Need for Speed: ITC Wastes No Time During Discovery

Need for Speed: ITC Wastes No Time During Discovery

Executive Corporate Magazine published an op-ed piece in this month’s edition which features attorneys Rodney R. Sweetland and Michael McManus of firm McKool Smith.  The two principals speak on the subject of the International Trade Commission (ITC)’s considerably faster discovery proceedings in comparison to timelines set by district courts.

According to Sweetland and McManus, litigation in district courts is a drawn out process, giving the parties plenty of time to correct mistakes and add new arguments.  On the contrary, the ITC allows for very little flexibility time-wise.  In fact, the Commission begins investigations to serve initial requests on the first day permissible.  The tight deadlines allow for a speedy start, not having to wait on scheduling orders or a conference of the parties.

The two attorneys go on to explain that the biggest difference between discovery at the ITC versus in district courts is how they handle third parties.  Compared to Section 337, district court proceedings in this context go through a much simpler discovery process.  Counsel is only required to submit a subpoena from the district where information is needed, but it is not necessary that they are admitted to practice in that particular location.  The only stipulation is that the attorney be admitted to practice in a trial court.  However, ITC and Section 337 proceedings require an application to be submitted to the Administrative Law Judge for a third party subpoena who will then grant requests based on a party’s time-considered need for relevant information.

The final point in the article states that relevance and necessity limitations are strictly enforced; making it of vital importance for the advising counsel of third party subpoena recipients to note that problems sometimes arise with the execution and enforcement of subpoenas.  The article’s takeaway message is that the ITC does not allow for flexibility as is possible with district courts; Immediacy is soon becoming the new buzz word, so to speak, on the topic of discovery procedures.

The full article of Discovery is Swift and Expansive at the ITC can be read in this month’s intellectual property section of Executive Counsel Magazine and the executive summary can be read here.

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