In the Matter of CERTAIN WINDSHIELD WIPER

PUBLIC VERSION
UNITED STATES INTERNATIONAL TRADE COMMISSION
Washington, D.C.
In the Matter of
CERTAIN WINDSHIELD WIPER
DEVICES AND COMPONENTS
THEREOF
Inv. N0. 337-TA-881
ORDER NO. 16: GRANTING COMPLAINANTS’ MOTION TO COMPEL THE
PRODUCTION OF RESPONSIVE DOCUMENTS
(November 12,2013)
On September 16, 2013, Complainants Federal-Mogul and Federal Mogul SA
(collectively, “Federal-Mogul”) moved (881-006) to compel Respondents Trico Products
Corporation and Trico Componentes SA de CV (collectively, “Trico”) to produce documents
responsive to Request for Production (“RFP”) Nos. 23, 24, 26, 27, 30, 31, and 36. On September
26, 2013, Trico opposed the motion, and the Commission Investigative Staff (“Staff”) filed a
response in support of Federal-Mogul’s motion.
Federal-Mogul asserts that Trico has failed to produce documents responsive to RFP Nos.
23, 24, 26, 27, 30, 31, and 36, which seek documents and things related to the design,
conception, construction, testing and manufacture of the spoilers, spline, heat stakes and end
caps of the accused products. (Mem. at 3.) While Trico’s counsel has maintained that all
responsive documents have been produced, Federal-Mogul insists this is contradicted by the
testimony of Trico’s own witnesses who have “admitted they have responsive documents in their
possession that they have not produced because no one asked for the documents.’-’ (Id. at 6.)
Federal-Mogul submits that the testimony of these employees demonstrates that Trico (and
Trico’s counsel) did “little to nothing” to collect responsive documents. (Id. at 1-2, 8 (arguing
that in several instances, Trico did not ask its employees to preserve, locate, search or segregate
their emails for responsive email comrnunications).)
In opposition, Trico argues that it has conducted a thorough sweep and review of all of its
relevant custodians’ e-mails and has produced all responsive documents. (Opp. at 1, 5-6, 10-12
(arguing that it has produced all testing results, all documents related to the conception of Trico’s
products, and all design drawings).) As evidence of its compliance, Trico points to its
production “totaling over 80,000 pages.” (Id. at 3.) From Trico’s standpoint, if FM believes
there are relevant documents that have not been produced, FM should specifically identify what
is missing from Trico’s production. (Id at 7-8.) In addition, Trico disputes FM’s allegation that
six Trico employees have testified they have responsive documents in their possession that have
not been produced because no one asked for the documents. (Id. at 8-10.) Trico submits that the
deposition excerpts relied upon by FM merely show that these Trico employees have email
accounts and emails, not that Trico failed to collect and produce relevant, responsive documents.
(Id-)
In Staff s view, “it is evident from the deposition testimonies of at least six current
employees of Trico . . . that Trico has not produced relevant documents responsive to these
requests.” (Staff Resp. at 3.) Staff therefore submits that Trico be ordered to immediately
produce all relevant, non-privileged documents responsive to Federal-Mogul’s RFPS.
Having reviewed the pleadings and the arguments contained therein, the undersigned
finds that the RFPs at issue seek documents that are relevant to the issues in this Investigation
(e.g., infringement) and are therefore discoverable. See 19 C.F.R. § 210.27(b). The undersigned
further finds that the evidence indicates Trico has not produced all relevant documents
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responsive to Federal-Mogul’s RFPs.1 For example, one Trico employee testified that he did not
collect any design documents for the Phase 1 blade, a wiper blade Trico provided to Ford Motor
Company. (See Federal-Mogul Ex. D at l58:l0-159:1 (“Q. Did you pull the bill of materials for
the Phase 1 blade? A. No. Q. Did you pull any drawings for the Phase 1 blade? A. No. Q. . . . did
you pull the bill of materials for the mold and rubber injected -- I know I am doing this all
wrong. A. No. No. Q. Okay. Did you pull any drawings for that blade? A. No.”).) This same
employee admitted that no one at Trico instructed him to hold on to documents that might be
relevant to this Investigation. (Id. at l8l :20-182:1.) Another Trico employee similarly testified
that he was neither asked for nor did he provide to counsel any design drawings, assembly
drawings, or emails. (See Federal-Mogul Ex. H at 12:8-13:1 (“Q. So did you provide design
drawings. A. No. Q. How about assembly drawings? A. No. Q. Did you provide —I already
asked you about emails, right, you didn’t provide any emails? A. I did not provide emails.”).)
And, yet another Trico employee testified that he was “never” asked to look for customer
powerpoint presentations on aftermarket beam blades. (See Federal-Mogul Ex. I at 34:7-10.)
Accordingly, Federal-Mogul’s motion (881-006) is hereby granted. Within seven days of
this Order, Trico must conduct a thorough sweep of the following custodians and produce all
documents responsive to RFP Nos. 23, 24, 26, 27, 28, 29, 30, 31, and 36: Daniel Ehde, Kyle
Moll, James Croston, Paul Wozniak, Rolando Lozano, and Ed Poe. In addition, Federal-Mogul
may conduct a limited follow-up discovery deposition on the documents produced pursuant to
this Order and its experts may supplement their expert reports to address any newly produced
documents and deposition testimony elicited from the follow-up discovery deposition.
' The undersigned notes that while Trico claims it has produced all relevant, responsive documents, it did not submit
a declaration to this effect.
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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 documents with red brackets indicating any
portion asserted to contain confidential business infonnation. The parties’ submissions
concerning the public version of this document need not be filed with the Commission Secretary
S0 ORDERED.
/M §’/Z/
Eharles E. Bullock
Chief Administrative Law Judge
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CERTAIN WINDSHIELD WIPER DEVICES AND COMPONENTS THEREOF
INV. NO. 337-TA-881
i7°
PUBLIC CERTIFICATE OF SERVICE
I, Lisa R. Barton, hereby certify that the attached PUBLIC VERSION ORDER NO. 16 has
been served by hand upon the Commission Investigative Attorney, Brian Koo, and the following
partiesasindicated, on
JAN 1 3 2014
.
Lisa R. Barton, Acting Secretary
U.S. International Trade Commission
500 E Street SW, Room 112A
Washington, DC 20436
FOR COMPLAINANTS FEDERAL-MOGUL CORPORATION AND FEDERAL­
MOGUL S.A.:
H. Jonathan Redway
Dickinson Wright PLLC
l875 Eye Street, NW, Suite 1200
Washington, DC 20006-5420
Via Hand Delivery
Via Express Delivery
Via First Class Mail
Other:
FOR RESPONDENTS TRICO CORPORATION; TRICO PRODUCTS & TRICO
COMPONENTS SA de CV:
Jennifer L. Fitzgerald
Freeborn & Peters LLP
3ll South Wacker Drive, Suite 3000
Chicago, IL 60606
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Other:
CERTAIN WINDSHIELD WIPER DEVICES AND COMPONENTS THEREOF
INV. NO. 337-TA-881
PUBLIC MAILING LIST
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9473 Springboro Pike
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