UNITED STATES OF AMRICA

FEDERAL TRADE COMMSSION

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In the Matter of

DOCKET NO. 9300

CHICAGO BRIGE & IRON COMPAN N.

a foreign corporation

CHICAGO BRIGE & IRON COMPAN

a corporation, and

PITT-DES MOINS, INC.

a corporation.

ORDER ON NON-PARTIS' MOTIONS FORlN CAMRA TRATMENT

OF DOCUMNTS LISTED ON PARTIS' EXHIIT LISTS

Pursuant to Commssion Rule 3. 45(b) and the Scheduling Order entered in this litigation

several non-paries have filed motions for in camera treatment for materials that the paries have

listed on their exhbit lists as materials that might be introduced at trial in this matter.

In Commssion proceedings, requests for in camera treatment must show that the public

disclosure of the documentary evidence will result in a clearly defined, serious injury to the person

or corporation whose records are involved. In re Kaiser Aluminum Chem. Corp. 103 F.

500 (1984); H.P. Hood Sons, Inc. 58 F. C. 1184, 1188 (1961). That showing can be made

by establishing that the documentary evidence is "suffciently secret and suffciently material to the

applicant' s business that disclosure would result in serious competitive injury," and then balancing

that factor against the importance of the information in explaining the rationale of Commssion

decisions. Kaiser 103 F. C. at 500; General Foods Corp. 95 F. C. 352 355 (1980); Bristol

Myers Co. 90 F.T.C. 455 456 (1977).

Indefinite in camera treatment is granted only in those "unusual" cases where the

competitive sensitivity or the proprietar value of the information will not diminish with the

passage oftime. In re Coca Cola Co. 1990 FTC LEXIS 364 (Oct. 17, 1990). Examples of

documents meriting indefite in camera treatment are trade secrets, such as secret formulas

processes, and other secret techncal inormation, and information that is privileged. See Hood

58 F.T.C. at 1189; In re R.R. Donnelley Sons Co. 1993 FTC LEXIS 32 (Feb. 18, 1993); In re

Textron, Inc. 1991 FTC LEXIS 135 (April 26, 1991). Where in camera treatment is granted for
II.

ordinar business records, such as business plans, marketing plans, or sales documents, it is

typically extended for two to five years. E.g. , In re E.I. Dupont de Nemours Co. 97 FT.C.

116 (Jan. 21 , 1981); In re International Ass. of Con! Interpreters 1996 FTC LEXIS 298 (June

, 1996).

The Federal Trade Commssion strongly favors making available to the public the full

record of its adjudicative proceedings to permt public evaluation of the fairness of the

Commssion s work and to provide guidance to persons afected by its actions. Crown Cork &

Seal Co. , Inc. 71 F. C. 1714, 1714- 15 (1967); Hood 58 F.T.C. at 1186 ("(T)here is a

substantial public interest in holding all aspects of adjudicative proceedings, including the

evidence adduced therein, open to all interested persons. ). Thus, a heavy burden of showing

good cause for withholding documents from the public record rests with the party requesting that

documents be placed in camera. Hood 58 F. C. at 1188. Further, requests for indefinite 

camera treatment must include evidence to provide justification as to why the document should

be withheld from the public s purvew in perpetuity and why the requestor believes the

information is likely to remain sensitive or become more sensitive with the passage of time. See

DuPont 1990 FTC LEXIS 134 at *2. Thus, in order to sustain the heavy burden for withholding

documents from the public record, an afdavit or declaration demonstrating that a document is

suffciently secret and material to the applicant' s business that disclosure would result in serious

competitive injury is generally required.

Non-party Societe Nouvelle Techngaz ("TGZ"), on September 24 2002, filed a motion

seeking in camera treatment for two declarations made by Jean-Pierre Jolly, Vice President of

Marketing ofTGZ, one on June 4 2002, and the second on August 22 2002 ("Jolly

Declarations ). TGZ seeks in camera treatment for a period of three years. No oppositions to

this motion have been filed.

As described by outside counsel for TGZ, the Jolly declarations contain competitively

sensitive and confdential inormation regarding business and pricing strategies of TGZ, the

disclosure of which would cause the loss of business advantage and serious and irreparable injury

to TGZ. In order to meet its heavy burden of demonstrating that public disclosure of the

documents will result in clearly defined, serious injury, TGZ must provide an affdavit or

declaration in support of its motion. TGZ' s request for in camera treatment is DENID

WITHOUT PREJUICE.

TGZ has until November 12, 2002 to fie a renewed motion for in camera treatment

which includes a declaration or affdavit in support of its motion. In the event that one of the

parties offers into evidence the Jolly declarations, provisional in camera status may be granted

pursuant to 16 C. R. 3.45(g).
Complaint Counsel, Respondents' counsel , and counsel for Pat Outtrim, President of

Project Techncal Liaison Associates, Inc. ("PTLA"), on October 15, 2002, filed a joint motion

seeking in camera treatment for certain portions of the deposition testimony of Outtrim, taken

June 4 2002. The motion states that Outtrim is prevented from disclosing many items of her

testimony due to the confdentiality agreements she signed as president ofPTLA with several

clients and potential clients.

The motion does not attach the deposition transcript, or excerpts thereof, for which 

camera treatment is sought. The motion does not provide a declaration or affdavit of Outtrim to

demonstrate that the deposition testimony is suffciently secret and material to the applicant'

business that disclosure would result in serious competitive injury. The motion does not specify a

time period for which in camera treatment is sought. All of this information must be provided to

support an order granting in camera treatment. Accordingly, the motion is DENID WITHOUT

PREJUICE.

PTLA has until November 12, 2002 to file a renewed motion for in camera treatment

which includes the deposition transcript and a declaration or afdavit in support of its motion. In

the event that one of the parties offers into evidence the deposition transcript, CX-508

provisional in camera status may be granted pursuant to 16 C. R. ~ 3.45(g).

IV.

Non-party American Tank and Vessel, Inc. ("AT&V") on October 11, 2002, fied a

motion seeking in camera treatment for three documents, an in house financial statement, a

confdential bid history report form and a confdential contract history report form. AT&V

requests that these documents be treated as in camera for an indefinite period of time, or in the

alternative, for six years. No party has opposed AT&V' s motion.

The affdavit by Wiliam T. Cutts, attached to the motion, states that these three

documents contain highly confdential and proprietary information, the disclosure of which would

cause the loss of business advantage and serious and irreparable injury to AT&V. However, a

review of the documents submitted with the motion reveals that some of the documents do not

meet the standards for in camera treatment. For example, one of the documents titled "A World

of Products Servng the World " appears to be a publicly disseminated document. Further

AT&V has not met the heavy burden of establishing the unusual circumstances that may warrant

indefinite in camera treatment for its confdential materials. Accordingly, AT&V' s motion is

DENID WITHOUT PREJUICE.

AT&V has until November 12, 2002 to file a renewed motion for in camera treatment

that is more narrowly tailored to request in camera treatment for only that information that is

suffciently secret and material. In the event that one of the parties offers into evidence the
AT & V documents for which in camera treatment was sought, provisional in camera status may

be granted pursuant to 16 C. R. ~ 3.45(g).

Non-party Zachary Construction Corp. ("ZCC"), on September 18, 2002, filed a motion

seeking in camera treatment. ZCC filed a Supplemental Motion on October 22, 2002. The

September 18, 2002 motion will be treated as withdrawn. ZCC seeks in camera treatment for

specific sections of the deposition transcript of Moon Fahel and for documents identified with

bates numbers ZCC 000014-020 and ZCC000030-059. ZCC seeks in camera treatment for a

period of three years. No oppositions to ZCC' s motion have been filed.

As described by the motion fied by ZCC, the deposition of Fa he I and the identified

exhbits thereto contain competitively sensitive and confdential information, the disclosure of

which would cause the loss of business advantage and serious and irreparable injury to ZCC. To

allow a determnation on whether the documents sought qualify for in camera treatment, ZCC

must provide the Administrative Law Judge with a copy of such documents. Further, in order to

meet its heavy burden of demonstrating that public disclosure of the documents will result in

clearly defined, serious injury, ZCC must provide an afdavit or declaration. ZCC' s request for 

camera treatment is DENID WITHOUT PREJUICE.

ZCC has until November 12 2002 to fie a renewed motion for in camera treatment which

includes a declaration or affdavit in support of its motion. In the event that one of the parties

offers into evidence the deposition of Fa he I or the ZCC documents for which in camera

treatment was sought, provisional in camera status may be granted pursuant to 16 C.F. ~ 3.45(g). 

VI.

Non-party Yanee Gas Servces Co. ("Yankee ), on October 22 2002, filed a motion

seeking in camera treatment for sections of the deposition transcript of Marc N. Andrukiewicz

, Director, Gas Supply Management for Yanee. Yankee seeks in camera treatment for a

limted period. No oppositions to Yanee s motion have been filed.

As described in the motion filed by Yankee, the deposition of Andrukiewicz contains

competitively sensitive and confdential information, the disclosure of which would cause the loss

of business advantage and serious and irreparable injury to Yankee. Yankee seeks in camera

treatment for all portions of this deposition which either Complaint Counselor Respondents

counsel have indicated that they intend to introduce at trial. A review of some of the designated

deposition testimony reveals that some of the information that Yankee seeks to have protected

does not meet the standards for in camera treatment. A motion for in camera treatment must be

narrowly tailored to request in camera treatment for only that information that is suffciently

secret and material. Further, in order to meet its heavy burden of demonstrating that public
disclosure of the documents will result in clearly defined, serious injury, Yanee must provide an

affdavit or declaration in support of its motion. Yankee s request for in camera treatment is

DENID WITHOUT PREJUICE.

Yankee has until November 12 2002 to file a renewed motion for in camera treatment

that is more narrowly tailored to request in camera treatment for only that information that is

suffciently secret and material and that includes a declaration or affdavit in support of its motion.

In the event that one of the parties offers into evidence the Andrukiewicz deposition, provisional

in camera status may be granted pursuant to 16 C. R. ~ 3.45(g).

VI.

Non-parties Panandle Eastern Pipe Line Company ("Panandle ) and CMS Trunkine

LNG Company, LLC ("Trunkine ), on October 22, 2002, filed an unopposed motion seeking 

camera treatment for specific sections of the deposition transcript of John Charles Kelly.

Panhandle and Trunkine request that the information be treated as in camera for an indefinite

period of time.

As supported by the declaration of Kelly, attached to the motion, the deposition transcript

of Kelly contains competitively sensitive and confdential information, the disclosure of which

would cause the loss of business advantage and serious and irreparable injury to Panhandle and

Trunkine. A review of the' declaration in support of the motion and the designated deposition

testimony reveals that the information sought to be protected meets the standards for in camera

treatment. However, Panhandle and Trunkine have not met the heavy burden of establishing the

unusual circumstances that may warant indefinite in camera treatment for such information.

Accordingly, Panandle and Trunkine s motion is GRATED in part and DENID in part.

In camera treatment for a period of five years, to expire on November 1 , 2007, is granted

to the following portions of John Kelley s deposition (designated as exhbits CX 347 and RX

789): 10:4-9; 11 :21- 19:7; 23: 16-23; 24:7-21; 29:7-21; 30: 14-32: 14; 37:9-24; 39: 10-21; 42:22-

45:21; 47:4- 15; 51:9-22; 53:5-55:24; 59:1-60:19; 64:2-65:24; 67:9-23.

VI.

Non-party Boeing Satellte Systems, Inc. ("Boeing ) on October 22, 2002, filed an

unopposed motion seeking in camera treatment for specific portions of the April 23, 2002

declaration of Greg Proulx and of the June 20 2002 deposition transcript of Greg Proulx. Boeing

requests that the information be treated as in camera for an indefinite period of time.

As supported by the declaration by Marjorie Waltrip, attached to the motion, the

declaration and deposition transcript of Proulx contain competitively sensitive and confdential

information, the disclosure of which would cause the loss of business advantage and serious and

irreparable injury to Boeing. A review of the declaration in support of the motion and the
documents for which in camera treatment is sought reveals that the information meets the

standards for in camera treatment. However, Boeing has not met the heavy burden of

establishing the unusual circumstances that may warant indefinite in camera treatment for such

information. Accordingly, Boeing s motion is GRAED in par and DENID in part.

In camera treatment for a period of five years, to expire on November 1 , 2007, is granted

to paragraphs 7 and 13- 18 of the Proulx Declaration (designated as exhbit CX 10) and to the

following portions of the Proulx deposition (designated as exhbit CX 513): 12:25- 18:7; 25:25-

28:6; 29:3-38:10.

ORDERED:

D. Michael Chappell

Admistrative Law Judge

Date: November 1 , 2002

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