UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C. 20436
`Before the Honorable Delbert R. Terrill
`Administrative Law Judge
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`In the Matter of
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`CERTAIN NETWORK INTERFACE CARDS AND
`ACCESS POINTS FOR USE IN DIRECT SEQUENCE
`SPREAD SPECTRUM WIRELESS LOCAL AREA
`NETWORKS AND PRODUCTS CONTAINING SAME
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`Inv. No. 337-TA-455
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`REPLY MEMORANDUM IN SUPPORT OF THE JOINT MOTION
`TO TERMINATE INVESTIGATION AS TO THE AGERE PARTIES
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`Respondents Acer America Corp., MELCO, Inc., Buffalo Technology (U.S.A.), Inc.,
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`Techworks, Inc., and Enterasys Networks, Inc., and Intervenor Agere Systems Inc. (collectively
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`the “Agere Parties”), by their attorneys, hereby submit this reply to the Response to the Joint
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`Motion to Terminate Investigation as to the Agere Parties filed by Respondents Intersil
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`Corporation, D-Link Systems, Inc., D-Link Corporation, The Linksys Group, Inc., AmbiCom,
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`Inc., and Wistron NeWeb Corporation (collectively the “Intersil Parties”).
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`Only the ITC Staff and the Intersil Parties have responded to the Joint Motion to
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`Terminate. The ITC Staff has supported the motion because it “complies with the Commission’s
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`rules regarding termination based upon a settlement agreement, and the terms of the settlement
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`agreement between Proxim and Agere do not appear to be contrary to the public interest.” ITC
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`Staffs Response at 2. In their response to the Joint Motion to Terminate, the Intersil Parties
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`state that they generally “do not object to the termination of the investigation with respect to the
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`Agere Parties.” Intersil Parties’ Response at 1. However, the Intersil Parties raise two issues
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`regarding the testimony of the Agere Parties’ witnesses and the cost of Proxim’s production of
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`

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`back-up e-mails which they claim “deserve[] attention now.” In fact, none of the issues raised by
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`the Intersil Parties should prevent the Agere Parties from being terminated from this
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`investigation promptly.
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`First, the Intersil Parties request permission to use the deposition transcripts of certain
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`fact witnesses who reside outside the United States and may not be available to testify at the
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`hearing. This is an evidentiary question to be decided at the appropriate time subject to the
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`relevant Commission Rules and case law. As such, this issue has nothing to do with the
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`termination of the Agere Parties from this investigation.’
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`The Intersil Parties also suggest that the Agere Parties should be ordered to share in the
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`costs associated with Proxim’s production of its back-up e-mails. The issue of Proxim’s back-up
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`e-mails and the cost of their production was litigated exclusively by Respondents D-Link
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`Systems, Inc. and D-Link Corporation (collectively “D-Link”) on the one hand and Proxim on
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`the other. The Agere Parties took no part in litigating this issue. D-Link’s Motion to Compel
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`Proxim to Produce Responsive Email (filed on September 27,2001), Proxim’s opposition (filed
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`on October 4,2001), and D-Link’s reply (filed on October 15,2001), make no mention of the
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`Agere Parties. In fact, these pleadings recognize that this dispute was exclusively between D-
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`Link and Proxim: D-Link’s motion to compel argued that “Proxim should be required to
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`produce, at its own cost, responsive information contained in its backup tapes,” D-Link’s
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`Motion to Compel at 21 (emphasis added); Proxim’s opposition demands that D-Link be ordered
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`to bear the cost of retrieving the information from these tapes,” Proxim’s Opp. at 11 (emphasis
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`The Intersil Parties’ Response also addresses the permissible scope of the testimony of their designated expert, Dr.
`1
`Neil Birch. It is not clear what relief, if any, the Intersil Parties seek with respect to Dr. Birch’s testimony, but what
`is clear is that any questions regarding Dr. Birch’s testimony are evidentiary issues which have no effect on the
`termination of the Agere Parties from this investigation.
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`2
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`added); and D-Link’s reply reiterates the contention that “[tlhe costs of production of
`information from Proxim’s backup tapes . . . should be borne by Proxim.” D-Link’s Reply at 7
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`(emphasis added). No mention is made of the Agere Parties, nor is there any suggestion that the
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`Agere Parties should contribute to the cost of production. Furthermore, the motions papers detail
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`the extensive letters and telephone calls exchanged between counsel on this issue. Significantly,
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`all of these communications were between counsel for D-Link and counsel for Proxim. The
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`Agere Parties took no part in these negotiations, and there was no suggestion that the Agere
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`Parties should be involved in any cost-sharing arrangement.
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`Contrary to the Intersil Parties’ contention that Order No. 45 directed “all the parties [to]
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`split the cost of production” (Intersil Parties’ Response at 2), Order No. 45 is limited to the
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`parties actually involved in the motion to compel, D-Link and Proxim. The issue addressed in
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`Order No. 45 was whether Proxirn or D-Link would have to bear the cost of producing the back-
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`up e-mails: “D-Link argues that the burden [to pay for the production] should fall on Proxim as
`the producing party. . . [whereas] Proxim argues that D-Link should share the costs involved in
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`producing responsive e-mail from the backup tapes.” Order No. 45, at 3. The Agere Parties are
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`nowhere mentioned in Order No. 45 and they cannot be expected to share in the cost of
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`production of documents they did not seek and which they have never received. Any
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`requirement in Order No. 45 that “the parties must share the costs of producing the requested e-
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`mail” can only reasonably apply to D-Link and Proxim, the parties who litigated the e-mail
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`production issue.2
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`The Intersil Parties’ Response states that the Intersil Parties and the Agere Parties “worked together to build
`defenses[] [and] share costs.” Intersil Parties’ Response at 1. It is important to clarify that there was no agreement,
`written or oral, between the Agere Parties and the Intersil Parties to jointly defend this matter or to share in any costs
`associated with D-Link‘s request For the production of Proxim’s back-up e-mails.
`3
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`Correspondence between the parties subsequent to Order No. 45, including letters from
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`counsel for the Intersil Parties, further confirms the Agere Parties’ position on this issue. On
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`November 7,2001, counsel for the Intersil Parties wrote to the Administrative Law Judge
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`withdrawing its Motion to Compel a Reasonable Date Certain By Which Proxim Must Produce
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`the Information from its Backup Tapes Required by Order No. 45, explaining that a cost-sharing
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`agreement had been reached whereby “Proxim will bear the cost of creating a searchable
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`database andfinding responsive e-mail and D-Link will pay for copying or retrieval of
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`Proxim ’s responsive e-mail.” See correspondence of November 7,2001, attached as Exhibit 1
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`(emphasis added). Clearly, the Intersil Parties had no expectation that the Agere Parties would
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`contribute to the cost of the e-mail production. In subsequent correspondence to counsel for
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`Proxim on January 1 Oth and January 1 7t11, counsel for the Intersil Parties repeatedly referred to the
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`cost-sharing agreement set forth in the November 7th letter. See correspondence of January loth
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`and 17th, attached as Exhibits 2 and 3, respectively. Nowhere is there any suggestion that any
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`parties other than D-Link, the only moving party on this issue, and Proxim were responsible for
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`the cost of producing responsive e-mails.
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`Moreover, when counsel for Proxim subsequently proposed that the costs associated with
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`producing the back-up e-mails should be borne equally by all of the fourteen parties to the
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`investigation? counsel for the Agere Parties responded immediately and unambiguously:
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`The production of Proxim’s e-mails was an issue exclusively between
`Proxim and Respondents D-Link Systems, Inc. and D-Link Corporation. Agere
`took no part in the Motion to Compel regarding the e-mail production, and Order
`No. 45 clearly pertains only to the parties involved in litigating that Motion to
`Compel. Accordingly, regardless of the “cost-sharing mechanism’? that is
`ultimately worked out between Proxim and the D-Link respondents, neither Agere
`nor any of its customer-client respondents bear any responsibility to contribute to
`the cost of Proxim’s production of e-mails.
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`4
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`See correspondence of January 2,2002, attached as Exhibit 4. Neither Proxim nor the Intersil
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`Parties ever objected to the Agere Parties’ position on this issue. Only now, nearly eight months
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`later when the Agere Parties have moved to be terminated from this investigation, are the Intersil
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`Parties suddenly raising this issue.3
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`In short, the use of deposition transcript testimony at the hearing of this investigation is
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`an evidentiary question to be resolved by the Administrative Law Judge. Likewise, the Agere
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`Parties bear no responsibility for the cost of e-mail production. Accordingly, nothing raised in
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`the Intersil Parties’ response creates any grounds for denying the joint motion filed by Proxim
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`and the Intersil Parties to terminate the Agere Parties from this investigation.
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`CONCLUSION
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`For the reasons set forth above, the Agere Parties respectfully request that the Joint
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`Motion to Terminate Investigation as to the Agere Parties should be granted.
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`Respectfully submitted,
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`G ~ F & F . Pappas
`Gary M. Hnath
`Eric S. Namrow
`Venable, Baetjer, Howard & Civiletti, LLP
`1201 New York Avenue, N.W., Ste. 1000
`Washington, D.C. 20005-3917
`Telephone:
`(202) 962-4800
`Facsimile:
`(202) 962-8300
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`Counsel for the Agere Parties
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`On January 8,2002, counsel for Addtron Technology Co. Ltd. (“Addtron”) rejected Proxim’s cost-sharing
`3
`proposal €or the same reasons as those articulated by counsel for the Agere Parties. See correspondence of January
`8,2002, attached as Exhibit 5. Neither Proxim nor the Intersil Parties objected to Addtron’s position.
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`5
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`CERTIFICATE OF SERVICE
`d
`I HEREBY CERTIFY that on this 3- day of September 2002, copies of the Motion for
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`Leave to Submit Reply in Support of the Joint Motion to Terminate Investigation as to the Agere
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`Parties and Reply Memorandum in Support of the Joint Motion to Terminate Investigation as to
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`the Agere Parties were served as follows:
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`BY HAND:
`
`(original plus six copies)
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`(two copies)
`
`The Honorable Donna R. Koehnke
`Secretary
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, S.W.
`Washington, D.C. 20436
`
`The Honorable Delbert R. Terrill
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, S.W.
`Washington, D.C. 20436
`
`Commission Investigative Attorney:
`
`Benjamin D.M. Wood, Esquire
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E. Street, S.W., Room 4011
`Washington, D.C. 20436
`
`Counsel for Complainant Proxim, Incorporated:
`
`Cecilia H. Gonzalez, Esquire
`Howrey Simon Arnold & White, L.L.P.
`1299 Pennsylvania Avenue, N.W.
`Washington, D.C. 20004
`
`Counsel for Respondents Intersil Corporation, D-Link Systems, Inc.,
`D-Link Corporation, The Linksys Group, Inc., AmbiCom, Inc.,
`and Wistron NeWeb Corporation:
`
`Vincent P. Kovalick, Esquire,
`Finnegan, Henderson, Farabow,
`Garrett & Dunner, L.L.P.
`1300 I Street, N.W.
`Washington, D.C. 20005-33 15
`
`

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`BY OVERNIGHT MAIL:
`
`Counsel for Respondent Addtron Technology Co. Ltd.:
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`Richard C. Vasquez, Esquire
`1676 North California Boulevard
`Suite 200
`Walnut Creek, California 94596
`
`Counsel for Respondents Ambicom, Inc. and The Linksys Group, Inc.:
`
`Jeffrey C.P. Wang, Esquire
`The Law Offices of Jeffrey C.P. Wang
`120 1 Dove Street
`Suite 485
`Newport Beach, California 92660
`
`Counsel for Intervenor Ericsson, Inc.
`
`Jeffrey Goldfarb, Esquire
`Akin, Gump, Strauss, Hauer & Feld, L.L.P.
`1700 Pacific Avenue
`Suite 41 00
`Dallas, Texas 75201-4675
`
`Counsel for Intervenor Symbol Technologies, Inc.
`
`Ira J. Schaefer, Esquire
`Clifford, Chance, Rogers & Wells LLP
`200 Park Avenue
`New York, New York 10166
`
`Gary
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`. Hnath
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`EXHIBIT 1
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`EXHIBIT 1
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`NOU 0
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`2 0 0 1 1 8 : 1 7 F R FINNEGRN HENDERSON 2 0 2 4 0 8 4 4 0 0 T O 9 6 2 3 3 0 0
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`D U N N E R '&I -
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`HENPE R SON
`F A R A Q O W
`G A R R E T T k
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`1300 1 Street, NW I Washington, DC 20005-331E, c 202~408s4000 Fax 202.408.4400
`w .
`f
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`P . 0 2
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`DORIS JOHNSON HlPlfS
`202.40B.4250
`dori.hines@finnsgan.com
`
`November 7,2001
`
`Administrative Law Judge T h l l
`U. SI International Trade Commission
`500 E Street, S.W.
`Washington, D.C, 20436
`Re: In The Matter af Certain Network Interface Cards
`And Access Points for Use in Direct Sequence Spread
`Spectrum Wireless Local Area Networks and Products
`Containing Same
`NO. 337-TA-455
`ITC I~v .
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`VIA HAND
`
`As we told your legal advisor yesterday, Respandent D-Link atld Complainant Proxim
`have reached a mutually acceptable agreement with respect to the issues involved in D-Linlr"s
`October 30,2001, Motion to Compel a Reasonable Date Certain by Which Proxim Must Produce
`the Information fram its Backup Tapes Required by Order No. 45. Proxim, whose counsel have
`reviewed and approved this letter, has agreed to product all relevmt and responsive infcrmatbn
`from ita backup tapes by no later than December 17,2001. The parties have also agreed to an
`apportionment of costs such that Proxim's outside vendor, Ontrack, will separately invoice the
`parties for thdr share: of the wsts, Proxim will bear the cost of creating a searchable database
`and finding responsive e-mail and D-Link will pay for copying or retrieval of Froxim's
`responsive e-mail. Based on the agreements reached by the parties, D-Link hereby withdraws its
`October 30,2001, motion to compel.
`
`cc:
`
`Counsel of Record
`
`Counsel f i r D-Link
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`

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`EXHIBIT 2
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`EXHIBIT 2
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`

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`1300 I Street, NW m Washington, DC 20005-331 5 rn 202,408.4000 1 Fax 202,408,4400
`www.finnegan.com
`
`HENDERSON
`F A R A B O W
`C A R R E T T b
`D U N N E R L
`E
`
`
`
`Catherine B. =chardson., Esq.
`Bums, Dome, Swecker & Mathis
`1737 King Street
`Suite 500
`Alexandria, VA 22314
`Inv. No. 337-TA-455
`Re:
`
`Dear Katie:
`
`Via Facsimile
`Confirmation via W.S, Mail
`
`This letter responds to your letter of December 2 1, 2001, regarding Proximi’s production
`of email from its backup rapes. In response to the request in your letter, we do not “agree that
`the cost of the creation of the database should be shared equally by the parties.” We do not
`agree for two reasons. First, such an arrangement i s directly contrary to Proxim’s previous
`explicit agreement to pay these costs on its own, which formed part of the basis on which D-Link
`withdrew its motion to compel. Second, the splitting o f costs in the m m m Proxirn suggests
`contradicts Order No. 45.
`D-Link was forced to fila a motion to compel when Proxirn refused to provide a date
`certain for completion of production of its e-mail, compelled by Order No. 45. D-Link withdrew
`that motion because Proxim committed to producing the compelled e-mail by December 17,
`2001, and because Proxim agreed that Proxim ‘”will bear the cost of creating a searchable
`database and finding responsive e-mail.” Proxim’s counsel. agreed to this mmgement and
`approved that exact language in a lett~r to ALJ Terdl, attached, advising him that P-Link was
`withdrawing its motion to compel. In addition, in a lctter dated October 29, 2001, also attached,
`Prwim’s counsel stated that “Proxiin will bear the costs assacialed with creating a searchable
`database and finding responsive documents.” Proxim already agreed to pay the Costs it is now
`demanding be split by the parties.
`In addition, Order No. 45 does not support cost-splitting in the manner your letter
`suggests. In considering the costs issue, Order No. 45 states that “B-Link, as the requesting
`party, should not have to bear the costs of searching the backup files for responsive e-mail just as
`D-Link would not have to pay for such a search in a traditional ‘paper’ case.” Given Pmxim’s
`previous commitment to pay the cost of creating a searchable database a d the express language
`of Order No. 45, stating that this cost should be borne by Proxim, we will, not a p e to pay any
`costs for the cnsaticsn of an e-mail. database.
`
`

`
`Catherine B. Richardson,, Esq.
`January 10,2002
`Page 2
`
`F I N N E C A N
`HENDIERSON
`F A R A E O W
`C A R R E T T L
`D U N N E R W
`
`In accordance: with Order No. 68, as reitcrated in our letter of December 21, 2001, and
`Eric Namrow’s latter of December 19, 2001, we expect that Proxim will produce its e-mail,
`compelled October 12, 2001, within seven days of the resolution o f issues concerning the
`disqualification of Pmxirn’s counsel. If we.do not receive Proxim’s e-mail at that time with
`Praxim’s unqualified commitment regarding costs as Proxim previously agreed, we will again
`move to compel. We are also putting Pmxirn 011 notice that we will request sanctions if forced to
`file such a motion to campel
`
`I
`
`DJWdmw
`Enclosures
`All Counsel. of Record
`cc:
`
`& 0 ’ d
`
`

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`EXHIBIT 3
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`EXHIBIT 3
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`

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`J R N 17 20132 16:52 F R F I N N E G R N HENDERSON 2 0 2 408 4400 TO 96283QE3
`
`P.02
`
`1300 1 Street, NW rn Washington, DC 20005-331 5 rn 202.408.4000 II Fax 202.408.4400
`w.finnsgan.com
`
`DORIS JOHNSON HINES
`202,408.4250
`dorl.hlnes@finnegan.oom
`
`Via Facsimile
`Confirmation via US. Mail
`
`I
`DUNNER ‘12 -
`
`HENDElSoN
`F A R 4 0 D W
`G 4 R R E T T G
`
`January 17,2002
`
`Catherine B, Richardson, Esq.
`Bums, Dome, Swecker & Mathis
`1737 King Street
`suite 500
`Alexandria, VA 223 14
`Re! hv. NO, 337-TA-455
`
`Dear Katie:
`The proposal in your January 14,2002, letter is unacceptable. Pmxim’s “determinatian”
`that “further review” of its compelled email is not ‘karranted‘’ is dimtly contrary to the
`holding of Order NO. 45. There, the Judge stated that “Proxim should bear the burden of creating
`a searchable database andfmding raponshe e-mail,” (Order No. 45 at 4, emphasis added).
`Pmxim’s proposal is also contrary to Proxim’s representation in its October 29,2001, letter that
`it will “bear the costs associated with creating a searchable database and finding responsive
`documents.” It is also contrary to Proxim’s representation in the November 7,2001, letter to
`ALJ Temll that, “Proxini will bear the cost of creating a searchable database and finding
`responsive e-mail,” which representation formed part af the basis for D-Link withdrawing its
`motion to compel.
`As we said in our January 10,2002, letter, we expect that Proxh will produce its e-mad,
`compelled October 12,2001, within seven days of resolution of issues concerning the
`disqualification of Proxim’s counsel. If we do not receive Proxim’s e-mail at that time, such
`e-mail having been reviewed for relevance and screened for privilege, we will, again move to
`compel. We are again putting Proxim on notice that we will request sanctions if forced to file
`such a motion to compel.
`
`DJH/dmw
`All Counsel. ofRecord
`cc:
`
`** T O T R L PRGE.02 **
`
`

`
`EXHIBIT 4
`
`EXHIBIT 4
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`

`
`w h p , BAETJER, IIocmm & CIVILETTI, LLP
`Including professional corporations
`
`. 1201 New ‘fork Avenue, N.W., Suite 1000
`Washington, D.C. 20005-3917
`(202) 962-4800, Fax (202) 962-8300
`www,venable.com
`
`OFFICES IN
`
`WASHINGTON. D.C.
`MARYLAND
`VlRClNIA
`
`T T
`
`, 4 T T O R N K Y S A T L . \ W
`
`Eric S. Namrow
`(202) 513-4621
`esnninrow@venable.com
`
`January 2, 2002
`
`VIA FACSIRIIILE AND REGULAR MAIL
`
`Catherine B. Richardson, Esquire
`Burns Doane Swecker QL Mathis, L.L.P.
`1737 King Street
`Suite 500
`Alexandria, Virginia 223 14
`
`Re:
`
`In the Matter of Certain Network Interface Ccirds nncl Access Points for Use
`in Direct Sequence Spread Spectrum Wireless Local Area Networks anti
`Pvociucts Containing Same
`Inv. No. 337-TA-455
`
`Dear Ms. Richardson:
`
`We write in response to your letter of December 21,2001 in which you propose
`that all parties to this investigation share equally in the cost of searching for and producing
`Proxim’s backup e-mails.
`
`The production of Proxim’s e-mails was an issue exclusively between Proxim and
`Respondents D-Link Systems, Inc. and D-Link Corporation. Agere took no part in the
`Motion to Compel regarding the e-mail production, and Order No. 45 clearly pertains only
`to the parties involved in litigating that Motion to Compel. Accordingly, regardless of the
`“cost-sharing mechanism” that is ultimately worked out between Proxim and the D-Link
`respondents, neither Agere nor any of its customer-client respondents bear any
`responsibility to contribute to the cost of Proxim’s production of e-mails. Of course,
`Agere fully retains its right to obtain copies of all documents Proxim produces to any party
`in this investigation.
`
`Thank you for your consideration.
`
`cc:
`
`Counsel of Record (via facsimile)
`
`DC:!DOCS1/341462
`
`

`
`EXHIBIT 5
`
`EXHIBIT 5
`
`

`
`01/08/2002 1 4 : 0 4 FAX 025 943 1 1 0 8
`
`MORGAN MI LLER6rBLA I R
`
`~ 0 0 2 / 0 0 2
`
`Morgan, M i k r & Elair
`
`&CHARD c. vA5QLEZ
`r~nsquw@mrnblaw.com
`
`January 7,2002
`
`Re:
`
`VIA FACSIMILE AND REGULAR MAIL
`Catherine B. Richardson, Esq.
`BURNS, DOANE, SWECKER & ~MATI.IIs, L.L.P.
`1737 King Street, Suite 500
`Akxaadtia, Virginia 223 14
`In the Matrep of Cmtuin N&mk htmfuce Curds
`N. No. 337-TA-455
`Our File No. 7269.7
`Dear Ms. Richardson:
`This letter is in response to your letter dated December 21,2001 in which you propose
`that all parties to this hvestigation cqually share Proxim's cost of searching for and producing
`backup mail pursuant to Order No. 45.
`The production ofPmxim's backup mail was a matter raised by the Motion to Compel
`filed by Respondents D-Link Systems, Inc. and b-Lirik Corporation. Addtron took no part in
`that motion and as such, Addihon is not named in the resrzMng Order. Further, as your letter
`characterizes thk cost as the result of "the creation of a dktabase of backup email[,]" Order No.
`45 considers it Proxim's sols responaibility to "bear the burden of creating a searchable database
`and finding responsive email."
`Consequently, neither Addtron nor ziny of its customer-client respondents bear any
`responsibility to contribute to Pmxh's cost for this production. However, Addtrcin fully retains
`its right to obtain copies of all documents Proxim produces to any party in this investigation.
`Very W y yours,
`MORGAN, MILLER & BLAIR
`
`cc:
`
`RCV:dtb
`Ca~msel of Record (via facsimile)
`Joshua D, Cohen, Esq.
`7269172321 57: 1
`
`(3XAP.D C. VASQ
`
`/"'
`
`167d NORTH CALIFoRNlA BI..VD., SUITE 200 * WALNUT CREEK, CA 345964137 * TELEPHONE 925 937-3600 - FACSIMILE 925 943-1.106