PUBLIC

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

__________________________________________

 ) 

In the Matter of ) 

 ) 

The Procter & Gamble Company, ) 

 a corporation, ) Docket No. 9400

 ) 

 and ) 

 ) 

Billie, Inc., ) 

 a corporation, ) 

 ) 

Respondents. ) 

__________________________________________)

PROTECTIVE ORDER GOVERNING CONFIDENTIAL 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.” 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, 2020

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ATTACHMENT A

For the purpose of protecting the interests of the parties and third parties in the abovecaptioned 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 or a 

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. 9400” 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. 9400” 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 such material 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 4.11(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, 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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