Summary of Commission Practice Relating to Administrative Protective Orders, 51843-51849 [E8-20540]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 73, Number 173 (Friday, September 5, 2008)]
[Notices]
[Pages 51843-51849]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-20540]


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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 issued an annual report on the status of its 
practice with respect to violations of its administrative protective 
orders (``APOs'') in investigations 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''), 19 CFR 
207.3(c). This notice provides a summary of investigations completed 
during calendar year 2007 of breaches in proceedings under Title VII 
and section 337 of the Tariff Act of 1930, the only proceedings in 
which investigations of breaches were completed during the year. 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: Carol McCue Verratti, Esq., Office of 
the General Counsel, U.S. International Trade Commission, telephone 
(202) 205-3088. 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 
Internet server (https://www.usitc.gov).

SUPPLEMENTARY INFORMATION: Representatives of parties to investigations 
or other proceedings conducted under Title VII of the Tariff Act of 
1930, sections 202 and 204 of the Trade Act of 1974, section 421 of the 
Trade Act of 1974, section 337 of the Tariff Act of 1930, and North 
American Free Trade Agreement (NAFTA) Article 1904.13, 19 U.S.C. 
1516a(g)(7)(A) may enter into APOs that permit them, under strict 
conditions, to obtain access to BPI (Title VII) or confidential 
business information (``CBI'') (section 421, sections 201-204, and 
section 337) of other parties. See 19 U.S.C. 1677f; 19 CFR 207.7; 19 
CFR 207.100, et seq.; 19 U.S.C. 2252(i); 19 U.S.C. 2451a(b)(3); 19 CFR 
206.17; 19 U.S.C. 1337(n); 19 CFR 210.5, 210.34. The discussion below 
describes APO breach investigations that the Commission has completed 
during calendar year 2007, 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 the 24-hour 
rule. See 56 FR 4846 (Feb. 6, 1991); 57 FR 12335 (Apr. 9, 1992); 58 FR 
21991 (Apr. 26, 1993); 59 FR 16834 (Apr. 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); and 72 FR 50119 (August 30, 2007). 
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 Web 
site at https://www.usitc.gov.

I. In General

    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,
    (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 
decisionmaking 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

[[Page 51844]]

    (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 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 7 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 investigations other than those under Title VII contain 
similar, though not identical, provisions.
    Commission employees are not signatories to the Commission's APOs 
and do not obtain access to BPI 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.
    An important provision of the Commission's Title VII and safeguard 
rules relating to BPI/CBI is the ``24-hour'' rule. This rule provides 
that parties have one business day after the deadline for filing 
documents containing BPI/CBI to file a public version of the document. 
The rule also permits changes to the bracketing of information in the 
proprietary version within this 1-day period. No changes--other than 
changes in bracketing--may be made to the proprietary version. The rule 
was intended to reduce the incidence of APO breaches caused by 
inadequate bracketing and improper placement of BPI/CBI. The Commission 
urges parties to make use of the rule. If a party wishes to make 
changes to a document other than bracketing, such as typographical 
changes or other corrections, the party must ask for an extension of 
time to file an amended document pursuant to section 201.14(b)(2) of 
the Commission's rules.

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 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.
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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 two basic interests: (a) 
Preserving the confidence of submitters of BPI that the Commission is a 
reliable protector of BPI; and (b) disciplining breachers and 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. The Commission considers whether there are 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

[[Page 51845]]

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.
    The records of Commission investigations of alleged APO breaches in 
antidumping and countervailing duty cases are not publicly available 
and are exempt from disclosure under the Freedom of Information Act, 5 
U.S.C. 552, and section 135(b) of the Customs and Trade Act of 1990, 19 
U.S.C. 1677f(g). See also 19 U.S.C. 1333(h).
    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 usually occurs as 
the result of failure to delete BPI 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-legal personnel in 
the handling of BPI/CBI.
    In the past several years, the Commission completed APOB 
investigations that involved 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 these cases, the firm 
and the person using the BPI 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-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. The Commission notes that section 201.15 may also be 
available to issue sanctions to attorneys or agents in different 
factual circumstances where they did not technically breach the APO but 
where 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.
    The Commission's Secretary has provided clarification to counsel 
representing parties in investigations relating to global safeguard 
actions, section 202(b) of the Trade Act of 1974, investigations for 
relief from market disruption, section 421(b) or (o) of the Trade Act 
of 1974, and investigations for action in response to trade diversion, 
section 422(b) of the Trade Act of 1974, and investigations concerning 
dumping and subsidies under section 516A and title VII of the Tariff 
Act of 1930 (19 U.S.C. 1303, 1516A and 1671-1677n). The clarification 
concerns the requirement to return or destroy CBI/BPI that was obtained 
under a Commission APO.
    A letter was sent to all counsel on active service lists in mid-
March 2007. Counsel were cautioned to be certain that each authorized 
applicant files within 60 days of the completion of an 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. This same information is 
also being added to notifications sent to new APO applicants.
    In addition, attorneys representing clients in section 337 
investigations should send a notice to the Commission if they are no 
longer participating in a section 337 investigation or the subsequent 
appeal of the Commission's determination. In Case 10 of the summaries 
of completed 2005 APOB investigations published in the Federal Register 
on July 12, 2006 (71 FR 39361), the Commission found that a lead 
attorney, who left a law firm which represented a respondent in a 
Commission investigation after the investigation was completed but 
before the appeal of the Commission's determination had ended, breached 
the APO by not informing the Commission of his departure and that he 
should no longer be a signatory to the APO. In addition, the Commission 
found that he had also breached the APO by failing to ensure that his 
former firm complied with the APO requirements for returning and 
destroying the confidential materials obtained under the APO. Thus, 
individual counsel in section 337 investigations should take care to 
inform the Commission of their departure from a position for which they 
are a signatory to a Commission APO and to inform the Commission about 
their disposition of CBI obtained under the APO that is 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 Investigations in Which Breaches Were Found

    The Commission presents the following case studies to educate users 
about the types of APO breaches found by the Commission. The studies 
provide the factual background, the actions taken by the Commission, 
and the factors considered by the Commission in determining the 
appropriate actions. The Commission has not included some of the 
specific facts in the descriptions of investigations where disclosure 
of such facts could reveal the identity of a particular breacher. Thus, 
in some cases, apparent inconsistencies in the facts set forth in this 
notice result from the Commission's inability to disclose particular 
facts more fully.
    Case 1: The Commission determined that three attorneys and two 
legal assistants breached an APO by failing to redact unbracketed BPI 
in the public version of a posthearing brief and serving it on 
attorneys named on the public service list. The Commission also found 
that two of the attorneys responsible for this first breach, along with 
a fourth attorney, committed a second breach by using the BPI obtained 
under APO on behalf of one client in a submission to a World Trade 
Organization (WTO) dispute resolution panel on behalf of another 
client.
    The Commission issued a private letter of reprimand to three of the 
attorneys for the first breach. In reaching its decision concerning 
those attorneys, the Commission considered the facts that (1) the 
breach was discovered by the Commission Secretary; (2) a long period of 
time, approximately eight

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months, elapsed between the filing of the brief and the discovery of 
the breach; (3) the firm could not provide a definitive response as to 
whether the brief containing BPI was read by non-signatories; and (4) 
while the lawyers responded quickly with regard to parties other than 
their clients, they delayed contacting their own clients until two days 
after notification of the breach. The Commission did note that 
mitigating circumstances existed because the breach was inadvertent, 
the attorneys had no prior APO breaches within the two-year period 
normally considered by the Commission for sanctions purposes, the firm 
took immediate steps to correct the breach, and the firm strengthened 
its internal procedures to require that a third attorney review the 
public version of documents to ensure that all redactions have been 
implemented. The Commission issued a warning letter to the legal 
assistants finding that they were acting under the supervision of the 
attorneys at the time of the breach.
    With respect to the second breach, the Commission considered the 
mitigating circumstance that, although the submissions to the WTO 
dispute resolution panel contained statements that could not have been 
made without knowledge of the confidential record, no BPI was disclosed 
to unauthorized persons. As was stated above, two of the attorneys 
responsible for this second breach were issued private letters of 
reprimand which included the Commission's consideration of this second 
breach. The third attorney who was responsible for only the second 
breach was issued a warning letter. The Commission decided to issue a 
warning letter because, although the breach was not discovered by his 
firm, no BPI was disclosed to unauthorized persons, he had not breached 
an APO in the past two years, and the breach was unintentional.
    Case 2: The Commission determined that several attorneys and one 
paralegal breached an APO by failing to return or destroy certain 
materials at the conclusion of a Commission section 337 investigation. 
The Commission also found that one of the attorneys and the paralegal 
committed a second breach by permitting the disclosure of CBI subject 
to an APO to unauthorized persons at their firm.
    Upon conclusion of this section 337 investigation, the parties to 
the investigation agreed that, notwithstanding the APO, they would 
retain an archival copy of certain documents produced by each other. 
However, documents not subject to that separate agreement and any CBI 
produced by third parties were to be returned or destroyed. The 
attorneys and the paralegal failed to return or destroy all of the 
materials containing CBI that were not covered by the agreement.
    The Commission issued warning letters to ten attorneys for the 
first breach. These attorneys had no prior APO breaches within the two-
year period normally considered by the Commission for sanctions 
purposes, and the breach was unintentional.
    The Commission issued private letters of reprimand to the attorney 
and paralegal who had committed both the first and second breaches. In 
reaching its decision, the Commission considered the facts that (1) 
there were two breaches, (2) the CBI appeared to have been viewed by at 
least some unauthorized firm personnel before the CBI was discovered 
and secured, and (3) there was a significant delay in notifying the 
Commission of the second breach. The Commission did note that 
mitigating circumstances existed because both of the breaches appeared 
to have been inadvertent, neither the attorney nor the paralegal had 
committed breaches prior to the breaches in this instance, and the 
attorney was cooperative and took steps to protect the CBI and inform 
the Commission of the second breach.
    The Commission also found that four other attorneys and two 
paralegals did not breach the APO. These individuals were not in a 
position to arrange for the return or destruction of the CBI at issue.
    The Commission also considered whether there was a violation of 19 
CFR 210.34(d) by two attorneys for failing to report to the Commission 
immediately upon learning that CBI disclosed to them pursuant to the 
protective order was the subject of a discovery request. The Commission 
decided that there was no violation because the attorneys fulfilled 
their obligation by reporting to the Commission within four days of the 
discovery request.
    Case 3: The Commission determined that three attorneys breached an 
APO by their failure to redact certain BPI in the public version of a 
prehearing brief. In the brief, the attorneys provided import data from 
multiple countries for the subject merchandise. The text indicated that 
data from one named importer was not included. On the next page the 
brief contained a chart with import data that included the previously 
excluded importer, although that fact was not stated.
    The Commission found the lawyers' argument that the information in 
the chart did not contain BPI was unpersuasive. The amount in the chart 
was larger than what had been discussed on the previous page where the 
one importer's data was excluded. In addition, the data in the chart 
corresponded closely to BPI in the prehearing staff report. Although 
the lawyers had argued that the information was publicly available, the 
Commission noted that the submissions regarding this matter identified 
no public source for the information.
    The Commission issued warning letters to the three attorneys for 
this breach. The Commission noted that mitigating circumstances existed 
because the breach was inadvertent, the attorneys had no prior APO 
breaches, they took immediate steps to correct the breach, they 
promptly reported the breach to the Commission's Secretary, and there 
was no evidence that any unauthorized individual viewed the BPI.
    Case 4: The Commission found that a lead attorney breached an APO 
by forwarding an e-mail from the Commission with an attachment 
containing BPI to executives of a client who were not subject to the 
APO.
    The attachment was a copy of the Commission's confidential staff 
report sent by a Commission staff member. Although the e-mail did not 
identify the attachment as containing BPI, the name of the attachment 
ended in ``BPI,'' and, once opened, each of its pages were identified 
as confidential.
    The attorney forwarded the e-mail to three executives at his 
client's firm without opening the attachment or realizing that it 
contained BPI. After forwarding the e-mail the attorney opened the 
attachment and immediately contacted the recipients and instructed them 
to delete the attachment without reading it. The attorney then informed 
the Commission of the breach.
    In his affidavit the attorney indicated that all recipients deleted 
the attachment without opening it. The attorney also stated that in his 
experience Commission staff did not distribute BPI material by e-mail.
    The Commission has consistently held that an APO breach occurs when 
a document containing BPI is distributed to unauthorized persons even 
if they do not view the BPI. Accordingly the Commission found that a 
breach occurred in this case. Further, the Commission found that a 
cursory inspection of the attachment would have indicated that it 
contained BPI, which suggests the attorney bore some responsibility for 
the breach.
    The Commission issued a warning letter rather than a private letter 
of reprimand because the breach was unintentional, the attorney had not 
committed a breach within the most

[[Page 51847]]

recent two-year period normally considered by the Commission for 
sanctions purposes, the attorney acted promptly to mitigate the breach 
by instructing the recipients of the e-mail to delete the attachment, 
and it appeared that BPI was not viewed by any unauthorized persons.
    Case 5: The Commission found that an attorney breached the APO by 
sending an e-mail with an attachment containing BPI to two employees of 
his client who were non-signatories to the APO.
    The Commission issued a warning letter to the attorney because 
there were several mitigating circumstances and no aggravating 
circumstances. The breach was unintentional and the attorney discovered 
the breach promptly. The attorney immediately notified the client's 
employees not to read the attachment and to delete the e-mail with its 
attachment. Thus, it appeared that neither of the client's employees 
viewed the attachment. In addition, this was the attorney's only breach 
in which he had been involved in the previous two years.
    Case 6: The Commission found that an associate attorney breached an 
APO when he failed to redact BPI from the public version of a post-
hearing brief. The Commission found that the lead attorney did not 
breach the APO because he did not participate in finalizing the brief 
and he reasonably relied on the associate attorney.
    The Commission notified the associate attorney that the public 
version of his firm's brief contained BPI. The BPI was contained in an 
exhibit that escaped the firm's review procedure because of a last-
minute change. Upon being notified of the breach, the associate 
attorney asked each party on a public service list to confirm that the 
BPI was either not received by any unauthorized party or was recalled 
from any unauthorized party and destroyed. According to his affidavit, 
the associate attorney believed that no unauthorized party received the 
BPI.
    Because BPI was made available to unauthorized parties, the 
Commission found that the associate attorney breached the APO. The 
Commission issued a warning letter rather than a private letter of 
reprimand to the associate attorney even though the Commission rather 
than the associate attorney's firm discovered the breach. The 
mitigating circumstances the Commission considered were that the breach 
was unintentional, the associate attorney acted immediately to cure the 
breach, no person involved in the investigation had committed previous 
violations of an APO, and the firm's submissions supported a finding 
that no unauthorized parties viewed the BPI.
    Case 7: A law firm was involved in two breaches of an APO. Both 
breaches involved service on other law firms that were no longer on the 
confidential service lists. The Commission found that the first breach 
was the responsibility of a paralegal. She had been charged with 
preparing the confidential version of a document containing expert 
testimony for filing and service. Although it was office procedure to 
check the certificate of service against the Commission's Web site, she 
failed to do so. As a result of this error and her use of an outdated 
service list, a law firm that was not entitled to receive BPI was 
served with the confidential version of the expert testimony. This 
first breach was not discovered until after discovery of the second 
breach.
    The second breach occurred two weeks later when two attorneys, a 
partner who was the lead attorney and an associate, finalized the 
firm's posthearing brief for filing and service. They had been provided 
with the same outdated service list by the paralegal, who then left the 
office on a medical emergency; the two attorneys failed to check 
whether the certificate of service was current. As a result of the 
attorneys' use of the outdated service list, two firms that were not 
entitled to receive BPI were served with the confidential version of 
the posthearing brief.
    The lead attorney discovered the second breach on the first 
business day after the filing of the posthearing brief and immediately 
contacted the non-signatory recipients of the posthearing brief. Both 
firms indicated that the packages had not been opened and returned them 
with the seals on the internal envelopes intact. The first breach was 
then discovered when one of the firms receiving the posthearing brief 
also returned the confidential expert testimony and informed the 
associate attorney that the document had been stored for safekeeping 
and never examined.
    The Commission found the paralegal responsible for the first breach 
because she failed to check the certificate of service against the 
latest APO service list. She was issued a warning letter and was not 
sanctioned because she had not breached an APO within the previous two 
years, the breach was unintentional, no non-signatory read the BPI, 
prompt action was taken by the firm to remedy the breach, and the firm 
had taken measures to assure that this type of error would not occur in 
the future.
    The Commission found the partner and the associate responsible for 
the second breach. The partner received a warning letter, and the 
associate a private letter of reprimand. The Commission considered the 
mitigating circumstances that the breach was unintentional, the 
unauthorized recipients did not read the BPI, the breach was discovered 
promptly and immediate action was taken to remedy the breach, and, 
solely with regard to the partner, he had not breached an APO within 
the previous two years. The associate received a private letter of 
reprimand because he had been found liable for a breach of another APO 
within the previous two years.
    Case 8: The Commission found a lead attorney, an associate 
attorney, and a paralegal liable for the breach of an APO for failing 
to delete all of the bracketed information from the public version of a 
brief filed by their law firm.
    The associate attorney instructed the paralegal to prepare an 
initial public version of the brief by running a computer macro on the 
electronic document and manually redacting non-electronic portions. The 
associate attorney reviewed the brief and tabbed a number of bracketing 
revisions. A second attorney, not found liable for the breach, reviewed 
the tabbed revisions and suggested more changes. The associate attorney 
then told the paralegal to make the changes. However, the associate 
attorney later found a new issue regarding conformity of the BPI and 
public versions that required a new public version. Citing time 
constraints and a busy filing day, the associate attorney chose to 
perform the final check of the brief himself instead of following firm 
procedure of asking a third attorney to review the public version. The 
revised BPI and public versions were then filed with the Commission. 
Later the same day, the second attorney called the associate attorney 
at home to say that the paralegal, while preparing service copies of 
the brief, had found text in the public version that was bracketed but 
not deleted. The associate attorney contacted the paralegal and told 
her not to serve the public versions of the brief that night because it 
was late and he needed to review the correction. The next morning, the 
associate attorney telephoned the Secretary's Office to report the 
issue, and the paralegal arrived with replacement pages for the 
Commission copies. As the Commission copies had not been distributed, 
the paralegal was able to replace the pages and shred the incorrect 
pages. The paralegal then distributed the service copies to the 
parties.
    The Commission found the paralegal responsible for the breach 
because the

[[Page 51848]]

paralegal had the responsibility to run the computer macro on the brief 
to redact the bracketed information. However, the Commission determined 
that there were several mitigating factors because she discovered the 
breach herself, immediately reported the information to others in the 
firm, moved promptly to mitigate the effects of the breach, and had not 
been found to have violated the APO in the last two years; in addition, 
no unauthorized persons viewed the unredacted BPI. Consequently, the 
Commission decided to issue a warning letter to the paralegal.
    The Commission found the lead attorney responsible for the breach 
because he had failed to provide adequate supervision over the 
associate attorney in this matter although he had reason to know that 
the associate attorney had previously breached the APO in a separate 
and unrelated proceeding. The Commission decided to issue a warning 
letter to the lead attorney because the breach was unintentional, no 
unauthorized persons actually saw the unredacted BPI, the breach was 
discovered promptly and remedied expeditiously, and this was the only 
breach in which the lead attorney had been involved in the past two 
years.
    The Commission found the associate attorney responsible because he 
had final responsibility for reviewing the document and authorized the 
filing of the document. The Commission considered the mitigating factor 
that the attorney acted quickly to remedy the situation. Technically 
the attorney's decision to delay serving the public version on the 
parties violated the Commission's twenty-four hour rule, but the 
Commission determined that the violation of the rule did not lead to 
any prejudicial effect because hand delivering the brief the next day 
ensured the parties received the brief at the same time they would have 
received it via overnight mail. Because of the lack of prejudicial 
effect, the attorney's method of mitigating the breach was not 
determined to be an aggravating factor.
    The associate's prior breach, however, was found to be an 
aggravating circumstance. Although the breach occurred more than two 
years previously, the Commission issued a sanction for the prior breach 
within the two year period. An additional aggravating factor was that 
the internal firm procedure that the associate attorney overrode, by 
not having a third attorney review the brief, was the procedure 
established in response to the attorney's first breach.
    Because the attorney had already received a private letter of 
reprimand for the first breach, the Commission in this case issued a 
private letter of reprimand containing an additional condition. The 
associate attorney was prohibited from being the final decision-maker 
at his law firm on any APO issues for a period of twelve months. For 
example, he cannot be the final decision-maker at his firm as to 
whether certain information is BPI, and he cannot be the final person 
to review the public version of a document before it is filed with the 
Commission or served on the relevant parties.
    Case 9: A law firm filed a public version of its final comments 
that contained unbracketed BPI. The Commission found that the two 
associate attorneys who were responsible for preparing the public 
version of the comments breached the APO.
    Shortly after the law firm submitted the public version to the 
Commission, counsel for one of the companies involved in the 
investigation contacted the law firm to request the bracketing of 
additional information in the law firm's final comments. One of the 
attorneys of the filing firm promptly notified the Commission 
Secretary's office, stopped service of the first public version of the 
final comments on the parties, and ensured that the Secretary did not 
place the first public version on the record. When the law firm 
submitted a revised public version of its final comments, counsel for 
the same company again contacted the law firm to request the bracketing 
of more information. That same day, the law firm prepared a second 
revised public version of the final comments, filed that version with 
the Commission, and served it on the parties. The law firm also 
contacted the parties who received the first revised version. One of 
the parties confirmed that the first revised version was destroyed 
unopened, while the other parties confirmed only destruction.
    The law firm argued that the information in question was not BPI 
because the type of information in question was general and normally 
not treated as BPI. However, the Commission found that the information 
was BPI and that it had been consistently bracketed by the Commission 
and other parties to protect the confidential information contained in 
the staff report and other briefs. The associate attorneys requested 
that the Commission reconsider its finding that a breach occurred on 
the basis that the information at issue was not BPI. The Commission 
denied their request because they did not provide any new arguments or 
evidence in support of a change in the finding about whether the 
information was BPI.
    The Commission determined that the lead attorney for the law firm 
was not responsible for the breach because his reliance on the 
associates for preparing the public version of his firm's final 
comments was reasonable. The two associates had substantial experience 
preparing public versions of briefs and, at the time of his delegation 
to them, had no record of violating another APO within the previous two 
years.
    One of the associate attorneys received a warning letter for his 
breach. The Commission considered the mitigating circumstances that the 
breach was inadvertent and that the attorneys took immediate steps to 
notify the Commission, retrieve the offending documents, and prepare 
corrected copies of the final comments. The attorney receiving the 
warning letter had committed no APO breaches in the previous two years. 
Although there was an aggravating circumstance--the likelihood that 
unauthorized persons had viewed the BPI--the Commission chose not to 
sanction the attorney in light of the mitigating circumstance that the 
nature of the BPI and the attorney's contact with the submitter of the 
information may have left him uncertain as to the status of the 
information. The Commission did advise the attorney, however, that, in 
the future, he should consult with Commission staff if he is uncertain 
about whether particular information is BPI.
    The second associate attorney received a private letter of 
reprimand for his breach. The Commission considered all of the same 
mitigating circumstances for this attorney except with respect to prior 
breaches. After the Commission determined that the attorney had 
breached the APO in this investigation, he was found to have breached 
the APO in another investigation that occurred prior to the breach in 
this investigation. Therefore, the Commission found an additional 
aggravating circumstance that warranted a private letter of reprimand.
    Case 10: The Commission found that a lead attorney and her legal 
secretary breached the APO by serving the confidential version of the 
final comments prepared by their firm on a law firm that had been 
removed from the APO service list.
    The attorney's legal secretary used an outdated version of the APO 
service list to serve the final comments. The law firm's APO procedures 
required the legal secretary to consult the updated APO service list 
maintained on the ITC Web site, but the legal secretary neglected to 
follow this procedure. Although the attorney reviewed the submission, 
she did not notice the mistake because the service list was the

[[Page 51849]]

same as previous service lists. The attorney noticed the mistake when 
she reviewed the service lists of the other parties. She immediately 
telephoned the firm that mistakenly received the final comments to ask 
that they return or destroy the brief, then followed up to confirm that 
the firm had destroyed the brief before any unauthorized person 
reviewed it.
    The Commission determined that both the lead attorney and her legal 
secretary violated the terms of the APO because disclosure of BPI to 
unauthorized persons, regardless of whether those persons viewed the 
BPI, constitutes an APO breach. However, the Commission determined not 
to initiate the second phase of the APO breach investigation because of 
a variety of mitigating circumstances that made issuing a warning 
letter the most appropriate response to the breach. These mitigating 
circumstances included the attorney's prompt remedial action, her 
curing of the breach before unauthorized persons viewed the BPI, and 
her prompt report of the incident to the Commission. Furthermore, the 
attorney's breach was unintentional and was her first breach within the 
past two years. Finally, the firm adopted a new procedure where the 
lead attorney personally checks the service list against the most 
current service list on the Commission's Web site to ensure that a 
similar breach does not occur in the future.
    There were three investigations in which no breach was found:
    Case 1: The Commission determined that two attorneys and an 
economic consultant did not breach the APO when, in their final 
comments, they failed to bracket certain information that had been 
identified by the Office of the Secretary as BPI. The Commission also 
found that the same individuals did not breach the APO when they failed 
to redact certain information contained in brackets in the public 
version of the final comments filed with the Commission.
    The Commission found that the two sets of information in question 
were publicly available and the failure to bracket and to redact did 
not constitute breaches. The information that was contained in brackets 
but was not redacted in the public version of the final comments was 
information that was derived from a subscription service report that 
was maintained as confidential in the Commission's staff report. In 
this case, however, prior to the issuance of the staff report, the law 
firm in question and another party had filed the same subscription 
service report with the Commission. Thus, the information was publicly 
available and independently available to the law firm in question, and 
the information that was not bracketed in the confidential version of 
the final comments was made publicly available in the Commission's 
final staff report.
    Case 2: The Commission determined that three attorneys did not 
breach the APO because unbracketed information in a prehearing brief, 
identified by Commission staff as confidential, was not BPI.
    The information in the prehearing brief that initially appeared to 
be BPI were two unbracketed unit values. The unbracketed information 
provided percentage changes in average unit values as opposed to actual 
unit values, which were not disclosed. The Commission determined that 
disclosure of the unbracketed numbers did not reveal the BPI of any 
specific company. The bracketed average unit values were calculated 
using the BPI for more than three companies, and the identity of 
specific respondents was not disclosed publicly. Furthermore, it was 
unclear precisely what data were used to calculate the unit values. 
Therefore, it was impossible to back out the actual numbers or 
information of any individual company.
    Case 3: The Commission determined that attorneys did not breach the 
APO by inadvertently serving a confidential version of a motion on 
counsel for a law firm not included in the APO.
    Although the motion was designated ``Confidential,'' the motion did 
not contain CBI. The purportedly confidential material in the motion 
consisted of a series of quotes from the confidential version of the 
Commission opinion. At the time of the motion's filing, no public 
version of the opinion was available, which led attorneys at the firm 
in question to designate the motion as ``Confidential'' out of an 
abundance of caution. However, a review of the confidential and public 
versions of the Commission opinion revealed that although the 
confidential version of the opinion did contain CBI, the material 
quoted in the motion did not include confidential information. The law 
firm in question also took prompt remedial measures to request the 
destruction of all copies of the motion and modified their policies for 
service in the investigation to ensure APO compliance.
    As no CBI was disclosed, the Commission found no breach of the APO, 
but did caution the attorneys involved to be more careful in handling 
material designated as confidential.

    By order of the Commission.

    Issued: August 29, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-20540 Filed 9-4-08; 8:45 am]
BILLING CODE 7020-02-P