§ 1.731   Confidentiality of information produced or exchanged.

   (a) Any materials generated in the course of a formal complaint proceeding
   may be designated as proprietary by either party to the proceeding or a
   third party if the party believes in good faith that the materials fall
   within an exemption to disclosure contained in the Freedom of Information
   Act  (FOIA),  5  U.S.C.  552(b)(1)  through  (9).  Any party asserting
   confidentiality for such materials must:

   (1) Clearly mark each page, or portion thereof, for which a proprietary
   designation is claimed. If a proprietary designation is challenged, the
   party claiming confidentiality shall have the burden of demonstrating, by a
   preponderance of the evidence, that the materials designated as proprietary
   fall under the standards for nondisclosure enunciated in the FOIA.

   (2) File with the Commission, using the Commission's Electronic Comment
   Filing  System,  a  public  version  of the materials that redacts any
   proprietary information and clearly marks each page of the redacted public
   version with a header stating “Public Version.” The redacted document shall
   be machine-readable whenever technically possible. Where the document to be
   filed electronically contains metadata that is confidential or protected
   from  disclosure  by  a  legal  privilege (including, for example, the
   attorney-client privilege), the filer may remove such metadata from the
   document before filing it electronically.

   (3) File with the Secretary's Office an unredacted hard copy version of the
   materials that contains the proprietary information and clearly marks each
   page  of  the  unredacted  confidential  version with a header stating
   “Confidential Version.” The unredacted version must be filed on the same day
   as the redacted version.

   (4) Serve one hard copy of the filed unredacted materials and one hard copy
   of the filed redacted materials on the attorney of record for each party to
   the proceeding, or, where a party is not represented by an attorney, each
   party to the proceeding either by hand delivery, overnight delivery, or
   email,  together  with  a proof of such service in accordance with the
   requirements of § § 1.47(g) and 1.735(f)(1) through (3);

   (b) Except as provided in paragraph (c) of this section, materials marked as
   proprietary may be disclosed solely to the following persons, only for use
   in prosecuting or defending a party to the complaint action, and only to the
   extent necessary to assist in the prosecution or defense of the case:

   (1) Counsel of record representing the parties in the complaint action and
   any support personnel employed by such attorneys;

   (2)  Officers  or employees of the opposing party who are named by the
   opposing party as being directly involved in the prosecution or defense of
   the case;

   (3) Consultants or expert witnesses retained by the parties;

   (4) The Commission and its staff; and

   (5) Court reporters and stenographers in accordance with the terms and
   conditions of this section.

   (c) The Commission will entertain, subject to a proper showing under § 0.459
   of this chapter, a party's request to further restrict individuals' access
   to proprietary information. Pursuant to § 0.459 of this chapter, the other
   parties will have an opportunity to respond to such requests. Requests and
   responses to requests may not be submitted by means of the Commission's
   Electronic Comment Filing System but instead must be filed under seal with
   the Office of the Secretary.

   (d) The individuals identified above in paragraph (b)(1) through (3) shall
   not disclose information designated as proprietary to any person who is not
   authorized under this section to receive such information, and shall not use
   the information in any activity or function other than the prosecution or
   defense in the case before the Commission. Each individual who is provided
   access to the information shall sign a notarized statement affirmatively
   stating that the individual has personally reviewed the Commission's rules
   and understands the limitations they impose on the signing party.

   (e) No copies of materials marked proprietary may be made except copies to
   be used by persons designated in paragraphs (b)(1) through (3) and (c) of
   this section. Each party shall maintain a log recording the number of copies
   made of all proprietary material and the persons to whom the copies have
   been provided.

   (f) Upon termination of the formal complaint proceeding, including all
   appeals and petitions, all originals and reproductions of any proprietary
   materials, along with the log recording persons who received copies of such
   materials, shall be provided to the producing party. In addition, upon final
   termination of the proceeding, any notes or other work product derived in
   whole or in part from the proprietary materials of an opposing or third
   party shall be destroyed.

   [ 79 FR 73845 , Dec. 12, 2014]

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