[Federal Register Volume 67, Number 110 (Friday, June 7, 2002)]
[Notices]
[Pages 39425-39438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14386]
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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 Title VII and violations of the Commission's
rule on bracketing business proprietary information (``BPI'') (the
``24-hour rule''), 19 CFR 207.3(c). This notice provides a summary of
investigations of breaches in Title VII, sections 202 and 204 of the
Trade Act of 1974, as amended, and section 337 of the Tariff Act of
1930, as amended, completed during calendar year 2001. There were no
completed investigations of 24-hour rule violations during that period.
The Commission intends that this report educate representatives of
parties to Commission proceedings as to some specific types of APO
breaches encountered by the Commission and the corresponding
[[Page 39426]]
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 (http://www.usitc.gov).
SUPPLEMENTARY INFORMATION: Representatives of parties to investigations
conducted under Title VII of the Tariff Act of 1930, sections 202 and
204 of the Trade Act of 1974, and section 337 of the Tariff Act of
1930, as amended, may enter into APOs that permit them, under strict
conditions, to obtain access to BPI of other parties. See 19 U.S.C.
1677f; 19 CFR 207.7; 19 U.S.C. 2252(i); 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, including a
description of actions taken in response to breaches. The discussion
covers breach investigations completed during calendar year 2001.
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 12,335 (Apr. 9, 1992); 58 FR
21,991 (Apr. 26, 1993); 59 FR 16,834 (Apr. 8, 1994); 60 FR 24,880 (May
10, 1995); 61 FR 21,203 (May 9, 1996); 62 FR 13,164 (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). 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 2001 a third edition of An Introduction to Administrative
Protective Order Practice in Import Injury Investigations (Pub. No.
3403). 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.
I. In General
The current APO form for antidumping and countervailing duty
investigations, which the Commission has used since March 1995,
requires the applicant to swear that he or she will:
(1) Not divulge any of the BPI obtained under the APO and not
otherwise available to him, 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 the interested party which is a party to the
investigation; and (d) have submitted to the Secretary a signed
Acknowledgment for Clerical Personnel in the form attached hereto (the
authorized applicant shall sign such acknowledgment and will be deemed
responsible for such persons' compliance with the APO);
(2) Use such BPI solely for the purposes of the Commission
investigation [or for binational panel review of such Commission
investigation or until superceded by a judicial protective order in a
judicial review of the proceeding];
(3) Not consult with any person not described in paragraph (1)
concerning BPI disclosed under this APO 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 the 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 such 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 the APO; and
(10) Acknowledge that breach of the 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 a protective order 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
BPI 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.
Commission employees are not signatories to the Commission's APOs
and do not obtain access to BPI through
[[Page 39427]]
APO procedures. Consequently, they are not subject to the requirements
of the APO with respect to the handling of BPI. However, Commission
employees are subject to strict statutory and regulatory constraints
concerning BPI, 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 rules relating to BPI is
the ``24-hour'' rule. This rule provides that parties have one business
day after the deadline for filing documents containing BPI to file a
public version of the document. The rule also permits changes to the
bracketing of information in the proprietary version within this one-
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. 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 a 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 file has been opened. Upon receiving notification from
the Secretary, the Office of General Counsel (OGC) begins to
investigate the matter. The 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. 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 has found 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.
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, ``the 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 economists or consultants to obtain
access to BPI under the APO 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). Economists and consultants who obtain access to
BPI 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.
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, section 135(b) of the Customs and Trade Act of 1990, and 19
U.S.C. 1677f(g).
The breach most frequently investigated by the Commission involves
the APO's prohibition on the dissemination of BPI to unauthorized
persons. Such dissemination 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 in proprietary documents filed with the Commission; the
failure to report immediately known violations of an APO; and the
failure to supervise adequately non-legal personnel in the handling of
BPI.
Counsel participating in Title VII 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 omitted from
brackets. However, the BPI is actually retrievable by manipulating
codes in software. The Commission completed two investigations of this
type of breach in 2001 (Cases 10 and 16), and in both cases the
Commission found that the electronic transmission of a public document
containing BPI in a recoverable form was a breach of the APO.
The Commission advised in the preamble to the notice of proposed
rulemaking in 1990 that it will permit authorized applicants a certain
amount of discretion in choosing the most appropriate method of
safeguarding the confidentiality of the BPI. However, the Commission
cautioned authorized applicants that they would be held responsible for
safeguarding the confidentiality of all BPI to which they are granted
access and warned applicants about the potential hazards of storage on
hard disk. The caution in that preamble is restated here:
[T]he Commission suggests that certain safeguards would seem to
be particularly useful. When storing business proprietary
information on computer disks, for example, storage on floppy disks
rather than hard disks is recommended, because deletion of
[[Page 39428]]
information from a hard disk does not necessarily erase the
information, which can often be retrieved using a utilities program.
Further, use of business proprietary information on a computer with
the capability to communicate with users outside the authorized
applicant's office incurs the risk of unauthorized access to the
information through such communication. If a computer malfunctions,
all business proprietary information should be erased from the
machine before it is removed from the authorized applicant's office
for repair. While no safeguard program will insulate an authorized
applicant from sanctions in the event of a breach of the
administrative protective order, such a program may be a mitigating
factor. Preamble to notice of proposed rulemaking, 55 FR 24100,
21103 (June 14, 1990).
In 2001, the Commission completed four investigations of instances
in which members of a law firm or consultants working with a firm were
granted access to APO materials by the firm although they were not APO
signatories (Cases 3, 5, 7, and 11). In all 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 four 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 four cases,
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 their APO
status before obtaining access to and using the BPI. In all four cases
the Commission issued warning letters because it was the first time the
persons in question were subject to possible sanctions under section
201.15.
Also in 2001, the Commission found the lead attorney to be
responsible for breaches in at least six cases where he or she failed
to provide adequate supervision over the handling of BPI. (Cases 1, 3,
6, 20, 22, and 32). Lead attorneys should be aware that their
responsibilities for overall supervision of an investigation, when a
breach has been caused by the actions of someone else in the
investigation, may lead to a finding that the lead attorney has also
violated the APO. In at least three of the investigations completed in
2001, the lead attorney was found not to have violated the APO because
his delegation of authority was reasonable (Cases 8, 34, and 35).
In one investigation in 2001, a lead attorney was sanctioned with a
private letter of reprimand under circumstances in which the Commission
usually issues a warning letter. In that case the lead attorney made a
conscious decision not to conform to the 60-day rule covering the
return or destruction of BPI and certification to its destruction or
return because he interpreted the APO to allow him to retain the
materials for possible but not yet ripe appeals of the Commission's
determination. The Commission found that this was not an inadvertent
violation of the APO.
In 2001, the Commission issued two public letters of reprimand
(Cases 2, 19, 20, and 21). See 66 FR 57110 (Nov. 14, 2001) and 66 FR
19516 (April 16, 2001).
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: An economic consultant prepared, filed, and served a public
version of a postconference brief that contained BPI. The consultant
inadvertently left a page from the confidential version of the brief in
the public version. The consultant filed and served the public version
of the brief on all parties to the investigation, and notified the lead
attorney that filing and service had been completed. All the firms on
the public certificate of service that received the improperly redacted
brief were also on the APO certificate of service.
A question arose as to the status of the attorney who discovered
the breach because the attorney was not an original signatory to the
APO, nor was he listed on the APO certificate of service. Prior to the
time of discovery of the breach, however, he applied and was granted
access to BPI. The Secretary determined that the attorney was a
signatory to the APO because an attorney is deemed a signatory to the
APO at the time of approval by the Secretary, and thus the breach was
discovered by a signatory to the APO, although the attorney was not
listed on the certificate of service.
Immediately after discovery of the breach, the lead attorney
notified the Commission and arranged for the return or destruction of
the offending page. The Commission found that the consultant breached
the APO by failing to redact BPI from the public version of the brief.
The Commission also found that the lead attorney breached the APO by
allowing the public version of the brief containing BPI to be filed and
by failing to provide adequate supervision over the handling of BPI.
The Commission determined that another attorney at the law firm did not
breach the APO because she was not responsible for the preparation,
service, or filing of the brief, or for overseeing the acts of the
consultant. As mitigating circumstances, the Commission considered the
unintentional nature of the breach, the prompt measures taken to
rectify the situation, the increased security measures implemented at
the firm to safeguard BPI in the future, and the discovery of the
breach by a signatory to the APO. The Commission issued a private
letter of reprimand to the consultant because it was his second APO
breach within the time period normally considered by the Commission in
determining sanctions, and issued a warning letter to the supervising
partner.
Case 2: Two attorneys prepared, filed, and served a public version
of a prehearing brief which on one page contained BPI, which was
neither bracketed in the confidential version nor redacted from the
public version. A third attorney at the law firm reviewed both versions
of the brief for APO compliance prior to filing. After notification by
the Commission that a breach may have occurred, the attorneys took
immediate steps to effect the return or destruction of the page
containing BPI.
The attorneys argued that the BPI at issue was not subject to the
requirements of the APO because it could have been found in the public
domain. The Commission ultimately determined that a breach occurred
because the statement at issue was based in part on BPI. The Commission
found that the exact statement at issue was not publicly available and
the two attorneys failed to exercise due care with regard to BPI. The
Commission noted that the attorneys involved, as experienced trade
lawyers, should have been aware that the type of information at issue
is often treated as BPI. The two attorneys who prepared the brief were
issued a public letter of reprimand since it was the third breach by
one attorney and the fourth breach by the other attorney within a short
period of time. The Commission also found that the third attorney
breached the APO
[[Page 39429]]
because he served as APO manager for the firm and failed to discover
the breach. The third attorney was issued a private letter of reprimand
rather than a warning letter. He was the firm's APO compliance manager
yet failed to discover the breach, he was on notice of the need to
review the documents with great care because of prior APO breaches by
members of his firm, and, at the time of this decision, he was under
investigation for two more possible APO breaches.
Case 3: An attorney utilized BPI obtained from his law firm when
drafting posthearing and prehearing briefs, based on a mistaken
assumption that he was a signatory to the APO. The attorney later
realized that he was not a signatory. After further review, it was
discovered that the APO coordinator of the firm never included the
attorney in its APO application to the Commission.
The Commission determined that two attorneys in the firm breached
the APO. The lead attorney breached the APO because he failed to
provide adequate supervision over the handling of BPI. The second
attorney was found responsible for the breach because he was the APO
compliance attorney within the firm. The Commission issued warning
letters to the attorneys because the breach was unintentional, the non-
signatory attorney safeguarded the BPI as if he was a signatory to the
APO, immediate corrective actions were taken once the breach was
discovered, and increased safeguard measures were implemented at the
firm to prevent future breaches. In addition, in deciding to issue
warning letters instead of private letters of reprimand, the Commission
distinguished this situation from others in which BPI is mistakenly
sent to other parties or is released to clients or the public, and a
non-signatory subsequently reads the BPI.
Although the Commission found that the non-signatory attorney had
not breached the APO because he was not a signatory, his use of the BPI
was actionable under rule 201.15 for his failure to verify that he was
a signatory to the APO. He was issued a warning letter. Although the
attorney used the BPI on multiple occasions and was previously warned
as a result of another APO breach to take better care when handling APO
matter, the Commission noted that this was the first time he was
subject to a possible sanction under rule 201.15. As mitigating
factors, the Commission considered the unintentional nature of the
breach and the attorney's adherence to the APO as though he was a
signatory.
Case 4: Counsel submitted a public version of a posthearing brief
containing unredacted BPI, which was discovered by the Secretary during
a routine review of the submission. The firm argued that the
information was not BPI because it was public information that could be
found elsewhere in the record of the investigation. While reviewing the
public version of the brief as a result of the Secretary's
notification, the firm discovered another possible breach on a
different page of the public brief involving the failure to redact BPI.
The firm retrieved a copy of the offending submission from the single
non-APO signatory upon which it had been served, and provided the
Commission and all signatories on the proprietary and public service
lists with replacement pages.
The Commission determined that an APO breach did not occur as to
the first breach because the information in question was revealed at a
prior public hearing and entered into the record. The Commission
determined that a breach did occur as to the failure to redact
information on the other page of the brief because that information was
BPI. The Commission issued warning letters to the attorney and legal
assistant responsible for the preparation, filing, and service of the
public version of the brief. In the case of two other attorneys whose
names were on the posthearing brief, the Commission found that they did
not breach the APO because they possessed no firsthand knowledge of the
preparation and filing of the public version of the brief. In deciding
to issue warning letters, the Commission considered the unintentional
nature of the breach, the promptness with which the firm rectified the
breach, the existence and subsequent reinforcement of the law firm's
internal procedures to protect BPI, and the absence of any prior
violations by the attorneys involved in this investigation.
Case 5: A law firm provided personnel at an outside economic
consulting firm, who were non-signatories to the APO, with various
documents received under an APO. After discussion about the BPI
contained in such documents was conducted between the law firm and
consulting firm, an attorney at the law firm discovered that the
personnel at the consulting firm had not signed the APO application.
After confirming this fact, the law firm promptly retrieved all APO
materials from the consulting firm.
The Commission determined that two attorneys at the law firm were
responsible for the breach. The lead attorney breached the APO because
he was responsible for the overall conduct of the case, and nonetheless
disseminated and discussed BPI with non-signatories. The other attorney
was found responsible because he was the firm's APO compliance
attorney, and he also disseminated and discussed BPI with non-
signatories. The Commission issued warning letters to the attorneys. In
determining the appropriate action, the Commission considered the
absence of any violations in the two years prior to the investigation,
the promptness with which the attorneys remedied the problem, and the
existence of internal procedures within the economic consulting firm in
safeguarding BPI. Although the attorneys released BPI to non-
signatories of the APO, the Commission determined that the consultants'
treatment of the information as if they were under the APO was
sufficient to warrant issuance of a warning letter rather than a
private letter of reprimand.
The Commission found the actions of three consultants, who viewed
and discussed the BPI, actionable under rule 201.15 because the
consultants regularly appeared before the Commission and were fully
aware that BPI should be handled only after ensuring they were on the
APO. The Commission issued a warning letter to the consultants because
this was the first time their actions were actionable under rule
201.15.
Case 6: An economist at a law firm, who was a signatory to the APO,
transmitted a posthearing brief containing BPI to an attorney who
represented a party in the investigation but who was not a signatory to
the APO. Upon receipt of the package containing the brief and without
opening it, the non-signatory attorney immediately contacted the lead
attorney responsible for the preparation of the brief and returned it
to him. Upon notification to the Secretary, the Commission conducted an
investigation and determined that both the economist and lead attorney
breached the APO because the economist made BPI available to a non-
signatory to the APO and the lead attorney failed to adequately
supervise the economist in the use and release of BPI. The Commission
issued private letters of reprimand instead of warning letters to both
individuals because it was the second APO violation for each.
Case 7: An attorney provided BPI to an outside economic consultant
under the mistaken belief that the consultant was a signatory to the
APO. Personnel at the law firm discovered the error and informed the
Secretary. After an investigation was initiated, the attorney notified
the Secretary that he had also mistakenly provided BPI to his legal
secretary two days before the secretary was authorized to view it under
the
[[Page 39430]]
APO. Both the consultant and legal secretary believed they were
signatories to the APO at the time of breach and acted in accordance
with the APO's requirements.
The Commission found that the attorney breached the APO by
providing BPI to unauthorized persons. The Commission issued a warning
letter to the attorney instead of a private letter of reprimand because
it considered the case a single breach, although the breach involved
two individuals who were non-signatories to the APO. The Commission
also took into account the unintentional nature of the breach, the
immediate actions taken to remedy the breach and to include on the APO
the non-signatories who had prior unauthorized access to BPI, the
implementation at the law firm of new procedures to avoid future
breaches, and the use of the BPI by the non-signatories as though they
were signatories to the APO.
The Commission issued a warning letter to the consultant pursuant
to rule 201.15 because of his failure to verify whether he was a
signatory to the APO. The Commission also considered as aggravating
factors the full use of BPI by the consultant, and his awareness of APO
obligations as a former employee of the Commission and a frequent
participant in Commission proceedings. The legal secretary was not
sanctioned pursuant to rule 201.15 because clerical employees do not
sign individual APO applications and thus have less independent
responsibility to determine their status under APOs.
Case 8: An attorney filed and served a public version of a
prehearing brief that contained unredacted BPI. The attorney notified
the Commission and relevant parties the next morning and retrieved each
copy of the brief. Although the briefs were served on non-signatories
to the APO, the briefs were not, to the best of counsel's knowledge,
read by any of them. Upon investigation, the Commission determined that
the attorney, as the attorney who was in charge of preparing the brief,
breached the APO. The Commission issued a warning letter because the
breach was unintentional and this was the first APO violation for both
the attorney and firm. In addition, the firm implemented new procedures
to prevent future breaches. The lead attorney in the case was not found
to have committed an APO breach because he was not involved in the
preparation of the brief, and his reliance on the senior attorney who
was in charge of preparing the brief was reasonable.
Case 9: Three attorneys sent a letter to the Secretary containing
BPI. A public version of the letter containing BPI was subsequently
filed with the Commission and served on a non-signatory to the APO.
Upon discovery, the attorneys immediately retrieved the letter before
it was read by the non-signatory. The Commission found that the
attorney supervising the preparation of the public version of the
letter breached the APO by failing to redact BPI and by making it
available to a non-signatory to the APO. A warning letter was issued in
light of the unintentional nature of the breach, the absence of any
prior APO breaches by the attorney, the immediate notification and
corrective actions taken once the breach was discovered, and the
implementation at the law firm of strengthened procedures to prevent
future breaches.
Case 10: An attorney authorized a legal secretary to transmit, via
e-mail, a public version of a prehearing brief to an attorney who was
not a signatory to the APO. The electronic version of the brief
contained BPI that was masked but not deleted. As a result, the BPI
could have been retrieved by someone who was able to alter the software
print codes. The possible breach was discovered by the transmitting
firm's APO administrator.
The Commission determined that the attorney and legal secretary
breached the APO by making BPI available to a non-signatory to the APO.
Warning letters were sent to both individuals. As mitigating factors,
the Commission took into account the unintentional nature of the
breach, the discovery of the violation by the breachers, the prompt
measures taken by the breachers to remedy the breach, and the
destruction of the BPI prior to being viewed by a non-signatory.
Case 11: Three attorneys at a firm, non-signatories to an APO,
reviewed and utilized BPI. One of the attorneys reviewed BPI contained
in documents under the APO and utilized it in the preparation of
prehearing briefs. The two other attorneys reviewed BPI when they
proofread the briefs at the instruction of the attorney preparing the
brief.
The Commission found two other attorneys at the firm, signatories
to the APO, in breach of the APO for failing to ascertain that the
three non-signatory attorneys were not on the APO list. Although the
Commission found that the non-signatory attorney who prepared the brief
did not breach the APO because he had not signed it, his use of the BPI
was actionable under rule 201.15. The Commission issued each of the
three attorneys a warning letter in light of the unintentional nature
of the breach, the discovery of the breach by the law firm, and the
prompt action taken to remedy the breach. In the case of the non-
signatory attorney who prepared the brief, the Commission considered
the fact that he treated the BPI as if he was on the APO.
The two attorneys who proofread the brief were not found to have
breached the APO because they were not signatories to the APO and their
actions were not sufficient to demonstrate good cause for action under
rule 201.15.
Case 12: Attorneys filed and served a public version of a
prehearing brief that contained BPI. BPI that was bracketed in an
attachment to the confidential version of the brief was not redacted in
the public version. The Secretary discovered the error during a routine
review of the submission and alerted the firm. The firm immediately
retrieved the briefs from all parties and received confirmation from
them that the BPI was not seen by anyone not subject to the APO. One of
the attorneys involved in the breach asserted that White-out tape
covering the BPI at issue fell off during the photocopying process,
resulting in the breach.
The Commission found that the two attorneys responsible for the
preparation, filing, and service of the brief breached the APO by
making BPI available to unauthorized persons, and issued warning
letters to them. In deciding to issue warning letters, the Commission
considered the inadvertent nature of the breach, the prompt steps taken
to rectify the situation, the retrieval of the BPI prior to its review
by anyone, and the absence of any prior violations by the attorneys.
Case 13: An attorney prepared, filed, and served a prehearing brief
containing BPI that was neither bracketed in the confidential version
nor redacted in the public version. Before discovery of the breach, the
attorney failed to serve the brief by hand or overnight delivery as
required by Commission rule 207.3. After learning of the service error,
the Secretary rejected the prehearing brief as improperly served. The
attorney refiled the brief with the Secretary and the Commission
accepted the late filing after the attorney sought leave to file the
brief out of time.
An attorney representing another party in the case noticed the
breach upon receiving the brief by first class mail and notified the
attorney and Commission. The attorney who filed the brief immediately
contacted all other counsel and asked them to retrieve and return all
copies of the prehearing brief. The briefs were returned, but counsel
for one of the parties stated that the brief had already been forwarded
to his client. Counsel for each party asserted
[[Page 39431]]
that the brief was not reviewed by any non-signatories to the APO,
including the attorney who had forwarded the brief to his client. Upon
refiling and reservice, the attorney once again failed to bracket BPI
that was unbracketed in the original filing. The attorney retrieved the
page in question from all counsel and the Commission and provided a new
page correcting the error.
The attorney argued that a breach did not occur as to two items of
information because one item was publicly disclosed in a prehearing
staff report and the other item could be logically inferred from
numerous public statements made by the industry. The Commission agreed
but found that a breach occurred as to three other items that
constituted BPI. Although the attorney made immediate efforts to
rectify the situation and no evidence existed that BPI was viewed by
non-signatories to the APO, the Commission issued a private letter of
reprimand to the attorney due to several aggravating factors. First,
the Commission did not view the breach as inadvertent, as the attorney
stated that he had closely reviewed the information in question and
made a conscious decision not to bracket it. Second, the attorney
violated the Commission's rules when he failed to serve the brief by
hand or overnight delivery. Finally, the attorney failed to correct all
the problematic disclosures in the brief before filing it with the
Commission a second time.
Case 14: Two attorneys prepared, filed, and served a prehearing
brief. One of the attorneys discovered that the public version of the
brief contained BPI. He immediately notified the Secretary and
retrieved the pages containing the BPI from the other parties and filed
and served three replacement pages. After the replacement pages were
filed and served, an attorney representing another party contacted the
Secretary to inform her that there was additional BPI in the brief that
had not been bracketed in the confidential version and had not been
redacted from the public version of the brief. The Secretary instructed
the breaching attorneys to file new amended pages for both the
confidential version and the public version of the brief.
The attorneys argued that the type of BPI discovered by the other
attorney is often public and, therefore, the failure to redact was
understandable. Upon investigation, the Commission found that the two
attorneys responsible for the preparation and review of the brief had
breached the APO. The Commission issued private letters of reprimand to
the attorneys due to their filing of three defective versions of the
brief (two of the public version and one of the confidential version)
and their failure to exercise proper diligence to ensure that BPI was
not revealed to the public. Some mitigating circumstances were present:
the inadvertence of the breach involving the BPI discovered by the
breacher, the prompt correction of the unauthorized disclosures, and
the absence of any prior APO breaches for both attorneys.
Case 15: Two attorneys prepared, filed, and served a prehearing
brief containing BPI on one page that was neither bracketed in the
confidential version nor redacted in the public version. The Secretary
instructed the attorneys to retrieve the page in question from the
Commission and parties. After filing a replacement page, they filed a
letter with the Commission stating that neither the confidential nor
the public version of the original prehearing brief had been disclosed
to anyone not having access to BPI. The attorney having primary
responsibility for preparing the brief stated that he overlooked the
BPI in question because he was under the impression that the quoted
information was publicly available. The second attorney, responsible
for reviewing the brief for typographical and bracketing errors, stated
that he inadvertently failed to consider that the domestic producer's
questionnaire response was the source of the information.
The Commission determined that both attorneys breached the APO by
making BPI available to unauthorized persons. Despite the discovery of
the breach by the Secretary, and not by the attorneys, Commission
issued a warning letter because of the unintentional nature of the
breach, the absence of any prior breaches by the attorneys, and the
prompt action taken by the attorneys to mitigate the breach. A third
attorney who was a signatory to the APO and signed the brief was found
not to have breached the APO because he had no responsibility for the
preparation or filing of the brief.
Case 16: Counsel prepared and electronically forwarded a non-
confidential draft of a prehearing brief containing BPI to an attorney
and an economist, both of whom were signatories to the APO. The draft
was created using a software program that electronically suppressed all
data within brackets. Although not visible when viewed on a computer
screen or printed in hard copy, the BPI contained in the draft could
have been restored by someone who was knowledgeable about the operation
of the software. The attorney preparing the brief asserted that he was
unaware that there was BPI in the draft at the time of transmission. At
the direction of the attorney receiving the electronically transmitted
brief, the draft was electronically forwarded by the economist to an
official of the client corporation. Once received by the official, it
was electronically forwarded to another official of the client
corporation. Neither official was a signatory to the APO. At the time
of receipt, neither official was aware that redacted BPI could be
electronically restored in the draft brief.
In the course of editing the brief, the attorney responsible for
the preparation of the brief realized that BPI still existed in
recoverable form. Recognizing that a possible APO breach may have
occurred, the attorney contacted the Secretary. The attorney who had
received the electronically transmitted brief contacted the economist
and client-officials, and requested that they destroy the electronic
version of the draft brief sent to them. A letter was filed with the
Commission stating that no actual disclosure of BPI occurred.
The Commission found that the attorney in charge of the preparation
of the brief breached the APO by e-mailing a draft of the public
prehearing brief that contained retrievable BPI. Although he did not
know that the draft contained BPI, he had the responsibility to be
fully aware of how the document was prepared because a legal assistant
was preparing the document and non-signatories would ultimately see the
brief. The Commission issued a warning letter to the attorney in light
of the unintentional nature of the breach, the fact that the attorney
discovered the breach, the promptness with which the breach was
rectified, the certifications by the non-signatories that the brief was
not read, and the implementation of a new policy within the law firm
that documents under an APO will not be electronically transmitted.
The economist and second attorney were found not to have breached
the APO because they were unaware that the brief contained BPI and its
preparation was not under their control or supervision. In the case of
the second attorney, he took an additional precaution by visually
checking the document to ensure that all BPI had been deleted before he
arranged to have the document forwarded to his client.
Case 17: Counsel prepared, filed, and served a public document that
contained BPI. The Secretary discovered the breach and notified the
attorney. The page containing BPI was retrieved from all those on the
service list except for one firm. That firm stated that it never
received the document. The
[[Page 39432]]
attorney was able to confirm that the document had not been copied or
distributed by the other firms on the service list.
According to the attorneys who signed the document and were
signatories to the APO, the breach occurred because the attorney
preparing the document failed to have it checked by a second attorney,
as required by the law firm's APO procedures. Moreover, the attorneys
argued that the information at issue was not BPI because it did not
contain commercial information and the information was later revealed
in a publicly available Commission staff report. The Commission
determined that the information at issue was BPI at the time it was
released and that a breach had occurred.
The Commission held that the attorney responsible for the
preparation of the brief committed a breach by allowing BPI to become
publicly available. The Commission did not hold the other attorneys who
signed the document responsible because, by not following the firm's
APO procedures, the attorney who prepared the brief precluded another
attorney from reviewing the document for potential APO violations. In
addition, the attorney was a third year associate and had no prior
breaches that would have alerted the other attorneys who signed the
document that they needed to provide closer supervision of APO
materials.
The Commission considered the fact that one of the copies of the
document was never found as an aggravating circumstance. Nonetheless,
the Commission issued a warning letter in light of the unintentional
nature of the breach, the prompt action taken to rectify the breach,
the absence of any information suggesting that any non-signatory to the
APO read the BPI, the implementation at the law firm of additional
safeguards to prevent future breaches, and the absence of any prior
breaches by the attorney.
Case 18: Two attorneys prepared, filed, and served a public version
of a posthearing brief that contained unredacted BPI. Immediately after
being notified of this error by opposing counsel, the attorneys
contacted the Secretary and the other parties, requesting that they
destroy the page containing BPI and replace it with a corrected
version.
The attorneys, signatories to the APO, argued that because the
error was corrected within the 24-hour deadline prescribed for the
filing of a brief under rule 207.3(c), they did not breach the APO.
However, the Commission held that rule 207.3 was not applicable because
that rule applies only to bracketing changes made to confidential
briefs and not to public briefs. Therefore, the Commission determined
that the attorneys breached the APO by failing to redact BPI and making
it available to non-signatories to the APO. The Commission issued
warning letters to the attorneys because the breach was unintentional
and immediately rectified. Moreover, the attorneys had no prior APO
breaches.
Case 19: Two attorneys and a consultant filed a prehearing brief
with the Department of Commerce containing bracketed BPI obtained under
the APO in the Commission investigation. In addition, the two attorneys
and their secretary sent a copy of the confidential brief to a law firm
that was not a signatory to the Commission's APO and was no longer a
signatory to Commerce's APO. The secretary typed the brief, made
copies, and prepared envelopes for service on other parties. In
determining whom to serve, she used an old certificate of service list
that had not been updated, even though one of the attorneys told her
that the firm had received an updated service list. The Commission
found that the attorneys and the secretary breached the Commission's
APO in releasing the brief to DOC personnel. The Commission determined
that some of the information contained in the brief was BPI and not
publicly available because it came from Commission questionnaire
responses, which were provided only to the parties to the Commission
investigation under its APO. The two attorneys and the secretary failed
adequately to explain their contention that the information in question
was independently known to industry participants. The Commission
decided that the consultant did not breach the Commission's APO, as she
was not involved in preparing, filing, or serving the prehearing brief
and had no personal knowledge of any circumstances surrounding the
possible breach.
The Commission issued a warning letter to the secretary. As
mitigating factors, the Commission considered that this was the only
breach in which the secretary was involved within the time period
generally examined by the Commission for the purpose of determining
sanctions, the breach was unintentional, prompt action was taken to
minimize the effect of the breach, the non-signatory law firm did not
view the BPI, and the secretary was under the direction and supervision
of an attorney.
In determining the proper sanctions for the two attorneys, the
Commission decided to consider the APO breaches committed by one of the
attorneys in this case at the same time it considered sanctions for the
breach he committed in Case 20. The Commission determined the sanctions
against the second attorney in concert with consideration of the
sanctions against him in two other APO violations, Cases 20 and 21.
Case 20: The lead attorney, a second attorney, and a consultant
submitted a public version of their final comments to the Commission,
but failed to redact BPI from two pages of the Comments. The Secretary
noticed the errors a day after the comments were filed and notified one
of the attorneys. That same day the attorney called all parties that
had received copies of the comments and requested that they destroy the
pages containing the BPI.
The Commission found that the consultant, who was not a signatory
to the APO, did not breach the APO because, although his name was on
the Final Comments, he only had client contact responsibilities and
never had access to the APO materials. The Commission determined that
both attorneys breached the APO by failing to redact the BPI. In
addition, the lead attorney also breached by failing to provide
adequate supervision over the handling of BPI.
The Commission determined the sanctions for the lead attorney in
connection with Case 19, discussed above. The Commission decided to
publicly reprimand the lead attorney in the Federal Register. 66 FR
57110 (November 14, 2001). In reaching this decision, the Commission
considered the fact that the breaches committed by the attorney were
his second and third breaches within a short period of time. In
addition, the Commission, in the public letter, required the law firm
to have at least two attorneys review all documents for future filings
with the Commission to ensure APO compliance. The two-attorney review
requirement is in effect for the two-year period starting with the date
the public reprimand was published in the Federal Register. The
Commission decided the sanctions against the second attorney in concert
with Cases 19 and 21.
Case 21: Three attorneys filed and served a public version of their
final comments that contained BPI. The lead attorney who had been the
second attorney in Cases 19 and 20 prepared the documents and took sole
responsibility for the breach. He argued that the information in
question was publicly available. The Commission disagreed and found
that the lead attorney breached the APO because he received the
information from a
[[Page 39433]]
Commission investigator's report that relied on data given by a
domestic producer's representative. The Commission found that the two
other attorneys did not breach the APO because they did not prepare the
final comments.
In sanctioning the attorney who breached the APO, the Commission
also considered the attorney's previous breaches in Cases 19 and 20. As
an aggravating factor, the Commission found it significant that the
attorney had committed four breaches within a short period of time. The
Commission publicly reprimanded the attorney in the Federal Register.
66 FR 57110 (November 14, 2001). The Commission also suspended the
attorney's access to BPI for six months from the date the public
reprimand was published in the Federal Register. Finally, as noted in
Case 20, the Commission required the attorney's law firm to have at
least two attorneys review all documents for future filings with the
Commission to ensure APO compliance.
Case 22: An associate attorney, his secretary, and the lead
attorney breached the APO by transmitting BPI to four embassy officials
who were non-signatories to the APO, but were on the public service
list. Over a 17-day period, BPI was sent to the same four embassies on
four separate occasions. In deciding that the associate attorney, his
secretary, and the lead attorney breached the APO four times, the
Commission considered the lack of attention paid to the certificates of
service for both confidential and public documents. The Commission
determined that either none of the parties noticed that the public
certificate of service had been used for both confidential and public
materials or the parties lacked awareness that the two service lists
were different. In addition, the Commission found that the law firm did
not provide adequate safeguards or supervision to protect BPI from
delivery to unauthorized persons.
The Commission sanctioned the associate attorney, his secretary,
and the lead attorney by issuing private letters of reprimand to them.
As mitigating factors, the Commission considered the unintentional
nature of the breaches, the timely reporting of the breaches once
discovered, the efforts to mitigate any harm caused by the breaches,
the lack of previous APO breaches, and efforts by the firm to prevent
future breaches. As aggravating factors, the Commission considered the
large number of breaches in one investigation, the large volume of APO
materials involved, and the significant amount of time during which the
BPI was unprotected. The Commission determined that it could not be
certain that no BPI was divulged to unauthorized persons.
Case 23: A partner and an associate filed the public version of a
prehearing brief, which had an annex that contained BPI. One of the law
firm's clients notified the parties three days after filing of the
possibility of a breach after two executives of the client corporation
had read the annex containing the BPI. The associate notified the
Commission the same day and both attorneys immediately contacted
counsel for the other parties and provided substitute annexes.
The Commission found that both attorneys breached the APO and
issued them private letters of reprimand. As mitigating factors, the
Commission considered that the breach was unintentional, the attorneys
took immediate action to remedy the situation by notifying the
Commission, contacting counsel for the other parties, and providing
substitute annexes, this was the only breach in which the attorneys had
been involved during the time period normally considered by the
Commission, and the BPI in question was in a cover letter to a
questionnaire response that was not clearly labeled as containing BPI.
The Commission issued private letters of reprimand because of the
aggravating circumstances that the attorneys' client discovered the
breach and that the two executives who were not signatories to the APO
actually read the BPI.
Case 24: A law firm and a consulting firm failed to return or
destroy BPI released under an APO and to file certificates of return or
destruction within the 60-day time limit after the Commission published
its final determination in the Federal Register. The Secretary noticed
the breach when the lead attorney sent a certificate of return or
destruction signed by an attorney who had left the firm. The
Secretary's staff discovered that certificates of destruction or return
had not been filed by most of the other signatories to the APO. The
firm had only submitted certificates of return or destruction for
people no longer with the firm.
The lead attorney admitted that the firm had not returned or
destroyed the APO materials. However, he argued that it was necessary
to retain APO materials because the investigations were still subject
to a judicial appeal of the Commission's final affirmative
determination. He noted that the Department of Commerce had entered a
suspension agreement with one of the firm's clients, which was being
challenged at the Court of International Trade. He stated that if the
Court reversed Commerce, Commerce would issue an antidumping order, and
only at that point would the Commission's final determination be ripe
for appeal.
The Commission determined that the lead attorney breached the APO
by failing to destroy or return BPI within 60 days after completion of
the Commission investigations. In addition, the attorney failed to
certify that to his knowledge and belief all copies of the BPI had been
returned or destroyed and that no copies of the BPI had been made
available to any person to whom disclosure was not specifically
authorized. The Commission ordered the lead attorney and all other
authorized applicants at the law firm and the consulting firm to comply
with the APO within 14 days. The Commission did not find any other
attorneys or members of the consulting firm to have breached the APO
because they were complying with the lead attorney's decision to retain
that APO materials.
The Commission issued a private letter of reprimand to the lead
attorney. As mitigating circumstances, the Commission considered that
the lead attorney had no prior breaches and that he destroyed and
certified the destruction of the APO materials once he received the
Commission's instruction to destroy them. Furthermore, no unauthorized
person gained access to the APO materials as a result of the breach.
Finally, the lead attorney's law firm instituted a policy of seeking
guidance in matters that attorneys find ambiguous instead of making a
potentially incorrect independent decision regarding compliance with
Commission APOs. As an aggravating factor, the Commission considered
that the breach was not inadvertent. It was based on the lead
attorney's decision to interpret the APO and decide how it should be
applied in what he considered unique circumstances, without seeking
guidance from the Commission.
Case 25: A lead attorney filed a letter with the Commission
Secretary challenging certain information contained in a respondent's
revised questionnaire response and in the cover letter that accompanied
the revised response. The respondent's cover letter was marked
``PROPRIETARY DOCUMENT'' and in this letter the respondent's attorney
requested proprietary treatment for that information and for the
revised questionnaire response. No material in the respondent's cover
letter or the response was bracketed. When the lead attorney filed his
response, he sent a
[[Page 39434]]
confidential version of the letter to the Secretary and filed a public
version. He also had the public version served on two non-signatories
to the APO. One day after the lead attorney filed his letter, he
realized that it might contain BPI. He notified the Secretary and filed
and served revised copies of his letter.
The Commission found that the lead attorney breached the APO
because the ``public'' version of his letter contained BPI, he served
the letter on two people who were not signatories to the APO, and he
failed to bracket the same BPI in the confidential version of his
letter. The Commission did not agree with his argument that if
unbracketed BPI had appeared in his letter, it was the fault of the
respondent and its attorneys because they did not bracket or otherwise
identify the BPI in their cover letter and revised response. The
Commission noted that a questionnaire response is not filed with the
Secretary subject to requirements of rules 201.6(b)(3) and 207.3(c),
which require among other things that BPI be bracketed. Furthermore,
the instructions for responding to the questionnaire indicated that
each response would be automatically treated as confidential, except to
the extent that data in the response are publicly available or must be
disclosed by law. The lead attorney did not establish the applicability
of either of the exceptions. Therefore, the respondent was under no
obligation specifically to mark or bracket BPI in the revised
questionnaire response.
The Commission issued a warning letter to the lead attorney. As
mitigating factors, the Commission considered that the attorney did not
act in bad faith, that this was the only breach in which he was
involved within a period of time generally examined by the Commission
for the purposes of determining sanctions, and that he took prompt
action to correct the breach.
Case 26: Three attorneys, a secretary, and a paralegal prepared a
postconference brief on behalf of the petitioner. One day after the
attorneys filed the confidential version of the brief, they filed
replacement pages for the confidential brief, and pursuant to the 24-
hour rule, they filed the public version of the brief. The following
workday, the Commission's Secretary notified the attorneys' law firm by
telephone that several appendices in the public version of its brief
contained unredacted BPI in brackets. The Secretary also noted that
brackets had been removed from some of the petitioner's information in
the replacement pages of the confidential brief, which was previously
bracketed in the original pages of the confidential version of the
brief and had been redacted from the public version of the brief.
After the law firm received the Secretary's telephone call, it
determined that some of the information that it failed to bracket in
the replacement pages to the confidential brief belonged to its own
client and could therefore be released as public information. The law
firm also made revisions to the relevant pages of the public version of
its brief and re-filed and re-served the revised pages. The law firm
took several more steps to avoid dissemination of the unredacted
information in the public version of the brief. It contacted lead
counsel for each party to the investigation by telephone on the same
day the Secretary called and requested that counsel retrieve the copies
of the petitioner's postconference submissions. It prepared replacement
pages that included additional bracketing on one page of its
confidential brief, removed brackets from certain of its client's
information in the confidential brief, and redacted bracketed
information from the public version of its brief. The law firm also
contacted the parties on the public service list to retrieve the pages
that had contained unredacted BPI. The public service list in effect in
these investigations at the time included only law firms that were
approved for access to BPI under the APO. However, one of the law firms
made copies of the public version of the brief and forwarded one copy
to its client who was not a signatory to the APO. The information was
not opened by the non-signatory and was returned to the law firm. The
offending exhibit pages that were distributed to the other parties on
the public service list were also returned to the law firm. The firm
received assurances from the lead counsel of all of the parties on the
public service list that no non-signatory had reviewed the BPI.
The Commission found that, in two sections of the brief, the
attorneys, the secretary, and the paralegal did not breach the APO in
failing to bracket or redact BPI because the information at issue
belonged to the parties that disclosed it. However, in another section,
the Commission determined that the three attorneys breached the APO by
failing to redact BPI from the public version that was filed with the
Commission and served on parties on the public service list.
The Commission issued warning letters to the three attorneys. As
mitigating circumstances, the Commission considered that this was the
only breach committed by the attorneys within the time period generally
examined by the Commission for purposes of determining sanctions, that
the breach was unintentional, that prompt action was taken to remedy
the breach, and that the clients who were given the brief containing
the BPI neither read nor made any copies of the BPI.
The Commission decided to take no further action against the
secretary or paralegal because they were responsible to and under the
supervision of attorneys at all times.
Case 27: One attorney and three legal assistants served a copy of
corrections to a Commission staff report containing BPI as well as a
prehearing brief containing BPI, on a law firm that had been removed
from the APO service list. An attorney from another law firm who was a
signatory to the APO notified the attorney serving the documents that
one of the firms on the certificate of service attached to the
prehearing brief had withdrawn from the APO. The next day, the attorney
serving the documents contacted the law firm that was no longer on the
APO list and retrieved the unopened pre-hearing brief. Later that day,
the attorney noticed that the corrections, which were sent six days
before the brief, had also been served to the law firm that had
withdrawn from the APO. The attorney contacted the firm and learned
that the corrections to the preliminary staff report had already been
shredded without being opened. The attorney alerted the Secretary that
day to what had transpired.
One of the legal assistants prepared the service list that
incorrectly included the law firm no longer on the APO service list for
the corrections to the preliminary staff report. The legal assistant
used the same service list for the prehearing brief. Both times he
failed to check his list against the updated list available through the
Commission's website. The same legal assistant arranged for the filing
of the document with the Commission and for delivery of the service
copies. The other two legal assistants simply served the documents on
the recipients as instructed.
The Commission issued a warning letter to the attorney for
breaching the APO. The Commission has consistently taken the position
that a breach of the APO occurs when BPI is made available to
unauthorized persons, and that it is not necessary that those persons
actually view the information. Specifically, the attorney breached the
APO by providing a person whose law firm had been removed from the APO
service list with copies of corrections to a Commission staff report
containing BPI and with a pre-hearing brief
[[Page 39435]]
containing BPI. The Commission also noted that the attorney was
responsible for supervising the activities of the legal assistants who
prepared and delivered the briefs because she signed the APO
acknowledgment for clerical personnel, which she filed with the
Commission. As mitigating circumstances, the Commission considered that
this was the only breach for the attorney within the period generally
examined by the Commission, that the breach was unintentional, that
prompt action was taken to remedy the breach, and that no unauthorized
person opened the packages containing the BPI.
The Commission determined that the legal assistant who prepared the
erroneous service list had breached the APO and issued a warning letter
to him. As mitigating circumstances, the Commission considered that
this was the only breach for the legal assistant within the period
generally examined by the Commission, that the breach was
unintentional, that prompt action was taken to remedy the breach, and
that no unauthorized person opened the packages containing the BPI.
The Commission found that the two legal assistants who served the
documents did not breach the APO.
Case 28: Four attorneys filed the public version of a posthearing
brief, which included an exhibit that contained BPI. The Commission
found that one of the attorneys and her secretary breached the APO by
failing to redact the BPI. The secretary ``whited-out'' the BPI
electronically on her computer. She then reviewed the exhibits, both on
the computer screen and as printed pages, to make sure she had redacted
all BPI. Another attorney then reviewed the brief before the attorney
who breached the APO made a final review and found all BPI had been
redacted. Eleven days later one of the attorneys discovered the un-
redacted BPI in the exhibit and notified the Commission Secretary. The
attorney then redacted the BPI from the exhibit and served a
replacement page on all relevant parties.
The Commission found that three of the attorneys did not breach the
APO because they did not participate in the preparation or review of
the exhibits in the public version of the brief. However, it initiated
an additional investigation, which was still pending when this case was
decided, after it discovered that another attorney who was not a
signatory to the APO helped in the preparation and filing of the brief.
The Commission issued a private letter of reprimand to one of the
attorneys. As mitigating circumstances, the Commission considered that
this was her first breach of an APO, that the breach was inadvertent,
and that once she became aware of the breach she took prompt action to
retrieve the pages containing the BPI. In deciding to issue a private
letter of reprimand instead of a warning letter the Commission
considered the aggravating circumstance that the non-redacted BPI was
in the possession of a non-signatory for eleven days. Without evidence
to the contrary, the Commission assumed that a non-signatory had
reviewed the BPI because of the length of time it was in the non-
signatory's possession.
The Commission issued a warning letter to the secretary. As
mitigating circumstances, the Commission considered that this was the
only breach of an APO in which she was involved within the period
generally examined by the Commission, that the breach was
unintentional, and that once her firm became aware of the breach it
took prompt action to retrieve the pages containing the BPI. Although
the Commission concluded that a non-signatory had reviewed the BPI, it
recognized that she was under the direction and supervision of an
attorney.
Case 29: Three attorneys filed the public version of a
postconference brief that contained bracketed but un-redacted BPI. A
secretary assisted in the brief's preparation. The Secretary noticed
the breach five days after it was filed and notified the firm. The firm
took steps to retrieve the copies of the public version of the brief
that it had served and distributed. The attorneys also filed a
replacement page that no longer contained BPI. The Commission found
that the attorney who had the primary responsibility for preparing the
brief and the attorney who signed the brief breached the APO. The two
attorneys reviewed the brief, but failed to redact the bracketed BPI.
The Commission also determined that the secretary breached the APO
because she failed to run properly the law firm's computer program that
redacts bracketed information from a submission after the attorneys
instructed her to redact the information. The Commission found that the
third attorney did not breach the APO. She was not in the office on the
day that the public version of the brief was filed, and she appeared to
play no role in the preparation of the brief.
The Commission issued warning letters to both attorneys. As
mitigating factors, the Commission considered that the attorneys had no
breaches within the time period generally examined by the Commission
for the purpose of determining sanctions, that the breach was
unintentional, that prompt action was taken to remedy the breach, and
that no non-signatory of the APO actually read the document.
The Commission issued a warning letter to the secretary who
assisted in the brief's preparation at the instruction of her
supervising attorneys. As mitigating factors, the Commission considered
that the secretary had no prior breaches, that the breach was
unintentional, that prompt action was taken to remedy the breach, and
that no non-signatory of the APO actually read the document.
Case 30: An economist, while under the supervision of an attorney,
faxed the confidential version of a prehearing brief containing BPI to
a client-association who was not a signatory to the APO. The client-
association subsequently faxed the confidential version to its 66
members, who were also non-signatories, the following day. Two days
after the fax was sent to the client, the attorney notified the
Secretary and reported that he had contacted each of the persons to
whom the brief had been distributed, informed them of the seriousness
of the situation, and instructed them to destroy the brief. However,
the attorney and economist did not account for several of the faxed
copies.
The Commission determined that both the attorney and the economist
breached the APO by allowing unauthorized persons to view the BPI. The
Commission sanctioned the attorney and the economist by issuing private
letters of reprimand to both. As mitigating circumstances, the
Commission considered that the breach was reported promptly after the
attorney was advised that it had occurred, that prompt efforts were
made to prevent further dissemination and to recall or destroy existing
copies, that procedures were strengthened at the law firm to safeguard
against future breaches, and that the attorney and the economist had no
record of prior breaches. However, as aggravating circumstances the
Commission considered that persons who were non-signatories to the APO
actually read the BPI and that the attorney and economist did not
account for all copies of the BPI that were sent by the client to its
members.
Case 31: Three attorneys failed to destroy BPI within the required
60 days after the Commission made a final APO release. The lead
attorney changed law firms and had the BPI covered under the APO
transferred to his new law firm. The lead attorney's old law firm sent
a letter to the Commission stating that they no longer represented the
client, that the lead attorney continued to
[[Page 39436]]
represent the client, and that the APO material would remain with the
lead attorney. Once at his new law firm, two other attorneys also
signed the APO. Ten months after the Commission made a final APO
release, the lead attorney stated that he learned that he should no
longer possess the BPI after he spoke with an employee of the
Commission about another matter. His client was appealing Department of
Commerce findings and the lead attorney asserted that he believed that
he was entitled to retain the BPI until the proceedings on the DOC
appeal were completed. The other two attorneys never accessed the
materials that had been released under the APO, but one of them
reviewed a document drafted by the lead attorney, which contained BPI.
The Commission determined that the three attorneys breached the APO
by failing to destroy all copies of BPI disclosed under the APO within
60 days of the completion of the Commission's investigation. The
attorneys also failed to file a certificate attesting that to their
knowledge and belief all copies of the BPI had been returned or
destroyed, and that no copies of the BPI had been made available to any
person to whom disclosure was not specifically authorized at the time
they were required to return or destroy the BPI.
The Commission issued warning letters to the three attorneys. As
mitigating circumstances, the Commission considered that this was the
only breach in which any of the attorneys had been involved within the
period generally examined by the Commission for purposes of determining
sanctions, that the breach was unintentional, and that prompt action
was taken to remedy the breach once the Secretary advised them of a
potential breach.
Case 32: The Commission was notified by a lead attorney that an
associate at his law firm had discovered the BPI version of a
prehearing brief in a file not designated for APO materials and which
was accessible by non-APO signatories. A second attorney at the law
firm admitted to taking two copies of the prehearing brief, which
contained BPI, into his possession, but could only account for having
properly returned one of the copies to the law firm's APO filing room.
No one at the firm knew how or when the document was placed in the non-
APO file or whether anyone not on the APO reviewed it. Immediately
after the document was discovered, the attorneys had it numbered,
stamped, and filed in the appropriate APO filing room.
The Commission determined that both attorneys breached the APO. The
Commission held the lead attorney responsible because he had the
ultimate responsibility for the safe keeping of the APO materials
entrusted to him. Despite that responsibility, he allowed a document
containing BPI to be placed in a file accessible to persons not covered
by the APO. The Commission also held the second attorney responsible
because he lost track of a document containing BPI and possibly caused
it to be placed in a file accessible to non-signatories of the APO.
The Commission issued warning letters to both attorneys. As
mitigating circumstances, it considered that both attorneys had no
prior breaches in the period generally examined by the Commission for
purposes of determining sanctions, that the breach was unintentional,
and that prompt action was taken to remedy the breach in that the law
firm changed its APO procedures and held a mandatory seminar for all
personnel regarding APO materials. The Commission noted that, although
it issued warning letters, issuance of a private letter of reprimand
was possible if a non-signatory had actually read the BPI. However, the
Commission considered it significant that the non-signatories that had
access to the BPI were employees of the law firm and likely did not
divulge the information to anyone outside the firm.
Case 33: An attorney filed the public version of an opposition to a
motion for modification of stay orders and a motion for sanctions with
the U.S. Court of Appeals for the Federal Circuit (``CAFC''). The
document contained confidential business information (``CBI'') obtained
pursuant to a Commission APO. Seven days after the attorney filed the
document, opposing counsel sent a letter to the attorney and other
interested counsel informing them of the potential breach. The attorney
immediately asked the CAFC to place the original opposition under seal
and filed a revised public version of his opposition four days after
the date of opposing counsel's notification letter. The Commission
determined that the information in question was not publicly available,
as argued by the attorney, and that the attorney had breached the APO.
The Commission issued a warning letter to the attorney. As
mitigating factors, the Commission considered that he had no prior APO
breaches, that the breach was unintentional, that prompt action was
taken to remedy the breach, and that no non-signatory to the APO
actually read the document
Case 34: A law firm served the first-day BPI verison of its post-
conference brief on another law firm that was not a signatory to the
Commission's APO. The same day an attorney at the non-signatory firm
called the law firm and stated that he had been improperly served with
the BPI version of the brief. This attorney did not view the BPI and
the first law firm retrieved the brief later in the day. Two days later
the first law firm sent a letter to the Commission regarding the
incident.
Several attorneys and consultants were involved in preparation of
the post-conference brief, but not all of them had direct involvement
in filing and serving the brief. Five project assistants were
responsible for the filing and service of the brief.
The Commission determined that the APO had been breached because
BPI was provided to unauthorized persons. The Commission found that all
five project assistants, the attorney in charge of supervising the
project assistants, and a consultant who signed the certificate of
service breached the APO, but that the lead attorney did not breach the
APO.
The Commission found that the project assistants breached the APO
because they improperly labeled one of the post-conference briefs,
which was sent to a non-signatory of the APO. The attorney in charge of
the project assistants breached the APO because he undertook in the APO
application to supervise clerical employees, which he failed to do and
this failure resulted in the service of BPI on a non-signatory to the
APO. The consultant who signed the certificate of service breached the
APO because, although the certificate he signed included only those
firms that were entitled to receive BPI under the APO, he should have
ensured that the copies to be served were labeled properly. Finally,
the Commission found that the lead attorney did not breach the APO
because in the APO application he delegated the responsibility of
supervising clerical employees to another attorney, and the Commission
found that this delegation was reasonable in light of the supervising
attorney's regular practice before the Commission.
The Commission issued warning letters to the five project
assistants, the attorney in charge of supervising clerical personnel,
and the consultant who signed the certificate of service. As mitigating
circumstances the Commission considered that the breach was
unintentional, that prompt action was taken to remedy the breach, that
the non-signatory who received the brief containing BPI did not view
the document, that there were no prior breaches within the period
generally examined by the Commission for
[[Page 39437]]
purposes of determining sanctions, and that the law firm revised its
procedures regarding APOs in light of the breaches.
Case 35: Three attorneys and a legal assistant were involved in the
preparation of the public version of a prehearing brief. Twelve days
after the public version of the brief was filed and served, the
Secretary notified the law firm that it had failed to redact one item
of bracketed BPI from a footnote in one of the exhibits. The public
version of the brief, which contained unredacted BPI, was served on and
possibly viewed by several non-signatories to the APO. The law firm
immediately contacted all parties who had received the public version
of the brief to arrange for the destruction or return of the offending
page. Two days later the law firm filed a replacement page.
The Commission found that two of the attorneys (one of counsel and
the other an associate) breached the APO because the lead attorney had
delegated the responsibility of preparing the brief, properly
bracketing BPI, and redacting BPI from the public version to the two
attorneys. The Commission found that the lead attorney did not breach
the APO because she reasonably delegated the responsibility of
preparing and reviewing the public verison of the brief to not one, but
two, experienced attorneys. Furthermore, it was reasonable for the lead
attorney to rely on their representations that the brief was ready for
dissemination to the public when she signed the public version and had
additional copies disseminated to other non-signatories. The Commission
also found that the legal assistant did not breach the APO because at
all times she acted under the direction and supervision of the two
attorneys responsible for the brief.
The Commission sanctioned both the associate and of counsel
attorneys with a private letter of reprimand. As mitigating factors, it
considered that the breach was unintentional, that corrective measures
were taken immediately, that the law firm followed its internal APO
procedures that were in place before the breach, that these procedures
were further strengthened after the breach, and that both attorneys
voluntarily led a training session on the revised procedures for other
attorneys and staff. The of counsel attorney also had no prior breaches
in the period generally considered significant by the Commission for
the purposes of determining sanctions. As aggravating circumstances,
the Commission considered the fact that the Secretary and not the law
firm found the unredacted BPI in the public version of the brief, that
it appeared that the BPI was viewed by the non-signatories who received
it, that the unredacted BPI revealed involved information from one of
two importers when the Commission's staff report did not even reveal
aggregate quantities for such importers because only two parties'
information was involved. The associate attorney had one prior breach
in the period generally examined by the Commission for the purposes of
determining sanctions, which served as another aggravating factor for
him. When the Commission sanctions someone in the associate's
situation, it normally issues a private letter of reprimand, usually
including additional requirements or prohibitions. However, the
Commission issued only a private letter of reprimand to the associate
because he voluntarily conducted a training session on the firm's APO
procedures for other attorneys and staff.
Case 36: A law firm prepared the APO version of a prehearing brief
containing BPI to be filed and served, but in the process of serving
the brief, one copy was lost for 11 days. The law firm waited seven
days before notifying the Commission of the missing brief. On the day
the brief was lost, an associate with the firm went through several
steps to make sure that all 14 copies of the brief were properly
labeled for service. After she completed this process with the
assistance of others, she arranged for a clerical worker and a legal
assistant, who were both signatories to the APO, to hand carry the
briefs to the Commission together to ensure that they were properly
filed before the clerical worker delivered the service copies. The two
employees took a taxicab to the Commission. After they filed the
appropriate number of copies with the Commission, the legal assistant
noticed that one of the copies was missing. The two employees presumed
that they left the missing copy in the taxicab, but after contacting
the cab company, the D.C. Cab Commission, and offering a $500 reward,
the missing brief did not reappear. Eleven days after the two employees
lost the envelope, it arrived at the law firm specified on its address
label. The envelope was unopened.
The Commission determined that the clerical worker and the legal
assistant breached the APO because the service copy of the APO version
of the prehearing brief was missing for 11 days and was only eventually
delivered to the correct APO recipient by an unknown person, possibly
the cab driver who was a non-signatory to the APO. The Commission has
consistently taken the position that it is a breach of an APO to make
BPI available to an unauthorized person, and that it is not necessary
for the non-signatory to view the BPI for a breach to occur. Generally,
the Commission does not hold support staff responsible for breaches if
they are under the direct supervision and control of another, but it
found that the circumstances surrounding this incident warranted such a
determination. The service copy was under their control when it
disappeared, and the disappearance was directly related to their
failure to safeguard all copies of the brief at all times.
The Commission determined that the lead attorney in the
investigations did not breach the APO. It found that he reasonably
delegated the responsibility of filing and serving the APO version of
the brief to the associate who had worked in the firm's international
trade practice for approximately two years, who had no prior APO
breaches, and who took a number of steps to ensure that the document
containing BPI received under the APO was properly served.
The Commission found that the associate did not breach the APO,
notwithstanding the fact that she had been delegated the responsibility
of filing and serving the APO version of the brief in compliance with
the APO requirements. The associate was very involved in the
preparation of the brief for filing and service and appeared to have
been very diligent in checking and double-checking the number of
copies, the packaging of the copies, and the potential recipients to
ensure proper delivery and compliance with the APO. The associate
arranged for two people to hand deliver the filings to the Commission,
both of whom had made similar filings on many prior occasions and
neither of whom had previously breached an APO. The Commission
therefore found that the associate reasonably delegated the
responsibility for physically delivering the filing and service copies.
The Commission noted that the only way the associate might have
prevented this breach would have been to deliver the filing and service
copies herself, which would be unreasonable. The Commission added that
in rare circumstances such as these, this incident should not be
included in the associate's file or be held against her in any future
cases.
The Commission decided to issue warning letters to the clerical
worker and the legal assistant. As mitigating factors, it considered
that this was the only breach the two had committed within the period
generally examined by the Commission for purposes of determining
sanctions, that the breach was unintentional, that prompt action was
taken to remedy the breach, and
[[Page 39438]]
that the unknown person who eventually delivered the service copy did
not open the envelope and read the BPI. One aggravating factor was that
the missing service copy was not reported to the Commission until seven
days after it was missing.
IV. Investigations in Which No Breach Was Found
During 2001, the Commission completed six additional investigations
in which no breach was found. One investigation was not completed, but
was withdrawn by the Office of General Counsel, because the revealed
information was not treated as BPI by the Commission. The reasons for a
finding by the Commission of no breach included:
(1) The information disclosed at the hearing was sufficiently
changed to make it no longer confidential;
(2) The information revealed was publicly available;
(3) The suppliers of the BPI had consented to the use of the
information in U.S. District Court litigation and, therefore,
providing BPI to the district court judge for in camera inspection
was not a breach;
(4) The information was not BPI because it was a general
description of the channels of distribution;
(5) The information revealed was hypothetical and therefore not
BPI; and
(6) The Commission did not treat the information as BPI in its
staff report.
Issued June 4, 2002.
By order of the Commission.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-14386 Filed 6-6-02; 8:45 am]
BILLING CODE 7020-02-P