By Eric Schweibenz
On October 5, 2012, the International Trade Commission (“Commission”) published a Notice of proposed rulemaking, announcing amendments to its Rules of Practice and Procedure.  In particular, the Commission proposes to amend Section 210.27 by adding new subsections (c), (d), and (e) that include specific limitations on electronically stored information, new general limitations on discovery, and specific procedures to address withholding otherwise discoverable information on the grounds of attorney-client privilege and work product protection, and procedures to address the potential waiver of such privileged information if produced during the discovery process.

According to the notice, the intended effect of the proposed amendments is to, “reduce expensive, inefficient, unjustified, or unnecessary discovery practices in agency proceedings while preserving the opportunity for fair and efficient discovery for all parties.”  Each of the three new proposed subsections of Section 210.27 will be separately addressed below.

Proposed Limitations on Electronically Stored Information

The commentary accompanying the proposed rules states that new subsection 210.27(c) is similar to Federal Rule of Civil Procedure 26(b)(2)(B), and the new subsection would provide that, “a person need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.”  The proposed subsection further provides that a party seeking such information could nonetheless file a motion to compel its production.  If, in response to the motion to compel, the person from whom discovery is sought makes a showing that the information is not reasonably accessible because of undue burden or cost, then the administrative law judge (“ALJ”) would be allowed to order discovery from such sources if the requesting party showed good cause, taking into account proposed considerations contained in new subsection (d).  Proposed subsection (c) would also allow the ALJ to specify conditions for discovery of electronically stored information, for example by requiring the requesting party to pay part or all reasonable costs of obtaining information from sources that are not reasonably accessible.  The comments specifically state that the case law developed under Federal Rule of Civil Procedure 26(b)(2)(B) “would provide guidance for application of proposed subsection (c).”

General Limitations on Discovery

The commentary to the proposed rules states that proposed new subsection (d) is similar to Federal Rule of Civil Procedure 26(b)(2)(C), and that new subsection (d) requires limitations on discovery if the ALJ determines that the discovery sought is duplicative or can be obtained from a less burdensome source; the party seeking discovery has had ample opportunity to obtain the information; or the burden of the proposed discovery outweighs its likely benefit.  However, the comments provide that proposed new subsection (d) differs from its Federal Civil Rule counterpart by (1) requiring the ALJ to limit discovery if the person from whom discovery is sought has waived the legal position that justified the discovery or has stipulated to the facts pertaining to the issue to which the discovery is directed, and (2) the proposed subsection (d) requires the ALJ to consider the importance of the discovery in resolving the issues to be decided by the Commission rather than, in the case of the Federal Civil Rule counterpart, analyzing the importance of the issues at stake in the action.

Procedures to Claim and Mitigate Waiver of Privileged Information

The commentary states that proposed subsection (e) addresses uncertainly surrounding any alleged waiver of privileged information that is produced during discovery, and the absence of any Commission rules requiring the production of a privilege log when withholding information on the basis of privilege or work product protection.  The comments state that proposed subsection (e) provides uniform procedures requiring the production of privilege logs similar to Federal Rule of Civil Procedure 26(b)(5).  However, proposed subsection (e) provides more detail than its Federal Rule counterpart by (1) describing in greater detail the specific categories required to be contained within the privilege log, and (2) adding that the privilege log must be produced within ten days after expressly making the claim when responding to a relevant question or request.  The proposed subsection (e) allows parties to agree to waive compliance with the privilege log requirement for certain time frames.

The comments also state that proposed subsection (e) is similar to Federal Rule of Civil Procedure 26(b)(5)(B)’s procedure for addressing the recall or mitigation of potentially privileged information that has been produced during discovery.  The proposed subsection (e) goes further than its Federal Rule counterpart by providing strict timelines for persons receiving alleged privileged information to return, sequester, or destroy the specified information; not use or disclose the information until the dispute is resolved; retrieve the information from anyone to whom the information was disclosed prior to the notification of privilege; meet and confer to resolve the privilege question; and then file any motion to compel the production of the privileged information, using only the description of the potentially privileged information  provided on a privilege log.  The comments state that subsection (e) is not intended to alter any state or federal law regarding waiver of privileged or work-product information, and that the Commission would expect ALJs “to apply federal and common law when determining the consequences of any allegedly inadvertent disclosure,” including, “whether the holder of the privilege or protection took reasonable steps to prevent disclosure of the information and other considerations found in Federal Rule of Evidence 502.”

In order to be considered, the notice states that written comments regarding the proposed rules must be received by 5:15 p.m. on December 4, 2012.