D.D.C. Enjoins Commission Sanctions Proceeding Premised on Constitutionally Infirm Protective Order

Summary: This case emerged from a dispute resulting in a Commission sanctions proceeding against J. Gregory Sidak. Sidak previously served as Complainant Qualcomm Inc.’s economic expert against Respondent Apple Inc. in Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof, Inv. No. 337-TA-1065. The investigation was assigned to ALJ Pender, who entered a protective order that required expert witnesses to sign an acknowledgment agreeing to be bound by its terms. Sidak signed the acknowledgment. After resolution of the investigation, Sidak filed several FOIA requests seeking access to de-designated portions of sealed hearing transcripts that had allegedly been improperly designated as confidential. In particular, Sidak desired access to sealed statements made by ALJ Pender that he felt negatively reflected upon his business as an economic expert. The Commission’s Secretary denied Sidak’s request, and the Commission initiated a sanctions proceeding against Sidak to investigate a potential protective order violation. The Commission’s inquiry stemmed from various “pinpoint” citations to the confidential portions of the hearing transcript included in Sidak’s FOIA requests. The Commission requested an affidavit response from Sidak, who attempted to raise various legal objections through his attorney. But the Commission reiterated its request for an affidavit, cautioning that Sidak could be penalized for submitting a response in any other form. Sidak submitted an affidavit and a cover letter from his attorney, requesting an opportunity to present his legal arguments at an in-person hearing. In response, the Commission requested an additional affidavit. Sidak then filed suit against the Commission in the U.S. District Court for the District of Columbia, seeking to permanently enjoin the sanctions proceeding.