[Federal Register Volume 83, Number 79 (Tuesday, April 24, 2018)]
[Notices]
[Pages 17843-17849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08432]


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INTERNATIONAL TRADE COMMISSION


Summary of Commission Practice Relating to Administrative 
Protective Orders

AGENCY: U.S. International Trade Commission.

ACTION: Summary of Commission practice relating to administrative 
protective orders.

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SUMMARY: Since February 1991, the U.S. International Trade Commission 
(``Commission'') has published in the Federal Register reports on the 
status of its practice with respect to violations of its administrative 
protective orders (``APOs'') under title VII of the Tariff Act of 1930, 
in response to a direction contained in the Conference Report to the 
Customs and Trade Act of 1990. Over time, the Commission has added to 
its report discussions of APO breaches in Commission proceedings other 
than under title VII and violations of the Commission's rules including 
the rule on bracketing business proprietary information (``BPI'') (the 
``24-hour rule''). This notice provides a summary of breach 
investigations (APOB investigations) completed during calendar year 
2016. This summary addresses two APOB investigations related to 
proceedings under title VII of the Tariff Act of 1930 and seven APOB 
investigations related to proceedings under section 337 of the Tariff 
Act of 1930, two of which were combined and which were related to the 
same proceedings under section 337. The Commission investigated rules 
violations as part of two of the APOB investigations. The Commission 
intends that this report inform representatives of parties to 
Commission proceedings as to some specific types of APO breaches 
encountered by the Commission and the corresponding types of actions 
the Commission has taken.

FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the 
General Counsel, U.S. International Trade Commission, telephone (202) 
205-3427. Hearing impaired individuals are advised that information on 
this matter can be obtained by contacting the Commission's TDD terminal 
at (202) 205-1810. General information concerning the Commission can 
also be obtained by accessing its website (https://www.usitc.gov).

SUPPLEMENTARY INFORMATION: Representatives of parties to investigations 
or other proceedings conducted under title VII of the Tariff Act of 
1930, section 337 of the Tariff Act of 1930, the North American Free 
Trade Agreement (NAFTA) Article 1904.13, and safeguard-related 
provisions such as section 202 of the Trade Act of 1974, may enter into 
APOs that permit them, under strict conditions, to obtain access to BPI 
(title VII) and confidential business information (``CBI'') (safeguard-
related provisions and section 337) of other parties or non-parties. 
See, e.g., 19 U.S.C. 1677f; 19 CFR 207.7; 19 U.S.C. 1337(n); 19 CFR. 
210.5, 210.34; 19 U.S.C. 2252(i); 19 CFR 206.17; 19 U.S.C. 
1516a(g)(7)(A); and 19 CFR 207.100, et. seq. The discussion below 
describes APO breach investigations that the Commission has completed 
during calendar year 2016, including a description of actions taken in 
response to these breaches.
    Since 1991, the Commission has published annually a summary of its 
actions in response to violations of Commission APOs and rule 
violations. See 56 FR 4846 (February 6, 1991); 57 FR 12335 (April 9, 
1992); 58 FR 21991 (April 26, 1993); 59 FR 16834 (April 8, 1994); 60 FR 
24880 (May 10, 1995); 61 FR 21203 (May 9, 1996); 62 FR 13164 (March 19, 
1997); 63 FR 25064 (May 6, 1998); 64 FR 23355 (April 30, 1999); 65 FR 
30434 (May 11, 2000); 66 FR 27685 (May 18, 2001); 67 FR 39425 (June 7, 
2002); 68 FR 28256 (May 23, 2003); 69 FR 29972 (May 26, 2004); 70 FR 
42382 (July 25, 2005); 71 FR 39355 (July 12, 2006); 72 FR 50119 (August 
30, 2007); 73 FR 51843 (September 5, 2008); 74 FR 54071 (October 21, 
2009); 75 FR 54071 (October 27, 2010), 76 FR 78945 (December 20, 2011), 
77 FR 76518 (December 28, 2012), 78 FR 79481 (December 30, 2013), 80 FR 
1664 (January 13, 2015), 81 FR 17200 (March 28, 2016), and 82 FR 29322 
(June 28, 2017). This report does not provide an exhaustive list of 
conduct that will be deemed to be a breach of the Commission's APOs. 
APO breach inquiries are considered on a case-by-case basis.
    As part of the effort to educate practitioners about the 
Commission's current APO practice, the Commission Secretary issued in 
March 2005 a fourth edition of An Introduction to Administrative 
Protective Order Practice in Import Injury Investigations (Pub. No. 
3755). This document is available upon request from the Office of the 
Secretary, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, tel. (202) 205-2000 and on the Commission's 
website at http://www.usitc.gov.

I. In General

A. Antidumping and Countervailing Duty Investigations

    The current APO form for antidumping and countervailing duty 
investigations, which was revised in March 2005, requires the applicant 
to swear that he or she will:
    (1) Not divulge any of the BPI disclosed under this APO or 
otherwise obtained in this investigation and not otherwise available to 
him or her, to any person other than--
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the BPI was obtained,

[[Page 17844]]

    (iii) A person whose application for disclosure of BPI under this 
APO has been granted by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who (a) 
are employed or supervised by and under the direction and control of 
the authorized applicant or another authorized applicant in the same 
firm whose application has been granted; (b) have a need thereof in 
connection with the investigation; (c) are not involved in competitive 
decision making for an interested party which is a party to the 
investigation; and (d) have signed the acknowledgment for clerical 
personnel in the form attached hereto (the authorized applicant shall 
also sign such acknowledgment and will be deemed responsible for such 
persons' compliance with this APO);
    (2) Use such BPI solely for the purposes of the above-captioned 
Commission investigation or for judicial or binational panel review of 
such Commission investigation;
    (3) Not consult with any person not described in paragraph (1) 
concerning BPI disclosed under this APO or otherwise obtained in this 
investigation without first having received the written consent of the 
Secretary and the party or the representative of the party from whom 
such BPI was obtained;
    (4) Whenever materials e.g., documents, computer disks, etc. 
containing such BPI are not being used, store such material in a locked 
file cabinet, vault, safe, or other suitable container (N.B.: Storage 
of BPI on so-called hard disk computer media is to be avoided, because 
mere erasure of data from such media may not irrecoverably destroy the 
BPI and may result in violation of paragraph C of this APO);
    (5) Serve all materials containing BPI disclosed under this APO as 
directed by the Secretary and pursuant to section 207.7(f) of the 
Commission's rules;
    (6) Transmit each document containing BPI disclosed under this APO:
    (i) With a cover sheet identifying the document as containing BPI,
    (ii) with all BPI enclosed in brackets and each page warning that 
the document contains BPI,
    (iii) if the document is to be filed by a deadline, with each page 
marked ``Bracketing of BPI not final for one business day after date of 
filing,'' and
    (iv) if by mail, within two envelopes, the inner one sealed and 
marked ``Business Proprietary Information--To be opened only by [name 
of recipient]'', and the outer one sealed and not marked as containing 
BPI;
    (7) Comply with the provision of this APO and section 207.7 of the 
Commission's rules;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any 
changes that occur after the submission of the application and that 
affect the representations made in the application (e.g., change in 
personnel assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
possible breach of this APO; and
    (10) Acknowledge that breach of this APO may subject the authorized 
applicant and other persons to such sanctions or other actions as the 
Commission deems appropriate, including the administrative sanctions 
and actions set out in this APO.
    The APO form for antidumping and countervailing duty investigations 
also provides for the return or destruction of the BPI obtained under 
the APO on the order of the Secretary, at the conclusion of the 
investigation, or at the completion of Judicial Review. The BPI 
disclosed to an authorized applicant under an APO during the 
preliminary phase of the investigation generally may remain in the 
applicant's possession during the final phase of the investigation.
    The APO further provides that breach of an APO may subject an 
applicant to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission 
determines to be appropriate, including public release of, or striking 
from the record any information or briefs submitted by, or on behalf 
of, such person or the party he represents; denial of further access to 
business proprietary information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    APOs in safeguard investigations contain similar though not 
identical provisions.

B. Section 337 Investigations

    The APOs in section 337 investigations differ from those in title 
VII investigations as there is no set form and provisions may differ 
depending on the investigation and the presiding administrative law 
judge. However, in practice, the provisions are often quite similar. 
All persons seeking access to CBI during a section 337 investigation 
(including outside counsel for parties to the investigation, 
secretarial and support personnel assisting such counsel, and technical 
experts and their staff who are employed for the purposes of the 
investigation) are required to read the APO, agree to its terms by 
letter filed with the Secretary of the Commission indicating that they 
agree to be bound by the terms of the Order, agree not to reveal CBI to 
anyone other than another person permitted access by the Order, and 
agree to utilize the CBI solely for the purposes of that investigation.
    In general, an APO in a section 337 investigation will define what 
kind of information is CBI and direct how CBI is to be designated and 
protected. The APO will state which persons will have access to the CBI 
and which of those persons must sign onto the APO. The APO will provide 
instructions on how CBI is to be maintained and protected by labeling 
documents and filing transcripts under seal. It will provide 
protections for the suppliers of CBI by notifying them of a Freedom of 
Information Act request for the CBI and providing a procedure for the 
supplier to take action to prevent the release of the information. 
There are provisions for disputing the designation of CBI and a 
procedure for resolving such disputes. Under the APO, suppliers of CBI 
are given the opportunity to object to the release of the CBI to a 
proposed expert. The APO requires a person who discloses CBI, other 
than in a manner authorized by the APO, to provide all pertinent facts 
to the supplier of the CBI and to the administrative law judge and to 
make every effort to prevent further disclosure. The APO requires all 
parties to the APO to either return to the suppliers or destroy the 
originals and all copies of the CBI obtained during the investigation.
    The Commission's regulations provide for certain sanctions to be 
imposed if the APO is violated by a person subject to its restrictions. 
The names of the persons being investigated for violating an APO are 
kept confidential unless the sanction imposed is a public letter of 
reprimand. 19 CFR 210.34(c)(1). The possible sanctions are:

[[Page 17845]]

    (1) An official reprimand by the Commission.
    (2) Disqualification from or limitation of further participation in 
a pending investigation.
    (3) Temporary or permanent disqualification from practicing in any 
capacity before the Commission pursuant to 19 CFR 201.15(a).
    (4) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice.
    (5) Making adverse inferences and rulings against a party involved 
in the violation of the APO or such other action that may be 
appropriate. 19 CFR 210.34(c)(3).
    Commission employees are not signatories to the Commission's APOs 
and do not obtain access to BPI or CBI through APO procedures. 
Consequently, they are not subject to the requirements of the APO with 
respect to the handling of CBI and BPI. However, Commission employees 
are subject to strict statutory and regulatory constraints concerning 
BPI and CBI, and face potentially severe penalties for noncompliance. 
See 18 U.S.C. 1905; title 5, U.S. Code; and Commission personnel 
policies implementing the statutes. Although the Privacy Act (5 U.S.C. 
552a) limits the Commission's authority to disclose any personnel 
action against agency employees, this should not lead the public to 
conclude that no such actions have been taken.

II. Investigations of Alleged APO Breaches

    Upon finding evidence of an APO breach or receiving information 
that there is a reason to believe one has occurred, the Commission 
Secretary notifies relevant offices in the agency that an APO breach 
investigation has commenced and that an APO breach investigation file 
has been opened. Upon receiving notification from the Secretary, the 
Office of the General Counsel (``OGC'') prepares a letter of inquiry to 
be sent to the possible breacher over the Secretary's signature to 
ascertain the facts and obtain the possible breacher's views on whether 
a breach has occurred.\1\ If, after reviewing the response and other 
relevant information, the Commission determines that a breach has 
occurred, the Commission often issues a second letter asking the 
breacher to address the questions of mitigating circumstances and 
possible sanctions or other actions. The Commission then determines 
what action to take in response to the breach. In some cases, the 
Commission determines that, although a breach has occurred, sanctions 
are not warranted, and therefore finds it unnecessary to issue a second 
letter concerning what sanctions might be appropriate. Instead, it 
issues a warning letter to the individual. A warning letter is not 
considered to be a sanction. However, a warning letter is considered in 
a subsequent APO breach investigation.
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    \1\ Procedures for inquiries to determine whether a prohibited 
act such as a breach has occurred and for imposing sanctions for 
violation of the provisions of a protective order issued during 
NAFTA panel or committee proceedings are set out in 19 CFR 207.100-
207.120. Those investigations are initially conducted by the 
Commission's Office of Unfair Import Investigations.
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    Sanctions for APO violations serve three basic interests: (a) 
Preserving the confidence of submitters of BPI/CBI that the Commission 
is a reliable protector of BPI/CBI; (b) disciplining breachers; and (c) 
deterring future violations. As the Conference Report to the Omnibus 
Trade and Competitiveness Act of 1988 observed, ``[T]he effective 
enforcement of limited disclosure under administrative protective order 
depends in part on the extent to which private parties have confidence 
that there are effective sanctions against violation.'' H.R. Conf. Rep. 
No. 576, 100th Cong., 1st Sess. 623 (1988).
    The Commission has worked to develop consistent jurisprudence, not 
only in determining whether a breach has occurred, but also in 
selecting an appropriate response. In determining the appropriate 
response, the Commission generally considers mitigating factors such as 
the unintentional nature of the breach, the lack of prior breaches 
committed by the breaching party, the corrective measures taken by the 
breaching party, and the promptness with which the breaching party 
reported the violation to the Commission. The Commission also considers 
aggravating circumstances, especially whether persons not under the APO 
actually read the BPI/CBI. The Commission considers whether there have 
been prior breaches by the same person or persons in other 
investigations and multiple breaches by the same person or persons in 
the same investigation.
    The Commission's rules permit an economist or consultant to obtain 
access to BPI/CBI under the APO in a title VII or safeguard 
investigation if the economist or consultant is under the direction and 
control of an attorney under the APO, or if the economist or consultant 
appears regularly before the Commission and represents an interested 
party who is a party to the investigation. 19 CFR 207.7(a)(3)(B) and 
(C); 19 CFR 206.17(a)(3)(B) and (C). Economists and consultants who 
obtain access to BPI/CBI under the APO under the direction and control 
of an attorney nonetheless remain individually responsible for 
complying with the APO. In appropriate circumstances, for example, an 
economist under the direction and control of an attorney may be held 
responsible for a breach of the APO by failing to redact APO 
information from a document that is subsequently filed with the 
Commission and served as a public document. This is so even though the 
attorney exercising direction or control over the economist or 
consultant may also be held responsible for the breach of the APO. In 
section 337 investigations, technical experts and their staff who are 
employed for the purposes of the investigation are required to sign 
onto the APO and agree to comply with its provisions.
    The records of Commission investigations of alleged APO breaches in 
antidumping and countervailing duty cases, section 337 investigations, 
and safeguard investigations are not publicly available and are exempt 
from disclosure under the Freedom of Information Act, 5 U.S.C. 552. See 
19 U.S.C. 1677f(g), 19 U.S.C. 1333(h), 19 CFR 210.34(c).
    The two types of breaches most frequently investigated by the 
Commission involve the APO's prohibition on the dissemination of BPI or 
CBI to unauthorized persons and the APO's requirement that the 
materials received under the APO be returned or destroyed and that a 
certificate be filed indicating which action was taken after the 
termination of the investigation or any subsequent appeals of the 
Commission's determination. The dissemination of BPI/CBI usually occurs 
as the result of failure to delete BPI/CBI from public versions of 
documents filed with the Commission or transmission of proprietary 
versions of documents to unauthorized recipients. Other breaches have 
included the failure to bracket properly BPI/CBI in proprietary 
documents filed with the Commission, the failure to report immediately 
known violations of an APO, and the failure to adequately supervise 
non-lawyers in the handling of BPI/CBI.
    Occasionally, the Commission conducts APOB investigations that 
involve members of a law firm or consultants working with a firm who 
were granted access to APO materials by the firm although they were not 
APO signatories. In many of these cases, the firm and the person using 
the BPI/CBI mistakenly believed an APO application had been filed for 
that person. The Commission determined in all of these cases that the 
person who was a non-

[[Page 17846]]

signatory, and therefore did not agree to be bound by the APO, could 
not be found to have breached the APO. Action could be taken against 
these persons, however, under Commission rule 201.15 (19 CFR 201.15) 
for good cause shown. In all cases in which action was taken, the 
Commission decided that the non-signatory was a person who appeared 
regularly before the Commission and was aware of the requirements and 
limitations related to APO access and should have verified his or her 
APO status before obtaining access to and using the BPI/CBI. The 
Commission notes that section 201.15 may also be available to issue 
sanctions to attorneys or agents in different factual circumstances in 
which they did not technically breach the APO, but when their actions 
or inactions did not demonstrate diligent care of the APO materials 
even though they appeared regularly before the Commission and were 
aware of the importance the Commission placed on the care of APO 
materials.
    Counsel participating in Commission investigations have reported to 
the Commission potential breaches involving the electronic transmission 
of public versions of documents. In these cases, the document 
transmitted appears to be a public document with BPI or CBI omitted 
from brackets. However, the confidential information is actually 
retrievable by manipulating codes in software. The Commission has found 
that the electronic transmission of a public document containing BPI or 
CBI in a recoverable form was a breach of the APO.
    Counsel have been cautioned to be certain that each authorized 
applicant files within 60 days of the completion of an import injury 
investigation or at the conclusion of judicial or binational review of 
the Commission's determination a certificate that to his or her 
knowledge and belief all copies of BPI/CBI have been returned or 
destroyed and no copies of such material have been made available to 
any person to whom disclosure was not specifically authorized. This 
requirement applies to each attorney, consultant, or expert in a firm 
who has been granted access to BPI/CBI. One firm-wide certificate is 
insufficient.
    Attorneys who are signatories to the APO representing clients in a 
section 337 investigation should inform the administrative law judge 
and the Commission's secretary if there are any changes to the 
information that was provided in the application for access to the CBI. 
This is similar to the requirement to update an applicant's information 
in title VII investigations.
    In addition, attorneys who are signatories to the APO representing 
clients in a section 337 investigation should send a notice to the 
Commission if they stop participating in the investigation or the 
subsequent appeal of the Commission's determination. The notice should 
inform the Commission about the disposition of CBI obtained under the 
APO that was in their possession or they could be held responsible for 
any failure of their former firm to return or destroy the CBI in an 
appropriate manner.

III. Specific APO Breach Investigations

    Case 1. The Commission determined that the principal attorney 
representing a party in a title VII sunset review breached an APO when 
he (1) inadvertently retained materials containing BPI more than 60 
days after the completion of a five-year review and (2) inadvertently 
uploaded a BPI version of a staff report from the sunset review onto 
the electronic filing system (``CM/ECF'') of the U.S. Court of 
International Trade (``CIT'') in an unrelated case.
    The attorney represented the respondent in a sunset review. After 
the completion of the review, the attorney submitted a letter to the 
Commission certifying that all copies of materials released to him 
under the APO had been destroyed. Months later, the attorney logged on 
to the CM/ECF system in an attempt to download a motion in an unrelated 
case. However, rather than downloading the intended motion, the 
attorney inadvertently uploaded a copy of a staff report containing 
BPI. The attorney immediately notified the docket clerk of the error. 
The clerk removed the document from public availability within 
approximately fifteen minutes of the upload. The clerk also contacted 
counsel for all parties in the unrelated case to determine whether they 
had viewed the BPI. One attorney had downloaded the file, but 
immediately closed it upon realizing that it was misfiled.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional and inadvertent, resulting from the attorney's 
inadvertent failure to follow standard APO procedures and inadvertent 
upload of the staff report; (2) the attorney had not been found to have 
breached an APO over the past two years; and (3) the attorney took 
immediate corrective measures upon learning of the disclosure by 
requesting that the CIT remove the BPI version of the staff report from 
the CIT's CM/ECF system. The Commission also considered aggravating 
factors, including that (1) the attorney violated the same APO in two 
ways by retaining the BPI materials more than sixty days after the 
completion of the review and uploading those materials onto the CM/ECF 
system; and (2) the attorney failed to handle the APO material with due 
diligence and care by filing the staff report in a wholly unrelated 
case.
    The Commission issued a private letter of reprimand to the 
attorney.
    Case 2. The Commission determined that APO breaches occurred with 
respect to a law firm representing a party in a section 337 
investigation. With respect to this law firm, the Commission determined 
that APO breaches occurred (1) when attorneys and consultants failed to 
sign and/or file protective order acknowledgments prior to accessing 
CBI and (2) when attorneys filed an unredacted appeal brief containing 
CBI and emailed that brief to in-house counsel who were not signatories 
of the APO.
    Seven attorneys and two expert consultants hired by the law firm 
failed to sign and file protective order acknowledgments before 
accessing CBI for use in this investigation. A paralegal initially 
informed a first supervisory attorney that a single working attorney 
had premature access to CBI, and that working attorney's acknowledgment 
was filed that same day. A further internal investigation at the law 
firm discovered that four additional attorneys and an expert consultant 
similarly failed to file acknowledgments, and those individuals filed 
acknowledgments thereafter. Approximately a month later, the firm 
discovered that a testifying expert had also failed to file an 
acknowledgment prior to accessing CBI. A second supervisory attorney at 
the law firm informed the Commission that that expert filed an 
acknowledgment the same day as the discovery of the omission.
    Thereafter, the second supervisory attorney informed the Commission 
of facts related to a second APO breach by the law firm. Two appellate 
attorneys at the law firm had attached as an addendum to a brief filed 
with a court a confidential version of the Commission's opinion, which 
included CBI. That brief was also emailed to four in-house attorneys. 
Prior to filing the brief, the appellate attorneys confirmed that the 
text of the brief did not contain any CBI, but failed to recognize that 
the confidential version, rather than the public version, of the 
Commission Opinion was attached to the brief. The next day, one of the 
appellate attorneys recognized the mistake, and the clerk at

[[Page 17847]]

the court was notified that the brief should be neither accepted nor 
made public. One of the appellate attorneys also contacted the in-house 
counsel and directed them to delete the email without opening the 
attachment. The attorney received confirmation that the attachment had 
not been read by or forwarded to anyone else. That same day, one of the 
appellate attorneys notified counsel for the opposing party and the 
Commission of the breach. The law firm corrected the filing by 
submitting a confidential version and a public version of the brief to 
the court.
    In determining the appropriate action in response to the breaches, 
the Commission considered mitigating factors, including that (1) no 
person who did not later file an APO acknowledgment viewed CBI in 
either breach; (2) both breaches were unintentional; (3) the law firm 
took prompt actions to correct the mistakes, inform the Commission and 
all parties of the mistakes, and prevent future breaches; and (4) none 
of the attorneys were involved in previous APO issues in the last two 
years. As an aggravating factor, the Commission considered that the law 
firm committed two breaches in the same investigation within a year.
    The Commission issued warning letters to the two supervisory 
attorneys and the appellate attorneys. The Commission also issued a 
private letter of reprimand to the law firm. The Commission found that 
the firm's policies and procedures were inadequate in ensuring 
compliance with the APO, as demonstrated by the seven firm attorneys 
and two outside consultants who reviewed and used CBI in connection 
with their involvement in the investigation before signing and filing 
APO acknowledgments, the submission of an unredacted appeal brief 
containing CBI, and the transmission of the appeal brief to four non-
signatory in-house counsel who were not APO signatories.
    The Commission also found that good cause exists to issue sanctions 
under Sec.  201.15(a) to the attorneys and consultants who used CBI in 
this investigation prior to filing a protective order acknowledgment. 
The Commission issued these attorneys a warning letter. Though these 
individuals were not signatories to the APO at the time they 
inappropriately accessed CBI, they were, or should have been, aware of 
the requirements and limitations related to APO access. Their failure 
to verify that they had applied for and been granted access to APO 
materials before using the materials demonstrates a disregard for the 
Commission's rules protecting the confidentiality of the information 
that is provided under the APO.
    Case 3. In the same section 337 investigation referenced in Case 2 
above, the Commission determined that a second law firm representing a 
different party breached the APO. The Commission determined that 
breaches occurred when attorneys failed to sign and/or file protective 
order acknowledgments prior to accessing CBI.
    One attorney at the second law firm failed to sign and file 
protective order acknowledgments before accessing CBI; and three 
attorneys signed but failed to file protective order acknowledgments 
before accessing CBI. The issue was first discovered by another party's 
counsel. After being notified, the second law firm conducted an 
internal audit and discovered the breach. The three unfiled 
acknowledgments had been forwarded to a paralegal, but not filed. The 
remaining attorney was not aware that he was required to sign an APO 
acknowledgment prior to accessing a hearing transcript containing CBI. 
That attorney signed an acknowledgment the next day, and the 
acknowledgment was filed approximately two weeks later. Two supervisory 
attorneys were APO signatories had supervised the four attorneys who 
had not timely filed the protective order acknowledgments.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional; (2) the breach was promptly reported to the 
Commission; (3) the breaching parties took corrective measures to 
prevent a breach in the future; (4) none of the attorneys was involved 
in any previous APO breaches; and (5) the attorneys otherwise accorded 
the CBI the full protection of the APO at all times and the CBI was not 
released to any third party.
    The Commission issued warning letters to the supervisory attorneys. 
The Commission also found that good cause existed to issue sanctions 
under Sec.  201.15(a) to the attorneys who used CBI in this 
investigation prior to filing a protective order acknowledgment. The 
Commission issued these attorneys a warning letter. Though these 
attorneys were not signatories to the APO at the time they 
inappropriately accessed CBI, they were or should have been aware of 
the requirements and limitations related to APO access. Their failure 
to verify that they had applied for and been granted access to APO 
materials before using the materials demonstrated a disregard for the 
Commission's rules protecting the confidentiality of the information 
that is provided under the APO.
    Case 4. The Commission determined that a law firm and several 
attorneys breached an APO in a section 337 investigation when they 
improperly disclosed CBI to more than 140 unauthorized persons over a 
fourteen-month period.
    Several attorneys of a law firm representing the complainant 
inadvertently disclosed to unauthorized persons information designated 
by the respondent as CBI in this investigation and in related 
litigation in federal district court. A junior associate at the law 
firm failed to fully redact CBI from an expert report prepared for the 
district court action, and a partner failed to supervise that junior 
associate. On several occasions, the attorneys then sent the 
incompletely redacted expert report to unauthorized persons at the 
complainant (including a non-APO signatory in-house attorney) and other 
law and consulting firms. Several non-signatory recipients (including 
the in-house counsel and at least one other attorney) further 
disseminated the CBI to other non-signatories. In one incident, a 
partner at the law firm emailed more than ninety of the complainant's 
employees with instructions on how to access the incompletely redacted 
expert report on an FTP site. No one at the law firm notified the 
respondent or the Commission of the disclosure at the time. No other 
efforts were made to investigate whether other disclosures had been 
made so as to prevent further disclosures. As a result, the 
unauthorized disclosures continued.
    In connection with the investigation before the Commission, a mid-
level associate at the same law firm failed to redact the same CBI from 
an outline for a brief on remedy and the public interest. On several 
occasions, the firm's attorneys then sent versions of that outline and 
the public interest brief containing CBI to unauthorized persons at the 
complainant and at other law firms. A partner at the law firm 
discovered one such disclosure, but did not notify the respondent or 
the Commission at the time, asserting that he had acted promptly after 
the discovery to prevent unauthorized persons from viewing CBI. In 
another incident, an attorney sent an unredacted version of the 
completed brief via email to the complainant's employees and an 
attorney at a second law firm. Another attorney informed the sending 
attorney of the mistake, and the sending attorney emailed the 
complainant requesting that the email be deleted. Prior to its 
deletion, however, the email had been

[[Page 17848]]

forwarded to the complainant's employees and attorneys at other law 
firms.
    In determining the appropriate sanction, the Commission considered 
mitigating factors, including that (1) the breaches were inadvertent; 
(2) the law firm recently implemented firm-wide policy to help prevent 
unauthorized disclosures; (3) the law firm worked to investigate, cure, 
and prevent further breaches after discovery of the breaches; and (4) a 
federal district court had already sanctioned the disclosures and 
conduct underlying the breaches relating to the expert report. The 
Commission also considered aggravating factors, including that (1) the 
CBI was viewed by unauthorized persons; (2) the breach was discovered 
by a third party; (3) the law firm failed and/or delayed reporting the 
breaches to the Commission; (4) the CBI was unprotected for a lengthy 
period of time; (5) there were multiple breaches by the law firm's 
attorneys in the same investigation; and (6) there were multiple 
breaches by the law firm's attorneys in a two-year period.
    The Commission publicly reprimanded the law firm and issued private 
letters of reprimand to the six law firm attorneys responsible for the 
unauthorized disclosures. Although the firm had procedures to prevent 
unauthorized disclosures, the firm did not ensure that attorneys 
complied with those procedures and made unilateral decisions regarding 
the APO's scope and requirements. The large number and vast extent of 
the unauthorized disclosures show that the failure to safeguard CBI was 
a pervasive problem at the firm.
    The Commission also found that good cause existed to issue 
sanctions under Sec.  201.15(a) to the in-house counsel and an attorney 
at another law firm who were not signatories of the APO. Both attorneys 
had disclosed CBI, but were not found to be fully responsible for those 
disclosures. The Commission issued these attorneys a warning letter 
because, although the attorneys were not signatories to the APO, they 
had previously appeared before the Commission in section 337 
investigations.
    Case 5. The Commission determined that an attorney representing the 
respondent in a section 337 investigation breached the APO in the 
investigation when he filed a public brief at a court containing 
information designated as CBI by the complainant.
    The attorney filed the public brief containing the CBI with a 
court. However, the court rejected the brief for failing to comply with 
certain technical requirements, and that rejection prevented the brief 
from being disclosed to the public. The complainants' counsel informed 
the attorney that the brief contained the CBI. The attorney agreed to, 
and did, promptly contact the court to remove the brief from public 
view. The clerk stated that the brief was not publicly available and 
the attorney did not disseminate the brief to anyone else.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional; (2) the attorney had not been found in 
violation of an APO or other protective order in the previous two 
years; and (3) no party was prejudiced by the breach because no 
unauthorized person actually viewed the CBI. The Commission also 
considered that the attorney took immediate steps to mitigate any harm 
by contacting the court in an attempt to prevent the disclosure of the 
CBI to unauthorized persons.
    Rather than issuing a sanction, the Commission issued a warning 
letter to the attorney.
    Case 6. The Commission determined that an attorney representing the 
complainants breached an APO in a section 337 investigation when he 
filed a brief in a state court containing information designated as CBI 
by the respondents.
    The attorney filed a brief under seal at a state court containing 
an attached exhibit including CBI. The exhibit was filed under seal and 
was not available to the public. The respondents' counsel informed the 
complainants' counsel of the APO breach and requested that 
complainants' counsel ask the state court to remove the exhibit from 
the filing. The next day, the attorney's law firm requested the removal 
of the exhibit. After the attorney's law firm complied with the court's 
rules and guidance, the court removed the exhibit from the filing. A 
second attorney from the attorney's law firm notified the Commission of 
the breach. The law firm explained that it had intended to attach a 
public version of the exhibit to the filing and that the breach was 
unintentional and inadvertent.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional; (2) the attorney had not been found in 
violation of an APO or other protective order in the previous two 
years; (3) the breach was promptly reported to the Commission; and (4) 
the law firm took active steps to remedy the breach by withdrawing the 
offending exhibit from the filing. The Commission further considered 
that the brief was filed under seal. The Commission also considered 
aggravating factors, including that (1) local counsel for both the 
complainants and the respondents who were not APO signatories had 
access to the document and respondents' counsel viewed the documents; 
and (2) the attorney's law firm did not discover the breach, but rather 
was informed of the breach by respondents' counsel.
    Rather than issuing a sanction, the Commission issued a warning 
letter to the attorney.
    Case 7. The Commission determined that an attorney at a law firm 
and a staff economist at a consulting firm breached an APO in a title 
VII investigation when a public version of a prehearing brief prepared 
on behalf of a respondent, which contained certain unredacted BPI, was 
filed, served, and made available to the public on the Commission's 
website.
    The economist mistakenly informed the attorney that the public 
version of a staff report included with a brief did not contain BPI. 
When the attorney told the economist that certain information in the 
staff report was of a type generally considered to be BPI in Commission 
investigations, the economist again affirmed his prior incorrect 
statement that the information was not BPI. On that basis, brackets 
identifying the information as BPI were removed from certain portions 
of the brief and the information was not deleted from the public 
version of the brief when it was filed and served. Thereafter, counsel 
for petitioners informed the attorney that the public version of the 
brief included BPI. The attorney then called the only person upon whom 
a paper copy of the public version had been served (a non-signatory to 
the APO), who reported that he had not read or distributed the brief 
and agreed to destroy it. The attorney and his staff then immediately 
contacted the Commission to remove the public version of the document 
from the Commission's website and then filed revised pages to the brief 
which redacted the BPI. An audit of the document available on the 
Commission's website indicated that the document was viewed by five 
individuals, one of whom was not authorized to view BPI.
    In determining the appropriate sanction in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional and inadvertent; (2) neither the attorney nor 
the economist had been found in violation of an APO or other protective 
order in the previous

[[Page 17849]]

two years; and (3) once informed of the breach, the attorney and 
economist took immediate action to cure the breach. The Commission also 
considered aggravating factors, including that (1) the attorney and the 
economist did not discover the breach themselves, but were instead 
informed of the breach by counsel for petitioners; and (2) the brief 
was publicly available on the Commission's website for two days and was 
accessed by at least one individual who was not authorized to view the 
BPI.
    The Commission issued private letters of reprimand to the attorney 
and the economist.
    Case 8. The Commission determined that two attorneys representing 
the complainant breached an APO in a section 337 investigation when 
they sent an email attachment containing information that had been 
designated as CBI by the respondent to the complainant's employees.
    In this case, an attorney representing the complainant sent to the 
complainant's employees an email that appended portions of the 
complainant's draft pre-hearing brief which included CBI, asking them 
to read it and provide comments. A second attorney of the same law 
firm, who was responsible for the day-to-day management of this 
investigation for the complainant, was copied on the email. One of the 
complainant's employees then transmitted the document in question to 
the complainant's directors and other of the complainant's employees. 
The attorneys' law firm learned of the disclosure on a phone call with 
the complainant's employees. The law firm's counsel then spoke to the 
respondent's counsel and alerted the administrative law judge of the 
breach. Thereafter, the administrative law judge conducted a telephone 
conference with the parties and ordered, inter alia, that the 
complainant retain an independent forensic expert to produce a record 
of the scope and timing of the disclosure of the CBI to the 
complainant's employees. At the completion of the report, all CBI in 
the complainant's possession was to be destroyed.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was inadvertent; (2) complainant's counsel self-reported the 
breach and took prompt action to destroy all copies of the disclosed 
document and prevent further dissemination; (3) respondent was not 
seeking further sanctions; and (4) neither attorney had previously been 
found in violation of an APO. The Commission also considered 
aggravating factors, including that (1) the confidential material was 
reviewed by several individuals at the complainant who were not 
authorized to view the CBI; and (2) that weeks had passed before the 
breach was discovered.
    The Commission issued a private letter of reprimand to the attorney 
who first sent the offending email to the complainant's employees. The 
Commission also issued a warning letter to the second attorney, who 
exercised inadequate oversight over the CBI in question (including a 
failure to observe that the attachment sent to the complainant was 
replete with respondent's CBI).
    Case 9. The Commission determined that a law firm representing the 
complainant did not breach an APO in a section 337 investigation. 
Respondent's counsel alleged that the law firm used CBI without 
authorization to prepare and file a new complaint at the Commission. 
However, for each alleged instance of an improper disclosure of CBI, 
the law firm was able to show that the information alleged to be CBI 
was available in the public record.

    By order of the Commission.

    Issued: April 18, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-08432 Filed 4-23-18; 8:45 am]
 BILLING CODE 7020-02-P