A Unique Solution to COVID-19-Related Delays At the U.S. International Trade Commission

In the wake of the COVID-19 pandemic, however, the ITC was forced to suspend in-person hearings and halt its fast-paced schedules while it explored existing technological resources and reliable and secure options available for video conferencing that would protect parties' confidential business information (CBI). See, Commission's Measures to Conduct Remote Section 337 Evidentiary Hearings Involving Confidential Business Information (June 26, 2020). After several months of evaluating its options, on July 20, 2020, the ITC announced that it had chosen "WebEx Meeting as its secure FedRAM certified video teleconferencing solution for Section 337 hearings and investigation conferences involving confidential business information." USITC Response to Covid-19 (July 20, 2020). In addition, the Commission indicated that "the Administrative Law Judge [ALJ] presiding over each investigation has responsibility for determining appropriate hearing procedures." Id.

Even before the Commission announced or was able to implement a secure, remote procedure to conduct Section 337 hearings, ALJ Lord proposed "holding" an evidentiary hearing based only on written submissions to address the challenges of conducting evidentiary hearings during the pandemic. On April 17, 2020, in Certain Road Construction Machines and Components Thereof, ALJ Lord issued an order suspending the June 2, 2020 evidentiary hearing date in light of the Commission's determination to extend its postponement of all in-person Section 337 hearings. Inv. No. 337-TA-1088, Order No. 43 (Apr. 17, 2020). She then scheduled a teleconference and directed the parties to be "prepared to discuss proposals for the conduct of the proceeding in compliance with the postponement of in-person hearings," including the possibility of a determination "based on written submissions, without a live hearing." Id. Historically, Section 337 hearings are conducted with live testimony, although three out of six ALJs (Chief ALJ Bullock, ALJ Shaw, and ALJ Lord) generally require the parties to submit their direct examination of witnesses through written witness statements and only use live testimony for cross-examination and redirect. See, e.g., Certain Gabapentin Immunoassay Kits and Test Strips, Components Thereof, and Methods Therefor, Inv. No. 337-TA-1239, Order No. 2 at 23 (Jan. 25, 2021) (CALJ Bullock); Certain Cloud-Connected Wood-Pellet Grills and Components Thereof, Inv. No. 337-TA-1237, Order No. 2 at 20 (Dec. 29, 2020) (ALJ Lord); Certain Active Optical Cables and Prods. Containing the Same, Inv. No. 337-TA-1233, Order No. 2 at 12 (Dec. 10, 2020) (ALJ Shaw).