On May 29, 2012, ALJ Theodore R. Essex issued Order No. 12 denying Complainant ChriMar Systems, Inc. d/b/a CMS Technologies’ (“ChriMar”) motion to strike non-party Google Inc.’s (“Google”) public interest submission and to preclude Google from participating further in the investigation or, in the alternative, to certify to the commission a request for judicial enforcement of a subpoena to Google in Certain Communication Equipment, Components Thereof, and Products Containing the Same, Including Power Over Ethernet Telephones, Switches, Wireless Access Points, Routers and Other Devices Used in LANs, and Cameras (Inv. No. 337-TA-817).

By way of background, the Commission instituted this investigation on December 7, 2011 based on ChriMar’s complaint of November 1, 2011.  See our December 10, 2011 post for more details.  On November 7, 2011, the Commission published a notice in the Federal Register seeking comments from the public regarding this investigation and the “public interest factors” outlined in Section 337.  On November 15, 2011, Google filed a five-page response to the request which, according to the Order, stated that “the Commission should seriously consider not issuing an exclusion order in this investigation because it did not appear that ChriMar or its licensees could meet the demand for the products at issue in the investigation,” and that the Commission should not allow ChriMar to obtain an exclusion order when they otherwise would not be able to obtain an injunction in district court under eBay Inc. v. MercExchange LLC, 547 U.S. 388 (2006).  In response, ChriMar served a subpoena on Google seeking documents and deposition testimony related to Google’s public interest statement.  On March 8, 2012, ChriMar filed the instant motion.  Respondents, Google, and the Commission Investigative Staff (“OUII”) all opposed ChriMar’s motion.  Non-party NVIDIA Corporation also filed a notice joining Google’s opposition.

According to the Order, ChriMar argued that Google had inserted itself into the investigation by filing a public interest statement and, as a result, that ChriMar is entitled to take discovery from Google.  Because Google did not comply with the requested discovery, ChriMar contended that the ALJ should strike Google’s response, per Commission Rule 210.33 and the ALJ’s inherent authority to manage its docket or, in the alternative, that ALJ Essex should certify to the Commission a request for judicial enforcement of the subpoena.  In opposition, Google argued that its submission of a five-page public interest statement cannot justify ChriMar’s “sweeping discovery demands,” and that allowing such broad discovery would undermine the Commission’s stated policy of encouraging public interest submissions.  Google also noted that ChriMar cited no authority in support of its position and that neither Commission Rule 210.33 nor the ALJ’s inherent authority to manage its docket supports ChriMar’s motion to strike.  Both Respondents and the OUII echoed Google’s arguments and concerns in their oppositions.

Having considered the parties arguments and motion papers, ALJ Essex denied ChriMar’s motion to strike and its alternative request for judicial enforcement of the subpoena.  As an initial matter, the ALJ determined that Google’s submission raised no issues warranting discovery because it was based entirely on public facts and raised straightforward arguments concerning the Supreme Court’s eBay decision.  Further, ALJ Essex noted that even assuming some discovery was warranted, ChriMar’s request went “so far beyond any relevance to this investigation that [its request] border[ed] on bad faith.”  The ALJ also noted that Google did not “interject” itself into the investigation, as ChriMar contended, but simply responded to an invitation by the Commission “to provide commentary on this investigation and its impact on the public interest.”

Lastly, ALJ Essex denied ChriMar’s request to certify to the Commission a request for judicial enforcement of the subpoena because, as noted above, the majority of requested discovery bore no relationship to the investigation and any relevant information sought by ChriMar could be obtained from publicly available resources.