In-House Attorneys Can’t View Crucial Documents

The standard version of a Section 337 administrative protective order from the ITC provides only one level of confidentiality: outside counsel, and others identified in the APO who have subscribed and agreed to be bound by its terms, have access. Notably, the APO grants in-house counsel no access to information designated confidential. Since a number of documents in a Section 337 investigation contain confidential information from at least one entity, and often multiple entities, the vast majority of documents – including the most significant ones – are designated confidential. As a result, in-house counsel often cannot even see documents containing their own company’s information, including content of the final decision on whether the company won or lost.

Unless all parties reach accommodation, in-house counsel must rely almost entirely on the sanitized and non-specific information provided by outside counsel regarding the status of an investigation. This puts in-house counsel in a quandary. They must advise management on how to proceed, but that recommendation is rarely based on first-hand knowledge of the crucial evidence and arguments on which the case will rise or fall.

Understanding the APO, including the obligations of outside counsel to strictly adhere to its terms and work within its limits, can help in-house counsel devise agreements with the other parties to increase and expedite access to information. In-house counsel have several options to increase access. They require cooperation between parties. The authors describe some options, with the pros and cons of each.