U.S. Steel Corp. v. U.S.

• Decision Date: 23 March 1984
• Docket Number: No. 84-639,84-639
• Citation: 730 F.2d 1465
• Parties: , 73 A.L.R.Fed. 238, 2 Fed. Cir. (T) 46 U.S. STEEL CORPORATION, et al., Appellants, v. The UNITED STATES and U.S. International Trade Commission, Appellees, and Cosipa, et al., Intervenors. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1465

730 F.2d 1465

5 ITRD 1955, 73 A.L.R.Fed. 238, 2

Fed. Cir. (T) 46

U.S. STEEL CORPORATION, et al., Appellants, v. The UNITED STATES and U.S. International Trade Commission, Appellees and Cosipa, et al., Intervenors.

Appeal No. 84-639.

United States Court of Appeals Federal Circuit.

March 23, 1984.

D.B. King, Pittsburgh, Pa., for appellants. With him on the brief were J.J. Mangan, C.D. Mallick, L. Ranney and P.J. Koenig, Pittsburgh, Pa.

David M. Cohen, Washington, D.C., for appellee U.S. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., and Francis J. Sailer, Washington, D.C.

Michael H. Stein, Washington, D.C., for appellee ITC. With him on the brief was Michael P. Mabile, Washington, D.C.

Christopher Dunn, Washington, D.C., for intervenors COSIPA.

Griffin B. Bell, Atlanta, Ga., for amicus Corp. Counsel. With him on the brief were John C. Staton, Jr., Atlanta, Ga., and Scott A. Wisser, Washington, D.C.

Nancy A. Nord, Washington, D.C., was on the brief for amicus curiae American Corporate Counsel Ass'n.

Pierre F. de Ravel d' Esclapon, New York City, Lewis E. Leibowitz, Peter O. Suchman, and Milo G. Coerper, Washington, D.C., were on the brief for amicus curiae in support of appellees and intervenors.

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and KASHIWA, Circuit Judge.

MARKEY, Chief Judge.

Interlocutory appeal on a certified question arising from a decision of the Court of International Trade (CIT) ¹ denying U.S. Steel's (USS) corporate in-house counsel access to confidential information. We vacate and return.

Background

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, 569 F.Supp. 870 (C.I.T.1983), vacated on other grounds, slip op. 84-12 (C.I.T. 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. Sec. 1292(a)(1), as amended by Federal Courts Improvement Act of 1982 The case has proceeded with access granted to retained counsel and denied to in-house counsel.

Pub.L. No. 97-164, Sec. 125(a), 96 Stat. 25, 36 (1982).

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.

Issue

Whether the CIT erred in denying the present motion for access.

OPINION

The authority of the CIT under 19 U.S.C. Sec. 1516a(b)(2)(B) to control access to confidential information in cases before it is not in dispute. ² 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. Sec. 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 of inadvertent disclosure within the corporate setting" (CIT's emphasis).

Because what the CIT called the "extremely potent" information in this case fills several volumes and is intermixed with nonconfidential information, the CIT said "its nature and volume place it beyond the capacity of anyone to retain in a consciously separate category" and that "it is humanly impossible to control the inadvertent disclosure of some of this information in any prolonged working relationship." The CIT recognized that those statements applied equally to retained counsel, but also recognized that applying it to both in-house and retained counsel would render adversarial proceedings impossible.

The CIT's well-taken concern for the nature and scope of the information would be eminently applicable to (and would doubtless complicate) the crafting of a suitable protective order. That concern, coupled with the CIT's emphasis on protection of confidentiality, might have justified denial of access to all and sundry. Once it became clear that access must be granted, however, it was error to deny access solely because of in-house counsel's "general position" and "reasonable assumptions" that present in-house counsel will move into other positions within USS.

The denial of access here rested on the court's stated general assumption that there is "a greater likelihood of inadvertent disclosure by lawyers who are employees committed to remain in the environment of a single company". Denial or grant of access, however, cannot rest on a general assumption that one group of lawyers are more likely or less likely inadvertently to breach their duty under a protective order. Indeed, it is common knowledge that some retained counsel enjoy long and intimate relationships and activities with one or more clients, activities on occasion including retained counsel's service on a corporate board of directors. Exchange of employees between a client and a retained law firm is not uncommon. Thus the factual circumstances surrounding each individual counsel's activities, association, and relationship with a party, whether counsel be in-house or retained, must govern any concern for inadvertent or accidental disclosure.

The CIT distinguished in-house from retained counsel because, as it said, "a clear and more sustained relationship can be presumed as an outgrowth of the employer-employee relationship". It therefore saw exclusion of in-house counsel as providing "a meaningful increment of protection". Like retained counsel, however, in-house counsel are officers of the court, are bound by the same Code of Professional Responsibility, and are subject to the same sanctions. In-house counsel provide the same services and are subject to the same types of pressures as retained counsel. The problem and importance of avoiding inadvertent disclosure is the same for both. Inadvertence, like the thief-in-the-night, is no respecter of its victims. Inadvertent or accidental disclosure may or may not be predictable. To the extent that it may be predicted, and cannot be adequately forestalled in the design of a protective order, it may be a factor in the access decision. Whether an unacceptable opportunity for inadvertent disclosure exists, however, must be determined, as above indicated, by the facts on a counsel-by-counsel basis, and cannot be determined solely by giving controlling weight to the classification of counsel as in-house rather than retained. ³

Meaningful increments of protection are achievable in the design of a protective order. It may be that particular circumstances may require specific provisions in such orders. In such cases, the order would be developed in light of the particular counsel's relationship and activities, not solely on a counsel's status as in-house or retained.

In a particular case, e.g., where in-house counsel are involved in competitive decisionmaking, it may well be that a party seeking access should be forced to retain outside counsel or be denied the access recognized as needed. Because the present litigation is extremely complex and at an advanced stage, and because present in-house counsel's divorcement from competitive decisionmaking has been accepted by the CIT, forcing USS to rely on newly retained counsel would create an extreme and unnecessary hardship.

Our decision here bears no relation to, and can have no effect on, ITC's rule establishing a per se ban on disclosure to in-house counsel in its administrative proceedings. That rule is not before the court. The policy of an administrative agency faced with specific tasks and deadlines cannot of course control a trial court's discretion in managing the litigation before it....