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UNITED STATES v. IBM

June 27, 1978

UNITED STATES of America, Plaintiff,
v.
INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant



The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM AND ORDER

On September 25, 1978 International Business Machines Corporation, defendant in this civil antitrust action, offered into evidence approximately 500 documents, including Defendant's Exhibits 5515 through 5598 marked for identification. *fn1" The United States of America, plaintiff in this action, raised no objection to the receipt of the exhibits into evidence, but applied to the court to limit public access to Defendant's Exhibits 5515 through 5598 marked for identification. Defendant took no position with respect to that application. The court received the exhibits into evidence but reserved decision on the government's application.

 The documents for which confidential treatment is sought consist for the most part of export applications and licenses. They were originally requested by defendant from the United States Department of Commerce during the discovery stage of this trial. The Secretary of Commerce refused to comply with defendant's request, relying in part on the Export Administration Act of 1969, as amended, which classifies the documents at issue as "confidential"; disclosure of these documents is prohibited "unless the (Secretary of Commerce) determines that the withholding thereof is contrary to the national interest." 50 U.S.C.A. App. § 2406(c) (Supp.1978). A confrontation between the court and the Secretary of Commerce appeared probable, *fn2" until in a letter to the court dated August 16, 1974 the Secretary determined that withholding the documents "would be contrary to the national interest and to the interests of national defense; provided however, that Access to such information is restricted to the Court and to members of the active litigation team of each party . . . ." *fn3" On October 17, 1974 the court issued Pretrial Order No. 17 *fn4" which provides, in relevant part, for limited access to those confidential documents produced from the Department of Commerce files; only persons engaged in the conduct of this litigation who have executed the Secrecy Agreement attached to Pretrial Order No. 17 may inspect those papers.

 Defendant's Exhibits 5515 through 5598 are all documents which fall explicitly within the terms of Pretrial Order No. 17. The principal reason for limiting access to these documents during the pretrial stage of this action that public disclosure impairs the government's ability to gather reliable data from the business community is equally relevant today. Accordingly, the government's application is granted. These documents will be kept under seal and made available only to persons engaged in this litigation who have executed the Secrecy Agreement.

 So Ordered.

 APPENDIX I

 Honorable David N. Edelstein

 Chief Judge

 United States District Court

 Southern District of New York

 U.S. Court House, Foley Square

 New York, New York 10007

 Re: United States v. International Business Machines Corporation, 69 ...


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