Summary of Commission Practice Relating to Administrative Protective Orders, 1664-1668 [2015-00299]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 80, Number 8 (Tuesday, January 13, 2015)]
[Notices]
[Pages 1664-1668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00299]


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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'') 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 
breach investigations completed during calendar year 2013. This summary 
addresses four proceedings under section 337 of the Tariff Act of 1930. 
There were no breach investigations in title VII proceedings or rules 
violation investigations completed in 2013. 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 Web 
site (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 sections 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; and 19 U.S.C. 
1516a(g)(7)(A); 19 CFR 207.100, et. seq. The discussion below describes 
APO breach investigations that the Commission has completed during 
calendar year 2013, 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 (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), and 78 FR 79481 (December 30, 2013). 
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

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,
    (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

[[Page 1665]]

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 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. 
Any person 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 is 
required to read the APO, agree to its terms by letter filed with the 
Secretary of the Commission indicating that he agrees 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 what 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:
    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 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

[[Page 1666]]

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-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.
    In addition, attorneys who are signatories to the APO representing

[[Page 1667]]

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: This case involved a draft complaint that inadvertently 
contained CBI from a previous Commission investigation. The draft 
complaint was generated by one law firm, transferred to a second firm, 
then transferred to a third firm, and then filed with the Commission as 
an actual complaint.
    One attorney at the first firm breached an APO when he transferred 
to other law firms a draft complaint which he believed contained only 
public information, but instead included attachments containing CBI 
from a previous Commission section 337 investigation. Two attorneys at 
the firm to which the draft complaint had been first transferred also 
breached the APO. The lead attorney in this second law firm was 
responsible for the transfer of the draft complaint containing the CBI 
to a third law firm which was expected to use the document to draft a 
complaint in a new section 337 investigation. Upon learning that there 
might be CBI included in the draft complaint and its attachments, the 
lead attorney and another attorney in that firm assigned a non-
signatory attorney to confirm whether documents were not redacted. The 
lead attorney at the third law firm to which the draft complaint was 
ultimately transferred and five other attorneys at that law firm were 
signatories to the complaint that was filed in the new section 337 
investigation which included the attachments containing CBI from the 
original section 337 investigation.
    The draft complaint was prepared by paralegals at the first law 
firm. They were expected to use only public information from the record 
of a previous Commission section 337 investigation and from public 
information obtained from the USPTO. The paralegals mistakenly included 
documents from the previous investigation that contained CBI, although 
the pages were clearly marked as containing CBI. The attorney 
responsible for the draft complaint did not check to be sure all the 
information in the complaint was public. He supervised the preparation 
of two USB drives, on which the assembled documents were copied, to be 
given to attorneys in two other law firms for use in a public filing 
for a future section 337 investigation. The Commission issued a warning 
letter to the attorney. In doing so, the Commission considered several 
mitigating circumstances, including the unintentional nature of the 
breach, that the attorney did not directly disclose the CBI to a non-
signatory to the APO, that the attorney took immediate steps to 
investigate the situation that led to the inclusion of the CBI in the 
materials forwarded to the second firm, and that the attorney had not 
previously breached a Commission APO. The attorney received the warning 
letter for his breach because it was ultimately his responsibility to 
ensure that the draft complaint contained no CBI subject to the APO in 
the original section 337 investigation.
    The Commission issued private letters of reprimand to two attorneys 
in the second law firm. The lead attorney was held responsible for the 
breach involving the transfer of the CBI to the non-signatories at the 
third law firm. The Commission found that the attorney was ultimately 
responsible for ensuring that the materials to be transferred to non-
signatories for use in a matter unrelated to the original Commission 
investigation did not contain materials that were subject to the APO. 
The Commission considered certain mitigating circumstances; namely, the 
attorney was not responsible for the initial collection of the 
documents and was merely an intermediary in the chain of responsibility 
for passing the documents from one law firm to another, the firm took 
immediate steps to investigate its role in the breach, including 
locating and securing copies of the CBI at issue, and the attorney had 
not previously breached a Commission APO.
    The lead attorney and a second attorney in the law firm were both 
found responsible for involving a non-signatory attorney in the 
investigation of the original APO breach. In reaching its decision to 
issue private letters of reprimand to both attorneys, the Commission 
considered the presence of aggravating circumstances. First, due to 
their actions, a non-signatory had access to and could have read the 
CBI. In addition, the breach was not inadvertent or unintentional and 
the Commission was not informed of this breach until the lead attorney 
responded to the Commission's request for information regarding the 
original breach. Finally, the Commission found that by involving the 
non-signatory in the investigation of the APO breach, the attorneys 
were interpreting the APO without seeking Commission guidance.
    The Commission considered whether good cause existed, pursuant to 
Commission rule 201.15(a), to sanction the non-signatory attorney in 
the second firm who was assigned to investigate the initial APO breach. 
The Commission did not sanction the attorney but issued a warning 
letter. It considered the mitigating circumstances that the attorney 
exercised some caution by not actually reading the CBI documents and 
that he had not previously breached a Commission APO. The Commission 
noted that the attorney was aware that he was a non-signatory to the 
APO and noted that his actions directly contributed to the disclosure 
of CBI by agreeing to review the CBI documents as part of the 
investigation into the APO breach.
    The Commission considered whether to sanction six attorneys at the 
third law firm because they were signatories to the public complaint 
which was filed in a new section 337 investigation, and which included 
the attachments containing CBI which were subject to an APO in an 
earlier investigation. Since none of the attorneys in the third firm 
were signatories to the APO in the original section 337 investigation 
the Commission did not find that they breached the APO but, instead, 
considered whether there was good cause to sanction them under 
Commission rule 201.15(a). The Commission determined that there was 
good cause to sanction the lead attorney and, thus, issued a private 
letter of reprimand to the lead attorney. The Commission noted that the 
attorney's actions directly led to the disclosure of CBI, which was 
clearly marked as such, by including the CBI as public exhibits to a 
complaint in a Commission investigation unrelated to the original 
section 337 investigation. It was ultimately the lead attorney's 
responsibility to ensure that the materials that were used in the 
filing of an unrelated complaint contained only materials that were not 
subject to the APO in the original investigation. The Commission noted 
certain mitigating circumstances; namely, the attorney was not 
responsible for the initial collection of the documents in question but 
was merely in the chain of receiving parties of the documents being 
transmitted from one law firm to another; the breach was unintentional; 
his law firm promptly investigated the circumstances of the breach and 
took immediate corrective measures to ensure that access to the CBI was 
restricted; he had not previously breached a Commission APO; and his 
firm assured the

[[Page 1668]]

Commission that it will take extra caution to prevent a similar 
occurrence in the future and will not rely on the representations of 
co-counsel regarding the confidential nature of documents.
    The Commission also issued warning letters to the remaining five 
attorneys at the third law firm who were not signatories to the 
original APO and who had signed the complaint in the new unrelated 
investigation. Two of the five attorneys participated in filing the 
complaint. The Commission stated that the actions of the two attorneys 
directly led to the disclosure of CBI, which was clearly marked as 
such, by including the CBI as public exhibits to a complaint in a 
Commission investigation unrelated to the original section 337 
investigation. In issuing warning letters, the Commission noted the 
same mitigating factors mentioned above with regard to the lead 
attorney in the third firm who received a private letter of reprimand.
    Case 2: The Commission determined that two attorneys breached the 
APO by filing a confidential version of an initial determination 
(``ID'') containing CBI, as part of the public appendix to a brief in 
district court litigation. The filing was made through the district 
court's electronic-case-filing (``ECF'') system.
    The confidential version of the ID was filed by a paralegal at the 
law firm under the supervision of the two attorneys, both of whom had 
subscribed to the APO. The law firm later discovered the disclosure and 
notified the opposing party. The CBI was publicly available for six 
weeks. The law firm requested the district court to restrict access to 
the electronic filing and the district court complied. The district 
court notified the law firm that the court did not track access to ECF 
documents and could not determine who, if anyone had accessed the ID 
electronically. The law firm conducted an inquiry into whether any of 
the employees of the party it represented in the district court 
litigation had accessed the ID. The opposing party also conducted an 
inquiry into whether any of its employees had accessed the ID. From 
these inquires, the law firm is not aware of any unauthorized access to 
the CBI.
    The Commission took into consideration the following mitigating 
factors: The breach was inadvertent; neither the attorneys at issue nor 
the law firm as a whole have breached a Commission APO in the past; the 
law firm discovered its own breach and took prompt steps to try to cure 
the breach; and the law firm implemented actions to improve internal 
procedures to make this type of breach less likely in the future. The 
Commission noted, however, that the law firm was not able to 
demonstrate whether anyone improperly accessed the CBI while it was 
publicly available so the Commission presumes public access to the 
confidential documents. Thus, in accordance with past Commission 
practice, the Commission issued private letters of reprimand to the two 
attorneys.
    Case 3: The Commission determined that an attorney breached an APO 
by filing public versions of certain documents, which contained the CBI 
of the opposing party.
    Counsel for the opposing party contacted the Secretary to the 
Commission to notify the Secretary that public versions of certain 
documents, specifically the public versions of a response to a petition 
for review and summary of the response, filed by the attorney in 
question contained CBI. The Secretary's office promptly removed the CBI 
documents from the public record. The attorney subsequently re-filed 
the public version documents without the CBI. An audit trail for the 
CBI documents showed that the documents were accessed by a non-party to 
the investigation.
    The Commission issued a private letter of reprimand to the attorney 
for the APO breach. The Commission noted as mitigating factors that 
once the attorney was notified that the public version of the documents 
contained CBI the attorney moved quickly to cure the disclosure, the 
disclosure of the CBI was inadvertent, the attorney has not been 
involved in any alleged APO breach in the past two years, and the 
attorney had the ALJ's instruction not to over-redact in mind while 
preparing the public versions of the brief. However, the Commission 
points out that the aggravating factors were that the breach was 
discovered by opposing counsel and not the alleged breaching attorney, 
unauthorized persons accessed the CBI at issue, and the attorney acted 
unilaterally in deciding that certain information did not constitute 
CBI without seeking guidance from the Commission.
    Case 4: The Commission determined that the lead attorney and the 
lead attorney's law firm did not breach the APO when documents 
containing CBI were stolen from the locked car trunk of a paralegal 
employed by the law firm.
    The law firm had internal practices and procedures regarding the 
protection of CBI governed by an APO including policies regarding the 
maintenance and transport of CBI. In some cases, the law firm did let 
its personnel perform work at home involving CBI as long as they used 
and kept the CBI in a locked facility, which could not be accessed by 
others. The paralegal had such an arrangement in his home.
    The provisions of the APO did not specifically prohibit the 
transport of documents containing CBI to a home office or require 
personal custody and maintenance of the CBI in a locked facility of the 
home office after such transport. The lead attorney promptly notified 
the proper authorities after learning of the theft.
    The Commission issued a letter to the lead attorney notifying the 
attorney that the Commission does not consider the law firm or lead 
attorney to have breached the APO, but the letter does recommend that 
the law firm review its procedures regarding the protection of CBI, and 
the law firm's enforcement of such procedures.

    By order of the Commission.

    Issued: January 7, 2015.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2015-00299 Filed 1-12-15; 8:45 am]
BILLING CODE 7020-02-P