By Eric Schweibenz
In many ways, section 337 practice is similar to patent litigation in the federal district courts.  However, there are a number of subtle, yet important, distinctions.  By way of just one example, hearsay is generally admissible in section 337 proceedings at the ITC.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Fed. R. Evid. 801(c).  Pursuant to Rule 802,              “[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”  Fed. R. Evid. 802.

Under Commission Rule 210.37(b), “relevant, material, and reliable evidence shall be admitted,” and “irrelevant, immaterial, unreliable, or unduly repetitious evidence shall be excluded.”  This includes the admission of hearsay statements.  In Certain Light-Emitting Diodes and Products Containing Same (Inv. No. 337-TA-512 ), ALJ Bullock stated that “hearsay evidence is not per se excludable in administrative proceedings but is an argument affecting the weight to be given certain evidence.”  This is very different from district court, where judges are bound by the strict requirements of the Federal Rules of Evidence.  In district court, hearsay must qualify under one of the enumerated exceptions if it is to be admitted.  In the ITC, in contrast, ALJs have wide discretion in determining whether or not to admit hearsay evidence.

In exercising this discretion, ALJs often admit the hearsay evidence and state that any objections to the hearsay’s reliability will go to the weight of the evidence rather than its admissibility.  After all, there are no juries in section 337 proceedings, and each ALJ works to create as complete a record as possible for the Commission.  In certain circumstances, ALJs will cite one of the hearsay exceptions from the Federal Rules of Evidence in order to justify their decision to admit a particular piece of evidence, but this is not necessary.  In fact, ALJs will often issue ground rules specifically stating that hearsay is admissible.  For example, ALJ Luckern’s ground rules in Certain Video Game Machines and Related Three-Dimensional Pointing Devices (Inv. No. 337-TA-658) state that “section 337 investigation hearings are governed by the Administrative Procedure Act (the APA) and hearsay may be admissible.”

However, if the proffered evidence is clearly unreliable, it may still be excluded.  For example, in Certain Integrated Circuit and Telecommunications Chips (Inv. No. 337-TA-337), ALJ Luckern held that “out of court declarations by counsel for other respondents whose interests may not be the same as that of [present respondents], and which could not be tested…were not sufficiently reliable to allow their admission into evidence.”  Thus, while there is no per se rule excluding hearsay evidence in the ITC, ALJs do have the discretion to exclude such evidence if they believe that it is unreliable.

Accordingly, ITC litigants should be prepared for hearsay evidence to be admitted.  Traditional arguments from district court practice that hearsay evidence should be automatically excluded based on the Federal Rules of Evidence are not likely to succeed at the ITC.