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Message: ITC Complainants' Motion For Leave for Late Submission
COMPLAINANTS’ MOTION FOR LEAVE FOR LATE SUBMISSION OF TRIAL
LISTS AND EXHIBITS PURSUANT TO GROUND RULE 1.10
The Procedural Schedule in this Investigation required the submission and service of
direct exhibits and lists by Friday May 3, 2013. Complainants did not meet this deadline. For
the reasons set forth below, Complainants respectfully request leave for the submission and
service of their direct exhibits and lists on Monday May 6, 2013.
Having been faced with similar deadlines in other Section 337 Investigations,
Complainants’ counsel has devised an internal system for applying exhibit stamps, naming
exhibit files and generating final exhibit lists. This system involves a combination of manual and
automated processes that have been used successfully in each instance in prior investigations and
test runs prior to the May 3 deadline in this Investigation.
Complainants have been compiling their exhibits and lists throughout the course of the
Investigation and have devoted substantial resources for weeks to meet the May 3, 2013
deadline. Pursuant to Ground Rule 8.6.5 (requiring all parties to “coordinate exhibits to avoid
unnecessary duplication”) Complainants waited to receive Respondents’ exhibit list on
Wednesday May 1 to start numbering exhibits. Immediately upon receipt of Respondents’
exhibit list on the evening of Wednesday May 1, Complainants’ counsel began the lengthy
process of comparing the two lists to identify duplicative entries. Complainants’ counsel
informed Respondents that Complainants’ counsel was reviewing the parties’ proposed exhibitlists in accordance with Ground Rules, and that Complainants would circulate a list of identified
duplicate proposed exhibits. Complainants completed their initial review of the Parties’
proposed exhibit lists on Thursday, May 2 and circulated their findings to Respondents but did
not hear back from Respondents.
After creating the joint exhibit list on May 2, Complainants’ counsel began to run certain
automated and semi-automated processes to apply exhibit stamps to all Complainant and joint
exhibits and rename all exhibit files to match exhibit numbers. These processes were tied to the
master Excel versions of Complainants’ exhibit list and the joint exhibit list. Prior to running
these processes—which had been used successfully and in a timely way in prior investigations—
Complainants’ counsel, staff and vendor conducted several test runs to verify the processes, all
of which were successful and issue-free. However, during the early hours of May 3, a series of
technical problems arose that caused both Complainants’ exhibits, as well as the joint exhibits, to
be corrupted in two ways. First, the wrong exhibits stamps were applied to most exhibits, while
the remainder received no exhibit stamps at all. Second, large swaths of the exhibit files were
renamed to the wrong exhibit number. Further, the incorrect exhibit stamping and file
numbering did not match. These problems essentially scrambled Complainants’ master set of
exhibits files, which no longer matched their corresponding exhibit lists in any way.
Complainants’ counsel discovered the foregoing problems in stages early on the morning
of May 3, during the quality control process. At the same time, it was also discovered that the
automated routines used for applying exhibit stamps and renaming exhibit files had been
corrupted and could not be rebuilt in time to process the exhibits before the submission deadline
later that same day. Consequently, approximately 15 attorneys and staff affiliated with
Complainants’ counsel began to manually prepare Complainants’ exhibits and joint exhibits and
harmonize the master copies of the exhibit lists to match the repaired exhibits.
Despite their diligence, Complainants’ counsel was unable to manually prepare the
exhibits and lists on time. Through miscommunication, Complainants’ vendor submitted a harddrive containing corrupted exhibits to the ALJ via the drop box on Friday May 3. Complainants
do not know exactly what is on the hard drive and request that the ALJ return or discard it.
Late on the evening of May 3 (Pacific Time), Complainants served their exhibit list in its
then-current form. However, it was not until the morning of Monday May 6, after having
worked through Friday, Saturday and Sunday nights, that Complainants’ counsel and staff were
able to reprocess the exhibit files by hand and correct the exhibit lists.
Complainants served both corrected exhibit lists, as well as all CX and JX exhibits
electronically on Respondents and the Staff Monday morning. Complainants’ vendor has also
submitted, or will submit, the corrected exhibit lists and exhibits to the ALJ and the Staff on hard
drives this morning, May 6.
Complainants respectfully apologize to the ALJ, Respondents and the Staff for the late
submission and service. Complainants suggest that any prejudice Respondents and the Staff
have suffered as a result of the delay may be alleviated by extending the objection deadlines
related to Complainants’ exhibits. Complainants will not object to such relief.
Complainants respectfully submit that the unforeseen catastrophic technical problems
they encountered constitute good cause for the requested late submissions pursuant to Ground
Rule 1.10 and Commission Rules 201.3(c) and 210.14(b)(2). Further, the potential prejudice
Complainants would suffer if their request were denied would effectively amount to a
terminating sanction not commensurate with their unintentional violation of the Procedural Schedule For the foregoing reasons, Complainants respectfully request leave for the submission
and service of their direct and joint exhibits and lists three days late.
Dated: May 6, 2013 Respectfully submitted,
17 Recommendations
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