By: Yury Kalish and Blaney Harper – In a recent Order, ALJ Bullock granted Respondents’ motion in limine to exclude a published article written by a former district court judge who previously served as Complainant’s economic expert. In re Certain Memory Modules And Components Thereof, Inv. No. 337-TA-1089, Order No. 42 (March 1, 2019).
In advance of the evidentiary hearing, Respondents SK hynix Inc, SK hynix America Inc. and SK hynix memory solutions Inc. (collectively, “SK hynix”) filed a motion in limine requesting exclusion from evidence of a publication authored by former district court judge, Hon. James Holderman. The article was published in the Criterion Journal on Innovation which publishes scholarly articles on law and economics of innovation. Complainant Netlist sought to use the article to critique Respondents’ economic expert’s methodology and argued that the article was merely a work of scholarship. Respondents argued that the article should be excluded “because it (1) constitutes undisclosed expert testimony; (2) constitutes inadmissible legal expert testimony under Ground Rule 10.2; (3) is otherwise facially unreliable; and (4) serves no other purpose than to vouch for [Complainant’s expert]’s testimony.”
ALJ Bullock agreed with the Respondents. He pointed to both the article itself and to the Complainant’s own opposition brief in his analysis. In the introduction to the article, Judge Holderman explains that he writes “as a part of [his] engagement with Netlist’s attorneys … to conduct a neutral analysis as a neutral evaluator in pending litigation.” The article also states that “[f]or purposes of this engagement with [Netlist’s counsel], I am providing a neutral analysis and evaluation of Netlist’s methodology.”
Referring to a previous ITC investigation between the same parties, Netlist’s opposition brief explained that Netlist retained Judge Holderman in response to a “critique Respondents levied at [Netlist’s expert]’s opinions” in an earlier investigation between the same parties and related to a similar economic issue in that matter. ALJ Bullock concluded that “[t]he fact this document was published in a journal does not dispel this obvious purpose” which continues to be an issue in the instant proceeding. As a result, ALJ Bullock excluded the article as violating his Ground Rule governing expert testimony and his Ground Rule identifying declarations as not admissible as substantive evidence.
ALJ Bullock’s Order is a reminder to litigants of the importance of adhering to the ground rules and of utilizing the ground rules strategically to maximize the probability of success. Here Complainant sought to introduce expert testimony in the form of a published article into evidence but Respondents successfully excluded the article from evidence by relying on ALJ Bullock’s ground rules.