Soetaert v. Kansas City Coca Cola Bottling Co., 16 F.R.D. 1, 2 (W. D. Mo. 1954) (citations omitted). The General Counsel’s power to request “evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question,” 29 U.S.C. §161(1), imposes the same implicit limitation: the evidence must already exist (or else it cannot yet “relate[]” to anything). 2.

To the contrary, the Act specifically provides: For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it ... [t]he Board shall issue ... subp[ o ]enas requiring the attendance and testimony of witnesses or the production of any evidence in such proceedings or investigation requested in such application. 25 29 u.s.c. § 161(1). 26 As for Mr. Charney's insistence that subpoenas duces tecum are inherently 27 limited to the production of documents and do not compel testimony, that is absurd.

Rite Aid failed to challenge EEOC’s subpoena properly so its petition must fail. Pursuant to 42 U.S.C. § 2000e-9 (incorporating 29 U.S.C. § 161) and 29 C.F.R. § 1601.16(b)(1), a Case 1:12-mc-00055-P1 Document 10 Filed 03/19/12 Page 8 of 17 – 7 – recipient of an EEOC subpoena who does not intend to comply must petition EEOC to revoke or modify the subpoena within five days of service of the subpoena.

The NLRB cannot cite any authority stating that a follow-up letter is sufficient to constitute a proper subpoena to appear. See also 29 U.S.C. § 161(4) (“Complaints, orders, and other process and papers of the Board ... may be served either personally or by registered or certified mail ....”). The NLRB Case handling Manual contains detailed procedures to be followed regarding service of subpoenas.

In accordance with this investigatory authority, the EEOC may subpoena any information “that relates to any matter under investigation or in question.” 29 U.S.C. § 161 (incorporated into Title VII, 42 U.S.C. § 2000e et seq., by § 710, 42 U.S.C. § 2000e-9); see § 709(e) of Title VII, 42 U.S.C. § 2000e-8(a). Thus, to the extent the EEOC is conducting other investigations against Defendants, the EEOC should be allowed to use the information obtained in Request No. 161 because such information may be relevant to other potential charges of hostile work environment made against Defendants.