In this installment of our Calm Before the Storm series, we discuss why a respondent should begin preparing for discovery during the month between the filing of the complaint and the Commission’s decision to start the investigation. A typical ITC investigation lasts 15-16 months from start to finish, but parties can begin demanding documents, the identification of witnesses, and verified answers to formal written questions almost as soon as the ITC institutes an investigation. A bench trial before an ITC judge takes place about eight or nine months after the complaint is filed. Under such a schedule, the parties will have approximately five months or fewer to complete fact discovery. By contrast, fact discovery can last two years or more in district court. While a complainant may need relatively little discovery to prepare its case, a respondent must scramble to create a work plan for discovery and implement it, including locating prior art, relevant witnesses, and conducting depositions. Below, we identify some categories of information that a party named in an ITC complaint should immediately begin to locate and gather – even before the investigation formally begins – in order to ensure it will be able to meet its discovery obligations and fully present its case.
In stark contrast to federal court (where discovery is more limited and where a company typically has 30 days to respond to discovery requests), a party at the ITC only has 10 days to provide responses to requests. In addition to the private parties, the ITC’s Office of Unfair Import Investigations will often serve additional, thorough discovery requests on the parties including discovery seeking targeted information regarding importation of the accused products and other ITC-specific issues. Given these time constraints, a respondent must immediately develop a discovery plan by identifying witnesses and gathering documents.
Discovery in an ITC investigation will include certain information specific to the importation of the accused products such as the items listed below, which a company should begin collecting as soon as the complaint is received.
- Statistics on the quantity and value of the accused products imported into the US
- Customs documents related to imports of the accused products
- The Harmonized Tariff Schedule item number(s) for the accused products
- Information regarding the respondent’s production capacity and the significance of the US market to its operations
- The name and address of suppliers if the company does not manufacture the accused imports
In addition to such ITC-specific information, a named respondent should also identify:
- Detailed technical information about the accused products, including the identification of any suppliers of key components related to the allegations in the complaint
- Communications with customers about the relevant products
- Communications with the complainant
- Any relevant prior art
- Employees (or other witnesses) with the most relevant knowledge; one or more of these employees could be the company’s corporate witness
As noted, the pace of an ITC investigation is much faster than that typically found in US district court, and the scope may be broader with respect to certain issues. Appropriate planning and an organized, methodical approach to discovery are critical and will strengthen a company’s position in the investigation. Because ITC investigations are conducted so quickly, unless good cause is shown, extensions of time will rarely be granted by the ITC judges. Failing to act quickly is rarely seen as a good enough cause for an extension. Moreover, there are issues that must be addressed in ITC proceedings that do not arise in district court. The limited amount of time allowed to conduct discovery should be spent implementing a discovery plan developed during the month-long period after the filing of the complaint. This saves costs (including attorney fees) and minimizes the inevitable headaches caused by the need to spend valuable time preparing and then implementing a plan for discovery under the pressure of extremely tight time deadlines. Preparing for discovery during the relatively calm days immediately after the ITC complaint is filed is a wise investment of resources and produces a much better return than waiting until later to create a work plan for discovery and implement it.