
`Via Hand DGHVCTY
`'
`_
`_
`Via Ovemight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Not Served
`
`Via Electronic Mail
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Not Served
`
`5107l87v.l 128214/00004
`
`

`
`
` Via First Class Mail
`
` Via Hand Delivery
`
`
`Via Facsimile
`
`Via Overnight Delivery
`
`Christopher Paulraj, Esq.
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`
`500 E. Street, S.W. Room 401-F
`Washington, DC 20436
`
`
`
`Ruffm B. Cordell
`
`Via Electronic Mail
`
`Via First Class Mail
`
`
`
`
`
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`FISH & RICHARDSON P.C.
`
`
`
`
` Via Hand Delivery
`
` Via Overnight Delivery
` Via Facsimile
`ATTORNEYS FOR COMPLAINANT BOSE
`
`CORPORATION
` Via Electronic Mail
`
`
`
`1425 K Street, N.W.
`Washington, DC 20005
`
`
`
`
`
`
`Charles Hieken
`
`Gregory A. Madera
`Adam J. Kessel
`
`FISH & RICHARDSON P.C.
`225 Franklin Street
`
`Boston, MA 02 1 10
`
`ATTORNEYS FOR COMPLAINANT BOSE
`CORPORATION
`
` Via First Class Mail
`
`
`
`
`
`
`Via Overnight Delivery
`
`Via Facsimile I
`
`
`
`Via Hand Delivery
`
`fiflljljfl Via Electronic Mail
`
`EDDEIEI
`
`
`
` Via Ovemight Delivery
`
`Via Facsimile
`ATTORNEYS FOR RESPONDENT AUDIO
`
` Via Electronic Mail
`TECHNICA, U.S. INC.
`
`
`
`James P. White
`Gerald T. Shekleton
`J. Aron Carnahan
`
`
`
`Via First Class Mail
`
`Via Hand Delivery
`
`Welsh & Katz Ltd.
`120 South Riverside Plaza, 22“ Floor
`Chicago, Illinois 60606
`
`5l07l87v.l 128214/00004
`
`

`
`
`
`
`
`
`
` Arthur Wineburg
`Via First Class Mail
`Daniel E. Yonan
`
`
`Akin Gump Strauss Hauer & Feld, LLP
`1333 New Hampshire Avenue, N.W.
`Washington, DC 20036
`
`ATTORNEYS FOR RESPONDENT AUDIO
`
`TECHNICA, U.S. INC.
`
`
`Via Hand Delivery
`
`Via Overnight Delivery
`
`Via Facsimile
`
`Via Electronic Mail
`
`Via First Class Mail
`
`
`
`
`Via Electronic Mail
`
`Via First Class Mail
`
`Via Hand Delivery
`
`
`
`EDDDCIEDEIDCIEDDDD
`
`Tom M. Schaumberg
`Jamie D. Underwood
`
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventeenth Floor, NW, Fifth Floor
`Washington, DC 20036
`
`ATTORNEYS FOR PANASONIC CORPORATION
`OF NORTH AMERICA
`
`Joseph Casino
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`
`
`
`New York, NY 10016
`
`ATTORNEYS FOR PANASONIC CORPORATION
`OF NORTH AMERICA
`
` Via Hand Delivery
` Via Ovemight Delivery
` Via Facsimile
`
`
`
`Daniel Ebenstein
`Abraham Kasdan
`
`
`
`
`
`Via Ovemight Delivery
`
`
`
`
`
` 2000 Pennsylvania Ave., NW
`Via OVemightDe1iVery
`
` Via Facsimile
` Via Electronic Mail
`
`Alan Cope Johnston
`G. Brian Busey
`Cynthia Lopez Beverage
`MORRISON FOERSTER
`
`
`
`Washington, D.C. 20006-1888
`
`ATTORNEYS FOR PHITEK SYSTEMS LIMITED
`
`AND CREATIVE LABS, INC.
`
`Via Hand De1iVe1'Y
`
`
`
`/s/ Mark A. J. Fassold
`Mark A. J. Fassold
`
`5l07l87v.l 128214/00004
`
`
`
`Via Facsimile
`
`Via Electronic Mail
`
`Via First Class Mail
`
`

`
`Exhibit C
`
`to Memorandum of Law
`
`Excerpts of the Deposition of Dr. Durand R. Begault,
`taken on June 17-18, 2008
`
`

`
`Fina1 Begau1t—vo1ume I.txt
`
`UNITED STATES TRADE COMMISSION
`washington, D.C.
`
`_
`In the Matter of
`Certain No1se—Cance111ng
`Headphones.
`
`) Investigation
`) N0.
`337—TA—626
`)
`
`0001
`
`I-'OkOOO\IO\U'I-D-UJf\)|-|
`
`VIDEOTAPED DEPOSITION OF DURAND RENE BEGAULT
`VOLUME I
`Tuesday, June 17, 2008
`washington, D.C.
`
`Reported by: Chery1 A. Lord, RPR, CRR
`
`June 17, 2008
`9:15 AM
`
`VIDEOTAPED DEPOSITION OF DURAND RENE BEGAULT, he1d at
`the offices of:
`
`FISH & RICHARDSON P.C.
`1425 K street, N.W., 11th F1oor
`washington, D.C.
`20005-3500
`
`Pursuant to notice before Chery1 A. Lord, Registered
`Profess1ona1 Reporter, Certified Rea1time Reporter,
`and Notary Pub1ic in and for the District of Co1umbia.
`
`H.odmummawmw
`
`APPEARANCES
`
`For Bose Corporation and Durand Rene Begau1t:
`Ruffin B. Corde11, Esq.
`Steven A. Bowers, Esq.
`FISH & RICHARDSON P.C.
`1425 K Street, N.w., Suite 1100
`washington, D.C. 20005,
`Ph6fié:“202.783i3070’
`Fax: 202.783.2331
`
`Page 1
`
`

`
`Fina1 Begau1t—Vo1ume I.txt
`_
`Emai1: corde11@fr.com
`Emai1: bowers@fr.com
`
`For Phitek Systems Ltd. and Creative Labs Inc.:
`Mark A.J. Fasso1d, Esq.
`wi11iam B. Nash, Esq.
`(appearing by te1ephone in
`PM session on1y)
`JACKSON WALKER L.L.P.
`Weston Centre
`112 E. Pecan Street, Suite 2400
`San Antonio, TX 78205
`Phone: 210.978.7700
`Fax: 210.978.7790
`Emai1: mfasso1d@jw.com
`Emai1: bnash@jw.com
`
`APPEARANCES CONTINUED
`
`For Panasonic Corporation of North America:
`Joseph M. Casino, Esq.
`AMSTER ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue, 21st F1oor
`New York, NY 10016
`Phone: 212.336.8000
`Fax: 212.336.8001
`Emai1:
`jcasino@are1aw.com
`
`For United States Internationa1 Trade Commission:
`Christopher G. Pau1raj, Esq.
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Office of Unfair Import Investigations
`500 E Street,
`sw
`Washington, DC 20436
`Phone: 202.205.2000
`Emai1: christopher.pau1raj@usitc.gov
`
`A150 present:
`Doug1as F. winker and E11en Hebert,
`videographer
`
`11
`12
`13
`
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`0004
`
`1 2 34 5 6 7 8 9
`
`10
`11
`
`12
`13
`14
`15
`16
`17
`18
`19
`20
`
`21
`22
`23
`24
`25
`0005
`
`CONTENTS
`
`EXAMINATION BY
`Mr. Fasso1d
`
`NO.
`
`DESCRIPTION“
`
`EXHIBITS
`
`Initia1 Expert Report
`Exhibit 1
`Exhibit 2 Rebutta1 Expert Report
`Exhibit 3 Co1ored copies of photographs
`Exhibit 4
`NRTG Time1ine, Nos. BOSITC
`394089-90
`
`PAGE
`7
`
`PAGE
`
`_
`
`8
`104
`119
`
`122
`
`Page 2
`
`1
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`2 3
`
`4
`
`5 6 7
`
`8‘
`9
`10
`11
`12
`13
`14
`
`

`
`22
`23
`24
`25
`0006
`
`l-‘©KOO0\lO\U'I-bUJr\)|-—|
`
`Finai Begau1t—Vo1ume