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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
`
`
`
`
`
`
`
`COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO PRECLUDE
`TESTIMONY AND ATTORNEY ARGUMENT REGARDING
`EXPERT DRAFT REPORTS, NOTES, AND OTHER COMMUNICATIONS
`
`Complainant Bose Corporation (“Bose”) respectfully submits this motion in limine to
`
`preclude testimony and attorney arguments regarding an expert’s draft reports, notes, and other
`
`communications, including communications with litigation counsel (“non-discoverable expert
`
`material”). As reported in the February Discovery Committee Report, submitted to the
`
`Administrative Law Judge on March 10, 2008 (attached hereto as Exhibit A), all parties in this
`
`Investigation stipulated as follows:
`
`The parties agree that an expert’s draft reports, notes, and other
`communications (including communications with litigation
`counsel) will be excluded from discovery.
`
`The exclusion of testimony and attorney argument regarding non-discoverable expert material
`
`merely enforces the stipulation voluntarily agreed to by all parties.
`
`19 C.F.R. 210.37(b) provides that “irrelevant, immaterial, unreliable or unduly repetitious
`
`evidence shall be excluded.” Any testimony regarding the preparation of the expert report by
`
`any witness other than the expert himself would be unreliable, if not additionally irrelevant and
`
`immaterial, since it would it would be based on pure speculation. Any testimony by an expert
`
`
`
`
`
`

`
`
`
`regarding the non-discoverable expert material would severely prejudice the opposing party
`
`since the opposing party had not had the opportunity to evaluate, analyze, and respond to such
`
`testimony during discovery. Attorney argument regarding the non-discoverable expert material
`
`should be prohibited because any such argument would be devoid of any factual basis, and thus
`
`is improper.
`
`For these reasons, the Administrative Law Judge should preclude testimony and attorney
`
`arguments regarding an expert’s draft reports, notes, and other communications, including
`
`communications with litigation counsel.
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`FISH & RICHARDSON P.C.
`
`
`
`
`
`
`
`/s/ Autumn J. S. Hwang
`
`Ruffin B. Cordell
`Andrew R. Kopsidas
`Jeffrey R. Whieldon
`Autumn J.S. Hwang
`Steven A. Bowers
`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
`Stephen A. Marshall
`FISH & RICHARDSON P.C.
`225 Franklin Street
`Boston, MA 02110
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
`
`
`
`
`2
`
`
`Dated: October 17, 2008
`
`
`
`

`
`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
`
`
`
`3
`
`
`
`
`
`
`
`

`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 17, 2008, a copy of
`
`BOSE CORPORATION’S MOTION IN LIMINE TO PRECLUDE TESTIMONY
` AND ATTORNEY ARGUMENT REGARDING
`EXPERT DRAFT REPORTS, NOTES, AND OTHER COMMUNICATIONS
`_________________
`was served on the following as indicated:
`
`
` 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
`
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112-F
`Washington, DC 20436
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W., Room 317-I
`Washington, DC 20436
`
`
`
`Christopher Paulraj, Esq.
`T. Spence Chubb, 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.
`
`
`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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
` 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
`
` Via Hand Delivery
` Via U.S. Mail
` Via Overnight Delivery
` Via Electronic Mail
` Via Facsimile
` Via Electronic Docket Filing
` Not Served
`
`/s/ Patrick Edelin, Jr.
`
`Patrick Edelin, Jr.
`
`
`
`4
`
`
`
`
`Daniel Ebenstein, Esq.
`Abraham Kasdan, Esq.
`Joseph Casino, 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
`
`
`
`
`
`
`
`
`

`
`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
`
`[PROPOSED] ORDER NO.: ______
`
`
`
`GRANTING COMPLAINANT BOSE CORPORATION’S MOTION IN LIMINE TO
`PRECLUDE TESTIMONY AND ATTORNEY ARGUMENT REGARDING
`EXPERT DRAFT REPORTS, NOTES, AND OTHER COMMUNICATIONS
`
`Having considered Complainant Bose Corporation’s Motion In Limine to Preclude
`
`Testimony and Attorney Argument Regarding Expert Draft Reports, Notes, and Other
`
`Communications and determining that good cause has been show, IT IS HEREBY ORDERED
`
`that the Motion is GRANTED.
`
`
`
`So ORDERED this ______ day of ____________, 2008.
`
`
`
`
`
`
`
`
`
`Hon. Charles E. Bullock
`Administrative Law Judge

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