Antitrust & Competition Policy Blog

Editor: D. Daniel Sokol
University of Florida
Levin College of Law

Monday, December 30, 2013

Ending the "Confidentiality Exception" to Due Process

Roy Hoffinger (Qualcomm) advocates Ending the "Confidentiality Exception" to Due Process.

ABSTRACT: It is time to end the "confidentiality" exception to according a Respondent due process. At the same time, prohibitions and measures to enforce against the disclosure by the agency of any party or third-party's confidential documents and information, except to the Respondent pursuant to a protective order, should be maintained and, if necessary, enhanced. The disclosure to competitors, customers, or suppliers of non-public business or technical information can inflict substantial harm on the disclosing party and perhaps its customers and suppliers. Nothing here is intended to suggest otherwise. Providing access to a Respondent is necessary as a matter of due process. However, no one other than the Respondent has a legitimate compelling interest in receiving such access.

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