The opinion of the court was delivered by: WYATT
This is an application by the Federal Trade Commission for an order requiring the production of documentary evidence by respondent (Continental). The application is said to be made under Section 9 of the Federal Trade Commission Act (15 U.S.C. § 49; the "Act").
The Commission has issued a complaint against The Crown Cork & Seal Company, Inc. (Crown) alleging a violation of Section 7 of the Clayton Act (15 U.S.C. §§ 18, 21) in respect of metal crown closures for glass and metal containers.
One of the issues between the Commission and Crown is the appropriate line of commerce.
Crown believes that on this issue it needs sales data from Continental and other manufacturers of cans, bottles and closures. At the request of Crown, the Commission issued a subpoena duces tecum to Continental and to a number of other manufacturers.
As to much of the data called for, there is no problem.
Continental resists the subpoena as to certain data, however, unless protection be given to the confidential character of the data.
The dispute between the Commission and Continental is whether the protection which the Commission is willing to give, is reasonable and adequate. The data involved relates to
b. tear-type cans sold, 1963-1965; and
c. Crown-type bottle closures sold, first six months 1966.
It is recognized on all sides that this data is in fact of a highly confidential character and that Continental is justifiably concerned that it not be known to Crown or to any other competitor.
Counsel for all parties reached an understanding that this data when produced by Continental would be examined only by Crown counsel and by Commission personnel actively involved and by prospective witnesses (not Crown employees) who would compile the data, that all those who examine the data would afford it confidential treatment, and that the Hearing Examiner would be asked to order that if and when the data is offered in evidence it should be placed in camera. The Hearing Examiner declined to approve this understanding, feeling that he should not, in advance of any offer in evidence, order in camera treatment but should pass upon that question if and when the offer in evidence should be made, the material being kept confidential meanwhile.
A majority of the Commission sustained the position of the Hearing Examiner. Two members believed that the data should be protected from disclosure by an order at that time treating the data as in Mississippi River Fuel Corporation, Docket 8657 (June 7, 1966). The procedure in Mississippi River was to submit the confidential data to a disinterested accounting firm for ...