ITC Practice and Procedure: Form of Witness Testimony

25 January 2023 IP Litigation Current Blog
Author(s): Bradley Roush

Over the past five years, five of the six Administrative Law Judges (ALJs) at the International Trade Commission (ITC) have retired and four new ALJs have been appointed. Former Chief Judge Charles Bullock, along with Judges Theodore Essex, Thomas Pender, Dee Lord, and David Shaw have all retired and, in their place, Chief Judge Clark Cheney, Cameron Elliot, Monica Bhattacharyya, and Bryan Moore have been appointed (with one vacancy remaining). Only Judge MaryJoan McNamara has been on the bench more than five years.

Because each ALJ sets their own ground rules, this turnover has led to significant changes in how Section 337 investigations are conducted. While the Code of Federal Regulations has regulations that apply to Section 337 investigations,1 these regulations leave a significant amount of discretion to the individual ALJs to set rules for the investigations that they preside over. For example, in their ground rules, ALJs set rules for written discovery requests, claim construction, motions for summary determination, and the evidentiary hearing.

One aspect of each ALJ’s ground rules that is particularly noteworthy is whether direct testimony of non-adverse witnesses at the evidentiary hearing is live or in the form of witness statements. Unlike in district court litigation, ALJs can require non-adverse direct witness testimony to be submitted in written witness statements. Direct witness statements are sworn written statements drafted in Q & A format that are signed by the witness. If direct witness statements are required, they are typically submitted a few weeks before the evidentiary hearing (often at the same time that direct exhibits are exchanged). Then, at the hearing, once the witness is sworn in, the witness statement is admitted into evidence (subject to the resolution of any objections) and oral testimony begins with cross-examination.

Five years ago, five of the six ALJs required the use of witness statements in place of live testimony for non-adverse direct testimony2 with only Judge McNamara requiring live direct testimony.3 However, with the turnover in ALJs, there has been a shift toward live testimony — now, four of the five ALJs require live testimony for all direct testimony with only Judge Moore requiring witness statements for non-adverse direct testimony.4

The form of direct witness testimony can be a significant factor in how to plan and conduct an evidentiary hearing. Most notably, live direct testimony takes a significant amount of time. As evidentiary hearings are typically limited to five days, when live direct testimony is required, time management is especially important and litigants may need to prioritize certain issues. Live direct witness testimony also requires additional witness preparation and can make coordinating witness schedules more complex.

Conversely, when direct witness statements are required, litigants need to have much more of their case finalized well before the evidentiary hearing. As direct witness statements are typically exchanged weeks before the hearing, litigants have less flexibility to adjust their case at the hearing.

In short, with the shift in ITC judges, the evidentiary hearing has taken on an even greater importance in Section 337 investigations.



2 See, e.g., Color Intraoral Scanners and Related Hardware and Software, ITC-337-TA-1091, Order 2 at G.R. 9.3 (Dec. 2, 2017) (CALJ Bullock); Certain Graphics Processors and Products Containing Same, Inv. No. 337-TA-1099, Order 2 at G.R. 14.3 (Feb. 5, 2018) (ALJ Pender); Certain Solid State Storage Drives, Stacked Electronics Components, and Products Containing Same, Inv. No. 337-TA-1097, Order 2 at G.R. 9.3 (Jan. 23, 2018) (ALJ Lord); Certain Microperforated Packaging Containing Fresh Produce, Inv. No. 337-TA-1096, Order 2 at G.R. 8(a) (Jan. 24, 2018) (ALJ Lord); Certain X-Ray Breast Imaging Devices and Components Thereof, Inv. No. 337-TA-1063, Order 2 at 9.4.1 (Aug. 1, 2017) (ALJ Essex).

3 See, e.g., Certain Mobile Electronic Devices and Radio Frequency and Processing Components, Inv. No. 337-TA-1093, Order 2 at G.R. 8.3 (Jan. 19, 2018) (ALJ McNamara)

4 See, e.g., Certain Pillows and Seat Cushions, Components Thereof, and Packaging Thereof, Inv. No. 337-TA-1328, Order 2 at G.R. 13.6.1 (Sept. 14, 2022) (CALJ Cheney); Certain Smart Thermostat Hubs, Systems Containing the Same, and Components of the Same, Inv. No. 337-TA-1339, Order 2 at G.R. 8.4 (Oct. 20, 2022) (ALJ McNamara); Certain Electronic Devices, Semiconductor Devices, and Components Thereof, Inv. No. 337-TA-1340, Order 2 at G.R. 10.2 (Oct. 20, 2022) (ALJ Elliot); Certain Semiconductor Devices, Mobile Devices Containing The Same, and Components Thereof, Inv. No. 337-TA-1336, Order 2 at G.R. 10.2  (Oct. 14, 2022) (ALJ Bhattacharyya); Certain Pneumatic Compression Devices and Components Thereof, Inv. No. 337-TA-1316, Order 2 at G.R. 13.6.1 (June 6, 2022) (ALJ Moore).

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.