'Mystified,' CIT Sanctions Exporter for Some Late Discovery Materials, Allows Others

The Court of International Trade on Jan. 29 granted in part and denied in part the U.S. bid to sanction a wristwatch exporter for late supplemental discovery materials. Judge Jane Restani said the exporter hadn't made a “sufficiently diligent” search for some of the materials, though she also said she was “mystified” by both parties’ actions involving others.

DOJ said earlier this month that exporter Ildico sent the government new photographs and information in December, although discovery closed in September (see 2401120059). The exporter also sent it samples of crystals included on some of the watches. The government asked the court to bar use of the untimely submitted materials or otherwise reopen discovery.

The exporter responded Jan. 26, saying that the materials contained no new information (see 2401250066). It said it “provided these photographs as a courtesy to the Government for ease of reference because they combine, on one page, information from several documents produced to the Government.” It found the photographs on an internal company website that it hadn't previously been aware of, it said. It asked the court to deny DOJ's motion, calling it an “illusory claim” designed to reopen discovery.

Restani granted the government’s motion for sanction, barring Ildico from using the photos in any further trial proceedings. The judge noted that companies usually have internal websites, questioning why Ildico didn't turn to its own website earlier. A “sufficiently diligent” search for relevant documents must not have been made during discovery, she concluded.

“Further, plaintiff’s response to the Rule 37 motion asserts that the commercial invoices submitted contain more information than the new photographs and that it only provided the photographs as a courtesy, not because it was required to under USCIT Rule,” the judge said. “The Government, however, does not accept this courtesy. Accordingly, this supplementation is not permitted and the new photographs containing written information will not be permitted as evidence, except by consent of the Government.”

But Restani denied the sanction for the sample crystals, saying it was “unclear to the court why the crystals are produced now and why the Government objects.” The sample watches contain crystals, and the government “apparently” saw the sample crystals during depositions, Restani said. She added that Ildico alleges DOJ never asked for separate crystals to test or examine.

“The court admittedly, is mystified by both parties’ actions as to the crystals,” she said. She dismissed that aspect of the motion without prejudice, saying she would allow for continued litigation if the issue remains controversial.

(Ildico Inc. v. U.S., Slip Op. 24-9, CIT Consol. # 18-00136, dated 1/29/2024; Judge: Jane Restani; Attorneys: Mandy E. Kirschner of Stein Shostak for plaintiff Ildico Inc.; Marcella Powell for defendant U.S. government)