By Eric Schweibenz
On December 31, 2012, ALJ Robert K. Rogers, Jr issued Order No. 65 in Certain Incremental Dental Positioning Adjustment Appliances and Methods of Producing Same (Inc. No. 337-TA-562). 
In the Order, ALJ Bullock denied non-party Joseph Wisnewski’s motion to quash Complainant Align Technology, Inc.’s (“Align”) subpoena ad testificandum

As an initial matter, ALJ Rogers noted that the motion was filed in an untimely manner since it was filed after the December 28, 2012 deadline.

In support of his motion to quash, Wisnewski argued that the subpoena was unreasonably burdensome and unnecessary and that Align waived its right to seek live testimony from him when it withdrew a subpoena for his deposition in exchange for a written declaration.  Wisnewski also argued that participating as a witness at hearing would interfere with his completion of an important work-related deadline.  ALJ Rogers determined that the burden on Wiskewski would be minimal and that his testimony is necessary because “a written declaration is not a substitute for direct testimony and cross examination at the hearing absent a stipulation by all parties.”  Accordingly, ALJ Rogers determined that Wisnewski failed to meet his burden to show that the subpoena is unreasonably burdensome. 

Regarding Wisnewski’s allegation that Align was breaching an agreement not to require him to testify, ALJ Rogers determined that “there is nothing in the portions of the alleged ‘written agreement’ quoted in the motion that addresses testimony at the hearing.”  

Accordingly, ALJ Rogers denied Wisnewski’s motion to quash because it was filed one day late and because he “failed to demonstrate that the subpoena issued to him to appear at the hearing on this matter should be quashed based upon the applicable criteria.”