By Eric Schweibenz
On December 13, 2013, ALJ David P. Shaw issued Order No. 33 in Certain Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and Mobile Phones, Components Thereof and Associated Software (Inv. No. 337-TA-882).  In the Order, ALJ Shaw denied non-party sMedio America Inc.’s (“SMA”) motion to quash a subpoena ad testificandum that had been issued based on the application of Complainant Black Hills Media, LLC (“BHM”).  ALJ Shaw also denied BHM’s cross-motion to certify a request to the Commission for enforcement of the subpoena ad testificandum, as well as for the enforcement of a subpoena duces tecum.

According to the Order, SMA argued that the subpoena ad testificandum should be quashed because the information sought by BHM relates to technologies developed and manufactured by SMA’s parent company sMedio Inc. and sister company sMedio Technology (Shanghai) Inc.  SMA argued that it does not control its parent and sister companies and that it has no knowledge concerning the documents, things, or information created by those companies that relate to BHM’s subpoena.  Accordingly, SMA argued that requiring it to provide a witness in response to BHM’s subpoena would be moot and unduly burdensome to SMA.

After considering the arguments, ALJ Shaw determined to deny the motion to quash and order that SMA produce a witness for deposition.  In particular, the ALJ found that SMA’s argument that it does not have possession or control of responsive information does not insulate it from its obligation to offer a witness for deposition in response to BHM’s subpoena.  Specifically, BHM is still entitled to examine the bases for SMA’s claims that it does not have the information.  However, ALJ Shaw also denied BHM’s cross-motion to certify a request for enforcement of the subpoena, finding that it would not be warranted unless BHM elicited testimony at SMA’s deposition to show that SMA does in fact have documents responsive to the subpoena.