The usual rules for cost control in patent litigation (about which I have recently written) must be supplemented for cases before the International Trade Commission (ITC).
ITC cases can reach trial in as little as seven months. Parties must quickly get to the merits, and discovery deadlines are far more compressed than in district court. The short time frame and fast pace of an ITC action make it challenging for all parties—both complainants and respondents—to litigate efficiently. Some lawyers have suggested (and some clients have thrown up their hands and accepted) that efficient case management simply is not possible at the ITC. Strategies are available, however, for controlling ITC litigation expense while maximizing the chances of success.
Insulate the merits team
Given the fast pace of ITC actions, counsel should be split into separate teams for discovery and the merits. Simply put, the attorneys responsible for winning the case cannot afford to be bogged down in document production or discovery disputes. Their energy must be focused on developing the key arguments for trial and preparing the cross-examination of opposing experts. Like any other case, an ITC trial is won or lost on cross. The merits team should be working on cross as early as possible and certainly not later than the day expert reports are served.