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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A discussion on the jurisdictional limitations of forum-selection clauses, the inconsistencies with their enforceability, and the potential for the establishment of a standardized procedure to enable companies to evaluate forum-selection clauses with more certainty going forward.
Under what is commonly called the Sporck doctrine, the opinion work product doctrine can sometimes protect the identity of certain documents that do not themselves deserve intrinsic privilege or work product protection, as long as the adversary also has the documents and the identity could reflect a lawyer's opinion.
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the court interpreted federal common law as extending privilege protection to communications between a company's lawyer and any level of employee, if that employee has facts the lawyer needs when advising the corporate client.