By Eric Schweibenz
On February 27, 2009, ALJ Carl C. Charneski issued Order No. 15 in Certain Cast Steel Railway Wheels, Certain Processes for Manufacturing or Relating to Same and Certain Products Containing Same (337-TA-655).  In the Order, ALJ Charneski denied non-party Westinghouse Air Brake Technologies Corporation’s (Wabtec) motion to quash a subpoena duces tecum and ad testificandum served by complainant Amsted Industries Incorporated (Amsted). 

According to the Order, the subpoena at issue requested that Wabtec produce documents responsive to fourteen categories and that Wabtec present a representative to testify at a deposition on twelve topics. 

According to the Order, Wabtec sought to have the subpoena quashed on four separate grounds: (1) relevancy; (2) prior unsuccessful requests to respondent Standard Car Truck Company, Inc. (SCT); (3) privilege; and (4) publicly available documents.

Regarding relevancy, Wabtec argued, according to the Order, that each of Amsted’s requests for documents and deposition testimony are directed to Wabtec’s acquisition of SCT and thus are irrelevant.  ALJ Charneski disagreed and determined that Wabtec “failed to appreciate the scope of the issues that must be decided in this investigation, and the value of discovery that could be obtained through the subpoena.”  ALJ Charneski further noted that information relating to Wabtec’s acquisition of SCT could be relevant to Amsted’s allegations of misappropriation of trade secrets and any Wabtec evaluation of the relevant market prior to its purchase of SCT could be relevant to Amsted’s requirement to prove “substantial injury to a domestic industry.”

With respect to Amsted’s prior unsuccessful requests to respondent SCT, ALJ Charneski determined that Amsted was free to avoid a discovery dispute with SCT by obtaining similar documents and information from Wabtec.  ALJ Charneski also determined that no authority exists to deny Amsted the opportunity to compare and test the accuracy of documents and testimony obtained from different sources.

Regarding privilege, ALJ Charneski noted that Amsted’s subpoena did not request production of documents properly withheld under claims of privilege and the subpoena includes instructions for making a list of withheld privileged documents.

Finally, ALJ Charneski rejected Wabtec’s argument regarding publicly available documents since Wabtec did not specify which documents requested by Amsted were purportedly publicly available.