USITC Adopts Final Rules Related to E-Discovery

On May 20, 2013, the U.S. International Trade Commission (USITC) announced amendments to its Rules of Practice and Procedure to address the scope of discovery in general and, in particular, the scope of e-discovery in section 337 investigations.

Among other things, the amended rules include specific e-discovery provisions similar to Fed. R. Civ. P. 26(b)(2)(B), limiting discovery of electronically stored information from sources that the producing party identifies “as not reasonably accessible because of undue burden or cost.”  The administrative law judge (ALJ) may still order discovery of such information if the requesting party shows good cause.  However, the ALJ has discretion to “specify conditions for the discovery” (e.g., cost sharing or payment of costs by the requesting party).  The amended rules also include several specific situations in which the ALJ must limit discovery in response to a motion to compel, including when the ALJ determines that “the responding person has waived the legal position that justified the discovery or has stipulated to the particular facts pertaining to a disputed issue to which the discovery is directed.”  Specific guidelines relating to the content and timing of the production of privilege logs are also included in the amended rules, along with provisions governing the inadvertent production of privileged or work-product information.

The amended rules will become effective on June 20, 2013, and will be applicable to investigations instituted after June 20.  Our Special Report on the amendments to the USITC’s Rules of Practice and Procedure is forthcoming.