Plywood Importer Defends Request for Judicial Notice of Documents From Different Case

Both proceedings involve the same plywood produced by Cambodian manufacturer LB Wood, it said.

Interglobal, the only plaintiff still challenging a redetermination upon remand that continued to find importers evaded antidumping and countervailing duties on Chinese-origin plywood (see 2405300058), wants added to the record results from two cases brought by plywood exporter Richmond International. The cases were resolved by a stipulated judgment (see 2501170078) and U.S. confession of judgment (see 2207010044) in which the government agreed Richmond International’s Cambodian-origin plywood wasn’t subject to Section 301 or AD/CVD orders.

Interglobal sought to have both added to the record in its case. It also asked for the inclusion of a discovery response that "demonstrates that the evidence proffered by the United States against [Richmond International] is identical to the evidence it proffers against Plaintiff: the same inspection visit by CBP to LB WOOD on June 6, 2018, the same photographs, the same memoranda, and the same report from that visit."

The U.S. argued in opposition that the government’s arguments weren’t estopped by the negative evasion determinations in the two Richmond cases. Each administrative record stands on its own, and each proceeding considers different merchandise, it said.

It claimed that “there is nothing inconsistent between the Richmond matters and the determination made by CBP under EAPA” in the present matter. The present matter, it said, deals with three exporters purchasing plywood from multiple manufacturers, whereas Richmond had one exporter and one manufacturer. Further, the Richmond plaintiffs gave CBP more evidence than the plaintiffs involved in the present litigation did, it said.

In its April 10 brief, Interglobal said that the doctrine of res judicata applies because the Richmond case and the current one share a party in privity -- manufacturer LB Wood.

Further, it said, the two cases are based on the same “transactional facts.” It said that the remand redetermination “explicitly agrees that plywood manufactured by LB Wood for Richmond and [Interglobal] are the same,” and it noted that the case involving Interglobal was actually cited in a government interrogatory in a Richmond case.

It also alleged that, based on the Richmond discovery responses, the government had hidden evidence from Interglobal “in flagrant violation of the Court’s remand order.”

The U.S. also argued that judicial notice doesn’t make sense because a record has already been compiled in an agency proceeding. It claimed the Court of International Trade said as much in its opinion in Jinko Solar Import and Export Co. (see 2405090045), in which CIT Judge Claire Kelly explained that “where the court reviews the record compiled before the agency it would generally be inappropriate to invoke the Federal Rules of Evidence to admit new evidence not previously before the agency."

The U.S. also said that the information in the documents was neither “generally known” nor “accurately and readily determin[able]” from trustworthy sources, one of which is required for judicial notice, it said.

Interglobal, in turn, said Jinko was distinguishable because “the Stipulated Judgment did not exist and could not have possibly been part of the administrative record.” And Jinko also said that courts may consider extrarecord information “when there is a strong showing of bad faith or improper behavior, both of which are present here.”

The parties agreed that the court could add to the record a Confidential Joint Appendix that had been included in the initial agency record but not the remand record.