On July 24, 2012, ALJ Thomas B. Pender issued Order No. 9 in Certain Computing Devices With Associated Instruction Sets And Software (Inv. No. 337-TA-812) denying non-party ARM, Inc.’s (“ARM”) motion to quash or limit a subpoena duces tecum and ad testificandum served upon it by Complainants VIA Technologies, Inc., IP-First, LLC, and Centaur Technology, Inc. (collectively, “VIA”).

According to the Order, in support of its motion ARM argued that the subpoenas posed an undue burden.  Specifically, ARM asserted that the information sought would not be probative of how ARM products function, but rather would provide only “secondary” evidence.  According to ARM, the sole authoritative source for understanding how its products function is the RTL code. As to the testimony sought, ARM argued such testimony would be duplicative of that produced by Respondent Apple, Inc. (“Apple”).  In addition, ARM alleged that the subpoenas served February 23, 2012 were served too late in the discovery process to be practically enforced.  VIA opposed ARM’s motion, arguing that the testimony and documents would aid in understanding how the products operate and, in comparison to the RTL code, would provide higher-level details and simplifications of design. VIA also asserted that information regarding the Cortex-A9 was not located by Apple, thus such information would not be duplicative.  As to the timeliness of service and breadth of the requests, VIA noted that fact discovery did not close until April 2, 2012 and that the parties had negotiated and narrowed the scope of the information requested.

ALJ Pender denied VIA’s motion, noting the nearly six-week period from service until the end of fact discovery and stating that the parties’ ability to negotiate and limit the scope of the subpoenas suggested that ARM would not be unduly burdened.  The ALJ also determined that the subpoenas sought non-duplicative, probative, and relevant evidence, reasoning that the information sought was unavailable to Apple and/or information which would further VIA’s understanding of the manner in which the ARM products function.  Accordingtly, ALJ Pender denied non-party ARM’s motion to quash.