US, Wearable Blanket Importer Continue to Grapple Over Evidence Before Bench Trial

The United States and an importer of a wearable blanket, similar to a Snuggie, again traded briefs Oct. 10 regarding admissibility of evidence; this time, they specifically covered the issue of whether a CBP employee could testify at an upcoming bench trial (Cozy Comfort Co. v. United States, CIT # 22-00173).

Importer Cozy Comfort sought to exclude the testimony of CBP employee Renee Orstat in September (see 2409250040).

The U.S., Cozy Comfort said in its Oct. 10 brief, seeks to have Orstat testify on her review of the importer’s protest; on other rulings regarding earlier protests; on an examination of a wearable blanket sample; and on “her analysis of relevant features of the product and how it functions.”

But the government earlier claimed the deliberative process privilege “as a shield” to avoid handing over communications between CBP employees regarding classification of its wearable blanket, The Comfy, it said. Those communications would have covered the same topics that Orstat would testify about during trial, it said.

But courts don’t let litigants use a privilege as both “a shield and a sword,” blocking the production of pertinent information during discovery with it and then introducing that information later themselves to prove their case at trial, Cozy Comfort said.

If the government is allowed to call Orstat at trial, Cozy Comfort and the court won’t be able to evaluate her “credibility and efficacy,” the importer said, creating a “patently unfair tactical advantage.”

“For example, she could testify to completely different observations and opinions at trial than she did contemporaneous to Customs’ protest decision and Plaintiff and the Court would be none the wiser,” it said.

In its own brief, the government said that it “does not intend to delve into information subject to the deliberative process privilege through Ms. Orsat’s testimony at trial.” Generally, courts allow such testimony so long as it avoids information previously shielded by a privilege, it said.

The fact that it asserted a privilege doesn’t mean a witness’ entire testimony should be excluded, it said. It noted that in a 2021 case before the U.S. Court of Appeals for the Federal Circuit, Ironburg Inventions v. Valve Corp., a defendant invoked attorney-client privilege to prevent its witness, during a deposition, from providing his opinion about “plaintiff’s patent infringement.” CAFC upheld the trial court’s decision to preclude that witness’ testimony on the privileged topic during trial, but to still let him testify on other information.

Any testimony on the deliberations by CBP employees regarding classification of The Comfy would be barred anyway due to irrelevance, the government said, as the court reviews classifications de novo. In this case, the court only needs to have access to the final determination reached by CBP in its headquarters ruling, it said.

Cozy Comfort, meanwhile, said that the U.S. was just asking the trade court to trust that it wouldn’t attempt to disclose shielded information during Orstat’s questioning. It called that unreasonable, arguing that only the government “knows what it redacted.”