Dec. 2011/Jan. 2012 / Features
Discovery is Swift and Expansive at the ITC
Section 337 proceedings at the U.S. International Trade Commission usually involve allegations that imported goods have infringed patents and trademarks. The primary remedy is an exclusion order blocking infringing imports from entering the United States.
Discovery practice in Section 337 investigations is different than discovery in district courts. District court litigation affords the parties time to compensate for mistakes or develop new theories. At the ITC, there is little flexibility built into the schedule. There is also no waiting for a scheduling order or conference of the parties to commence discovery. It starts the day after the investigation is instituted by the Commission. The early start combined with the tight deadlines means that counsel should serve initial requests on the very first permissible day. A hearing in a Section 337 proceeding generally occurs within eight months of filing the complaint. The procedural schedule, accordingly, is unforgiving.
Third-party discovery represents the most significant difference between discovery at the ITC and district courts. In Section 337 proceedings one must apply to the Administrative Law Judge for a subpoena to a third party, and must show relevance and necessity. Applications typically are granted where a party seeks relevant information in a timely manner. Problems sometimes arise in executing subpoenas and in enforcement, and counsel advising third-party recipients of subpoenas may consider such limitations in their recommendations, although it would be self-destructive for any company to tarnish its reputation by disregarding Commission orders.
