399 PARK AVENUE
`SUITE 3600
`NEW YORK, NY 10022
`
`212 980 7400 TEL
`212 980 7499 FAX
`ROBINSKAPLAN.COM
`
`BRYAN J. VOGEL
`212 980 7403 TEL
`
`BVOGEL@ROBINSKAPLAN.COM
`
`PUBLIC REDACTED VERSION
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`VIA EDIS AND EMAIL
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`May 23, 2019
`
`Hon. MaryJoan McNamara
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, S.W.
`Washington, D.C. 20436
`Re: Certain LTE- and 3G-Compliant Cellular Communication Devices,
`Inv. No. 337-TA-1138
`Dear Judge McNamara:
`On behalf of Complainant INVT SPE LLC (“INVT”), we write pursuant to Your
`Honor’s request during the May 16, 2019 teleconference related to the cross-production
`of certain documents.
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`I.
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`RELEVANT FACTS
`On April 19, 2019, pursuant to Order No. 16, INVT served its proposed exhibit
`list in Excel format on Respondents’ counsel and Staff. None of INVT’s proposed
`exhibits listed were designated by Respondents as “CONFIDENTIAL SOURCE CODE
`SUBJECT TO PROTECTIVE ORDER” under Order No. 13. None of INVT’s proposed
`documentary exhibits contained any source code or chip-level schematics produced by
`Respondents. INVT’s proposed documentary exhibits included nine (9) documents that
`qualify as Designated INTEL Material under Order No. 19. Respondents and Staff did
`not object to any of INVT’s proposed exhibits.
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`On April 24, 2019, pursuant to Order No. 3 (Ground Rule 8.6.1) and Order No. 16
`(setting the revised procedural schedule), INVT provided outside counsel for each
`Respondent access to the same file transfer link, which contained INVT’s proposed
`direct exhibits, including confidential business information (“CBI”) under Order No. 1
`belonging to each of the Respondents and Designated INTEL Material under Order No.
`19.
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`On May 3, 2019, outside counsel for Respondent Apple Inc. (“Apple”) notified
`counsel for INVT of the possible inadvertent disclosure under Order No. 13. Counsel
`for INVT immediately began investigating the production, including reviewing INVT’s
`exhibits, Order No. 1 (the Protective Order), and Order No. 13.
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`Following its review, counsel for INVT explained to Respondents and Staff that
`Order No. 13 pertains to source code and chip-level schematics. In particular, the
`parties’ Joint Motion to Amend the Protective Order was specific to “Production and
`Review of Source Code and Schematics” and further stated that the amendments were
`“intended to impose reasonable controls on the potential distribution and copying of
`source code and chip level schematics . . . .” See Dec. 17, 2018 Joint Motion to Amend the
`Protective Order to Add Provisions regarding Production and Review of Source Code
`and Schematics [Mtn. Dkt. 1138-007] (emphasis added).
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`Counsel for INVT further explained that Order No. 3 (Ground Rule 8.6.1)
`requires that INVT serve copies of proposed evidentiary hearing exhibits on all
`opposing parties, and Order No. 13 expressly contemplates that outside counsel for the
`parties will have access to confidential source code and schematics at the hearing.
`During its investigation, INVT also discovered the inadvertent disclosure under Order
`No. 19. Staff later agreed during the May 16, 2019 teleconference that any restrictions on
`“‘cross-production among respondents at issue here’ should only apply to source code
`and schematic production.” Hearing Tr. at 13:21-15:8.
`
`On May 6, 2019, counsel for INVT conferred with counsel for Respondents and
`Staff. INVT explained its belief that:
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`
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`INVT’s exhibits served on outside counsel did not fall within
`the scope of Order No. 13;
` Order No. 13 expressly contemplates that outside counsel for
`the private parties would have access to confidential source
`code and schematics at the hearing; and
` Order No. 3, Ground Rule 8.6.1, required INVT to serve
`copies of the proposed hearing exhibits on counsel for
`Respondents and Staff on the deadline set forth in the
`current procedural schedule.
`Counsel for Respondent Apple argued that Order No. 13 was not limited to
`source code and schematics. Counsel for HTC Corporation and HTC America, Inc.
`(“HTC”) stated that if INVT was planning to claw back any of its exhibits, it should be
`consistent for each Respondent. Without acquiescence, INVT agreed to respect
`opposing counsel’s interpretation of Order No. 13 and claw back a limited number of
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`Page 3
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`documents from each Respondent. A copy of the clawed back exhibits is attached at
`Exhibits 1-3.
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`Following May 6, 2019 meet-and-confer, INVT instructed outside counsel for
`each Respondent to delete specific exhibits containing the other Respondents’ CBI, and
`to confirm destruction of those exhibits as soon as possible. All clawed back documents
`have since been deleted or destroyed. See Exs. 4 (“destroyed”), 5 (“deleted all
`instances”), 6 (“destroyed”).
`
`To avoid any further confusion, INVT additionally proposed that, moving
`forward, the parties agree that they are permitted to serve evidentiary hearing exhibits
`on each party’s outside counsel, even exhibits that contain a given Respondents’ CBI,
`with the exception of the parties’ physical source code and chip-level schematics-which
`INVT has not disclosed. INVT also notified outside counsel for third party Intel of the
`potential unauthorized disclosure of Designated INTEL Material under Order No. 19,
`provided outside counsel for ZTE and HTC with copies of the Intel Supplemental
`Protective Order, and requested that any person who may have accessed the
`Designated INTEL Material execute a copy of Exhibit A to the Intel Supplemental
`Protective Order.
`
`II.
`
`ADDITIONAL INFORMATION
`Respondents’ counsel have since confirmed that only one person accessed the
`disputed information—and that individual only saw the first page of a certain few
`deposition designation exhibits:
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`All clawed back documents were promptly deleted or destroyed. See Exs. 4-6.
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`May 23, 2019
`Page 4
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`We remain available to answer any questions your Honor may have, at your
`Honor’s convenience.
`
`Respectfully submitted,
`
`/s/ Bryan J. Vogel
`Bryan J. Vogel
`
`Counsel for INVT SPE LLC and
`Third Parties
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`May 23, 2019
`Page 5
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`CERTIFICATE OF SERVICE
`
`I, Bryan J. Vogel, hereby certify that on May 31, 2019, a true and correct copy of
`the foregoing document has been served on the parties listed below:
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW
`Washington, D.C. 20436
`
`The Honorable MaryJoan McNamara
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 317
`Washington, D.C. 20436
`Jae.Lee@usitc.gov
`Michael.Buckler@usitc.gov
`
`Mr. Reginald Lucas, Esq., Investigative
`Attorney
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Suite 401
`Washington, D.C. 20436
`Reginald.Lucas@usitc.gov
`
`For Respondent Apple Inc.
`Robert A. Appleby, P.C.
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Apple-Inventergy@kirkland.com
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`May 23, 2019
`Page 6
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`For Respondents HTC Corp. and HTC America,
`Inc.
`Stephen S. Korniczky
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`12275 El Camino Real, Suite 200
`San Diego, California 92130
`LegalTm-HTC-INVT-
`ITC@sheppardmullin.com
`
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`For Respondents ZTE Corp. and ZTE (USA), Inc.
`Jay H. Reiziss
`MCDERMOTT WILL & EMERY LLP
`500 North Capitol Street, NW
`Washington, D.C. 20001
`ZTEINVT@mwe.com
`
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`Dated: May 31, 2019
`
` /s/ Bryan J. Vogel
`Bryan J. Vogel
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
`
`PUBLIC REDACTED VERSION
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`