UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

______________________________________

Secretary of Labor, )

 )

Complainant, )

 )

v. ) OSHRC Docket No. 20-1001

 )

Dura-Bond Steel Corporation, )

 )

Respondent. )

______________________________________ )

ORDER GRANTING RESPONDENT’S MOTION 

FOR ENTRY OF A PROTECTIVE ORDER 

I. BACKGROUND

Respondent is a Pennsylvania corporation doing business at 2658 Puckety Drive, Export, 

PA. Ex. B to Resp’t’s Mot. for Entry of Protective Order ¶ 3. As part of its regular business, 

Respondent “fabricates steel and spray coats fabricated items, pipe, and other steel shapes.” Id.

at ¶ 4. According to Jason Norris, Respondent’s President, Respondent is involved in a highly 

competitive industry wherein customers regularly solicit bids from Respondent as well as its 

competitors. Id. at ¶¶ 5-7. Because of the high degree of competition in Respondent’s industry, 

Respondent does not disclose any financial information, including information regarding profits 

and losses or tax returns, to anyone other than “select shareholders, as well as Respondent’s 

select accountants, attorneys, banks, and customers who require proof of financial strength as 

part of [their] bids.” Id. at ¶¶ 8-12.

As laid out in Respondent’s Corporate Disclosure Statement,1 Respondent is a subsidiary 

1 Respondent filed a Corporate Disclosure Statement with its Answer on September 18, 2020, as required by 

Commission Rule 35, and a second Corporate Disclosure Statement on April 20, 2021. Respondent filed the second 

Corporate Disclosure Statement to clarify that “Respondent ... does not have any subsidiaries” and that all the 

entities listed in the Corporate Disclosure Statement [filed with the Answer] are subsidiaries of Dura-Bond 

Industries, Inc.” See App’x A to Corporate Disclosure Statement of Dura-Bond Steel Corporation, OSHRC Docket 
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company of another company called Dura-Bond Industries, Inc. See App’x A to Corporate 

Disclosure Statement of Dura-Bond Steel Corp., OSHRC Docket No. 20-1001 (filed April 20, 

2021). Along with Respondent, Dura-Bond Industries has five other subsidiary companies: (1) 

Dura-Bond Pipe, LLC; (2) Dura-Bond Pipe I, LLC; (3) Dura-Bond Coating, Inc.; (4) D-B Air, 

LLC; and (5) Dura-Bond Development, Inc. Dura-Bond Industries and all of its subsidiaries, 

including Respondent, are “S Corporations.” Ex. B. to Resp’t’s Mot. for Entry of Protective 

Order ¶ 14. Generally speaking, this means Respondent and its related corporations are 

“corporation[s] whose income is taxed through [their] shareholders rather than through the 

corporation itself.” Corporation – S corporation, BLACK’S LAW DICTIONARY (11th Ed. 2019). 

The practical effect of this type of incorporation is that Respondent and its related corporations 

are generally not subject to federal or state taxation. See generally In re Majestic Star Casino, 

LLC, 716 F.3d 736, 742 (3d Cir. 2013); In re Dobson’s Estate, 417 A.2d 138, 143 (Pa. 1980); see 

also Marshall v. Commonwealth, 41 A.3d 67, 90 n.31 (Pa. Commw. Ct. 2012).

Following a series of inspections occurring between January 14, 2020 and April 14, 2020, 

the United States Occupational Safety and Health Administration (“OSHA”) issued to 

Respondent a six-item serious citation and a four-item other-than-serious citation (the 

“Citations”) alleging violations of various provisions of OSHA’s regulations.2

 The Citations 

No. 20-1001 (filed April 20, 2021). The Court will therefore only reference Respondent’s second Corporate 

Disclosure Statement for purposes of this order.

2 More specifically, the Citations alleged as follows:

Citation 1, Items 1a, 1b, and 1c related to spray finishing operations using flammable and combustible materials 

and alleged serious violations of 29 C.F.R. §§ 1910.107(a)(2), 1910.107(e)(4), and 1910.107(e)(5), respectively. 

Citation 1, Items 2a, 2b, and 2c related to the employees’ use of equipment during spraying operations and 

alleged serious violations of 29 C.F.R. §§ 1910.107(m)(1), 1910.94(c)(2), and 1910.134(g)(1)(i)(A).

Citation 1, Item 3 alleged a serious violation of 29 C.F.R. § 1910.244(b) for failure to have blast cleaning nozzle 

equipment with an operating valve which had to be held open manually.

Citation 1, Items 4a, 4b, and 4c related to the employees’ exposure to iron oxide fumes and alleged serious 

violations of 29 C.F.R. §§ 1910.1000(a)(2), 1910.252(c)(1)(iii), and 1910.1000(a), respectively.

Citations 1, Items 5a, 5b, 5c, and 5d related to measures and controls designed to limit employees’ exposure to 

respirable crystalline silica and alleged serious violations of 29 C.F.R. §§ 1910.1053(c), 1910.1053(d)(3)(iv), 
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proposed a total penalty of $35,085 for the alleged violations.

On June 25, 2020, Respondent submitted its Notice of Contest. Following an extension 

of time, the Secretary filed his Complaint on August 28, 2020. On September 18, 2020, 

Respondent filed its Answer. Among other affirmative defenses, Respondent asserted that 

compliance with certain standards would be technically and economically infeasible. Answer 

¶ 14. 

The parties have since engaged in written discovery. On February 12, 2021, the 

Secretary served his First Set of Interrogatories and First Set of Requests for Production of 

documents to Respondent. In his interrogatories, the Secretary sought, as is relevant here,

information regarding the gross and net income for Respondent and its related companies as set 

forth in Respondent’s Corporate Disclosure Statement. See Ex. C to Resp’t’s Mot. for Entry of 

Protective Order. The Secretary also sought information regarding the identity of the officers 

and ownership information for Respondent and its related companies. Id. In his request for 

documents, the Secretary sought, as is relevant here, Respondent’s federal tax returns for the 

years 2018, 2019, and 2020. Id. In its responses to the Secretary’s discovery requests, 

Respondent objected to producing the requested information, arguing, inter alia, that the 

Secretary’s requests would seek information that is proprietary or confidential business or 

1910.1053(f)(1), and 1910.94(a)(3)(i), respectively.

Citation 1, Items 6a, 6b, 6c, and 6d related to the medical surveillance of employees exposed to respirable 

crystalline silica and alleged serious violations of 29 C.F.R. §§ 1910.1053(i)(2)(i), (ii), (iii), (v) and 1910.1053(i)(4), 

respectively.

Citation 2, Item 1 alleged an other-than-serious violation of 29 C.F.R. § 1910.134(c)(1)(vi) for the respiratory 

protection program failing to have procedures to ensure adequate air quality, quantity, and flow of breathing air for 

atmosphere-supplying respirators.

Citation 2, Item 2 alleged an other-than serious violation of 29 C.F.R. § 1910.1053(f)(2)(i)(B) for the failure of 

the respiratory crystalline silica exposure plan to address the ventilators used by employees.

Citation 2, Item 3 alleged an other-than-serious violation of 29 C.F.R. § 1910.1053(j)(2) for failure to post 

warning signs at the workplace regarding respiratory crystalline silica.

Citation 2, Item 4 alleged an other-than-serious violation of 29 C.F.R. § 1053(k)(1)(ii)(F) for the failure of the 

exposure measurement records to contain the type of respirator worn by employees.
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commercial information or otherwise a trade secret. Id.

Following the Secretary’s discovery requests and Respondent’s opposition, the parties 

conferred on the possibility of the entry of a stipulated protective order. When the parties were 

unable to reach an agreement, Respondent filed a Motion for Entry of Protective Order on April 

6, 2021. In its motion, Respondent seeks to have a protective order entered allowing it to 

designate certain documents and testimony as containing “confidential information.” 

Respondent invokes Commission Rule 52(e)(7), which allows for the Court, upon a showing of 

good cause, to enter a protective order “[t]hat a trade secret or other confidential research, 

development, or commercial information not be disclosed or be disclosed only in a designated 

way.” Respondent also invokes 29 U.S.C. § 664, which allows for the Commission to issue 

orders to protect trade secrets and which references 18 U.S.C. § 1905.3

 Based on 18 U.S.C. 

§ 1905, Respondent seeks an order protecting “the trade secrets, processes, operations, style of 

work, or apparatus, or to the identity, confidential statistical data, amount or source of any 

income, profits, losses, or expenditures of any person, firm, partnership, corporation, or 

association; or ... any income return or copy thereof.” Respondent also argues that Pennsylvania 

state law’s definition of trade secrets would protect this information. Finally, Respondent argues 

that even if the information subject to the protective order does not constitute trade secrets, it is 

3 This section reads, in relevant part:

Whoever, being an officer or employee of the United States or of any department or agency thereof ... 

publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any 

information coming to him in the course of his employment or official duties or by reason of any 

examination or investigation made by, or return, report or record made to or filed with, such department or 

agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, 

operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of 

any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or 

permits any income return or copy thereof or any book containing any abstract or particulars thereof to be 

seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not 

more than one year, or both; and shall be removed from office or employment.
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nonetheless subject to protection as “other confidential research, development, or commercial 

information” under Commission Rule 52(e)(7). 

Respondent asserts it has established “good cause” for a protective order based on the 

Third Circuit’s test set forth in Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d. Cir. 1994)

(“Pansy”). Respondent argues that disclosure of the information sought by the Secretary could 

threaten Respondent’s business and place it at a competitive disadvantage and would reveal the 

full financial health of what is essentially a family business. Respondent further argues that a 

document-by-document request for protection will promote the sharing of information between 

the parties. Respondent further argues that, because the information sought by the Secretary 

relates to a privately held corporation, it does not directly impact public health or safety and that 

its proposed order is limited to disclosure of information that does not impact public health or 

safety.

On April 19, 2021, the Secretary filed his Response in Opposition to Respondent’s 

Motion for a Protective Order. The Secretary requests that Respondent’s Motion for Entry of 

Protective Order be denied. The Secretary emphasizes that there is a common law presumption 

of access to judicial records. The Secretary goes on to note that it is Respondent’s “high” burden 

to establish the need for a protective order. The Secretary further argues that Respondent has 

initially proposed a broad protective order when it has a burden to demonstrate the need for a 

protective order on every document it seeks to be protected. The Secretary takes issue with 

Respondent’s proposed order to the extent it grants Respondent a unilateral ability to designate 

as confidential any document it believes to be of a proprietary, confidential, or sensitive nature. 

Regarding the Secretary’s request for income, tax, and ownership information for 

Respondent and its related companies, the Secretary argues this information is relevant with 
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regard to Respondent’s affirmative defense of economic infeasibility. Particularly, the requested 

financial and ownership information may factor into Respondent’s ability to offset the cost of 

abatement measures for the identified hazards. The Secretary argues that Respondent has not 

substantiated its allegations of harm from the disclosure of this information. 

The Secretary further argues that the affidavit of Jason Norris accompanying 

Respondent’s Motion for Entry of Protective Order fails to establish a specific and concrete need 

for a protective order. Mr. Norris’ assertions that revelation of the requested information to 

Respondent’s competitors would put it at a competitive disadvantage are unavailing because 

there is no assertion that competitors are actually seeking this information or any detail as to how 

Respondent’s competitors could use it to put Respondent at a competitive disadvantage.

Finally, the Secretary argues that, even if the Court issues a protective order, the part of 

Respondent’s proposed order governing worksite visits with a non-government expert is 

unnecessarily restrictive. This section of Respondent’s proposed order would require the 

Secretary to inform Respondent’s counsel of his intention to disclose documents to a potential 

interviewee, give Respondent’s counsel a chance to object, and allow for Respondent’s counsel 

to be present for any such interview. In the Secretary’s view, this does not comport with the 

Commission’s decision in Owens-Illinois, Inc., 6 BNA OSHC 2162 (No. 77-648, 1978). 

On April 29, 2021, Respondent filed its Reply in Support of Motion for Entry of 

Protective Order. In its reply, Respondent argues that its initially proposed protective order is 

explicitly authorized by Commission Rule 52(e)(7). Respondent argues that the Secretary’s 

argument that the originally proposed protective order is a blanket order is unfounded. 

Respondent points to 18 U.S.C. § 1905 and OSHA’s own Field Operations Manual (“FOM”) as 

guidance for the type of information that would be protected as a “trade secret.” Respondent 
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also points out that the proposed order provides a mechanism for the Secretary to dispute 

Respondent’s designation of information as confidential and to resolve the dispute with the Court 

if necessary. It asserts that this type of protective order is routinely entered by courts.

Response also argues that the Secretary has not disputed Respondent’s good cause 

analysis under Pansy. Nor has the Secretary contradicted Mr. Norris’ affidavit that disclosure of 

certain trade secrets could cause harm to Respondent, which operates in a highly competitive 

industry where bidding is the norm. Respondent argues that Mr. Norris’ affidavit demonstrates 

that without a protective order, the Secretary can electronically file all information and disclose it 

to his experts. Such information would be of great interest to Respondent’s competitors, would 

give Respondent’s competitors a full picture of Respondent’s financial health, and would give its

competitors an advantage of sharing this information in the market and underbidding 

Respondent. In any event, Respondent argues that its originally proposed protective order was 

drafted to be streamlined by only addressing discovery, not any admissibility issues at the 

hearing. Finally, Respondent agrees with the Secretary any protective order in this case should 

be in accordance with Owens-Illinois.4

On May 17, 2021, the Court heard oral argument on Respondent’s Motion for Entry of 

Protective Order. At the conclusion of oral argument, the Court indicated its intention to grant 

Respondent’s Motion for a Protective Order and directed the parties to reach agreement on a 

proposed protective order.5

 

On June 11, 2021, the parties submitted a “[Revised Proposed] Protective Order” which 

the Court hereby approves and is hereinafter referred to as the “Dura-Bond Protective Order” in 

4 Due to Respondent’s concession, the Court does not address the Secretary’s arguments on this subject. 5 The parties were given first until June 4, and then June 11, 2021, to fashion an order acceptable to both parties. .
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this case.

The Court now issues this order to substantiate its ruling made at oral argument. For the 

reasons that follow, the Court grants Respondent’s Motion for Entry of Protective Order to the 

extent indicated below.

II. ANALYSIS

There is a common law right to access of judicial records and materials.6 See In re 

Cendant, 260 F.3d 183, 192 (3d Cir. 2001); Littlejohn v. BIC Corp., 851 F.2d 673, 677-78 (3d 

Cir. 1988). However, a party may overcome this right and be granted a protective order by 

demonstrating “that the material is the kind of information that the courts will protect and that 

disclosure will work a clearly defined and serious injury to the party seeking closure.” In re 

Cendant, 260 F.3d at 194.

Respondent has invoked Commission Rule 52(e)(7) for its requested protective order, 

which empowers the Court, “where a showing of good cause has been made,” to issue an order 

“[t]hat a trade secret or other confidential research, development, or commercial information not 

be disclosed or be disclosed only in a designated way.” 29 C.F.R. § 2200.52(e)(7). The 

proponent of the protective order bears the burden of justifying the necessity of the order through 

a showing of good cause. Pearson v. Miller, 211 F.3d 57, 72 (3d Cir. 2000). The proponent can 

demonstrate good cause by showing that “disclosure [of the information sought to be protected] 

will work a clearly defined and serious injury” on the party. Pansy, 23 F.3d at 786. “The injury 

must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples 

or articulated reasoning, do not support a good cause showing.” Id. (internal citation omitted).

6 Likewise, with certain exceptions, documents filed with the Commission via E-file may be available to the public. 

See Commission Rule 8(c)(5) (detailing those documents which are not to be filed in the Commission’s E-filing 

system, including those under a protective order).
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Under Third Circuit precedent,7 the touchstone of the Court’s analysis is the Circuit’s 

decision in Pansy. In Pansy, the court set out a “non-exhaustive” list of factors to consider in 

determining whether a party has demonstrated “good cause” for a protective order to issue. 

Pansy, 23 F.3d 787-89. The factors set out by the Pansy court were as follows:

1) whether disclosure will violate any privacy interests;

2) whether the information is being sought for a legitimate purpose or an improper 

purpose;

3) whether disclosure of the information will cause a party embarrassment;

4) whether confidentiality is being sought over information important to public health and 

safety;

5) whether the sharing of information among litigants will promote fairness and 

efficiency;

6) whether a party benefitting from the order of confidentiality is a public entity or 

official; and

7) whether the case involves issues important to the public.

E.E.O.C. v. Kronos Inc., 620 F.3d 287, 302 (3d Cir. 2010), citing Pansy, 23 F.3d at 787-91. 

While some protective orders protect specific, previously identified documents, others, 

such as the order Respondent has proposed, allow a party to designate documents or other 

information as confidential while also allowing the opposing party to challenge that designation. 

Dura-Bond Protective Order ¶¶ 1, 12-13, 16(d)-17. The Third Circuit endorsed this approach in 

Cipollone v. Liggett Grp., Inc., 785 F.2d 1108 (3d Cir. 1986), holding:

[A] party seeking the protective order must [not] necessarily demonstrate to the court in 

the first instance on a document-by-document basis that each item should be protected. It 

is equally consistent with the proper allocation of evidentiary burdens for the court to 

construct a broad “umbrella” protective order upon a threshold showing by one party (the 

movant) of good cause. Under this approach, the umbrella order would initially protect 

7 The employer or the Secretary may appeal a Commission order to the federal court of appeals for the circuit in 

which the violation allegedly occurred or where the employer has its principal office, and the employer also may 

appeal to the District of Columbia Circuit. See 29 U.S.C. §§ 660(a) and (b). Here, the violation occurred in

Pennsylvania, in the Third Circuit, where Respondent’s office is also located. See 29 U.S.C. § 660(b). The 

Commission has held that “[w]here it is highly probable that a case will be appealed to a particular circuit, the 

Commission generally has applied the precedent of that circuit in deciding the case— even though it may differ 

from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96- 1719, 2000). The 

Court therefore applies the precedent of the Third Circuit in issuing this order, which precedent was also largely 

relied upon by the parties in their respective arguments.
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all documents that the producing party designated in good faith as confidential. After the 

documents delivered under this umbrella order, the opposing party could indicate 

precisely which documents it believed to be not confidential, and the movant would have 

the burden of proof in justifying the protective order with respect to those documents. 

The burden of proof would be at all times on the movant; only the burden of raising the 

issue with respect to certain documents would shift to the other party.

Id. at 1122.

The Court finds Respondent has shown good cause for the Court to issue a protective 

order. As noted above, the class of documents Respondent is seeking to protect from disclosure 

are “trade secrets,” as defined by 29 U.S.C. § 664 and 18 U.S.C. § 1905. See Dura-Bond

Protective Order ¶ 1. Respondent is particularly concerned about the disclosure of certain 

financial information. Mr. Norris’ affidavit accompanying Respondent’s motion has 

demonstrated with sufficient specificity the type of injury from which it is seeking protection. 

Namely, Mr. Norris has averred that the financial information Respondent is seeking to protect is 

not normally disclosed except to a small group of individuals. Ex. B. to Resp’t’s Mot. for Entry 

of Protective Order ¶ 10. Because Respondent is involved in a “highly competitive industry,” its 

jobs are “subject to competitive bidding directly with Respondent’s competitors.” Id. at ¶¶ 6 & 

7. If Respondent’s financial information became publicly available, it “would give competitors a 

full picture of the financial health and business of Respondent and pricing and bidding 

information to understand how to better compete and improve their position in the market, to the 

detriment of Respondent.” Id. at ¶ 23. The Court finds Respondent has supported its allegation 

of harm with “articulated reasoning” to warrant to the issuance of the kind of protective order it 

seeks. Pansy, 238 F.3d at 786.

The Court further finds several of the remaining Pansy factors, which are “neither 
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mandatory nor exhaustive,”8 favor the issuance of a protective order here. With regard to 

whether the information would violate any privacy interests, the OSH Act, Commission Rules, 

and the Secretary’s own FOM recognize that trade secret information should be protected as 

confidential. See 29 U.S.C. § 664 (“All information reported to or otherwise obtained by the 

Secretary or his representative in connection with any inspection or proceeding under this 

chapter which contains or which might reveal a trade secret referred to in section 1905 of Title 

18 shall be considered confidential for the purpose of that section ...”); 29 C.F.R. 

§ 2200.52(e)(7) (“In connection with any discovery procedures and where a showing of good 

cause has been made, the Commission or the Judge may make any order including, but not 

limited to, one or more of the following: ... (7) That a trade secret or other confidential research, 

development, or commercial information not be disclosed or be disclosed only in a designated 

way ...); FOM (CPL 02-00-164), Ch. 3, VII(E)(1) (eff. April 14, 2020) (“CSHOs and OSHA 

personnel shall preserve the confidentiality of trade secrets.”). Although workplace safety is a 

matter of public importance, Respondent is not a public entity and its financial information does 

not directly impact public health or safety.9 Indeed, this information is generally not disclosed to 

anyone from the public, including federal and state taxing authorities. See In re Majestic Star 

Casino, LLC, 716 F.3d at 742; In re Dobson’s Estate, 417 A.2d at 143; see also Marshall, 41 

A.3d at 90 n.31. Finally, the Court finds that, if Respondent is assured that its financial 

information will not immediately be subject to public filing and disclosure, the protective order 

will promote the sharing of information between the parties during the discovery process.

8 Glenmede Tr. Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995). 9 The Court notes that some financial information will be relevant and discoverable as it relates to Respondent’s 

defense of economic infeasibility. As addressed in a separate order, the Court compels Respondent to provide some 

of this information in response to the Secretary’s interrogatories.
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The Secretary’s main contention in opposing the protective order is that Respondent’s 

originally proposed protective order is overly broad, “covering broad categories of information 

and an unknown universe of documents.” Sec’y’s Resp. in Opp’n to Resp’t’s Mot. for Entry of 

Prot. Order 5. The Secretary also takes issues with Respondent being able to “unilaterally 

identify any document or discovery material” as protected by the order. Id. However, the Third 

Circuit specifically endorsed this type of “umbrella” protective order in Cipollone. The Court 

also notes that the Dura-Bond Protective Order is limited in scope to “trade secrets,” as defined 

by 29 U.S.C. § 664, 18 U.S.C. § 1905, and Pennsylvania law. See Dura-Bond Protective Order ¶ 

1. Any designation made by Respondent that information is subject to protection under the 

Dura-Bond Protective Order must be made in good faith, subject to the threat of sanctions.

Cipollone, 785 F.2d at 1122 n.17. Finally, in the event the Secretary believes Respondent has 

marked information as confidential that does not properly fall under the Dura-Bond Protective 

Order, the order allows the Secretary to challenge the designation with the Court. Dura-Bond 

Protective Order ¶¶ 13, 16(d). In such an instance, the burden will be on Respondent to justify 

the protection of the specific information. See Cipollone, 785 F.2d at 1122.

The Secretary also argues that Respondent has not demonstrated good cause with 

specificity. The Court disagrees. Respondent’s allegations of harm to its bidding process from 

the disclosure of certain financial information are specific enough to warrant protection of the 

information. Cf. Glenmede Tr. Co., 56 F.3d at 483 (generalized accusation of “potential 

economic harm” from disclosure of information was insufficient to support motion for a 

protective order). Should a challenge to a specific document or discovery material be brought 

before the Court, Respondent will have to demonstrate with greater particularity that good cause 

supports protection of the information. Cipollone, 785 F.2d at 1122.
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Based on the foregoing, the Court finds Respondent has demonstrated good cause for the 

issuance of the Dura-Bond Protective Order. Accordingly, the Court approves and enters the

Dura-Bond Protective Order submitted by the parties to the Court on June 11, 2021,

contemporaneously with this Order. See 29 C.F.R. §2200.52(e).

III. ORDER

WHEREFORE IT IS ORDERED that Respondent’s Motion for Entry of Protective Order 

is GRANTED, to the extent indicated herein, and 

IT IS FURTHER ORDERERD that the Dura-Bond Protective Order submitted by the 

parties to the Court on June 11, 2021 is approved and entered into the record.10

SO ORDERED.

/s/

The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Date: June 14, 2021

Washington, D.C.

Attachment

Court Approved Dura-Bond Protective Order.

10 The Court approved Dura-Bond Protective Order is attached hereto.
1

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant, 

v.

DURA-BOND STEEL CORPORATION,

Respondent.

OSHRC No. 20-1001

Inspection No. 1455579

Judge Dennis Phillips

DURA-BOND PROTECTIVE ORDER

AND NOW, this 14th day of June, 2021, upon consideration of Respondent Dura-Bond 

Steel Corporation's Motion for Entry of Protective Order, and any response thereto or argument 

thereon, it is hereby ORDERED that Respondent's Motion is GRANTED. It is further ORDERED 

that all parties to this action shall abide by the terms set forth in this Protective Order.

1. This Protective Order governs the use, handling, and potential disclosure of any 

correspondence, document, or other discovery material in this matter, including testimony or 

deposition transcripts, which are believed by the producing party to be of a proprietary,

confidential, or sensitive nature and which are so designated or marked as "CONFIDENTIAL 

INFORMATION." For purposes of this Protective Order, "Confidential Information" shall 

include information that concerns or relates to the trade secrets, processes, operations, style of 

work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, 

profits, losses, or expenditures of a party or any income return or copy thereof. This includes 

financial information regarding profits, losses, or profitability (including net and gross income); 

tax returns or records; and information regarding bidding, costs, and pricing (such as customer 
2

information and pricing information for products and services, customer lists, quotes, estimates, 

orders, and payment information) which is produced or obtained in this matter for any purpose, 

including settlement or discovery. The Confidential Information includes documents themselves 

and the information therein.

2. All such Confidential Information shall be treated as confidential by all parties and 

persons acting on behalf of a party, and shall not be used for any purpose except settlement, 

defense, or prosecution of the above-captioned case. 

3. Confidential Information may only be copied, disclosed, disseminated, discussed, 

or inspected, in whole or in part, for purposes of this proceeding and only by the following persons:

a. the parties to this proceeding (for Respondent, its officers/principals);

b. counsel representing any party in this proceeding and counsel's employees;

c. the author/drafter of the specific Confidential Information;

d. the Commission and any persons employed by the Commission working on this 

proceeding (collectively, the "Commission");

e. court reporters, including stenographers and video technicians;

f. independent document production services; 

g. experts and consultants, and their staff, retained by a party, or a party's counsel, to 

assist in the preparation and trial of this proceeding; and

h. interviewees, potential witnesses, deponents, hearing or trial witnesses, and any 

other similar person, where counsel for a party to this action in good faith 

determines the individual should be provided access to the Confidential 

Information for counsel to more effectively prosecute or defend this action, and 
3

the Confidential Information is relevant to the person's role and testimony in this 

proceeding. 

4. Disclosure of any Confidential Information shall not be made to any person other 

than those described in Paragraph 3 above. If disclosure of Confidential Information is to a person 

described in Paragraph 3.g or 3.h above, including any experts or consultants retained by a party 

in this proceeding, disclosure shall not be made unless and until the party intending to disclose 

such Confidential Information to such person shall have first advised the person of this Protective 

Order and that such disclosure is being made pursuant and subject to this Protective Order. For 

any experts, consultants, and/or other persons not a party to this proceeding described in Paragraph 

3.g above which are consulted or retained by a party for purposes of this proceeding, prior to 

disclosing any Confidential Information to such person(s), the party disclosing Confidential 

Information to such person(s) shall ensure such expert, consultant, or other person signs a written 

oath that provides as follows, which the disclosing party shall also incorporate into any contract 

between the disclosing party and such person(s) for this matter as a nondisclosure provision:

I, _______________________________, HAVE READ A COPY OF THE 

ATTACHED PROTECTIVE ORDER ENTERED IN THIS PROCEEDING, 

AND I AM FAMILIAR WITH ITS TERMS. I HEREBY ACKNOWLEDGE 

THAT DURING MY PARTICIPATION IN THIS PROCEEDING I MAY HAVE 

OCCASION TO OBTAIN ACCESS TO, OR BECOME AWARE OF,

CONFIDENTIAL INFORMATION AS DEFINED IN THE PROTECTIVE

ORDER.

I CERTIFY MY UNDERSTANDING THAT THE CONFIDENTIAL

INFORMATION IS BEING PROVIDED TO ME PURSUANT TO THE TERMS 

AND RESTRICTIONS OF THE PROTECTIVE ORDER. I CLEARLY 

UNDERSTAND THAT THE CONFIDENTIAL INFORMATION AND MY 

COPIES AND NOTES RELATING THERETO MAY ONLY BE DISCLOSED 

TO OR DISCUSSED WITH THOSE PERSONS PERMITTED BY THE 

PROTECTIVE ORDER TO RECEIVE SUCH MATERIAL.
4

I AGREE TO USE ANY SUCH CONFIDENTIAL INFORMATION SOLELY IN 

CONNECTION WITH MY PARTICIPATION IN THIS PROCEEDING. I 

AGREE TO ABIDE BY SAID PROTECTIVE ORDER IN EVERY RESPECT.

I WILL RETURN ON REQUEST ALL DOCUMENTS CONTAINING 

CONFIDENTIAL INFORMATION AND ANY COPIES THEREOF TO 

COUNSEL FOR THE PARTY THAT PROVIDED ME WITH SUCH 

CONFIDENTIAL INFORMATION. 

I MAKE THE ABOVE STATEMENTS UNDER PENALTY OF PERJURY. I 

UNDERSTAND THAT THE EXPRESS INTENT OF MY STATEMENTS IS 

THAT THE PARTY ENTITLED TO PROTECTION OF THE CONFIDENTIAL 

INFORMATION IS A THIRD-PARTY BENEFICIARY OF THE 

STATEMENTS AND IS GRANTED A RIGHT TO ENFORCE THE 

PROVISION AND PROTECTIVE ORDER.

PRINTED NAME: ________________________

SIGNATURE: ___________________________

DATE: _________________________________

5. Breach of the oath in Paragraph 4 is a direct violation of this Protective Order.

6. Upon request, a true and correct copy of each executed oath in Paragraph 4 above 

shall be provided to the party originally producing the Confidential Information consistent with 

discovery deadlines in this matter, including for expert disclosures.

7. All Confidential Information is considered confidential and sensitive and, 

therefore, shall not be filed electronically pursuant to Commission rules, including 29 C.F.R. § 

2200.8. If a party wishes to file Confidential Information in this proceeding, the party shall file 

the Confidential Information directly with the assigned Judge under seal (see 29 C.F.R. 

§§ 2200.8(b)-(c)(5)(i), 2200.52(e)). Notwithstanding the foregoing, if a version of the filing must 

be electronically filed for any reason, then all Confidential Information shall be omitted or redacted

before filing. 

8. No copies of Confidential Information shall be made unless necessary in connection 

with this proceeding. Upon completion of this proceeding, only one copy of any Confidential 
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Information may be retained by counsel, and the provisions of this Protective Order shall remain 

in effect after the termination of this matter unless otherwise agreed by the parties in writing or 

pursuant to Commission order. Within thirty (30) days after a final order in the above-captioned 

proceeding, or in the event of appeals, within thirty (30) days after appeals are exhausted, the 

parties, upon request by the originally producing party, shall either destroy (and certify destruction) 

or return all copies of all documents and other materials not entered into the record, including

nonprivileged notes, which contain any Confidential Information, except for one copy that may be 

retained by counsel pursuant to this Paragraph. 

9. Any party may file a motion for a further protective order to further address the use, 

handling, and potential disclosure of Confidential Information before, during, or after hearing. 

10. If any party desires to request that any Confidential Information be subject to 

further protective order, the party shall file an appropriate motion separately seeking such an order.

11. Either party may expressly consent in writing that a document produced by it 

pursuant to discovery may be removed from the scope of this Protective Order. Such consent shall 

be clearly indicated in writing addressed to the other party. 

12. Documents and information drafted or developed by either party, including its 

experts and consultants, that contain Confidential Information shall likewise be designated and 

treated as Confidential Information pursuant to this Protective Order.

13. If either party considers any documents not to be Confidential Information as 

defined in this Protective Order and desires the removal of such designation, the party shall discuss 

the matter with counsel for the party producing the documents to ascertain if confidentiality by 

agreement may be lifted or narrowed. In the event the parties disagree over a confidential 

designation, either party may file a motion seeking a ruling on the confidential designation.
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14. This Protective Order shall not preclude or limit the offering or presentation of

evidence (including testimony) during any hearing in this matter, except as provided in this 

Paragraph. Notwithstanding the foregoing, during portions of any hearing that involve 

presentation of evidence or testimony involving Confidential Information, the hearing shall be 

closed and limited to only those participants necessary for such presentation of evidence or 

testimony. If the parties disagree regarding whether any participant is necessary during hearing, a

party may request that the Court decide during hearing, consistent with the provisions of this 

Protective Order and any other protections afforded by law. The parties reserve all rights to apply 

to the Court for protection with respect to the confidentiality of exhibits, testimony, or other 

evidence during any hearing in this matter. 

15. The termination of proceedings in this action shall not relieve any person to whom 

Confidential Information has been disclosed in this matter from the obligations of this Protective 

Order, unless required otherwise by law or Commission order.

16. Producing or receiving information designated as Confidential Information or 

otherwise in accordance with the terms of this Protective Order shall not:

a. Prejudice in any way the rights of Complainant or Respondent to object to the 

production of documents they consider not subject to discovery;

b. Operate as an admission by any party that the restrictions and procedures set forth 

herein constitute adequate protection for any particular document or information 

deemed by any party to be confidential;

c. Prejudice in any way the rights of any party to object to the authenticity or 

admissibility into evidence of any document, testimony, or other evidence subject 

to this Protective Order;
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d. Prejudice in any way the rights of Complainant or Respondent to seek a 

determination by the Commission whether any document should be subject to the 

terms of this Protective Order;

e. Prejudice in any way the rights of Complainant or Respondent to petition the 

Commission for a protective order relating to any purportedly Confidential 

Information or seek any other legal or equitable remedies that may be available in 

the event of actual or anticipated disclosure of Confidential Information; or

f. Prevent Complainant and Respondent from agreeing to alter or waive the 

provisions or protections provided herein with respect to any particular 

information.

17. This Protective Order shall be interpreted with the understanding that each party 

does not intend to restrict its own ability to use documents or information where that party is the 

author and has designated the document as a Confidential Information.

18. The terms of this Protective Order are subject to modification, extension, or 

limitation as may be hereinafter ordered by the Commission.

SO ORDERED.

/s/ 

The Honorable Dennis L. Phillips

 U.S. OSHRC Judge

Date: June 14, 2021

Washington, D.C.