ITC Implements Updated Rules of Practice and Procedure

Earlier this month, the U.S. International Trade Commission (ITC) implemented amendments to its Rules of Practice and Procedure governing Section 337 investigations. The amended rules, which govern investigations instituted after February 3, 2025, follow a Commission Notice of Proposed Rulemaking and subsequent call for public comments on the proposed rules. Although the Commission amended multiple rules, several changes stand out.

Depositions

The Commission amended Rule 210.28 to limit depositions to seven hours on the record. In amending Rule 210.28, the Commission aligned its rule with the current version of Federal Rule of Civil Procedure (FRCP) 30, which caps depositions at seven hours. Parties to Section 337 investigations, however, may agree to additional deposition time.

Notably, the ITC Trial Lawyers Association (ITCTLA) and a law firm responded to the Commission’s call for comments on the proposed rule. The ITCTLA recommended exempting translated depositions from the seven-hour cap, and the law firm recommended capping translated depositions at 10 hours.

The Commission declined to treat translated depositions differently because FRCP 30 does not treat translated depositions differently, and in responding to the comments, the Commission noted that parties can agree to longer depositions. Ultimately, although the amended rule may not affect all depositions in Section 337 investigations, it certainly will affect at least some depositions in a meaningful way by bringing certainty to the maximum duration of a single deposition.

Objections to requests for production

The Commission amended Rule 210.30 to mirror the current version of FRCP 34, which requires parties to state whether they are withholding responsive materials.

In response to the proposed rule, the ITCTLA suggested that the Commission note that the amended rule also comports with the Advisory Comment to FRCP 34. The comments to FRCP 34 clarify that although production logs are not required, a party must place others on notice if it is withholding documents based on an objection. The ITCTLA also suggested that the Commission note that federal court decisions will guide litigants and the Commission’s judges in adjudicating discovery disputes.

The Commission agreed with the ITCTLA’s comments in its amended rules. The Commission’s amended rule represents a fundamental change from prior Section 337 practice in responding to requests for production and further alignment with District Court practice.

Amended pleadings

The Commission amended Rule 210.14(b)(1), which governs amended pleadings. Now, if a complainant seeks to amend the complaint, the amendment must comply with Rule 210.12(a), which sets forth the requirements for bringing a complaint. Respondents, in turn, must respond to any amended complaint. The changes to Rule 210.14(b)(1) resolve uncertainty created by the filing of an amended complaint.

Commission Rule 210.14(b) continues to diverge significantly from FRCP 15 in several regards. These differences likely are driven by the Commission’s directive to complete its investigations at the earliest practicable time and the Commission’s obligation to assess the sufficiency of the pleading before it institutes or amends an investigation. Given Section 337 investigations’ short timelines and the amended rule’s heightened requirements, amended Rule 210.14(b) may decrease the number of amended complaints filed.

Litigation funding

In response to proposed amendments to Rule 210.12, which governs complaints, several commenters suggested that complainants be required to disclose whether they are using third-party litigation funding. This proposal would align Commission practice with federal District Court judges who have required parties to disclose whether they are using third-party funding, such as Judge Connolly in Delaware.

The Commission declined to adopt the proposal, given that it was not part of the Commission’s original Notice of Proposed Rulemaking. Ultimately, the role that litigation funding plays in an investigation itself remains an open issue, as disputes over funding arise relatively infrequently. However, the Commission may revisit this issue in the future.

For further reading, a copy of the amended rules is available here.