On Tuesday May 8, 2018, the U.S. International Trade Commission (“ITC” or “The Commission”) published amended Rules (19 C.F.R. Parts 201 and 210) regarding practice and procedure in an effort to streamline and “improve the provisions of the Commission’s existing Rules of Practice and Procedure.” See 83 Fed. Reg. 21140-64 (May 8, 2018). The final regulations contain eleven (11) changes from the proposals in the Notice of Proposed Rulemaking (“NPRM”) published by the Commission in the Federal Register at 80 Fed. Reg. 57553-64 (Sept. 24, 2015).
These Rules will go into effect on June 7, 2018, and only apply to investigations instituted after this date.
A number of the more meaningful amendments are outlined and summarized below.
Rule 201.16(a)(1), (4) and (f) -- The Commission may effect service through electronic means and authorizes parties to serve documents by electronic means.
In consideration of the Commission’s development of the capability to perfect electronic service, new Rule 201.16(a)(1) and (4) may effect service through electronic means. Under the new Rule, electronic service would be complete upon transmission of a notification from the Commission that the document has been placed in an appropriate secure repository for retrieval by the person, organization representative, or attorney being served, unless the Commission is notified that the notification was not received by the party served. New Rule 201.16(f) requires parties to ensure that documents served by electronic means that contain confidential business information must be securely stored and transmitted by the serving party in a manner, including by means ordered by the presiding Administrative Law Judge (“ALJ”), that prevents unauthorized access and/or receipt by individuals or organizations not authorized to view the specified confidential business information.
Rule 210.10(a)(6) -- The Commission may institute multiple investigations based on a single complaint where necessary for efficient adjudication.
Under this new Rule, the Commission will have the ability to institute multiple investigations from one single complaint, rather than instituting one investigation that may be too cumbersome for the Commission or an ALJ to preside over in a meaningful way.
Rule 210.10(b)(1) -- The notice of investigation must specify in plain language the scope of the accused products or category of accused products that will be the subject of the investigation.
The notice of institution essentially will provide an initial guideline regarding the scope of the investigation. In theory, the rule will assist with avoiding disputes between parties regarding the scope of the investigation.
Rule 210.10(b)(3) -- The Commission has amended the Rule to note that an initial determination ruling on a potentially dispositive issue in a 100-day proceeding is due within 100 days of institution of an investigation.
The “100-day” pilot program launched by the Commission on June 24, 2013, to test whether early rulings on certain dispositive issues in some Section 337 investigations could limit unnecessary litigation, saving time and costs for all parties involved, has now been formalized. Under this new Rule, the Commission has determined to clarify that an initial determination ruling on a potentially dispositive issue in a 100-day proceeding is due within 100 days of institution of an investigation so designated by the Commission. The Rule is also amended to clarify that the presiding ALJ is authorized, in accordance with Rule 210.36, to hold expedited hearings on any such designated issue and will also have discretion to stay discovery of any remaining issues during the pendency of the 100-day proceeding. The Commission further determined that ALJs will not be able to designate potentially dispositive issues for inclusion in a 100-day proceeding following institution of an investigation. Therefore, proposed Rule 210.22, which proposed that parties be permitted to file a request for such designation by motion, will not appear in the new Rules.
Rule 210.14(h) -- The ALJ will have the authority to sever an investigation into two or more investigations at any time prior to or upon thirty (30) days from institution, based upon either a motion by any party or upon the ALJ’s own judgment that severance is necessary to allow efficient adjudication.
Similar to Rule 210.10(a), the ALJ will have the ability to create two or more investigations based on a single complaint within 30 days of institution of the investigation. This will allow for the ALJ to preside over the investigations in a more efficient manner. The severed investigations will remain with the original ALJ unless reassigned at the discretion of the Chief ALJ. The severed investigation(s) will be designated with new investigation numbers.
Rule 210.15(a)(2) -- The Commission has amended its Rules to indicate that filing motions before the Commission preinstitution is prohibited, with the exception of a Motion for Temporary Relief.
The new Rule provides that all motions must be addressed to the Chairman of the Commission, filed with the Secretary and served upon each party. Motions may not be filed with the Commission during preinstitution proceedings except for motions for temporary relief pursuant to Rule 210.53.
Rule 210.25(a)(1) and (2) -- The Commission has amended its Rules to require that any party may file a motion for sanctions for abuse of process, abuse of discovery, failure to make or cooperate in discovery or violation of a protective order.
The Commission has amended its Rules to require that any party may file a motion for sanctions for abuse of process under Rule 210.4(d)(1), abuse of discovery under Rule 210.27(g)(3), failure to make or cooperate in discovery under Rule 210.33(b) or (c), or violation of a protective order under Rule 210.34(c). Under new Rule 210.25(a)(2), the ALJ or Commission may raise the sanctions issue sua sponte when the investigation or related proceeding is before it.
Rule 210.27(e)(5) -- The Commission has amended its Rules to be consistent with the Federal Rules of Civil Procedure 26 concerning the preservation of privilege between counsel and expert witnesses.
In particular, new Rule 210.27(e)(5)(i) protects drafts of expert reports and new Rule 210.27(e)(5)(ii) protects communications between the party’s attorney and expert witnesses concerning trial preparation, regardless of the form of the communications, except to the extent that the communications: (A) relate to compensation for the expert’s study or testimony; (B) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (C) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Rule 210.28(h)(3)(v) and (vi) -- The Commission has amended its Rules to provide for the admissibility of party and witness depositions.
New Rule 210.28(h)(3)(v) provides upon application and notice that exceptional circumstances exist to allow a deposition to be used, and new Rule 210.28(h)(3)(vi) provides, upon agreement of the parties and within the ALJ’s discretion, that the use of designated deposition testimony in lieu of live witness testimony is permitted.
Rule 210.32(d) and (f) -- The Commission has amended its Rules regarding subpoena practice to closer conform with the Federal Rules of Civil Procedure with regard to objections, motions to quash and payment of fees and mileage for appearance in response to a subpoena.
Under new Rule 210.32(d)(1), a party upon which a subpoena has been served may file an objection to the subpoena within 10 days of receipt of the subpoena, with the possibility of requesting an extension of time for filing objections for good cause shown. If objection is made, the party that requested the subpoena may move for judicial enforcement upon reasonable notice to the other parties. Under new Rule 210.32(d)(2), a motion to quash a subpoena must be filed within the later of 10 days after receipt of the subpoena or within such time as the ALJ may allow. Under new Rule 210.32(f)(1), any person compelled to appear in person to testify in response to a subpoena shall be paid the same fees and mileage as are paid to witnesses with respect to proceedings in the U.S. district courts, except that salaried employees of the United States summoned to testify as to matters relating to their public employment shall be paid in accordance with the applicable Federal regulations.