American Spring Wire Corp. v. United States

• Decision Date: 10 June 1983
• Docket Number: Court No. 82-6-00881.
• Citation: 5 CIT 256,566 F. Supp. 1538
• Parties: AMERICAN SPRING WIRE CORP., et al., Plaintiffs, v. UNITED STATES, Defendant, and Haggie Limited, Intervenor.
• Court: U.S. Court of International Trade

566 F. Supp. 1538

5 CIT 256

AMERICAN SPRING WIRE CORP., et al., Plaintiffs, v. UNITED STATES, Defendant, and Haggie Limited, Intervenor.

Court No. 82-6-00881.

United States Court of International Trade.

June 10, 1983.

Eugene L. Stewart, Terence P. Stewart, Washington, D.C., Kathleen T. Weaver and Roger Yochelson, New York City, for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Washington, D.C., Director, Commercial Litigation Branch (Francis J. Sailer, Washington, D.C., on the brief), for defendant.

Busby, Rehm & Leonard, Washington, D.C., (Larry E. Klayman, Washington, D.C., on the brief), for intervenor Haggie Limited.

Opinion and Order

MALETZ, Senior Judge:

Plaintiffs have filed a motion for discovery of confidential information subject to judicial protective order. The documents sought by plaintiffs are verification data compiled by the International Trade Administration of the Department of Commerce in the course of its countervailing duty investigation of prestressed concrete steel wire strand imported from South Africa.

The starting point for analysis of the motion for discovery of confidential information is section 516A(b)(2)(B) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(b)(2)(B) (Supp. IV 1980), which provides:

Confidential or privileged material

The confidential or privileged status accorded to any documents, comments, or information shall be preserved in any action under this section. Notwithstanding the preceding sentence, the court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order.

By its terms this provision vests in the court discretion in determining whether to release confidential documents to parties involved in countervailing duty cases. In exercising its discretion, however, the court is guided by the following three considerations: (1) the need of the litigants for data used by the Government in order to respond adequately to subsidy findings, (2) the need of the Government in obtaining confidential information from businesses in future proceedings, and (3) the need of the foreign manufacturer to protect from disclosure information which, in the hands of a competitor, might injure its relative position in the industry. See, e.g., Freres v. United States, 4 CIT ___, 554 F.Supp. 1246, 1248 (1982).

With these considerations in mind the court must then balance "a party's need for the information sought against the public interest in protecting confidential business information, recognized by section 516A(b)(2)(B) and inherent in the administrative authority's ability to effectively perform its investigative duties" under the countervailing duty law. Nakajima All Co. v. United States, 2 CIT 170, 174 (1981). Each case must, of course, be considered in light of its particular facts and circumstances in deciding whether confidential business data should be disclosed. Compare Committee of U.S. Rayon Producers v. United States, 3 CIT ___, Slip Op. 82-41 (May 27, 1982) (confidential verification exhibits ordered disclosed); Japan Exlan Co. v. United States, 1 CIT 286 (1981) (confidential information requested several years old, so that disclosure would not harm competitive position of companies submitting information); Rhone Poulenc, Inc. v. United States, 1 CIT 116 (1981) (where information requested related directly to assessment of material injury, disclosure required); Atlantic Sugar Ltd. v. United States, 85 Cust.Ct. 128, 129, C.R.D. 80-14 (1980) (disclosure of document ordered where "plaintiffs' need for it goes beyond mere curiosity or a vague groping for clues"); and Connors Steel Co. v. United States, 85 Cust.Ct. 112, 113, C.R.D. 80-9 (1980) (in order for litigant "to fully prepare and present its legally authorized challenge to an administrative determination and to do so based on all available relevant material," disclosure ordered) with Freres v. United States, 4 CIT ___, 554 F.Supp. 1246 (1982) (since statistical data containing production capacity, customers and techniques not directly relevant to administrative determination, disclosure denied); Armco, Inc. v. United States, 1 CIT 131 (1981) (certain sources of supply to be protected from disclosure); and Connors Steel Co. v. United States, 85 Cust.Ct. 132, C.R.D. 80-17 (1980) (need for disclosing confidential data to economic expert not shown, disclosure denied).

Having examined in camera each of the confidential documents in question, the court is of the view that all of the documents requested by plaintiffs should be made available to them, with the exception of the documents described as "Invoices," appearing at pages 1655-1658 of the administrative record. Inasmuch as these latter documents contain customer-related information the court concludes that the need of the intervenor in protecting from disclosure information which, in the hands of plaintiffs, might injure its relative position in the industry outweighs plaintiffs' need for those documents in order to respond adequately to the Government's subsidy findings. The court believes that these documents are not directly relevant to the administrative determinations. In any event, they would be of marginal assistance to plaintiffs in responding to the Government's countervailing duty determination.

As for the balance of the documents sought by plaintiffs, the court is unable to see how plaintiffs would be able to meaningfully challenge the Government's findings in this action without them. Plaintiffs' need for such documents in the circumstances of this case clearly outweighs the competing considerations of guarding confidential business information so as not to impair the Government's ability to compile such data in future cases and to protect the competitive position of the foreign manufacturer which furnished the...