UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
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`CERTAIN ELECTRONIC DEVICES WITH
`MULTI-TOUCH ENABLED TOUCHPADS AND
`TOUCHSCREENS
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`In the Matter of
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`CERTAIN WIRELESS COMMUNICATION
`DEVICES, PORTABLE MUSIC AND DATA
`PROCESSING DEVICES, COMPUTERS AND
`COMPONENTS THEREOF
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`In the Matter of
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`Inv. No. 337-TA-714
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`Inv. No. 337-TA-745
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`CERTAIN MOBILE DEVICES AND RELATED
`SOFTWARE
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`Inv. No. 337-TA-750
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`In the Matter of
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`CERTAIN PORTABLE ELECTRONIC
`DEVICES AND RELATED SOFTWARE
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`Inv. No. 337-TA-797
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`RESPONSE OF THE OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`TO APPLE’S MOTION TO PRODUCE CONFIDENTIAL INFORMATION
`IN DISTRICT COURT PROCEEDINGS
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`The Office of Unfair Import Investigations (“OUII”) respectfully submits this response to
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`the Motion Pursuant to Commission Protective Orders for Authorization to Produce Confidential
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`Information in District Court Proceedings (“Motion”), filed by Apple, Inc. (“Apple”) on April
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`26, 2012. Apple alleges that in a U.S. District Court proceeding between Apple and Samsung
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`Electronics Co., Ltd. (“Samsung”), Apple has been ordered to produce various documents
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`designated as “confidential business information” in four Commission Investigations: Inv. No.
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`337-TA-714; Inv. No. 337-TA-745; Inv. No. 337-TA-750; and Inv. No. 337-TA- 797.1 Apple
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`alleges that it has it has attempted to, but has been unable to, obtain consent from the parties to
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`those investigations to produce the requested documents. Apple therefore seeks permission from
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`the Commission to produce the documents. OUII recognizes that Apple is “between a rock and a
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`hard place” with respect to this issue. Nevertheless, Section 337, by its terms, appears to
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`prohibit disclosing other entities’ confidential information (i.e., confidential information of
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`entities other than Apple and Samsung) in the manner requested by Apple. OUII therefore
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`opposes the motion.
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`More specifically, Section 337 states that: “Information submitted to the Commission or
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`exchanged among the parties in connection with proceedings under this section which is
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`properly designated as confidential pursuant to Commission rules may not be disclosed (except
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`under a protective order issued under regulations of the Commission which authorizes limited
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`disclosure of such information) to any person (other than a person described in paragraph (2))
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`without the consent of the person submitting it.” 19 U.S.C. § 1337(n)(1). The exceptions in
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`Section 337(n)(2) do not apply to this situation (because the disclosure would not be to an
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`employee of the Commission, an employee of the U.S. government, or an employee of Customs
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`and Border Protection). 19 U.S.C. § 1337(n)(2). Similarly, this situation does not fall into the
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`exception which authorizes the Commission to transmit the record of an investigation to U.S.
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`District Court in certain circumstances. 28 U.S.C. § 1659. OUII is therefore of the view that
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`disclosure of the documents by Apple is not permitted by Section 337.
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`Inv. No. 337-TA-745 has been designated for non-participation by OUII under the the
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`Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 (issued Jan. 2011).
`OUII is a party to the other three investigations.
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`Turning to the Protective Orders in place in the four investigations at issue, OUII is of the
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`view that these Orders similarly do not authorize the relief sought by Apple. Each of the
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`Protective Orders states that “[i] the absence of written permission from the supplier or an order
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`by the 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 those specifically listed in the Order (i.e., outside counsel
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`and experts, Commission employees, etc.). Inv. No. 337-TA-714, Order No. 2, ¶ 3 (April 26,
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`2010); Inv. No. 337-TA-745, Order No. 1, ¶ 3 (Nov. 3, 2010); Inv. No. 337-TA-750, Order No.
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`1, ¶ 3 (Nov. 30, 2010); Inv. No. 337-TA-797, Order No. 1, ¶ 3 (Aug. 12, 2011). Moreover, two
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`of the Protective Orders specifically state that “[i]nformation obtained pursuant to the
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`Commission’s protective order, however, may be produced to the district court under the district
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`court protective order only with the consent of the suppliers of that information.” Inv. No. 337-
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`TA-714, Order No. 2, ¶ 6; Inv. No. 337-TA-745, Order No. 1, ¶ 6. Here, Apple has apparently
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`been unable obtain the permission from all of the involved parties. OUII is therefore of the view
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`that the Protective Orders in the four investigations at issue do not allow disclosure of
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`confidential business information from those investigations in the District Court proceeding. Cf.
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`Viscofan S.A. v. United States Int’l Trade Comm’n, 787 F.2d 544, 547-48(Fed. Cir. 1986)
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`(describing Commission’s refusal to declassify confidential information for use in a foreign court
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`proceeding, noting the Commission’s statement that “‘[e]vidence in a section 337 is gathered
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`solely for the purposes of that proceeding.’”).
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`OUII further notes that the present situation is clearly distinguishable from the situation
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`at issue in In re International Trade Commission, 444 Fed. Appx. 480 (Fed. Cir. Aug. 2, 2002),
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`wherein the Federal Circuit authorized the use of confidential information in a parallel district
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`court proceeding. In that case, the parties were the same in both proceedings, and the decision
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`“did nothing more than allow a few attorneys, who are bound by protective orders, to review
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`documents that the vast majority of attorneys involved in the case already may review.” Id. at
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`482. Here, however, the District Court action does not involve the same parties or (apparently)
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`the same attorneys as the Commission investigations, and thus it is not simply a matter of
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`allowing a few additional attorneys to view the information. Moreover, the District Court
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`protective order, even assuming that the information is designated as “highly confidential –
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`attorneys’ eyes only,” does not offer the same protections as the Commission Protective Order
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`(for example, at least jurors, mediators, and other any person designated by the court, would be
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`able to see the confidential information). (Motion, Ex. 4, ¶ 9). Simply put, the Commission has
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`always viewed its ability to gather and protect confidential business information as crucial to its
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`ability to perform its mission. See generally Akzo N.V. v. United States Int’l Trade Comm’n, 808
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`F.2d 1471, 1482-85 (Fed. Cir. 1986). When it was conducting the four investigations at issue in
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`this Motion, the Commission represented to the entities that submitted confidential business
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`information that, unless they gave permission, it would only be used for purposes of that specific
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`investigation. Information has been submitted in reliance on that guarantee, and the Commission
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`should not now allow that information to be used for other purposes.
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`Finally, OUII is not unsympathetic to Apple’s problem – the District Court has
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`apparently directed Apple to produce information that the Commission (through the Protective
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`Orders) has directed it not to produce. Nevertheless, this same information may be available to
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`the District Court through alternative methods (e.g., by subpoena directly from the entities that
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`originally supplied the information (who are free to disclose their own information regardless of
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`the Protective Orders)). In addition, OUII notes that three of the four investigations at issue are
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`still pending,2 and it would be possible for the Commission to order the parties in those
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`investigations to set forth any objections they may have to allowing their confidential
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`information to be used in the District Court proceeding (although there would still potentially be
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`questions about third party CBI). At base, however, OUII submits that the Commission should
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`not, without more, allow Apple to use confidential information gathered solely for purposes of a
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`Commission investigation in a U.S. District Court case involving different parties.
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`For all of the above reasons, Apple’s motion should be denied.
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`Respectfully submitted,
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`/s/ David O. Lloyd
`___________________________________
`Lynn I. Levine, Director
`David O. Lloyd, Supervisory Attorney
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`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, S.W., Suite 401
`Washington, D.C. 20436
`(202) 205-2576
`(202) 205-2158 (Fax)
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`May 7, 2012
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`Inv. No. 337-TA-714 has been terminated. Under the terms of the protective order, all
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`confidential information from that investigation should have been returned or destroyed. See
`337-TA-714, Order No. 2, ¶ 18.
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`Investigation No. 337-TA-797
`Investigation No. 337-TA-714
`Investigation No. 337-TA-750
`Investigation No. 337-TA-745
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`BY E-MAIL & FIRST-CLASS MAIL
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`BY E-MAIL & FIRST-CLASS MAIL
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`BY E-MAIL & FIRST-CLASS MAIL
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on May 7, 2012, he caused the foregoing RESPONSE OF THE
`OFFICE OF UNFAIR IMPORT INVESTIGATIONS TO APPLE’S MOTION TO
`PRODUCE CONFIENTIAL INFORMATION IN DISTRICT COURT PROCEEDINGS to
`be filed with the Secretary (in electronic format), served by hand upon Chief Administrative Law
`Judge Charles E. Bullock and Administrative Law Judge E. James Gildea (2 copies each), and
`served upon the parties (1 copy each) in the manner indicated below:
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`For Apple, Inc.:
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`G. Brian Busey, Esq.
`Morrison & Foerster LLP
`2000 Pennsylvania Ave., NW, Suite 6000
`Washington, D.C. 20006
`(202) 887-1500
`(202) 887-0763 (Fax)
`GBusey@mofo.com
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`Sonal N. Mehta
`Weil Gotshal & Manges
`201 Redwood Shores Pkwy
`Redwood Shores, CA 94065
`(650) 802-3118
`apple.itc714.wgm.service@weil.com
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`Mark G. Davis, Esq.
`Weil, Gotschal & Manges
`1300 Eye Street, NW
`Washington, D.C. 20005
`Weil_TLG.Apple.Moto.745.external@weil.com
`Weil_TLG.Apple.Moto.750.external@weil.com
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`BY E-MAIL & FIRST-CLASS MAIL
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`Mark D. Fowler, Esq.
`DLA Piper LLP (US)
`2000 University Avenue
`East Palo Alto, CA 94303
`797-DLA-Apple-Team@dlapiper.com
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`BY E-MAIL & FIRST-CLASS MAIL
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`BY E-MAIL & FIRST-CLASS MAIL
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`BY E-MAIL & FIRST-CLASS MAIL
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`For Elan Microelectronics Corporation:
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`Sean DeBruine, Esq.
`Alston & Bird LLP
`275 Middlefield Road
`Suite 150
`Menlo Park, CA 94025-4008
`(650) 838-2000
`Elan.Apple.Team@alston.com
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`For Motorola Mobility, Inc.:
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`Charles F. Schill, Esq.
`Steptoe & Johnson LLP
`1330 Connecticut Avenue, NW
`Washington, DC 20036
`S&JMotorola745@steptoe.com
`Motorola750@steptoe.com
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`For HTC Corporation, HTC America, Inc. and Exedea, Inc.:
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`Amy H. Candido, Esq.
`Quinn Emanuel Urquhart & Sullivan, LLP
`50 California Street, 22nd Floor
`San Francisco, CA 94111
`HTC-ITC-797@quinnemanuel.com
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` /s/ David O. Lloyd
`David O. Lloyd
`Supervisory Attorney
`OFFICE OF UNFAIR IMPORT INVESTIGATIONS
`U.S. International Trade Commission
`500 E Street, SW, Suite 401
`Washington, DC 20436
`(202) 205-2576
`(202) 205-2158 (Facsimile)