[Code of Federal Regulations] [Title 29, Volume 9] [Revised as of July 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 29CFR2200.11] [Page 262-263] TITLE 29--LABOR CHAPTER XX--OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION PART 2200_RULES OF PROCEDURE--Table of Contents Subpart A_General Provisions Sec. 2200.11 Protection of claims of privilege. (a) Scope. This section applies to all claims of privilege, whenever asserted. It applies to privileged information, such as trade secrets and other matter protected by 18 U.S.C. 1905, and other information the confidentiality of which is protected by law. As it is used in this section, ``privileged information'' encompasses such confidential information. (b) Assertion of a privilege. A person claiming that information is privileged shall claim the privilege in writing or, if during a hearing, on the record. The claim shall (1) identify the information that would be disclosed and for which a privilege is claimed, and (2) allege with specificity the facts showing that the information is privileged. The claim shall be supported by affidavits, depositions or testimony and shall specify the relief sought. The claim may be accompanied by a motion for a protective order or by a motion that the allegedly privileged information be received and the claim be ruled upon in camera, that is, with the record and hearing room closed to the public, or ex parte, that is, without the participation of parties and their representatives. (c) Opposition to the claim. A party wishing to make a response opposing a claim of privilege, or asserting a substantial need for disclosure in the event a qualified privilege exists, must do so within 15 days but, if the motion is made during a hearing, the Judge may prescribe a shorter time or require that the response be made during the hearing. A response contravening the facts stated by the claimant of the privilege shall be supported by affidavits, depositions, or testimony. (d) Examination of claim. In examining a claim of privilege, the Judge may enter such orders and impose such terms and conditions on his examination as justice may require, including orders designed to assure that the alleged privileged information not be disclosed until after the examination is completed. The Judge may: (1) Receive the allegedly privileged information in camera; he may temporarily seal the portions of the record containing the allegedly privileged information and may exclude the public from the hearing room. (2) Receive the allegedly privileged information ex parte; he may order that the allegedly privileged information not be heard or served on all parties and their representatives; he may hear or examine it without the presence of all parties and their representatives. (3) Order the preparation of a summary of the allegedly privileged information; he may order that a copy of a document be prepared with the allegedly privileged information excised; he may order that such summaries or documents be served upon other parties or their representatives. (4) Enter a protective order. See paragraphs (e) and (f) of this section. (e) Upholding of claim. If a claim of privilege is upheld, the Judge may enter such orders and impose such terms and conditions as justice may require, including orders that the privileged information not be disclosed or be disclosed in a specified manner. The Judge may: exclude the privileged information from the record; enter orders under Sec. 2200.52(d), including an order that discovery not be had; revoke or modify a subpoena; and permanently seal that portion of the record or other files of the Commission containing the privileged information, permitting access only to the Commission and any reviewing court. The Judge may also permit the information to be disclosed only to persons covered by protective orders under Sec. 2200.52(d) and paragraph (f) of this section. (f) Protective orders. To govern the examination of a claim of privilege or to govern the treatment of privileged information, the Judge may enter protective orders under Sec. 2200.52(d). The Judge may decline to permit disclosure to persons against whom the Commission could not enforce the order. The order may require that-- (1) An attorney or other representative not disclose the allegedly privileged information to any person, including his client. (2) Any person to whom the material will be disclosed sign a written confidentiality agreement that the material will not be disclosed except under stated terms and conditions and that [[Page 263]] stipulates a reasonable preestimate of likely damages. (3) In the case of an entry upon land, the case be stayed to allow the party seeking entry an opportunity to seek an order of a court or search warrant with protective conditions. (g) Rejection of claim. If the Judge overrules a claim of privilege, the person claiming the privilege may obtain as of right an order sealing from the public those portions of the record containing the allegedly privileged information pending interlocutory or final review of the ruling, or final disposition of the case, by the Commission. Interlocutory review of such an order shall be given priority consideration by the Commission. [51 FR 32015, Sept. 8, 1986; 52 FR 13831, Apr. 27, 1987, as amended at 62 FR 35963, July 3, 1997] Effective Date Note: At 70 FR 22788, May 3, 2005, Sec. 2200.11 was removed and reserved, effective Aug. 1, 2005.