The novel coronavirus pandemic has disrupted regular operations of agencies and courts across the US. The country’s International Trade Commission (ITC) is no exception.
Recognizing logistical difficulties caused by the pandemic, the ITC closed its doors to the public on March 17, 2020, and its employees began working remotely for health and safety reasons. The ITC has continued operations under certain modifications. For example, the ITC temporarily waived and amended requirements for filing of paper copies and other physical media in 337 investigations and delayed in-person hearings, at present, “until such time as the agency enters Phase Three of the Commission’s three-phase plan.”
In view of the restrictions, the Administrative Law Judges (“ALJs”) and private parties have been trying to develop alternative procedures for conducting hearings and discovery to advance pending investigations, as the Commission remains obligated to conduct investigations “expeditiously” “to the extent practicable.”
All in-person hearings at the ITC have been delayed since March 12, 2020, forcing some ALJs to postpone previously scheduled hearings. The ALJs, however, have been working to develop procedures for proceeding with ITC investigations, to the extent possible. For example, ALJ Lord scheduled an evidentiary hearing in Certain Foodservice Equipment and Components Thereof, Inv. No. 337-TA-1166, to begin July 20, 2020. ALJ Cheney scheduled an evidentiary hearing in Certain Argon Plasma Coagulation System Probes, Their Components, and Other Argon Plasma Coagulation System Components for Use Therewith, Inv. No. 337-TA-1182, to begin August 31, 2020. ALJ Elliot postponed an evidentiary hearing in Certain Mobile Devices with Multifunction Emulators, Inv. No. 337-TA-1170, but set dates for exchanging direct testimony through witness statements, which will reduce the amount of overall “live” hearing time when a hearing does take place. And ALJ McNamara scheduled a Markman hearing in Certain Electronic Devices with Optical Filters and Optical Sensor Systems and Components Thereof, Inv. No. 337-TA-1187, for June 18, 2020.
The ITC does not currently have a platform other than “in person” for conducting 337 evidentiary hearings, but these recent orders provide guidance as to the ALJs’ considerations on options for proceeding. ALJ Lord in Foodservice Equipment reset the evidentiary hearing for late July 2020, noting, “procedures may be in place by that time for a hearing to be held, whether in person at the Commission or using remote technology.” Similarly, ALJ McNamara’s order in Electronic Devices with Optical Filters states the Markman hearing will proceed “Telephonically unless the Commission approves the use of a video platform before that date.” ALJ Elliot further noted in Mobile Devices the importance of proceeding on an ITC approved platform, “The Commission is working on developing the ability to conduct evidentiary hearings by videoconference, but it is impossible to say when or if that will occur.” Indeed, the Commission recently issued a notice that it hopes to approve a platform for virtual hearings “within about a month,” or the late-July early-August timeframe.
ALJs Lord’s and Elliot’s orders include provisions seeking to reduce the need for witnesses to appear live or the amount of time needed for live testimony. ALJ Lord proposed the parties:
And ALJ Elliot approved the parties submitting all direct testimony through witness statements.
These orders also suggest the Commission is considering alternative technological options to conduct hearings remotely in view of the current situation, although it is unclear when or if the Commission will be able to approve an alternative platform that adequately protects the parties’ and third parties’ confidential business information.
In view of pandemic-related restrictions obstructing regular evidence collection, including domestic and international travel restrictions, and other health and safety recommendations such as social distancing, the ALJs and private parties are again working to advance discovery with practical alternatives, including in connection with depositions and source code inspection.
Parties have faced logistical challenges in proceeding with depositions. Although parties have proceeded with remote depositions via video technology, those solutions may not work if a witness is located in a country that does not allow U.S. discovery and has travel restrictions. Parties have sometimes come to their own solutions and have sometimes sought judicial guidance.
For example, in Argon Plasma, the parties faced strict lockdown regulations in Germany and Europe, which created obstacles to presenting and examining certain German witnesses. After receiving a Joint Report from the parties explaining that German law requires depositions in Germany occur or be notarized at the U.S. consular office, which was unavailable because of the pandemic, and that travel restrictions prevent those witnesses from traveling to another country, ALJ Cheney proposed the parties depose U.S. corporate representatives instead of the originally identified German witnesses. In that proposed order, ALJ Cheney suggested the corporate information sought could be obtained by deposing the same entity’s U.S. representatives with less burden and delay. After receiving ALJ Cheney’s order, however, the legal restrictions lessened, allowing witnesses to travel, and the parties were able to depose the original German witnesses in Luxembourg remotely.
In Certain Pick-Up Truck Folding Beds Cover System and Components Thereof, Inv. No. 337-TA-1188, the parties are located in China, Canada, and the United States and agreed the novel coronavirus imposed significant health concerns. The parties in that case jointly agreed and proposed to proceed with written questions instead of depositions, which the ALJ approved.
All parties in all cases are facing challenges in discovery. But parties are working to identify creative solutions--and seeking judicial assistance where needed--to gather the information needed to present their cases in view of constraints presented by the global pandemic.
Cases involving source code present unique challenges. Source code is routinely afforded extra protections to ensure it is securely and safely handled. Such protections commonly include provisions such as setting up a stand-alone computer at counsel’s office for review during regular business hours. Some of these precautions may not be possible depending on state and local safety ordinances. Consequently, parties have worked to develop alternative safety measures. For example, the parties in Certain Wearable Monitoring Devices, Systems, and Components Thereof, Inv. No. 337-TA-1190, moved to supplement the protective order in view of the pandemic with unique provisions governing remote source code review. The parties in that investigation agreed the supplying party would provide source code through a remote-access computer solely for code review purposes. The remote-access computer, which contains no source code but connects to a source code computer held by the supplying party, can only be accessed in a location restricting access only to qualified reviewers. The parties added limitations on using the remote-access computer for purposes such as direct printing, downloading, and note taking. Further, before review, the reviewing party must notify the supplying party and provide video access for remote monitoring and supervision. The parties also included additional provisions to ensure the integrity of the review process.
Although such provisions may not be suitable in all cases, other technology solutions may be available that best accommodate the parties’ situations, while providing additional protections for a party’s source code.
There are numerous technological options available and being developed to allow tribunals and parties to proceed in a safe, although perhaps unfamiliar, manner. Indeed, many of these alternatives could become the norm for the foreseeable future. Parties in ITC proceedings are actively exploring these technological alternatives to assess if they meet the needs of a particular case. There has not yet been a “one size fits all” solution, but this should not be surprising as each case is different. When a new platform or procedure has required judicial assistance, the ALJs have been receptive to considering requests from the parties.
Once a technological solution is identified to accommodate constraints created by the pandemic, parties can help ensure the process goes smoothly. For example, when preparing for remote depositions, counsel, representatives, and witnesses can test the particular platform for connectivity and document sharing. For cases involving an attorney from the Office of Unfair Import Investigations (“OUII”), counsel can consider reaching out to ensure the platform also works for the OUII attorney, to avoid spending time during the deposition working out glitches. Parties can also ensure the court reporter is familiar with the platform.
As the ALJs adapt to, and explore, alternative procedures to conduct investigations, they will likely expect more coordination among the parties to explore the possibility for mutually agreeable adjustments. The ALJs have been flexible in accommodating challenges confronting all parties—including recognizing restrictions on travel, health concerns of witnesses, and security concerns over the handling of source code. But the ALJs also recognize some options may simply not work—including using un-approved platforms or setting protocols that may deny a party an opportunity to be heard.
The pandemic has thrown a wrench in the regular schedules of discovery and hearings at the ITC. Recent orders provide guidance on how the ITC is working through the challenges and on how parties might consider moving forward with future cases. It is unclear, however, when the ITC will be able to hold an in-person hearing. In the meantime, parties can explore alternative procedures and available technological options for proceeding with discovery under the current restrictions.
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