ITC Trial Lawyers Association Annual Meeting: November 13, 2014 – ITCTLA held its Annual Meeting on November 13, in Commission Main Hearing Room.  Highlights of the meeting, included Chairman Broadbent’s opening remarks advising that total number 49 (FY 2014) of new investigations and ancillary proceedings remains strong compared to 52 (FY 2015); average target length for investigations decreased to 17.1 months (FY 2014) compared to 19.7 (FY 2013); and Commission will issue new proposed Rules amendments and an improved website with training in near future.  Chairman Broadbent also welcomed suggestions to celebrate Commission’s 100th Anniversary in 2016.  A panel on AIA Post-Issuance Proceedings and Their Impact on 337 Proceedings, including PTAB ALJ Bryan Moore, reported that since AIA procedures were implemented in September 2012 through October 23, 2014, 2216 petitions have been filed, including 1,956 IPRs, 242 CBMs and 2 PGRs, currently averaging over 100 filings per month.  To date, no Section 337 investigations have been stayed pending an IPR proceeding.  In next panel on Views from the Bench, comments of Chief ALJ Bullock, and ALJs Essex, Pender and Lord, on, inter alia, Markman Hearings varied from “a huge fan of Markman” (Bullock) to assess on a case by case basis (Essex); summary determination is “very useful” (Lord) to should be selectively filed on issues such as standing and domestic industry (Pender); and all Judges found OUII investigative attorneys to be helpful in narrowing discovery disputes.  At the meeting, Commission released Section 337 Mediation Program 5th Ed. Publication No. 4497.

ALJ Pender Grants Default Judgment and Awards Attorneys’ Fees and Costs As  Spoliation Sanction – On October 20, 2014, ALJ Pender issued an Initial Determination in Certain Opaque Polymers, Inv. No. 337-TA-883, finding that Respondent Organik Kimya acted intentionally or in bad faith in destroying, or allowing the destruction of, evidence concerning Complainant Dow Chemical’s trade secret misappropriation claim; and that it engaged in a pattern of deceit to hide its destruction actions from the ALJ.  Due to the severity of the conduct, which included the destruction of hard drives after preservation orders were issued, the ALJ granted default judgment against Organic Kimya as to Dow’s misappropriation claim, and awarded attorneys’ fees of $1,345,707 and costs of $598,672 against both Organic Kinya and its counsel, jointly and severally.  Although Commission Rule 210.33, which addresses the failure to make or cooperate in discovery and sanctions, does not specifically include default judgment as a sanction, Rule 210.33 (b)(6) provides that the ALJ may “[o]rder any other non-monetary sanction available under Rule 37(b) of the Federal Rules of Civil Procedure,” and Rule 37(b) lists among its enumerated sanctions “rendering a default judgment against the disobedient party.”  The ALJ’s award of monetary sanctions was pursuant to Rule 210.33(c), which provides for the payment of reasonable expenses, including attorneys’ fees, caused by the failure “to obey an order or permit discovery.”  Monetary sanctions were awarded because, inter alia, there was no evidence a litigation hold was issued in connection with the investigation, and because Organik Kimya’s submission addressing the spoliation allegations was “not the slightest bit credible on its face.”