Part IV: Proprietary Information and Privileged Information (Rules 44-54)

Filing or Service Under Seal

44.  (1)  Where, under these rules, a document containing proprietary information or privileged information is required to be filed under seal with the Secretariat or is required to be served under seal, the document shall be filed or served in accordance with this rule and, where the document is a pleading, in accordance with rule 56.

(2)  A document filed or served under seal shall be

(a)  bound separately from all other documents;
(b)  clearly marked

(i)  with respect to a panel review of a final determination made in Canada,

(A)  in the case of a document containing proprietary information, “Proprietary”, “Confidential”, “De nature exclusive” or “Confidentiel”, and
(B)  in the case of a document containing privileged information, “Privileged” or “Protege”,

(ii)  with respect to a panel review of a final determination made in Mexico,

(A)  in the case of a document containing proprietary information, “Confidencial”, and
(B)  in the case of a document containing privileged information, “Privilegiada”, and

(iii)  with respect to a panel review of a final determination made in the United States,

(A)  in the case of a document containing proprietary information, “Proprietary”, and
(B)  in the case of a document containing privileged information, “Privileged”; and

(c)  contained in an opaque inner wrapper and an opaque outer wrapper.

(3)  An inner wrapper referred to in subrule (2)(c) shall indicate

(a)  that proprietary information or privileged information is enclosed, as the case may be; and
(b)  the Secretariat file number of the panel review.

45.  Filing or service of proprietary information or privileged information with the Secretariat does not constitute a waiver of the designation of the information as proprietary information or privileged information.

Proprietary Information Access Orders

46.  (1)  A counsel of record, or a professional retained by, or under the control or direction of, a counsel of record, who wishes disclosure of proprietary information in a panel review shall file a Proprietary Information Access Application with respect to the proprietary information as follows:

(a)  with the responsible Secretariat, four copies; and
(b)  with the investigating authority, one original and any additional copies that the investigating authority requires.

(2)  A Proprietary Information Access Application referred to in subrule (1) shall be served

(a)  where the Proprietary Information Access Application is filed before the expiration of the time period fixed for filing a Notice of Appearance in the panel review, on the persons listed in the service list; and
(b)  in any other case, on all participants other than the investigating authority, in accordance with subrule 24(1).

47.  (1)  Every panelist, assistant to a panelist, court reporter, interpreter and translator shall, before taking up duties in a panel review, provide to the responsible Secretary a Proprietary Information Access Application.

(2)  A panelist, assistant to a panelist, court reporter, interpreter or translator who amends or modifies a Proprietary Information Access Application shall provide the responsible Secretariat with a copy of the amendment or modification.

(3)  Where the investigating authority receives, pursuant to subrule 14(1), a Proprietary Information Access Application or an amendment or modification thereto, the investigating authority shall issue a Proprietary Information Access Order, amendment or modification accordingly.

48.  The investigating authority shall, within 30 days after a Proprietary Information Access Application is filed in accordance with subrule 46(1), serve on the person who filed the Proprietary Information Access Application

(a)  a Proprietary Information Access Order; or
(b)  a notification in writing setting out the reasons why a Proprietary Information Access Order is not issued.

49.  (1)  Where

(a)  an investigating authority refuses to issue a Proprietary Information Access Order to a counsel of record or to a professional retained by, or under the control or direction of, a counsel of record, or
(b)  an investigating authority issues a Proprietary Information Access Order with terms unacceptable to the counsel of record, the counsel of record may file with the responsible Secretariat a Notice of Motion requesting that the panel review the decision of the investigating authority.

(2) Where, after consideration of any response made by the investigating authority referred to in subrule (1), the panel decides that a Proprietary Information Access Order should be issued or that the terms of a Proprietary Information Access Order should be modified or amended, the panel shall so notify counsel for the investigating authority.

(3)  Where the final determination was made in the United States and the investigating authority fails to comply with the notification referred to in subrule (2), the panel may issue such orders as are just in the circumstances, including an order refusing to permit the investigating authority to make certain arguments in support of its case or striking certain arguments from its pleadings.

50.  (1)  Where a Proprietary Information Access Order is issued to a person in a panel review, the person shall file with the responsible Secretariat, pursuant to the applicable regulations of the investigating authority, a copy of the Proprietary Information Access Order.

(2)  Where a Proprietary Information Access Order is revoked, amended or modified by the investigating authority, the investigating authority shall provide to the responsible Secretariat and to all participants a copy of the Notice of Revocation, amendment or modification.

51. Where a Proprietary Information Access Order is issued to a person, the person is entitled

(a)  to access to the document; and
(b)  where the person is a counsel of record, to a copy of the document containing the proprietary information, on payment of an appropriate fee, and to service of pleadings containing the proprietary information.

Privileged Information

52.  (1)  A Notice of Motion for disclosure of a document in the administrative record identified as containing privileged information shall set out

(a)  the reasons why disclosure of the document is necessary to the case of the participant filing the Notice of Motion; and
(b)  a statement of any point of law or legal authority relied on, together with a concise argument in support of disclosure.

(2)  Within 10 days after a Notice of Motion referred to in subrule (1) is filed, the investigating authority shall, if it intends to respond, file the following in response:

(a)  an affidavit of an official of the investigating authority stating that, since the filing of the Notice of Motion, the official has examined the document and has determined that disclosure of the document would constitute disclosure of privileged information; and
(b)  a statement of any point of law or legal authority relied on, together with a concise argument in support of non-disclosure.

(3)  After having reviewed the Notice of Motion referred to in subrule (1) and any response filed under subrule (2), the panel may order

(a)  that the document shall not be disclosed; or
(b)  that the investigating authority file two copies of the document under seal with the responsible Secretariat.

(4)  Where the panel has issued an order pursuant to subrule (3)(b), the panel shall select two panelists, one of whom shall be a lawyer who is a citizen of the country of one involved Party and the other of whom shall be a lawyer who is a citizen of the country of the other involved Party.

(5)  The two panelists selected under subrule (4) shall

(a)  examine the document in camera; and
(b)  communicate their decision, if any, to the panel.

(6)  The decision referred to in subrule (5)(b) shall be issued as an order of the panel.

(7)  Where the two panelists selected under subrule (4) fail to come to a decision, the panel shall

(a)  examine the document in camera; and
(b)  issue an order with respect to the disclosure of the document.

(8)  Where an order referred to in subrule (6) or (7) is to the effect that the document shall not be disclosed, the responsible Secretary shall return all copies of the document to the investigating authority by service under seal.

53.  In a panel review of a final determination made in the United States, where, pursuant to rule 52, disclosure of a document is granted,

(a)  the panel shall limit disclosure to

(i)  persons who must have access in order to permit effective representation in the panel review,
(ii)  persons, such as the Secretariat staff, court reporters, interpreters and translators, who must have access for administrative purposes in order to permit effective functioning of the panel, and
(iii)  members of an Extraordinary Challenge Committee and their assistants who may need access pursuant to the NAFTA Extraordinary Challenge Committee Rules;

(b)  the panel shall issue an order identifying by name and by title or position the persons who are entitled to access and shall allow for future access by new counsel of record and by members of an Extraordinary Challenge Committee and, as necessary, their assistants; and
(c)  the investigating authority shall issue a Propriety Information Access Order with respect to that document in accordance with the order of the panel.

Violations of Proprietary Information Access Applications or Orders

54. Where a person alleges that the terms of a Proprietary Information Access Application or of a Proprietary Information Access Order have been violated, the panel shall refer the allegations to the investigating authority for investigation and, where applicable, the imposition of sanctions in accordance with section 77.034 of the Special Import Measures Act, as amended, section 777(f) of the Tariff Act of 1930, as amended, or article 93 of the Ley de Comercio Exterior.