In a recently issued order, the ITC indicated its willingness to consider case-by-case modifications to its hearing procedures in view of the ongoing COVID-19 pandemic. Certain Touch-Controlled Mobile Devices, Computers, and Components Thereof, Inv. 337-TA-1162, Order No. 54 (June 5, 2020). While ALJ Elliot did not set a hearing date, he implemented certain procedures regarding witness statements, objections, and possible depositions. He also suggested there was the possibility of conducting the evidentiary hearing without any real-time participation from the ALJ.
ALJ Elliot reiterated that the ITC is currently not able to hold evidentiary hearings in person or by video conference but also noted that the ITC was considering how to conduct evidentiary hearings by video conference. While the ITC appreciated the parties willingness to use software such as Microsoft Teams for the evidentiary hearing, ALJ Elliot noted that consent of the parties (and third parties) alone was not sufficient because the ITC has “an independent duty to ensure that CBI is adequately safeguarded.”
In his order, ALJ Elliot accepted the parties’ proposal regarding witness statements and written objections. Specifically, he set a deadline for the exchange of direct witness statements, rebuttal witness statements and associated objections. Interestingly, based on the parties’ suggestion, ALJ Elliot limited the length of these submissions by using a conversion factor of 8,000 written words per hour of live testimony.
Finally, citing to 19 C.F.R. § 210.28(h)(3), ALJ Elliot indicated that deposition testimony may be used in lieu of live testimony “under certain circumstances, including when a witness cannot travel to the U.S., when the parties agree to use of deposition testimony, or when ‘exceptional circumstances’ exist.” In this manner it may be possible to conduct the evidentiary hearing without “any real-time participation by [him] at all.” To accommodate this possibility, the ALJ suggested that the parties consider taking a further round of depositions after submission of the witness statements, “where the deposition examination replicates what would normally take place during the evidentiary hearing, and thus include cross-examination, redirect examination, evidentiary objections, and so forth.”
As we previously reported, the ITC has demonstrated a willingness to seek alternative methods for conducting evidentiary hearings, especially in situations where the parties are agreeable to such alternatives. This order is another example of this. Parties involved in active investigations should be mindful of these alternatives and consider whether such alternatives are appropriate in their investigation.