Administrative Law Judge at ITC Strikes Supplemental Expert Reports Filed without Permission

August 17, 2012

MyKey Technology Inc. initiated an ITC Investigation against several respondents, including Guidance Software, Digital Intelligence, Yec Co., Ltd.. and Cru Acquisitions. The parties served initial reports, rebuttal reports and supplemental reports in the Investigation. The procedural schedule only provided for initial expert reports and rebuttal expert reports. Nonetheless, the parties served supplemental expert reports and did not seek leave of the Administrative Law Judge before doing so.

When the Administrative Law Judge learned of the filing of the supplemental expert reports, he struck them on his own initiative. He found that the supplemental expert reports were served in violation of the procedural schedule and the parties had not sought leave to serve supplemental expert reports. As a result, the Administrative Law Judge struck the supplemental expert reports and directed that the parties could not rely upon the reports for any purpose:

"It has come to the undersigned's attention that the parties served supplemental expert reports in this investigation. Pursuant to the procedural schedule, initial expert reports were due on May 29, 2012 and rebuttal expert reports were due on June 12, 2012. (Order No. 38 (Apr. 17, 2012).) Supplemental expert reports were not permitted under the procedural schedule. Thus, any party seeking to submit a supplemental expert report was required to seek leave of this Court. None of the parties did so. Accordingly, all supplemental expert reports are hereby stricken and may not be relied upon for any purpose, including but not limited impeachment of a witness. The parties shall remove any testimony that relies on a supplemental expert report from their witness statements prior to introducing said witness statements into evidence."

In the Matter of Certain Computer Forensic Devices and Products Containing Same, Inv. No. 337-TA-799 (Administrative Law Judge Charles E. Bullock Aug. 1, 2012)

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