CIT Strikes Compromise Over Witness Deposition in Discovery Spat Amid Customs Dispute

The Court of International Trade granted in part, and denied in part, the Department of Justice's motion to extend the discovery period in a customs classification dispute, in an Oct. 14 order. Ordering the parties to consult on potentially extending the discovery period to allow the U.S. to depose an expert witness at a time convenient to both parties, Judge Timothy Stanceu struck a compromise between DOJ's desire to take the deposition and the plaintiffs' claims that an extended discovery period would prejudice it.

The case, brought by Shamrock Building Materials, concerns a tariff classification disagreement over Shamrock's electrical conduits. Under the case's current schedule, factual discovery was to be completed by Oct. 15 and expert discovery by Nov. 30. DOJ wants to extend the time of factual discovery to Nov. 30, hoping to depose expert witness Joshua Jackson -- a metallurgist Shamrock hired to conduct tests on the importer's conduits.

Stanceu held that the court cannot dismiss the motion to amend the schedule for lack of diligence -- as Shamrock argues -- but that it also cannot amend the schedule the way that plaintiff requests. “Therefore, the court is issuing an order designed to resolve, in a way that is fair to both plaintiff and defendant, not only the scheduling dispute between the parties but also the underlying dispute over defendant’s desire to take the deposition of Dr. Jackson,” Stanceu said.

Shamrock argued that DOJ failed to request to depose Jackson until Sept. 27, less than three weeks until the end of the factual discovery period, at which point DOJ had already scheduled another deposition for Oct. 13. This essentially meant that Jackson, who lives in Houston, could not be deposed by Oct. 15. DOJ said it intended to depose Jackson during the expert discovery period, but Shamrock said it would not produce him during this period, arguing he is a fact witness.

“The court considers it unnecessary to resolve the parties’ disagreement as to whether Dr. Jackson properly could be deposed during the expert discovery period,” the judge said. “The court does not reach that issue because it rejects plaintiff’s position that the court should deny defendant’s motion for a lack of diligence. Defendant participated in, and completed, a number of other discovery-related matters with plaintiff during the factual discovery period.”

Stanceu also held that DOJ's proposed schedule would prejudice Shamrock because this would result in the fact and expert discovery periods running concurrently. “In resolving the current disputes as to scheduling and also as to the deposition of Dr. Jackson, the court sees no reason why the schedule could not be modified to allow: (1) defendant the opportunity to take Dr. Jackson’s deposition at a time convenient to, and in a manner agreeable to, both parties; and (2) extension of the period for expert discovery beyond November 30, 2021, and beyond the end of the period for factual discovery, for a length of time sufficient to satisfy plaintiff’s concerns as well as any concerns defendant may have,” the judge ordered.