UNITED STATES INTERNATIONALTRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN ROAD MILLING
`MACHINES AND COMPONENTS
`THEREOF
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`Inv. No. 337-TA-1067
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`Order No. 8: AMENDED PROTECTIVE ORDER
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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
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`the Commission's Rules, 19 C.F.R. 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1.Confidential business information is information which has not been made public and
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`which concerns or relates to the trade secrets, processes, operations, style of work, or apparatus,
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`or to the production, sales, shipments, purchases, transfers, identification of customers,
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`inventories, amount or source of any income, profits, losses, or expenditures of any person, firm,
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`partnership, corporation, or other organization, the disclosure of which information is likely to
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`have the effect of either (i) irnpairing the Commission's ability to obtain such information as is
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`necessary to perform its statutory functions; or (ii) causing substantial harm to the competitive
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`frpm which the
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`position of the person, firm, partnership, corporation, or other organization
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`information was obtained, unless the Commission is required by law to disclose such
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`information.
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`Page 1 of 26
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`CATERPILLAR EXHIBIT 1153
`CATERPILLAR v. WIRTGEN
`IPR2017-02188
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`2.(a) Any information submitted, in prehearing 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
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`asserted by a supplier to contain or constitute confidential business information shall be so
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`designated by such supplier in writing, or orally at a deposition, conference or hearing, and shall
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`be segregated from other information being submitted. Documents shall be clearly and
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`prominently marked on their face with the legend: "[supplier's name] CONFIDENTIAL
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`BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice.
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`During the prehearing phase of this investigation, such information whether submitted in writing
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`or in oral testimony shall be disclosed only in camera before the Commission or the
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`administrative law judge.
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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 disclo_sure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein. 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.In the absence of written permission from the supplier or an order by the Commission
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`or the administrative law judge, any confidential documents �r business information submitted in
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`accordance with the provisions of paragraph 2 above shall not be disclosed to any person other
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`than:. (i) outside counsel for parties to this investigation, including necessary secretarial and
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`support personnel assisting such counsel; (ii) qualified persons taking testimony involving such
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`documents or information and necessary stenographic and clerical personnel thereof; (iii)
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`technical experts and their staff who are employed for the purposes of this litigation (unless they
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`2
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`Page 2 of 26
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`are otherwise employed by, consultants to, or otherwise affiliated with a non-governmental
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`party, or are employees of any domestic or foreign manufacturer, wholesaler, retailer, or
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`distributor of certain road milling machines and components thereof, which are the subject of
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`law judge, the Commission staff, and this investigation); (iv) the Commission, the administrative
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`personnel of any governmental agency as authorized by the Commission; and (v) the
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`Commission, its employees and Offices, and contract personnel (a) for developing or
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`maintaining the records of this or a related proceeding, or (b) in internal investigations, audits,
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`reviews, and evaluations relating to the programs, personnel, and operations of the Commission
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`including under 5 U.S.C. Appendix 3; and (vi) U.S. government employees and contract
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`personnel, solely for cybersecurity purposes.
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`4.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) and
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`•. (iii) 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: (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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`The letter shall also include the following acknowledgement:
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`2
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`I, the undersigned, on behalf of __ , acknowledge that information submitted
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`for purposes of this Investigation may be disclosed to and used:
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`(i)by the Commission, its employees and Offices, and contract personnel (a) for
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`developing or maintaining the records of this or a related proceeding, or (b) in
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`internal investigations, audits, reviews, and evaluations relating to the programs,
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`personnel, and operations of the Commission including under 5 U.S.C. Appendix
`3; or
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`See Commission Administrative Order 16-01 (Nov. 7, 2015).
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`2
`See id.
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`Page 3 of 26
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`(ii)by U.S. government employees and contract personnel, solely for
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`cybersecurity purposes. I understand that all contract personnel will sign
`appropriate nondisclosure agreements.
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`5.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,
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`such matter shall only be accessible to, or disseminated to, such persons based upon the
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`conditions pertaining to, and obligations arising from this order, and such persons shall be
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`considered subject to it, unless the Commission or the administrative law judge finds that the
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`information is not confidential business information as defined in paragraph 1 hereof.
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`6.(a) 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
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`any confidential business information submitted in accordance with paragraph 2 above is
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`included in an authorize_d transcript of a deposition or exhibits thereto, arrangements shall be
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`and portions to bind such confidential made with the court reporter taking the deposition
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`separately label them "[supplier's name], CONFIDENTIAL BUSINESS INFORMATION,
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`SUBJECT TO PROTECTIVE ORDER." Before a court reporter receives any such information,
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`to be bound by the terms he or she shall have first read this order and shall have agreed in writing
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`thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto.
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`of such confidential to the supplier shall be provided Copies of each such signed agreement
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`business information and the Secretary of the Commission.
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`Page 4 of 26
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`(b)Submitters are strongly encouraged to encrypt nonpublic documents that are
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`electronically transmitted to the Commission to protect your sensitive information from
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`unauthorized disclosure. The USITC secure drop-box system and the El,ectronic Document
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`Information System (EDIS) use Federal Information Processing Standards (FIPS) 140-2
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`cryptographic algorithms to encrypt data in transit. Submitting your nonpublic documents by a
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`means that does not use these encryption algorithms (such as by email) may subject your firm's
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`nonpublic information to unauthorized disclosure during transmission. If you choose a non­
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`encrypted method of electronic transmission, the Commission warns you that the risk of such
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`3
`possible unauthorized disclosure is assumed by you and not by the Commission.
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`7.The restrictions upon, and obligations accruing to, persons who become subject to this
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`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
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`of the receiving party.
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`8.The Commission, the administrative law judge, and the Commission investigative
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`attorney acknowledge that any document or 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
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`U.S:C. § 552(b )( 4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the
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`Commission or its Freedom oflnformation Act Officer, or the administrative law judge.
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`9.Unless a designation of confidentiality has been withdrawn, or a determination has
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`been 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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`3 See id.
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`Commission investigative attorney shall 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
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`designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation: (a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access of such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom oflnformation Act, as amended (5 U.S.C. § 552) and
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`(ii)any proposal to declassify or make public any such confidential business information; and (b)
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`providing
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`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 an 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
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`shall 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. 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
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`designation of such a status to the administrative law judge who will rule upon the matter. 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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`11.No less than 10 days (or any other period of time designated by the administrative
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`law judge) prior to the initial disclosure to a proposed expert of any confidential information
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`submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
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`writing the name of such proposed expert and his or her educational and employment history to
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`the supplier. If the supplier objects to the disclosure of such confidential business information to
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`such proposed expert as inconsistent with the language or intent of this order or on other
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`grounds, it shall notify the recipient in writing of its objection and the grounds therefor prior to
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`the initial disclosure. If the dispute is not resolved on an informal basis within ten days of
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`receipt of such notice of objections, the supplier shall submit immediately each objection to the
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`administrative law judge for a ruling. If the investigation is before the Commission the matter
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`shall be submitted to the Commission for resolution. The submission of such confidential
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`·business information to such proposed expert shall be withheld pending the ruling of the
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`Commission or the administrative law judge. The terms of this paragraph shall be inapplicable
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`to experts within the Commission or to experts from other governmental agencies who are
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`consulted with or used by the Commission.
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`12.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
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`disclosure to the attention of the supplier and the administrative law judge and, without prejudice
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`to other rtghts and remedies of the supplier, make every effort to prevent further disclosure by it
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`or by the 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
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`by the Commission, to any ruling made judicial action with respect to pursue other appropriate
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`its Freedom of Information Act Officer, or the administrative law judge concerning the issue of
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`the status of confidential business information.
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`14.Upon final termination of this investigation, each party that is subject to this order
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`shall assemble and return to the supplier all items containing confidential business information
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`submitted in accordance with paragraph 2 above, including all copies of such matter which may
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`have been made. Alternatively, the parties subject to this order may, with the written consent of
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`the supplier; destroy all items containing confidential business information and certify to the
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`supplier ( or his counsel) that such destruction has taken place. This paragraph shall not apply to
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`the Commission, including its investigative attorney, and the Administrative Law Judge, which
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`shall retain such material pursuant to statutory requirements and for other recordkeeping
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`purposes, but may destroy such material (including electronic media containing such
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`information) in its possession which it regards as surplusage.
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`Notwithstanding the above paragraph, confidential business information may be
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`transmitted to a district court pursuant to Commission Rule 210.5( c ).
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`within accordance 15.If any confidential business information which is supplied
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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.Confidential Source Code shall mean human-readable programming language text
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`that defines software, firmware, microcode, or electronic hardware descriptions. Confidential
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`Source Code includes, without limitation, computer code; scripts; assembly; object code; source
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`code listings and descriptions of source code; object code listings and descriptions of object code
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`(i.e., computer instructions and data definitions expressed in a form suitable for input to an
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`assembler, compiler, or other translator); Hardware Description Language (HDL); Register
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`Transfer Level (RTL) files that describe the hardware design of any ASIC or other chip;
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`similarly sensitive implementation details; files containing text written in "C," "C++,"
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`assembler, VHDL, Verilog, and digital signal processor (DSP) programming languages; Matlab
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`code or other signal processing simulation code; "include files"; "make" files; link files; diffs
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`and other human-readable text files used in the generation and/or building of software executed
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`on a microprocessor, microcontroller, or DSP (e.g., programmer notes, annotations, and other
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`comments of any type related-thereto and accompanying the code). For avoidance of doubt, this
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`includes source files, make files, intermediate output files, executable files, header files, resource
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`files, library files, module definition files, map files, object files, linker files, browse info files,
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`and debug files. Confidential Source Code is a form of, and shall be afforded all of the same
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`protections as, confidential business information as defined in paragraph 1 hereto unless
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`otherwise provided in paragraphs 17-28. The restrictions herein on Confidential Source Code do
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`not apply to publicly-available source code available as open source code. The parties to this
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`Investigation and any third parties producing
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`or voluntarily C:onfidential Source Code, either
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`pursuant to a subpoena, are entitled to the protections provided herein.
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`18.To the extent that a party wishes to obtain access to Confidential Source Code, the
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`following procedures may apply at the option of the producing party. Nothing in this Order shall
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`Source Code is or admission by a party that Confidential be construed as a representation
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`properly
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`discoverable in this action, or to obligate any party to produce Confidential Source
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`Code. To the extent production of Confidential Source Code becomes necessary to the
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`prosecution or defense of the case, the producing party may designate Confidential Source Code
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`as "[PRODUCING PARTY's NAME] CONFIDENTIAL SOURCE CODE, OUTSIDE
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`ATTORNEYS' EYES ONLY, SUBJECT TO PROTECTIVE ORDER."
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`19.Unless otherwise ordered by the Administrative Law Judge, Confidential Source
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`Code designated as "[PRODUCING PARTY'S NAME] CONFIDENTIAL SOURCE CODE,
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`OUTSIDE ATTORNEYS' EYES ONLY, SUBJECT TO PROTECTIVE ORDER" shall be
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`subject to the provisions set forth in paragraphs 17 to 28, and may be disclosed, subject to
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`paragraphs 17 to 28, solely to:
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`(a)outside counsel representing the parties to this Investigation, as defined in paragraph
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`3(i), including necessary secretarial and support personnel regularly employed by and assisting
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`such counsel, except that, unless otherwise agreed, no outside counsel who is involved in
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`competitive decision-making of a party or a third party ( excluding said counsel's law firm), as
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`defined by In re Deutsche Bank Trust Co. Americas, 605 F.3d 1373, 1378 (Fed. Cir. 2010), shall
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`have access to Confidential Source Code designated as "[PRODUCING PARTY'S NAME]
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`CONFIDENTIAL SOURCE CODE, OUTSIDE ATTORNEYS' EYES ONLY, SUBJECT TO
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`PROTECTIVE ORDER";
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`(b)personnel at interpretation/translation service establishments retained by, but not
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`regularly employed by, outside counsel as necessarily incident to the litigation of this
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`Investigation, including without limitation oral interpreters and document translators;
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`( c)any outside expert or consultant retained by a party for the purposes of this
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`Investigation and who satisfies paragraph 3(iii) of this Order, provided that disclosure is only to
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`the extent necessary to perform such work; and provided that: (i) such expert or consultant has
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`agreed to be bound by the provisions of this Order as required by paragraphs 3, 4, and 11 of this
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`Order, (ii) such expert or consultant is not involved in competitive decision-making, as defined
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`by In re Deutsche Bank, 605 F .3d at 13 78, on behalf of a party or a competitor of a party in the
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`technical subject matter of the confidential business information produced, and (iii) no
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`unresolved objections to such disclosure exist after proper notice has been given to all parties as
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`set forth in paragraphs 3, 4, and 11 of this Order;
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`( d)court reporters, stenographers, and videographers retained to record testimony taken
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`in this Investigation, provided that such court reporters, stenographers, and videographers have
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`agreed to be bound by the provisions of this Order;
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`(e)the Commission, the Administrative Law Judge, the Commission Investigative Staff,
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`and personnel of any governmental agency as authorized by the Commission;
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`(f)the Commission, its employees, and contract personnel who ·are acting in the capacity
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`of Commission employees, for developing or maintaining the records of this Investigation or
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`related proceedings for which this information is submitted, or in internal audits and
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`investigations relating\\o the programs and operations of the Commission pursuant to 5 U.S.C.
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`Appendix 3;
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`(g)any non-parties who are witnesses during a deposition, court hearing, or trial where
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`specific documentary or testimonial evidence establishes at that time that the Confidential Source
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`Code or portion of the Confidential Source Code was authored or received by the witness
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`without any violation of any confidentiality obligation owed to any party in this Investigation;
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`(h)any mediator who is assigned to hear this matter, and his or her staff, subject to their
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`agreement to maintain confidentiality to the same degree as required by this Order;
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`(i)any other person with the prior written consent of the producing party; and
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`G)a producing party's own employees, 30(b)(6) witnesses, or expert witnesses.
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`20.The following provisions apply to the production of Confidential Source Code that is
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`designated "[PRODUCING PARTY'S NAME]CONFIDENTIAL SOURCE CODE, OUTSIDE
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`ATTORNEYS' EYES ONLY, SUBJECT TO PROTECTIVE ORDER," unless otherwise agreed
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`by the producing party:
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`(a)All Confidential Source Code shall be made available by the producing party to the
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`. receiving party in a secure room on at least one secured, reasonably current stand-alone
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`computer in Washington, D.C., running a reasonably current version of the Microsoft Windows
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`. operating system, MA COS, or Unix and with reasonably sufficient RAM and other resources
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`and without Internet access or network access to other computers, and all access ports on which
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`have been disabled except one port for the printer referred to in paragraph 20(h) hereof, as
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`necessary and appropriate to prevent and protect against any unauthorized copying, transmission,
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`removal, or other transfer of any Confidential Source Code outside or away from the computer
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`on which the Confidential Source Code is provided for inspection (hereinafter "Confidential
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`Source Code Computer"). If it should be necessary, the Confidential Source Code Computer may
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`be configured by the producing party to run other mutually agreed upon operating systems. No
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`more than a total of 15 individuals identified by the receiving party shall have access to the
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`secure room in which the producing party produced its Confidential Source Code. If additional
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`individuals from the receiving party-beyond 15-require access to the secure room, for the
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`review of Confidential Source Code belonging to the producing party, access will be granted
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`upon a reasonable and justifiable request.
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`(b)The producing party shall install tools that are sufficient for viewing and searching
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`the code produced, on the platform produced, if such tools exist and are presently used in the
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`ordinary course of the producing party's business. The receiving party's outside counsel,
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`experts, and/or consultants may request that commercially available software tools for viewing
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`and searching Confidential Source Code be installed on the secured computer, provided,
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`however, that such other software tools are reasonably necessary for the receiving party to
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`perform its review of the Confidential Source Code consistent with all of the protections herein.
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`Specific tools may include: SciTools Understand, Notepad++, Beyond Compare, XCode tools,
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`Visual Slick Edit, Source-Navigator, PowerGrep, ExamDiffPro, Matlab, Simulink, or Sigasi, or
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`other similar programs. Additional tools for review of the Confidential Source Code may be
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`used by the receiving party provided the producing party agrees and good cause is shown. The
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`receiving party must provide the producing party with the CD or DVD containing such licensed
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`software tool(s) at least two (2) days in advance of the date upon which the receiving party
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`wishes to have the additional software tools available for use on the Confidential Source Code
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`Computer.
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`(c)The producing party shall make the Confidential Source Code available electronically
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`and in native form or the form that it is kept in the normal course of business in a secure room at
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`the offices of the producing party's outside counsel or any other location mutually agreed by the
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`parties.
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`( d)In order to verify that its Confidential Source Code has not later been altered, the
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`producing party may benchmark the materials to confirm that the materials have not been altered
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`before and after they are ·provided but shall not install any keystroke or other monitoring
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`software on the Confidential Source Code Computer.
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`(e)The Confidential Source Code Computer shall be made available from 9:00 a.m. to
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`6:00 p.m. local time, Monday through Friday (excluding holidays), and other days and/or times,
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`13
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`including weekends, upon reasonable request until the conclusion of the hearing in this
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`Investigation. The receiving party shall provide at least two (2) business days' notice to access
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`the source code. Beginning one week prior to the beginning of trial and continuing through the
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`end of trial, if requested in advance, access to Confidential Source Code shall be provided, under
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`the same conditions and with the same limitations and restrictions as provided in Paragraphs 1 7-
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`28 of this Order, in Washington, D.C.
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`(f)With respect to any outside expert or consultant retained by a party for the purposes of
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`this Investigation and who satisfies paragraph 3(iii) of this Order, prior to the first inspection of
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`any Confidential Source Code, or disclosure of print-outs of Confidential Source Code provided
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`in accordance with paragraph 20(h), the requesting party shall provide ten (10) days' notice that
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`such outside expert or consultant intends to inspect or review Confidential Source Code. If an
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`objection
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`to an outside expert or consultant is made by the producing party, it will be the burden
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`of the producing party to prove that the individual should not be authorized to inspect the
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`producing party's Confidential Source Code.
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`(g)Proper identification of all authorized persons shall be provided prior to any access to
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`the secure room or the Confidential Source Code Computer. Proper identification requires
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`showing, at a minimum, a photo identification card sanctioned by the government of any State of
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`the United States, by the government of the United States, or by the nation state of the authorized
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`person's current citizenship. Access to the secure room or the Confidential Source Code
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`Computer may be denied, at the discretion of the producing party, to any individual who fails to
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`provide proper identification.
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`(h)The Confidential Source Code Computer shall be equipped with a high-speed laser
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`printer (with tommercially reasonable printing speeds) to print copies of the Confidential Source
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`14
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`Page 14 of 26
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`Code on watermarked pre-Bates numbered paper, which shall be provided by the producing
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`party. The receiving party may print limited portions of the Confidential Source Code only when
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`reasonably necessary to facilitate the receiving party's preparation of filings with the
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`Administrative Law Judge or Commission, expert reports, and hearing exhibits, and shall print
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`only such portions as are relevant to the claims and defenses in the case and are reasonably
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`necessary for such purpose. The receiving party shall not print Confidential Source Code in
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`order to review blocks of Confidential Source Code elsewhere in the first instance, i.e., as an
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`alternative to reviewing that Confidential Source Code electronically on the Confidential Source
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`Code Computer, as the.parties acknowledge and agree that the purpose of the protections herein
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`would be frustrated by printing portions of code for review and analysis elsewhere. If the
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`producing party objects that the printed portions are excessive and/or not done for a permitted
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`purpose, the producing party shall make such objection known to the receiving party within five
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`(5)days. Printed portions which exceed 50