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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
conference shall submit a position statement to the presiding Officer by email and, when there is agreement among the parties, serve such statement on the other participating parties outside of the electronic filing system.
The position statement shall be in letter form, shall not exceed five pages, including any salutations and signatures, and shall attach no more than 20 pages of exhibits, absent leave of the presiding Officer, although leave shall not be necessary should the page limit be exceeded due to an exhibit being a necessary agreement or contract.
The statement must set forth:
1 A brief overview of the facts and contentions;
2 The relief sought, including the amount of damages, if any;
3 Whether or to what extent the alleged wrongful conduct is currently taking place; and 4 Any prior attempts at resolution, including any offers or counteroffers made to the other party.
e Stay of proceeding. To provide the parties with an opportunity to pursue settlement and negotiate any resulting settlement agreement, the Board in its discretion may stay the proceeding for a period of 30 days concurrently with an order scheduling a settlement conference, at the time of or following the settlement conference, or at the request of the parties. The parties may request an extension of the stay in good faith to facilitate ongoing settlement discussions. If a settlement has not been reached at the time the stay, or any extension thereof, has expired, the Board shall issue an amended scheduling order to govern the remainder of the proceeding.
f Settlement agreement. If some or all parties reach a settlement, such parties may submit to the Board a letter that they jointly wish to dismiss some or all of the claims and counterclaims.
The parties may include a request that the Board adopt some or all of the terms of the settlement in its final determination.
g Effect of settlement agreement.
Upon receipt of a joint request to dismiss claims due to settlement, the Board shall dismiss the claims or counterclaims contemplated by the agreement with prejudice, unless the parties have included in their request that the claims or counterclaims shall be dismissed without prejudice. If the parties have requested that the Board adopt some or all of the terms of the settlement in its final determination, the Board may issue a final determination incorporating such terms unless the Board finds them clearly unconscionable.

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222.18

Protective orders.

a Standard protective order. At the request of any party, the Boards standard protective order, as described in this section, shall govern all discovery material exchanged during the proceeding to protect against improper use or disclosure.
1 Standard of use. Discovery material received from another party may be used only in connection with the proceeding, and all copies must be returned or disposed of within 30 days of a determination or dismissal, or within 30 days of the exhaustion of the time for any review or appeal of the Boards final determination, whichever is later.
2 Confidentiality. Discovery material may be designated as confidential only if the party reasonably and in good faith believes that it consists of:
i Bona fide confidential financial information previously not disclosed to the public;
ii Bona fide confidential and nonobvious business plans, product development information, or marketing plans previously not disclosed to the public;
iii Any information of a truly personal or intimate nature regarding any individual not known by the public;
or iv Any other category of information that the Board grants leave to designate as confidential.
3 Case-by-case basis. Parties must make confidentiality determinations on a document-by-document basis and shall not designate as confidential all discovery material produced in bulk.
4 Submitting confidential information. Confidential discovery materials, or references to or discussions of confidential discovery materials in other documents, may be submitted to the Board by either filing them under seal or redacting the confidential document. If filed under seal, the confidential document must be accompanied by a redacted copy that may be included in the public record.
5 Determination of confidentiality by the Board. The Board may in its discretion remove a confidentiality designation from any material on its own initiative or upon consideration of a request from a party. Parties are expected to attempt to resolve disputes over confidentiality designations before bringing such disputes to the Board.
b Custom protective orders. Custom protective orders negotiated by the parties are disfavored. The parties may request that the Board enter a custom protective order that has been negotiated by the parties and that may provide for additional protections for
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highly sensitive materials. Such a request must be accompanied by a stipulation between the parties that explains the need for such a custom protective order. The Board may in its discretion decide whether to grant the parties request for a custom protective order.
c Personally identifiable information. Regardless of whether discovery material has been designated as confidential, parties must redact social security numbers, taxpayer identification numbers, birth dates, health information protected by law, the names of any individuals known to be minors, and financial account numbers from any public filings.
222.19

Evidence.

a Admissibility. All evidence that is relevant and not unduly repetitious or privileged shall be admissible. Evidence which has authentication or credibility issues will have its weight discounted accordingly. The Board reserves the right to discount evidence or not admit evidence with serious credibility issues entirely, or to request clarification from a party. The Board may apply FRE 401
and 403 in weighing evidence, but the Board is not bound by the FRE. Parties may cite to the FRE as persuasive authority when making an argument about the credibility, weight, or admissibility of a piece of evidence.
b Examination of witnesses. All witnesses testifying at a hearing before the Board shall be required to take an oath or affirmation before testifying. At a hearing, parties may conduct direct examination substantively limited to the testimony of the witness in the written statements and an oral summary of that testimony; cross-examination limited to matters raised on direct examination or submitted through witness statements; and redirect examination limited to matters raised on cross-examination. The Board may limit the number of witnesses or scope of questioning.
c Exhibits in hearing1
Submission. Unless they are specifically excluded by the Boards own initiative or due to the Boards ruling on an objection raised by a party, all properly sponsored documents submitted by the parties through their statements submitted under 222.14 shall be deemed admitted and marked as exhibits in the same order as presented through the partys document statement.
To the extent additional documents are allowed by the Board at a hearing on the merits, such evidence may also be presented as exhibits to all parties and marked by the presenting party starting with the next number after the exhibits
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