By: Charles Lee and Blaney Harper – The ITC recently issued an order rescheduling a hearing from June 22, 2020 to July 20, 2020 and extending the target date for completion of the corresponding investigation to March 5, 2021 due to the coronavirus pandemic.  Certain Foodservice Equipment and Components Thereof, Inv. 337-TA-1166, Order No. 37 (April 24, 2020); see also Order No. 44 (denying Complainants’ motion for reconsideration of Order No. 37) (May 19, 2020).  The ITC further urged the parties to agree to have witnesses testify based on their deposition transcripts instead of live testimony at the upcoming hearing.

Because of the ongoing COVID-19 pandemic, the complainants proposed to postpone the hearing for five months or until the hearing can proceed with live witnesses, who are currently prevented from traveling to the United States.  The respondents, the Office of Unfair Import Investigations, and ALJ Lord all agreed that the hearing cannot be delayed indefinitely and certain issues can be adjudicated without live witnesses.  Pursuant to Commission Rule 210.28(h)(3), deposition transcripts may be generally admissible for witnesses who are unable to attend the hearing.  Thus, with the agreement of the parties, these witnesses would not need to attend the hearing in person and may testify via deposition, which may be conducted remotely.

To resolve this investigation in a timely manner, ALJ Lord offered alternatives for the possibility of absent live witnesses, such as designating deposition transcripts of witnesses and scheduling additional de bene esse depositions for witnesses.  Because it is likely that the hearing will require the admission of additional deposition testimony, ALJ Lord asked the parties to file supplemental pre-hearing statements by May 15, 2020 to identify for each witness, whether: (i) the witness will testify live at the hearing; (ii) the parties have reached an agreement regarding the use of a deposition transcript in lieu of live testimony; or (iii) the witness is unable to attend the hearing for one of the reasons identified in Commission Rule 210.28(h)(3).

The deadline for any additional deposition that the parties agree to schedule is June 5, 2020.  The order further mandates that the parties shall exchange new designated deposition transcripts on June 9, 2020 and counter-designations on June 19, 2020.  Objections to deposition designations are due June 30, 2020 and responses to the objections are due July 10, 2020.

In response to Order No. 37, the Complainants filed a motion for reconsideration of Order No. 37 and a request for interlocutory review.  In Order No. 44, ALJ Lord denied the Complainants’ motion because they failed to demonstrate that the procedure set forth in Order No. 37 violates any provisions of the Commission Rules, Section 337, or the APA; or that manifest injustice would result from proceeding in accordance with the procedural schedule.  ALJ Lord also denied the Complainants’ request for an interlocutory review because they failed to demonstrate that an interlocutory review of Order No. 37 is necessary or appropriate.


 Because of its statutory requirement that section 337 proceedings conclude at “the earliest practicable time,” the ITC is looking for alternatives to move cases forward despite witnesses being unable to travel to the United States for a hearing.  Parties involved in an active investigation are expected to cooperate on devising appropriate alternative procedures to circumvent the absence of live witnesses.  Parties should now consider alternative mechanisms to make the evidentiary record and present their case, such that the scheduled procedural activities can be completed.  This would include the possibility of virtual depositions and may include the possibility of decisions being made on the written record.  Certainly, any procedural changes would be dependent on the circumstances of the parties and witnesses, but the ITC has shown creativity and resolve in meeting its statutory obligations and the parties should expect that to continue.

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Blaney Harper, who co-chairs the Firms intellectual property ITC practice, focuses on strategic patent litigation representing electronics, software, and information technology companies in matters such as patent enforcement in United States District Courts and the International Trade Commission (ITC). Blaney also represents and counsels clients concerning patent portfolio development and patent prosecution and appeal, including Inter Partes Review, in the USPTO. Blaney co-chairs the Firm's ITC practice and is the IP Practice Coordinator for the Washington Office.