UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`In the Matter of
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`CERTAIN IP CAMERA SYSTEMS
`INCLUDING VIDEO DOORBELLS
`AND COMPONENTS THEREOF
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` Inv. No. 337-TA-1242
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`ORDER NO. 1:
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`PROTECTIVE ORDER
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`(January 26, 2021)
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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.
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`Confidential business information is information which concerns or relates to the
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`trade secrets, processes, operations, style of work, or apparatus, or to the production, sales,
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`shipments, purchases, transfers, identification of customers, inventories, amount or source of any
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`income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other
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`organization, or other information of commercial value, the disclosure of which is likely to have
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`the effect of either (i) impairing 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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`position of the person, firm, partnership, corporation, or other organization from which the
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`information was obtained, unless the Commission is required by law to disclose such
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`information. The term “confidential business information” includes “proprietary information”
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`within the meaning of section 777(b) of the Tariff Act of 1930 (19 U.S.C. § 1677f(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
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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: “CONFIDENTIAL BUSINESS
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`INFORMATION SUBJECT TO PROTECTIVE ORDER” or a comparable notice. Such
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`information, whether submitted in writing or in oral testimony, shall be treated in accordance
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`with the terms of this protective order.
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`(b).
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`The Administrative Law Judge or the Commission may determine that
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`information alleged to be confidential is not confidential, or that its disclosure is necessary for
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`the proper disposition of the proceeding, before, during or after the close of a hearing herein. If
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`such a determination is made by the Administrative Law Judge or the Commission, opportunity
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`shall be provided to the supplier of such information to argue its confidentiality prior to the time
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`of such 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 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: (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-governmental 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 that are the subject of this
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`investigation); (iv) the Commission, the Administrative Law Judge, the Commission staff, and
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`personnel of any governmental agency as authorized by the Commission; (v) the Commission, its
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`employees, and contract personnel who are acting in the capacity of Commission employees, for
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`developing or maintaining the records of this investigation or related proceedings for which this
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`information is submitted, or in internal audits and investigations relating to the programs and
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`operations of the Commission pursuant to 5 U.S.C. Appendix 3; and (vi) by U.S. government
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`employees and contract personnel, solely for cybersecurity purposes.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
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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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`(iii) to utilize such confidential business information solely for purposes of this investigation;
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`and (iv) including the following acknowledgment:
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`I, the undersigned, acknowledge that information submitted in response to this
`request for information and throughout this investigation or other proceeding may
`be disclosed to and used:
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`(i) by the Commission, its employees and Offices, and contract personnel (a) for
`developing or maintaining the records of this or a related proceeding, or (b) in
`internal investigations, audits, reviews, and evaluations relating to the programs,
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`1 See Commission Administrative Order 16-01 (Nov. 7, 2015).
`2 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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`personnel, and operations of the Commission including under 5 U.S.C. Appendix
`3; or
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`(ii) by U.S. government employees and contract personnel, solely for
`cybersecurity purposes. I understand that all contract personnel will sign
`appropriate nondisclosure agreements.
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`5.
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`If the Commission or the Administrative Law Judge orders, or if the supplier and
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`all 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
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`of this investigation shall be submitted under seal pursuant to paragraph 2 above. Any portion of
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`a transcript in connection with this investigation containing any confidential business
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`information submitted pursuant to paragraph 2 above shall be bound separately and filed under
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`seal. When any confidential business information submitted in accordance with paragraph 2
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`above is included in an authorized transcript of a deposition or exhibits thereto, arrangements
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`shall be made with the court reporter taking the deposition to bind such confidential portions and
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`separately label them “CONFIDENTIAL BUSINESS INFORMATION SUBJECT 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.
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`Copies of each such signed agreement shall be provided to the supplier of such confidential
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`business information and the Secretary of the Commission.
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`(b)
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`Suppliers of confidential business information are strongly encouraged to encrypt
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`nonpublic documents that are electronically transmitted to the Commission to protect your
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`sensitive information from unauthorized disclosure. The USITC secure drop-box system and the
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`Electronic Document Information System (EDIS) use Federal Information Processing Standards
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`(FIPS) 140-2 cryptographic algorithms to encrypt data in transit. Submitting your nonpublic
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`documents by a means that does not use these encryption algorithms (such as by email) may
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`subject your firm’s nonpublic information to unauthorized disclosure during transmission. If you
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`choose a non-encrypted method of electronic transmission, the Commission warns you that the
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`risk of such possible unauthorized disclosure is assumed by you and not by 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
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`of the receiving party.
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`8.
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`The Commission, the Administrative Law Judge, and the Commission
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`investigative attorney acknowledge that any document or information submitted as confidential
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`business information pursuant to paragraph 2 above is to be treated as such within the meaning
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`of 5 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 of Information Act Officer, or the Administrative Law Judge. When
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`such information is made part of a pleading or is offered into the evidentiary record, the data set
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`forth in 19 C.F.R. § 201.6 must be provided except during the time that the proceeding is
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`pending before the Administrative Law Judge. During that time, the party offering the
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`confidential business information must, upon request, provide a statement as to the claimed basis
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`for its confidentiality.
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`9.
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`Unless a designation of confidentiality has been withdrawn, or a determination
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`has been made by the Commission or the Administrative Law Judge that information designated
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`as confidential, is no longer confidential, the Commission, the Administrative Law Judge, and
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`the 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 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 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
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`(ii) any proposal to redesignate or make public any such confidential business information; and
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`(b) providing the supplier at least seven days after receipt of such inquiry or request within which
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`to take action before the Commission, its Freedom of Information Act Officer, or the
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`Administrative Law Judge, or otherwise to preserve the confidentiality of and to protect its rights
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`in, and to, such confidential business information.
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`10.
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`If while an investigation is before the Administrative Law Judge, a party to this
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`order who is to be a recipient of any business information designated as confidential and
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`submitted in accordance with paragraph 2 disagrees with respect to such a designation, in full or
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`in part, it shall notify the supplier in writing, and they will thereupon confer as to the status of the
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`subject 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
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`the subject information submitted as confidential business information within ten days from the
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`date 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.
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`No less than 10 days (or any other period of time designated by the
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`Administrative Law Judge) prior to the initial disclosure to a proposed expert of any confidential
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`information submitted in accordance with paragraph 2, the party proposing to use such expert
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`shall submit in writing the name of such proposed expert and his or her educational and detailed
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`employment history to the supplier. If the supplier objects to the disclosure of such confidential
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`business information to such proposed expert as inconsistent with the language or intent of this
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`order or on other grounds, it shall notify the recipient in writing of its objection and the grounds
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`therefore prior to the initial disclosure. If the dispute is not resolved on an informal basis within
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`ten days of receipt of such notice of objections, the supplier shall submit immediately each
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`objection to the Administrative Law Judge for a ruling by filing a motion for a protective order
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`pursuant to Commission Rule 210.34. 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.
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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
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`disclosure to the attention of the supplier and the Administrative Law Judge and, without
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`prejudice to other rights and remedies of the supplier, make every effort to prevent further
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`disclosure by it or by the person who was the recipient of such information.
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`13.
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`Nothing in this order shall abridge the right of any person to seek judicial review
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`or to pursue other appropriate judicial action with respect to any ruling made by the Commission,
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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.
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`Upon final termination of this investigation, each recipient of confidential
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`business information that is subject to this order shall assemble and return to the supplier all
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`items containing such information submitted in accordance with paragraph 2 above, including all
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`copies of such matter which may have been made. Alternatively, the parties subject to this order
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`may, with the written consent of the supplier, destroy all items containing confidential business
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`information and certify to the supplier (or his counsel) that such destruction has taken place.
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`This paragraph shall not apply to the Commission, including its investigative attorney, and the
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`Administrative Law Judge, which shall retain such material pursuant to statutory requirements
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`and for other recordkeeping purposes, but may destroy such material (including electronic media
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`containing such 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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`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.
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`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.
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`The Secretary shall serve a copy of this order upon all represented parties by
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`electronic service, and Complainants shall complete service on unrepresented parties, pursuant to
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`Ground Rule 1.5.
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`SO ORDERED.
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`_______________________________
`Dee Lord
`Administrative Law Judge
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`Attachment A
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`NONDISCLOSURE AGREEMENT FOR REPORTER/STENOGRAPHER/TRANSLATOR
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`I, , do solemnly swear or affirm that I will not divulge any
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`information communicated to me in any confidential portion of the investigation or hearing in
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`the matter of Certain IP Camera Systems Including Video Doorbells and Components Thereof,
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`Investigation No. 337-TA-1242, except as permitted in the protective order issued in this case. I
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`will not directly or indirectly use or allow the use of such information for any purpose other than
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`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
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`person reveal the nature or content of any information communicated during any confidential
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`portion of 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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`CERTAIN IP CAMERA SYSTEMS INCLUDING VIDEO
`DOORBELLS AND COMPONENTS THEREOF
`
`Inv. No. 337-TA-1242
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`PUBLIC CERTIFICATE OF SERVICE
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`I, Lisa R. Barton, hereby certify that the attached ORDER has been served upon the
`following parties as indicated, on January 26, 2021.
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`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
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`On Behalf of Complainants SkyBell Technologies, Inc., SB IP
`Holdings, LLC, and Eyetalk365, LLC:
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`Rett Snotherly, Esq.
`LEVI & SNOTHERLY, PLLC
`1101 Connecticut Avenue, NW, Suite 450
`Washington, DC 20036
`Email: rsnotherly@levisnotherly.com
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`Respondents:
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`Vivint Smart Home, Inc.
`4931 North 300 West
`Provo, UT 84604
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`SimpliSafe, Inc.
`294 Washington Street, 9th Floor
`Boston, MA 02108
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`Arlo Technologies Inc.
`3030 Orchard Parkway
`San Jose, CA 95134
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