By Eric Schweibenz
On June 15, 2010, ALJ E. James Gildea issued the public version of Order No. 7 (dated June 2, 2010) in Certain Digital Set-Top Boxes and Components Thereof (Inv. No. 337-TA-712).  In the Order, ALJ Gildea denied Non-party ActiveVideo Networks, Inc.’s (“Nonparty”) motion to quash the subpoena duces tecum and ad testificandum served by Complainants Verizon Communications Inc. and Verizon Services Corp. (collectively, “Verizon”).

In its motion, Nonparty asserted that the subpoena “(i) fails to provide Nonparty with advance notice; (ii) fails to provide Nonparty with sufficient time to comply; (iii) is ‘overly broad and unduly burdensome’ and seeks documents of little or no relevance; (iv) exceeds the scope of permissible discovery because it requests information and documents protected by the attorney-client privilege, work product doctrine, and/or the joint defense common interest ‘privilege’; and (v) seeks documents and information that contain confidential business information or that contain the confidential material of other persons or entities.”

In its opposition, Verizon asserted that Nonparty has information “highly relevant” to the investigation since it provides Respondent Cablevision Systems Corp. (“Cablevision”) with software and/or hardware that is used in Cablevision’s accused products and that such information is not likely to be available from Cablevision.  Further, Verizon asserted, inter alia, that Nonparty fails to explain how the protections with respect to privileged or confidential information that are available in the subpoena are inadequate.  Verizon also noted that Nonparty agreed that it “likely would produce responsive documents.”

In denying Nonparty’s motion, ALJ Gildea determined that Nonparty had not met its burden to show that Verizon’s subpoenas were unreasonable and oppressive.  In this regard, ALJ Gildea found that Verizon and Nonparty “have conferred amongst themselves regarding the scope of requested discovery and protections for highly confidential information” and “appeared to have reached (or are close to reaching) some agreement.”  Further, ALJ Gildea found that “Nonparty’s other arguments with respect to advance notice and inadequate time to respond are not generally grounds for quashing a subpoena” and that such arguments were “unconvincing since Nonparty made no effort to contact Verizon to request an extension prior to filing its motion.”   Finally, ALJ Gildea denied Nonparty’s requests for all costs incurred in responding to the subpoenas and that Verizon first review Nonparty’s documents produced by Cablevision before it seeks the identification of additional documents.