By Eric Schweibenz
On August 27, 2009, Chief ALJ Paul J. Luckern issued the public version of Order No. 11 (dated August 26) in Certain Adjustable Keyboard Support Systems and Components Thereof (Inv. No. 337-TA-670) relating to Complainant Humanscale Corp.’s (“Humanscale”) motion to quash third party subpoenas to Humanscale’s attorneys, Alston & Byrd LLP (“A&B”) and Bryan Cave LLP (“Cave”).  In the Order, ALJ Luckern quashed the subpoena to Cave and ordered A&B to either comply with the subpoena or file a motion to quash.

In support of its motion to quash, Humanscale argued that the requested documents were privileged and any non-privileged documents are either not relevant to the issues in the investigation or already in the possession of Respondents CompX International, Inc. and Waterloo Furniture Corportation Ltd. (collectively, “CompX”).  In opposition, CompX argued that (1) Humanscale failed to meet and confer prior to filing its motion to quash; (2) CompX did not want any Humanscale documents properly protected by privilege; (3) Humanscale had no standing to object to the third party subpoenas; and (4) the requested documents were relevant to the instant investigation.  For its part, the Commission Investigative Staff supported Humanscale’s motion to quash arguing that (1) the requested documents were already in the possession of CompX or identified on a privilege log; and (2) the scope of the subject document requests were overly broad and went beyond the scope of the investigation.  Third party Cave filed a response to and notice of joinder to Humanscale’s motion to quash.

ALJ Luckern determined that “a party to the litigation may move to quash a subpoena to a non-party if the subpoena impacts the party’s legitimate interest or personal rights.”  ALJ Luckern further found that in determining whether to quash a subpoena, the following three factors have been weighed:  (1) the relevance of the discovery sought; (2) the need of the requesting party; and (3) the potential hardship to the party responding to the subpoena.

ALJ Luckern determined that Humanscale lacked standing to quash the subpoenas to A&B and Cave since “the subpoenas pose no threat to any legitimate interest of [Humanscale]” and in view of “the repeated representations of [CompX’s] counsel that [CompX did] not want [Humanscale’s] privileged documents.”

Regarding the subpoena to Cave, ALJ Luckern determined that (1) Cave did not demonstrate that the information requested is not relevant to the investigation; (2) CompX did not show that CompX needed most of the documents requested; and (3) substantial hardship may occur if Cave was forced to respond to the subpoena.  Accordingly, ALJ Luckern quashed the subpoena to Cave since “of the three factors that must be weighed with respect to a motion to quash, one goes against quashing the subpoena (relevance) while the remaining two (the need of the requesting party and the potential hardship to the party responding to the subpoena) are in favor of quashing the subpoena.”

With respect to the subpoena to A&B, ALJ Luckern gave A&B until September 9, 2009 “to comply with the subpoena in issue or to file a motion to quash.”