On February 23, 2016, in the matter of Certain Activity Tracking Devices, Systems, and Components Thereof, ITC Inv. No. 337-TA-963, ALJ Dee Lord issued an order granting Complainants’ motion to quash respondent Fitbit’s subpoena ad testificandum, citing lack of diligence on the part of respondent in pursing discovery as part of the basis for granting the motion.
The subpoena at issue in the order was issued on January 28, 2016, one day prior to the close of fact discovery (January 29, 2016), and served after the discovery close on February 1, 2016. In her order, ALJ Lord noted that her Ground Rule 4.4.5 requires discovery requests to be initiated in sufficient time so that responses are due prior to the discovery cutoff and that a party must obtain approval in advance to serve discovery requests that would require responses after that date. According to the order, Fitbit failed to seek such approval to serve its subpoena in this case. ALJ Lord went on to state that, in any event, Fitbit “failed to show compelling circumstances for pursuing this discovery outside of the fact discovery period” in that discovery requests seeking related discovery were served in November 2015 and “Fitbit [did] not explain why it waited until the end of discovery to seek a subpoena … when it has been pursing related discovery for several months.”
It is well established that deadlines come quickly at the ITC. This recent order underscores the need to aggressively and actively pursue discovery. While true of all discovery, this is particularly true with respect to third party discovery due to the delay imposed by the need to apply for a subpoena, wait for its issuance, and effect service.