UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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` In the Matter of
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`CERTAIN AUDIO PROCESSING
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`Inv. N0. 337-TA-1026
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`HARDWARE, SOFTWARE, AND
`PRODUCTS CONTAINING THE SAME
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`'
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`-
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`ORDER NO. 51:
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`GRANTING MOTION OF NON-PARTY LIBBIE NICHOLSON TO
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`QUASH SUBPOENA
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`(August 8, 2017)
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`On August 2, 2017, non—party Libbie Nicholson filed a motion to quash a subpoena ad
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`testificandum served upon her by Complainant Andrea Electronics Corp. (“Andrea”) (Motion
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`Docket No. 1026—056). Filed with the motion were a memorandum in support, a declaration by
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`Ms. Nicholson, and a declaration by an attorney, Keith Slenkovich, attaching three exhibits. The
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`deadline for responses was shortened pursuant to Order No. 48 (Aug. 3, 2017), and Andrea filed
`a response in opposition on August 7, 2017.
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`Ms. Nicholson was deposed in this investigation on April 6, 2017, pursuant to a subpoena
`served by Andrea on her employer, Integrated Device Technology (“IDT”). See Mot. Ex. _C.1
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`On July 10, 2017, Andrea served a trial subpoena on Ms. Nicholson to testify at the hearing in
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`this investigation. Mot. EX. A. The deadline for filing a motion to quash or limit that subpoena
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`was extended pursuant to Order No. 45 (July 24, 2017).
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`Ms. Nicholson submits that it would be burdensome for her to travel to attend the hearing
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`in this investigation. Nicholson Decl. at W 2, 4. She argues that any relevant evidence has been
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`1 Ms. Nicholson was also deposed in response to a subpoena from Andrea in an earlier.
`investigation, Inv. No. 337-TA-949. See Mot. EX. B.
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`‘ provided in her depositiontestimony, and it is therefore unnecessary for her to appear at the
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`1 hearing. Mot. Mem. at 5-6.2 Andrea submits that Ms. Nicholson’s testimony is relevant to
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`secondary considerations of non-obviousness. Andrea Opp. at 2. Andrea agrees with
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`Ms. Nicholson that admitting her prior deposition testimony would be preferable, but Andrea did
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`not make any such designations by the deadline for exchanging proposed direct exhibits—
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`deposition designations would now be Considered untimely under the Ground Rules. Id. at 2-4;
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`see Order No. 2 at 22-, Ground Rule 9.4.14.2 (“Each designated transcript shall be assigned an ‘
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`exhibit number and shall be exchanged by the offering party at the same time as direct witness
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`statements”).
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`In these circumstances, it is appropriate to quash the subpoena and admit
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`Ms. Nicholson’s deposition transcript in lieu of her live testimony at the hearing. The factual
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`basis for Ms. Nicholson’s testimony does not appear to be contested, and her testimony is only
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`relevant to the. issue of secondary considerations of non-obviousness. See Respondents’ Pre-
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`Hearing Brief at 403. Both Andrea and Ms. Nicholson agree that deposition designations are
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`preferable to live testimony, and Ms. Nicholson has shown that there would be significant
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`hardship for her to travel to the hearing.
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`-Allowing Andrea to designate Ms. Nicholson’s deposition testimony only two weeks
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`before the hearing is contrary to the {Procedural Schedule and Ground Rule 9.4.14.2, but
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`admitting the transcript is preferable to compelling her attendance at the hearing. A third party
`should notbe burdened because ofAndrea’s failure to comply with the. Ground Rules. Because
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`the subpoena is quashed, her deposition transcript is admissible pursuant to Commission Rule
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`210.28(h)(3)(iv), and Andrea shall be allowed to serve deposition designations out of time.
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`2 Ms. Nicholson also raises an argument about the proper service of the subpoena, Mot. Mem. at
`4—5, but Ms. Nicholson acknowledged in her motion for an extension of time that her counsel
`was served, and any prejudice was alleviated by the extension of time. See Order No. 45.
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`For the reasons discussed above, Motion Docket No. 1026—056 is hereby GRANTED.
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`The subpoena to Ms. Nicholson is hereby quashed, and Andrea is granted leave to serve
`designations ofMs. Nicholson’s deposition transcript in this investigation no later than Friday,
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`August 11, 2017.3 Respondents will be allowed to make counter-designations and may raise
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`objections to Andrea’s designations by filing supplemental objections no later than Tuesday,
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`August 15, 2017.
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`SO ORDERED.
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`QC):
`Dee Lord
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`Administrative Law Judge
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`3 To mitigate the prejudice to Respondents, Andrea will not be allowed to designate the transcript
`of Ms. Nicholson’s deposition from Inv. No. 337-TA-949, where Respondents were not
`repreSented.
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`'
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`

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`CERTAIN AUDIO PROCESSING HARDWARE,
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`Inv. No. 337-TA-1026
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`SOFTWARE, AND PRODUCTS CONTAINING THE SAME
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`PUBLIC CERTIFICATE OF SERVICE
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`1, Lisa R. Barton, hereby certify that the attached ORDER has been served by hand upon
`the Commission Investigative Attorney, Whitney Winston, Esq., and the following parties as
`indicated, on 8/8/2017 *
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`
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`Lisa R. arton, Secretary
`US. International Trade Commission
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`500 E Street, SW, Room 112
`Washington, DC 20436
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`On Behalf of Complainants Andrea Electronics Corp.:
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`Goutam Patnaik, Esq.
`PEPPER HAMILTON LLP
`600 Fourteenth Street, NW.
`Washington, DC 20005-2004
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`1:] Via Hand Delivery
`1:] Via Express Delivery
`Via First Class Mail
`’D Other.
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`‘
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`On Behalf of Respondents Samsung Electronics C0., Ltd. and Samsung Electronics
`America, Inc.:
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`Maureen F. Browne
`COVINGTON & BURLING LLP
`One CityCenter, 850 Tenth Street, NW
`Washington, DC 200001—4956
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`On Behalf of Respondent Apple Inc.:
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`Ching-Lee Fukuda
`SIDLEY AUSTIN LLP
`787 Seventh Avenue
`New York, NY 10019 I
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`I
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`,
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`.
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`' C] Via Hand Delivery '
`E] Via Express Delivery
`E Via First Class Mail
`D Other.
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`'
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`[3 Via Hand Delivery
`1:] Via Express Delivery
`E Via First Class Mail
`[:1 Other;
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`

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`CERTAIN AUDIO PROCESSING HARDWARE,
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`Inv. N0. 337-TA-1026
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`SOFTWARE, AND PRODUCTS CONTAINING THE SAME
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`'
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`Certificate of Service — Page 2
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`On Behalf of Non-Parfl Libbie Nicholson:
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`Keith Slenkovich
`.WILMER CUTLER PICKERING HALE AND DORR, LLP
`950 Page M111 Road
`Palo Alto, CA 94304
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`CI Via Hand Delivery
`[j Via Express Delivery
`@Via First Class Mail
`D Other:
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`