UNITED STATES OF AMERICA ORIGINAL

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

GRACO INC., ) 

a corporation, and ) 

) DOCKET NO. 9350 

ILLINOIS TOOL WORKS INC., ) 

a corporation, and ) 

) 

ITW FINISHING LLC, ) 

a limited liability company, ) 

Respondents. ) 

) 

ORDER DENYING RESPONDENT GRACO INC.'S IN CAMERA MOTION 

I. 

On January 30,2012, Respondent Graco Inc. ("Graco") filed an Opposition to a 

motion filed by third party Complete Automation, Inc. ("Complete") seeking to quash 

and/or limit a subpoena served on it by Graco ("Opposition"). That motion was resolved 

by Order dated February 2,2012. At the same time that Graco filed its Opposition on 

January 30,2012, Graco also filed a Motion to File In Camera Graco's Opposition. ("In 

Camera Motion"). The deadline for filing any opposition to Graco's In Camera Motion, 

February 10, 2012, has passed and no opposition has been filed. As explained below, 

Graco's In Camera Motion is DENIED as moot. 

II. 

Graco filed its In Camera Motion pursuant to Commission Rule 3 .45( e) and 

Paragraph 9 ofthe Protective Order entered in this case on December 16, 2011. 1 

Commission Rule 3 .45( e) states: "If a party includes specific information that has been 

granted in camera status pursuant to § 3 .45(b) or is subject to confidentiality protections 

pursuant to a protective order in any document filed in a proceeding under this part, the 

party shall file 2 versions ofthe document. A complete version shall be marked 'In 

1 Respondent Graco filed its In Camera Motion pursuant to Commission Rules 4.2( c )(2) and 4.2( c )(3)(ii) 

also. These rules govern requirements as to form and filing of documents and are consistent with 

Commission Rule 3.45. 
Camera' or 'Subject to Protective Order,' as appropriate, on the first page ..." 16 C.F.R.· 

§ 3.45(e). 

Commission Rule 3.31 (d) sets forth: "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 in this case was issued verbatim as it appears in Appendix A to § 3.31. 


Paragraph 9 ofthe Protective Order entered in this case states: "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 ofthe Commission, the Secretary shall be so 

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

Confidential material contained in the papers shall continue to have in camera treatment 

until further order ofthe Administrative Law Judge." 

The provision in Paragraph 9 ofthe Standard Protective Order that states that 

pleadings that contain confidential material "shall be filed in camera" is confusing and, to 

the extent that wording was meant to refer to standard "in camera treatment" in Part 3 

cases at the Federal Trade Commission, is in conflict with Commission Rule 3.45 and 

existing Commission precedent. Commission Rule 3.45(b) states: "A party ... may 

obtain in camera treatment for material ... offered into evidence only by motion to the 

Administrative Law Judge." 16 C.F.R. § 3.45(b) (emphasis added). Commission Rule 

3.45(b) goes on to require that "the Administrative Law Judge shall order that such 

material, whether admitted or rejected, be placed in camera only after finding that its 

public disclosure will likely result in a clearly defined, serious injury to the person, 

partnership, or corporation requesting in camera treatment or after finding that the 

material constitutes sensitive personal information." 16 C.F.R. § 3.45(b). 

Commission precedent makes clear that in camera treatment is appropriate only 

for documents "offered into evidence." As the Commission explained: in camera 

treatment's "purpose is to prevent the incorporation of sensitive data in the public record. 

The need for it therefore does not arise until the material is about to be submitted in 

evidence. It is an extraordinary device when applied as provided in the Commission's 

Rules to material about to be submitted." The Crown Cork & Seal Co., Inc., 71 F.T.C. 

1669, 1671 (1967). See also In re Bristol-Myers Co., 90 F.T.C. 455 ("Commission Rule 

3.45(a) allows ... [the ALJ to] grant in camera treatment for information at the time it is 

offered into evidence ...."); Lehigh Portland Cement Co., 74 F.T.C. 1629, 1968 FTC 

LEXIS 287, at *7, n.6 (1968) (premature to grant in camera treatment where there is a 

possibility that none ofthe information will be offered into evidence). 

Accordingly, "in camera treatment" is not appropriate for materials until they 

have been "offered into evidence." 16 C.F.R. §3.45(b). Because Graco's Opposition is 

not being "offered into evidence," Graco is not required to file a motion for in camera 

treatment. Instead, Commission Rule 3.45(d), "Briefs and other submissions referring to 

in camera or confidential information," governs the proper treatment of submissions not 

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being "offered into evidence," such as the Opposition. In accordance with Rule 3.45(d), 

"parties shall not disclose infonnation that ... is subj~ct to cOlifidentiality provisions 

pursuant to a protective order in the public version ofproposed findings, briefs, or other 

documents." 16 C.F.R. §3.45(d). . < 

;" 

III. 

Consistent with Commission Rule 3.45(d), Graco properly labeled its Opposition 

as "Confidential- FTC Docket No. 9350 - Subject to Protective Order" and showed the 

redactions of confidential infonnation that Graco made from its public version ofthe 

same filing. Due to the confusing wording in the Rules, as discussed above, it is 

understandable that a party would feel compelled to file a motion such as the instant In 

Camera Motion. Because Graco's Opposition is in compliance with Rule 3.45(d), no 

further action is necessary and the confidential infonnation contained in Graco' s 

Opposition will continue to be treated as Confidential. Because Graco was not required 

to file a motion for in camera treatment, its In Camera Motion is DENIED as moot. 

ORDERED: 


Date: February 13, 2012 

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