PUBLIC VERSION
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`future business plans — questions that often explicitly addressed the 1074 Consent Order (that had
`no relevance to the 1105 Investigation) — implicated privileged internal Radwell deliberations and
`communications with both its in-house and outside counsel |
`
`]
`
`The law is clear that the attorney-client privilege rests with the party asserting that
`privilege. Mr. Radwell, as the owner of Radwell, was in the best position to understand his good-
`faith basis to assert that privilege, as explained in the attached Declaration.
`
`The Commission’s interest in encouraging parties to enter into consent order stipulations,
`and to comply with those stipulations, is strongly supported by permitting parties to engage in self-
`critical, deliberative discussions with counsel to ensure compliance with the Commission’s orders,
`without subjecting those deliberations to discovery. To compel witnesses such as Mr. Radwell to
`testify as to compliance deliberations they reasonably believe to be privileged would run counter
`to the public interest.
`
`Rockwell and the Staff have also identified no prejudice suffered from Mr. Radwell’s
`invocation of the privilege. Both the Staff and Rockwell took full advantage of the opportunity to
`depose Radwell witnesses after the 1074 Consent Order went into effect on August 15, 2018, and
`before fact discovery closed. Rockwell and the Staff obtained fulsome answers to all their
`questions from Radwell witnesses — including from Radwell’s designated corporate witness —
`about | .] Rockwell
`identifies no prejudice at all, let alone the extraordinary prejudice necessary to justify ordering Mr.
`Radwell, an apex witness and Radwell’s President, to reappear for a second, cumulative
`
`deposition.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`A. Mr. Radwell’s Refusal to Answer Certain Questions Posed by Rockwell and Staff on the
`Basis of Privilege Was Reasonable and Lawful.
`
`It 1s well established that the client holds the attorney-client privilege and only the client
`may waive the privilege. See Certain Scanning Multiple-Beam Equalization Sys. for Chest
`Radiography & Components Thereof, Inv. No. 337-TA-326, Order No. 11 (June 13, 1991); Certain
`Wireless Devices with 3G and 4G Capabilities & Components Thereof, Inv. No. 337-TA-868,
`Order No. 59 (Aug. 26, 2013) (citing In re Seagate Tech., LLC, 497 F.3d 1360, 1372-73 (Fed. Cir.
`2007)). As a corollary, it 1s the client’s right to invoke the privilege when confronted with a
`question that the client reasonably believed would require it to divulge privileged information in
`response. That is precisely what Mr. Radwell did during his deposition at issue here.
`
`During his deposition, Mr. Radwell had been advised about the extent and coverage of the
`attorney-client privilege as it relates to Radwell’s planning to comply with its legal obligations
`arising under the 1074 Consent Order. Rockwell and Staff deposed Mr. Radwell on August 6,
`2018, nine days before the Commission issued the 1074 Consent Order. At that time, Radwell
`was |
`
`.] Mr. Radwell was intimately
`mnvolved in those discussions with counsel. It was reasonable for Mr. Radwell to believe that
`questions from Rockwell and Staff about Radwell’s future business plans sought information
`concerning |
`
`1
`
`Therefore, Mr. Radwell reasonably, and in good faith, declined to answer certain questions during
`his August 6 deposition regarding |
`
`.] The ALJ should deny Rockwell’s motion on this
`
`basis alone.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`There is also a strong public interest in encouraging conscientious efforts to comply with
`the Commission’s remedial orders. Courts have recognized, in similar circumstances, the
`existence of a “self-examination” privilege to encourage such efforts to comply with legal
`obligations. See Rosario v. New York Times Co., 84 F.R.D. 626, 631 (S.D.N.Y. 1979) (“It 1s clear
`that a qualified privilege of ‘self-examination’ exists to permit free discussion looking toward
`compliance with [the] law. . . .”); Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524
`(N.D. Fla. 1994) (“The rationale for the doctrine is that such critical self-evaluation fosters the
`compelling public interest in observance of the law.”); Granger v. National R.R. Passenger Corp.,
`116 FR.D. 507, 509 (E.D. Pa. 1987) (stating that there is a “need to promote candid and forthright
`self-evaluation™). The self-examination privilege is particularly pertinent here, where Radwell’s
`[ ] involved counsel.
`
`The public interest will be significantly undermined if witnesses are compelled to testify
`concerning internal, attorney-guided deliberations involving efforts to comply with ITC consent
`
`and remedial orders. At the time Rockwell agreed to take Mr. Radwell’s deposition, |
`
`] Mr. Radwell reasonably believed that the questions posed
`by counsel touched on these attorney-guided deliberations, forming the basis for Mr. Radwell’s
`assertion of attorney-client privilege. There is a strong public interest in permitting companies
`such as Radwell to hold free, internal discussions with counsel as to how to comply with
`government regulations, such as the consent order at issue here, without subjecting those self-
`critical evaluations to discovery. This is particularly so here, where Rockwell and the Staff appear
`to have tried to use Mr. Radwell’s deposition in the 1105 Investigation to obtain discovery to use
`
`in the 1074 Investigation.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`Importantly, the privileged information sought by Rockwell and Staff on August 6, remains
`cloaked in that privilege today; unaffected by the passage of time.
`
`B. Rockwell Has Identified No Prejudice or Information It Was Unable to Obtain from
`Radwell Due to Mr. Radwell’s Invocation of the Attorney-Client Privilege.
`
`Rockwell has also not identified any information that it can lawfully obtain from re-
`deposing Mr. Radwell that it was unable to obtain from other witnesses, including Radwell’s
`corporate representative. Under these circumstances, Rockwell has suffered no prejudice and its
`motion is unwarranted for this reason alone. See, e.g., Van Arsdale v. Clemo, 825 F.2d 794, 798
`(4th Cir. 1987) (affirming district court’s entry of protective order preventing depositions when
`appellant failed to demonstrate that additional evidence would be developed through testimony).
`Rockwell and the Staff were able to (and did) ask similar, detailed questions concerning Radwell’s
`operations during the August 16 and 17 depositions of Mr. Todd Radwell and Radwell’s corporate
`representative, Tom Foy, concerning, inter alia, Radwell’s domestic industry and steps taken to
`comply with the 1074 Consent Order. Those depositions took place after the Consent Order went
`mnto effect, and |
`
`,] allowing Mr. Todd Radwell and Mr. Foy to freely testify about
`the company’s future plans without implicating the preceding privileged communications and
`deliberations.
`
`Tellingly, the only testimony from Mr. Foy related to this issue that Rockwell complains
`about 1s Mr. Foy’s |
`
`.] (Motion at 18-19). However, Mr. Foy testified that |
`
`] (Ex. E to Rockwell’s Motion at 79:7-80:15), which is
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`the owner of Radwell, to believe the questions posed by Rockwell and the Staff implicated
`privileged compliance communications involving counsel.
`
`Rockwell and the Staff have since taken advantage of multiple opportunities to question
`Radwell witnesses (including its corporate representative) about every aspect of Radwell’s case,
`including the planning involved in the |
`
`,] and have suffered no prejudice. Under these circumstances, there is no
`
`basis for an order requiring Mr. Radwell to undergo a second deposition, let alone for costs.
`
`Date: August 30, 2018 Respectfully submitted,
`
`/s/ Daniel F. Smith
`
`Deanna Tanner Okun
`
`Jonathan J. Engler
`
`David H. Hollander
`
`Daniel F. Smith
`
`Joshua Hartman
`
`ADpDUCI, MASTRIANI & SCHAUMBERG LLP
`1133 Connecticut Avenue, NW, 12th Floor
`Washington, DC 20036
`
`Telephone: (202) 467-6300
`
`Facsimile: (202) 466-2006
`
`E-Mail: Radwell AT@adduci.com
`
`Todd R. Seelman
`
`John Cardinal Parks
`
`Christopher H. Wood
`
`Jill M. Szewczyk
`
`Julie A. Keersmaekers
`
`Jenna Disser
`
`Robin Alexander
`
`Alyssa R. Watzman
`
`LEWIS BRrisBOIS BISGAARD & SMITH LLP
`1700 Lincoln Street, Suite 4000
`
`Denver, CO 80203
`
`Telephone: (303) 861-7760
`
`Facsimile: (303) 861-7767
`
`E-Mail: Radwell-ITC-AT@lewisbrisbois.com
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`’S
`
`, Respondent Rockwell Automation, Inc. (“Rockwell”),
`
`
`
`
`
`
`
`
`
`/s/ Desiree P. January
`
`
`
`
`
`
`
`
`
`6th September
`
`X X
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`future business plans — questions that often explicitly addressed the 1074 Consent Order (that had
`no relevance to the 1105 Investigation) — implicated privileged internal Radwell deliberations and
`communications with both its in-house and outside counsel |
`
`]
`
`The law is clear that the attorney-client privilege rests with the party asserting that
`privilege. Mr. Radwell, as the owner of Radwell, was in the best position to understand his good-
`faith basis to assert that privilege, as explained in the attached Declaration.
`
`The Commission’s interest in encouraging parties to enter into consent order stipulations,
`and to comply with those stipulations, is strongly supported by permitting parties to engage in self-
`critical, deliberative discussions with counsel to ensure compliance with the Commission’s orders,
`without subjecting those deliberations to discovery. To compel witnesses such as Mr. Radwell to
`testify as to compliance deliberations they reasonably believe to be privileged would run counter
`to the public interest.
`
`Rockwell and the Staff have also identified no prejudice suffered from Mr. Radwell’s
`invocation of the privilege. Both the Staff and Rockwell took full advantage of the opportunity to
`depose Radwell witnesses after the 1074 Consent Order went into effect on August 15, 2018, and
`before fact discovery closed. Rockwell and the Staff obtained fulsome answers to all their
`questions from Radwell witnesses — including from Radwell’s designated corporate witness —
`about | .] Rockwell
`identifies no prejudice at all, let alone the extraordinary prejudice necessary to justify ordering Mr.
`Radwell, an apex witness and Radwell’s President, to reappear for a second, cumulative
`
`deposition.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`A. Mr. Radwell’s Refusal to Answer Certain Questions Posed by Rockwell and Staff on the
`Basis of Privilege Was Reasonable and Lawful.
`
`It 1s well established that the client holds the attorney-client privilege and only the client
`may waive the privilege. See Certain Scanning Multiple-Beam Equalization Sys. for Chest
`Radiography & Components Thereof, Inv. No. 337-TA-326, Order No. 11 (June 13, 1991); Certain
`Wireless Devices with 3G and 4G Capabilities & Components Thereof, Inv. No. 337-TA-868,
`Order No. 59 (Aug. 26, 2013) (citing In re Seagate Tech., LLC, 497 F.3d 1360, 1372-73 (Fed. Cir.
`2007)). As a corollary, it 1s the client’s right to invoke the privilege when confronted with a
`question that the client reasonably believed would require it to divulge privileged information in
`response. That is precisely what Mr. Radwell did during his deposition at issue here.
`
`During his deposition, Mr. Radwell had been advised about the extent and coverage of the
`attorney-client privilege as it relates to Radwell’s planning to comply with its legal obligations
`arising under the 1074 Consent Order. Rockwell and Staff deposed Mr. Radwell on August 6,
`2018, nine days before the Commission issued the 1074 Consent Order. At that time, Radwell
`was |
`
`.] Mr. Radwell was intimately
`mnvolved in those discussions with counsel. It was reasonable for Mr. Radwell to believe that
`questions from Rockwell and Staff about Radwell’s future business plans sought information
`concerning |
`
`1
`
`Therefore, Mr. Radwell reasonably, and in good faith, declined to answer certain questions during
`his August 6 deposition regarding |
`
`.] The ALJ should deny Rockwell’s motion on this
`
`basis alone.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`There is also a strong public interest in encouraging conscientious efforts to comply with
`the Commission’s remedial orders. Courts have recognized, in similar circumstances, the
`existence of a “self-examination” privilege to encourage such efforts to comply with legal
`obligations. See Rosario v. New York Times Co., 84 F.R.D. 626, 631 (S.D.N.Y. 1979) (“It 1s clear
`that a qualified privilege of ‘self-examination’ exists to permit free discussion looking toward
`compliance with [the] law. . . .”); Reichhold Chems., Inc. v. Textron, Inc., 157 F.R.D. 522, 524
`(N.D. Fla. 1994) (“The rationale for the doctrine is that such critical self-evaluation fosters the
`compelling public interest in observance of the law.”); Granger v. National R.R. Passenger Corp.,
`116 FR.D. 507, 509 (E.D. Pa. 1987) (stating that there is a “need to promote candid and forthright
`self-evaluation™). The self-examination privilege is particularly pertinent here, where Radwell’s
`[ ] involved counsel.
`
`The public interest will be significantly undermined if witnesses are compelled to testify
`concerning internal, attorney-guided deliberations involving efforts to comply with ITC consent
`
`and remedial orders. At the time Rockwell agreed to take Mr. Radwell’s deposition, |
`
`] Mr. Radwell reasonably believed that the questions posed
`by counsel touched on these attorney-guided deliberations, forming the basis for Mr. Radwell’s
`assertion of attorney-client privilege. There is a strong public interest in permitting companies
`such as Radwell to hold free, internal discussions with counsel as to how to comply with
`government regulations, such as the consent order at issue here, without subjecting those self-
`critical evaluations to discovery. This is particularly so here, where Rockwell and the Staff appear
`to have tried to use Mr. Radwell’s deposition in the 1105 Investigation to obtain discovery to use
`
`in the 1074 Investigation.
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`Importantly, the privileged information sought by Rockwell and Staff on August 6, remains
`cloaked in that privilege today; unaffected by the passage of time.
`
`B. Rockwell Has Identified No Prejudice or Information It Was Unable to Obtain from
`Radwell Due to Mr. Radwell’s Invocation of the Attorney-Client Privilege.
`
`Rockwell has also not identified any information that it can lawfully obtain from re-
`deposing Mr. Radwell that it was unable to obtain from other witnesses, including Radwell’s
`corporate representative. Under these circumstances, Rockwell has suffered no prejudice and its
`motion is unwarranted for this reason alone. See, e.g., Van Arsdale v. Clemo, 825 F.2d 794, 798
`(4th Cir. 1987) (affirming district court’s entry of protective order preventing depositions when
`appellant failed to demonstrate that additional evidence would be developed through testimony).
`Rockwell and the Staff were able to (and did) ask similar, detailed questions concerning Radwell’s
`operations during the August 16 and 17 depositions of Mr. Todd Radwell and Radwell’s corporate
`representative, Tom Foy, concerning, inter alia, Radwell’s domestic industry and steps taken to
`comply with the 1074 Consent Order. Those depositions took place after the Consent Order went
`mnto effect, and |
`
`,] allowing Mr. Todd Radwell and Mr. Foy to freely testify about
`the company’s future plans without implicating the preceding privileged communications and
`deliberations.
`
`Tellingly, the only testimony from Mr. Foy related to this issue that Rockwell complains
`about 1s Mr. Foy’s |
`
`.] (Motion at 18-19). However, Mr. Foy testified that |
`
`] (Ex. E to Rockwell’s Motion at 79:7-80:15), which is
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`the owner of Radwell, to believe the questions posed by Rockwell and the Staff implicated
`privileged compliance communications involving counsel.
`
`Rockwell and the Staff have since taken advantage of multiple opportunities to question
`Radwell witnesses (including its corporate representative) about every aspect of Radwell’s case,
`including the planning involved in the |
`
`,] and have suffered no prejudice. Under these circumstances, there is no
`
`basis for an order requiring Mr. Radwell to undergo a second deposition, let alone for costs.
`
`Date: August 30, 2018 Respectfully submitted,
`
`/s/ Daniel F. Smith
`
`Deanna Tanner Okun
`
`Jonathan J. Engler
`
`David H. Hollander
`
`Daniel F. Smith
`
`Joshua Hartman
`
`ADpDUCI, MASTRIANI & SCHAUMBERG LLP
`1133 Connecticut Avenue, NW, 12th Floor
`Washington, DC 20036
`
`Telephone: (202) 467-6300
`
`Facsimile: (202) 466-2006
`
`E-Mail: Radwell AT@adduci.com
`
`Todd R. Seelman
`
`John Cardinal Parks
`
`Christopher H. Wood
`
`Jill M. Szewczyk
`
`Julie A. Keersmaekers
`
`Jenna Disser
`
`Robin Alexander
`
`Alyssa R. Watzman
`
`LEWIS BRrisBOIS BISGAARD & SMITH LLP
`1700 Lincoln Street, Suite 4000
`
`Denver, CO 80203
`
`Telephone: (303) 861-7760
`
`Facsimile: (303) 861-7767
`
`E-Mail: Radwell-ITC-AT@lewisbrisbois.com
`
`
`
`
`
`
`
`
`PUBLIC VERSION
`
`
`
`
`
`
`
`
`’S
`
`, Respondent Rockwell Automation, Inc. (“Rockwell”),
`
`
`
`
`
`
`
`
`
`/s/ Desiree P. January
`
`
`
`
`
`
`
`
`
`6th September
`
`X X
`
`
`
`
`
`
`
`
`
`
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