August 31, 2015 - ITC Procedures
Practice Tip: Letters Rogatory at the ITC
By: Michelle Yang
Letters rogatory provide a means for a party to request judicial assistance from foreign courts to obtain discovery from foreign third parties. Parties before the International Trade Commission ("ITC" or "Commission") may use letters rogatory to obtain documents and deposition testimony from foreign third parties that decline to provide the information voluntarily. However, because the letters rogatory process can take considerable time to complete and has many specific procedural requirements, parties should be prepared to commence the process as early as possible in the investigation. This article provides some practical information regarding the use of letters rogatory as part of discovery in an ITC investigation.
The typical process for obtaining, transmitting, and executing letters rogatory in an ITC investigation includes the following steps:
The party files an application with the ALJ seeking an order recommending that the District Court for the District of Columbia ("D.D.C.") issue a letter rogatory to the appropriate judicial authority of the foreign jurisdiction;
The party submits the ALJ's recommendation to the D.D.C., which then issues the letter rogatory;
The party submits the letter rogatory to the U.S. Department of State ("State Department"), which transmits it to the judicial authority in the foreign jurisdiction;
The foreign court then executes the letter rogatory under its country's laws and regulations, and obtains the requested testimony and/or documents.
As discussed below, the precise procedural and formatting requirements for letters rogatory vary depending on the foreign country to which it is directed.
Format of Letters Rogatory
In general, letters rogatory must include: (1) a formal request for international judicial assistance; (2) a brief synopsis of the case; (3) information identifying specific persons to be served; (4) a list of specific questions to be asked in the form of written interrogatories; and (5) a list of documents to be produced. The State Department provides both a general guide for letters rogatory and country-specific information, such as the required format of the letters, service of process, arrangement of depositions, and authentication of documents. See https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/internl-judicial-asst/obtaining-evidence/Preparation-Letters-Rogatory.html; https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information.html.
For instance, letters rogatory transmitted to Switzerland should be written in or translated into German, French or Italian, depending on the canton. As another example, a Taiwan court executing a letter rogatory will conduct any examination of witnesses itself, based on written questions (i.e., depositions by attorneys are not permitted). Parties should carefully examine the requirements for the particular country in which the discovery is sought.
Obtaining the Letters Rogatory
Parties must obtain the signature of a judge before submitting a letter rogatory to the State Department. Some countries do not accept letters rogatory issued by an Administrative Law Judge ("ALJ"). Cf. Certain Display Devices, Inv. No. 337-TA-713, Order No. 8 at 2 (June 10, 2010) (noting "there is no evidence that the Commission is, in fact, a 'tribunal' as defined by the Inter-American Convention on Letters Rogatory"). As a result, parties before the ITC often file a motion for recommendation to the District Court for the District of Columbia to issue a letter rogatory to obtain evidence from a third party.
When moving for a recommendation to the D.D.C. to issue a letter rogatory, the party should explain how the deposition testimony and/or documents requested are relevant to the investigation, how the letter rogatory is narrowly tailored to obtain the relevant information, and why the party is unable to obtain the relevant information by other means. See e.g., Certain Marine Sonar Imaging Systems, Inv. No. 337-TA-926, Order No. 3 at 2-3 (Sept. 30, 2014).
The ALJ can decline an application for a recommendation to issue a letter rogatory for failure to make these showings. In Certain Marine Sonar Imaging Systems, for example, the respondents were required to file a corrected letters rogatory because their original request for prior art information included an overly broad date range that extended well after the patent's filing date. See id., at 3. In Certain Display Devices, the ALJ denied a motion for letters rogatory because the moving party failed to show it had exhausted traditional means of discovery, such as subpoenas. See Certain Display Devices, Inv. No. 337-TA-713, Order No. 8 at 2 (June 10, 2010).
The ALJ can also deny a motion for letters rogatory if the letter do not meet the specific format requirements. In Certain Personal Computers, the ALJ rejected the submitted letters rogatory as deficient, because it contained overbroad deposition topics and document requests, instead of narrowly-tailored written questions. See Certain Personal Computers, Inv. No. 337-TA-547, Order No. 10 at 2-3 (Feb. 8, 2005). The ALJ noted that Taiwan courts obtain witness testimony using specific written questions. Id. at 2. The ALJ also found that the letters rogatory failed to identify the specific person to be served and failed to include certified translations in Mandarin Chinese. Id. at 3. Parties should be aware of such country-specific requirements when they prepare their letters rogatory.
Transmitting the Letters Rogatory
The State Department transmits letters rogatory through diplomatic channels to the foreign court. Parties may attempt to transmit letters rogatory directly to the foreign court through a local attorney, if such direct transmission is permitted.
Once a letter rogatory is transmitted to the foreign court, the court will execute the letter under its country's laws and regulations. In many courts, local attorneys may be needed to shepherd the letter rogatory through the process and obtain the desired discovery.
Once executed, the letter rogatory is transmitted back to the State Department and then sent back to the court that originally signed the letter.
The United States, Mexico, and certain Central and South American countries are parties to the Inter-American Convention on Letters Rogatory and Additional Protocol. For parties to this agreement, requests for service of letters rogatory should be sent to the U.S. Central Authority, U.S. Department of Justice, Civil Division, Office of Foreign Litigation, via its contractor, Process Forwarding International. Process Forwarding International transmits the letters rogatory to the corresponding Central Authority in the foreign country.
The United States is also a party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. When transmitting letters rogatory to a country that is a party to the Hague Convention, the letters rogatory and an online request form should be completed in duplicate and submitted directly to the Central Authority designated by the foreign country.
Because the execution of letters rogatory can take considerable time, an ITC party must file its application for letters rogatory as early as possible in the investigation to have any chance of obtaining usable discovery. Because fact discovery in ITC proceedings is usually limited to approximately 4-6 months, there is a substantial risk that the time required to complete the letters rogatory process may extend beyond the discovery cutoff, rendering such discovery potentially unusable. A party should also consider retaining foreign counsel to help expedite the process once the letter rogatory has been transmitted to the foreign jurisdiction.