IP Hot Topic: Amended Rules at the ITC

The U.S. International Trade Commission (“ITC”) recently amended its Rules and Regulations, making a number of changes to its discovery and complaint-filing procedures. The new rules went into effect on February 3, 2025.^[i] The new rules appear to be the ITC’s attempt to create more limits in the discovery process and in some cases align its rules with the Federal Rules of Civil Procedure. Parties litigating at the ITC should be aware of these new changes and its impact on discovery and case strategies. This article will provide an overview of the more significant changes seen in the ITC’s new rules.

• Limit to number of depositions. One of the more significant changes includes the new rule that complainant groups and respondent groups are limited to 20 depositions per group.^[ii] This is a significant change from the previous rule which allowed respondents to take “five depositions per respondent or no more than 20 fact depositions total, whichever is greater.”^[iii] That is, previously, a respondent group with more than four respondents was allowed more than 20 fact depositions. Respondent groups are now restricted to 20 fact depositions regardless of the number of respondents. Moreover, the new rule makes explicit that the fact deposition limitation includes party and non-party depositions alike. This change will require more coordination from Respondents when conducting fact discovery.
• Deposition time limits. In line with the Federal Rules, the ITC likewise added a 7-hour deposition time limit.^[iv] This is in contrast to the previous set of rules which provided no deposition time limits at all. However, parties can seek additional time from the administrative law judge (“ALJ”) if it is “needed to fairly examine the deposition.”^[v] The Commission further noted during the rulemaking process that the time limitation should have the “same computational rules” as the Federal Rule of Civil Procedure 30, and only time on the record would count towards the seven hours.^[vi] Moreover, in response to a comment that suggested that this new rule could impede foreign witness depositions (which may require translators), the Commission noted that such a deposition would be an instance where seeking extra time from the ALJ may be proper.^[vii]
• Responding to RFPs. With respect to Requests for Production, responding parties now need to identify whether documents are being withheld on the basis of an objection.^[viii] This is a departure from the previous rule which only required that the objection should be specified.^[ix] This new change is taken, verbatim, from the Federal Rule of Civil Procedure 34(b)(2)(C). Again, this is yet another change that appears to show the ITC’s attempt to align more closely with the Federal Rules.
• Filing of the complaint. The new rules provide further guidance regarding the filing of a complaint. Some of the key changes are as follows:
  • Confidentiality designations. Under § 210.10(a)(7), if the Commission finds that the complaint or its exhibits contain “excessive designations of confidentiality,” the Commission can require the complainant to file a new complaint.^[x] This may delay the institution of a proceeding, as the Commission can reset the 30-day clock to determine whether to institute the investigation as of the date of the new Complaint.^[xi] Complainants should be careful to limit their confidentiality designations to discrete exhibits, and only as necessary (e.g., confidential domestic industry investment information or license information).
  • Identifying patent applications. Complainants are now required to list known domestic patent applications in their complaints.^[xii] Previously, this rule only required the listing of foreign patent applications. This small but important change will give transparency for patent applications that may not have yet been published.

The Commission appears interested in setting more default boundaries in discovery proceedings—consistent with the Federal Rules—and moving away from the open-ended discovery for which it has long been known. As parties move forward at the ITC, it will be important to keep these changes in mind and adjust their litigation strategies accordingly.

[i] 90 Fed. Reg. 225 (Jan. 3, 2025).

[ii] 19 C.F.R. § 210.28(a) (2025).

[iii] 19 C.F.R. § 210.28(a) (2013)

[iv] 19 C.F.R. § 210.28(b) (2025).

[v] Id.

[vi] https://www.federalregister.gov/documents/2025/01/03/2024-31242/practice-and-procedure-rules-of-general-application-safeguards-antidumping-and-countervailing-duty

[vii] Id.

[viii] 19 C.F.R. § 210.30(b)(2) (2025).

[ix] 19 C.F.R. § 210.30(b)(1) (2013).

[x] 19 C.F.R. § 210.10(a)(7) (2025).

[xi] Id; see also 19 C.F.R. § 210.10(a)(1)(v).

[xii] 19 C.F.R. § 210.12(a)(9)(v).