Case 1:11-cv-02239-RLW Document 29 Filed 12/23/11 Page 1 of 7

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

FEDERAL TRADE COMMISSION, ) 

) 

Plaintiff, ) 

v. ) 

) 

GRACOINC., ) 

) 

ILLINOIS TOOL WORKS INC., and ) 

) 

ITW FINISIDNG LLC, ) 

) 

Defendants. ) 

) 

I :11-cv-02239-RL W 

PROTECTIVE ORDER 

For the purpose of protecting the interests of the parties and third parties in the 

above·captioned matter against improper use and disclosure of confidential infonnation 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order ("Order") shall govern the 

handling of all Discovery Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any docwnent or 

portion thereof that contains non·public, competitively sensitive information, including trade 

secrets or other confidential research, development, or commercial or financial information, as 

such terms are used in Rule 26(c) of the Federal Rules of Civil Procedure and Section 6(f) of the 

Federal Trade Commission Act, 15 U.S.C. § 46(f), and in the cases so construing them, 

"Document" shall refer to any discoverable writing, recording, transcript of oral testimony, or 

electronically stored information in the possession of a party or a third party. Discoverable 

writing or recording as defined in Rille 1001 of the Federal Rules of Evidence, "Commission" 

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shall refer to the Federal Trade Commission ("FTC"), or any of its employees, agents, attorneys, 

and aU other persons acting on its behalf, excluding persons retained as consultants or experts [or 

purposes of this proceeding. 

2. Any document or portion thereof submitted by a party or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is entitled to 

confidentiality under the Federal Trade Commission Act, or any regulation, interpretation, or 

precedent concerning documents in the possession of the Conunission, as well as any 

information taken from any portion of such document, shall be treated as confidential material 

for purposes of this Order. The identity of a third party submitting such confidential material 

shaU also be treated as confidential material for the purposes of this Order where the submitter 

has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any responsive 

document or portion thereof as confidential material, including documents obtained by them 

from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights herein. 

5. A designation of confidentiality shall constitute a representation in good faith and 

after careful determination that the material is not reasonably believed to be already in the public 

domain and that counsel believes the material so designated constitutes confidential material as 

defined in Paragraph I of this Order. 

6. Material may be designated as confidential by placing or affixing to the document 

containing such material (in such a manner as will not interfere with the legibility thereof), or, if 

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an entire folder or box of documents is confidential, by placing or affixing to that folder or box, 

the designation "DOCUMENTS SUBJECT TO PROTECTIVE ORDER" or any other 

appropriate notice that identifies this proceeding, together with an indication of portion or 

portions of the document considered to be confidential material. See Local Rule 7.10). 

Confidential information contained in electronic docwnents may also be designated as 

confidential by placing the designation "DOCUMENTS SUBJECT TO PROTECTIVE ORDER" 

or any other appropriate notice that identifies this proceeding, on the face of the CD or DVD or 

other medium on which the document is produced. Any filing or material filed with the court 

and labeled as "DOCUMENT UNDER SEAL," must be accompanied by a motion pursuant to 

Local Rule 5.10). Masked or otherwise redacted copies of documents may be produced where 

the portions deleted contain privileged matter, provided that the copy produced shall indicate at 

the appropriate point that portions have been deleted and the reasons therefor. 

7. Confidential material shall be disclosed only to: (a) appropriate judges and court 

personnel; (b) the Federal Trade Commission, its employees, and personnel it has retained as 

experts or consultants for this proceeding provided they have signed an agreement to abide by 

the terms of the Order; (c) outside counsel of record for defendants, their associated attorneys 

and other employees of their law firm(s), provided they are not employees of defendants; 

(d) anyone retained to assist outside counsel in the preparation or hearing of this proceeding, 

including consultants, provided they are not affiliated in any way with defendants and have 

signed an agreement to abide by the terms of the Order; and (c) any witness or deponent who 

may have authored or received the infonnation in question. 

8. Disclosure of confidential material to any person describcd in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or any 

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appeal therefrom, or for tbe purpose of the preparation and bearing in the FTC administrative 

proceeding directly related to this proceeding, and for no other purpose whatsoever, provided, 

however, that the Commission may, subject to taking appropriate steps to preserve the 

confidentiality of such material, use or disclose confidential material as provided by its Rules of 

Practice; Section 7 A(h) of the Clayton Act Sections 6(f) and 21 of the Federal Trade 

Commission Act; or any other legal obligation imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, 

exhibit or other paper filed or to be filed with the Clerk of the Court, the Clerk shall be so 

informed by the party filing such papers, and such papers shall be filed under seal. To the extent 

that such material was originally submitted by a third party, the party including the materials in 

its papers shall immediately notify the submitter of such inclusion. Confidential material 

contained in the papers (including confidential material from both parties and third parties) shall 

remain under seal until further order of this Court; provided, however, that such papers may be 

furnished to persons or entities who may receive confidential material pursuant to Paragraphs 7 

or 8. Upon or after filing any paper containing confidential material, the filing party shall file on 

the public record a duplicate copy of the paper that does not reveal confidential material. 

Further, if the protection for any such material expires, a party may file on the public record a 

duplicate copy which also contains the fonnedy protected material. 

10. If counsel plans to introduce into evidence at the hearing any document or 

transcript containing confidential material produced by another party or by a third party, they 

shall provide advance notice to the other party or third party for purposes of allowing that party 

to seck an order that the document or transcript be granted in camera treatment. If such party 

wishes in camera treatment for the document or transcript, the party shall file an appropriate 

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motion with the Court within 5 days after it receives such notice. Except where such an order is 

granted, all documents and transcripts shall be part of the public record. Where in camera 

treatment is granted, a duplicate copy of such document or transcript with the confidential 

material deleted therefrom may be placed on the public record. 

11. If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify the 

submitter of receipt of such request. Unless a shorter time is mandated by a court order, such 

notification shall be in writing and be received by the submitter at least 10 business days before 

production, and shall include a copy of this Order and a cover letter that will apprise the 

submitter of its rights hereunder. Nothing herein shall be construed as requiring the recipient of 

the discovery request or anyone else covered by this Order to challenge or appeal any order 

requiring production of confidential material, to subject itself to any penalties for 

non-compliance with any such order, or to seek any rclieffrom the Court. The recipient shall not 

oppose the submitter's efforts to challenge the disclosure of confidential material. In addition, 

nothing herein shall limit the applicability of Rule 4.11(e) of the Commission's Rules of 

Practice, 16 CFR § 4.11 (e), to discovery requests in another proceeding that are directed to the 

Commission. 

12. At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding or any related administrative 

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23rd December Digitally signed by Judge Robert L. 

Wilkins 

DN: cn=Judge Robert L. Wilkins, 

o=U.S. District Court, ou=Chambers 

of Honorable Robert L. Wilkins, 

email=RW@dc.uscourt.gov, c=US 

Date: 2011.12.23 16:15:52 -05'00'
Case 1:11-cv-02239-RLW Document 29 Filed 12/23/11 Page 7 of 7

Names of Persons To Be Served with Order 

Phillip L. Broyles 

Federal Trade Commission 

600 Pennsylvania Ave NW 

Mail Drop M-8026 

Washington, DC 20580 

(202) 326-2805 

PBroyles@ftc.gov 

Richard G. Parker 

O'Melveny & Myers LLP 

1625 Eye Street NW 

Washington, DC 20006 

(202) 383-5380 

RParker@omm.com 

J. Robert Robertson 

Hogan Lovells US LLP 

Colwnbia Square 

555 Thirteenth Street NW 

Washington, DC 20004 

Robby.Robcrtson@hoganlovclls.com