materia? should be so designated and provides all the Parties with an appropriately labeled
replacement. Respondents’ counsel shall return promptly or destroy the unmarked documents.

10. Lf Complaint Counsel: (a) receives a discovery request that may require the disclosure of a
Third Party's Confidential Discovery Material; or (b) intends to or is required to disclose, voluntarily
or involuntarily, a Third Party's Confidential Discovery Material (whether or not such disclosure is in
response to a discovery request), Complaint Counsel shal] promptly notify the Third Party of either
receipt of such request or its intention to disclose such material. Such notification shaii be in writing
and, it not otherwise done, sent for receipt by the ‘Ihird Party at ieast five days before production, and
shall include a copy of this Order and a cover letter that will apprise the Third Party of its rights
hereunder.

11. Hany Party reccives a discovery request in anotber preceeding that may require the
disclosure of a Producing Party's Confidential Discovery Material, the subpoena recipient promptly
shall notify the Producing Party of receipt of such request. Such notification shall be in writing and, if
not otherwise done, sent for receipt by the Producing Part at least five days before production, and
shall include a copy of this Order and a cover letter that will apprise the Producing Patty of its rights
hereunder. The Producing Party shall be solely responsible for asserting any objection to the
requested production. Nothing herein shall bc construcd as requiring the subpoena recipient or anyone
else covered by this Order to challenge or appeal any such order requiring production of Confidential
Discovery Material, or to subject itself to any penalties for noncompliance with any such order, or to
seek ary relief ttom the Administrative Law Judge or the Commission.

12. This Order govems the disclosure of information during the course of discovery and

does not constitute an dv camer omer as provided in Section 3.45 of the Commission's Rules of

Practice, 16 CFR. § 3.45.

16


the higher protection of Restricted Confidential, Attorney Eyes Onty and to so designate such
documents.

4, Confidential Discovery Material shall not, directly or indirectly, be disclosed or
otherwise provided to anyone except to:

(a) Complaint Counsel and the Commission, as permitted by the Commission's Rules of
Practice; ,

{b) Gutside Counsel:

(c) Experts/Consultants {in accordance with paragraph 6 hereto);

(d} witnesses or deponents employed by the Producing Party at trial or deposition;

(¢) the Administrative Law Judge and personnel assisting him;

(f) court reporters and deposition transcript reporters;

{g) judges and other court personnel of any court having jurisdiction over any appeal
proceedings involving this Matler, and

(h) any author or recipient of the Confidential Discovery Material (as indicated on the
face of the document, record or material), and any individual who was in the direct chain of
supervision of the author at the time the Confidential Discovery Materiai was created or
received and who continues to be employed by the Producing Party.

5. in addition 1o the above-described persons, certain named designated individuals and
in-house counsel, not to exceed two persons per corporate party, who do not have day to day
business responsibilities, may be provided access to Confidential Discovery Material including
materia] designated as “Confidential” but not includiy maternal designated as “Restricted

Confidential. Attomey Eyes Only,” on the condition that each such in-house counsel or

10


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY

a corporation,

Docket No. 9300
and

PITT DES-MOINES, INC.

a corporation.

Me ee ee ee ee ee eee

DECLARATION CONCERNING PROTECTIVE
ORDER GOVERNING DISCOVERY MATERIAL

1, [NAME], hereby declare and certify the following ta be true
1. [Statcment of employment]

2. Ihave read the "Protective Order Goveming Discovery Material" (Protective Order") issued
by Administrative Law Judge Chappel! on - 2002, in connection with the above
captioned matter. I understand the restrictions on my use af any Confidential Discovery Material
(as this term is used in the Protective Order) in this action and I agree to abide by the Protective

Order.

3. F understand that the restrictions on my use of such Confidential Discovery Material
include:

a. that ] will use such Confidential Discovery Material only for the purposes
of preparing for this proceeding, and hearing(s) and any appeal of this
proceeding and for no other purpose;

b. that ] will not disclase such Confidential Discovery Material to anyone,
except as permitted by the Protective Order, and


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

In the matter of

Chicago Bridge & Iron Company N.V.,
a foreign corporation,

Chicago Bridge & Iron Company,
a corporation,

and

Pitt Des-Moines, Jnc.,
a corporation.

et Ne St ete et a el Ne ee

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL

Fot the purpose of protecting the interests of the parties and third parties in the ubove captioned
qatter against improper use and disclosure of confidential information submitted or produced in
connection with this matter:

IT IS HEREBY ORDERED THAT this Protective Order Goveming Confidential Material
("Protective Order") shall govern the handling of all Discavery Material, as hereafter defined.

DEFINITIONS

1, “Matter” means the matter captioned Jn the Matter of Chicago Bridge & Iron Company NV,
Chicago Bridge & Iron Company, and Pitt Des-Moines, Inc., Docket Number 9300, pending before the
Federal Trade Commission, and all subsequent appellate or other review

2. "Commission" or "FTC" means the Federal Trade Commission, or any of its employees,
agents, attorneys, and ali other persons acting on its behalf, excluding persons retained as consultants or

experts for the purposes of this Matter.


13. Nothing in this Protective Order shall be construed to conflict with the provisions of
Sections 6, §0, and 21 of the Federal Trade Commission Act, 15 U.S.C. §§ 46, 50, S7b-2, or with
Rules 3.22, 3.45 or 4.11(b)-(e), 16 CER. §§ 3.22, 3.45 and 4.11(b)-(e).!

Any Party or Producing Party may move at any time for é# comera treatment of any
Confidential Discovery Material or any portion of the proceedings in this Mutter to ihe extent
necessary for proper disposition of the Matter. An application for in caver treatment must meet
the standards set forth in 16 C-F.R. § 3.45 and explained in In re Dura Labe Corp., 1999 FTC
LEXIS 255 (Dec. 23. 999).

14. At the conclusion of this Malter, Respondenis’ counsel shall retum to the Producing
Party, or desiroy, all originals and copics of documents and all notes, memoranda, or other
papers conlaining Confidential Discovery Material that have not been made part of the public
record in this Matter. Complaint Counsel shall handle all documents in accordance with Rule
412, 16 CFR. § 4.12.

15. The provisions of this Protective Order, insofar as they restrict the communication
and use of Confidential Discovery Material shall, without written permission of the Producing
Party or further order of the Administrative Law Judge hearing this Matter, continue to be
binding after the conclusion of this Matter.

16. This Protective Order shall not apply to the disclosure by a Producing Party or its

Counsel of such Producing Party's Confidential Discovery Material to such Producing Party’s

‘The right of the Administrative Law Judge, the Commission, and reviewing courts te
disclose information afforded én camers treatment or Coufidential Discovery Material, to
the extent necessary for proper disposition of the proceeding, is specifically reserved
pursuant to Rule 3.45, 16 C.F.R. § 3.45.

17


explanations provided by the Producing Party, and shail not be based on an argument that
production or disclosure of the Discovery Material waived any privilege. In the event that only
portions of the Discovery Material contain privileged subject matter, the Producing Party shall
substitute a redacted version of the Discovery Material at the time of making the request for the
teturn of the requested Discovery Material.

(c} Shouid the Party contesting the request to return the Discovery Material pursuant to
this paragraph decline to retum the Discovery Material, the Producing Party seeking return of
the Discovery Material may thereafter move for an order compelling the return of the Discovery ©
Material. In any such motion, the Producing Party shall have the burden of showing that the
Discovery Material is privileged and that the production was inadvertent.

18. Entry of the foregoing Protective Order is without prejudice to the right of the
Parties or Third Parties to apply for further protective orders or for modification of any

provisions of this Protective Order.

ORDERED:

D. Michael Chappell
Administrative Law Judge

Dale:

19


continue to treat the chalfenged material as Confidential Discovery Material, absent a written
agreement with the Producing Party or order of the Administrative Law Judge. The Producing
Party, preserving its rights, and the challenging Party shail meet and confer in good faith jn an
attempt to negotiate changes to any challenged designation. If at the end of five days of
negotiating the parties have not resolved their differences or if counsel determine in good faith
that negotiations have failed, the challenging Party may make written application to the
Administrative Law Judge as provided by paragraph 7{¢} of this Protective Order. If the
Producing Party does not preserve its rights within five days following receipt of service of the
application, the challenging Party may alter the designation as contained in the notice. The
challenging Party shall notify the Producing Party and the other Parties to this action of any
changes in confidentiality designations.

Regardless of coufidential designation, copies of published magazine or newspaper
atticles, and excerpts from published books and public documents filed with the Securities and
Exchange Commission may be used by any Party without reference to the procedures of this
subparagraph.

(c) Resolution of Disclosure or Confidentiality Disputes

If negotiations under subparagraphs 7(a)-(b) of this Protective Order have failed to
resalve the issues, a Party seeking to disclose Confidential Discovery Material or challenging a
confidentiality designation or any other restriction contained within this Protective Order may
make written application to the Administrative Law Judge for relief. Such application shall be
served on the Producing Party and the other Parly, and be accompanied by a certification that the

meet and confer obligations of this paragraph have been met, but that zood faith negotiations

14


notation containing a reference to this Matter) to the first page of a document containing such
Confidentiai Discovery Material, or, by Parties by instructing the court reporter to denote each
page of a transcript containing such Confidential Discovery Material as “Confidential." Such
designations shal] be made within fourteen days from the initial production or deposition and
constitute a good-faith representation by counsel for the Party or Third Party making the
designations that the document constitutes or contains Confidential Discovery Material.

(b) Designation of Documents as “RESTRICTED CONFIDENTIAL, ATTORNEY
EYES ONLY - FTC Docket No. 9300."

In order to permit Producing Parties to provide additional protection for a limited
number of documents that contain highly sensitive commercial infonnation, Producing Parties
may designate documents as "Restricted Confidential, Attorney Eyes Only, FTC Docket No.
9360" by placing on or affixing such legend on each page of the document. Third Parties”
responses to Civil Investigative Demands (“CIDs”) issued by the FTC on January 31, 2001,
which contain highly sensitive sales and bidding data, will be accorded "Restricted
Confidential, Attorney Eyes Only” status. The transcript of an investigational hearing held with
a third party competitor on June 20, 2001 will also be accorded "Restricted Confidential,
Attomey Eyes Only” status. Other documents to be designated Restricted Confidential,
Attomey Eyes Only may include certain marketing plans, sales forecasts, business plans, the
financial terms of contracts, operating plans, pricing and cost data, price terms, analyses of
pricing or competition information, and limited proprietary personnel information. It is
anticipated that this particularly restrictive designation is to be utilized for a limited number of

documents.


been produced by the FTC in this Matter, the Producing Party shat] mean the FTC and the Third
Party that originally provided the Confidential Discovery Material to the FTC. The Producing
Party shall aiso mean the ITC for purposes of any document or material prepared by, or on
behalf of the FTC.

9. “Third Party" means any natural person, partnership, corporation, association, or other
legal entity not named as a party to this Matter and their employees, directors, officers, attorneys
and agents.

10. "Expert/Consultant” means experts or other persons who are retained to assist
Complaint Counsel or Respondents' counsel in preparation for trial‘or to give testimony at trial.

11, "Document" means the complete original or a tue, correct and complete copy and
any non-identical copies of any writtea or graphic matter, no matter how produced, recorded,
Stored or reproduced, including, bet not limited to, any writing, letter, envelope, telegraph,
mecting minutc, memorandum statement, affidavit, declaration, book, record, survey, map,
study, handwritten note, working paper, chart, index, tabulation, graph, tape, data sheet, data
processing card, printout, microfilm, index, camputer readabie media or other electronically
stored data, appointment book, diary, diary entry, calendar, desk pad, telephone message slip,
note of interview or communication or any other data compilation, including all drafts of all
such documents. "Document” also includes every wriling, drawing, graph, chart, photograph,
Thono record, tape, compact disk, video tape, and other data compilations from which
information can be obtained, and includes all drafts aud all copies of every such writing or
record that contain any commentary, notes, or marking whatsoever not appearing on the

original.


3. "CB&I" means collectively Chicago Bridge & Iron Company N.V., a foreign
corporation organized, and cxisting under the laws of The Netherlands, with its principal place
of business at Polarisavenue 31, 2132 JH Hoofddorp, The Netherfands; and Chicago Bridge &
Iron Company, a wholly owned subsidiary of Chicago Bridge & Iron Company N.V., a
corporation organized and existing under the Jaws of the State of Delaware, with its principal
place of business at 1501 North Division Street, Plainfield Illinois 60544.

4. “PDM” means Pitt-Des Moines, inc., 2 corporation organized and existing under the
laws of the State of Pennsylvania, with its princtpal place of business at 1450 Lake Robbins
Drive, Suite 400, The Woodlands, Texas 77380.

5. "Party" means either the FIC, CB&I or PDM.

6. “Respondents” means CB&I and PDM.

7. “Outside Counsel” means the law firms that are counsel of record for Respondents in
this Matter and their associated attorneys; or other persons regularly employed by such law
firms, including legal assistants, clerical staff, and infonnation management personnel and
temporary persomnel retained by such law firmés) to perform tegal or clerical duties, or to
provide logistical litigation support with regard to this Matter, provided that any attormey
associated with Outside Counsel shall not be a director, officer or employee of Respondents.
The term Outside Counsel does not include persons retained as consultants or experts for the
purposes of this Maiter.

8. "Producing Party" means a Party or Third Party that produced or intends to produce
Confidentiai Discovery Material to any of the Parties. For purposes of Confidential Discovery

Material of a Third Party that either is in the possession, custody or contol of the FTC or has


failed to resolve outstanding issues. The Praducing Party and any other Parties shall have five days
following reccipt of scrvicc to respond to the application. While en application is pending, the
Parties shall maintain the pre-application status of the Confidential Discovery Material. Nothing m
this Protective Order shall create a presumption or alter the burden of persuading the Administrative
Law Judge of the proprietary of a requested disclosure or change in designation.

§. Confidential Discovery Material shall not be disclosed to any person described in
subparagraph 4{c) and paragraph 5 of this Order until such person has executed and trangmitted to
Respondents’ counsel or Complaint Counsel, as the case may be, a declaration or declarations, as
applicable, in the form attached hereto as Exhibit "A," which is incorporated herein by reference.
Respondents’ counsel and Complaint Counsel shall maintain a file of all such declarations for the
duration of the litigation. Confidential Discovery Material shall not be copied or reproduced by any
person described in subparagraph 4(c) or paragraph 5 of this Order except to the extent such copying
or reproduction is reasonably necessary to the conduct of this Matter, and all such copies or
reproductions shall be subject to the terms of this Protective Ordcr. If the duplication process by
which copies or reproductions of Confidential Discovery Material are made does not preserve the
confidentiality designations that appcar on the original documents, all such copies or reproductions
shall be stamped "CONFIDENTIAL - FTC Docket No. 9300,"

9. The Parties shall not be obligated.to challenge the propricty of any designation or treatment
of information as confidential and the failure ta do so promptly shall not preciude any subsequent
objection to such designation or treatment, or any motion sccking permission to disclose such
material, to persons not referred to in paragraphs 4 and 4 above. If Confidential Discovery Material is
produced without the legend attached, such document shall be treated as Confidential from the time

the Producing Party advises Complaint Counsei and Respondents’ counsel in writing that such

15


engineering, fabrication or field-erection of welded steel plate storage tanks, as used in
Respondents’ answer to the complaint in this Matter.
TERMS AND € ITIONS OF PR: CTIVE ORDER
1. Discovery Material, or information derived therefrom; shall be used solely by the
Parties for purposes of this Matter, and shall not be used for any other purpose, including
without limitation any business or commercial purpose, except that with noticc to the Producing
Party, a Party may apply to the Administrative Law Judge for approval of the use or disclosure
of any Discovery Material, or information derived therefrom, for any other proceeding.
Provided, however, that in the event that the Party seeking to use Discovery Material in any
other proceeding is granted leave to do so by the Administrative Law Judge, it will be required
to take appropriate steps to preserve the confidentiality of such material. Additionally, the
Commission may use or disclose Discovery Material as provided by (1) its Rules of Practice,
Sections 6(f) and 21 of the Fedcral Trade Commission Act and any cases so construing them;
and (2) any other legal obligation imposed upon the Commission. The Parties, in conducting
discovery from Thitd Parties, shali attach to such discovery requests a capy of this Protective
Order and a cover letter that wilt apprise such Third Patties of their rights hereunder.
2. This paragraph concems the designation of material as “Contidential" and "Restricted
Confidential, Allomey Eyes Only."
(a) Designation of Documents as CONFIDENTIAL - FTC Docket No. 9300.

Discovery Material may be designated as Confidential Disco very Matenal by

Producing Parties by placing on or affixing, in such manner as will not interfere with the

legibility thereof, the notation "CONFIDENTIAL - FTC Docket No. 9300" (or other similar


c, that upon the termination of my participation in this proceeding T will promptly return all
Confidential Discovery Material, and al] notes, memoranda, or other papers containing
Confidential Discovery Material, to Complaint Counse! or Respondent's counsel, as appropriate.

4. Tunderstand that if I am receiving Confidential Discovery Material as an Expert/Consultant,
as that term is defined in this Protective Order, the restrictions on my use of Confidential
Discovery Material also include the duty and obligation:

a, to maintain such Confidential Discovery Material in separate locked room(s) or locked
cabinet(s) when such Confidential Discovery Material is not being reviewed;

b. to return such Confidential Discovery Material te Complaint Counsel or
Respondent's Outside Counsel, as appropriate, upon the conclusion of my
assignment or retention; and

c. to use such Confidential Discovery Material and the information contained
therein solely for the purpose of rendering consulting services to a Party in connection with
this matter, including providing testimony in judicial or administrative
proceedings arising out of this matter.

5. lam fully aware that, pursuant to Section 3.42(h) of the Commission's Rules of
Practice, 16 C.F.R. § 3.42(h), my failure tp comply with the terms of the
Protective Order may constitute contempt of the Commission and may subject

mc to sanctions imposed by the Commission.

Date:

Full Name [Typed or Printed]

Signature

~2-


UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, B.C, 20580

MERGERS Uf

STEVEN WILENSKY
ATTORNEY

Direct Dis)
202-326-1650

March 4, 2002

The Honorable D. Michael Chappell
Administrative Law Judge

Federal Trade Commission

H-104

6" and Pennsylvania Ave. N.W.
Washington D.C. 20580

Re: Chicago Bridge & Iron Company N.V., et. al., Docket 9300
Dear Judge Chappell:

As discussed in our prehearing conference of February 15, 2002, attached is a protective
order we have drafted jointly with counse! for Respondents. The drait protective order is based
on the one entered in in re Schering Plough, Docket No, 9298,

As in the Schering protective order, J 2(b) of the draft protective order stales thal a
limited number of documents <hat contain highly sensitive commercial information may be
designated as “Restricted Confidential, Attorney Eyes Only.” As in the Schering protective
order, this designation allows disciosure to a restricted group of individuals and establishes an
appeals process whereby Respondents can challenge the designation if they so desire. In addition
to prohibiting disclosure to experts/consultants, deponents or witnesses who are current officers,
directors, or employees of storage tank competitors, the draft protective order also prohibits
disclosure to in-house counse] of material designated Restricted Confidential, Attomey Eyes
Only. Documents designated at this time by Complaint Counsel as Restricted Confidential,
Attomey Eyes Only include only Third Parties” responses to Civil Investigative Demands
{“CIDs”) issued by the FTC on January 31, 2001, and the transcript of a Third Party
investigational hearing. The CIDs contain highly sensitive sales and bidding data af storage tank
competitors. Allowing in-house counsel to view this data would be highfy prejudicial to the
interests of thesc Third Parties. The transcript contains highly sensitive business information. At
the conclusion of the investigational hearing at issuc, counsel for the third party read its
confidentiality claims into the record.


and/or affiliation of the identified individual. The Producing Party may object to the disclosure
ofthe Restricted Confidential, Attorney Eyes Only material within five days of receiving notice
of an intent to disclose the Restricted Confidential, Aitorncy Eyes Only material to an
individual by providing the disclosing Party with a written statement of the reasons for
objection. If the Producing Party timely objects, ihe disclosing Party shall not disclose the
Restricted Confidential, Attorney Eyes Only material to the identified individual, absent a
written agreement with the Producing Party, order of the Administrative Law Judge or ruling on
appeal. The Producing Party lodging an objection and the disclosing Party shal] meet and confer
in good faith in an attempt to determine the terms of disclosure to the identifted individual. If at
the end of five days of negotiating the parties have not resolved their differences or if counsel
determine in good faith that negotiations have failed, the disclosing Party may make written
application to the Administrative Law Judge as provided by paragraph 7(c) of this Order. If the
Producing Party does not object to the disciosure of Restricted Confidential, Attorney Eyes
Only material to the identified individual within five days following reccipt of service of the
application, the disclosing Party may disclose the Restricted Confidential, Attorney Fyes Only
material to the identified individual.

(d) Disputes Conceming Designation or Disclosure of Restricted Confidential, Attorney.
Eyes Only Maternal

Disputes conceming the designation or disclosure of Restricted Confidential, Attorney
Eyes Only material shall be resolved in accordance with the provisions uf paragraph 7.

{e) No Presumption or Inference

With the exception of Third Parties’ responses to Civil Investigative Demands (“C1Ds”)


Documents designated Restricted Confidential, Attommey Eyes Only may be disclosed to
Outside Counsel, Complaint Counsel, and to Experts/Consultants (paragraph 4{c), hereof} that
are not current officers, directors or employees of Welded Stec! Plate Storage Tank Companies.
Such materials may not be disclosed to in-house counsel! (designated pursuant to paragraph 5,
hereof) or Experts/Consultants or to witnesses or deponents at trial or deposition, where the
Expests/Consuhants, deponents or witnesses are current officers, directors, or employees of any
Welded Steei Plate Storage Tank Company other than the Producing Party, except in
accordance with subsection (c) of {his paragraph 2. In all other respects, Restricted Confidential,
Attorney Eyes Only material shall be treated as Confidential Discovery Material and al!
references in this Protective Order and in the exhibit hereto to Confidential Discovery Material
shall include documents designated Restricted Confidential, Attomcy Eyes Only.

(c}) Disclosure of Restricted Confidential, Attorney Eyes Only Material to In-House
Counsel Designated Pursuant to Paragraph 5 hereof and Experts/Consultants, Deponents or
Witnesses Who Are Current Officers, Directors, or Employees of Welded Steel Plate Storage
Tank Companies

If any Party desires to disclose Restricted Confidential, Attomey Eyes Only material to
in-house counsel designated pursuant to paragraph 5 hereof or to any Exper/Consultant,
deponent or witness that is a current officer, director, or employee of a Welded Steel Plate
Storage Tank Company other than the Producing Party, the disclosing Party shal! notify the
Producing Party of its desire to disclose such material. Such notice shall identify the specific

individual to whom the Restricted Confidential, Attorney Eyes Only material is to be disclosed.

Such identification shail include, but not be limited to, the full name and professional address


12. “Discovery Material” includes without imitation deposition testimony, deposition
exhibits, interrogatory responses, admissions, affidavits, declarations, documents produced
pursuant to compulsory process or voluntarily in lieu thereof, and any other documents or
information produced or given to one Party by another Party or by a Third Party in connection
with discovery in this Matter.

13. “Confidential Discovery Materia!" means ail Discovery Material that is designated
by a Producing Party as confidential and that is covered by Section 6(f} of the Federal Trade
Commission Act, 15 U.S.C. § 46(f), and Commission Rule of Practice § 4.10(a)(2), 16 C.F.R. §

’
4.10(a)(2); or Section 26(c)(7) of the Federal Rules of Civil Procedure and precedents
thereunder. Confidential Discovery Material shall include non-public commercial information,
the disclosure of which to Respondents or Third Parties would cause substantial commercial
harm or personal embarrassment to the disclosing party. The following is a nonexhaustive list of
examples of information that tikely will qualify for treatment as Confidential Discovery
Material: strategic plans (involving pricing, marketing, research and development, product
roadmaps, corporate alliances, or mergers and acquisitions) that have not been fully
implemented or revealed to the public; trade secrets; customer-specific cvaluations or data (¢.g.,
prices, volumes, or revenues); personnel files and evaluations; information subject to
confidentiality or nondisclosure agreements; proprietary technical or engineering information;
proprietary financial data or projections; and proprietary consumer, customer or market research
or analyses applicable to current or future market conditions, the disclosure of which could
reveal Confidential Discovery Material.

14. “Weldcd Steet Plate Storage Tank Company” means an entity that competes in the


employecs, agents, former employees, board members, directors, and officers.

17. The production or disclosure of any Discovery Material made after entry of this
Protective Order that a Producing Party claims was inadvertent and should not have been
produced or disciosed because of a privilege will not automatically be deemed to be a waiver of
any privilege to which the Producing Party would have been entitled had the privileged
Discovery Materiai not inadvertently been produced or disclosed. In the event of such claimed
inadvertent production or disclosure, the following procedures shail be followed:

{a) The Producing Party may request the return of any such Discuvery Material within
twenty days of discovering that it was inadvertently produccd or disclosed (or inadvertently
produced or disclosed without redacting the privileged content). A request for the return of any
Discovery Material shall identify the specific Discovery Material and the basis for asserting that
the specific Discovery Material (or porlions thereof} is subject to the attorney-client privilege or
the work product doctrine and the date of discovery that there had been an inadvertent
production or disclosure.

(b) Ifa Producing Party requests the return, pursuant to this paragraph, of any such
Discovery Material fromm another Party, the Party to whom the request is made shall retum
immediately to the Producing Party all copies of the Discovery Material within its possession,
custody, or control-including all copies in the possession of experts, consultants, or others to
whom the Discovery Material was provided - unless the Party asked to return the Discovery
Material in good faith reasonably believes that the Discovery Material is not privileged or that
the production or disclosure of the material was not inadvertent. Such good faith belief shal! be

based on cither (i) a facial review of the Discovery Matenal, or (#1) the inadequacy of any

18


24976D.1

"CI itted,
Yo

Richafd Liebeskj

Jobn A. Singe!

Steven L. Wiiensky

Cecelia Waldeck

Michael A. Franchak

Rhett R. Krulla

Federal Trade Commission
601 Pennsylvania Ave. N.W.
Washington D.C. 20586
(202) 326-2441

Complaint Coyase!

Lg LE

yatie M. Kelley

effrey A. Leon
Winston & Strawn
315 W. Wacker Drive
Chicago, LL 60601-9703
(312) 558-5600

Nada Sulaiman

Winston & Strawn

1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700

Counsel for Respondents Chicago
Bridge & Iron Company N.Y, and
Pitt Des-Moines, Inc.


designated individual signs a declaration in the form attached hereto as Exhibit "A," which is
incorporated herein by reference, For Respondent CB&I the designated individual is Robert H.
Wolfe, Gencral Counsel and another appropriate individual to be named at a jater date.
Respondent will give ten days notice to Complaint Counsei before allowing the additional
designee to view any Confidential Discovery Material, during which time Complaint Counsel
may object. Respondent will provide Complaint Counsel with the name and business affiliation
of the individual, his job responsibility, and the identity of persons reporting to him and persons
to whom he reports. The additional designee agrees to maintain all such confidential
information disclosed to him in a manner distinct from the ordinary operations of his company
so as to eliminate acecss to this material by others within and outside the company, and further
agrees to maintain a log of confidential material actually reviewed and to abstain, for a period of
three years after having last reviewed such confidential matedial, from parlicipalion in any
business decision-making to which confidential material actually reviewed may be rcievant and
involving any person who produced the confidential material.

6. Confidential Discovery Material, inciuding material designated as “Confidential” and
"Restricted Confidential, Attorney Eyes Only," shall not, directly or indirectly, be disclosed or
otherwise provided to an Expert/Consultant, unless such Expert/Consultant agrees in writing:

(a} to maintain such Confidential Discovery Material in separate locked rooms or locked
cabinet(s) when such Confidential Discovery Material is not being reviewed;

(b) to retum such Confidential Discovery Material to Complaint Counsel or
Respondents’ Outside Counsel, as appropriate, upon the conclusion of the Expert/Consultaut's

assignment or retention or the conclusion of this Matter;

11


expert by providing the disclosing Party with a written staternent of the teasons for the
objection. Ef the Producing Party timcly objects, the disclosing Pariy shall not disclose the
Confidential Discovery Material to the identified expert, absent a written agreement with the
Producing Party or order of the Administrative Law Judge. The Producing Party lodging an
objection and the disclosing Party shall meet and confer in good faith in an attempt to determine
the terms of disclosure to the identified expert. If at the end of five (5) days of negotiating the
parties have noi resolved their differences or if counsel determine in good faith that negotiations
have failed, the disclosing Party may make written application to the Administrative Law Judge
as provided by paragraph 7(c) of this Protective Order. {f the Producing Party dues not object to
the disclosure of Confidential Discovery Material to the identified expert within five (5) days
following receipt of service of the application; the disclosing Party may disclose the
Confidential Discovery Material to the identified expert.

{b) Challenges to Confidentiatity Designations

ff any Party secks to challenge a Producing Party's designation of material as
Confidential Discovery Material or any other restriction contained within this Protective Order,
ihe challenging Party shall notify the Producing Party and ull Parties to this action of the
challenge to such designation. Such notice shall identify with specificity (i.e., by document
contro! numbers, deposition transcript page and line reference, or other means sufficient to
locate easily such materials) the designation being challenged. The Producing Party may
pleserve its designation within five days of receiving notice of the confidentiality challenge by
providing the challenging Party and all Parties to this action with a written statement of the

reasons for the designation. If the Producing Party timely preserves its rights, the Parties shall

13


UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

To the Matter of

CHICAGO BRIDGE & IRON COMPANY N.Y.
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY

a corporation,

Docket No. 9300
and

PITT DES-MOINES, INC.

a carparation.

Ne ee ee ee ee

JOINT MOTION FOR ENTERING OF
PROTECTIVE ORDER ~

To: The Honorable D. Michael Chappell
Administrative Law Judge

Complaint Counsel and Respondents request that the attached protective order be entered

in the ahove captioned proceeding.
Dated: Washington, D.C.

March 4, 2002


CERTIFICATE OF SERVICE

Lhercby ccrlify that I today caused a copy of the Joint Motion for Entcring of Protective
Order ta be delivered this day by facsimile and by firsi-class mail to:

The Honorable D. Michael Chappelt
Federal Trade Commission

H-104

6" and Pennsylvania Ave. N.W.
Washington D.C. 20586

Adniinistrative Law Judge

Jeffrcy A. Leon, Esquire
Duanc M. Kelley
Winston & Strawn

315 W. Wacker Drive
Chicago, 11. 60601-9703

Nada Sulaiman

Winston & Strawn

1400 L Street, NW.
Washingion, D.C. 20005
(202) 371-5700

Counsel for Respondents Chicago Bridge & Iron Company
N.¥V. and Pitt Des-Moines, inc.

Dated: March 4, 2002


As in the Schering protective order, § 4(d) of the drafi protective order states that
Confidential Discovery Materiat may be disclosed to witaesses or deponents at trial or
deposition, but limits disclosurc to witnesses and deponents employed by the Producing Party.
Allowing parties other than the Producing Party to view Confidential Discovery Material, simply
because they happen to be witnesses or deponents at trial or deposition, could ailow the
wholesale disclosure of Confidential Discovery Material and undermine the effectiveness of the
protective order.

| 5 of the draft protective order designates Robert H. Wolfe, General Counsel for
Respondent, as ane of two individuals who may view Confidential Discovery Material
{excluding Restricted Confidential, Attomey Eyes Only materiat). 5 also contains a provision
which allows Respondent to name a second individual to view Confidential Discovery Material
at a later date. That individual need not be an attorney, but can not have day to day business
responsibilities in any welded steel plate storage tank markets. Respondent will give Complaint
Counsel notice of the second designee and time to object. The second designee must refrain
from participating in business decision-making in welded steel plate storage tank markets for a
period of three years after having last viewed Confidential Discavery Material.

Enclosed is a Joint Motion for Entering of Protective Order. Complaint Counsel and
Respondents are happy to meet with you to auswer any questions you may have regarding the
draft protective order.

Sincerly.

Steven ilensky
attachments

ce: Jeff Lyon, Winston & Strawn


issued by the FTC on January 31, 2001, and the transcript of an investigational hearing held
with a third party on June 20, 2001 , ho presumption or other inference shall be drawn that
material designated Restricted Confidential, Attomey Fyes Only is entitled to the protections of
this paragraph.

{f} Duc Process Savings Clause

Nothing herein shall be used to argue that a Party’s right to attend the trial of, or ather
proceedings in, this Matter is affected in any way by the designation of material as Restricted
Confidential, Attorneys Eyes Only.

3. All Third Parties’ responses to Civil Investigative Demands (““CIDs”} issucd by the
FTC on January 31, 2001, regardiess of whether designated confidential by the Third Party, and
the transcript of an investigational hearny held with a third patty on June 20, 2001, that were
obtained during the pre-complaint stage of this Mattcr shal] be treated as “Restricted
Confidential, Attorney Eyes Only,” in accordance with paragraph 2(b} of this Order. All
documents heretofore obtained by the Commission through compulsory process or voluntarily
from any Party or Thicd Party, regardless of whether designatcd confidential by the Party or
Third Party, and transcripts of any investigational hearings, interviews and depositions, that
were obtained during the pre-complaint stage of this Matter shall be treated as "Confidential," in
accordance with paragraph 2(a) of this Order. Further, Complaint Counsel shall, within five
days of the effective date of this Order, provide a copy of this Order to all Parties or Third
Partics from whom the Commission obtained documents during the pre-Complaint
investigation and shall notify those Parties and Third Parties that they shail have thirty days

from the effective date of this Protective Order to determine whether their materials qualify for


{c} to not disclose such Confidential Discovery Material to anyone, except as permitted
by the Protective Order; and

(d) to use such Confidential Discovery Material and the information contained therein
solely for the purpose of rendering consulting services to a Party to this Matter, including
providing testimony in judicial or administrative proceedings arising out of this Matter.

7. This paragraph governs the procedures for the following specified disclosures and
challenges to designations of confidentiality.

(a) Disclosure of Confidential Discovery Material to Experts Who Are Current Officers,
Directors or Employees of Welded Steel Plate Storage Tank Companies (other than in-house
counsel designated pursuant to paragraph 5 hercto).

If any Party desires to disclose Confidential Discovery Material to any Expert who may
testify and who is a current officer, director or employee of a Welded Stee] Plate Storage Tank
Company (other than in-house counsel designated pursuant to paragraph 5 hercto), the
disclosing Party shall notify the Producing Party of its desire to disclose such material. Such
notice shall identify the specific expert who may testify to whom the Confidential Discovery
Material is to be disclosed. Such identification shall include, but not be limited to, the full name
and professional address and/or affiliation of the proposed expert who may testify, and 2 current
curriculum vitae of such expert identifying all other present and prior employees and/or firms in
the Welded Stcel Plate Storage ‘'ank industry for which, or on behalf of which, the identified
expert has been employed or done consulting wark in the preceding four years. The Producing
Pariy may object to the disclosure of the Confidential Discavery Material within five (5} days of

teceiving notice of an intent to disclose the Confidential Discovery Material to the identified

12