On May 29, 2012, ALJ Essex issued Order No. 13, granting-in-part and denying-in-part non-party Broadcom Corporation’s motion to quash or limit a subpoena duces tecum and ad testificandum 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).  The subpoena was issued by Complainant ChriMar Systems, Inc. d/b/a CMS Technologies.  Broadcom sought to quash or limit the subpoena and to shift costs of compliance to ChriMar.  Non-party NVIDIA filed a notice of joinder with the motion.

The subpoena arises, in part, from a recent change in Commission rules.  After ChriMar filed its Complaint, the Commission, in accordance with the new rules, published a solicitation for comments regarding whether a cease and desist order or exclusion order would negatively effect the public health or welfare or competitive conditions in the United States.  Broadcom and NVIDIA, who both supply chips to the respondents, jointly submitted a statement arguing that the public interest disfavors investigations requested by licensing driven entities that implicated standard-compliant products.

ChriMar subsequently issued a subpoena duces tecum and ad testificandum seeking information pertaining to Broadcom’s public interest statement.  Broadcom brought a motion to quash or limit the subpoena and for costs, arguing that the subpoena was simply to punish it for filing a public interest statement.  Broadcom also argued some of the categories were overly broad (seeking “all documents” or “all communications”) and sought privileged information.

ChriMar agreed to limit certain categories, but responded that it was entitled to discovery because Broadcom is a supplier to the respondents.  As to the categories relating to the public interest statement, ChriMar argued they were relevant to Broadcom’s objectivity and credibility.  The Commission Investigative Staff urged the ALJ to deny the motion.  While the Staff agreed that filing a public interest statement alone should not subject a company to discovery, the discovery requests were narrowly tailored and directed to a supplier.

ALJ Essex accepted ChriMar’s agreed-upon limitations.  He then quashed the portions of the subpoena relating to detecting potential sources of bias.  ALJ Essex agreed with Broadcom that some of the requests were vague and overly broad (including those seeking “all” documents or communications).  He ordered ChriMar and Broadcom to meet and confer to set appropriate limits on discovery.  He then indicated that he was inclined to grant costs for the overly broad categories, but would not rule on the issue until the parties had worked out the scope of the discovery sought.