• Current trends and developments from the consultancy perspective

General Trend — still many ITC cases despite COVID; cases proceed remotely; cost savings since less travel required

• Service of Process
  • Instead of the Commission doing the service, the Commission now has rules requiring the Complainant to serve the complaint and Notice of Investigation.
  • However, those rules can create problems in situations where foreign laws prevent such service process
• Adjustment of Ground Rules
  • Every ALJ has made changes to his or her ground rules in light of COVID.
  • The most notable change is in the filing of documents.  Previously, most judges had rules requiring paper submission of pleadings, motions, briefs, and exhibits.  Those rules have all been superseded and new, temporary rules are in place.
• Hearings – WebEx Platform
  • Hearings (including the Evidentiary Hearing / Trial) are now conducted using the Commission’s WebEx solution.
• Discovery
  • Inspection
    • In the ITC it is common to inspect the facilities of both Complainants (for DI purposes) and Respondents (for infringement and capacity purposes)
    • Conducting inspections is more difficult now
  • Remote Source Code Review
    • The Commission’s ALJs have not yet ordered remote source code review over the objection of the parties.
    • That issue has been resolved by agreement, but only after ALJs warned that they were close to ordering remote production of source code
    • Parties so far have used third party solutions to protect source code during remote review and have used video monitoring of the review process.
    • Whether to allow remote review to occur during depositions is an issue that arises in investigations
  • Remote Depositions
    • Depositions are occurring almost exclusively remotely.
    • Remote depositions raise issues of whether to defend the witness in person.
    • Many of the depositions against foreign respondents requiring translation
    • Remote depositions also raise issues regarding the location of the main and check interpreters and court reporter.
    • Our experience is that it is best to have the main and check interpreters with the witness and to have defending counsel with the witness as well.
    • That can create issues with travel and quarantine, so planning ahead is critical.
  • Settlement / Mediation
    • Most ALJs have historically required an in-person, full day mediation during the discovery period.
    • Mediation now occurs remotely.