UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN FLOCKED SWABS, PRODUCTS
`CONTAINIG FLOCKED SWABS, AND
`METHODS OF USING SAME
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` Inv. No. 337-TA-1279
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`ORDER NO. 45:
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`DENYING COMPLAINANTS’ MOTION TO COMPEL
`RESPONDENT JCM TO PRODUCE DISCOVERY RELATING TO
`UNIMPORTED PRODUCTS
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`(May 2, 2022)
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`On February 23, 2022, Complainants Copan Italia S.p.A. and Copan Industries, Inc.
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`(collectively, “Copan”) filed (1279-038; EDIS Doc. ID 763848) a motion to compel Respondent
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`Jiangsu Changfeng Medical Industry Co., Ltd. (“JCM”) “to provide discovery on two of its
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`flocked swab products (model numbers not yet identified).” Mot. 1. On March 7, 2022, JCM
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`and the Office of Unfair Import Investigations (“Staff”) filed (EDIS Doc. No. 764743; EDIS
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`Doc. No. 764758) responses in opposition to Copan’s motion.
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`For the reasons set forth below, Copan’s motion is DENIED.
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`I.
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`LEGAL STANDARD
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`“A party may obtain discovery regarding any matter, not privileged, that is relevant to . . .
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`the claim or defense of the party seeking discovery or to the claim or defense of any other party.”
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`19 C.F.R. § 210.27(b). “Discovery in a Section 337 investigation is not limited to specific
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`products identified in the Complaint. Instead, the scope of discovery is governed by the Notice
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`of Investigation.” Certain Biometric Scanning Devices, Inv. No. 337-TA-720, Order No. 10,
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`PUBLIC VERSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN FLOCKED SWABS, PRODUCTS
`CONTAINIG FLOCKED SWABS, AND
`METHODS OF USING SAME
`
` Inv. No. 337-TA-1279
`
`ORDER NO. 45:
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`DENYING COMPLAINANTS’ MOTION TO COMPEL
`RESPONDENT JCM TO PRODUCE DISCOVERY RELATING TO
`UNIMPORTED PRODUCTS
`
`(May 2, 2022)
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`On February 23, 2022, Complainants Copan Italia S.p.A. and Copan Industries, Inc.
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`(collectively, “Copan”) filed (1279-038; EDIS Doc. ID 763848) a motion to compel Respondent
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`Jiangsu Changfeng Medical Industry Co., Ltd. (“JCM”) “to provide discovery on two of its
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`flocked swab products (model numbers not yet identified).” Mot. 1. On March 7, 2022, JCM
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`and the Office of Unfair Import Investigations (“Staff”) filed (EDIS Doc. No. 764743; EDIS
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`Doc. No. 764758) responses in opposition to Copan’s motion.
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`For the reasons set forth below, Copan’s motion is DENIED.
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`I.
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`LEGAL STANDARD
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`“A party may obtain discovery regarding any matter, not privileged, that is relevant to . . .
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`the claim or defense of the party seeking discovery or to the claim or defense of any other party.”
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`19 C.F.R. § 210.27(b). “Discovery in a Section 337 investigation is not limited to specific
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`products identified in the Complaint. Instead, the scope of discovery is governed by the Notice
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`of Investigation.” Certain Biometric Scanning Devices, Inv. No. 337-TA-720, Order No. 10,
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`PUBLIC VERSION
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`2010 WL 4786591, at *1 (Sept. 8, 2010) (citing multiple orders); see, e.g. Certain Wireless
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`Commc’n Equip., Articles Therein, & Prods. Containing the Same, Inv. No. 337-TA-577, Order
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`No. 14, 2007 WL 868887, at *1 (Jan. 11, 2007). Indeed, the scope of discovery has been held to
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`be “generally somewhat broader than the scope of the investigation itself.” Certain Integrated
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`Circuits, Chipsets, & Prods. Containing Same Including Televisions, Media Players, &
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`Cameras, Inv. No. 337-TA-709, Order No. 8, 2010 WL 4783037, at *6 (Jun. 18, 2010).
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`II. BACKGROUND
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`On September 3, 2021, Copan served its first set of interrogatories, which asked, inter
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`alia, JCM to “[i]dentify each JCM Product.” Mot. Ex. 1 (Copan’s First Set of Interrogatories to
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`JCM (Nos. 1-65)) at 10. As defined by Copan’s interrogatories, “‘JCM Product(s)’ means all
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`Flocked Swabs and products containing Flocked Swabs, including but not limited to Kits
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`Containing Flocked Swabs, that during the Relevant Time Period are, or will be, made, sold,
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`offered to sell, and/or imported by, or on behalf of, JCM . . . .” Id. at 5. In response, JCM
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`identified a single product: CF 150-P2C. JCM Resp. Ex. 4 (JCM’s Seventh Supplemental
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`Responses (Feb. 25, 2022)) at 2-3.
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`At his deposition, JCM’s corporate witness, Weidong Wang, testified that JCM
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`manufactures three models of flocked swabs: an oropharyngeal swab, a nasopharyngeal swab,
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`and an oro- and nasopharyngeal swab. Mot. Ex. 2 (Wang Dep.) at 18:11-19:5. The CF 150-P2C
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`swab identified in JCM’s interrogatory responses is a nasopharyngeal flocked swab. Mot. Ex. 10
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`(JCM ‘s “Instructions for Use”) at JCM_1279_00000002 (identifying product codes for throat,
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`nasal, and nasopharyngeal flocked swabs). Copan asked JCM to “supplement its interrogatory
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`PUBLIC VERSION
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`responses to reflect the three flocked swab models identified by Mr. Wang.” Mot. Ex. 3 (Letter
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`from S Casey to D. Valencia) at 1 (Jan. 17, 2022). In response to Copan’s request, JCM objected
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`to Copan’s interrogatories to the extent that they “seek[] information related to items not
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`imported into the United States,” and stated that its responses were “up to date as to products that
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`have been imported into the United States.” Mot. Ex. 4 (Letter from D. Valencia to S. Casey) at
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`1 (Jan. 24, 2022).
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`III. DISCUSSION
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`Copan seeks to compel JCM to supplement its discovery responses to reflect the
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`oropharyngeal swab and oro- and nasopharyngeal swab identified by Mr. Wang at his deposition.
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`Copan argues that whether the “products have not yet been imported is immaterial.” Mem. at 5.
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`According to Copan, “[p]utting forward these products for adjudication ‘serves the interest of
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`providing predictability in the enforcement of remedial orders.’” Id. (quoting Certain Two-Way
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`Radio Equipment and Systems, Related Software and Components Thereof, Inv. No. 337-TA-
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`1053 (“Two-Way Radio”), Comm’n Op. at 23 (Dec. 18, 2018; EDIS Doc. ID. 664543)).
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`Noting that there is no evidence that the products-at-issue have been imported, sold for
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`importation, or sold after importation by JCM or by anyone else, JCM counters that “[i]t is well-
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`settled that discovery in Section 337 investigations does not reach products that have not been
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`imported or sold, within the meaning of Section 337, and that will not be imported or sold before
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`the close of the evidentiary record.” JCM Resp. at 2. Pointing to the declaration of XiXi Cao,
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`JCM’s sale manager, JCM represents that it
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`,’”
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`PUBLIC VERSION
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`and that it
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`’” Id. at 4 n. 2 (quoting JCM Resp. Ex. 2 (Cao Decl.) ¶¶ 3-4)).
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`Staff argues that because the products-at-issue are not accused and because JCM is not
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`seeking adjudication of the products, “any eventual adjudication of JCM’s additional, non-
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`accused products is a determination left to Customs, rather than the ALJ and/or Commission, in
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`the event an exclusion order were to issue in this investigation.” Comm’n Resp. at 4-5. Staff
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`submits that JCM should be precluded from seeking adjudication of the products-at-issue at the
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`hearing. Id. at 4.
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`Copan cites two Commission opinions in support of its argument that JCM should be
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`compelled to produce discovery relating to products that have not been imported: Certain
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`Human Milk Oligosaccharides and Methods of Producing the Same, Inv. No. 337-TA-1120
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`(“Oligosaccharides”), Comm’n Op. at 19-21 (June 8, 2020; EDIS Doc. No. 712205) and Two-
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`Way Radio, Comm’n Op. at 23-28. See Mem. at 2-9. These cases are inapposite as they address
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`whether redesign products should be adjudicated over the complainants’ objections.
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`Oligosaccharides, Comm’n Op. at 19-21; Two-Way Radio, Comm’n Op. at 23-28. By
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`affirmatively seeking adjudication of the redesign products, the respondents signaled a clear
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`intent to import the products during the life of a remedial order. In contrast, not only is there no
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`evidence that the products-at-issue have been imported, JCM has stated explicitly that it “‘
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`’” and that it “‘
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`PUBLIC VERSION
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`’” JCM Resp. at 4 n. 2 (quoting JCM Resp. Ex. 2 (Cao
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`Decl.) ¶¶ 3-4)).1
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`Copan argues that JCM’s sales manager, Mr. Cao, was unable to “confirm one way or
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`another whether these swabs have or have not been, in fact, imported into the United States.”
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`Mem. at 3 (citing Mot. Ex. 5 (Cao Dep.) at 44:20-45:17). At his deposition, Mr. Cao was unable
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`to confirm whether JCM’s third-party customers had imported the products-at-issue. Mot. Ex. 5
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`(Cao Dep.) at 44:20-45:17. With regard to JCM itself, Mr. Cao testified unambiguously that
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` JCM Resp. Ex. 4 (Cao Dep.) at 68:12-16, 75:11-20.
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`In other investigations, discovery has been limited to accused products that have been
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`imported or are likely to have been imported during an investigation. See, e.g., Certain Activity
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`Tracking Devices, Systems, and Components Thereof, Inv. No. 337-TA-963, Order No. 27 (Feb.
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`1, 2016; EDIS Doc. ID 574799) at 4 (“Fitbit must therefore answer Jawbone’s requests in
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`accordance with the scope of section 337, including discovery related to prototypes or products
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`in development that have been imported or are likely to be imported before the close of the
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`evidentiary record.”); Certain Electronic Devices, including Wireless Communication Devices,
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`1 If JCM’s representations prove to be false, JCM could be subject to sanctions. See Commission Rule
`210.4(d), 19 C.F.R § 210.4(d) (allowing the imposition of sanctions if “any portion of a representation” to
`the Commission or an administrative law judge is “false, frivolous, [or] misleading”); Certain Subsea
`Telecommunication Systems and Components Thereof, Inv. No. 337-TA-1098, Order No. 40 at 9 (Oct. 19,
`2018; EDIS Doc. ID 660248) (finding respondents violated Commission Rule 210.4 by falsely
`representing that they did not import the accused products).
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`PUBLIC VERSION
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`Tablet Computers, Media Players, and Televisions, and Components Thereof, Inv. No. 337-TA-
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`862, Order No. 37 at 6 (Apr. 18, 2013; EDIS Doc. ID 507943) (ordering respondent “to provide
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`discovery on any relevant product that [respondent] intends to import prior to the
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`commencement of the evidentiary hearing”); Certain Hardware Logic Emulation Systems and
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`Components Thereof, Inv. No. 337-TA-383, Order No. 57 at 7 (Dec. 9, 1996; EDIS Doc. ID
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`46338) (“Discovery regarding products within the scope of the investigation that are in
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`development, and that are likely to be imported into the United States has been permitted in
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`Section 337 investigation[s].”); Certain Computing or Graphics Systems, Components Thereof,
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`and Vehicles Containing Same, Inv. No. 337-TA-984, Order No. 1 at 10 (Feb. 4, 2016; EDIS
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`Doc. ID 573686) (limiting accused products to any “will be, or is likely to be, imported into the
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`United States, sold for importation into the United States, and/or sold within the United States
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`after importation by or on behalf of the respondent prior to the close of the evidentiary record”).
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`Copan has not shown a reason for departing from this practice.
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`Because Copan has not shown that there is a reasonable likelihood that the products-at-
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`issue will be imported while this investigation is pending, Copan’s motion is denied.
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`IV.
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` CONCLUSION
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`Based on the foregoing, Copan’s motion to compel (1279-038) is DENIED.
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`Within seven days of the date of this document, the parties shall submit a joint statement
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`as to whether or not they seek to have any portion of this document deleted from the public
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`version. If the parties do seek to have portions of this document deleted from the public version,
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`they must submit a single proposed public version of this order with any proposed redactions in
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`PUBLIC VERSION
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`the manner specified by Ground Rule 1.9. The submission shall be made by email to
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`Bhattacharyya337@usitc.gov and need not be filed with the Commission Secretary.
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` SO ORDERED.
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`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
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`PUBLIC VERSION
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