CIT to Hold Hearing on Whether ITC's Bracketing of Information Warrants Sanctions

The Court of International Trade last week ordered a hearing in a countervailing duty injury case on whether any party violated the court's rules regarding the bracketing of confidential information, suggesting that Rule 11 sanctions were on the table.

Judge Stephen Vaden said that counsel for the International Trade Commission and "any party that requested or approved redaction of any information" in the injury case on phosphate fertilizers must appear for an in-person hearing on whether any party made improper representations to the court under Rule 11 (OCP v. United States, CIT Consol. # 21-00219).

The hearing will be held March 29 and will determine "who requested the redaction of what information," the legal rationales for the redaction, why the ITC allowed the redaction requests, whether there was "any ambiguity in the law" and the "parties' mental states when redacting the information," among other things, the court said. Vaden said he also will be inquiring into whether the parties complied with CIT Rule 11(b), which governs misrepresentations made to the court, "by diligently investigating their representations regarding the purportedly confidential information."

The order said that the hearing will also include a discussion on "the propriety of sanctions for any violation of USCIT Rule 11." The judge will look to find if there's any "nonfrivolous argument" or "evidentiary support" for the allegation that publicly available information qualifies as confidential information.

Vaden said that after he reviewed the record, he found apparent violations of the principles the court laid out in a previous order regarding the bracketing of confidential information. In that order, the court issued three holdings on what qualifies as confidential information: that parties forfeit confidentiality when they fail to comply with court rules on marking information as confidential, that the court has an independent duty to shield the public's right of access, and that publicly available information is not confidential.

The judge said he found entire sections of questionnaire responses to be bracketed, which cuts against the court's warning against bracketing entire sections of submitted material. In addition, publicly available information was bracketed, including information from the parties' own websites, press releases and public annual reports required by the Securities Exchange Act of 1934.

Vaden remarked that the redaction seemed to violate the ITC's own standards regarding confidentiality, since the commission's regulations only regard information as confidential if its release would imperil the ITC's ability to collect data or cause competitive harm to the company from which it was received. The court said maybe some of the information "satisfied these standards at an earlier date," but now "it is more difficult to see how that same information" could hurt the ITC's ability to obtain information or "cause substantial harm to the competitive position" of a "disclosing company."