In re Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337-TA-944 (ITC Comm’n Apr. 19, 2017), is a surprisingly rare opinion addressing a common issue: When should the ITC redact a portion of an opinion before it issues it to the public?
Cisco Systems, Inc. filed a § 337 complaint against Arista Networks, Inc. for infringing certain patents. The Commission found that Arista violated § 337 as to some, but not all, of the patents. At Arista’s request, portions of the underlying opinion were redacted. Both parties appealed the decision to the Federal Circuit. As part of the appeal, Cisco filed a motion with the Federal Circuit asking it to declassify portions of the Commission opinion. Both Arista and the ITC opposed the motion. The ITC argued that it should be making declassification decisions in the first instance. The Federal Circuit agreed with the ITC and remanded the declassification question.
Pursuant to Commission Rule 201.6(a)(1), the ITC regularly redacts opinions to protect confidential information, but there is a surprising dearth of case law on the appropriate standard for determining when information is “confidential.” Commission Rule 201.6(a)(1) provides a two-part test for determining whether business information is confidential. First, the information must concern or relate to “information of commercial value.” Second, disclosure of this information must either be “likely to have the effect of either impairing the Commission’s ability to obtain such information as is necessary to perform its statutory functions” or the disclosure must cause “substantial harm” to a party.
Beyond that general regulation, there is little relevant law. Arista asked the ITC to apply a three-part balancing test, which would consider (1) the need to reveal the information to the public; (2) the harm from such disclosure; and (3) the ITC’s interest. Cisco argued for a common-law approach, with a “strong presumption” in favor of disclosure. The Commission rejected both approaches, without setting out a specific test.
The parties also disagreed as to who bears the burden of proof. The Commission agreed with Cisco that the burden is on the party requesting a redaction. Commission Rule 210.5(f) allows the ITC to require the “parties [to] provide support in the record for their claim of confidentiality,” implying that the party seeking to have information designated as confidential is the one that has the burden to support their request.
The Commission then went through Arista’s proposed redactions, one by one, accepting some and declassifying others. The Commission rejected some of Arista’s arguments as too generic or speculative, but, otherwise, it is hard to make generalizations about the Commission’s approach.
One of the advantages of the ITC is its strong administrative protective orders that preclude sharing of confidential business information. Until recently, parties rarely had much reason to challenge another party’s confidentiality designations—and the issue would likely only arise if the agency itself refused to designate material as confidential. However, the Federal Circuit recently updated its local rules to discourage including any confidential information in a brief and requiring a separate motion if a brief is going to contain more than fifteen words of confidential information. See Fed. Cir. Local R. 28(d)(1)(A). As a result, parties may be more likely to challenge confidentiality designations in the future—so that their appeal briefs do not need to marked “confidential” and so they do not need to file motions to allow confidential redactions.