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`In the Matter of
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`Washington, D.C.
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`I
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`CERTAIN NOISE CANCELLING HEADPHONES
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`Inv. No. 337-TA-626
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`ORDER NO. 1: PROTECTIVE ORDER
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`(January 4,2008)
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`WHEREAS, documents and information may be sought, produced or exhibited by and among
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`the parties to the above captioned proceeding, which materials relate to trade secrets or other
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`confidential research, development or commercial information, as such terms are used in the
`Commission’s Rules, 19 C.F.R. 3 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1. Confidential business information is information which concerns or relates to the trade
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`secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments,
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`purchases, transfers, identification of customers, inventories, amount or source of any income,
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`profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization,
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`or other information of commercial value, the disclosure of which is likely to have the effect of either
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`(i) impairing the Commission’s ability to obtain such information as is necessary to perform its
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`statutory functions; or (ii) causing substantial harm to the competitive position of the person, firm,
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`partnership, corporation, or other organization from which the information was obtained, unless the
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`Commission is required by law to disclose such information. The term “confidential business
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`information” includes “proprietary information” within the meaning of section 777(b) of the Tariff
`Act of 1930 (19 U.S.C. 0 1677f(b)).
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`2(a). Any information submitted, in pre hearing discovery or in a pleading, motion, or
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`response to a motion either voluntarily or pursuant to order, in this investigation, which is asserted
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`by a supplier to contain or constitute confidential business information shall be so designated by such
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`supplier in writing, or orally at a deposition, conference or hearing, and shall be segregated from
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`other information being submitted. Documents shall be clearly and prominently marked on their face
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`with the legend: "[supplier's name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO
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`PROTECTIVE ORDER," or a comparable notice. Such information, whether submitted in writing
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`or in oral testimony, shall be treated in accordance with the terms of this protective order.
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`(b). The Administrative Law Judge or the Commission may determine that information
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`alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein. If such a
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`determination is made by the Administrative Law Judge or the Commission, opportunity shall be
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`provided to the supplier of such information to argue its confidentiality prior to the time of such
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`ruling.
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`3. In the absence of written permission from the supplier or an order by the Commission or
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`the Administrative Law Judge, any confidential documents or business information submitted in
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`accordance with the provisions of paragraph 2 above shall not be disclosed to any person other than:
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`(i) outside counsel for parties to this investigation, including necessary secretarial and support
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`personnel assisting such counsel; (ii) qualified persons taking testimony involving such documents
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`or information and necessary stenographic and clerical personnel thereof; (iii) technical experts and
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`their staff who are employed for the purposes of this litigation (unless they are otherwise employed
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`by, consultants to, or otherwise affiliated with a non-governmental party, or are employees of any
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`domestic or foreign manufacturer, wholesaler, retailer, or distributor of the products, devices or
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`component parts which are the subject of this investigation); (iv) the Commission, the
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`Administrative Law Judge, the Commission staff, and personnel of any governmental agency as
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`authorized by the Commission; and (v) the Commission, its employees, and contract personnel who
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`are acting in the capacity of Commission employees, for developing or maintaining the records of
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`this investigation or related proceedings for which this information is submitted, or in internal audits
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`and investigations relating to the programs and operations of the Commission pursuant to 5 U.S.C.
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`Appendix 3.’
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`4. Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(i)’ and (iii)
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`unless he or she shall have first read this order and shall have agreed, by letter filed with the
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`Secretary of this Commission: (i) to be bound by the terms thereof; (ii) not to reveal such
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`confidential business information to anyone other than another person designated in paragraph 3; and
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`(iii) to utilize such confidential business information solely for purposes of this investigation.
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`5. If the Commission or the Administrative Law Judge orders, or if the supplier and all
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`parties to the investigation agree, that access to, or dissemination of information submitted as
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`confidential business information shall be made to persons not included in paragraph 3 above, such
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`matter shall only be accessible to, or disseminated to, such persons based upon the conditions
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`pertaining to, and obligations arising fiom this order, and such persons shall be considered subject
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`to it, unless the Commission or the Administrative Law Judge finds that the information is not
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`See Commission Administrative Order 97-06 (Feb. 4, 1997).
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`Necessary secretarial and support personnel assisting counsel need not sign onto the protective
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`order themselves because they are covered by counsel’s signing onto the protective order.
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`confidential business information as defined in paragraph 1 hereof.
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`6. Any confidential business information submitted to the Commission or the Administrative
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`Law Judge in connection with a motion or other proceeding within the purview of this investigation
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`shall be submitted under seal pursuant to paragraph 2 above. Any portion of a transcript in
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`connection with this investigation containing any confidential business information submitted
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`pursuant to paragraph 2 above shall be bound separately and filed under seal. When any confidential
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`business information submitted in accordance with paragraph 2 above is included in an authorized
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`transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter
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`taking the deposition to bind such confidential portions and separately label them "[supplier's name]
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`CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER." Before
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`a court reporter or translator receives any such information, he or she shall have first read this order
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`and shall have agreed in writing to be bound by the terms thereof. Alternatively, he or she shall sign
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`the agreement included as Attachment A hereto. Copies of each such signed agreement shall be
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`provided to the supplier of such confidential business information and the Secretary of the
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`Commission.
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`7. The restrictions upon, and obligations accruing to, persons who become subject to this
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`order shall not apply to any information submitted in accordance with paragraph 2 above to which
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`the person asserting the confidential status thereof agrees in writing, or the Commission or the
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`Administrative Law Judge rules, after an opportunity for hearing, was publicly known at the time
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`it was supplied to the receiving party or has since become publicly known through no fault of the
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`receiving party.
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`8. The Commission, the Administrative Law Judge, and the Commission investigative
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`attorney acknowledge that any document or information submitted as confidential business
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`information pursuant to paragraph 2 above is to be treated as such within the meaning of 5 U.S.C.
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`fj 552(b)(4) and 18 U.S.C. fj 1905, subject to a contrary ruling, after hearing, by the Commission or
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`its Freedom of Information Act Officer, or the Administrative Law Judge. When such information
`is made part of a pleading or is offered into the evidentiary record, the data set forth in 19 C.F.R. 0
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`201.6 must be provided except during the time that the proceeding is pending before the
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`Administrative Law Judge. During that time, the party offering the confidential business information
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`must, upon request, provide a statement as to the claimed basis for its confidentiality.
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`9. Unless a designation of confidentiality has been withdrawn, or a determination has been
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`made by the Commission or the Administrative Law Judge that information designated as
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`confidential, is no longer confidential, the Commission, the Administrative Law Judge, and the
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`Commission investigative attorney shall take all necessary and proper steps to preserve the
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`confidentiality of, and to protect each supplier's rights with respect to, any confidential business
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`information designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation: (a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access to such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. fj 552) and (ii)
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`any proposal to redesignate or make public any such confidential business information; and (b)
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`providing the supplier at least seven days after receipt of such inquiry or request within which to take
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`action before the Commission, its Freedom of Information Act Officer, or the Administrative Law
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`Judge, or otherwise to preserve the confidentiality of and to protect its rights in, and to, such
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`confidential business information.
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`10. If while an investigation is before the Administrative Law Judge, a party to this order
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`who is to be a recipient of any business information designated as confidential and submitted in
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`accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it shall
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`notify the supplier in writing, and they will thereupon confer as to the status of the subject
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`information proffered within the context of this order. If prior to, or at the time of such a conference,
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`the supplier withdraws its designation of such information as being subject to this order, but
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`nonetheless submits such information for purposes of the investigation, such supplier shall express
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`the withdrawal, in writing, and serve such withdrawal upon all parties and the Administrative Law
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`Judge. If the recipient and supplier are unable to concur upon the status of the subject information
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`submitted as confidential business information within ten days from the date of notification of such
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`disagreement, any party to this order may raise the issue of the designation of such a status to the
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`Administrative Law Judge who will rule upon the matter. The Administrative Law Judge may sua
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`sponte question the designation of the confidential status of any information and, after opportunity
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`for hearing, may remove the confidentiality designation.
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`1 1. No less than 10 days (or any other period of time designated by the Administrative Law
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`Judge) prior to the initial disclosure to a proposed expert of any confidential information submitted
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`in accordance with paragraph 2, the party proposing to use such expert shall submit in writing the
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`name of such proposed expert and his or her educational and detailed employment history to the
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`supplier. If the supplier objects to the disclosure of such confidential business information to such
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`proposed expert as inconsistent with the language or intent of this order or on other grounds, it shall
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`notify the recipient in writing of its objection and the grounds therefor prior to the initial disclosure.
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`If the dispute is not resolved on an informal basis within ten days of receipt of such notice of
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`objections, the supplier shall submit immediately each objection to the Administrative Law Judge
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`for a ruling. If the investigation is before the Commission the matter shall be submitted to the
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`Commission for resolution. The submission of such confidential business information to such
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`proposed expert shall be withheld pending the ruling of the Commission or the Administrative Law
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`Judge. The terms of this paragraph shall be inapplicable to experts within the Commission or to
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`experts from other governmental agencies who are consulted with or used by the Commission.
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`12. If confidential business information submitted in accordance with paragraph 2 is
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`disclosed to any person other than in the manner authorized by this protective order, the party
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`responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure
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`to the attention of the supplier and the Administrative Law Judge and, without prejudice to other
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`rights and remedies of the supplier, make every effort to prevent W h e r disclosure by it or by the
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`person who was the recipient of such information.
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`13. Nothing in this order shall abridge the right of any person to seek judicial review or to
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`pursue other appropriate judicial action with respect to any ruling made by the Commission, its
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`Freedom of Information Act Officer, or the Administrative Law Judge concerning the issue of the
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`status of confidential business information.
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`14. Upon final termination of this investigation, each recipient of confidential business
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`information that is subject to this order shall assemble and return to the supplier all items containing
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`such information submitted in accordance with paragraph 2 above, including all copies of such
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`matter which may have been made. Alternatively, the parties subject to this order may, with the
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`written consent of the supplier, destroy all items containing confidential business information and
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`certify to the supplier (or his counsel) that such destruction has taken place. This paragraph shall not
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`apply to the Commission, including its investigative attorney, and the Administrative Law Judge,
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`which shall retain such material pursuant to statutory requirements and for other recordkeeping
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`purposes, but may destroy those additional copies in its possession which it regards as surplusage.
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`Notwithstanding the above paragraph, confidential business information may be transmitted
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`to a district court pursuant to Commission Rule 210.5(c).
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`15. If any confidential business information which is supplied in accordance with paragraph
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`2 above is supplied by a nonparty to this investigation, such a nonparty shall be considered a
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`"supplier" as that term is used in the context of this order.
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`16. Each nonparty supplier shall be provided a copy of this order by the party seeking
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`information from said supplier.
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`17. The Secretary shall serve a copy of this order upon all parties.
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`Charles E. Bullock
`Administrative Law Judge
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`Attachment A
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`NONDISCLOSURE AGREEMENT FOR REPORTEWSTENOGRAPHEWTRANSLATOR
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`I,
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`, do solemnly swear or affirm that I will not divulge any information
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`communicated to me in any confidential portion of the investigation or hearing in the matter of
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`Certain XYZ Investigation, Investigation No. 337-TA-XXX, except as permitted in the protective
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`order issued in this case. I will not directly or indirectly use, or allow the use of such information
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`for any purpose other than that directly associated with my official duties in this case.
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`Further, I will not by direct action, discussion, recommendation, or suggestion to any person
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`reveal the nature or content of any information communicated during any confidential portion of the
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`investigation or hearing in this case.
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`I also affirm that I do not hold any position or official relationship with any of the participants
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`in said investigation.
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`I am aware that the unauthorized use or conveyance of information as specified above is a
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`violation of the Federal Criminal Code and punishable by a fine of up to $1 0,000, imprisonment of
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`up to ten (1 0) years, or both.
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`Dated
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`Firm or affiliation
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`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
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`337-TA-626
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`CERTIFICATE OF SERVICE
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`I, Marilyn R. Abbott, hereby certifl that the attached ORDER was served upon, T. Spence
`Chubb, Esq., Commission Investigative Attorney, and the following parties via first class mail
`and air mail where necessary on January 4
`,2008..
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`K ,@
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`I&ilyn R. dbbott, Secretary
`U.S. International Trade Commission
`500 E Street, S.W., Room 112A
`Washington, DC 20436
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`FOR COMPLAINANT BOSE CORPORATION:
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`Ruffin B. Cordell, Esq.
`Andrew R. Kopsidas, Esq.
`Jeffrey R. Whieldon, Esq.
`FISH & RICHARDSON, P.C.
`1425 K Street, N.W.
`Washington, DC 20005
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`Charles Hieken, Esq.
`Gregory A. Madera, Esq.
`Adam J. Kessel, Esq.
`FISH & RICHARDSON, P.C.
`225 Franklin Street
`Boston, MA 02 1 10
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`RESPONDENTS:
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`PHITEK SYSTEMS LIMITED
`Level 4, Axon Building, 2 Kingdon Street
`New Market, Auckland, New Zealand
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`IN THE MATTER OF CERTAIN NOISE
`CANCELLING HEADPHONES
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`337-TA-626
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`PHITEK SYSTEMS LIMITED
`3049 Summerhill Court
`San Jose, CA 95148
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`GN NETCOM, INC.
`77 Northeastern Boulevard
`Nashua, NH 03062
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`AUDIO TECHNICA U.S., INC.
`1221 Commerce Drive
`Stow, OH 44224
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`CREATIVE LABS INC.
`190 1 McCarthy Boulevard
`Milpitas, CA 95035
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`LOGITECH INC.
`6505 Kaiser Drive
`Fremont, CA 94555
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`PANASONIC CORPORATION OF NORTH AMERICA
`One Panasonic Way
`Secaucus, NJ 07094
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`PUBLIC MAILING LIST
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`Sherry Robinson
`LEXIS - NEXIS
`8891 Gander Creek Drive
`Miamisburg, OH 45342
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`Ronnita Green
`Thomson West
`1100 - 13'h Street NW
`Suite 200
`Washington, DC 20005