Goto Section: 1.313 | 1.315 | Table of Contents
Revised as of September 1, 2021
Goto Year:2020 |
§ 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
(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
(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
(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]
Goto Section: 1.313 | 1.315
Goto Year: 2020 |
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