ORIGINAl,.
 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

)
 In the Matter of
 ) 

)


McWANE, INC.,
 )


a corporation, and DOCKET NO. 9351
 ) 

)

STAR PIPE PRODUCTS, LTD., ) 

a limited parnership, )


Respondents.
 ) 

) 

ORDER DENYING RESPONDENT'S MOTION
 

TO AMEND THE PROTECTIVE ORDER GOVERNING DISCOVERY
 

I. 

On July 30,2012, Respondent McWane, Inc. ("Respondent" or "McWane") fied a 

Motion to Amend the Protective Order Governing Discovery, to permit its in-house general 

counsel and senior vice-president, James M. Proctor, II, full access to all confidential materials 

submitted in this case, equal to that permitted for outside counsel under the Protective Order 

("Motion"). Complaint Counsel filed an opposition to the Motion on August 7, 2012
 

("Opposition") .
 

Having fully considered the Motion and the Opposition, and as further explained below, 

the Motion is DENIED. 

II. 

The Protective Order in this case was issued on January 5,2012, and entered in 

accordance with Commission Rule of 
 Practice 3.3 1 
 (d). 16 C.F.R§ 3.31(d). That rule states: "In order to protect the parties and third parties against improper use and disclosure of confidential 

information, the Administrative Law Judge shall issue a protective order as set forth in the 

appendix to this section." Id. In accordance with the standard protective order language in thè
 

appendix to Rule 3.31, the Protective Order in this case allows access to and review of 

confidential materials, inter alia, by "outside counsel of record for any respondent, their 

associated attorneys and other employees of 
 their law firm(s), provided they are not employees 

of a respondent." Protective Order ~ 7. The standard protective order language does not include
 

access to confidential materials for in-house counseL.
 

Respondent argues that its in-house counsel needs to access and review all confidential 

materials in order to fulfill his responsibilties to the company. Respondent contends that such 
access should not be denied solely because Mr. Proctor is in-house counsel; rather, access to 

confidential materials should be denied only where the in-house counsel is involved in 

competitive decision-making. Relying upon Mr. Proctor's affidavit, attached to the Motion, 

Respondent asserts that Mr. Proctor is not involved in competitive decision-making and, 

therefore, the Protective Order should be amended to enable Mr. Proctor to access and review the 

confidential materials submitted in this case. 

Complaint Counsel contends that, in amending the Commission's Rules of Practice in 

2009 to provide for a standard protective order to be issued in each case, the Commission 

intentionally declined to allow access to confidential materials by in-house attorneys. According 

to Complaint Counsel, excluding in-house counsel from access to confidential materials serves, 

among other things, to ensure nonparties that competitively sensitive submissions wil not be 

misused. Complaint Counsel further notes that nonparies in this case produced confidential 

materials in the investigation and adjudicatory phases in this case, with the expectation that 

disclosure would be limited to those categories of individuals outlined in the Protective Order, 

and that it is unfair to such nonparies to change these categories after the fact. 

III. 

The Protective Order expressly requires that any party serving a discovery request on any 

nonparty "shall provide. . . a copy ofthis Order so as to inform each such third pary of 
 his, her, 

or its rights herein." Protective Order ~ 4. In the instant case, nonparties receiving subpoenas 

provided responsive information, and may well have foregone moving to quash the subpoenas, 

or seek other relief, in reliance on the Protective Order then in place. 
 Nonparies responding to a 

subpoena have a right to expect that submissions designated by them as "confidential" wil be 

treated in accordance to the Protective Order provided to them, which follows the standard 

protective order required by Rule 3.31 verbatim. Moreover, Respondent has failed to articulate 

any reason for failing to request access to confidential information for in-house counsel earlier in 

the case, prior to the production of confidential information by these nonparies, or to assert any 

special circumstances that might justify a deviation from the standard protective order language. 

Accordingly, Respondent's Motion is DENIED. 

IV. 

After full consideration of 
 Respondent's Motion to Amend Protective Order and 

Complaint Counsel's Opposition thereto, and for all the foregoing reasons, Respondent's Motion is DENIED. . 

ORDERED: 

D.

d)h. ~

 Michael Chap e 1 .
 

Chief Administrative Law Judge 

Date: August 8, 2012
 

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