In June, complainants filed four complainants with the Commission—Certain Portable Battery Jump Starters and Components Thereof (II), Inv. No. 337-TA-1359; Certain Semiconductor Devices and Products Containing the Same, Inv. No. 337-TA-1366; Certain Electronic Devices and Semiconductor Devices Having Wireless Communication Capabilities and Components Thereof, Dkt. No. 3684; and Certain Vaporizer Devices, Cartridges Used Therewith, and Components Thereof, Dkt. No. 3685. The Commission instituted two investigations in June, Inv. Nos. 337-TA-1365 and 337-TA-1366.

This month’s wrap-up reviews Judge Moore’s decision from the 1313 investigation, which denied a motion to compel complainant to produce samples for testing. Certain Botulinum Toxin Products and Processes for Manufacturing or Relating to Same, Inv. No. 337-TA-1313, Order No. 21 (June 2, 2023).

In the 1313 investigation, Complainant Medytox has alleged that the Hugel Respondents misappropriated Medytox’s trade secrets concerning botulinum neurotoxin (e.g., Botox). Specifically, Medytox has alleged that Hugel unlawfully obtained a sample of Medytox’s botulinum strain and used it to develop Hugel’s products. Medytox’s compliant avers that comparative testing and DNA analysis would show that Hugel misappropriated Medytox’s botulinum strain.

During discovery, Hugel requested samples of Medytox’s parent botulinum strain and a child botulinum strain to conduct testing that would presumably rebut Medytox’s misappropriation allegations. Because the testing contemplated is destructive, and because samples of the parent cell line are extremely valuable, Medytox objected to Hugel’s requests. Medytox offered that Hugel could test two child strains that are nearly identical to the parent strain, and Medytox also offered its own sequencing and raw data on the parent strain. The parties reached an impasse, and Hugel moved to compel Medytox to produce samples of the parent strain.

Judge Moore denied Hugel’s motion. See Order No. 21 at 3–4. The order reasons that the burden on Medytox outweighed the likely benefit of the discovery sought, particularly given that Hugel had access to alternative samples and Medytox’s own sequencing and raw data. The order also reasons that Hugel’s desire to conduct its own testing in view of concerns over the accuracy of Medytox’s methodology was speculative “at this stage of the investigation.”

Notably, in assessing burden, the order focuses on qualitative burdens rather than economic values, such as the sales price of a given product or a lost sales opportunity. Thus, the order serves as a reminder that parties objecting to requests for production that involve destructive testing may want to articulate qualitative burdens, as well as quantitative burdens, when responding to the relevant request.