The opinion of the court was delivered by: GASCH
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 444 F. Supp.]
Upon consideration of Aluminum Company of America's (Alcoa) petition for an order modifying Civil Investigative Demand No. 1844 to include protective provisions, the response of the Department of Justice, and Alcoa's Reply thereto, the memoranda of points and authorities filed in support thereof, the arguments of counsel in open court, and the entire record herein, and for the reasons briefly set forth in the Court's Memorandum this same day, it is by the court this 18th day of January, 1978,
ORDERED that Alcoa's petition be, and hereby is, granted; and it is further
ORDERED that Alcoa preselect those categories of documents that it considers to contain confidential matter and it seeks to protect from disclosure to third parties; and it is further
ORDERED that the Department, if it intends to disclose any preselected documents to third parties during the course of an investigative deposition, notify Alcoa and indicate the classification of the third parties to whom it intends to disclose the material twenty-five days prior to the proposed disclosure; and it is further
ORDERED that Alcoa inform the Department, within five days of the Department's notice of intended disclosure, if it objects to the proposed disclosure; and it is further
ORDERED that the Department determine, within five days of Alcoa's objection, whether or not it still intends to disclose the material to third parties; and it is further
ORDERED that if Alcoa wishes to challenge a decision by the Department to disclose the material over Alcoa's objection, Alcoa must file the matter with this Court within five days of the Department's decision.
This action involves a petition by Aluminum Company of America (Alcoa) for an order modifying a Civil Investigative Demand (CID) served on Alcoa by the Antitrust Division of the Department of Justice (Department). Alcoa seeks provisions protecting the confidentiality of its business records and data. The Department contends that such a protective order is precluded by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C.A. §§ 1311-1314 (Supp. 1977) (1976 Amendments), which amended the Antitrust Civil Process Act, 15 U.S.C. §§ 1311-1314 (1970). Moreover, the Department claims that the terms proposed by Alcoa would frustrate the purpose of the 1976 Amendments by creating inflexibility and obstacles to investigations, destroying the intended anonymity of third party deponents, and prematurely revealing investigative leads.
Jurisdiction is premised upon section 1314(b) of Title 15, which provides that a petition for an order modifying or setting aside a demand be filed in the district court. The instant petition is timely, as petitioner sought and obtained an extension from attorneys in the Department and filed the petition within this time period. See 15 U.S.C.A. § 1314(b) (Supp. 1977).
On October 31, 1975, Alcoa and fourteen other producers of primary aluminum and other aluminum products were served with Civil Investigative Demands (CIDs) issued pursuant to the Antitrust Civil Process Act, 15 U.S.C. §§ 1311-1314 (1970). The CIDs, which required production of documents relating to the pricing and production of aluminum products, were part of an Antitrust Division investigation to determine whether decisions in late 1974 and 1975 by various aluminum producers to curtail production, rather than reduce prices, of primary aluminum and some fabricated aluminum products resulted from an agreement or agreements to restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (Supp. V 1975). The CID (No. 1664) sought production of documents pertaining to the pricing, marketing, and production of aluminum and aluminum products.
In response, Alcoa submitted hundreds of thousands of documents relating to its costs and financial, marketing, pricing, and research and development plans and policies from which the Department selected more than 160,000 pages. Many of the documents selected and copied by the Department contained highly sensitive financial and business data. At the time these documents were produced, however, the governing statute absolutely prohibited disclosure of the documents or their contents in the course of an antitrust investigation (without the consent of the person who produced the documents) except to a "duly authorized officer, member, or employee of the Department of Justice." Antitrust Civil Process Act § 4(c), 15 U.S.C. § 1313(c) (1970).
The Hart-Scott-Rodino Antitrust Improvements Act of 1976, which amended in part the Antitrust Civil Process Act, was enacted on September 30, 1976. The 1976 Amendments expanded the investigatory powers of the Department by authorizing, inter alia, the power to compel oral testimony of any person in the course of an antitrust investigation and the use of documents produced pursuant to a Civil Investigative Demand "in connection with the taking of oral testimony." 15 U.S.C.A. § 1313(c)(2) (Supp. 1977).