                                           Slip Op. 14-152

                  UNITED STATES COURT OF INTERNATIONAL TRADE


    SIGMA-TAU HEALTHSCIENCE, INC.
    A.K.A. SIGMA-TAU HEALTHSCIENCE,
    LLC,

          Plaintiff,                                 Before: Gregory W. Carman, Senior Judge

    v.                                               Court No. 11-00093

    UNITED STATES,

          Defendant.


                                 MEMORANDUM AND ORDER

         Upon consideration of Plaintiff Sigma-Tau HealthScience, Inc., a.k.a. Sigma-Tau

HealthScience, LLC’s Motion to Deem Admitted Certain Requests for Admission (“Pl.’s Mot.”)

(ECF No. 50), Defendant’s Response to Plaintiff’s Motion for an Order to Deem Admitted

Certain Requests for Admission and for Costs (“Def.’s Opp’n”) (ECF No. 55), and upon

consideration of all other papers and proceedings had herein, and upon due deliberation,

Plaintiff’s motion will be held in abeyance until January 28, 2015.

         Plaintiff moves under USCIT Rule 36(a)(6), 1 challenging the sufficiency of Defendant’s

objections and requesting that the Court deem “admitted in full without objection” its requests



1
    USCIT Rule 36(a)(6) provides:

         (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting
             party may move to determine the sufficiency of an answer or objections. Unless
             the court finds an objection justified, it must order that an answer be served.
             On finding that an answer does not comply with this rule, the court may order
             either that the matter is admitted or that an amended answer be served. The
             court may defer its final decision until a pretrial conference or a specified time
             before trial. Rule 37(a)(4) applies to an award of expenses.
Court No. 11-00093                                                                              Page 2


for admission 44 through 47. Pl.’s Mot. at 14. Plaintiff also requests an award of expenses

under USCIT Rule 37(a)(4), 2 which is cross-referenced in USCIT Rule 36(a)(6). Plaintiff

quoted another provision, USCIT Rule 37(c)(2), 3 to support its argument that the Court should

deem admitted its requests but this provision is a cost provision for failure to admit, which is

inapplicable at this juncture. See Pl.’s Mot. at 11. USCIT Rule 36(a)(6) is the basis for

Plaintiff’s motion. The purpose of “Rule 36 is to expedite trial by eliminating the necessity of




2
    USCIT Rule 37(a)(4) provides:

         (4) Payment of Expenses; Protective Orders.
             (A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
                Filing). If the motion is granted—or if the disclosure or requested discovery
                is provided after the motion was filed—the court must, after giving an
                opportunity to be heard, require the party or deponent whose conduct
                necessitated the motion, the party or attorney advising that conduct, or both
                to pay the movant’s reasonable expenses incurred in making the motion,
                including attorney’s fees. But the court must not order this payment if:
                (i) the movant filed the motion before attempting in good faith to obtain
                      the disclosure or discovery without court action;
                (ii) the opposing party’s nondisclosure, response, or objection was
                      substantially justified; or
                (iii) other circumstances make an award of expenses unjust.
3
    USCIT Rule 37(c)(2) provides:

         (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and
             if the requesting party later proves a document to be genuine or the matter true,
             the requesting party may move that the party who failed to admit pay the
             reasonable expenses, including attorney’s fees, incurred in making that proof.
             The court must so order unless:
                  (A) the request was held objectionable under Rule 36(a);
                  (B) the admission sought was of no substantial importance;
                  (C) the party failing to admit had a reasonable ground to believe that it might
                      prevail on the matter; or
                  (D) there was other good reason for the failure to admit.
Court No. 11-00093                                                                           Page 3


proving essentially undisputed and peripheral issues.” Beker Indus. Corp. v. United States, 7

CIT 361, 361 (1984). This motion to deem admitted certain requests for admission is premature

since the parties have not made a substantive good faith effort to resolve this dispute, which is a

requirement for an award of expenses pursuant to USCIT Rule 37(a)(4)(i). Thus, expenses will

not be awarded. During this period of abeyance, the Court provides the parties an opportunity to

make a substantive good faith effort to resolve this dispute.

        The Court acknowledges that the parties’ correspondence appears to be an initial attempt

to resolve this dispute. See, e.g., Pl.’s Cert. of Good-Faith Efforts to Resolve Disc. Disputes

(ECF No. 50-2), Pl.’s Mot. Exs. F, G (ECF Nos. 50-6, 50-7), Def.’s Opp’n Ex. 1 (ECF No. 55-

1). However, the Court requests that the parties ramp up their efforts to a substantive level.

Substantive good faith efforts to resolve these disputes mean that Plaintiff must address

Defendant’s objections. 4 For example, if a request for admission deals with a document entirely

in a foreign language, then it is reasonable for the opposing party to request a certified

translation.

        Substantive good faith efforts also mean that parties will not quibble over terminology

such as “reliable authority” versus “authoritative source” in requests for admission; the plain

meaning of both terms are synonymous and unambiguous. It should be noted that an academic

journal article is generally considered both a reliable authority and an authoritative source. It



4
  Plaintiff’s Exhibit G, dated September 18, 2014, expresses its “concerns with the inadequacy of
[Defendant’s] original responses” to “Admissions Numbers 30 and 44-47” but then spends the
bulk of the letter discussing the U.S. Pharmacopeia, which is not at issue in this case, as an
authoritative source. A passing reference to admission requests without any substantive
discussion or explanation does not constitute a good faith attempt. Each disputed admission
request should be addressed with particularity.
Court No. 11-00093                                                                               Page 4


should also be noted that admission of authoritative sources does not require that a proposition

for which it supports be offered at this stage of litigation. Parties should make meaningful

efforts to address each other’s concerns and provide definitive, clear answers to disputed issues.

        The Court will hold the motion in abeyance until January 28, 2015, because a review of

the briefs and exhibits shows that parties have not yet made a substantive good faith effort to

resolve admission requests 44 through 47 prior to seeking court action. By January 28, 2015

parties shall submit a joint status report indicating whether Plaintiff still seeks the relief set out in

its motion, whether Plaintiff intends to withdraw the motion, and whether either party wishes for

an opportunity for further briefing or whether the motion should be considered briefed as is.

        Subsequent to this motion, Plaintiff filed two contested motions which the Court has

considered in conjunction with this motion—Plaintiff’s Motion for Oral Argument on Its Motion

to Deem Admitted Certain Requests for Admission (ECF No. 56) and Plaintiff’s Motion for

Leave to File Reply Memorandum in Support of Motion to Deem Admitted Certain Requests for

Admission (ECF No. 57).

        For the foregoing reasons, it is hereby

        ORDERED that Plaintiff’s Motion to Deem Admitted Certain Requests for Admission is

held in abeyance until January 28, 2015; and it is further

        ORDERED that parties file a joint status report by January 21, 2015; and it is further

        ORDERED that Plaintiff’s Motion for Oral Argument on Its Motion to Deem Admitted

Certain Requests for Admission is denied; and it is further
Court No. 11-00093                                                                       Page 5


       ORDERED that Plaintiff’s Motion for Leave to File Reply Memorandum in Support of

Motion to Deem Admitted Certain Requests for Admission is denied. If necessary, parties will

have the opportunity to request further briefing in their joint status report.

       It is so ORDERED.



                                                       /s/    Gregory W. Carman
                                                       Gregory W. Carman. Senior Judge


Dated: December 22, 2014
       New York, New York
