Today, the ITC published a notice of proposed rulemaking that would change the rules in 19 CFR 210. These proposed changes were promulgated after a forum on e-discovery in Section 337 investigations held in July 2011. After the forum, the ITC considered proposals from various associations, including the American Bar Association Intellectual Property section, various model orders and pilot programs adopted by U.S. District Courts, and the analogous portions of the Federal Rules of Civil Procedure to determine whether the ITC rules should be changed. The ITC has since drafted proposed changes to 19 CFR 210.27(b).
The current version of 210.27(b) is similar to Federal Rule of Civil Procedure 26(b)(1), but it does not address guidelines for limiting discovery or specifically address e-discovery. The proposed changes are intended to address these issues and mostly track the 2006 amendments to Federal Rules. The only material differences in the proposed ITC rules and Federal Rule 26(b)(2) are: (1) the ITC rules would require discovery to be limited as to legal arguments waived or facts stipulated; (2) the ITC rules would not require an analysis of the importance of the issues at stake, but instead require the judge to analyze the importance of the discovery sought; and (3) the ITC rules would set forth deadlines for resolving privilege disputes.
According to the Notice, "[t]he intended effect of the proposed amendments is to reduce expensive, inefficient, unjustified or unnecessary discovery practices in agency proceedings while preserving the opportunity for fair and efficient discovery for all parties." Written public comments may be filed within the next 60 days for consideration.
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