By: Mallory McKenzie and Blaney Harper – When parties jointly stipulate to witness statements rather than live direct and cross examination, one might expect the ITC to be receptive to their agreement—after all, such stipulations may save time and resources for everyone involved.  However, in a recent order, ALJ McNamara reiterated that her Ground Rules require live direct and cross-examination testimony and any party seeking to utilize witness statements in lieu of live testimony must do so by motion.  Certain LTE- and 3G-Compliant Cellular Communications Devices, Inv. 337-TA-1138, Order No. 31 (May 6, 2019).

The issue arose because the parties filed a Joint Statement making four requests ahead of the evidentiary hearing, two of which asked: 1) that four expert witnesses be permitted to testify via witness statement and deposition testimony for direct and cross examination, respectively, and 2) that fact witnesses be able to provide witness statements in lieu of direct testimony.  ALJ McNamara denied each in part.

In doing so, she explained that her Ground Rules require “live direct and cross-examination testimony” and explicitly rejected any “carte blanche attempt” to circumvent her Ground Rules.  She went on to explain that the requirement that witnesses give live testimony is not absolute: cumulative deposition testimony may be placed into evidence if proper motion practice is followed.  Such motions must be made “sufficiently early” in discovery so that other parties can form discovery strategies, and “should be exceedingly rare” as “they will be allowed rarely.”  Moreover, she emphasized they will “virtually never [ ] be allowed for an expert witness absent an exigency that is clearly one.”  Ultimately as a general rule, and particularly for experts, ALJ McNamara expects critical witnesses – particularly expert witnesses – to appear and give live direct testimony and be subject to cross examination.

Takeaway

While not all ALJs require live direct and cross-examination testimony, this order clearly highlights ALJ McNamara’s preference for live testimony.  The order is also a reminder of the importance for litigants to adhere to the Ground Rules established by the ALJ – agreement of the parties is not sufficient to set aside the rules.

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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.