PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before The Honorable MaryJoan McNamara
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN DIGITAL VIDEO RECEIVERS
`AND RELATED HARDWARE AND
`SOFTWARE COMPONENTS
`
`Investigation No. 337-TA-1103
`
`ROVI’S OPPOSITION TO COMCAST’S MOTION IN LIMINE NO. 4
`REGARDING ROVI’S ACTIVITIES AND EXPENDITURES
`SUPPORTING ITS ECONOMIC DOMESTIC INDUSTRY [MOTION NO. 1103-044]
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No. 4.
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`PUBLIC VERSION
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`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`FACTUAL BACKGROUND ..............................................................................................1
`
`A.
`
`B.
`
`C.
`
`D.
`
`Primer on How Rovi Maintains Its Domestic Industry Data ...................................1
`
`Comcast’s Motion to Compel ..................................................................................3
`
`July 17 Hearing and Order No. 17 ...........................................................................4
`
`Rovi’s Compliance with Order No. 17 and Additional Production
`of Economic Domestic Industry Evidence ..............................................................5
`
`III.
`
`ARGUMENT .......................................................................................................................7
`
`A.
`
`Comcast Is Not Entitled to the Relief It Seeks ........................................................7
`
`1.
`
`Rovi Complied with Order No. 17 ...............................................................7
`
`a.
`
`Additional
`
` Data ............................................................7
`
` ...................................................................10
`
` .................................................................................10
`
`d.
`
`Additional Deposition Witnesses ...................................................12
`
`Comcast Attempts to Exclude Evidence Produced Before
`Order No. 17 Issued, Claiming that it Does Not Comply
`with Order No. 17 ......................................................................................14
`
`Rovi Did Not Withhold Information from Comcast ..................................15
`
`Case Law Cited by Comcast Does Not Support Its Motion ......................16
`
`2.
`
`3.
`
`4.
`
`Comcast’s so-called Motion in Limine is an Untimely Motion for
`Summary Determination ........................................................................................19
`
`Rovi Produced Sufficient Evidence to Support a Showing of Its
`Domestic Industry for All of the Domestic Industry Products ..............................20
`
`B.
`
`C.
`
`IV.
`
`COMCAST REQUESTS MERITS IN CAMERA REVIEW OF THE EVIDENCE
`ROVI PRODUCED ...........................................................................................................22
`
`V.
`
`CONCLUSION ..................................................................................................................22
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
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`PUBLIC VERSION
`
`EXHIBITS
`
`Description
`
`Excerpt from the Additional Deposition of Rolan Sargis (Aug. 23, 2018).
`Excerpt from a spreadsheet produced by Rovi on May 11, 2018 that provides the
`names of
`.
`
` Rovi produced on August 13, 2018 in
`Example of a
`compliance with Order No. 17. These were generated in the ordinary course of
`business and provide
`
`
`.
`
`Excerpt from the deposition of Comcast’s expert, Todd Schoettelkotte (Aug. 31,
`2018).
`Excerpt from the first deposition of Rolan Sargis (June 22, 2018).
`Excerpt from a spreadsheet produced by Rovi on May 11, 2018 that provides
`information concerning the
`
`
` (“TiVo Expenses Data”).
`, which shows less detail
`Screenshot of a
` Rovi produced in compliance with Order No. 17
`than the
`(Ex. 8C below). This was Exhibit CC from Rolan Sargis Declaration attached to
`Rovi’s Opposition to Comcast’s Motion to Compel, Doc ID 650118.
`Excerpt from a spreadsheet produced by Rovi on August 13, 2018 that provides
`the
`
`
`.
`
` Rovi produced on August 13, 2018.
`Selection of some of the monthly
`These were created in the ordinary course of business utilizing the
`
` that was also produced (“
`
`
`”).
`Excerpt from a spreadsheet produced by Rovi on August 13, 2018 that provides
`the
` data kept in the ordinary course of business in
`Rovi’s
`.
`Excerpt from a spreadsheet produced by Rovi on May 11, 2018 that provides
`Rovi’s
`
`.
`
`
`
`Exhibit #
`
`1C
`
`2C
`
`3C
`
`4C
`
`5C
`
`6C
`
`7C
`
`8C
`
`9C
`
`10C
`
`11C
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
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`PUBLIC VERSION
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`Pursuant to Commission Rule 210.15, Ground Rule 8.6.10, and Order No. 17,
`
`Complainants Rovi Corporation, Rovi Guides, Inc., Rovi Technologies Corp., and Veveo, Inc.
`
`(collectively, “Rovi”) respectfully submit this opposition to Motion in Limine No. 4 (“MIL No.
`
`4”) filed by the Comcast Respondents.
`
`I.
`
`INTRODUCTION
`
`Comcast’s MIL No. 4 fails substantively and procedurally and should be denied. The
`
`motion substantively fails because Comcast neither accurately represents what Rovi was ordered
`
`to produce by ALJ McNamara’s Order No. 17, nor credits Rovi with its actual production of
`
`information in response to that Order. The motion procedurally fails because Comcast’s
`
`purported MIL No. 4 is not a motion in limine at all; it is a disguised motion for summary
`
`determination—filed well-after the summary determination filing deadline—seeking a ruling that
`
`Rovi’s evidence is legally insufficient to sustain its burden at the evidentiary hearing. A motion
`
`for that purpose filed at this time is improper. Rovi is not going to rely on evidence at the hearing
`
`it did not make available during discovery, and Rovi has produced evidence in discovery that is
`
`both reliable and more than sufficient to support its domestic industry claims.
`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Primer on How Rovi Maintains Its Domestic Industry Data
`
`Rovi’s financial information is kept in
`
`. The data is subjected to
`
`ordinary course of managing its business, Rovi manages, tracks, and reports its
`
`. Rovi organizes its employees into
`
`
`
`. In the
`
`
`
`
`
`. Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at 18:14-19:3.
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No. 4
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`PUBLIC VERSION
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`. That
`
` is responsible for (and ultimately evaluated based upon) the
`
`.
`
`
`
` Rovi
`
`thus identified for Comcast each of those
`
` early in the discovery
`
`process. See, e.g., Ex. 2C (
`
` Data, produced April 16, 2018) (identifying
`
`
`
`); Comcast Mot. to Compel, Motion No. 1103-012
`
`(June 29, 2018), Ex. D at 35, 37 (Rovi Response to Comcast Interrogatory No. 79 (May 11,
`
`2018) (identifying
`
` as having knowledge regarding Rovi’s domestic industry
`
`investments on May 11, 2018 and June 22, 2018)).
`
`Although some of Rovi’s
`
`. This is because the
`
`
`
`, rather than
`
`products. For example, engineers could support multiple products, as could sales and marketing
`
`employees.
`
`In the ordinary course of its business Rovi performs a
`
`
`
`requires
`
`. This assessment
`
`, including the domestic
`
`industry products at issue here: i-Guide, Passport, AS&R, and the Next-Gen Platform
`
`(collectively, “DI Products”). Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at 21:16-22:9, 25:22-26:4;
`
`Ex. 5C (Sargis Dep.) (June 22, 2018) at 59:7-63:12.1 These
`
`
`
`1 This is not the only type of
`case, however. For example, Rovi
`.
`
` relevant to the domestic industry analysis in this
`
`
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`Rovi Opposition to Comcast MIL No .4
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`PUBLIC VERSION
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` in the regular course of their
`
`duties.
`
`Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at 21:16-22:9.
`
`On the other hand, Rovi’s licensee, TiVo Solutions, Inc. (“TSI”), which was acquired by
`
`Rovi’s parent in 2016, operates differently.
`
`current Investigation, TiVo Bolt with Experience 4,
`
`. For the domestic industry product at issue in the
`
`. Ex. 6C (TiVo Expenses Data). Because the domestic
`
`industry can be determined based on the
`
` is necessary.
`
`B.
`
`Comcast’s Motion to Compel
`
`
`
`
`
`
`
`Comcast’s motion treads a well-worn path taken all too often by respondents in Section
`
`337 investigations: no matter how much detailed information a complainant produces to support
`
`a domestic industry, it is never enough. Comcast filed a motion to compel Rovi to produce
`
`certain
`
` and
`
`
`
`, both of which James Denney, Vice President of Product and Strategy at TSI, had
`
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`Rovi Opposition to Comcast MIL No .4
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`PUBLIC VERSION
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`mentioned in his first deposition. Comcast Mot. to Compel, Motion No. 1103-012. Rovi opposed
`
`this motion on the grounds that Rovi had already produced a more comprehensive set of
`
`information responsive to Comcast’s discovery requests. Rovi Opp. to Comcast Mot. to Compel,
`
`Doc. ID 650118 (July 11, 2018). Comcast also requested additional deposition time with Mr.
`
`Denney. Comcast did not seek to depose any of the
`
` previously identified by
`
`Rovi and did not move to compel their depositions.
`
`C.
`
`July 17 Hearing and Order No. 17
`
`ALJ McNamara held a telephonic management conference on July 17, 2018 (“July 17
`
`Hearing”) to address certain outstanding discovery motions, including Comcast’s motion to
`
`compel. At the July 17 Hearing, ALJ McNamara concluded that Comcast was entitled to the
`
`requested
`
` as well as additional information concerning the
`
`
`
`. But ALJ McNamara recognized that producing additional
`
` information did
`
`not necessarily mean that each
`
` needed to be produced.
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`July 17, 2018 Hearing Transcript, Doc ID 651197, (“Hrg. Tr.”) at 73:20-74:3, 74:7-13, 76:2-5
`
`(emphasis added).
`
`On July 18, 2018, ALJ McNamara memorialized the resolution of Comcast’s motion to
`
`compel in Order No. 17. Order No. 17 required Rovi to produce the following:
`
`[A]ll information it has in its possession custody and control that is
`reasonably available upon which Rovi intends to rely to support its
`economic domestic industry case. This is not limited to what may
`be “aggregate” reports or information. At a minimum, the granular
`information, which Rovi uses to arrive at aggregate information for
`any and all of the subparts of Section 337(a)(3)(C) that is
`reasonably available, must be produced to Comcast and Staff.
`
`Order No. 17 at 2-3. Recognizing that Mr. Denney may not be the correct deponent on the
`
`supplemental data, the Order also required Rovi to produce “Mr. Denny [sic] and/or any other
`
`knowledgeable person to testify about the supporting financial information upon which Rovi is
`
`relying for its economic domestic industry” for “additional deposition time of up to one and one-
`
`half days (1 ½).” Id. at 3.
`
`D.
`
`Rovi’s Compliance with Order No. 17 and Additional Production of
`Economic Domestic Industry Evidence
`
`Following the July 17 Hearing, Rovi produced more information than Order No. 17
`
`required. To start, Rovi produced the information that Comcast specifically requested:
`
`
`
`. Rovi produced the
`
` that are created
`
`in the ordinary course of business even though Rovi had not relied on them to present its
`
`domestic industry case. Ex. 3C (VP Reports). These reports provide the
`
`
`
`from the same
`
`. The data in the
`
` were derived
`
` data. Ex. 10C (Raw
`
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` Data). The
`
` show that the
`
` were fully knowledgeable about their business lines.
`
`Rovi also produced the underlying raw data for
`
`
`
`
`
` generated in the ordinary course of business, totaling
`
`
`
` (Ex. 8C) and every
`
`)). As suggested by ALJ McNamara, Rovi did not
`
`; instead,
`
` the underlying raw
`
`(see, e.g., Ex. 9C (
`
`produce
`
`data from its
`
`
`
`
`
`
`
`
`
`Data for
`
`). The data produced also includes
`
`. Ex. 8C (Raw
`
`. Id.
`
`Even though not requested by Comcast, Rovi also produced the raw
`
` data sourced from
`
` to ensure compliance with Order No. 17.
`
`Ex. 10C (Raw
`
` Data). As noted above, Rovi uses the
`
`
`
`. Consistent with Order No.
`
`17, this data pull was at the most granular level readily available. It also adds another dimension
`
`of detail to Rovi’s prior productions, as it corroborates the underlying data that Rovi used to
`
`create the domestic industry
`
` financial information it previously produced. See,
`
`e.g., Ex. 11C (
`
` Data).
`
`Finally, in further compliance with Order No. 17, Rovi presented both Mr. Denney and
`
`Rolan Sargis, VP of Financial Planning, for additional deposition time. Rovi presented Mr.
`
`Sargis in addition to Mr. Denney because, as Rovi indicated in its opposition to Comcast’s
`
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`motion to compel, Mr. Sargis was the deponent with knowledge regarding Rovi’s financial
`
`reports and time records, not Mr. Denney. Rovi Opp. to Comcast Mot. to Compel, Doc. ID
`
`650118, at 2-3, 7-8, 16. Comcast examined these individuals for less than 5.5 hours.
`
`Notably, Comcast never raised any concerns at any point prior to filing its so-called
`
`motion in limine that Rovi’s additional production was deficient or otherwise not in compliance
`
`with Order No. 17.2 Nor, at any point, did Comcast seek to depose any of the
`
`
`
`Rovi previously identified.
`
`III.
`
`ARGUMENT
`
`A.
`
`Comcast Is Not Entitled to the Relief It Seeks
`
`1.
`
`Rovi Complied with Order No. 17
`
`Rovi complied with ALJ McNamara’s Order No. 17. Order No. 17 required Rovi to
`
`produce information upon which Rovi intends to rely to support its domestic industry case,
`
`including the “granular information” that Rovi uses to arrive at the “aggregate information.”
`
`Order No. 17 at 3. In addition, Rovi was required to present a knowledgeable person to testify for
`
`up to one and one-half days about the additional information. Rovi produced the information
`
`upon which it intends to rely for its economic domestic industry and presented knowledgeable
`
`corporate representatives to testify to that information.3
`
`a.
`
`Additional
`
` Data
`
`Rovi produced the most granular
`
` available from the
`
`Rovi maintains in the ordinary course of business and uses as the
`
` that
`
`
`
`2 This is in stark contrast to Rovi, which on multiple occasions sought further
`supplementation of the deficient production of documents Comcast produced pursuant to ALJ
`McNamara’s orders at the July 17 Hearing.
`3 While Comcast’s motion criticizes Rovi’s production of documents and claims that
`Rovi’s production is insufficient, Comcast fails to attach any of the documents it deems
`“insufficient,” as required by ALJ Ground Rule 2.1.
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`supplemental dataset adds an additional level of granularity to the data that Rovi used to create
`
`. Ex. 10C (Raw
`
` Data). This
`
`the
`
` financials it previously produced. See, e.g., Ex. 11C (
`
` Data). The raw data provides
`
`
`
`
`
`. For example, the
`
`information can be filtered by
`
`, such as
`
`
`
` as well as
`
` Ex. 10C (Raw
`
` Data).
`
`While Comcast admits that Rovi’s additional production, Ex. 10C, provides “additional
`
`detail to supplement CX-0924C [Ex. 11C,
`
` Data],” Comcast nevertheless
`
`claims that this was not in compliance with Order No. 17 because it “does not show per product
`
`expenditures.” MIL at 8-9. But as ALJ McNamara acknowledged, the granular information that
`
`Rovi has “may not be exactly product by product. It may not be -- you know how they do their
`
`accounting.” Hrg. Tr., Doc ID 651187, at 77:2-4 (July 17, 2018). ALJ McNamara was right:
`
`Rovi can only produce documents and information that exists. Rovi’s
`
` does not
`
`track this information in the format that Comcast prefers, but Rovi has produced all of the data it
`
`has in the format it is stored in its
`
` in the ordinary course of business.
`
`This data provides more detail to support the already detailed data underlying Rovi’s
`
`
`
` to each domestic industry product.
`
`Comcast further criticizes Rovi’s raw data production because it does not show “the
`
`decision-making process that went into creating
`
`” (i.e., the
`
`
`
`) for Rovi’s domestic industry products. But, of course, this
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`is a strawman, as the detailed data is not intended to, nor could it, explain any “decision-making
`
`process.” Nor was further explanation of the decision-making process compelled by any part of
`
`Order No. 17. In any event, pursuant to Order No. 17, Rovi presented corporate witnesses for
`
`additional deposition time who further explained the “decision-making process.” This was in
`
`addition to all of the prior testimony on the subject.
`
`For example, Mr. Sargis explained that
`
`
`
`34:14-18. And, Comcast received answers to its further probing (just not the answers it was
`
` Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at
`
`hoping to receive):
`
`Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at 34:9-35:2. Rovi relies on the
`
`
`
` because they
`
` Ex. 1C (Sargis Dep.) (Aug.
`
`23, 2018) at 43:17-21. Mr. Sargis also confirmed that his team
`
`
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`Ex. 1C (Sargis Dep.) (Aug 23. 2018) at 42:1-23.
`
`Rovi produced the
`
` that Comcast requested. Ex. 3C (Example VP Report).
`
`The
`
`Comcast noted at the July 17 Hearing, these
`
`
`
` As
`
`
`
` Hrg. Tr., Doc ID 651187, at 60:21-61:1. The full panoply of these
`
` that
`
`Rovi produced show that the
`
` and thus bolster Rovi’s
`
`
`
`
`
`methodology. Although Comcast acknowledged that the
`
` provide further insight into
`
`the decision-making process, Comcast did not so much as mention these reports in its motion in
`
`limine.
`
`Despite Comcast’s suggestion otherwise, Rovi produced the requested
`
` Ex. 8C (Raw
`
` Data for
`
`). In fact, Rovi produced
`
`
`
`
`
` with even more granular detail than the example
`
` Rovi had attached to its
`
`opposition to Comcast’s motion to compel. Compare Ex. 8C (Raw
`
` Data for
`
`) with Ex. 7C, Rovi Opp. to Comcast Mot. to Compel, Doc ID 650118, Ex. CC to
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`Sargis Decl. (Screenshot of one
`
`). Comcast, nevertheless, claims
`
`that Rovi failed to comply with Order No. 17 because it did not produce
`
`.
`
`MIL at 10. But, as ALJ McNamara noted and Comcast agreed, it was not necessary for Rovi to
`
`undergo the extraordinary expense of collecting and producing each
`
`.
`
`Hrg. Tr., Doc ID 651187, at 73:20-74:3, 74:7-13, 76:2-5 (emphasis added). TSI exported all of
`
`the raw data for
`
`
`
` kept in
`
`the ordinary course of business. Ex. 8C (Raw
`
` Data for
`
`).4 This is what
`
`Rovi produced.
`
`4 Comcast also inexplicably criticizes Rovi for producing the
`
` for both the
`. MIL at
`10. Comcast’s criticism is either an intentional red herring or reveals a lack of knowledge about
`the process of developing a domestic industry product that has both a
`
`. Regardless, Comcast’s argument is again not about Rovi’s compliance with Order
`No. 17, but instead just the “spin” Comcast intends to present at the hearing.
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`Rovi Opposition to Comcast MIL No .4
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`Comcast further criticizes Rovi’s
`
` production stating that it “could come
`
`closer to providing the requisite detail for Rovi’s domestic industry contentions” if Rovi had only
`
`provided “a list of
`
` (or some other description field . . .).” MIL at 11. But
`
`the
`
` produced do that and more: The data produced includes each
`
` and also provides the
`
`See Ex. 8C (Raw
`
` Data for
`
`). The
`
`Comcast’s lodestar do not provide as much information about the
`
`
`
`
`
` that are
`
`.
`
`Compare Ex. 8C with Ex. 7C, Rovi Opp. to Comcast Mot. to Compel, Doc ID 650118, Ex. CC to
`
`Sargis Decl. (
`
`data produced).
`
` providing less detail than raw
`
`d.
`
`Additional Deposition Witnesses
`
`Lastly, Rovi also complied with Order No. 17 by presenting two knowledgeable
`
`corporate witnesses for additional deposition time.
`
`Comcast, however, supports its claims that Rovi failed to comply by quibbling
`
`(frequently inaccurately) with specific answers given by Rovi’s witnesses. Comcast’s arguments
`
`are flawed, however, because they go to the weight of the testimony, not Rovi’s compliance with
`
`Order No. 17. If Rovi’s production of deponent and documentary evidence following Order No.
`
`17 had been as woefully deficient as Comcast describes, one would have expected Comcast to
`
`act differently than it did: Comcast did not allege any deficiency or seek any follow-up testimony
`
`regarding answers that it felt were incomplete.
`
`Examples of Comcast’s unreasonable positions abound. Comcast claims that Mr. Denney
`
`was unable to speak to Rovi’s financial documents or the labor hours found in those financial
`
`documents. MIL at 7. But, as Rovi noted in its opposition to Comcast’s motion to compel, and
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`PUBLIC VERSION
`
`prior to the additional depositions of Mr. Sargis and Mr. Denney, Mr. Denney was not the
`
`witness most knowledgeable about or designated to testify to those topics. Rovi Opp. to Comcast
`
`Mot. to Compel, Doc ID 650118, at 2-3, 7. Nonetheless, Rovi did not cut off the deposition or
`
`prevent Mr. Denney from answering Comcast’s questions to the extent he had personal
`
`knowledge, which in many instances he did.
`
`Comcast also claims that Mr. Sargis “was not able to describe the formulas used for the
`
`calculations” in Rovi’s
`
` data. MIL at 6. The testimony Comcast cites,
`
`however, involves a situation where Mr. Sargis was not able to say whether a single data point
`
`for a single cell entered into very large financial spreadsheet was the result of a particular
`
`formula. MIL at 6; Ex. 1C (Sargis Dep.) (Aug. 23, 2018) at 105:25-106:2 (Q. “Do you know
`
`whether there was any particular formula that was used to create this percentage?” A. “I don’t
`
`know specifically for this one, no.”).5 Yet, as described Section III(A)(1)(a) above, Mr. Sargis
`
`had already testified regarding the process used to arrive at the
`
`. And, he
`
`confirmed that the data had been input as it was kept in the ordinary course of Rovi’s business.6
`
`Comcast similarly claims that Rovi failed to comply because Mr. Sargis did not know—
`
`off the top of his head—the number of
`
`.
`
`MIL at 7. Not only is the criticism undeserved due to the limitations of human memory, but the
`
`demanded specificity is legally unnecessary. The Commission has specifically approved of the
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`5 Comcast’s MIL No. 4 assumes that there was a formula, but it did not follow-up with
`any subsequent request.
`6 Even worse for Comcast, the data point in question was one that had been produced to
`Comcast years ago in support of Rovi’s domestic industry proof in the 1001 Investigation. In the
`1001 Investigation, Rovi conducted, the ALJ credited, and the Commission approved the same
` process used in this Investigation. As part of its proffer in the 1001
`Investigation, Rovi produced, among other information, the same data point about which
`Comcast questioned Mr. Sargis. The ALJ and Commission found a domestic industry in the 1001
`Investigation based on the calculation supported by that data point. Digital Video Receivers, Inv.
`No. 337-TA-1001, ID, at 578-580.
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`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
`
`13
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`

`

`PUBLIC VERSION
`
` method used by Rovi and has never required an audit of
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`
`
` on the domestic industry products. E.g., Certain Stringed Musical Instruments &
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`Components Thereof, Inv. No. 337-TA-586, Comm’n Op., 2008 ITC LEXIS 755, at *42 (May
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`16, 2008) (noting that a precise accounting is unnecessary, “as most people do not document
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`their daily affairs in contemplation of possible litigation”). In any case, as noted above, Rovi
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`produced the underlying data upon which it is relying, including a document from TSI that
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`provides Comcast with the
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` and that indicates the
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`(Raw
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` Data for
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`).
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`
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`. Ex. 8C
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`Comcast also claims that Sargis confirmed that his team did nothing more than collect the
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`team
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`at 41:21-42:23, 46:15-48:9.
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`. MIL at 6. Not true. Mr. Sargis testified that his
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`. Ex. 1C (Sargis Dep.) (Aug. 23, 2018)
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`2.
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`Comcast Attempts to Exclude Evidence Produced Before Order No.
`17 Issued, Claiming that it Does Not Comply with Order No. 17
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`Comcast attempts to exclude evidence that was produced long before ALJ McNamara
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`issued Order No. 17 by claiming that this evidence failed to comply with Order No. 17. See, e.g.,
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`MIL at 4-8, 13. Comcast’s request is completely divorced from the requirements of Order No.
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`17. As support for this argument, Comcast selectively quotes from Order No. 17 in an attempt to
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`suggest that ALJ McNamara indicated some sort of willingness to preclude Rovi from using any
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`of its domestic industry evidence at the evidentiary hearing. MIL at 3, 13. In reality, ALJ
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`McNamara simply stated that Rovi would not be permitted to rely on information that it had
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`failed to produce:
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`Any information upon which Rovi intends to rely for its economic
`domestic industry must be produced and explainable in one or
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
`
`14
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`

`

`PUBLIC VERSION
`
`more depositions by a knowledgeable person or persons, or Rovi
`may be precluded from using that information during the
`evidentiary hearing, unless Rovi has good cause for withholding
`the information.
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`Order No. 17 at 3. Nowhere in the July 17 Hearing transcript or Order No. 17 does ALJ
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`McNamara state or even suggest that Rovi would be precluded from using evidence at the
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`evidentiary hearing that it had already produced or that it produced in compliance with Order No.
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`17.
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`Nevertheless, Comcast claims that Rovi failed to comply with Order No. 17, but does so
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`by raising purported deficiencies with witnesses that were deposed over a month before Order
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`No. 17 was even issued. MIL at 5. For example, Comcast argues that Rovi’s corporate
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`representative Sarah Gaeta had never seen the financial
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` data that Rovi produced in
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`this Investigation and “did not know how the figures in that spreadsheet had been calculated.”
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`MIL at 5. This, however, is irrelevant to the instant motion. Ms. Gaeta was deposed on June 8,
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`2018—well over a month before Order No. 17—and was not designated to testify to Rovi’s
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`financial information (Mr. Sargis was the witness so designated). Comcast makes the same claim
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`with regard to Rovi’s corporate representative Tim Fennelly who was deposed on June 12, 2018
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`and who was also not the representative designated to testify to Rovi’s financial information.
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`MIL at 5. Thus, Comcast has set forth no basis to exclude any of this evidence at the hearing.
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`3.
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`Rovi Did Not Withhold Information from Comcast
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`Comcast lastly claims that Rovi withheld the names of five
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` that Rovi’s
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`expert Dr. Jonathan Putnam interviewed and relies on in his expert report. MIL at 11-12. Not
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`true.
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`Rovi produced a document on April 16, 2018 that contained the
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`
`
` Ex. 2C (
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` Data). Additionally, Rovi informed Comcast that
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
`
`15
`
`

`

`PUBLIC VERSION
`
` Comcast Mot. to Compel, Ex. D, at 35, Rovi Response to
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`Comcast Interrogatory No. 79 (May 11, 2018). To that end, Rovi directed Comcast to Ex. 2C for
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`a list of the knowledgeable individuals. Comcast could have subpoenaed any of the
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`
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` identified in Ex. 2C, but failed to do so.
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`Then, on June 22, 2018, before the close of discovery and before the disclosure of Dr.
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`Putnam’s report, Rovi specifically identified in its supplemental interrogatory response the
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`specific
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` that Dr. Putnam interviewed.7 Comcast Mot. to Compel, Ex. D at 37,
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`Rovi Supplemental Response to Comcast Interrogatory No. 79 (June 22, 2018). Comcast thus
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`had an additional week to subpoena any of these individuals before the close of discovery. Rovi
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`would have been more than willing to present any of these individuals for deposition. If Comcast
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`truly believed that it had been prejudiced, however, it could have raised this as an issue in the
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`motion to compel it filed a week after Rovi identified the individuals, but it did not do so (even
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`though, as discussed above, Comcast requested additional deposition time with Mr. Denney).8
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`4.
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`Case Law Cited by Comcast Does Not Support Its Motion
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`Comcast relies on legally inapplicable decisional authority for the relief it seeks. MIL at
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`13-14. First, Comcast argues that preclusion of Rovi’s evidence from the evidentiary hearing is
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`7 Due to the passage of time and routine
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`, one of the
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` interviewed by Dr. Putnam had taken over responsibilities from the
`identified in the spreadsheet produced in April, but that is an immaterial distinction, as Comcast
`had timely notice of the specific individual, did not seek to depose any of the
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`at any time, and has not based the current motion on that change.
`8 To the extent that Comcast is claiming that Exhibit 11 to Dr. Putnam’s report contains
`new information—which it is unclear as Comcast only requests that the ALJ preclude four
`specific documents that do not relate to Dr. Putnam’s report (MIL at 13-14)—Comcast’s request
`should be denied for the reasons described herein.
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
`
`16
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`

`

`PUBLIC VERSION
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`appropriate because it is purportedly “unreliable.” MIL at 13 (citing Certain Television Sets,
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`Television Receivers, Television Tuners, & Components Thereof, Inv. No. 337-TA-910, ID, at
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`178 (Feb. 27, 2015)). In fact, Television Sets supports Rovi’s position and shows that a motion in
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`limine is not the proper avenue to weigh the reliability of evidence. Complainants in Television
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`Sets presented their evidence at the hearing. Television Sets, Inv. No. 337-TA-910, ID, at 177-
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`178. Their witness was impeached, and the ALJ noted that his testimony was “marred by
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`inconsistencies and errors.” Id. at 177. Because of this, the ALJ determined that the
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`complainant’s evidence could not be relied upon. Id. Television Sets does not stand for the
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`proposition that Rovi’s evidence can be excluded prior to the hearing pursuant to a motion in
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`limine.
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`Next, Comcast suggests that Rovi’s evidence should be excluded because Comcast
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`allegedly did not have an opportunity to test the reliability of the information. MIL at 13-14. But
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`as legal support, Comcast cites to two inapposite cases that deal with situations where a party’s
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`evidence was excluded when the party attempted to “sneak in” additional evidence without first
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`seeking leave from the ALJ. MIL at 13-14 (citing Certain Silicon-On-Insulator Wafers, Inv. No.
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`337-TA-966, Order No. 15, 2016 WL 6810796 (May 9, 2016) (ALJ McNamara); Certain Digital
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`Cameras, Software, and Components Thereof, Inv. No. 337-TA-1059, Order No. 59 (Feb. 26,
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`2018) (ALJ McNamara)).
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`Comcast misquotes Silicon-On-Insulator Wafers to make it appear that a party’s
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`purported inability to test information justifies excluding the evidence from the evidentiary
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`hearing. MIL at 13. In fact, the evidence in Silicon-On-Insulator Wafers was excluded because
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`the complainants had, without leave, included in their expert report “so much new information,
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`and new contentions, so late,” that the respondents did not have an opportunity to test the new
`
`Inv. No. 337-TA-1103
`Rovi Opposition to Comcast MIL No .4
`
`17
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`

`

`PUBLIC VERSION
`
`information. 2016 WL 6810796, at *11. That is not the case here, where Rovi produced
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`additional information in response to Order No. 17, Rovi did not try to include that information
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`in the report of its domestic industry expert, Comcast did not present its expert until after he had
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`the opportunity to review the new information, and he testified that he did not feel the need to
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`supplement his report in light of the new information. Ex. 4C (Schoettelkotte Dep.) (Aug. 31,
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`2018) at 15:16-16:13. Moreover, Comcast had an opportunity to “test” this information through
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`the two additional depositions it conducted with Mr. Sargis and Mr. Denney.
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`Similarly, in Digital Cameras, a party sought to rely on domestic industry evidence that
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`was disclosed late, but the party did not seek leave from the ALJ to present the evidence. Inv.
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`No. 337-TA-1059, at 2,4. And the evidence was produced “far too late” such that the other
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`party’s experts were unable to examine it. Id. at 4. By contrast, here, Comcast has had the
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`domestic industry evidence on which Rovi intends to rely since no lat