Submitting Pre-Filing Report to Support ITC Complaint Does Not Waive Work Product Protection

The ALJ denied respondents' motion to compel discovery previously withheld as privileged. "The undersigned finds that work product privilege was not waived when [complainant] used [a] Declaration to support its filing of the Complaint. Unlike the situation in [Certain Network Controllers and Prods. Containing Same, Inv. No. 337-TA-531] where the complainants waived privilege by relying on reverse engineering reports in contention interrogatories and expert reports, here [complainant] insists that the [declaration] has not and will not be used to prove infringement. Here, there is not an immediate and necessary relation between the alleged inequitable acts (i.e., the use of false pretenses and other improper means during the pre-filing investigation) and the equity sought in this Investigation (i.e., orders preventing infringing goods from entering the United States) because the pre-filing investigation is not being relied upon to prove infringement."

Sintered Rare Earth Magnets, Methods of Making Same and Products Containing Same, 337-TA-855 (ITC March 24, 2013, Order) (Bullock, ALJ).