Airco, Inc

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF AIRCO, INC.

Docket 9098. Interlocutory Order, July 20, 1978 This order grants complaint counsel’s motion seeking court enforcement of a subpoena duces tecum issued to a third-party. ORDER GRANTING COMPLAINT COUNSEL’S MOTION SEEKING - Court ENFORCEMENT OF SUBPOENA Duces TECUM Issued TO Air PRODUCTS AND CHEMICALS, INC.

The administrative law judge has certified to the Commission, pursuant to Rule 3.38(b), Complaint Counsel’s Motion Seeking Court Enforcement of Subpoena Duces Tecum Issued to Air Products and Chemicals, Inc. (“Air Products”), a third party to these proceedings, on September 22, 1977. The specifications as to which there is disagreement are 1(a), (b), 2, 3(b), 3(c), and 7." Air Products contends that these specifications relate to information which is so confidential that it should be made available only to respondent’s outside counsel. The administrative law judge, on the other hand, has determined that in addition to outside counsel; Airco’s Vice President-Law, Mr. DeWahl, should have access to the information. The ALJ’s position is based on his belief that “a firm facing serious restraint of trade charges was entitled to the assistance of its house counsel familiar with its business and operations, provided he played no role in corporate affairs other than legal counsel.” Certification at 3. Moreover, Airco’s Vice President-Law has submitted a signed affidavit, at the ALJ’s request, which provides that his duties within Airco be limited to the giving of legal advice, and that he not, in any way, participate or make decisions in the operational area. Additionally, Mr. DeWahl would be prohibited from making any notes or copies of the confidential documents.

It is the view of the Commission that the restrictions imposed by the ALJ upon respondent’s house counsel represent a reasonable exercise of the law judge’s discretion and provide an adequate 1. Documents sufficient to show:

(a). total net sales for each year from January 1, 1970 to date, in dollars and in units, of each relevant industrial gas sold by your company to distributors; (b). for each year, those sales included in the response to specification 1(a) that represent sales to companyowned distributors;

2. Documents sufficient to show total net sales for each year from January 1, 1970 to date, in dollars and in units, of medical or therapy oxygen or other medical gases sold by your company. 3. Documents sufficient to show:

(a). facility fees included in the sales figures; (b). transportation charges not included in the sales figures; 4. Documents sufficient to show all your company’s prices in effect for each relevant industrial gas and the calendar period in which such prices were in effect, stated separately, to each distributor. AIRCO, INC. 195 194 Interlocutory Order safeguard against use of this data in connection with the sale or marketing of Airco’s products. Although cases cited by Air Products do draw a distinction between disclosure of confidential information to house counsel as opposed to outside counsel, we find those cases inapposite here in view of the restrictions imposed upon the activities of Mr. DeWahl pursuant to his affidavit. Accordingly, It is ordered, That Complaint Counsel’s Motion Seeking Court Enforcement of Subpoena Duces Tecum Issued to Air Products and Chemicals, Inc., be, and the same hereby is, granted. Initial Decision 92 F.T.C.