[00:00:00] Speaker 04: We have four cases this morning. [00:00:01] Speaker 04: The first two are consolidated for argument, both in Ray US, number 241566 and 25127. [00:00:09] Speaker 04: Ms. [00:00:11] Speaker 04: McNamara. [00:00:17] Speaker 05: Good morning. [00:00:18] Speaker 05: Courtney McNamara on behalf of the US International Trade Commission. [00:00:22] Speaker 04: Could I understand a little bit better about what happened here? [00:00:25] Speaker 04: As I understand it, in the [00:00:28] Speaker 04: In the mattress case, the opinion was released without an opportunity for the parties to object to the disclosure of any confidential information. [00:00:38] Speaker 04: And afterwards, there was a motion by the United States to retract information from the opinion. [00:00:45] Speaker 04: Was there any objection by the private parties to any of the information that was disclosed in the opinion? [00:00:52] Speaker 05: No, actually, they joined. [00:00:53] Speaker 05: It was a joint motion. [00:00:54] Speaker 04: But I understand, but the motion was based on the notion that under the ITC practice, questionnaires are automatically confidential. [00:01:03] Speaker 04: What I'm asking, was there any objection to specific information that was disclosed in the opinion? [00:01:10] Speaker 04: It's difficult for us, because as I understand it, the briefs on confidentiality in the Court of International Trade were confidential. [00:01:19] Speaker 04: We don't have access to them. [00:01:21] Speaker 04: They're not in the appendix. [00:01:24] Speaker 05: The motion was, and it does have the information. [00:01:28] Speaker 05: Again, it was a joint motion. [00:01:29] Speaker 05: And so it was explained in the attachment what all of the precise information was. [00:01:35] Speaker 05: The companies didn't file their own motion or separately object to anything in particular. [00:01:42] Speaker 05: But they did all the parties consented that this was, that the information should all be treated as proprietary. [00:01:50] Speaker 04: OK, so there was no objection to particular information. [00:01:54] Speaker 05: Actually, that's not true. [00:01:57] Speaker 05: There is some. [00:01:57] Speaker 05: There was some. [00:01:59] Speaker 05: There wasn't a separate motion, but there was some information that was, for example, the court had spoken at the hearing about some information, and counsel was there for that. [00:02:13] Speaker 05: But then what the court disclosed was far more specific information. [00:02:19] Speaker 04: So there was objection to specific information in the motion. [00:02:22] Speaker 05: Yes, and that was in the attachment. [00:02:24] Speaker 04: In the mattress case? [00:02:25] Speaker 04: Yes, and that was in the attachment. [00:02:26] Speaker 04: But in the phosphate case, there was no objection to the specific information in the opinion? [00:02:31] Speaker 05: No, and if I could just make- You mean yes? [00:02:34] Speaker 05: I mean yes, sorry. [00:02:35] Speaker 05: I apologize, Your Honor. [00:02:36] Speaker 05: And if I could just make a quick point about the mattresses case is most of the information that was disclosed did not involve parties to litigation. [00:02:46] Speaker 05: So they would not be there and have an opportunity to object, particularly the purchasers, because purchasers can't be interested parties that participated in the proceedings below. [00:02:56] Speaker 05: By definition, they can't participate in the litigation. [00:02:58] Speaker 05: So they had no opportunity to object. [00:03:00] Speaker 01: In the phosphate case, that's not true. [00:03:03] Speaker 01: Is that right? [00:03:04] Speaker 05: Actually, that is true. [00:03:05] Speaker 05: In the phosphate case, there was some information that was released [00:03:10] Speaker 05: or that was proposed to be released. [00:03:13] Speaker 05: Yes, exactly. [00:03:14] Speaker 05: There was some information that in the record was rejected from [00:03:19] Speaker 05: as being entitled to continued protection in the court's march order. [00:03:25] Speaker 05: And what's important there is that there are two domestic producers that are a party to the case. [00:03:30] Speaker 05: There is one that is not. [00:03:32] Speaker 05: So the court was proposing to release that party's information as well. [00:03:37] Speaker 04: And then in the most- But did the non-parties have an opportunity to object in the phosphate case or to participate in the hearing? [00:03:44] Speaker 05: Yes, they did. [00:03:46] Speaker 05: The participle litigation participated in the hearing, and they submitted their own responses, and they... Apologies. [00:03:54] Speaker 01: You said that there was information from two parties, and also information from a non-party. [00:04:02] Speaker 01: Right. [00:04:03] Speaker 01: Did that non-party get notice? [00:04:06] Speaker 05: No. [00:04:07] Speaker 05: The parties to the litigation did participate, and they filed their own motion. [00:04:11] Speaker 04: And they had no objection to the information. [00:04:14] Speaker 05: Oh, no, they did. [00:04:14] Speaker 05: They did. [00:04:15] Speaker 05: One party in particular requested that its information continue to be treated as proprietary. [00:04:21] Speaker 05: The other consented to some being disclosed, but asked for other information to be continued to be protected. [00:04:29] Speaker 05: And then in the July order, [00:04:33] Speaker 05: The commission asked for five items to be redacted, three of which related to one of the parties to the proceedings and in the litigation, who confirmed that their information was business proprietary information and they wanted it to continue to be protected. [00:04:52] Speaker 05: The other information involved purchasers that, again, can't be parties to the litigation, so they would have no opportunity to be heard or object. [00:05:02] Speaker 01: Can I ask a very mundane but nevertheless necessary question on the mattresses case? [00:05:09] Speaker 01: The order of December 19th that disclosed all of it into the public was then followed by a letter and a motion and then an appeal from you more than 60 days after December 19th. [00:05:29] Speaker 01: How do we have jurisdiction? [00:05:32] Speaker 05: It continues to be capable of repetition. [00:05:38] Speaker 01: In fact, this... This is a timing question. [00:05:41] Speaker 01: There's a 60-day clock on appeals in government cases. [00:05:49] Speaker 01: Your appeal was within 60 days of the January refusal to alter the opinion. [00:05:58] Speaker 01: And I think you need to say that request to redact after the fact fits into some separately appealable order category, or told the timing on the December 19th one. [00:06:19] Speaker 01: And nobody has talked about this, and I haven't been able to straighten it out myself. [00:06:24] Speaker 05: So I apologize, just so that I understand that the court's concern is that the appeal time ran from the time of the disclosure or the time that the order was issued. [00:06:37] Speaker 01: Well, the December 19th order was a final judgment in the case, right? [00:06:41] Speaker 01: Correct. [00:06:41] Speaker 01: So that starts a clock on an appeal. [00:06:43] Speaker 01: That's the order that did the harm that you're complaining about. [00:06:47] Speaker 01: You didn't appeal within 60 days of that. [00:06:51] Speaker 01: Instead, you filed a letter, and the judge said, don't do it by letter. [00:06:54] Speaker 01: Do it by motion, but not under one of the rules 59, 60, whatever, that can toll the running of the clock on an appeal. [00:07:05] Speaker 01: Maybe it's a Rule 60 motion, or maybe not, whose denial would then be independently appealable. [00:07:12] Speaker 01: That's what I'm trying to understand. [00:07:15] Speaker 05: Well, the parties initially thought that this was an error. [00:07:17] Speaker 05: They thought it was an oversight by the court. [00:07:23] Speaker 05: They waited and thought that the court would then engage with them, and the court didn't. [00:07:32] Speaker 01: So they went from the- But you don't have anything on the kind of the- [00:07:37] Speaker 01: the legal side to explain why your, what is it, a march appeal, notice of appeal, something like that, why that was, in fact, timely to attack either the denial of the redaction or the document that actually produced the harm since it was, you know, a sui sponte put into the public domain. [00:07:58] Speaker 01: And that bell can't be unrung. [00:08:02] Speaker 04: You filed the appeal within 60 days of the denial of the motion to redact. [00:08:07] Speaker 05: Yes That's what we So we I I'll confess we did not we have not looked at this or considered it So I'm happy to follow up with briefing, but I would Can I ask this question is there any [00:08:27] Speaker 01: issue that you are presenting to us that we can't decide fully in the phosphate case so that even if we were to conclude you just don't have a timely appeal in the mattress case, we can decide all the issues. [00:08:44] Speaker 01: I mean, obviously this opinion [00:08:46] Speaker 01: The 719th opinion has put all this into the public domain for a long time. [00:08:51] Speaker 01: You can't explore that. [00:08:53] Speaker 01: You're trying to get some rules of the road on a going forward basis. [00:08:57] Speaker 01: Can all of that be done in the phosphate case? [00:09:01] Speaker 05: Yes. [00:09:01] Speaker 05: It has overlapping issues. [00:09:03] Speaker 05: I mean, they did close it. [00:09:05] Speaker 04: Is that true? [00:09:06] Speaker 04: Because it seems to me there is one issue in the mattress case which is not presented in the phosphate case. [00:09:11] Speaker 04: And that is the possible error. [00:09:15] Speaker 04: in refusing to give the parties an opportunity to address the confidentiality issue before issuance of the opinion. [00:09:23] Speaker 05: That's true. [00:09:24] Speaker 05: That has not repeated, but the underlying issue as to whether the court has the authority to sui sponte release information that was treated as a business proprietary before the commission is [00:09:40] Speaker 05: still that underlying issue and how to interpret 1516 AB2 is very much an issue in the fertilizer case. [00:09:51] Speaker 04: But in the mattress case, are you raising the failure of the court to give the parties an opportunity to address the confidentiality issue before issuance of the opinion? [00:10:02] Speaker 05: That is certainly a concern. [00:10:04] Speaker 05: We didn't... You haven't briefed that. [00:10:07] Speaker 05: No, we did not. [00:10:08] Speaker 05: We did not brief that. [00:10:08] Speaker 05: But it is certainly a concern, as was echoed by the amicus briefs, and particularly the ITC TLA. [00:10:16] Speaker 05: They specifically echoed that, that this concern that information would be disclosed without any notice or opportunity to be heard. [00:10:25] Speaker 04: Okay, so just coming back so I'm clear about the objections by the parties that there is information that's involved here by non-parties. [00:10:40] Speaker 04: The non-parties did not object in the mattress case. [00:10:45] Speaker 04: They did not file or participate in any of the motions to redact, right? [00:10:50] Speaker 05: That's correct. [00:10:50] Speaker 05: It was parties to the litigation. [00:10:53] Speaker 04: And the parties in the litigation did object to some specific information? [00:10:58] Speaker 05: It was all a joint motion. [00:11:00] Speaker 05: So the justification was all included in it. [00:11:05] Speaker 05: So it's hard to specifically parse it out and say that they objected to this but not that. [00:11:09] Speaker 04: Here's the figure of sales, and that information was confidential. [00:11:14] Speaker 04: Or was it all addressed to the general theory that the submission of the questionnaires should result in a complete confidentiality designation without regard to that particular information? [00:11:27] Speaker 05: No, this was very much it went through. [00:11:29] Speaker 04: Did go to specific? [00:11:30] Speaker 05: It did, yes, it very much did. [00:11:32] Speaker 04: And in the phosphate case, are there issues there about specific information also? [00:11:37] Speaker 05: Yes, similar to what we did in the mattresses case, which had that appendix B or attachment B [00:11:47] Speaker 05: to the motion to redact. [00:11:49] Speaker 05: It went through point by point and explained. [00:11:51] Speaker 05: We did something similar in the fertilizers case. [00:11:55] Speaker 04: But the problem that I'm seeing right now is, were these specific issues raised in the briefing on appeal? [00:12:05] Speaker 04: I mean, I don't recall that in the mattress [00:12:08] Speaker 04: brief, none of the private parties appealed. [00:12:12] Speaker 04: So I don't recall in the mattress brief that the government objected to any specific information, correct? [00:12:21] Speaker 05: It was recounted what happened. [00:12:23] Speaker 05: But yes, it did not include the same specific. [00:12:26] Speaker 04: It's on the record. [00:12:27] Speaker 04: But the only issue raised on appeal was whether questionnaires generally need to be treated as confidential, not the release of specific information. [00:12:37] Speaker 05: The specific information was included in the appendix and on the record and discussed. [00:12:41] Speaker 04: But it wasn't the subject of a brief. [00:12:45] Speaker 05: Not specifically, because from the commission's view, the issue here is a legal one. [00:12:52] Speaker 04: I understand. [00:12:53] Speaker 04: I'm trying to understand what the issue is before us. [00:12:57] Speaker 04: The only issue that you briefed in the mattress case is the specific issue of whether questionnaires generally should be treated as confidential, right? [00:13:08] Speaker 05: Yes, we address that the commission's practice, we believe, is lawful and appropriate. [00:13:17] Speaker 01: But even that, do I understand right, has two parts. [00:13:22] Speaker 01: One is, does the CIT have authority to declassify? [00:13:30] Speaker 01: And the second is whether the ITC's own treatment [00:13:35] Speaker 01: of all questionnaire responses is proper, right? [00:13:41] Speaker 01: Both are at issue, right? [00:13:42] Speaker 05: Right, very much so. [00:13:44] Speaker 04: Are both at issue in the mattress case? [00:13:47] Speaker 04: The second issue is only in the phosphate case, isn't it? [00:13:53] Speaker 05: No, it was related because where the information came from in the mattresses case was also questionnaires. [00:14:00] Speaker 05: But the key issue [00:14:03] Speaker 01: I mean, if we were to decide, I think contrary to your position is that the CIT does not have authority under that second sentence in 1516 little a to make information public that the commission properly treated in its own house as confidential, right? [00:14:25] Speaker 01: And if we were to disagree with that, there would then be the question whether [00:14:29] Speaker 01: the questionnaire responses was properly treated as confidential in the ITC proceeding, or I guess both, that and whether the way that CIT exercised its discretion, now by assumption, under 1516 Little A, was an abuse of discretion. [00:14:58] Speaker 05: Yes, yes. [00:14:59] Speaker 05: So the issue, we believe, is capable of being decided under 1516A, that the court does not have the authority to release publicly the information in the way that it did in the mattresses and the way that it's doing here, and also doesn't have the authority to order the commission to disclose information and change designations in its record. [00:15:23] Speaker 00: I'm sorry, one more housekeeping question. [00:15:28] Speaker 00: Going back to the mattress appeal, I had thought that perhaps in your blue brief, you made a separate argument that even if the court were to disagree with you about how to read 1516A, nevertheless, in the alternative, you're making an argument that [00:15:47] Speaker 00: the trade court still abused its discretion in releasing certain particular types of information, maybe company names or attempted summaries of proprietary information. [00:16:02] Speaker 00: Is that right or wrong? [00:16:04] Speaker 05: Yeah, no, we believe that the companies had every right to reasonably rely on this. [00:16:12] Speaker 00: I'm just talking about very specific types of information that you did [00:16:17] Speaker 00: uh, challenge the trade court's decision to make public. [00:16:22] Speaker 07: Yes. [00:16:23] Speaker 00: So that's what I'm trying to understand. [00:16:25] Speaker 00: I thought you had responded to an earlier question by Judge Dieck that really you were only just making legal arguments in the mattress. [00:16:34] Speaker 05: No, no. [00:16:34] Speaker 00: And thank you for you have this additional argument. [00:16:37] Speaker 00: more granular argument about specific pieces of information that you're objecting to. [00:16:42] Speaker 00: One of them being certain company names that were released. [00:16:46] Speaker 00: And another one is, say, the attempt at summarizing proprietary information that you think actually didn't do enough. [00:16:56] Speaker 05: Yes. [00:16:57] Speaker 05: And thank you, Your Honor, for giving me the opportunity to clarify that. [00:17:00] Speaker 05: Yes, we did. [00:17:01] Speaker 00: And then if we were to agree with you on any of those things, then I guess what you would be seeking is an order for the trade court to amend its earlier order? [00:17:14] Speaker 05: Do you mean to go back and redact what's already? [00:17:16] Speaker 05: Yes. [00:17:17] Speaker 05: No, the information's been out there now for some time, but it's the reliance on that order going forward that has caused us [00:17:26] Speaker 05: that has caused significant problems. [00:17:28] Speaker 05: And it continues to in the OCP case. [00:17:30] Speaker 05: And again, thank you, Your Honor, for giving me the opportunity to clarify. [00:17:34] Speaker 05: Yes, as you mentioned, we did discuss specific information. [00:17:37] Speaker 05: And I apologize for the confusion. [00:17:39] Speaker 05: We did discuss the specific information and identify what types of information was disposed in the brief. [00:17:45] Speaker 05: And that included company names, information that should have been, even though it was an aggregate, it was capable of [00:17:55] Speaker 05: disclosing company-specific information. [00:17:58] Speaker 05: So yes, we did discuss that in there. [00:18:02] Speaker 01: And just in the phosphate case, you do not concrete directives from us, both about what the CIT is supposed to do with the still sealed opinion in the phosphate case, and also [00:18:22] Speaker 01: what the CIT opinion, the one that's at issue here, ordered the ITC to do in the remand proceeding that it ordered, right? [00:18:36] Speaker 05: Yes. [00:18:38] Speaker 05: We'd like to have the March order where the court had gone through and said some information was entitled to protective treatment, but most of it was not, and included the order to correct the record. [00:18:52] Speaker 05: Then in its April, when it issued the order under seal, it again repeated the order for the commission to correct the record, which we believe requires us to violate 1677-F. [00:19:05] Speaker 05: And then the court more recently, in its July order, specifically rejected the commission's request for redactions. [00:19:14] Speaker 01: Can I ask you a question about the regulation that has been discussed here? [00:19:18] Speaker 01: This is, I guess, 19 CFR 21201.6. [00:19:22] Speaker 01: Yes. [00:19:23] Speaker 01: There's a subsection called procedure for submitting business information in confidence. [00:19:29] Speaker 01: plays out, you have to say request permission and give various cover page information or something like that. [00:19:38] Speaker 01: Is that a procedure that applies to the response to questionnaires? [00:19:46] Speaker 01: Was it followed? [00:19:47] Speaker 05: No, the commission does not apply that to the questionnaires, because the commission designs these. [00:19:55] Speaker 05: So the commission specifically creates these. [00:19:58] Speaker 05: It knows exactly what information it's getting at. [00:20:01] Speaker 01: Is there something about this regulation that tells a reader that it is not applicable to questionnaires in anti-dumping proceedings? [00:20:15] Speaker 05: Not specifically, but if you consider that requirement and the requirements under 1677FA4B, they are, if you look at them in totality with the statute, and I'll try and wrap this up quickly, I see my time's up. [00:20:37] Speaker 04: Don't worry about the time. [00:20:39] Speaker 04: We'll let you know when we're done. [00:20:41] Speaker 05: Okay. [00:20:42] Speaker 05: If you look at them together, [00:20:45] Speaker 05: They don't lend themselves or suggest that a perfected request for confidential treatment is necessarily required. [00:20:57] Speaker 04: How can you say that when 1677 FA4 seems to say specifically that the Commission shall disclose information that's not marked confidential? [00:21:09] Speaker 05: that's not marked confidential. [00:21:11] Speaker 05: But the commission presumptively and preemptively treats the questionnaires as confidential. [00:21:16] Speaker 04: But the question is, how do you reconcile that practice with the statute, which contemplates specific marking, confidentiality markings, and says, you shall disclose information that's not marked confidential? [00:21:30] Speaker 04: And the questionnaires, [00:21:32] Speaker 04: may have confidential information in them, but this seems to be inconsistent with an approach that doesn't require specific confidentiality markings. [00:21:45] Speaker 05: Actually, if you consider the statute as a whole, and in particular, if you look at the broad authority conferred to the commission under 1333... I'm looking at this specific language. [00:21:55] Speaker 05: No, I understand. [00:21:57] Speaker 05: But if I may... I'm sorry, I did not mean to speak over you. [00:22:01] Speaker 05: If I may, I understand the question. [00:22:03] Speaker 05: But 1333 allows the commission broad discretion, for example, to go out and go to a company and say, [00:22:12] Speaker 05: You have to give us all your documents. [00:22:13] Speaker 05: We want to copy them now. [00:22:14] Speaker 05: It can get testimony. [00:22:17] Speaker 05: Those companies could not engage and be responsive. [00:22:20] Speaker 01: There's nothing in 1333 about the issue of confidentiality, right? [00:22:26] Speaker 01: It's just a general authorization to the commission to investigate. [00:22:29] Speaker 05: That's correct. [00:22:30] Speaker 04: But a company could... I just don't understand how you can construe [00:22:35] Speaker 04: 1677F4 is not requiring a disclosure of information that's not more confidential. [00:22:42] Speaker 04: It says it on its face. [00:22:46] Speaker 05: It does say that, but it also talks about a request. [00:22:51] Speaker 05: And here, the commission, if you consider the statute and you consider the commission's broad authority, it doesn't necessarily lend itself to need to always rely on a request. [00:23:02] Speaker 05: which would impede its ability to obtain all this information that it needs so badly within the time frame. [00:23:12] Speaker 01: So the commission sends out a questionnaire. [00:23:15] Speaker 01: Does the questionnaire say what you give us in response, we will treat as confidential? [00:23:20] Speaker 01: Yes. [00:23:21] Speaker 01: And then does the document, the answer, the response to the questionnaire, does that have anything on it that says, [00:23:29] Speaker 01: This is confidential pursuant to the terms of the questionnaire. [00:23:34] Speaker 01: Yes, it does it says that it would that would that fall outside or the Directive of I guess 1677 F You know was it a for that says you're supposed to [00:23:54] Speaker 01: shall disclose anonymized information. [00:23:57] Speaker 01: That's the first thing. [00:23:58] Speaker 01: And the second is information submitted not designated as proprietary by the person submitted. [00:24:06] Speaker 01: Are you arguing that what's on the response to the questionnaire [00:24:12] Speaker 01: Is a designation under that? [00:24:14] Speaker 01: Or I think you answered Judge Dyke. [00:24:16] Speaker 01: You were agreeing that it was not. [00:24:18] Speaker 01: But nevertheless, it's OK what we're doing. [00:24:20] Speaker 05: No, it is. [00:24:21] Speaker 05: It is. [00:24:21] Speaker 05: And thank you, Your Honor. [00:24:23] Speaker 05: It is designated. [00:24:24] Speaker 05: It's just designated by the commission. [00:24:26] Speaker 03: The commission includes on the- But that's not what the statute says. [00:24:31] Speaker 03: It says designated by the person submitting it. [00:24:34] Speaker 05: It does. [00:24:35] Speaker 05: But again, [00:24:37] Speaker 05: These questionnaires are designed by the Commission. [00:24:39] Speaker 05: They know what's in them. [00:24:41] Speaker 05: It's narrowly tailored to the scope. [00:24:43] Speaker 05: The information is, by its very nature, the type of information, and it's as defined under Tool 1.6a. [00:24:52] Speaker 05: It is the information that is about company-specific operations that under 1677 F, A4A, the Commission cannot disclose in [00:25:04] Speaker 05: unless it's an aggregate form that does not disclose individual operations. [00:25:11] Speaker 04: Could maybe we turn to 1516? [00:25:14] Speaker 04: Yes. [00:25:14] Speaker 04: And your theory that this, I guess, is designed to override the common law right of access, right? [00:25:22] Speaker 05: Yes, yes. [00:25:23] Speaker 04: There's nothing in the legislative history to suggest that, right? [00:25:26] Speaker 04: I'm sorry? [00:25:27] Speaker 04: There's nothing in the legislative history to suggest that. [00:25:30] Speaker 05: The legislative history actually does specifically talk about how 1516A contemplates disclosure under a protective order. [00:25:42] Speaker 05: And the court has talked about how the statute was written. [00:25:47] Speaker 04: No, but there's no mention in the legislative history of overcoming the common law right of access, right? [00:25:53] Speaker 05: No, but the statute, there was already no common law right of access when this was written. [00:26:00] Speaker 05: The status quo at the time was almost no information. [00:26:06] Speaker 05: So what the Congress did. [00:26:09] Speaker 01: That sentence sounded like it needed more words in it. [00:26:12] Speaker 01: I'm so sorry. [00:26:12] Speaker 01: No information. [00:26:13] Speaker 01: What? [00:26:14] Speaker 05: There was almost no disclosure. [00:26:16] Speaker 05: It was very limited. [00:26:17] Speaker 05: And that's exactly why Congress created and amended the statute to allow for robust protection with the [00:26:28] Speaker 05: issuance of protective orders, but it mandated full disclosure of all the BPI, but it balanced it. [00:26:36] Speaker 05: So in doing that, Congress struck the balance between the interests of the companies who were giving their sensitive information to the commission with the due process rights of companies appearing before them. [00:26:51] Speaker 05: So prior to that, though, was not the common law access rule where [00:26:56] Speaker 05: these documents were open to the public. [00:26:59] Speaker 05: The default had been less information was disclosed publicly. [00:27:04] Speaker 05: And there was very little information, I think, disclosed publicly, and almost no information disclosed to the parties. [00:27:11] Speaker 05: So that's why Congress wrote this. [00:27:13] Speaker 05: So the default was not common law right of access. [00:27:16] Speaker 05: The default was information is constrained. [00:27:20] Speaker 01: Somebody must have been one of the amici said, [00:27:24] Speaker 01: that the commission does have the power to compel and to subpoena power. [00:27:33] Speaker 01: Why is that not sufficient? [00:27:36] Speaker 01: I mean, I can think of an answer, but I'd like to hear yours. [00:27:39] Speaker 05: Why is that not sufficient for the commission to rely on? [00:27:42] Speaker 01: Yes. [00:27:43] Speaker 01: To get to do its job, which I read you said this is going to impair the ability of the commission to do the job, so. [00:27:51] Speaker 05: The subpoena power. [00:27:53] Speaker 05: The commission would not be able to get the information that it needs within the time frame if it had to subpoena everything, particularly in terms of preliminary phase investigations that are 45 days. [00:28:03] Speaker 05: The commission couldn't issue a subpoena and get it enforced within that time, or it would be highly unlikely. [00:28:10] Speaker 05: And the voluntary subpoena. [00:28:12] Speaker 01: And these are enforced in district court? [00:28:14] Speaker 05: Yes. [00:28:15] Speaker 05: The voluntary submission is also incredibly important to get candid and complete responses if the commission is [00:28:22] Speaker 04: So you have to give blanket confidentiality treatment because it's too time consuming to issue a subpoena? [00:28:31] Speaker 05: No. [00:28:34] Speaker 05: That's not it. [00:28:36] Speaker 05: The commission preemptively designates these as BPI because, as I mentioned, it's in line with 201.6A as the commission has defined BPI. [00:28:49] Speaker 05: It's consistent with 1677A4A. [00:28:53] Speaker 05: And also, the consistency of treating it, it actually promotes transparency and helps the commission to avoid inadvertent disclosures. [00:29:07] Speaker 05: And it sounds counterintuitive, but the more you have mixed designations, the more you're likely to have to redact the aggregate number. [00:29:15] Speaker 05: So if you have four importers that reported their information, [00:29:19] Speaker 05: Their aggregate number can be made public. [00:29:21] Speaker 05: But if you have mixed designations and say two said it's BPI, two said it's public, that aggregate number then has to be redacted. [00:29:34] Speaker 04: And the statute seems to contemplate that public information will not be properly treated as confidential, right? [00:29:43] Speaker 04: The statute, the overriding aspect of the statute is to ensure that the companies have control over their information and that they... No, but it specifically refers to publicly available information being unwarranted confidentiality plan in 1677 FB2. [00:30:10] Speaker 05: It does. [00:30:11] Speaker 05: It says that if the commission were to challenge the designation, it could do so on the basis of if it believed that it was publicly available. [00:30:21] Speaker 05: But the commission can't override it. [00:30:24] Speaker 05: So if the company just disagrees, they can take their information back. [00:30:28] Speaker 05: And the commission can't do anything about that. [00:30:31] Speaker 05: And that's another reason why it doesn't lend itself to, when you look at the statute as a whole, it doesn't lend itself to requiring a perfected request [00:30:40] Speaker 05: Every single time information is obtained by the commission, it could be properly designated as BPI. [00:30:47] Speaker 05: The withdrawal process could significantly and would significantly impede the commission's ability to obtain the information that it needs. [00:30:56] Speaker 05: Because if they don't give them a BPI designation, they can take their information back. [00:31:02] Speaker 05: And under 201.63, they could actually evade a subpoena because they can withhold their information. [00:31:10] Speaker 05: until a designation is granted in their favor. [00:31:15] Speaker 04: So why is it that we should read 1516 as cabining the common law right of access? [00:31:22] Speaker 04: It seems to say that the courts can reveal information, and it doesn't limit it to protective order situations. [00:31:31] Speaker 05: But it does in both the first sentence and the second sentence. [00:31:34] Speaker 05: So the first sentence says the confidential status shall be preserved. [00:31:39] Speaker 05: And in the second sentence, it does say notwithstanding that sentence, but it still refers to it as confidential information. [00:31:46] Speaker 05: So it doesn't contemplate a change in that status. [00:31:51] Speaker 05: It says the court may disclose it, but it's still referring to it as confidential information. [00:31:58] Speaker 05: And it contemplates disclosure under an order with terms and conditions. [00:32:07] Speaker 01: Can I ask you a question on a different topic, though it came up recently? [00:32:15] Speaker 01: In the mattress case, the CIT judge just put the information out there in public, didn't do that in the phosphate case. [00:32:31] Speaker 01: Suppose we thought that some kind of notice [00:32:37] Speaker 01: is necessary. [00:32:41] Speaker 01: What do you think that notice, or to whom should that notice be given? [00:32:45] Speaker 01: Is it enough to, for example, give notice to the commission, who in turn [00:32:53] Speaker 01: can do what it thinks appropriate to get to put the producers, the submitters of the information, particularly the domestic purchasers, [00:33:09] Speaker 01: On notice that this information is proposed by the court to be made public hasn't yet been. [00:33:17] Speaker 01: Tell us what you think. [00:33:18] Speaker 01: And then the commission would essentially make its own decision or what? [00:33:25] Speaker 05: The problem with that is that the record is closed and the commission has voted. [00:33:32] Speaker 01: I don't mean in the particular case. [00:33:35] Speaker 01: Oh, you mean in general. [00:33:36] Speaker 05: Right. [00:33:36] Speaker 05: If it's in litigation, obviously, the record is closed and the commission has voted. [00:33:45] Speaker 05: a warranted designation process, the commission has to give them the opportunity to take their information back if it doesn't think that the... No, no. [00:33:56] Speaker 01: I guess I'm just talking... I'm not talking now about the commission itself making things public. [00:34:04] Speaker 01: I'm now talking about what the CIT can do on the assumption that I know you disagree with. [00:34:09] Speaker 01: the second sentence of 1516, little a, authorizes the CIT, maybe based on the common law, right of access or whatever, sometimes to say certain information is going to be made public. [00:34:28] Speaker 01: Now, on that assumption, [00:34:29] Speaker 01: I want to add an assumption that prepublication notice and an opportunity to address the proposed publication is necessary. [00:34:43] Speaker 01: To whom should that notice be given? [00:34:47] Speaker 01: I mean, I think generally in our court and in courts [00:34:52] Speaker 01: in general. [00:34:54] Speaker 01: Sometimes information is submitted. [00:34:56] Speaker 01: The court thinks we really want to make this public. [00:34:59] Speaker 01: We do give the parties notice. [00:35:02] Speaker 01: Some of that information will not be the party's own information, but have come into the possession of the party in discovery from somebody else. [00:35:10] Speaker 01: And I think we generally just rely on the party to deal with who's the owner of that information. [00:35:19] Speaker 01: And that's what I guess I'm trying to get a handle on. [00:35:21] Speaker 05: The owner of the information is still whoever it belongs to. [00:35:25] Speaker 05: Whoever provided the information, they are the owner. [00:35:30] Speaker 04: Yeah, but the question I think is who gets the notice that the information is potentially going to be disclosed and who's given the opportunity to object. [00:35:41] Speaker 04: In our court, we rely on the parties. [00:35:44] Speaker 04: We say, here's the information that we propose to disclose. [00:35:48] Speaker 04: Please tell us whether it's confidential. [00:35:50] Speaker 04: We don't. [00:35:51] Speaker 04: try to go to the originator of the information, we rely on the parties to object and to perform their obligations. [00:36:00] Speaker 04: Is that kind of notice sufficient in this context, or should it be different? [00:36:05] Speaker 04: I think that's the question. [00:36:06] Speaker 04: It is. [00:36:06] Speaker 05: Thank you for clarifying. [00:36:08] Speaker 05: The notice to the parties would not be, the commission could always [00:36:20] Speaker 05: The commission knows who the questionnaire respondents were. [00:36:23] Speaker 05: It has their information. [00:36:25] Speaker 05: But it still could not provide them with the process before a BPI designation is withdrawn that Congress has provided under 1677F because the record is closed and the commission has voted. [00:36:41] Speaker 05: So. [00:36:43] Speaker 04: No, but why can't the commission, if it has confidential information, [00:36:50] Speaker 04: received through questionnaires notify the companies that submitted the information that there is a proposal to disclose that and do they object? [00:36:59] Speaker 04: Why can't we rely on the Commission to do that the way we would in a case in this court? [00:37:06] Speaker 05: Thank you. [00:37:07] Speaker 05: The Commission would be the obvious party to do that. [00:37:14] Speaker 05: It would [00:37:20] Speaker 05: it would create a significant amount of problems from the commission. [00:37:26] Speaker 05: Because again, if the parties object to their information being made public, they are, as Congress intended, supposed to be able to pull that information back out of the record. [00:37:38] Speaker 05: So that is an assurance that the commission has given to all of these parties. [00:37:42] Speaker 04: We're assuming, I think, in the context of this question, that we reject that proposition. [00:37:48] Speaker 04: that there is no blanket questionnaire confidentiality that has to be done on an item by item basis. [00:37:57] Speaker 04: And the question is, when there are objections to be addressed to particular items, why can't we rely on the commission to make the objections rather than for the courts to have to contact the questionnaire submitters? [00:38:15] Speaker 05: The commission would be the obvious party if you're looking to a party. [00:38:21] Speaker 05: But if I may just clarify, it's two different things. [00:38:25] Speaker 05: The questionnaire being presentively designated is one thing. [00:38:30] Speaker 05: The process under the unwarranted designation provision of 1677F, Congress provided that. [00:38:39] Speaker 05: And Congress provided that before company's information is going to be made public and a BPI designation is withdrawn, [00:38:46] Speaker 05: they are to be given the opportunity to pull that information from the record. [00:38:50] Speaker 05: So it's separate and apart. [00:38:51] Speaker 04: The question assumes you lose that point. [00:38:56] Speaker 05: That 1677F does not provide that process, or? [00:38:59] Speaker 01: It doesn't control what the CIT can do in the second sentence of 1516 little a. I see. [00:39:06] Speaker 05: Thank you for clarifying. [00:39:07] Speaker 05: In that case, it would be [00:39:11] Speaker 05: it would have an incredibly chilling effect on the commission's ability to do its job. [00:39:14] Speaker 01: I mean, it may be that after an opinion comes out and says that, and it becomes the law, then the questionnaire maybe should say the commission will proceed internally in accordance with 1677F, et cetera. [00:39:30] Speaker 01: But if this goes to litigation, the Court of International Trade has authority to disclose [00:39:40] Speaker 01: information and, you know, you will receive notice if the CIT proposes to do that. [00:39:47] Speaker 01: I know that that's a more complicated instruction and maybe some potential respondents on the questionnaire will say, no, thank you, I'm not going to cooperate. [00:40:01] Speaker 05: That absolutely would be the case. [00:40:03] Speaker 05: The Commission relies so heavily on the ability to obtain information voluntarily from these various market participants. [00:40:15] Speaker 04: But in other areas of the Commission's jurisdiction, there are specific confidentiality markings required, and I'm not aware that there's a failure to cooperate. [00:40:27] Speaker 05: If you're referring to 337, that's more akin to traditional litigation, where you have two parties that are coming before they want to adjudicate their issue. [00:40:38] Speaker 05: In Title VII anti-dumping and countervailing duty investigations, the commission's gathering everyone's information in a specifically defined market. [00:40:47] Speaker 05: many of whom are not parties to the proceedings. [00:40:51] Speaker 05: And they are just being swept into this. [00:40:54] Speaker 01: Is that not true in 337 proceedings in deciding whether there's some of the requirements for action under 337, the effect on a domestic industry? [00:41:06] Speaker 01: You don't survey non-parties? [00:41:10] Speaker 05: I don't practice 337, so my knowledge is very limited. [00:41:17] Speaker 05: There is some aspect of that, but it's a very different structure than this. [00:41:24] Speaker 05: This is the commission going out and trying to obtain detailed information from everyone in the market and trying to gather all of their information. [00:41:36] Speaker 04: But interestingly, I don't read the amicus briefs on your side as suggesting that. [00:41:43] Speaker 04: I read those amicus briefs as suggesting that what's important is to give an opportunity to objective disclosure of confidential information. [00:41:53] Speaker 04: I don't read them as saying that the blanket coverage is essential. [00:42:00] Speaker 05: The ITC TLA certainly did focus on notice and consent, but SIPA did talk a lot about how this process of being able to assure their clients that this information is going to be protected is not just important, it's vital. [00:42:18] Speaker 05: And that's how they get their clients to cooperate and turn over information. [00:42:26] Speaker 04: Okay, I think for the moment we're done. [00:42:28] Speaker 04: We'll give you three minutes for your bottle. [00:42:30] Speaker 04: Thank you. [00:42:32] Speaker 04: We'll hear from Mr. Dewey, I guess, first. [00:42:40] Speaker 02: Judge Dyke, and may it please the court. [00:42:41] Speaker 02: Andrew Dewey, court appointed amicus for only the mattress case. [00:42:45] Speaker 02: Judge Toronto, if I could turn to your jurisdictional question. [00:42:48] Speaker 02: I honestly hadn't thought of it before the hearing, but I believe that the commission's appeal is timely in the mattress case because it is the BPI denial decision that is what they are appealing from. [00:43:00] Speaker 02: I think a lot of odd things would happen if we say the clock starts running at the merits decision point because, for instance, one possibility is that there's a mistake, that the court just simply issued the public version. [00:43:14] Speaker 02: I mean, the private version, what it meant to issue only the public version. [00:43:18] Speaker 02: Also, one possibility would be, if the court takes longer than 60 days to rule on the BPI denial decision, imagine that the trade court in this case said, all right, you've convinced me. [00:43:29] Speaker 02: Redactions are going to happen. [00:43:31] Speaker 02: You'd have this situation where there would be a pending appeal to this court, even though there was actually no agreement. [00:43:37] Speaker 02: I think when we're dealing with the exception to mootness, we're talking about a challenged action. [00:43:42] Speaker 02: And I don't think that there was a challenged action in this case until [00:43:47] Speaker 02: There was this deliberate action by the trade court saying, I want this disclosed. [00:43:53] Speaker 01: Well, I'm not sure that's quite right. [00:43:54] Speaker 01: I mean, the damage was done on December 19th. [00:43:59] Speaker 02: True. [00:43:59] Speaker 02: But that gets into moodness, right? [00:44:01] Speaker 02: And I think we're dealing with an exception to moodness. [00:44:04] Speaker 02: And the exception here. [00:44:05] Speaker 01: No, I wasn't asking about moodness or standing. [00:44:08] Speaker 01: I was just asking about timeliness under, what is it, 28C 2107? [00:44:13] Speaker 01: Is it the 60-day rule? [00:44:16] Speaker 02: Sure, but I just don't think that from the commission's perspective, the damage was done at that point. [00:44:21] Speaker 02: Because I don't think the commission would feel aggrieved if it was just simply a mistake on the part of the trade court to issue that, as opposed to a deliberate action. [00:44:29] Speaker 02: It's that deliberate action that has the capable repetition aspect to it. [00:44:33] Speaker 02: I'd be happy to provide additional briefing if it would be helpful. [00:44:37] Speaker 04: Could you address the question of whether you agree that there ought to be an opportunity for the commission and the parties to object before the release of the information? [00:44:46] Speaker 04: It seems to be rather obvious. [00:44:48] Speaker 02: Well, there was. [00:44:48] Speaker 02: In both of these cases, there was such an opportunity. [00:44:51] Speaker 02: There were hearings in both cases, and the trade court offered the parties and the commission an opportunity [00:44:57] Speaker 02: talk about what would be in the public section of the hearing and what would be in the private closed door part of the hearing. [00:45:04] Speaker 02: And that will be in any of these cases. [00:45:07] Speaker 04: I'm confused because your description of what happened doesn't correspond to my recollection. [00:45:11] Speaker 04: Yes, there was a hearing in the phosphate case. [00:45:14] Speaker 04: I don't recall that there was a hearing on confidentiality in the mattress case. [00:45:18] Speaker 04: There was. [00:45:19] Speaker 02: I believe that at the beginning of the hearing in CVB that the judge offered the parties an opportunity to discuss [00:45:27] Speaker 02: Do you want to have anything in private? [00:45:29] Speaker 02: Let's start with public, and then if anybody wants to. [00:45:31] Speaker 01: When was this hearing? [00:45:32] Speaker 02: I'm sorry, I don't have that. [00:45:34] Speaker 01: After or before December 19? [00:45:36] Speaker 02: Oh, way before. [00:45:36] Speaker 02: This was like months before. [00:45:38] Speaker 02: You know, this is like the main hearing that you have in a Title VII case, where all the briefing is done, and then we argue about whether or not the ITC has substantial evidence. [00:45:47] Speaker 02: So that's going to be the typical situation. [00:45:49] Speaker 02: And I think that's standard practice in Title VII cases. [00:45:53] Speaker 02: For instance, if the commission ahead of such a hearing could bring maybe a motion and eliminate and ask the court, here are some very specific things we don't want discussed in the public session of the hearing. [00:46:04] Speaker 02: And maybe the judge agrees or disagrees. [00:46:06] Speaker 02: If the judge disagrees, then the commission could potentially take a petition for writ to this court right away. [00:46:12] Speaker 04: So why shouldn't the trade court follow the procedure that we follow here, which is putting 5G aside? [00:46:23] Speaker 04: which is to say, we've written the opinion. [00:46:26] Speaker 04: Here's the information that's marked confidential that we propose to disclose. [00:46:30] Speaker 04: Please let us know if it's confidential. [00:46:32] Speaker 04: And so there's an opportunity to object before the release. [00:46:36] Speaker 04: Why shouldn't the same thing happen at the CIT? [00:46:39] Speaker 02: Well, procedurally, I think the question is whether it's an abuse of discretion not to do that. [00:46:44] Speaker 02: I'm thinking back to the Unilot case, Judge Torano. [00:46:47] Speaker 02: You might recall we were talking about whether the Northern District of California had an obligation to give [00:46:53] Speaker 02: a party seeking, signaling a second chance after an overbroad request. [00:46:59] Speaker 02: And I think the panel agreed that that might be a good practice, but it's a whole different thing to say it's an abusive discretion not to have that. [00:47:06] Speaker 02: And that's how I think I would say about this case, is I don't think it's an abusive discretion not to have these kinds of procedures that your honor's talking about. [00:47:16] Speaker 01: But going back to- You wouldn't necessarily have the same issue in the pre-December 19th hearing where there's a discussion about what the merits are going to be like. [00:47:33] Speaker 01: And people are saying, the parties in particular, are saying the following, we should keep confidential. [00:47:39] Speaker 01: And then later, when the judge has drafted an opinion, [00:47:45] Speaker 01: and now has a list of 12 specific things that he wants to put into the public domain. [00:47:55] Speaker 01: It doesn't feel quite right that everybody was on notice back at the hearing at the higher level of topics. [00:48:08] Speaker 02: Well, there might be exceptional cases where [00:48:10] Speaker 02: look, as your honor is contemplating, that we have something new, something that wasn't specifically addressed. [00:48:16] Speaker 01: In particular, you don't have summaries written yet. [00:48:21] Speaker 01: Does the summary sufficiently anonymize the information? [00:48:25] Speaker 01: I wouldn't think that the discussion about public versus closed hearing would be at that level, because you are definitely going to be talking about the specific numbers. [00:48:38] Speaker 02: I suppose that's true, but I think when it comes to questionnaire responses, which is the big problem here, the trade court in this case, in the mattress case, had 800-some pages of responses. [00:48:49] Speaker 02: And the trade court is being told by the commission, all of it, every single page, every part of every page is BPI. [00:48:56] Speaker 02: I think if we can get the commission to do what the 1677F contemplates, which is actually have the submitter designate things as [00:49:05] Speaker 02: as proprietary, then we're going to be dealing with a much smaller body of BPI. [00:49:10] Speaker 04: OK, but I guess maybe the question wasn't clear. [00:49:12] Speaker 04: I think the assumption is that you win on that point, that the questionnaires can't be more confidential. [00:49:19] Speaker 04: We're now dealing with the question of whether specific information that is more confidential can be disclosed or not. [00:49:26] Speaker 04: Under those circumstances, shouldn't the court give the parties an opportunity to object before the information is disclosed? [00:49:35] Speaker 02: I think that would be a good practice, and it could be done again. [00:49:37] Speaker 02: I think it could be done ahead of the public hearing. [00:49:39] Speaker 04: But there's no disadvantage to doing it either, right? [00:49:41] Speaker 02: Well, I think there's good reason to do it before the public hearing and to be clear that any discussion of what is really BPI is going to be reserved for the private hearing. [00:49:51] Speaker 02: And that seems to me a situation where a very high percentage of cases where it's going to be clear there's a problem here and disagreement between the CIT judge and the commissioner or with a third party. [00:50:01] Speaker 02: But it seems like that's going to come to a head at that point. [00:50:04] Speaker 04: OK, why don't you address the merits? [00:50:07] Speaker 02: Sure. [00:50:07] Speaker 02: Going back to, Judge, like your earlier questions about things. [00:50:11] Speaker 02: So if you look at, in the mattress case, appendix pages 619 to 622, you can see four pages where the commission asked for the specific 44 different redactions. [00:50:24] Speaker 02: But what you see on the right side there is nothing like any kind of concrete harm that would flow from disclosure. [00:50:30] Speaker 02: You see boilerplate language essentially saying, hey, that was in a [00:50:33] Speaker 02: commission that was in a questionnaire response. [00:50:37] Speaker 02: There's no particularized showing about any harm that would flow to any third party. [00:50:43] Speaker 02: And I think it's also important to look in the mattress case about what we did not see. [00:50:49] Speaker 02: Yes, we did see the parties to that case join the motion to redact. [00:50:53] Speaker 02: But that's the last we ever heard from those parties. [00:50:56] Speaker 02: CVB appealed to this court in 2004, I think it was. [00:51:03] Speaker 02: In that case, we had an appellate brief from CBB. [00:51:06] Speaker 02: They didn't say a word about the redaction issue. [00:51:09] Speaker 02: And then we had the intervener's defendants brief the case. [00:51:14] Speaker 02: There are two. [00:51:14] Speaker 02: These were supposedly the parties harmed by disclosure. [00:51:17] Speaker 02: And they didn't say anything about the redaction motion or in its denial. [00:51:23] Speaker 02: No complaints. [00:51:24] Speaker 02: I think it's odd that we don't have anything from the supposedly aggrieved companies complaining about it. [00:51:30] Speaker 01: I'm sorry. [00:51:31] Speaker 01: I think I've lost the thread a little bit. [00:51:34] Speaker 01: So I'm thinking mostly about the purchasers who are not parties who answered questionnaires. [00:51:44] Speaker 02: It's true. [00:51:44] Speaker 02: The purchasers were not parties. [00:51:45] Speaker 02: But the importer, CVB, was there. [00:51:49] Speaker 02: Their information was supposedly wrongfully disclosed. [00:51:54] Speaker 02: And then the domestic producers were party to the case, party to the appeal. [00:51:59] Speaker 02: And they didn't say anything about it. [00:52:01] Speaker 02: They were supposedly harmed, but they didn't say anything about it. [00:52:04] Speaker 02: And also, when Judge Baden issued that decision in December of 2023, that data was about at least four years old in a rapidly changing industry. [00:52:15] Speaker 02: These box mattresses just upended this whole mattress industry. [00:52:18] Speaker 02: And so that data is four years old. [00:52:20] Speaker 02: So there's really reason to doubt that any of these companies are really that concerned. [00:52:24] Speaker 02: But also because remember that the trade court did not disclose hard numbers of production. [00:52:28] Speaker 02: And I think it's really important to look at Appendix 620. [00:52:32] Speaker 02: You see a key paragraph there where Judge Vaden explains the basis of his decision, which is this industry specialization. [00:52:40] Speaker 02: He's saying that flat pack mattress companies produce hardly any box mattresses. [00:52:46] Speaker 02: And he explains, he names the companies of top three, Corsicana, Serta Simmons, Tempracilli. [00:52:52] Speaker 02: And he says, if you look at those top three, their production ratios are wildly disproportionate, 63 to 1, 74 to 1, 83 to 1. [00:53:01] Speaker 02: And so that specialization is the basis for his refusal to accept the primary grounds for imposing duties. [00:53:10] Speaker 02: And so he ultimately went with the alternative argument that the commission presented, [00:53:16] Speaker 02: But you need to understand those disclosures to understand his opinion. [00:53:20] Speaker 02: And you also need to see those disclosures to understand his accusation that the commission was being fast and loose with statistics. [00:53:29] Speaker 02: And so when it comes down to assuming that the court rejects the blanket idea that 1516 doesn't give the court any disclosure, [00:53:41] Speaker 02: discretion. [00:53:43] Speaker 02: Once we get past that, we get into the balancing act of this court's precedence in Rule 28D, in Dupuis, and Uniloc. [00:53:52] Speaker 02: And the balancing, I think of it as ledgers on two sides of a ledger. [00:53:55] Speaker 02: There's the public aspects, public interests, the need for the judicial branch for legitimacy. [00:54:01] Speaker 02: And I think there's varying levels of concern here. [00:54:05] Speaker 02: There's all judicial records. [00:54:06] Speaker 02: There's judicial records that are admitted into evidence at trial or attached to a motion. [00:54:13] Speaker 02: And I think we are at the highest level in this case. [00:54:15] Speaker 02: We are at a level that the VC circuit touched on in MetLife and Leopold, because now we're talking about the contents of a judicial decision. [00:54:25] Speaker 02: This is something where we've had multiple centuries of tradition, of public access to it. [00:54:30] Speaker 02: And so I think it would be [00:54:32] Speaker 02: It would take the most compelling showing imaginable to say to an Article III court, you may not put this into your judicial decision, even if it's at the factual center of your case. [00:54:42] Speaker 02: And then look at the other side here, the harm. [00:54:44] Speaker 02: We have no evidence at all. [00:54:46] Speaker 02: There were no declarations submitted in support of the joint motion for redactions. [00:54:52] Speaker 02: And as I say, we don't even have complaints by some of the US producers when they had an opportunity to complain. [00:54:59] Speaker 02: They didn't join this appeal. [00:55:01] Speaker 02: So I think that in this case, you can build on your three precedents in public access. [00:55:09] Speaker 02: And then I think you can learn a lot from how the DC circuit approached this even higher level of concern in Leopold and Metley. [00:55:19] Speaker 02: Any questions? [00:55:20] Speaker 04: OK. [00:55:20] Speaker 04: Thank you, Mr. Dewey. [00:55:22] Speaker 04: Ms. [00:55:23] Speaker 04: Moss? [00:55:25] Speaker 06: Good morning, Your Honors. [00:55:26] Speaker 06: May it please the court? [00:55:27] Speaker 06: Alex Moss, amicus, for defending the CIT's decision. [00:55:31] Speaker 06: I'm happy to start with questions. [00:55:32] Speaker 06: I'm also happy to touch briefly on the question of the notice, because I think maybe a practical take on this is remembering that the CIT didn't get any redactions. [00:55:43] Speaker 06: So it had an open hearing, and then it got lots of briefs with no redactions, no motions to seal. [00:55:49] Speaker 06: And then it released an opinion where it clearly didn't think that any information was even close to the line. [00:55:56] Speaker 06: whether there might be a situation where it would be appropriate for a court to have a rule about blanket notice. [00:56:03] Speaker 06: I just don't think that this is the case, because it's such an unusual situation where I think the judge can use clever. [00:56:10] Speaker 01: What do you mean by before the opinion the CIT didn't get any redactions? [00:56:15] Speaker 01: Is that the government didn't do? [00:56:19] Speaker 06: The ITC takes the position that no requests for redactions are necessary. [00:56:22] Speaker 06: They can just have it on the page. [00:56:25] Speaker 01: Oh, that's what you mean, insufficiently bracketed. [00:56:28] Speaker 06: Yes, yes. [00:56:28] Speaker 06: Sorry, they do redactions, right? [00:56:29] Speaker 06: It's brackets. [00:56:32] Speaker 06: But so in my view, and I've seen this happen in practice where, frankly, I did it where you submit something, and it's stamped on the top, but you read it, and it's like, this is public information. [00:56:42] Speaker 06: And then the court says, you're right, this is public information. [00:56:45] Speaker 06: And so I just see this as a situation like that where it just doesn't raise the question of notice in the absolute sense, though I think that [00:56:54] Speaker 06: But if it were, I think it would be a different case if there had been redactions like you have. [00:56:59] Speaker 06: And then the court is seeing this. [00:57:00] Speaker 06: And it's on notice that something is confidential. [00:57:03] Speaker 06: And the folks have been participating with the rules. [00:57:06] Speaker 06: Of course, the background for both of these is that the CIT's actual local rules are just being completely ignored. [00:57:13] Speaker 01: You and I guess we are in this unusual situation where everybody agrees that there is absolutely nothing to be done about the December 19th opinion. [00:57:23] Speaker 01: It's history and published history. [00:57:27] Speaker 01: And so the question is, looking forward, what should the rules of the road be about giving an opportunity to object before something becomes public? [00:57:40] Speaker 06: And I just think it's hard to answer that question given how completely the rules have been violated at every step by the ITC leading up to that point. [00:57:51] Speaker 06: If they had had, you know, it'd be a very different situation if there had been brackets and requests to seal at any point provided, any notice of law. [00:58:00] Speaker 00: Didn't they come back and do an amended version with brackets? [00:58:05] Speaker 06: Not before the December decision. [00:58:06] Speaker 00: No, I mean after the December decision. [00:58:09] Speaker 06: Well, they may well have, but the point is about sort of whether. [00:58:13] Speaker 06: My point is that this just isn't the case that raises the question about whether notice was necessary. [00:58:19] Speaker 06: Because here, there have been so many violations of rules that I think that this doesn't raise that question purely. [00:58:27] Speaker 06: And it would be better to wait until a different case for that. [00:58:34] Speaker 06: We can also turn to OCP, where this issue doesn't present. [00:58:38] Speaker 06: The issue of timeliness makes the first case one that this court can decide. [00:58:44] Speaker 06: But the real core issue here is who controls what the court tells the public? [00:58:51] Speaker 06: Is it the court, or is it the agency? [00:58:54] Speaker 06: It has to be the court. [00:58:56] Speaker 06: It has always been the court. [00:58:58] Speaker 06: When the court is reviewing an agency, the agency doesn't get to decide what's kept secret. [00:59:04] Speaker 06: If that were the case, there would be no mechanism for error correction. [00:59:09] Speaker 06: There would be no mechanism for accountability. [00:59:12] Speaker 06: Congress knows that. [00:59:15] Speaker 06: Every piece of legislative history in this record, Congress does the same thing. [00:59:20] Speaker 06: It recognizes the court's authority and invokes it. [00:59:23] Speaker 06: In 1516A, it says, the court may disclose. [00:59:27] Speaker 06: in the legislative history about the protective order, it says, where the court determines it would be appropriate. [00:59:33] Speaker 06: In 1987, Congress amended the law. [00:59:37] Speaker 06: There, it turned out that the ITC was being, and this is, I think, actually the situation, the status quo they're talking about, I think, is actually before 1987, when the ITC refused protective orders, even to the parties during the investigation. [00:59:51] Speaker 06: And Congress said, that's not OK. [00:59:54] Speaker 06: The parties can't defend themselves fairly. [00:59:56] Speaker 06: And it said, look, actually, the court, when it's getting the cases, it's releasing information. [01:00:01] Speaker 06: Well, this is after 1569. [01:00:04] Speaker 06: What did Congress do? [01:00:05] Speaker 06: Did it say the courts are violating the ITC's blanket discretion to do everything in secret? [01:00:11] Speaker 06: No. [01:00:12] Speaker 06: It said, that's how it should work. [01:00:14] Speaker 06: And exceptionally, they gave the court authority over the protective orders during investigations. [01:00:20] Speaker 06: Because it was so problematic what the ITC was doing. [01:00:24] Speaker 06: And Congress again said, courts, you do access. [01:00:27] Speaker 06: You're doing it well. [01:00:28] Speaker 06: Let's extend it to the investigation. [01:00:30] Speaker 06: So that, to me, is a consistent arc. [01:00:33] Speaker 06: There's a lot of language about a scheme. [01:00:35] Speaker 06: But there is one consistent trend, which is through this case, and it's through our country's history, which is that we trust the courts to do access to courts, period. [01:00:47] Speaker 06: You all know better than anyone [01:00:49] Speaker 06: Why that's so fundamental, right? [01:00:51] Speaker 06: The public has to trust the courts for them to be legitimate. [01:00:55] Speaker 06: And taking anything out of the judicial process, putting anything in secret is going to make it more difficult for the public to trust. [01:01:05] Speaker 01: It happens in fact. [01:01:06] Speaker 01: Can you provide some, I want to use the word comfort on the policy point which has some force on its face that if there is even this amount of uncertainty under common law [01:01:26] Speaker 01: access standards at the CIT level, the ITC will find it harder to do its job, either to get some information or to get it in time to make the decisions that Congress has told when it has to make the decisions. [01:01:47] Speaker 06: I would look at what Congress said in the legislative history to the 1987 amendments. [01:01:52] Speaker 06: The same arguments were made [01:01:53] Speaker 06: We're not going to be able to get information if we have to give protective orders to all the parties. [01:01:58] Speaker 06: And Congress said, it's legitimate. [01:02:00] Speaker 06: We want you to get the information you need. [01:02:02] Speaker 06: So we're going to give you subpoena powers. [01:02:04] Speaker 06: And in the legislative history, they cite cases to say how willing courts are to grant those subpoenas. [01:02:11] Speaker 06: And it says you've got adverse inferences available. [01:02:13] Speaker 06: And we're going to give you really powerful sanctions to punish any violations of protective orders. [01:02:18] Speaker 06: We are not going to restrict access to do that. [01:02:22] Speaker 06: That's a line. [01:02:24] Speaker 06: the policy point, and that Congress has already rejected that argument. [01:02:27] Speaker 06: And it seems as though the whole purpose of that amendment has been disregarded. [01:02:33] Speaker 06: Because it seems like what's happened is that it turns out, despite objecting to protective orders, it seems that the practice is now to grant protective orders all the time and to designate as confidential entire questionnaires, which effectively ensures that public information is being designated a confidential. [01:02:55] Speaker 06: This puts the entire bar at a constant threat of sanctions. [01:02:59] Speaker 06: And importantly, the sanctions proceedings that the ITC does are entirely secret and unappealable. [01:03:07] Speaker 06: In the tiny little summaries we have in the Federal Register, two of the cases say that there were defenses that the information was already publicly available, that they were accused of disclosing. [01:03:19] Speaker 06: And again, the summary is very brief. [01:03:21] Speaker 06: There's no reasoning. [01:03:21] Speaker 06: It just says the ITC wasn't convinced by that argument. [01:03:25] Speaker 06: But this is what's happened, clearly, since 1987. [01:03:29] Speaker 06: This abuse has been going on, and it's been apparently going on for decades. [01:03:33] Speaker 06: And it's really unusual, and to Judge Gaden's credit, that it came out through this way. [01:03:37] Speaker 06: And I think it only came out, really, because of that inadvertent disclosure of the December opinion. [01:03:45] Speaker 06: That's really what seems to have been the catalyst for all of this. [01:03:49] Speaker 06: And if it hadn't been for that, we really don't know, because it's an entirely closed loop. [01:03:53] Speaker 06: ITC designates the secrets. [01:03:57] Speaker 06: The protective order forces nobody else to disclose it. [01:04:00] Speaker 06: And then according to the ITC, the court has no authority. [01:04:05] Speaker 06: I mean, this is really about the court's authority. [01:04:06] Speaker 06: And it seems that at every turn, the ITC, whether it's the 60-day deadline for appeals, whether it's the CIT's rules for sealing, at every point, it seems that they don't think that the rules apply to them. [01:04:19] Speaker 06: Court has the authority over what is accessible in court. [01:04:22] Speaker 06: It has always been that way. [01:04:24] Speaker 06: And if the executive agency were going to control what the court can tell people when it's reviewing that agency, it can prevent the public from ever seeing its mistakes. [01:04:35] Speaker 06: It can prevent public accountability. [01:04:37] Speaker 06: And we've heard a lot about the balancing of the respondents and the parties. [01:04:44] Speaker 06: But in my view, Congress was thinking about the public. [01:04:47] Speaker 06: But we have an ITC to do trade policy fairly. [01:04:50] Speaker 06: And the public has an interest in making sure the agency works, which means we have a powerful interest in making sure its errors can be corrected. [01:04:58] Speaker 06: That is what courts are for. [01:05:00] Speaker 06: And it's crucial that those errors, when they're revealed, that courts be the ones to decide. [01:05:05] Speaker 06: The public trusts the courts, and the courts need the public's trust. [01:05:10] Speaker 06: This relationship is sacrosanct. [01:05:13] Speaker 06: The ITC is trying to dismember it. [01:05:16] Speaker 06: The CIT, you did the right thing. [01:05:18] Speaker 06: I trust that you will. [01:05:20] Speaker 06: But I'm happy to answer if there are any other questions. [01:05:24] Speaker 04: Thank you, Ms. [01:05:24] Speaker 04: Mons. [01:05:25] Speaker 06: Thank you. [01:05:28] Speaker 04: Ms. [01:05:28] Speaker 04: McMurray, you have three minutes. [01:05:37] Speaker 05: Thank you. [01:05:39] Speaker 05: The commission is not trying to hide things. [01:05:43] Speaker 05: It's not trying to operate in secret. [01:05:45] Speaker 05: And in fact, it doesn't. [01:05:47] Speaker 05: It's just trying to do its job. [01:05:48] Speaker 05: And it needs the information from these companies to be able to do that. [01:05:54] Speaker 05: It's essential. [01:05:56] Speaker 05: And where there's this claim that there's no accountability, there is, in fact, accountability. [01:06:01] Speaker 05: The people who have access to the BPI also have access to the public record. [01:06:07] Speaker 05: They can see exactly what's being redacted and what's being made public. [01:06:12] Speaker 05: If they have an objection, they can make that. [01:06:15] Speaker 05: And there's this issue of, is there no harm? [01:06:18] Speaker 05: And Amiki keeps saying there's no harm. [01:06:20] Speaker 05: There is harm. [01:06:21] Speaker 05: The commission is harmed. [01:06:22] Speaker 05: SIPA has joined and said that there is a reason they're here, because the commission is harmed. [01:06:28] Speaker 05: They're harmed. [01:06:28] Speaker 05: The ITC, TLA, I understand it's a notice and comment, but this is doing real harm to the commission's ability to do its job. [01:06:42] Speaker 05: Excuse me, I lost my train of thought, but the Commission is absolutely being harmed and it is held accountable because they... Can you comment on the 1987 legislative history to which Ms. [01:06:55] Speaker 05: Moss referred? [01:06:59] Speaker 00: about subpoena power? [01:07:01] Speaker 05: Yes, it does say that the commission has subpoena power. [01:07:07] Speaker 05: But it also says the best insurance that the ITC will be able to obtain the information it needs for its investigation is its reputation for strictly maintaining the confidentiality. [01:07:21] Speaker 04: Yeah, but the legislation contemplated individualized markings [01:07:26] Speaker 04: not blanket claims of confidentiality for entire documents. [01:07:32] Speaker 05: It provided that companies, if they're requesting confidential treatment, that they follow the procedures. [01:07:44] Speaker 04: Identify specific information. [01:07:49] Speaker 05: That they go through and do those procedures. [01:07:52] Speaker 05: But at the same time, [01:07:55] Speaker 05: it's impossible for the broad authority that's been conferred on the Commission to be reconciled with strict adherence with that because the Commission won't be able to get the information that it needs and it certainly is not going to make information public on a technicality. [01:08:13] Speaker 05: The Commission is absolutely not going to do that. [01:08:17] Speaker 05: The other point that I wanted to make, if I may, is the [01:08:21] Speaker 05: The amicus, Ms. [01:08:23] Speaker 05: Cross was just saying, both of them said that the information should have been brought up at the hearing, and they should have brought that up. [01:08:30] Speaker 05: And that's when these issues should have been raised. [01:08:33] Speaker 05: This case involves 53 domestic producers, 49 importers, 16 foreign producers, and 22 purchasers. [01:08:41] Speaker 05: They were not parties to the litigation and certainly not participating. [01:08:44] Speaker 05: And in terms of what's being filed, and I'll just briefly make this last point. [01:08:48] Speaker 05: In terms of what's being filed, you can look at the docket. [01:08:51] Speaker 05: and particularly pages appendix 87 and 88. [01:08:55] Speaker 05: And you will see that the parties were submitting confidential documents. [01:08:59] Speaker 05: They were submitting confidential briefs. [01:09:02] Speaker 05: So the idea that there was no awareness that there was confidential information in this record at issue is not borne out by what the parties were doing. [01:09:12] Speaker 04: OK. [01:09:12] Speaker 04: I think we're out of time. [01:09:13] Speaker 04: Thank you. [01:09:13] Speaker 04: Thank you. [01:09:14] Speaker 04: Thank you, all counsel. [01:09:16] Speaker 04: Thank you, Mickey, for participating in the cases that are submitted.