[Federal Register Volume 89, Number 246 (Monday, December 23, 2024)]
[Notices]
[Pages 104562-104567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30518]
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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 breaches 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 (the
``24-hour rule'') title 19 of the Code of Federal Regulations. This
notice provides a summary of APO breach investigations completed during
fiscal year 2024. This summary addresses APO breach investigations
related to proceedings under both title VII and section 337 of the
Tariff Act of 1930. The Commission intends for this summary to inform
representatives of parties to Commission proceedings of the specific
types of APO breaches before the Commission and the corresponding types
of actions that the Commission has taken.
FOR FURTHER INFORMATION CONTACT: Lisa Barton, Secretary to the
Commission, U.S. International Trade Commission, telephone (202) 205-
2786. Hearing-impaired individuals may obtain information on this
matter by contacting the Commission's TDD terminal at (202) 205-1810.
General information concerning the Commission is available on its
website at https://www.usitc.gov.
SUPPLEMENTARY INFORMATION: Statutory authorities for Commission
investigations provide for the release of business proprietary
information (``BPI'') or confidential business information (``CBI'') to
certain authorized representatives in accordance with requirements set
forth in the Commission's Rules of Practice and Procedure. Such
statutory and regulatory authorities include: 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. 4572(f); 19 CFR 208.22; 19 U.S.C. 1516a(g)(7)(A);
and 19 CFR 207.100-207.120. The term ``CBI'' is defined in 19 CFR
201.6(a) and includes the term ``proprietary information'' within the
meaning of 19 U.S.C. 1677f(b). The discussion below describes APO
breach investigations that the Commission completed during fiscal year
2024, including descriptions of actions taken in response to any
breaches.
Since 1991, the Commission has published annually a summary of its
actions in response to violations of Commission APOs and rule
violations. See 88 FR 85303 (Dec. 7, 2023); 87 FR 69331 (Nov. 18,
2022); 86 FR 71916 (Dec. 20, 2021); 85 FR 7589 (Feb. 10, 2020); 83 FR
42140 (Aug. 20, 2018); 83 FR 17843 (Apr. 24, 2018); 82 FR 29322 (June
28, 2017); 81 FR 17200 (Mar. 28, 2016); 80 FR 1664 (Jan. 13, 2015); 78
FR 79481 (Dec. 30, 2013); 77 FR 76518 (Dec. 28, 2012); 76 FR 78945
(Dec. 20, 2011); 75 FR 66127 (Oct. 27, 2010); 74 FR 54071 (Oct. 21,
2009); 73 FR 51843 (Sept. 5, 2008); 72 FR 50119 (Aug. 30, 2007); 71 FR
39355 (July 12, 2006); 70 FR 42382 (July 22, 2005); 69 FR 29972 (May
26, 2004); 68 FR 28256 (May 23, 2003); 67 FR 39425 (June 7, 2002); 66
FR 27685 (May 18, 2001); 65 FR 30434 (May 11, 2000); 64 FR 23355 (Apr.
30, 1999); 63 FR 25064 (May 6, 1998); 62 FR 13164 (Mar. 19, 1997); 61
FR 21203 (May 9, 1996); 60 FR 24880 (May 10, 1995); 59 FR 16834 (Apr.
8, 1994); 58 FR 21991 (Apr. 26, 1993); 57 FR 12335 (Apr. 9, 1992); and
56 FR 4846 (Feb. 6, 1991). This report does not provide an exhaustive
list of conduct that will be deemed to be a breach of the Commission's
APOs. The Commission considers APO breach investigations on a case-by-
case basis.
As part of the Commission's efforts to educate practitioners about
the Commission's current APO practice, the Secretary to the Commission
(``Secretary'') issued in January 2022 a sixth edition of An
Introduction to Administrative Protective Order Practice in Import
Injury Investigations (Pub. No. 5280). This document is available on
the Commission's website at https://www.usitc.gov.
I. In General
A. Antidumping and Countervailing Duty Investigations
The current APO application form for antidumping and countervailing
duty investigations, which the Commission revised in July 2024,
requires an APO applicant to agree to:
(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,
(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 U.S. judicial or review pursuant to the
[[Page 104563]]
United State-Mexico-Canada Agreement (USMCA) the determination
resulting from such investigation 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 documents and materials (e.g., word processing or
computer discs) containing such BPI are not being used, store such
material in a locked file cabinet, vault, safe, or other suitable
container (N.B.: [S]torage of BPI on so-called hard disk computer media
or similar 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) Not enter BPI into a shared computing resource (e.g., database,
network file share, cloud environment) unless access to the resource is
restricted to persons authorized to receive the BPI;
(6) 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;
(7) Transmit each document containing BPI disclosed under this APO:
(i) Via secure electronic means, as authorized by the Secretary, or
(ii) With a cover sheet identifying the document as containing BPI,
(iii) With all BPI enclosed in brackets and each page warning that
the document contains BPI, and
(iv) 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;
(8) Comply with the provision of this APO and section 207.7 of the
Commission's rules;
(9) 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);
(10) Report promptly and confirm in writing to the Secretary any
possible breach of this APO;
(11) 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; and
(12) Whenever an authorized applicant is representing parties in
any litigation or dispute settlement regarding the same, similar, or
related matter, or other matter that otherwise encompasses the same
information, as the relevant investigations, proactively disclose
representation(s) as follows:
(i) Indicate the proceeding and name the parties to it (including
whomever the authorized applicant represents) on the antidumping/
countervailing duty APO application;
(ii) Acknowledge that failure to provide this information may
result in denial, modification, and/or revocation of APO access; and
(iii) During the period of APO access, acknowledge continuing
obligation to notify the Secretary of any changes to the information
provided in the application.
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 issued in cross-border long-haul trucking (``LHT'')
investigations, conducted under the USMCA Implementation Act, 19 U.S.C.
4571-4574 (19 U.S.C. 4501 note), and safeguard investigations,
conducted under the statutory authorities listed in 19 CFR 206.1 and
206.31, contain similar (though not identical) provisions.
B. Section 337 Investigations
APOs in section 337 investigations differ from those in title VII
investigations: There is no set form as with the title VII APO
application, and provisions of individual APOs may differ depending on
the investigation and the presiding administrative law judge. However,
in practice, the provisions are often similar in scope and applied
quite similarly. Any person seeking access to CBI during a section 337
investigation (including, for example, outside counsel for parties to
the investigation and technical experts and their staff who are
employed for the purposes of the investigation) is required to read the
APO, file a letter with the Secretary indicating agreement to be bound
by the terms of the APO, agree not to reveal CBI to anyone other than
another person permitted access by the APO, 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 may have access to 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 seek 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. Under Commission practice, if the
underlying investigation is before the Commission at the time of the
alleged breach or if the underlying investigation has been terminated,
a
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person who discloses CBI, other than in a manner authorized by the APO,
should report the disclosure to the Secretary. See 19 CFR 210.25,
210.34(c). Upon final termination of an investigation, the APO requires
all signatories to the APO to either return to the suppliers or, with
the written consent of the CBI supplier, destroy the originals and all
copies of the CBI obtained during the investigation.
Commission Rule 210.34(d) requires APO signatories to report in
writing to the Commission immediately upon learning that CBI obtained
through an APO is the subject of (1) a subpoena; (2) a court or an
administrative order (other than an order of a court reviewing a
Commission decision); (3) a discovery request; (4) an agreement; or (5)
any other written request, if the request or order seeks disclosure, by
the APO signatory or any other person, of the subject CBI to a person
who is not, or may not be, permitted access to that information
pursuant to an APO or Commission Rule. Individuals who willfully fail
to comply with this requirement may be subject to sanctions in
accordance with Commission Rule 210.34(e).
The Commission's regulations provide for the imposition of certain
sanctions if a person subject to the APO violates its restrictions. The
Commission keeps the names of the persons being investigated for
violating an APO confidential unless the Commission issues a public
sanction or in other circumstances where the Commission determines that
such disclosure is necessary. 19 CFR 210.34(c)(1). The possible
sanctions are:
(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 BPI and CBI. However, Commission employees
are subject to strict statutory and regulatory constraints concerning
BPI and CBI, and they 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
The Commission conducts APO breach investigations for potential
breaches that occur in title VII, safeguard, and LHT investigations, as
well as for potential breaches in section 337 investigations that are
before the Commission or have been terminated.\1\ Administrative law
judges handle potential APO breaches in section 337 investigations when
the breach occurred and is discovered while the underlying
investigation is before the administrative law judge. The Commission
may review any decision that the administrative law judge makes on
sanctions in accordance with Commission regulations. See 19 CFR 210.25,
210.34(c).
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\1\ Procedures for investigations 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 a North American Free Trade Agreement or USMCA panel
or committee proceedings are set out in 19 CFR 207.100-207.120. The
Commission's Office of Unfair Import Investigations conducts the
initial inquiry.
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For Commission APO breach investigations, upon finding evidence of
an APO breach or receiving information that there is reason to believe
that one has occurred, the Secretary notifies relevant Commission
offices that the Secretary has opened an APO breach file and that the
Commission has commenced an APO breach investigation. The Commission
then notifies the alleged breaching parties of the alleged breach and
provides them with the voluntary option to proceed under a one- or two-
step investigatory process. Under the two-step process, which was the
Commission's historic practice, the Commission determines first whether
a breach has occurred and, if so, who is responsible for it. This is
done after the alleged breaching parties have been provided an
opportunity to present their views on the matter. The breach
investigation may conclude after this first step if: (1) the Commission
determines that no breach occurred and issues a letter so stating; or
(2) the Commission finds that a breach occurred but concludes that no
further action is warranted and issues a warning letter. If the
Commission determines that a breach occurred that may warrant further
action, the Commission will then determine what sanction, if any, to
impose. Before making this determination, the Commission provides the
breaching parties with an opportunity to present their views on the
appropriate sanction and any mitigating circumstances. The Commission
can decide as part of either the first or second step to issue a
warning letter. A warning letter is not a sanction, but the Commission
will consider a warning letter as part of any subsequent APO breach
investigation.
The Commission recognizes that the two-step process can result in
duplicative work for the alleged breaching party and Commission staff
in some APO breach investigations. For example, parties who self-report
their own breach often address mitigating circumstances and sanctions
in their initial response to the Commission's letter of inquiry on the
breach. But, under the Commission's two-step process, they must await a
Commission decision on breach and then submit again their views on
mitigating circumstances and sanctions. To streamline this process and
accelerate processing times, the Commission offers alleged breaching
parties the option to voluntarily elect a one-step APO breach
investigation process. Under this process, the Commission will
determine simultaneously whether a breach occurred and, if so, the
appropriate sanction to impose, if any. Under either process, the
alleged breaching party has the opportunity to submit affidavits
reciting the facts concerning the alleged breach and mitigating factors
pertaining to the appropriate response if a breach is found.
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 [APO] depends in part on the
extent to which private parties have confidence that there are
effective sanctions against violation.'' H.R. Conf. Rep. 100-576, at
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
[[Page 104565]]
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 authorized
under the APO had access to and viewed the BPI/CBI. The Commission
considers whether there have been prior breaches by the same person or
persons in other investigations and whether there have been 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, safeguard, or LHT
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. See 19 CFR 207.7(a)(3)(i)(B)
and (C); 19 CFR 206.17(a)(3)(i)(B) and (C); and 19 CFR
208.22(a)(3)(i)(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, or for retaining BPI/CBI without consent of the submitter
after the termination of an investigation. This is so even though the
Commission may also hold the attorney exercising direction or control
over the economist or consultant responsible for the APO breach. 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,
safeguard investigations, and LHT investigations are not publicly
available and are exempt from disclosure under the Freedom of
Information Act, 5 U.S.C. 552. See, e.g., 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: (1) the APO's prohibition on the dissemination or
exposure of BPI or CBI to unauthorized persons; and (2) the APO's
requirement that the materials received under the APO be returned or
destroyed and that a certificate be filed with the Commission
indicating what actions were 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 or suspected
violations of an APO, and the failure to adequately supervise non-
lawyers in the handling of BPI/CBI.
Occasionally, the Commission conducts APO breach 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 has determined in all of these cases
that the person who was a non-signatory, and therefore did not agree to
be bound by the APO, could not be found to have breached the APO.
However, under Commission rule 201.15 (19 CFR 201.15), the Commission
may take action against these persons for good cause shown. In all
cases in which the Commission has taken such action, it decided that
the non-signatory appeared regularly before the Commission, was aware
of the requirements and limitations related to APO access, and should
have verified their 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
their action or inaction did not demonstrate diligent care of the APO
materials, even though they appeared regularly before the Commission
and were aware of the importance that the Commission places on the
proper care of APO materials.
The Commission has held routinely that the disclosure of BPI/CBI
through recoverable metadata or hidden text constitutes a breach of the
APO even when the BPI/CBI is not immediately visible without further
manipulation of the document. In such cases, breaching parties have
transmitted documents that appear to be public documents in which the
parties have removed or redacted all BPI/CBI. However, further
inspection of the document reveals that confidential information is
actually retrievable by manipulating codes in software or through the
recovery of hidden text or metadata. In such instances, the Commission
has found that the electronic transmission of a public document with
BPI/CBI in a recoverable form was a breach of the APO.
The Commission has cautioned counsel to ensure that each authorized
applicant files with the Commission 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
stating that, to the signatory's knowledge and belief, all copies of
BPI/CBI have been returned or destroyed, and no copies of such
materials 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 access to BPI/CBI. One firm-
wide certificate is insufficient.
Attorneys who are signatories to the APO in a section 337
investigation should inform the administrative law judge and the
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 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 the Commission could hold them 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 two attorneys from different
law firms who collaborated on a joint brief filed with the Court of
International Trade in connection with a title VII investigation each
breached the APO. Both attorneys breached the APO by publicly filing a
brief that contained unredacted BPI, and then one of the attorneys
breached the APO a second time by failing to completely redact the
[[Page 104566]]
BPI from the corrected version of the brief.
The first breach occurred when two law firms filed a joint public
brief before the Court of International Trade that contained unredacted
BPI in a footnote. Neither law firm identified the BPI as confidential
or redacted it from the public brief during the review process. One of
the law firms then filed the brief through the Court of International
Trade's electronic filing system, where it remained publicly available
until the next day. The second law firm identified the breach and
notified the first law firm, which requested the brief's removal.
A second breach occurred when the first law firm electronically
filed a corrected, second version of the brief. In the corrected
version, the BPI was identified as such, but the redaction process
failed to completely remove the BPI from the document, thereby leaving
it retrievable by electronic means. The corrected version was also
uploaded to the Court of International Trade's electronic filing
system, where the document remained available for six days. One of the
law firms also distributed the corrected version to five individuals
employed by its client. The second law firm discovered that the BPI was
improperly redacted, and the first law firm notified the Court of
International Trade of the error, resulting in the removal of the
corrected version. The Commission determined to hold both law firms
responsible for the first breach and to hold the first law firm
responsible for the second breach, given its role in preparing the
corrected version of the brief and its responsibility for properly
removing the BPI.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) both
breaches were inadvertent and unintentional; (2) one of the law firms
discovered both breaches; (3) after discovering the second breach, the
breaching parties took prompt action to remedy it and prevent further
dissemination of BPI; (4) the breaching parties implemented new
procedures to prevent future similar breaches; and (5) the attorneys
involved had not previously breached an APO in the two-year period
preceding the dates of these breaches. The Commission also considered
the following aggravating factors: (1) unauthorized individuals had
access to and presumably viewed the BPI; (2) one of the breaching
parties violated the APO in two different ways; and (3) one of the
breaching parties failed to follow firm procedures for protecting BPI
in the second breach.
The Commission issued a private letter of reprimand to one attorney
from the first law firm, who was found to bear the ultimate
responsibility for both breaches. The Commission also issued a warning
letter to an attorney from the second law firm who assisted in the
preparation of the brief. The Commission found that a warning letter
was appropriate because that attorney had an opportunity to review the
footnote while drafting the brief and to flag the BPI for redaction and
removal.
Case 2. The Commission determined that three individuals breached
the APO issued in a title VII investigation when they publicly filed
and served to unauthorized parties a public version of a brief that
contained unredacted BPI.
The law firm responsible for the breach filed an original and
revised confidential version of its brief on the Commission's
Electronic Document Information System (``EDIS''). The revised
confidential version of the brief contained bracketing changes to BPI,
including the complete redaction of two tables that contained BPI. The
firm then filed a public version of the original confidential brief
that did not include the redactions to the tables. The firm also served
that public version of the brief to all parties on the public service
list. Approximately two hours later, counsel from another law firm
notified the breaching parties that the public version of the brief
contained unredacted BPI. Upon receiving that notification, the
breaching parties contacted the parties on the public service list and
requested confirmation of destruction of the public version of the
brief. The next day, the breaching parties contacted the Commission to
request removal of the public version of the brief from EDIS. The
breaching parties later filed a corrected public version of the brief,
with the BPI redacted.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was unintentional and inadvertent; and (2) the breaching parties took
prompt action to remedy the breach and prevent further dissemination of
BPI; (3) the law firm promptly reported the breach to the Commission;
and (4) the individuals involved had not previously breached an APO in
the two-year period preceding the date of this breach. The Commission
also considered as an aggravating factor that unauthorized individuals
had access to and presumably viewed the BPI.
The Commission determined to issue a private letter of reprimand to
the supervisory attorney who reviewed and approved the filing of the
original public version of the brief and failed to ensure that legal
support staff complied with the APO. The Commission also determined to
issue a private letter of reprimand to an office manager and a warning
letter to a legal assistant for their respective roles in preparing the
brief and contributing to the breach.
Case 3. The Commission determined that a law firm breached the APO
issued in a section 337 investigation when it filed on EDIS and served
to its clients a public version of a document that contained CBI from
another party.
Two attorneys at the law firm were responsible for reviewing the
public document for CBI. One of the attorneys received opposing
counsel's proposed redactions to the document, but the receiving
attorney reportedly failed to provide those redactions to the legal
secretary who was assisting with preparing the document for filing.
Thereafter, the attorney forwarded the document that the legal
secretary prepared to a second attorney for review, along with opposing
counsel's requested redactions. After the second attorney completed a
review for CBI, the first attorney reviewed the document one more time
before instructing the legal secretary to file the public document. The
attorney also sent the finalized version to the law firm's clients. The
next day, opposing counsel notified the attorney that the document
contained unredacted CBI. The attorney instructed a firm paralegal to
contact the Commission to request that the document be removed from
EDIS. The attorney also contacted the clients who received a copy of
the document to request its destruction.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was inadvertent and unintentional; (2) the law firm took prompt
corrective action to investigate the breach and prevent further
dissemination of CBI; (3) the law firm promptly self-reported the
breach; (4) the law firm implemented new procedures to prevent against
similar breaches in the future; and (5) the individuals involved had
not been found to have breached an APO in the two years preceding the
date of the breach. The Commission also considered the following
aggravating factors: (1) the law firm did not discover its own breach;
and (2) the breach resulted in exposure of CBI to unauthorized
individuals.
The Commission issued a private letter of reprimand to both
attorneys: one who reviewed and redacted the document, approved the
public version
[[Page 104567]]
for filing, and served it on the firm's clients, and the other who
reviewed and redacted the document but failed to protect the other
party's CBI.
Case 4. The Commission determined that an economic consultant
breached the APO in a title VII investigation by making BPI available
to unauthorized parties on three separate occasions.
The document that was the subject of all three breaches was a
presentation slide prepared by the consultant's firm. The slide at
issue contained unredacted BPI that revealed information in a chart
about pricing data. The first breach occurred when copies of the slide
were distributed during a meeting that included individuals who were
not authorized under the APO to receive BPI. The second breach occurred
at a second meeting, to additional unauthorized individuals who were
not present at the first meeting. The third breach occurred at a public
Commission hearing when the economic consulting firm displayed the
slide in question on a large screen and distributed paper copies. At
the conclusion of the presentation, a Commission employee approached
the economic consultant to express concerns that the slide had exposed
BPI. At the conclusion of the hearing, the economic consultant
attempted to retrieve the paper copies from the recipients, which the
Commission then collected.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) all three
breaches were inadvertent and unintentional; (2) the breaching party
took prompt action to remedy the third breach and prevent further
dissemination of BPI; (3) the breaching party implemented new
procedures to prevent against similar breaches in the future; and (4)
the individual involved had not previously breached an APO in the two-
year period preceding the dates of these breaches. The Commission also
considered the following aggravating factors: (1) all three breaches
resulted in the exposure of BPI to unauthorized individuals; (2) the
breaching party violated the APO on three occasions; and (3) the
breaching party did not discover the breaches.
The Commission issued a private letter of reprimand to the economic
consultant responsible for creating, reviewing, and disseminating the
slide to unauthorized individuals.
By order of the Commission.
Issued: December 17, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-30518 Filed 12-20-24; 8:45 am]
BILLING CODE 7020-02-P