ALJ McNamara recently confirmed and tightened her previous order compelling depositions of certain Japanese witnesses in the United States. Certain Digital Cable And Satellite Products, Inv. No. 337-TA-1049, Order No. 14.
Previously, ALJ McNamara granted Respondent ARRIS’s Motion to compel depositions of Complainant Sony’s corporate witnesses in the United States. Id., Order No. 10. The ALJ acknowledged that “the rule of thumb is to take depositions in a location most convenient to the witnesses, which typically would have been Japan in this case.” Id. at 4. However, depositions in Japan present several problems. First, “Japanese law prohibits the taking of testimony via telephone.” Id. at 2. This would have complicated or prevented Staff’s participation. Second, depositions need to be taken at the U.S. embassy or consulate in Japan, which have strict limitations on the process of scheduling and conducting depositions. See id. at 2-3. The ALJ concluded that in this case “Sony must make all named individuals . . . available to testify in the United States.” Id. at 6. The following reasons were cited: “ARRIS did not delay in attempting to obtain the appropriate permissions to take depositions in Japan or to schedule depositions”; as a Complainant, “Sony chose to bring its case to the ITC venue”; and “Sony is already bringing [two of the witnesses] to the United States for depositions in co-pending litigation before the U.S. District Court for the District of Delaware.” Id. at 5.
Sony responded by filing “a request for clarification, or, in the alternative, for interlocutory review of Order No. 10.” Order No. 14 at 1. Sony offered other locations for depositions which included Hong Kong, Guam, and Hawaii. Id. at 4. ARRIS, on the other hand, requested “that the remaining Sony depositions subject to Order No. 10 be limited to Washington, D.C.” or at a “reasonably accessible east coast location in the continental United States.” Id. at 4. The ALJ granted ARRIS’s request and denied Sony’s Motion. Id. at 12. The ALJ explained that Sony’s proposed locations would not resolve problems identified in the previous order, and that Sony is now taking a position inconsistent with its prior argument when it asserts that Order 10 marks “a significant departure from well-established Commission practice” or that it announces a “policy.” Order No. 14 at 7, 9-10. As a result, the ALJ not only confirmed the previous order that depositions should occur in the United States, but agreed with ARRIS’s request for an additional limiting of the location of the depositions to Washington D.C. or another East Coast location. Id. at 11, 12.
Depositions of foreign witnesses in an ITC investigation can present issues that require careful planning in light of the accelerated proceedings. Navigating these issues can be particularly critical to obtaining necessary evidence in the ITC where parties are often foreign corporations. ITC Staff’s travel restrictions cause additional complications—especially in countries such as Japan and Korea where law does not permit testimony by phone. Japan in particular has strict rules on requesting, scheduling, and conducting depositions. Parties seeking to depose witnesses in Japan must plan very early in the investigation as doing so requires orders from both the ALJ and a district court judge as well as special deposition visas. Here, ALJ McNamara cited Japan’s tight restrictions on depositions as factors counseling towards compelling corporate depositions of Complainant in the United States. Although ALJ McNamara limited her ruling to the facts of this investigation, given the laws in Japan, scheduling depositions there will always be somewhat burdensome. Accordingly, based on this Order, Japanese parties in the ITC (especially complainants) should be prepared for the possibility that an ALJ may require their depositions take place in the United States.