Testimony by Videoconference

Managing Intellectual Property

Previous articles in this series have discussed proceedings before the United States International Trade Commission. One issue that may arise during the hearing phase is if a witness refuses or prefers not to appear before the ITC in Washington, DC. It is often preferable to have a witness’ live testimony rather than a written statement. The ITC recently allowed a witness to testify by videoconference, opening the door for parties to consider alternatives in order to accommodate unwilling witnesses.

A. The ITC’s Subpoena Power
The ITC has nationwide subpoena power when conducting investigations. If a party does not comply with a subpoena from the ITC, the ITC may invoke the aid of any federal court of the United States to seek compliance. The ITC, however, does not have direct subpoena power over foreign witnesses.

B. What if the Witness Does Not Want to Appear?
A domestic witness who does not wish to appear before the ITC can either (1) file a motion to quash the subpoena so he would not have to appear or (2) force the ITC to seek compliance in federal court. If the ITC grants the witness’ motion to quash, the witness need not show up. Seeking compliance through a federal court can be a slow process, which may not be desirable in the fast-paced ITC, where investigations are typically completed in twelve to sixteen months. 
Even more troubling are witnesses located in foreign countries, where the ITC has no direct subpoena power to require them to appear. While the ITC may attempt to exercise its power through a domestic entity related to the foreign witness or through Hague Convention procedures, such options are rarely successfully used.
What can parties do in such situations?

C. Use Technological Alternatives to Compromise
A party seeking a witness’s testimony should consider technological alternatives to requiring the witness’s physical presence. As one example, a third-party witness recently did not wish to appear before the ITC. The Administrative Law Judge balanced the hardship the witness would suffer traveling to the ITC with the interest of the party seeking his testimony. The judge decided to allow the witness to testify by videoconference. The party seeking the witness’ live testimony was required to bear the costs and responsibility of arranging for the proper equipment.  This compromise should allow parties to consider new measures to take in the future when seeking witness testimony. Bearing the costs of such alternatives may be a small price to pay in exchange for important testimony. Appearing by videoconference may also provide strategic benefits for witnesses who wish to testify but do not want to travel to the ITC or to the United States.

D. Conclusion
Having live testimony from a witness at a hearing is often advantageous. Getting the cooperation of witnesses is not always easy, especially with foreign witnesses over which the ITC has no subpoena power. Parties before the ITC should consider creative alternatives, such as videoconferencing, to compromise with unwilling witnesses. 
By Andrew Ong, Gabe Ramsey and Bas de Blank

This article was originally published in Managing Intellectual Property in September 2011.