UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`IN THE MATTER OF CERTAIN SILICON
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`Inv. N0. 337-TA—825
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`MICROPHONE PACKAGES AND PRODUCTS
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`CONTAINING SAME
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`ORDER NO. 1:
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`PROTECTIVE ORDER
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`(January 18, 2012)
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`WHEREAS, documents and information may be sought, produced or exhibited by and
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`among the parties to the above captioned proceeding, which materials relate to trade secrets or
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`other confidential research, development or commercial information, as such terms are used in the
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`Commission's Rules, 19 CPR. § 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1. Confidential business information is information which concerns or relates to the trade
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`secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
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`purchases, transfers, identification of customers, inventories, amount or source of any income,
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`profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization,
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`or other information of commercial value, the disclosure of which is likely to have the effect of
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`either (i) impairing the Commission's ability to obtain such information as is necessary to perform
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`its statutory functions; or (ii) causing substantial harm to the competitive position of the person,
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`firm, partnership, corporation, or other organization from which the information was obtained,
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`unless the Commission is required by law to disclose such information. The term “confidential
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`business information” includes “proprietary information” within the meaning of section 777(b) of
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`the Tariff Act of 1930 (19 U.S.C. § l677f(b)).
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`2(a). Any information submitted, in pre—hearing discovery or in a pleading, motion, or
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`response to a motion either voluntarily or pursuant to order, in this Investigation, which is asserted
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`by a supplier to contain or constitute confidential business information shall be so designated by
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`such supplier in writing, or orally at a deposition, conference or hearing, and shall be segregated
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`from other information being submitted. Documents shall be clearly and prominently marked on
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`their face with the legend: “[supplier's name] CONFIDENTIAL BUSINESS INFORMATION,
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`SUBJECT TO PROTECTIVE ORDER,” or a comparable notice. Such information, whether
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`submitted in writing or in oral testimony, shall be treated in accordance with the terms of this
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`protective order.
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`(b). The Administrative Law Judge or the Commission may determine that information
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`alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein.
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`If such a
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`determination is made by the Administrative Law Judge or the Commission, opportunity shall be
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`provided to the supplier of such information to argue its confidentiality prior to the time of such
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`ruling.
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`3.
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`In the absence of written permission from the supplier or an order by the
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`Commission or
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`the Administrative Law Judge, any confidential documents or business
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`information submitted in accordance with the provisions of paragraph 2 above shall not be
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`disclosed to any person other than:
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`(i) outside counsel for parties to this Investigation, including
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`necessary secretarial and support personnel assisting such counsel; (ii) qualified persons taking
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`testimony involving such documents or information and necessary stenographic and clerical
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`personnel thereof; (iii) technical experts and their staff who are employed for the purposes of this
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`litigation (unless they are otherwise employed by, consultants to, or otherwise affiliated with a
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`non-govemmental party, or are employees of any domestic or foreign manufacturer, wholesaler,
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`retailer, or distributor of the products, devices or component parts which are the subject of this
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`Investigation); (iv) the Commission, the Administrative Law Judge, the Commission Investigative
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`Staff, and personnel of any governmental agency as authorized by the Commission; and (V) the
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`Commission, its employees, and contract personnel who are acting in the capacity of Commission
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`employees, for developing or maintaining the records of this Investigation or related proceedings
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`for which this information is submitted, or in internal audits and investigations relating to the
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`programs and operations of the Commission pursuant to 5 U.S.C. Appendix 3.1
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`4.
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`Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(i)2 and (iii)
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`unless he or she shall have first read this order and shall have agreed, by letter filed with the
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`Secretary of this Commission:
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`(i) to be bound by the terms thereof; (ii) not to reveal such
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`confidential business information to anyone other than another person designated in paragraph 3;
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`and (iii) to utilize such confidential business information solely for purposes of this Investigation.
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`5.
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`If the Commission or the Administrative Law Judge orders, or if the supplier and all
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`parties to the Investigation agree, that access to, or dissemination of information submitted as
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`confidential business information shall be made to persons not included in paragraph 3 above, such
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`matter shall only be accessible to, or disseminated to, such persons based upon the conditions
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`pertaining to, and obligations arising from this order, and such persons shall be considered subject
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`2
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`See Commission Administrative Order 97—06 (Feb. 4, 1997).
`Necessary secretarial and support personnel assisting counsel need not sign onto the
`protective order themselves because they are covered by counsel’s signing onto the protective
`order.
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`to it, unless the Commission or the Administrative Law Judge finds that the information is not
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`confidential business information as defined in paragraph 1 hereof.
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`6.
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`Any confidential business information submitted to the Commission or the
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`Administrative Law Judge in connection with a motion or other proceeding within the purview of
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`this Investigation shall be submitted under seal pursuant to paragraph 2 above. Any portion of a
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`transcript in connection with this Investigation containing any confidential business information
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`submitted pursuant to paragraph 2 above shall be bound separately and filed under seal. When any
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`confidential business information submitted in accordance with paragraph 2 above is included in
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`an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the
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`court reporter taking the deposition to bind such confidential portions and separately label them
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`“[supplier‘s
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`name]
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`CONFIDENTIAL BUSINESS
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`INFORMATION,
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`SUBJECT
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`TO
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`PROTECTIVE ORDER.” Before a court reporter or translator receives any such information, he
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`or she shall have first read this order and shall have agreed in writing to be bound by the terms
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`thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto. Copies
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`of each such signed agreement shall be provided to the supplier of such confidential business
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`information and the Secretary of the Commission.
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`7.
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`The restrictions upon, and obligations accruing to, persons who become subject to
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`this order shall not apply to any information submitted in accordance with paragraph 2 above to
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`which the person asserting the confidential status thereof agrees in writing, or the Commission or
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`the Administrative Law Judge rules, after an opportunity for hearing, was publicly known at the
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`time it was supplied to the receiving party or has since become publicly known through no fault of
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`the receiving party.
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`8. The Commission, the Administrative Law Judge, and the Commission Investigative
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`Staff acknowledge that any document or
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`information submitted as confidential business
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`information pursuant to paragraph 2 above is to be treated as such within the meaning of 5 U.S.C.
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`§ 552(b)(4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the Commission
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`or its Freedom of Information Act Officer, or the Administrative Law Judge. When such
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`information is made part of a pleading or is offered into the evidentiary record, the data set forth in
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`19 C.F.R. § 201.6 must be provided except during the time that the proceeding is pending before
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`the Administrative Law Judge. During that time, the party offering the confidential business
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`information must, upon request, provide a statement as to the claimed basis for its confidentiality.
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`9. Unless a designation of confidentiality has been withdrawn, or a determination has been
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`made by the Commission or the Administrative Law Judge that information designated as
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`confidential, is no longer confidential, the Commission, the Administrative Law Judge, and the
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`Commission Investigative Staff shall
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`take all necessary and proper steps to preserve the
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`confidentiality of, and to protect each supplier's rights with respect to, any confidential business
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`information designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation:
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`(a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access to such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. § 552) and (ii)
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`any proposal to redesignate or make public any such confidential business information; and (b)
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`providing the supplier at least seven days after receipt of such inquiry or request within which to
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`take action before the Commission, its Freedom of Information Act Officer, or the Administrative
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`Law Judge, or otherwise to preserve the confidentiality of and to protect its rights in, and to, such
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`confidential business information.
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`10. If while the Investigation is before the Administrative Law Judge, a party to this order
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`who is to be a recipient of any business information designated as confidential and submitted in
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`accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it shall
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`notify the supplier in writing, and they will thereupon confer as to the status of the subject
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`information proffered within the context of this order.
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`If prior to, or at the time of such a
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`conference, the supplier withdraws its designation of such information as being subject to this
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`order, but nonetheless submits such information for purposes of the Investigation, such supplier
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`shall express the withdrawal, in writing, and serve such withdrawal upon all parties and the
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`Administrative Law Judge. If the recipient and supplier are unable to concur upon the status of the
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`subject information submitted as confidential business information within ten days from the date
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`of notification of such disagreement, any party to this order may raise the issue of the designation
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`of such a status to the Administrative Law Judge who will rule upon the matter.
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`The
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`Administrative Law Judge may sua sponte question the designation of the confidential status of
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`any information and, after opportunity for hearing, may remove the confidentiality designation.
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`1 1. No less than 10 days (or any other period of time designated by the Administrative Law
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`Judge) prior to the initial disclosure to a proposed expert of any confidential information submitted
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`in accordance with paragraph 2, the party proposing to use such expert shall submit in writing the
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`name of such proposed expert and his or her educational and detailed employment history to the
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`supplier. If the supplier objects to the disclosure of such confidential business information to such
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`proposed expert as inconsistent with the language or intent of this order or on other grounds, it
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`shall notify the recipient in writing of its objection and the grounds therefor prior to the initial
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`disclosure. If the dispute is not resolved on an informal basis within ten days of receipt of such
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`notice of objections, the supplier shall submit immediately each objection to the Administrative
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`Law Judge for a ruling. If the Investigation is before the Commission the matter shall be submitted
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`to the Commission for resolution. The submission of such confidential business information to
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`such proposed expert shall be withheld pending the ruling of the Commission or
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`the
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`Administrative Law Judge. The terms of this paragraph shall be inapplicable to experts within the
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`Commission or to experts from other governmental agencies who are consulted with or used by the
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`Commission.
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`12.
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`If confidential business information submitted in accordance with paragraph 2 is
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`disclosed to any person other than in the manner authorized by this protective order, the party
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`responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure
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`to the attention of the supplier and the Administrative Law Judge and, without prejudice to other
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`rights and remedies of the supplier, make every effort to prevent further disclosure by it or by the
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`person who was the recipient of such information.
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`13. Nothing in this order shall abridge the right of any person to seek judicial review or to
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`pursue other appropriate judicial action with respect to any ruling made by the Commission, its
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`Freedom of Information Act Officer, or the Administrative Law Judge concerning the issue of the
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`status of confidential business information.
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`l4. Upon final termination of this Investigation, each recipient of confidential business
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`information that is subject to this order shall assemble and return to the supplier all items
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`containing such information submitted in accordance with paragraph 2 above, including all copies
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`of such matter which may have been made. Alternatively, the parties subject to this order may,
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`with the written consent of the supplier, destroy all
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`items containing confidential business
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`information and certify to the supplier (or his counsel) that such destruction has taken place. This
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`paragraph shall not apply to the Commission,
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`including its investigative attorney, and the
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`Administrative Law Judge, which shall retain such material pursuant to statutory requirements and
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`for other recordkeeping purposes, but may destroy those additional copies in its possession which
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`it regards as surplusage.
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`Notwithstanding the above paragraph, confidential business
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`information may be
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`transmitted to a district court pursuant to Commission Rule 210.5(0).
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`15.
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`If any confidential business information which is supplied in accordance with
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`paragraph 2 above is supplied by a nonparty to this Investigation, such a nonparty shall be
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`considered a “supplier” as that term is used in the context of this order.
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`16. Each nonparty supplier shall be provided a copy of this order by the party seeking
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`information from said supplier.
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`17. The Secretary shall serve a copy of this order upon all parties.
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`//mM1/
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`Thomas B. Pender
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`Administrative Law Judge
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`Attachment A
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`NONDISCLOSURE AGREEMENT FOR REPORTER/STENOGRAPHEIUTRANSLATOR
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`I,
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`, do solemnly swear or affirm that I will not divulge any information
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`communicated to me in any confidential portion of the Investigation or hearing in the matter of
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`Certain Electronic Devices with Communication Capal_)ilities,__Components Thereof, and Related
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`Software, Investigation No. 337—TA—808, except as permitted in the Protective Order issued in this
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`case. I will not directly or indirectly use, or allow the use of such information for any purpose other
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`than that directly associated with my official duties in this case.
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`Further, I will not by direct action, discussion, recommendation, or suggestion to any person
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`reveal the nature or content of any information communicated during any confidential portion of
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`the Investigation or hearing in this case.
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`I also affirm that I do not hold any position or official relationship with any of the
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`participants in said Investigation.
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`I am aware that the unauthorized use or conveyance of information as specified above is a
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`violation of the Federal Criminal Code and punishable by a fine of up to $10,000, imprisonment
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`of up to ten (10) years, or both.
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`Signed
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`Dated
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`Firm or affiliation
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`IN THE MATTER OF CERTAIN SILICON MICROPHONE
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`337-TA—825
`
`PACKAGES AND PRODUCTS CONTAINING SAME
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`CERTIFICATE OF SERVICE
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`1, James R. Holbein, hereby certify that the attached PUBLIC ORDER NO. 2 has been served
`upon, Mareesa A. Frederick, Esq., Commission Investigative Attorney, and the following
`parties via first class mail and air mail where necessary on ___January 19
`, 2012.
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`J En
`
`Holbem, Secretary
`U.S. International Trade Commission
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`500 E Street, SW, Room 112A
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`Washington, DC 20436
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`FOR COMPLAINANT KNOWLES ELECTRONICS LLC.:
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`David A.Ga1r, Esq.
`COVINGTON & BURLING LLP
`1201 Pennsylvania Avenue, N.W.
`Washington, DC 20004
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`( X )Via First Class Mail
`(
`)Other:
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`FOR RESPONDENTS ANALOG DEVICES, INC., AMKOR TECHNOLOGY, INC. &
`AVNET INC.
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`Steven Bauer, Esq.
`ORRICK, HERRINGTON & SUTCLIFFE, LLP
`1152 15” Street, N.W.
`,
`Washington, DC 20005
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`( X )Via First Class Mail
`(
`)Other:
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`PUBLIC MAILING LIST
`
`Heather Hall
`LEXIS - NEXIS
`9443 Springboro Pike
`Miamisburg, OH 45342
`
`Kenneth Clair
`THOMSON WEST
`1100 — 13”‘ Street NW
`Suite 200
`Washington, DC 20005
`
`.
`
`F
`
`I
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`(X )Via First Class Mail
`(
`)Other:
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`( X )Via First Class M ail
`(
`)Other: