UNITED STATES OF AMERICA 11 21 2014 BEFORE THE FEDERAL TRADE COMMISSION OFFICE OF ADMINISTRATIVE LAW JUDGES ____________________________________ ) In the Matter of ) PUBLIC ) LabMD, Inc., ) Docket No. 9357 a corporation, ) Respondent. ) ) ___________________________________ ) COMPLAINT COUNSEL’S MOTION FOR LEAVE TO ISSUE SUBPOENAS TO RICHARD WALLACE Complaint Counsel respectfully moves for leave to issue subpoenas to Respondent’s witness Richard Wallace, seeking evidence concerning his anticipated testimony, including evidence regarding the alleged misconduct by Complaint Counsel and Mr. Wallace’s alleged falsification of evidence. This discovery is appropriate at this time to facilitate the efficient examination of Mr. Wallace. Complaint Counsel did not have any reason to take discovery regarding Mr. Wallace’s anticipated testimony during discovery or at any point prior to the attorney proffer on June 12, 2014. Complaint Counsel met and conferred with counsel for Respondent on this motion, but was unable to reach agreement. See Meet and Confer Statement (attached as Exhibit A). The requested subpoenas are necessary to allow Complaint Counsel to prepare for the cross-examination of Mr. Wallace and would serve the interests of justice and facilitate the disposition of this case on the merits. BACKGROUND The 1718 File, a LabMD document containing the sensitive personal information of thousands of consumers, was found on a peer-to-peer network by Tiversa Holding Corporation PUBLIC (“Tiversa”). During discovery in this action, Robert Boback testified, in his deposition as Tiversa’s Rule 3.33 designee, that the 1718 File had been found at four IP addresses, none of which were LabMD. CX0703 (Boback, Tiversa Designee, Dep. at 50-53). These four IP addresses were listed in a document, CX0019, produced to Complaint Counsel. Mr. Boback testified that Tiversa created CX0019 in the regular course of business. CX0703 (Boback, Tiversa Designee, Dep. at 50-51). No question about the authenticity of CX0019 or Mr. Wallace’s role in generating the document was raised by either party during fact discovery, or at any point prior to the June 12, 2014 evidentiary hearing.1 Respondent’s Final Witness List states only that Mr. Wallace will testify about “Tiversa’s communications with” the FTC and “facts relating to” the 1718 File but provides no detail about the nature of those “communications” or “facts.” Resp’t Final Witness List (Apr. 9, 2014) (attached as Exhibit B) at 4-5. Neither party deposed Mr. Wallace.2 On May 27, 2014, Respondent issued a trial subpoena to Mr. Wallace to testify at the evidentiary hearing in this matter. During the evidentiary hearing on May 30, 2014, counsel for 1 See, e.g., JX0001 (Joint Stipulations of Fact, Law, and Authenticity) at 4 (stipulating to authenticity of all Complaint Counsel exhibits other than CX0451); Compl., LabMD, Inc. v. Fed. Trade Comm’n, Docket No. 1:14-cv-00810-WSD (N.D. Ga. Mar. 20, 2014) (not alleging proffered misconduct or fabrication of CX0019); Resp’t LabMD’s Pre-Trial Brief (May 9, 2014) at 5 n.4 (not raising Mr. Wallace or fabrication of CX0019); RX533 (Expert Report of Adam Fisk) at 23-24 (proposing reasons why 1718 File might be found at San Diego IP address). 2 Respondent issued a deposition subpoena to Richard Wallace, an employee of Tiversa, on January 30, 2014 and, in consultation with counsel for Tiversa, scheduled his deposition for March 4, 2014. See 2014 email correspondence between J. Shaw and W. Sherman regarding Wallace Deposition (attached as Exhibit C) at 4. However, on February 26, 2014, counsel for Tiversa notified the parties that Mr. Wallace would be unable to attend due to an unexpected medical issue. See id. at 3-4. Respondent contacted counsel for Tiversa on April 3, 2014 to arrange Mr. Wallace’s deposition after close of discovery, but was informed that Mr. Wallace was no longer a Tiversa employee. See Ex. C at 1. The parties later learned that Tiversa discharged Mr. Wallace for cause on February 28, 2014. RX541 (Boback, Dep. at 101). Thereafter, the parties did not depose Mr. Wallace. See Trial Tr. at 1227. 2 PUBLIC Mr. Wallace advised the Court that Mr. Wallace would invoke his Fifth Amendment rights against self-incrimination in response to any substantive questions if called to testify in this matter. Trial Tr. at 1243-45. Counsel for Mr. Wallace stated that Mr. Wallace was seeking immunity from the United States House of Representatives Committee on Oversight and Government Reform (“Oversight Committee”) for testimony before that Committee. Trial Tr. at 1249. When Mr. Wallace appeared on June 12, 2014 and invoked his Fifth Amendment rights, Respondent’s counsel offered a proffer of Mr. Wallace’s expected testimony. He stated that Mr. Wallace would testify that the 1718 File had been found only at LabMD, and that an attorney for Complaint Counsel visited Tiversa’s offices in October 2013 and told him that “it’s got to be found somewhere else,” whereupon Mr. Wallace wrote down four IP addresses, creating CX0019. Trial Tr. at 1293, in camera. Complaint Counsel requested that Respondent submit an application under Rule 3.39 for immunity for his testimony in this proceeding. See, e.g., Trial Tr. at 1303. Respondent’s counsel responded that such an application would be premature while the Oversight Committee was considering a related request. See, e.g., Trial Tr. at 1280. However, in the weeks that followed, the Oversight Committee did not grant Mr. Wallace immunity for his testimony. On August 5, 2014, Complaint Counsel renewed its application for Respondent to be required to file a Rule 3.39 request. On August 22, 2014, the Court ordered that Respondent file such a request within five days of a decision of the Oversight Committee declining to grant immunity that would cover Mr. Wallace’s testimony in this proceeding, or by October 1, 2014, whichever occurred first. On October 1, 2014, Respondent filed a motion under Rule 3.39(b) requesting an order requiring Mr. Wallace to testify in person in this proceeding and granting immunity to Mr. 3 PUBLIC Wallace with regard to such testimony. On October 9, 2014, the Court issued an Order requesting approval by the Attorney General for the issuance of an order requiring Mr. Wallace to testify and granting immunity. Following the request of immunity, both parties learned that Tiversa has alleged in its Pennsylvania state court complaint that Mr. Wallace sold his stock in Tiversa for over $250,000 at the same time he was making his accusations that Tiversa had engaged in improper conduct. See Verified Complaint filed in Court of Common Pleas of Allegheny County, Pennsylvania (attached as Exhibit D). Both parties also learned that Tiversa has at least two e-mails in its possession that it claims demonstrate the falsity of Mr. Wallace’s claim that he fabricated CX0019. On November 14, 2014, the Department of Justice approved the request for immunity for Mr. Wallace. ARGUMENT There is good cause for the Court to grant Complaint Counsel’s request for leave to issue subpoenas to Mr. Wallace, which will allow Complaint Counsel to prepare for Mr. Wallace’s testimony and facilitate the proceedings in this case.3 First, Complaint Counsel could not have reasonably anticipated the substance of Mr. Wallace’s expected testimony during discovery or at any point prior to the June 12, 2014 evidentiary hearing, or that he would testify contrary to any information given in the deposition of Tiversa’s Rule 3.33(c) designee. Second, this motion is not premature and is designed to expedite cross-examination of Mr. Wallace immediately 3 Complaint Counsel is requesting this discovery to facilitate the cross-examination of Mr. Wallace, not to develop its rebuttal case. However, depending on the substance of Mr. Wallace’s testimony, Complaint Counsel may renew its request for additional discovery, pursuant to the Court’s July 23, 2014 order, to gather the evidence necessary to rebut Wallace’s expected testimony. 4 PUBLIC following his direct testimony, and will serve the interests of justice by allowing Complaint Counsel to conduct a meaningful cross-examination. This is especially important in this case given the fact that Mr. Wallace is expected to make allegations of serious misconduct by Complaint Counsel. Fairness to the parties as well as the interests of justice and judicial economy require permitting this discovery at this time. I. THE COURT HAS AUTHORITY TO PERMIT THE REQUESTED DISCOVERY The Commission Rules of Practice provide the Court authority to permit additional discovery at this stage of the proceeding. Rule 3.21(c)(2) provides that “[t]he Administrative Law Judge may, upon a showing of good cause, grant a motion to extend any deadline or time specified in this scheduling order other than the date of the evidentiary hearing”; and Rule 3.41(b)(1) states that the Administrative Law Judge may “grant a reasonable recess at the end of a case-in-chief for the purpose of discovery deferred during the prehearing procedure if the Administrative Law Judge determines that such recess will materially expedite the ultimate disposition of the proceeding.” 16 C.F.R. §§ 3.21(c)(2), 3.41(b)(1). Furthermore, Rule 3.42(c) confers the Administrative Law Judge with the authority “to take all necessary action to avoid delay in the disposition of the proceedings,” which includes the power “[t]o issue subpoenas and orders requiring answer to questions,” and “to cause depositions to be taken.” 16 C.F.R. § 3.42(c), (c)(2)–(3). As discussed in Part III, infra, issuing the requested subpoenas at this stage will avoid delay in the disposition of the proceedings. In addition, because Mr.