By Eric Schweibenz
On March 26, 2012, ALJ Theodore R. Essex issued Order No. 13 in Certain Devices For Improving Uniformity Used In A Backlight Module And Components Thereof And Products Containing Same (Inv. No. 337-TA-805).  In the Order, ALJ Essex granted-in-part and denied-in-part Samsung Electronics America’s (“SEA”) motion to quash or limit Complainants Industrial Technology Research Institute’s and ITRI International’s (collectively “ITRI”) subpoena duces tecum and subpoena ad testificandum directed to SEA, a third party to the investigation.

According to the Order, ITRI’s document subpoena requested the production of “documents related to the design of Samsung-branded LCD products, as well as legal documents submitted in prior U.S. International Trade Commission Investigations to which SEA was not a party.”  ITRI’s deposition subpoena sought the production of witnesses having knowledge of the aforementioned topics.  In support of its motion, SEA argued that ITRI improperly seeks documents that are not in SEA’s possession, custody, or control, but that are in the sole possession, custody, or control of SEA’s South Korean parent company, Samsung Electronics Co., Ltd. (“Samsung Korea”).  Further, SEA argued that it cannot provide witnesses who are knowledgeable about the discovery sought in ITRI’s subpoena duces tecum.      

ITRI opposed the motion, asserting that “the subpoena seeks documents that are within SEA’s ‘possession, custody or control.’”  Specifically, ITRI noted that SEA must have within its possession, custody or control documents relating to the design of Samsung-branded LCD products and to the domestic industry positions taken during Inv. No. 337-TA-631 (the “631 investigation”) and Inv. No. 337-TA-782 (the “782 investigation”) because Samsung Korea, the complainant in those investigations, satisfied the domestic industry requirement through the activities of SEA.  Interestingly, this information is relevant to the current investigation because ITRI’s domestic industry arguments are “based on the activities of its licensee, Samsung Korea, and its subsidiaries, including SEA.”

After considering the arguments, ALJ Essex determined to grant-in-part and deny-in-part SEA’s motion.  The ALJ found that although “SEA as no legal right to demand any potentially responsive documents” from Samsung Korea, that “SEA has failed to show that it cannot practically obtain said documents” from its parent.  Specifically, the ALJ noted that because “SEA provides customer service and warranty service support for Samsung Korea relating to its LCD televisions,” it is “highly probable” that SEA has control over relevant documents in Samsung Korea’s possession, and that any such documents must be provided to ITRI.  ALJ Essex also found “SEA’s argument that documents related to its own domestic activities and investments are ‘likely’ in the control of … Samsung Korea,” to be “highly unpersuasive.”  Accordingly, the ALJ determined that “should SEA maintain its position that Samsung Korea is the only corporate entity in control of documents relating to SEA’s own activities upon which it based its domestic industry allegations, SEA shall submit a sworn affidavit stating such and explaining, in detail, the relationship between SEA and Samsung Korea… .”

With respect to ITRI’s subpoena ad testificandum, ALJ Essex determined that SEA shall make available for deposition any witnesses within its control having knowledge of Samsung-branded LCD products or documents relating to the domestic industry positions taken by Samsung Korea during the 631 or 782 investigations.