Confidential business information is protected in Section 337 investigations by a Protective Order issued by the Administrative Law Judge shortly after the commencement of an investigation.¹¹ These Protective Orders typically describe in detail how documents containing confidential information are to be marked and how and by whom they are to be handled. Although these orders permit a party's outside counsel to have access to confidential business information produced during an investigation, the orders typically do not permit a party's in-house counsel to have access to such confidential business information.

Protective Orders not only contain provisions to protect the confidential business information of the parties to the investigation, these Orders also contain provisions to protect the confidential business information of non-party entities that supply confidential information pursuant to a Commission subpoena. In this regard, if a party seeks confidential business information from a non-party, the party requesting the information should provide a copy of the Protective Order to the non-party supplier of information. In the event that the non-party does not receive a copy of the Protective Order when served with a Commission subpoena, the non-party should request a copy from the party that served the subpoena. 

Prior to the issuance of a Protective Order, documents submitted to the Commission may be treated as confidential if they are designated as confidential, accompanied by a request for confidential treatment, and deemed by the Secretary to the Commission to indeed contain confidential business information as described in the rules governing the submission and definition of confidential business information, Rules 210.5 and 201.6, 19 C.F.R. §§ 210.5 and 201.6. All documents containing or attaching confidential business information should be clearly marked on their face as containing or attaching confidential business information.

¹¹ As noted earlier, the Commission has undertaken a multi-phase implementation of electronic filing procedures, which began in 2003. Documents containing confidential business information currently are not eligible for electronic filing. It is anticipated that the Commission will permit the electronic filing of confidential information in the future. In the meantime, confidential documents must be filed in paper form over-the-counter at Docket Services with an EDIS cover sheet as noted above.