By Eric Schweibenz
On September 26, 2012, Chief ALJ Charles E. Bullock issued the public version of Order No. 49 (dated September 11, 2012) granting non-party Jeffrey S. Ginsberg’s motion to quash Respondents’ subpoena ad testificandum in Certain Wiper Blades (Inv. No. 337-TA-816).

According to the Order, Mr. Ginsberg (trial counsel for Complainant Robert Bosch LLC) moved to quash the subpoena issued to him by Respondents ADM21 Col, Ltd. and ADM21 Co. (North America) Ltd. (collectively, “ADM”).  Mr. Ginsberg argued that ADM could not establish that “(i) no other means exist to obtain the evidence, (ii) the information sought is relevant and not privileged, and (iii) the information is crucial to the preparation of the case,” as required to justify a deposition of opposing counsel.  In particular, Mr. Ginsberg argued that the information sought by ADM’s subpoena had already been obtained through previous deposition testimony given by Mr. Ginsberg in co-pending litigation and, to the extent ADM sought additional information beyond his previous testimony, that such information is protected from disclosure by the attorney-client privilege or the work product doctrine.

In opposition, ADM contended that newly discovered facts necessitated a second deposition because Mr. Ginsberg is the only witness able to testify regarding these facts.  Further, ADM argued that Mr. Ginsberg’s claims of attorney-client privilege or work product protection are belied by the fact that the subject communications were made in the presence of third-parties, thereby preventing the privilege from attaching, or that any alleged privilege/protection was subsequently waived by Mr. Ginsberg. 

The Commission Investigative Staff (“OUII”) filed a response in support of Mr. Ginsberg’s motion to quash, stating that “the testimony sought by the subpoena is irrelevant, privileged, or duplicative of other discovery.”  In particular, OUII asserted that “Mr. Ginsberg’s knowledge of rules of professional conduct is not relevant to [ADM’s] unclean hands defense,” and that, contrary to ADM’s assertions, ADM has already obtained testimony regarding each of the topics in its deposition notice. 

Having considered the parties and OUII’s arguments, ALJ Bullock determined that ADM did not meet the standard for deposing opposing counsel, agreeing with Mr. Ginsberg and OUII that the testimony sought by ADM is irrelevant to ADM’s claims or defenses, privileged, duplicative of other discovery, and may be obtained by other means short of deposing counsel.