PUBLIC VERSION
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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` Inv. No. 337-TA-1276
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`In the Matter of
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`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
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`ORDER NO. 43: DENYING RESPONDENT’S MOTION IN LIMINE NO. 3 TO
`EXCLUDE ECONOMIC PRONG-RELATED EVIDENCE NOT
`PROVIDED DURING DISCOVERY
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`(June 2, 2022)
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`On May 17, 2022, Respondent Apple Inc. (“Apple”) filed a motion in limine no. 3 (the
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`“Motion,” Docket No. 1276-039) to exclude certain testimony regarding the economic prong of
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`the domestic industry requirement that was not disclosed in discovery. On May 24, 2022,
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`Complainants Masimo Corporation and Cercacor Laboratories, Inc. (collectively, “Masimo”)
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`filed a response in opposition to the motion (“Opp.”).
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`Apple seeks to preclude Masimo from offering testimony at the hearing that goes beyond
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`the scope of deposition testimony provided by Masimo’s corporate representatives during fact
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`discovery. Apple submits that Masimo relies on several spreadsheet appendices as evidence for
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`the alleged domestic industry and that Apple sought discovery regarding Masimo’s sources of
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`information for these appendices. Motion at 2-3. Apple served a deposition notice on Masimo
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`identifying topics related to the appendices, and Masimo designated Kohl Kaufman and Micah
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`Young as corporate representatives. Id. at 3-6; Motion Exhibit N (Deposition Notice); Motion
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`Exhibit D (Kaufman Dep. Tr.); Motion Exhibit Q (Young Dep. Tr.). Apple contends that neither
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`Mr. Kaufman nor Mr. Young were able to answer questions explaining how the information in
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`the spreadsheet appendices was compiled. Motion at 3-6. Apple cites testimony from the
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`deposition of Masimo’s economic expert, Daniel McGavock, indicating that Masimo’s witnesses
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`may offer testimony at the hearing regarding the alleged domestic industry that was not
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`previously disclosed. Id. at 6-7. Apple argues that Masimo should be precluded from offering
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`testimony at the hearing regarding the spreadsheet appendices that goes beyond what
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`Mr. Kaufman and Mr. Young were able to provide at their depositions. Id. at 7-10. In particular,
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`Apple seeks to preclude Mr. Young from offering new testimony regarding the bases for time
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`projections that he was unable to provide at his deposition. Id. at 9-10 (citing Motion Exhibit Q
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`at 145-46). In addition, Apple seeks to preclude another Masimo witness, Ammar Al-Ali, from
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`providing such testimony because he was not designated as a corporate representative and was
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`not identified during discovery as an individual who was involved in the creation of the
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`spreadsheet appendices. Motion at 10. Apple proposes to limit the testimony of Masimo’s
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`witnesses a hearing regarding the spreadsheet appendices in accordance with a proposed
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`summary of Masimo’s corporate deposition testimony. See Motion Exhibit A.
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`In opposition, Masimo submits that it identified numerous individuals, including
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`Mr. Young, Mr. Kaufman, Mr. Al-Ali, and Gerry Hammarth as knowledgeable regarding the
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`allocations and attribution methodologies reflected in the spreadsheet appendices. Opp. at 2-3.
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`Masimo submits that Apple had an opportunity to depose Mr. Al-Ali and other witnesses in
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`addition to Mr. Young and Mr. Kaufman. Id. at 3-5. Masimo argues that Apple’s motion
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`mischaracterizes the deposition testimony of Mr. Young and Mr. Kaufman, who offered detailed
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`testimony regarding Masimo’s domestic industry. Id. at 6-7. Masimo explains that
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`Mr. McGavock’s deposition testimony only addresses potential testimony at the hearing
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`regarding the current state of the domestic industry. Id. at 7. Masimo submits that Mr. Al-Ali
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`was identified in an interrogatory response as a person with knowledge regarding domestic
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`industry allocations and that Apple questioned Mr. Al-Ali and Mr. Scruggs regarding domestic
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`industry allocations and projections. Id. (citing Exhibit 3 (Al-Ali Dep. Tr.) at 160-61; Exhibit 2
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`at 168-69 (Interrogatory No. 45); Exhibit 4 (Scruggs Dep. Tr.) at 217-26. Masimo argues that
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`Apple’s proposed limits on hearing testimony are overly restrictive and would severely prejudice
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`Masimo. Opp. at 8-9. In particular, Masimo submits that there are certain aspects of Masimo’s
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`spreadsheet appendices that were not addressed by Apple during the corporate depositions. Id. at
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`9.
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`In consideration of the parties’ arguments, the undersigned finds that Apple’s motion
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`fails to justify the proposed limits on Masimo’s hearing testimony. Although Mr. Kaufman and
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`Mr. Young may not have been able to answer every question posed by Apple’s counsel at their
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`depositions, Apple was able to depose several additional Masimo witnesses. These additional
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`depositions included Bilal Muhsin and Mr. Al-Ali, who were identified by Mr. Kaufman and
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`Mr. Young as the source for time estimates and projections. See Motion Exhibit D (Kaufman
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`Dep. Tr.) at 44:222-45:7, 158:12-23, 172:3-174:20; Motion Exhibit Q [Young Dep. Tr.] at
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`107:21-112:19, 107:21-112:19, 132:8-135:25, 143:8-148:11. Moreover, Masimo identified
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`Mr. Al-Ali in an interrogatory response as someone “knowledgeable regarding some of
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`Masimo’s time allocations,” contrary to Apple’s assertions that Masimo failed to disclose his
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`role. See Opp. Exhibit 2 at 168-69 (Supplemental Response to Interrogatory No. 45).
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`Subsequently, Apple’s counsel questioned Mr. Al-Ali at his deposition regarding Masimo’s
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`spreadsheet appendices. Opp. Exhibit 3 at 100:24-101:11, 144:4-147:18, 156:8-158:1, 250:21-
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`253:3. There is no basis for limiting the testimony of Mr. Al-Ali in accordance with Apple’s
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`motion. See Certain Microfluidic Systems and Components Thereof and Products Containing
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`Same, Inv. No. 337-TA-1100, Order No. 40, EDIS Doc. ID 671680 (Mar. 12, 2019) (denying
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`motion in limine where fact witness was identified as “a person knowledgeable regarding the
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`accused products” and complainant had the opportunity to take his deposition).1
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`The caselaw cited by Apple is not applicable to the present dispute. In Certain Silicon-
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`On-Insulator Wafers, the complainant was precluded from relying on domestic industry
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`contentions that were disclosed for the first time in expert reports. Inv. No. 337-TA-966,
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`Order No. 15, EDIS Doc. ID 594088 (May 9, 2016). Similarly, in Certain Gas Spring Nailers
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`and Components Thereof, an expert report included opinions that went beyond the scope of a
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`party’s contentions. Inv. No. 337-TA-1082, Order No. 18, EDIS Doc. ID 655509 (Aug. 31,
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`2018). In Certain Electronic Devices with Multi-Touch Enabled Touch Pads and Touchscreens,
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`the complainant was granted leave to amend its witness list to add two fact witnesses, who had
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`been designated as corporate witnesses on certain topics, on the condition that they could not
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`introduce or rely on “additional documentary evidence on any such topics that was not available
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`prior to their depositions.” Inv. No. 337-TA-714, Order No. 19, EDIS Doc. ID 449966 (Dec. 9,
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`2010). Here, there has been no late identification of hearing witnesses, and Apple has not shown
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`1 Moreover, federal courts do not typically restrict trial testimony in the way that Apple has proposed.
`While a corporate party “generally cannot present a theory of the facts that differs from that articulated by
`the designated Rule 30(b)(6) representative . . . the testimony of a Rule 30(b)(6) deponent does not
`absolutely bind the corporation in the sense of a judicial admission.” Snapp v. United Transportation
`Union, 889 F.3d 1088, 1103 (9th Cir. 2018). Like any other deposition, 30(b)(6) testimony can be
`“contradicted and used for impeachment purposes.” Id.; see also Keepers, Inc. v. City of Milford, 807
`F.3d 24, 34 (2d Cir. 2015) (“[The plaintiff] rightly notes that an organization’s deposition testimony is
`binding in the sense that whatever its deponent says can be used against the organization. But Rule
`30(b)(6) testimony is not binding in the sense that it precludes the deponent from correcting, explaining,
`or supplementing its statements.” (footnote and quotation marks omitted)); A.I. Credit Corp. v. Legion
`Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001) (“[T]estimony given at a Rule 30(b)(6) deposition is evidence
`which, like any other deposition testimony, can be contradicted and used for impeachment purposes.”).
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`that Masimo’s witnesses will be offering testimony outside the scope of Masimo’s contentions or
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`introducing new, previously-undisclosed documents.2
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`Accordingly, Apple’s motion in limine no. 3 (1276-039) is hereby DENIED.
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`This order has been issued with a confidential designation. Within seven days of the date
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`of this document, the parties shall submit a joint statement as to whether or not they seek to have
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`any portion of this document deleted from the public version. If the parties do seek to have
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`portions of this document deleted from the public version, they must submit a single proposed
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`public version of this order with any proposed redactions in the manner specified by Ground
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`Rule 1.9. To the extent possible, the proposed redacting should be made electronically, in a PDF
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`of the issued order, using the “Redact Tool” within Adobe Acrobat, wherein the proposed
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`redactions are submitted as “marked” but not yet “applied.” The submission shall be made by
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`email to Bhattacharyya337@usitc.gov and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
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`2 To the extent Masimo does seek to introduce new documentary evidence or testimony outside the scope
`of Masimo’s contentions, Apple may raise such objections at the hearing. However, that issue cannot be
`decided in the blanket manner Apple proposes. As discussed above, the specific issue raised by Apple
`regarding time estimates provided by Mr. Al-Ali does not, based on the information provided, have merit.
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