§  1.731   Confidentiality of information produced or exchanged.

   (a) Any information produced in the course of a formal complaint
   proceeding may be designated as confidential by either party to the
   proceeding or a third party if the party believes in good faith that
   the materials fall within an exemption to disclosure contained in the
   Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(1) through (9), and
   under § 0.459 of this chapter. Any party asserting confidentiality for
   such materials must:

   (1) Clearly mark each page, or portion thereof, for which a
   confidential designation is claimed. The party claiming confidentiality
   should restrict its designations to encompass only the specific
   information that it asserts is confidential. If a confidential
   designation is challenged, the 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 redacted
   document 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 document before filing it electronically.

   (3) File with the Secretary's Office an unredacted hard copy version of
   the materials that contains the confidential information and clearly
   marks each page of the unredacted confidential version with a header
   stating “Confidential Version.” The unredacted version must be filed on
   the same day as the redacted version.

   (4) Serve one hard copy of the filed unredacted materials and one hard
   copy of the filed redacted materials on the attorney of record for each
   party to the proceeding, or, where a party is not represented by an
   attorney, each party to the proceeding either by hand delivery,
   overnight delivery, or email, together with a proof of such service in
   accordance with the requirements of § § 1.47(g) and 1.734(f).

   (b) An attorney of record for a party or a 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 complaint action, and only to the extent
   necessary to assist in the prosecution or defense of the case:

   (1) Support personnel for counsel of record representing the parties in
   the complaint action;

   (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 in paragraph (b) of this section 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 case before the Commission. 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 Commission may adopt a protective order with further
   restrictions as appropriate.

   (f) Upon termination of a formal complaint proceeding, including all
   appeals and petitions, 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.

   [ 83 FR 44832 , Sept. 4, 2018]