United States: ITC Refuses To Include In Exhibits An Email Not Timely Produced During Discovery

On April 8, 2019, ALJ Cheney issued an order denying the addition of an email to the exhibit list at the eve of the evidentiary hearing. Certain Strontium-Rubidium Radioisotope Infusion Systems, and Components Thereof Including Generators, Inv. 337-TA-1110, Order No. 33. We have previously reported on this investigation (here).

In our previous post, we reported that the ALJ denied Respondents' Motion to Supplement their Notice of Prior Art to include several non-patent publications because the Respondents did not explain why these references were not obtained earlier or how these references pertained to the asserted patents.

At issue in this instance is an email produced on January 22, 2019 by Respondents Jubilant DraxImage, Inc., Jubilant Pharma Limited, and Jubilant Life Sciences Limited (collectively "Jubilant") – five months after the close of fact discovery. On March 29, 2019, right before the evidentiary hearing, Jubilant moved for leave to supplement its exhibit list to include the email, which according to Jubilant would refute Complainant Bracco's allegation that Jubilant copied certain features of Bracco's products.

Bracco opposed the addition of the email to Jubilant's exhibit list on the basis that the exhibit was not timely produced and would unduly prejudice Bracco if added to Jubilant's exhibit list.

ALJ Cheney sided with Bracco and denied Jubilant's motion for leave to supplement its exhibit list to include the email. He explained that the "prejudice to Bracco and Staff was obvious" – all discovery has was closed and but for the government shutdown earlier this year, the evidentiary hearing would already be concluded. Jubilant's obligation to supplement its discovery under Commission Rule 210.27(f) did not give it "a right to have tardy discovery included on an exhibit list, introduced at an evidentiary hearing, or admitted into evidence."

Takeaway

This order is a reminder to parties of the importance of following the ground rules and scheduling orders, especially given the fast-paced nature of ITC investigations. Parties should be mindful that the ITC can be strict in its enforcement of the rules and that attempts to provide late supplementation of evidence will be met with significant resistance, especially if the delay is not justified.

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