On March 18, 2009, ALJ Robert K. Rogers, Jr. issued the public version of Order No. 10 in Certain Semiconductor Integrated Circuits and Products Containing Same (337-TA-665).  In the Order, ALJ Rogers granted-in-part and denied-in-part non-party Chartered Semiconductor Manufacturing Inc.’s (“Chartered USA”) motion to quash and/or limit a subpoena served by complainant Qimonda.

ALJ Rogers determined that Qimonda’s definition of “Accused Products” “fails to meet the standard required by Commission Rule 210.32(a)(2), because it fails to describe with any precision the ‘Accused Products’ that are the subject of the documents sought in the subpoena.”  Rather than using “generic semiconductor chip terms,” ALJ Rogers suggested that Qimonda define the accused products “by listing specific structural features, circuit designs, and/or fabrication processes found in the accused products that are already defined in the complaint and that Qimonda believes are relevant to the case at hand.”  ALJ Rogers further determined that the subpoena as written subjected non-party Chartered USA to an undue burden since it would not lead to the production of relevant evidence.  Thus, ALJ Rogers quashed a number of document requests, deposition topics, and inspection requests because of Qimonda’s overly broad definition of “Accused Products.”

With respect to the issue of Chartered USA’s control over technical documents sought in connection with Qimonda’s subpoena, ALJ Rogers found that while Chartered USA was a distinct corporate entity and not the alter ego of its parent Chartered Semiconductor Mfg., Ltd. in Singapore, “Chartered USA has the practical ability to obtain some level of technical documents regarding its products.”  ALJ Rogers based this determination on various articles and press releases offered by Qimonda which stated that Chartered USA was involved in both field engineering support and the technical aspects of the chip design process.

Lastly, ALJ Rogers rejected Chartered USA’s motion to quash Qimonda’s request for documents relating to all communications between Chartered USA and the respondents relating to the instant Section 337 investigation.  ALJ Rogers distinguished the case law cited by Chartered USA in its motion that stands for the proposition that documents should be sought from a party to a litigation before the same documents are sought from a non-party, because, according to ALJ Rogers, these cases involved district court proceedings and did not involve the “tight procedural schedule peculiar to the [ITC].”