On June 5, 2009, ALJ Robert K. Rogers, Jr. issued Order No. 16 in Certain Non-Shellfish Derived Glucosamine and Products Containing Same (337-TA-668).  In the Order, ALJ Rogers granted-in-part and denied-in-part TSI Health Sciences, Inc.’s (“TSI”) motion to quash a subpoena served by respondent Nantong Foreign Trade Medicines & Health Products Co., Ltd. (“NFT”).

According to the Order, TSI was previously a respondent in the investigation, but settled with complainant Cargill, Incorporated (“Cargill”).  Based on ALJ Rogers’ previously issued Order No. 11, the remaining respondents in the investigation did not receive the full settlement agreement between Cargill and TSI.

In connection with its motion to quash, TSI argued that NFT’s subpoena improperly sought documents relating to the settlement between TSI and Cargill.  Specifically, TSI asserted that “the same reasoning that applied in deciding the joint motion not to serve the full settlement agreement on non-settling respondents applies here” and NFT had “not shown a legitimate need for the documents that would outweigh the policy supporting the non-disclosure of confidential settlement documents.”

In the Order, ALJ Rogers reviewed five document requests set forth in NFT’s subpoena.  Regarding document request nos. 1-3, ALJ Rogers determined that such requests did not relate to the settlement agreement between TSI and Cargill, but rather they sought documents regarding “prior art and TSI’s defenses against Cargill’s infringement claims.”  ALJ Rogers found that “these requests seek information that is relevant and/or reasonably calculated to lead to the discovery of admissible evidence.” 

According to the Order, NFT withdrew document request no. 4 in light of Order No. 11 because this request specifically sought documents relating to the settlement agreement between TSI and Cargill.

With respect to document request no. 5, ALJ Rogers determined that this request was “inappropriate in light of Order No. 11” since it sought all communications between TSI and Cargill.  ALJ Rogers further determined that even if document request no. 5 was limited to non-privileged communications that did not reveal the terms of the settlement agreement between TSI and Cargill, such request would still be overbroad since it was “in no way limited to production of documents relevant to this investigation or reasonably calculated to lead to the discovery of admissible evidence.”