Goodwin Insights August 21, 2020

Late Disclosure Of Fact Witness Results In ALJ Ordering Supplemental Deposition

In the Matter of CERTAIN TOUCH-CONTROLLED MOBILE DEVICES, COMPUTERS, AND COMPONENTS THEREOF, Inv. No. 337-TA-1162, Order No. 47 Granting in part Neodron’s motion in limine no. 5 to preclude respondent HP’s fact witness Marty Chen from testifying about HP’s use of Raydium components (May 28, 2020)

Before: ALJ Elliot

Practice Tips and Insights:

A late disclosure of a fact witness with material testimony about the third party components of the accused products may result in an order requiring a supplemental deposition of the fact witness, and potentially require the parties to seek to supplement their respective infringement positions.

Holding and Status:

ALJ Elliot granted in part Neodron’s motion and ordered that HP make available its fact witness for supplemental deposition and deferred ruling on the remainder of the motion thereafter.

Order Background:

The instant order grants in part Neodron’s motion in limine to the extent HP’s fact witness must be made available for a supplemental deposition limited to whether Raydium touch controllers are used in any accused HP products.

Notable Disputed Issues and Related Points of Law:

Untimely disclosure of fact witness’s hearing testimony: HP waited until its prehearing brief to identify its fact witness to testify about whether HP used Raydium chips in HP’s accused products. Because of HP’s late disclosure, the ALJ ordered a supplemental deposition of HP’s fact witness and, depending on the substance of the fact witness’s testimony, the testimony may be precluded or require the parties to seek to supplement their respective infringement positions.