§  1.314   Confidentiality of information produced or exchanged.

   (a) Any information produced in the course of a hearing proceeding may
   be designated as confidential by any parties to the proceeding, or
   third parties, pursuant to § 0.457, § 0.459, or § 0.461 of these rules.
   Any parties or third-parties asserting confidentiality for such
   materials must:

   (1) Clearly mark each page, or portion thereof, for which a
   confidential designation is claimed. The parties or third parties
   claiming confidentiality should restrict their designations to
   encompass only the specific information that they assert is
   confidential. If a confidential designation is challenged, the party or
   third party claiming confidentiality shall have the burden of
   demonstrating, by a preponderance of the evidence, that the materials
   designated as confidential fall under the standards for nondisclosure
   enunciated in the FOIA and that the designation is narrowly tailored to
   encompass only confidential information.

   (2) File with the Commission, using the Commission's Electronic Comment
   Filing System, a public version of the materials that redacts any
   confidential information and clearly marks each page of the redacted
   public version with a header stating “Public Version.” The Public
   Version shall be machine-readable whenever technically possible. Where
   the document to be filed electronically contains metadata that is
   confidential or protected from disclosure by a legal privilege
   (including, for example, the attorney-client privilege), the filer may
   remove such metadata from the Public Version before filing it
   electronically.

   (3) File an unredacted version of the materials containing confidential
   information, as directed by the Commission. Each page of the unredacted
   version shall display a header stating “Confidential Version.” The
   unredacted version must be filed on the same day as the Public Version.

   (4) Serve one copy of the Public Version and one copy of the
   Confidential Version on the attorney of record for each party to the
   proceeding or on a party if not represented by an attorney, either by
   hand delivery, overnight delivery, or email, together with a proof of
   such service in accordance with the requirements of § 1.47(g). A copy of
   the Public Version and Confidential Version shall also be served on the
   presiding officer, as directed by the Commission.

   (b) An attorney of record for any party or any party that receives
   unredacted materials marked as confidential may disclose such materials
   solely to the following persons, only for use in prosecuting or
   defending a party to the hearing proceeding, and only to the extent
   necessary to assist in the prosecution or defense of the case:

   (1) Employees of counsel of record representing the parties in the
   hearing proceeding;

   (2) Officers or employees of the receiving party who are directly
   involved in the prosecution or defense of the case;

   (3) Consultants or expert witnesses retained by the parties; and

   (4) Court reporters and stenographers in accordance with the terms and
   conditions of this section.

   (c) The individuals identified above in paragraph (b) shall not
   disclose information designated as confidential to any person who is
   not authorized under this section to receive such information, and
   shall not use the information in any activity or function other than
   the prosecution or defense in the hearing proceeding. Each such
   individual who is provided access to the information shall sign a
   declaration or affidavit stating that the individual has personally
   reviewed the Commission's rules and understands the limitations they
   impose on the signing party.

   (d) Parties may make copies of materials marked confidential solely for
   use by the Commission or persons designated in paragraph (b) of this
   section. Each party shall maintain a log recording the number of copies
   made of all confidential material and the persons to whom the copies
   have been provided.

   (e) The presiding officer may adopt a protective order as appropriate.

   (f) Upon final termination of a hearing proceeding, including all
   appeals and applications for review, the parties shall ensure that all
   originals and reproductions of any confidential materials, along with
   the log recording persons who received copies of such materials, shall
   be provided to the producing party. In addition, upon final termination
   of the proceeding, any notes or other work product derived in whole or
   in part from the confidential materials of an opposing or third party
   shall be destroyed.

   [ 85 FR 63180 , Oct. 6, 2020]