PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION e
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN ZERO-MERCURY-ADDED
`ALKALINE BATTERIES, PARTS THEREOF,
`AND PRODUCTS CONTAINING SAME
`
`F;j
`Inv. No. 337-TA-433
`
`ORDER NO. 25: DENYING COMPLAINANT EBC’S MOTION FOR
`RECONSIDERATION OF ORDER NO. 22
`
`(September 17,2003)
`
`On August 29, 2003, respondent Maxell Corporation of America (“MCA”) filed a
`
`motion (493-026), pursuant to Commission Rule 210.33(a), to compel complainants
`
`Energizer Holdings, Inc., and Eveready Battery Company, Inc. (collectively “complainants”
`
`or “EBC”), to produce certain discovery responses. On September 10,2003, MCA’s motion
`
`was granted in part by Order No. 22.
`
`On September 11, 2003, EBC filed an opposition to MCA’s motion along with a
`
`motion (493-03 1) for reconsideration. The motion for reconsideration requested a stay for
`
`compliance to Order No. 22, but did not request a shortened response time. As there is no
`
`information presented in EBC’s opposition that warrants reconsideration of Order No. 22,
`
`the undersigned does not require any responses.
`
`
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION e
`
`Washington, D.C.
`
`In the Matter of
`
`CERTAIN ZERO-MERCURY-ADDED
`ALKALINE BATTERIES, PARTS THEREOF,
`AND PRODUCTS CONTAINING SAME
`
`F;j
`Inv. No. 337-TA-433
`
`ORDER NO. 25: DENYING COMPLAINANT EBC’S MOTION FOR
`RECONSIDERATION OF ORDER NO. 22
`
`(September 17,2003)
`
`On August 29, 2003, respondent Maxell Corporation of America (“MCA”) filed a
`
`motion (493-026), pursuant to Commission Rule 210.33(a), to compel complainants
`
`Energizer Holdings, Inc., and Eveready Battery Company, Inc. (collectively “complainants”
`
`or “EBC”), to produce certain discovery responses. On September 10,2003, MCA’s motion
`
`was granted in part by Order No. 22.
`
`On September 11, 2003, EBC filed an opposition to MCA’s motion along with a
`
`motion (493-03 1) for reconsideration. The motion for reconsideration requested a stay for
`
`compliance to Order No. 22, but did not request a shortened response time. As there is no
`
`information presented in EBC’s opposition that warrants reconsideration of Order No. 22,
`
`the undersigned does not require any responses.
`
`
`
`Although there is nothing that warrants reconsideration of Order No. 22, EBC has
`
`provided some additional information that provides a basis for additional clarification of
`
`Order No. 22. The basis of the MCA’s motion to compel is the production of certain
`
`documents that were previously produced in three separate Northern District of Ohio district
`
`court cases.’
`
`In those prior litigations, EBC produced approximately 460,000 pages of
`
`documents to the opposing parties. Approximately 330,000 pages of documents were
`
`produced to the opposing parties on CDs, which contained images of the hard copies of the
`
`documents, while the remaining 130,000 pages were produced in hard copy form. See
`
`Exhibit 1 to EBC’s Opposition.
`
`As the undersigned has interpreted MCA’s motion to compel, MCA has requested that
`
`EBC be compelled to produce the CDs or the equivalent electronic images of the documents
`
`that were on the CDs, or in the alternative, if electronic images no longer exist, produce the
`
`underlying hard copies of the documents. EBC’s opposition states that it is “still unclear to
`
`EBC exactly what MCA seeks. Is it the CDs? Or is it that documents that were on the
`
`CDs?” See EBC Opposition at 8. Any confusion that MCA may have experienced is clearly
`
`based on the conflicting representations that EBC has made regarding the documents.
`
`At one point, EBC’s opposition states that ‘‘[tlhe CDs produced to Rayovac no longer
`
`Those cases include Eveready Battery Company, Inc. v. Duracell Inc. And The Gillette
`1
`Company, Case No. 1 :00 CV 0876 (“the Duracell 1itigation”);Eveready Battery Company, Inc. v.
`Rayovac Corporation, case No. 1 :01 CV 0475 (“the Rayovac litigation”), and Eveready Battery
`Company, Inc. v. Matsushita Electric Corporation ofAmerican and Panasonic Industrial Company,
`Case No. 1 :00 CV 0877 (“the ME1 litigation” or “the Panasonic litigation”).
`
`-L-
`
`
`
`exist,” but that “[tlhe universe of documents that were on those CDs exists.” See EBC
`
`Opposition at 1-2. EBC now states that images of documents that were produced to Rayovac
`
`exist on a hard drive in the offices of Price, Heneveld, Cooper, DeWitt & Litton, which
`
`includes a set of back-up CDs containing the images (see EBC Opposition at 6) and that
`
`“EBC counsel does have images of the documents produced to Rayovac on a hard drive in
`
`its counsel’s offices” (see EBC Opposition at 8). Yet in complainants’ July 30,2003 letter
`
`to counsel for MCA, counsel for complainants’ states that
`
`As for the CDs from the Rayovac litigation, as we tried to explain in our telephone
`conversation, we are not in possession of CDs as they were produced. While we still
`possess the documents, the images of which were on the CDs, the CDs themselves
`were destroyed after the Rayovac litigation pursuant to the terms of the Protective
`Order in that case.
`
`See Exhibit J to MCA’s Motion.
`
`Apparently, because the images on the hard drive and the back-up CDs are not
`
`“identical” (i.e. the hard drive and back-up CDs contain indications of “the starts and stops
`
`of each document” and “links to a database created by EBC counsel” during the Rayovac and
`
`ME1 litigations) to the CDs given to the opposing party in the Rayovac or ME1 litigation,
`
`EBC does not consider such CDs to exist. See EBC Opposition at 7. EBC also appears to be
`
`making distinctions between possession of the documents by the company itself and its
`
`counsel. These are really distinctions without a difference. It is clear that EBC is in
`
`possession of electronic images of documents that were produced in prior litigation and to
`
`state that such CDs no longer exists is disingenuous.
`
`-3 -
`
`
`
`EBC goes on to state that it does not have hard copies of the documents as they were
`
`produced to Rayovac. See EBC Opposition at 7. EBC maintains that the original documents
`
`exist, but that they are scattered among “many hundreds of boxes of documents, personal
`
`files, and department files at EBC’s various locations.” See EBC Opposition at 7. Yet at the
`
`same time, EBC contends that, if compelled to produce hard copies of the underlying
`
`documents to MCA, it would cost $40,000 to $50,000 to photocopy and re-bates number the
`
`documents. See EBC Opposition at 8-9. When EBC is referring to these “hard copies” it
`
`appears that EBC is referring to a paper version of the images on the hard drive or back-up
`
`CD and not the “originals” as those are “scattered” about. Once again, because these hard
`
`copies are not identical to that which was produced to opposing parties in the Rayovac or
`
`ME1 litigations, EBC does not consider that such hard copies exists, which is again, a
`
`disingenuous distinction.
`
`Accordingly, EBC’s motion (493-03 1) is denied andEBC is hereby compelled to filly
`
`comply with Order No. 22 within the originally ordered time frame. For further clarification,
`
`EBC and MCA must meet and confer to determine whether (1) MCA wants to inspect the
`
`hard drive of the computer at the law offices of Price, Heneveld, Cooper, DeWitt & Litton
`
`which contains the images of documents, (2) MCA wants to inspect the back-up CDs at an
`
`agreed upon location, or (3) whether MCA wants to inspect hard copies of the documents
`
`that were imaged onto the CDs at an agreed upon location. MCA is not required to pay any
`
`upfront costs before inspecting the hard drive, CDs or hard copies of the documents. If MCA
`
`-4-
`
`
`
`^/* ’
`
`wants photocopies of the original documents or copies of the CDs, MCA must bear the costs
`
`or reproduction, which shall be agreed upon by the parties.
`
`Within seven days of the date of this document, each party shall submit to the Office
`
`of the Administrative Law Judges a statement as to whether or not it seeks to have any
`
`portion of this document deleted from the public version. The parties’ submissions may be
`
`made by facsimile and/or hard copy by the aforementioned date.
`
`Any party seeking to have any portion of this document deleted from the public
`
`version thereof must submit to this office a copy of this document with red brackets
`
`indicating any portion asserted to contain confidential business information. The parties’
`
`submissions concerning the public version of this document need not be filed with the
`
`Commission Secretary.
`
`SO ORDERED.
`
`Charles E. Bullock
`Administrative Law Judge
`
`-5-
`
`
`
`IN THE MATTER OF CERTAIN ZERO MERCURY
`ADDED ALKALINE BATTERIES, PARTS THEREOF
`AND PRODUCTS CONTAINING SAME
`
`INV. NO. 337-TA-493
`
`CERTIFICATE OF SERVICE
`
`I, Marilyn R. Abbott, hereby certify that the attached ORDER was served upon, Benjamin D.
`M. Wood, Esq., Commission Investigative Attorney, and the following parties via first class
`, 2003.
`mail and air mail where necessary on September 30
`
`Marilyn R. Abbott, Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room 112A
`Washington, D.C. 20436
`
`FOR COMPLAINANTS ENERGIZER HOLDINGS, INC. AND EVEREADY BATTERY
`COMPANY, INC.:
`
`V. James Adduci, TI, Esq.
`Maureen F. Browne, Esq.
`Michael F. Nickel, Esq.
`ADDUCI, MASTRIANI & SCHAUMBERG, L.L.P.
`1200 Seventeenth Street, N.W.
`Fifth Floor
`Washington, DC 20036
`
`Randall Litton, Esq.
`Eugene J. Rath, 111, Esq.
`PRICE, HENEVELD, COOPER, DEWITT & LITTON
`P.O. Box 2657
`Grand Rapids, Michigan 49501
`
`FOR RESPONDENT ATICO INTERNATIONAL U.S.A., INC.
`John B. Wyss, Esq
`Floyd B. Chapman, Esq.
`David B. Walker, Esq.
`WILEY REIN & FIELDING LLP
`1776 K Street, NW
`Washington, DC 20006
`
`
`
`IN THE MATTER OF CERTAIN ZERO MERCURY
`ADDED ALKALINE BATTERIES, PARTS THEREOF
`AND PRODUCTS CONTAINING SAME
`
`INV. NO. 337-TA-493
`
`FOR RESPONDENTS SICHUAN CHANGHONG ELECTRIC COMPANY, LTD.,
`FUJIAN NANPING NANFU BATTERY CO., LTD., GOLDEN POWER INDUSTRIES,
`LTD., GUANDONG CHAOAN ZHENGLONG ENTERPRISE CO., LTD., GUANGZHOU
`TIGER HEAD BATTERY GROUP CO., LTD., HI-WATT BATTERY INDUSTRY
`COMPANY, LTD., NINGBO BAOWANG BATTERIES, CO., LTD., ZHEJIANG 3-TURN
`BATTERIES CO., LTD. & ZHONGYIN NINGBO BATTERY CO., LTD.,
`Steven P. Hollman, Esq.
`HOGAN & HARTSON L.L.P.
`555 Thirteenth Street, N.W.
`Suite 7W-302
`Washington, D.C. 20004-1 109
`
`FOR RESPONDENT CHUNG PAK BATTERY WORKS
`Gary M. Hnath, Esq.
`Fei-Fei Chao, Esq.
`VENABLE, BAETJER, HOWARD & CIVILETTI, LLP
`1201 New York Avenue, N.W. Suite 1000
`Washington, D.C. 20005-3917
`
`FOR RESPONDENTS DORCY INTERNATIONAL INC., MAZEL COMPANY d/b/a/
`THE POWERHOUSE GROUP & UNIVERSAL BATTERY CORPORATION
`Tywanda L. Harris, Esq.
`Christopher P. Bussert, Esq.
`Yoncha L. Kundupoglu, Esq.
`KILPATRICK STOCKTON LLP
`1 100 Peachtree Street, Suite 2800
`Atlanta, GA 30309
`
`FOR RESPONDENTS FDK CORPORATION & FDK ENERGY COMPANY, LTD.
`James H. Hulme, Esq.
`Eugene J. Meigher, Esq.
`D. Jacques Smith, Esq.
`Richard J. Berman, Esq.
`Brian C. Lansing, Esq.
`Janine Carlan, Esq.
`ARENT FOX KINTNER PLOTKIN & KAHN, PLLC
`1050 Connecticut Avenue, N. W.
`Washington, D.C. 20036-5339
`
`
`
`IN THE MATTER OF CERTAIN ZERO MERCURY
`ADDED ALKALINE BATTERIES, PARTS THEREOF
`AND PRODUCTS CONTAINING SAME
`
`INV. NO. 337-TA-493
`
`FOR RESPONDENT GOLDEN MILLION ENTERPRISES, INC.
`Dennis H. Cavanaugh
`ULLMAN, SHAPIRO & ULLMAN, LLP
`299 Broadway, Suite 1700
`New York, NY 10007
`
`FOR RESPONDENTS GOLD PEAK INDUSTRIES, LTD. ,GP BATTERIES
`INTERNATIONAL, LTD., GP INDUSTRIES LIMITED & GOLD PEAK INDUSTRIES
`(NORTH AMERICA), INC.
`Troy M. Schmelzer, Esq
`Anthony J. Dain, Esq.
`Frederic G. Lidwig, Esq.
`PROCOPIO, CORY, HARGREAVES & SAVITCH, LLP
`530 B Street, Suite 2100
`San Diego, CA 92 10 1
`AND
`Thomas L. Jarvis, Esq.
`Patrick J. Coyne, Esq.
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`1300 I Street, NW
`Washington, D.C. 20005-33 15
`
`FOR RESPONDENTS MAXELL CORPORATION OF AMERICA & HITACHI
`MAXELL LTD.
`Carl W. Schwarz, Esq.
`Mark G. Davis, Esq.
`McDERMOTT, WILL & EMERY
`600 13'h Street, N.W.
`Washington, DC 20005
`
`FOR RESPONDENT MONSTER CABLE PRODUCTS, INC.
`Ian N. Feinberg
`GRAY CARY WARE & FREIDENRICH, LLP
`2000 University Circle
`East Palo Alto, CA. 94303-2248
`
`FOR RESPONDENT PT INTERNATIONAL CHEMICAL INDUSTRY CO., LTD.
`Kent R. Stevens, Esq.
`7 17 East Capitol St. SE
`Washington, DC 20003
`
`
`
`IN THE MATTER OF CERTAIN ZERO MERCURY
`ADDED ALKALINE BATTERIES, PARTS THEREOF
`AND PRODUCTS CONTAINING SAME
`
`INV. NO. 337-TA-493
`
`RESPONDENT WINNER INTERNATIONAL, L.L.C.
`32 West State Street
`Sharon, Pennsylvania 16 146
`
`PUBLIC MAILING LIST
`
`Sherry Robinson
`LEXIS - NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
`
`Ronnita Green
`West Group
`Suite 230
`901 Fifteenth Street, N.W
`Washington, D.C. 20005
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