The privilege logging relief may prove to be ephemeral, however, because the proposed rule (e)(3) provides only that the ALJ may deny such a motion. The language may provide the ALJ with discretion to not enforce the written agreement. In Certain Dynamic Random Access Memory and NAND Flash Memory Devices and Products Containing Same, Inv. No. 337-TA-803, Order No. 63 (May 14, 2012) (ALJ Gildea), the ALJ, in fact, refused to enforce a claw-back provision in a discovery stipulation between the parties and proceeded to find that the producing party waived privilege.
While the final rule may be revised based upon the public comment, there is optimism among the ITC bar that these rules will provide some relief to the discovery expense and burden. Alexander Chinoy, of Covington & Burling and president of the International Trade Commission Trial Lawyers Association, says that he and other members of the bar with whom he has spoken "welcome the Commission's focus on e-discovery and its efforts to provide discovery limits." Dickstein Shapiro's Kimberly Parke, chair of the International Trade Commission Committee of the American Bar Association's Intellectual Property Law Section, is similarly optimistic, Parke notes that currently the ALJs have to rely on their inherent discretionary power to impose discovery limits and that the proposed rules would provide the ALJs "with a framework to support a decision to limit discovery."
Ed Lebow, the leader of Haynes and Boone's International Trade Practice Group, puts it this way: "under the current discovery regime an ALJ's decision to limit the record is subject to the Commission's scrutiny. Given the investigation time constraints there is no time to go back to supplement the record if the Commission disagrees with an ALJ's decision; so the current framework creates an environment that works to discourage the ALJs from limiting discovery."
Assuming that the ITC's final rule is not significantly different from the Notice, the proposed rules will likely encourage discovery motion practice before the ALJs. Whether, and to what extent, the ALJs actually limit discovery will very much be subject to each judge's discretion and it will remain to be seen whether the proposed rules would actually reduce expensive, inefficient, unjustified, or unnecessary discovery practices at the ITC.
Mark Michels is a director in Deloitte Discovery practice of Deloitte Financial Advisory Services. As a nonlegal service provider, Deloitte's services are provided under the direction and supervision of the client's legal counsel. Email: email@example.com.