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ITC Proposes Modifications to E-Discovery Practices in Section 337 Investigations: This fall, the U.S. International Trade Commission (Commission) proposed changes to its rules governing discovery in Section 337 investigations. The main thrust of these proposed changes is to place limitations on discovery of electronically stored information (e-discovery) “to increase the efficiency” of Section 337 investigations. See 77 Fed. Reg. 60953-56 (Oct. 5, 2012). The current rules lack many of the limitations found in district court litigation regarding e-discovery, which has made discovery in Section 337 investigations unnecessarily broad and expensive—particularly when paired with the Commission Administrative Law Judges’ historically permissive attitude toward broad discovery. The Commission proposed the changes, in part, in response to comments made by practitioners at an event in July 2011. In presenting these proposed changes, the Commission considered the e-discovery standards of a variety of district courts, a model e-discovery order prepared by the Federal Circuit Advisory Council, as well as ground rules issued by the Commission’s ALJs, and the Federal Rules of Civil Procedure.
The proposed changes relate to Commission Rule 210.27, which contains general provisions governing discovery. Proposed subsection (c) is similar to Federal Rule of Civil Procedure 26(b)(2)(B) and allows a party to refuse production of electronic documents and information from sources that are not reasonably accessible. If a party can show that the requested documents and/or information is not reasonably accessible because of undue burden or cost, the presiding ALJ then determines whether the requesting party has shown good cause for the production of the requested materials. If the requesting party does not meet this burden, the ALJ can deny the discovery request or specify conditions for the discovery. New subsection (c) specifically provides the ALJ with the option of conditioning requiring the requesting party to pay for costs associated with the discovery of information from sources that are not reasonably accessible. By allowing for cost shifting, the Commission is attempting to address the current status quo where parties to Section 337 proceedings may be required to produce millions of documents even though few are actually allowed into the evidentiary record.
Proposed subsection (d) requires the ALJ to impose limitations if he determines that: “the discovery sought is duplicative or can be obtained from a less burdensome source; the party seeking discovery has had ample opportunity to obtain the information; or the burden of the proposed discovery outweighs its likely benefit.” 77 Fed. Reg. 60954. This proposed rule is similar to Federal Rule of Civil Procedure 26(b)(2)(C). Unlike the Federal Rules of Civil Procedure, however, subsection (d) requires the ALJ to limit discovery when the party from whom discovery is sought has stipulated to facts or waived the legal position to which the discovery pertains—which occurs frequently in Section 337 proceedings. Additionally, this proposed addition requires the ALJ to consider the importance of the discovery requested to resolving issues decided by the Commission.
Proposed subsection (e) clarifies questions of waiver pertaining to privileged information and attorney work product. It also sets forth uniform procedures for privilege logs, an area that is currently governed by the ground rules of the presiding ALJ in each investigation. Subsection (e) also attempts to clear up the uncertainty surrounding the consequences of disclosure of privileged or work product documents by setting forth clear procedures for dealing with such disclosures, similar to the procedure set forth in Federal Rule of Civil Procedure 26(b)(5). It also sets forth specific deadlines for resolving privilege disputes in line with the rapid pace of Section 337 investigations. Commission ALJs currently vary in their treatment of waiver, even when the parties privately agree to a claw-back agreement.
The Commission issued its Notice of Proposed Rulemaking on October 5, 2012, and will accept public comments on the revisions through December 4, 2012. The rules will not become effective until after the Commission has an opportunity to review public comments and publishes final amendments to the rules at least thirty days prior to their effective date.