Appealed from: Court of International Trade.
Markey, Chief Judge, Nichols, Senior Circuit Judge, and Kashiwa, Circuit Judge. Nichols, Senior Circuit Judge, dissenting.
Interlocutory appeal on a certified question arising from a decision of the Court of International Trade (CIT)*fn1 denying U.S. Steel's (USS) corporate in-house counsel access to confidential information. We vacate and return.
In Republic Steel Corp., supra, note 1, an action involving a negative preliminary injury determination by the International Trade Commission (ITC), the CIT denied a motion for access by USS' in-house counsel to certain confidential information while granting access to counsel retained by other parties. Relying on an earlier decision in U.S. Steel Corp. v. United States, 6 C.I.T. 55, 569 F. Supp. 870 (1983), vacated on other grounds, slip op. 84-12 (Ct. Int'l Trade Feb. 24, 1984), the court reiterated its view that the possibility of inadvertent disclosure by in-house counsel warranted denial of access. 572 F. Supp. at 276. That earlier decision, specifically incorporated into the decision on appeal here, acknowledged USS's need for the information but said that the information's nature and volume required a focus on the possibility of inadvertent disclosure. Though it accepted representations that the present in-house counsel are not involved in competitive decisions, the CIT nonetheless denied access to in-house counsel because of their "general position" and "reasonable assumptions that they will move into other roles."
The CIT certified the access question in its decision. 572 F. Supp. at 277. This court granted USS's petition for review of that question on November 10, 1983, under 28 U.S.C. § 1292(a)(1), as amended by Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, § 125(a), 96 Stat. 25, 36 (1982).
The case has proceeded with access granted to retained counsel and denied to in-house counsel.
The United States joins USS in arguing that the CIT's decision constitutes a per se ban on access by in-house counsel and should be reversed in favor of a case-by-case balancing test without regard to whether counsel are in-house or retained.
The ITC takes no position on the present court-denial of access, but seeks to preserve its right to deny access by in-house counsel at the administrative level. Intervenors Companhia Siderurgica Paulista, S.A. (COSIPA) and Usinas Siderurgicas de Minas Gerais, S.A., of Brazil and Companhia Siderurgica Nacional are exporters of steel products seeking affirmance of the present denial. European exporters filed a brief amici curiae urging affirmance. Bethlehem Steel Corporation filed a brief amicus curiae in support of reversal.
Whether the CIT erred in denying the present motion for access.
The authority of the CIT under 19 U.S.C. § 1516a(b)(2)(B) to control access to confidential information in cases before it is not in dispute.*fn2 In exercising that control in this case, the CIT carefully reviewed Atlantic Sugar, Ltd. v. United States, 85 Cust. Ct. 133, C.R.D. 80-18 (1980) and available authorities dealing with access in other fields of law, made clear that its rationale carried no reflection on the unquestioned integrity and unblemished record of USS' in-house counsel in adhering to protective orders, and indicated that retention of outside counsel was a reasonable way for USS to satisfy its recognized need for the requested information. Serving the interest of early and just resolution, the CIT certified to this court the question of whether access may be denied solely because of counsel's in-house status.
Emphasizing congressional concern for confidentiality and the statutory provision, 19 U.S.C. § 1516a(b)(2)(B) for maintenance of confidentiality, the CIT denied access. It did so, however, only to in-house counsel, because of its concern, as it said, "solely with the greater risk ...