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COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Part II)

Like many other Federal Agencies and U.S. District Courts, the U.S. International Trade Commission (“ITC”) is open for business during the COVID-19 crisis, but on a limited basis. Modifications to the ITC’s business began on March 17, 2020, and the ITC’s COVID-19 Action Plan will remain in place through at least July 10, 2020. Part I of this article (see prior post here) addressed how the ITC is handling in-person hearings under Section 337 of the Tariff Act of 1930 (“Section 337”) during the COVID-19 crisis. This Part will address modifications to the ITC’s filing system, service of documents and discovery.

General Document Filing Procedures

Like many other courts and government agencies, the ITC is not requiring original signature documents to be filed during the COVID-19 crisis. Under the ITC’s COVID-19 Action Plan, the ITC also waived standard procedures that require parties to file many documents, including documents containing Confidential Business Information, on paper, CD-ROM, and other physical media.[1] In particular, the ITC adopted temporary amendments to permit parties to file Section 337 complaints, exhibits, attachments, and appendices electronically.[2] Physical samples normally submitted with a complaint or other filings should be retained by counsel for Complainant.

Electronic Filing Procedures

The ITC will only accept electronic filings through its Electronic Document Information System (“EDIS,” https://edis.usitc.gov). Under the amended procedures, parties must electronically file public and confidential portions of a submission separately, and select the correct security level for each portion. The additional electronic filings may cause some delays. Complainants should be aware that a complaint will not be accepted as soon as it is filed on EDIS. A complaint will not be accepted until the ITC staff can review and approve the filing. Complainants should file documents as early in the day as possible so that review can be completed on the same business day. Documents filed at the end of the business day likely will not be approved until the following day, which could affect the official acceptance date.

Service of Complaint and Notice of Investigation

Unlike U.S. District Courts, the ITC is responsible for service of the complaint and all supporting information on Respondents. The ITC has now adopted temporary amendments to its Rule 210.11(a) and Rule 210.75 to require Complainants, rather than the ITC, to serve each Respondent and appropriate embassy with copies of the complaint and any related documents. This change significantly increases the burden on a Complainant, particularly when Respondents are small, difficult to locate foreign entities. Under the temporary procedures, once the ITC is ready to issue a Notice of Investigation (NOI), the ITC will email Complainant’s counsel to provide the materials and instructions for service. The Certificate of Service for the NOI will indicate the parties the Complainant is responsible for serving. The Complainant will be responsible for filing proof of service, such as tracking and shipment confirmation, on EDIS.

Complainants may electronically serve the Complaint, but only if a Respondent has agreed to electronic service in writing. Complainants will be required to provide documentation of a Respondent’s consent to electronic service as part of their proof of service. Respondents consenting to electronic service will not be given additional time to respond to the complaint under Rule 201.16(e), which provides additional time to respond to the complaint for Respondents that receive the materials via express delivery. Nevertheless, the parties can agree on response times and/or requests for extensions of time as per previous practices, subject to the Administrative Law Judge’s (“ALJ”) Ground Rules for the investigation.

Service of Other ITC Documents During an Investigation

Under the COVID-19 Action Plan, any documents normally served by the ITC in paper format will be made available for electronic download by lead counsel. The ITC has adopted a temporary amendment to Rule 210.7(b) to require attorneys who designate themselves as lead attorneys or representatives for service of process to provide the ITC with an individual work email address (not a group email address) for service of documents. The ITC will allow parties not represented by counsel to provide an individual email address for service of public documents. If the ITC does not have a method of serving unrepresented parties electronically, the ITC and ALJs will direct Complainants to effect service for ITC documents (including filings and discovery related materials for OUII) in hard copy, when necessary.

Confidential documents issued by the ALJ and the ITC will only be available for download from a folder in a secure file sharing platform. Access to the system will only be given to lead counsel for each party via the individual email address noted above. The ITC will send an email to lead counsel when documents are added to the folder. On the other hand, Public documents issued by the ALJ and the ITC will be available for download from EDIS. The ITC will use the same email address used for confidential service to give notice each time documents are added to EDIS.

Discovery

Although the ITC has postponed all in-person Section 337 hearings until at least July 10, 2020, the ITC has instructed ALJs to otherwise conduct their investigations in accordance with established procedures. Discovery is proceeding in most investigations with some modifications and delays due to limitations on travel and other business conduct in the United States and throughout the world. ALJs are conducting scheduling conferences and other minor hearings telephonically. Different ALJ have taken different approaches to Markman Hearings – ALJ McNamara ALJ McNamara plans to conduct the Markman Hearing telephonically in 337-TA-1187, but ALJ Lord has decided to issue a decision based on the briefs alone and she canceled the Markman Hearings in 337-TA-1181 and 337-TA-1190.

ALJs have been accommodating parties’ requests for discovery modifications such as conducting depositions remotely, allowing more time for foreign discovery, lifting the requirement for face-to-face settlement conferences, etc. Remote review of source code, however, has become a difficult issue to navigate in some circumstances. Nevertheless, even for investigations where hearings have been postponed, ALJs are generally maintaining the pre-hearing briefing schedule, taking into account extensions of discovery and other COVID-19 crisis issues, so that the parties can be ready for a hearing once the current restrictions are lifted.

The Future of Section 337 Investigations

As noted in Part I, the COVID-19 crisis has not had an immediate impact on the number of Section 337 complaints filed at the ITC. Whether an economic slowdown has a long term impact remains to be seen. Nevertheless, the ITC is demonstrating that it can adapt to the current crisis by implementing new procedures for the filing and service of documents and by being flexible with regard to discovery procedures.


[1] Specifically, the ITC temporarily waived Rule 210.4(f)(3)’s paper copy requirements, as they pertain to documents filed under Rules 210.4(d), 210.8, 210.13, 210.14, 210.15, 210.16, 210.17, 210.18, 210.19, 210.20, 210.21, 210.23, 210.24, 210.25, 210.26, 210.33, 210.34, 210.35, 210.36, 210.38, 210.40, 210.43, 210.45, 210.46, 210.47, 210.50, 210.52, 210.53, 210.57, 210.59, 210.66, 210.70, and 210.71; and the paper copy requirements set forth in Rules 210.4(f)(6)(ii), 210.4(f)(7)(i), and 210.8, as well as the paper filing or copy requirements in the ITC’s Handbook on Filing Procedures, with which Rule 210.4(f)(i) requires compliance.

[2] Seee.g., Rule 210.4(f)(2), Rule 210.75, Rule 210.76, and Rule 210.79.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 155

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About this Author

Adam R. Hess Partner  intellectual property IP litigation
Partner

Adam Hess has more than 25 years of experience representing clients in intellectual property (IP) litigation and counseling clients on IP matters involving a wide array of technologies.

Adam has significant experience as lead counsel in Section 337 investigations at the US International Trade Commission (ITC). He has represented many clients against subpoenas related to ITC investigations. He works with Customs and Border Protection on matters concerning the enforcement of ITC exclusion orders.

Adam serves as lead counsel in federal district court litigation and international...

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