Cyber Power Asks Trade Court to Exclude Government Witnesses

Cyber Power Systems has asked the Court of International Trade to bar two witnesses from testifying as well as to introduce testimony in writing from a separate person, according to three separate briefs, filed July 11 (Cyber Power Systems Inc. v. U.S., CIT #20-00124)

The trial, scheduled to begin Aug. 8, stems from a decision by CBP personnel in Minneapolis to deny Cyber Power's protest against the exclusion from entry of five models of uninterruptible power supplies and one model of surge voltage protectors manufactured in the Philippines because Cyber Power would not mark the items as “Made in China,” according to Cyber Power's brief. The issue at hand is whether the operations performed on the subject UPS and SVP in the Philippines constituted a “substantial transformation.”

Cyber Power has moved to exclude the testimonies of Karl Moosbrugger and Linda Horacek, two import specialists assigned to decide on the protest underlying the CIT case. Moosbrugger "helped make the decision to deny the protest" and Horacek signed the denial of the protest, according to Cyber Power's brief.

Moosbrugger has no personal knowledge of the manufacturing operations performed at the factory in the Philippines and lacks testimonial competence as a fact witness, argues Cyber Power. Moosbrugger has not been identified as an expert witness and cannot offer opinion testimony regarding questions of law, specifically, whether plaintiff’s products at bar are the product of “substantial transformations” performed in the Philippines. Cyber Power argues that Horacek is similarly unqualified to testify and alleges that she made false statements during a September 2020 deposition.

Cyber Power also has asked the court to include direct testimony of Chi Ting (Tim) Huang, general manager of the manufacturing plant in the Philippines, in writing. The brief argues that because Huang is not a native English speaker and will require a translator to testify, use of written testimony would conserve time and promote court efficiency, noting that "the use of written direct testimony in bench trials has become the rule, rather than the exception."