UNITED STATES OF AMERICA

THE FEDERAL TRADE COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

Graco Inc., et al.

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In 1 he Matter of Docket No. 9350

PUBLIC

MOTION TO FILE IN CAMERA GRACO'S MEMORANDUM IN OPPOSITION TO

COMPLETE AUTOMATION'S MOTION TO QUASH AND/OR LIMIT SUBPOENA

DUCES TECUM, AND THE AFFIDAVIT OF RICHARD A. DUNCAN

1. Defendant Graco Inc. ("Graco"), pursuant to Rules 3.45(e), 4.2(c)(2), 4.2(c)(3)(ii),

respectfully requests this Court to accept for filing in camera its Memorandum In Opposition to

Complete Automation's Motion to Quash and/or Limit Subpoena Duces Tecum, and the

Affdavit of Richard A. Duncan.

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3. Pursuant to the attached order of Chief Administrative Law Judge Chappell

("P:'Otective Order"), "[i]n the event that any confidential material is contained in any pleading,

mol ion, exhibit or other paper filed or to be filed with the Secretary of the Commission, the

Sec retary shall be so informed by the Party filing such papers, and such papers shall be filed in

carr era." Protective Order, ~ 9.

4. Pursuant to the attached Protective Order, Graco has notified Complete Automation,

Inc. of the inclusion of the confidential materials. Protective Order, ~ 9.

5. Attached hereto is a copy of each page ofthe document on which in camera material

app ears. Confidential material has been highlighted. We have also noted the name and address of

01 31 2012 
the person who should be notified of the Commission's intent to disclose in a final decision any

of t re confidential material contained in the document.

Dated: January 30, 2012 Respectfully submitted,

sf Richard G. Parker

Richard G. Parker

Michael E. Antalics

Katrina M. Robson

O'MEL VENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5300

(202) 383-5414 (fax)

and

John H. Hinderaker

Richard A. Duncan

FAEGRE BAKER DANIELS LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402-3901

(612) 766-7000

(612) 766-1600 (fax)

Attorneys for Respondent

Graco Inc.

tb.w.8032608.01
UNITED STATES OF AMERICA
 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

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In the Matter of )
 

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GRACOINC.,

a corporation, and

ILLINOIS TOOL WORKS INC.,

a corporation, and

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)

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DOCKET NO. 9350
 

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ITW FINISHING LLC,

a limited liability company,

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)
 

Respondents. )

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL

Commission Rule 3.31(d) 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." 16 C.F.R.

§ 3.31(d). Pursuant to Commission Rule 3.31(d), the protective order set forth in the

appendix to that section is attached verbatim as Attachment A and is hereby issued.

ORDERED:

D. Michael Chappell

Chief Administrative Law Judge

Date: December 16,2011
ATTACHMENT A

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

above-captioned matter against improper use and disclosure of confidential information

submitted or produced in connection with this matter:

IT IS HEREBY ORDERED THAT this Protective Order Governing

Confidential Material ("Protective Order") shall govern the handling of all Discovery

Material, as hereafter defined.

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

thereof that contains privileged, competitively sensitive information, or sensitive personal

information. "Sensitive personal information" shall refer to, but shall not be limited to,

an individual's Social Security number, taxpayer identification number, financial account

number, credit card or debit card number, driver's license number, state-issued

identification number, passport number, date of birth (other than year), and any sensitive

health information identifiable by individual,such as an individual's medical records.

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

testimony, or electronically stored information in the possession of a party ora third

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons

retained as consultants or experts for purposes of this proceeding.

2. Any document or portion thereof submitted by a respondent 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 Commission,

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 shall 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 1 of this Order.

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

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

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

folder or box, the designation "CONFIDENTIAL-FTC Docket No. 9350" or any other

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

portion or portions of the document considered to be confidential material. Confidential

information contained in electronic documents may also be designated as confidential by

placing the designation "CONFIDENTIAL-FTC Docket No. 9350" 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. 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) the Administrative Law Judge

presiding over this proceeding, personnel assisting the Administrative Law Judge, the

Commission and its employees, and personnel retained by the Commission as experts or

consultants for this proceeding; (b) judges and other court personnel of any court having

jurisdiction over any appellate proceedings involving this matter; (c) 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; (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 a respondent and have signed an

agreement to abide by the terms of the protective order; and (e) any witness or deponent

who may have authored or received the information in question.

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

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

any appeal therefrom, 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;

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 Secretary of the Commission, the Secretary

shall be so informed by the Party filing such papers, and such papers shall be filed in

camera. 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 shall continue to have in camera

treatment until further order of the Administrative Law Judge, 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

suchmaterial expires, a party may file on the public record a duplicate copy which also

contains the formerly protected material.

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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 seek an order that the document or transcript be granted in camera treatment. If

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

an appropriate motion with the Administrative Law Judge 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 an order of

a court, 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 Protective 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

relief from the Administrative Law Judge or the Commission. 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 4.1 1(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, including the exhaustion

of judicial review, the parties shall return documents obtained in this action to their

submitters, provided, however, that the Commission's obligation to return documents

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4.12.

13. The provisions of this Protective Order, insofar as they restrict the communication

and use of confidential discovery material, shall, without written permission of the

submitter or further order of the Commission, continue to be binding after the conclusion

of this proceeding.

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ADDITIONAL NON-PUBLIC DOCUMENTS OMMITTED AS
 

CONFIDENTIAL-FTC Docket No. 9350 - Subject to Protective Order
 
















 

 

 

 

CERTIFICATE OF SERVICE 

I certify that on January 31, 2012, I have caused the foregoing Public versions of Graco’s 

Memorandum in Opposition to Complete Automation’s Motion to Quash and/or Limit Subpoena 

Duces Tecum, Affidavit of Richard A. Duncan, and Motion to File In Camera Graco’s 

Memorandum in Opposition to Complete Automation’s Motion to Quash and/or Limit Subpoena 

Duces Tecum and the Affidavit of Richard A. Duncan to be served by email upon Phillip Broyles 

(pbroyles@ftc.gov), Peter Richman (prichman@ftc.gov), Marc Schneider 

(mschneider@ftc.gov), and Amanda Hamilton (ahamilton1@ftc.gov) of the Federal Trade 

Commission; and upon J. Robert Robertson (robby.robertson@hoganlovells.com), Logan Breed 

(Logan.Breed@hoganlovells.com), Meghan Edwards-Ford (Meghan.EdwardsFord@hoganlovells.com) of Hogan Lovells US LLP, counsel for Illinois Tool Works Inc. and 

Illinois Tool Works Finishing LLC, and Daniel E. Chapman (dchapman@troylawfirm.com), 

counsel for Complete Automation, Inc. 

I also emailed a copy of the foregoing to secretary@ftc.gov, oalj@ftc.gov, and caused a 

copy to be filed via ECF. 

s/ Matthew M. Martin______________

 Matthew M. Martin (MNBN 989341) 

 Faegre Baker Daniels LLP 

2200 Wells Fargo Center 

90 South Seventh Street 

Minneapolis, MN 55402-3901 

(612) 766-7000 

(612) 766-1600 (fax) 

Attorney for Graco Inc. 

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