By Eric Schweibenz
On September 1, 2009, ALJ E. James Gildea issued the public version of Order No. 21 (dated August 18, 2009) in Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing Same (Inv. No. 337-TA-666).  In the Order, ALJ Gildea denied a motion brought by third parties WorldGate Communications, Inc. and Senior Vice President of Engineering for WorldGate, Whitney Blackmon (collectively, “WorldGate”), seeking to quash or limit certain subpoenas served by Respondent Monolithic Power Systems, Inc. (“MPS”), and for attorneys’ fees and costs.

In support of its motion, WorldGate argued that the document and deposition subpoena directed to WorldGate (1) failed to provide sufficient time to comply; (2) exceeded the scope of permissible discovery since the subpoenas sought privileged information; (3) were overly broad and unduly burdensome; and (4) sought documents that could be obtained from parties in the Investigation.  The Commission Investigative Staff opposed WorldGate’s motion arguing that (1) it was not unreasonable for WorldGate to create a privilege log in connection with its response to MPS’ subpoenas; (2) the parties and WorldGate should work together to schedule a deposition for Mr. Blackmon and agree on a reasonable scope of searches for further document production; (3) MPS should assume the reasonable costs for any unusually burdensome document searches; and (4) WorldGate’s request for sanctions should be denied.  For its part, MPS opposed WorldGate’s motion arguing that (1) discovery from WorldGate was necessary since, in response to a subpoena from Complainants, WorldGate produced an unsolicited declaration from Mr. Blackmon relating to the functionality of an accused product; (2) its discovery requests relating to WorldGate are limited to the Blackmon Declaration and thus are not overly broad; (3) WorldGate’s prior production of materials was limited to a search for e-mail, and did not include paper documents; and (4) MPS’s discovery requests relating to WorldGate were relevant to the issue of potential patent misuse.

Regarding WorldGate’s argument that the issued subpoenas failed to provide sufficient time to comply, ALJ Gildea determined that although the subpoenas ordered documents to be produced on August 3, WorldGate contacted the ALJ’s attorney advisor on August 3 requesting and receiving permission to electronically file the instant motion on that day and WorldGate “did not indicate that there was any dispute with MPS with respect to the deadline for the motion to quash” and “did not request an extension beyond August 4 or otherwise suggest they had a right to file their motion to quash on August 5.”  Accordingly, ALJ Gildea declined to quash the document subpoena on “procedural grounds.”  ALJ Gildea also rejected WorldGate’s remaining arguments determining that the requested discovery was relevant to the investigation, and the subpoenas were not unreasonable and oppressive.  ALJ Gildea further determined that MPS “could do more to accommodate WorldGate’s concerns” with respect to drafting a privilege log and the scope and difficulty of a search for responsive documents within its possession.  Thus, ALJ Gildea recommended that WorldGate, MPS, and the Staff engage in “intensive, good faith efforts to resolve this dispute within ten (10) days of the date of this Order.”