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 ORI~~ñ\L~ ~
 -~. ~:ii! t :. ';&/¡ ,~b,9 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) Public Document 

) 

RESPONDENT'S MOTION FOR SANCTIONS DUE TO EXIDE TECHNOLOGIES' 

INTERFERENCE WITH RESPONDENT'S EXPERT WITNESS
 

Pursuant to Rules 3.38 and 3.42 of the Federal Trade Commission Rules of Practice, 

Respondent Polypore International, Inc. ("Polypore"), by and through counsel, submits its 

Motion for Sanctions Due to Exide Technologies' Interference with Respondent's Expert
 

Witness. 

The Commission has an interest in protecting the integrity of its administrative litigation 

process. In this case, as set forth below, there is ample evidence that Exide Technologies
 

("Exide") has interfered with Respondent's expert witness, Dr. James Mark Stevenson ("Dr. 

Stevenson"). Exide's conduct is sufficiently serious to warant action by the Commission. 

1. On December 18, 2008, Respondent's Counsel identified Dr. Stevenson as an 

expert witness in this matter. Pursuant to the Scheduling Order (as amended by this Court's 

February 4, 2009 order) ("Amended Scheduling Order") in this case, Respondent's designation 

was served on Complaint Counsel; it was not served on 
 any third party, nor was it filed as a 

matter of public record in this proceeding. 

2. Pursuant to the Amended Scheduling Order, the deadline for Respondent's
 

~, 

Counsel to submit Dr. Stevenson's expert witness report was March 20,2009. 

PPAB lSS1628vl 
3. On March 19,2009, Dr. Stevenson was finalizing his expert report for submission 

the following day.
 

4. Also on March 19, 2009, however, Dr. Stevenson was informed by counsel for
 

Exide, third-party customer in this proceeding, and an affiliate of Dr. Stevenson's former
 

employer, that Exide had "concerns" over Dr. Stevenson's acting as an expert witness in this 

case and threatening him with the possibility of a lawsuit if he submitted a report and testified in 

this matter. See Exide's Counsel's March 19, 2009 letter attached as Exhibit A hereto. The 

letter referred to a confidentiality agreement, but did not include a copy of the alleged agreement 

or any reference that it was 25 years old. Moreover, the letter expressly claimed "concerns" over 

Stevenson's work as an expert for Polypore. 

5. March 19, 2009 was the first time Exide had raised any confidentiality concerns 

about Dr. Stevenson's engagement as an expert witness in this proceeding. 

6. Later that day, counsel for Respondent contacted Exide's counsel by telephone to
 

discuss his March 19 letter and to request a copy of the "Confidentiality Agreement." In that 

telephone conversation, Exide's counsel admitted that he had known about Respondent's 

designation of Dr. Stevenson as an expert for some time but stated that he had been "too busy" to 

do something about it until then. When directly asked, Exide's counsel refused to disclose how 

he learned of Dr. Stevenson's designation as an expert witness other than to say that it "was 

public knowledge." 

7. Exide's counsel provided to Respondent's counsel a copy of the "Confidentiality 

Agreement" referred to in Exide's counsel's March 19, 2009 letter. Then and only then, did it 

come to light that the confidentiality agreement was par of a 25-year old employment agreement 

and subject to the laws of the United Kingdom. Dr. Stevenson has not been employed by Exide 

for over two years. 

2 

PPAB 1551628vl 
8. On information and belief, later on March 20, 2009 Dr. Stevenson had a telephone
 

conversation with outside counsel for Exide, Donald Russell ("Russell"), and in-house counsel
 

for Exide's General Counsel, Barbara Hatcher ("Hatcher"). During that conversation, Russell 

asked Dr. Stevenson about the nature of his expected testimony at the hearing in this matter. 

Russell also asked Dr. Stevenson if he intended to offer an opinion as to whether battery
 

separator suppliers could sell battery separator products in the United States - a subject clearly 

not within the scope of 
 the so called 25-year confidentiality provision. 

9. Furher on information and belief, during conversations between Dr. Stevenson,
 

Russell and Hatcher on March 20, 2009, Dr. Stevenson asked several times for guidance from 

Exide as to its supposed concern over the possibilty of Dr. Stevenson's disclosure of
 

"confidential" information during his testimony. After he generally described the nature of his 

report, Russell and Hatcher advised Dr. Stevenson that his report did not appear to be a problem 

as to Exide's supposed concern over confidentiality. Russell and Hatcher, however, continued in 

that conversation and Russell, in subsequent communications with Dr. Stevenson, to insist that 

his testimony in a deposition and at the hearing could reveal Exide confidential information. 

10. Out of fear of reprisal from Exide, Dr. Stevenson did not fie his expert report on 

March 20, and has not filed it since then. 

11. Since March 20, Dr. Stevenson has repeatedly requested that Exide advise him as 

to Exide's interpretation of the scope of the confidentiality provisions and sought confirmation 

that it would not fie a lawsuit against him if he were to proceed with this engagement as an 

expert witness for Respondent, submit a report and testify in a deposition and at the hearing. See 

e-mails from Mark Stevenson to Don Russell, dated March 23, 2009 and March 25, 2009 

attached as Exhibit B. Exide has refused to provide such assurances to Dr. Stevenson. See e3 

PPAB 1551628vl 
mails from Don Russell to Mark Stevenson, dated March 23, 2009, March 24, 2009 and March 

25, 2009, attached as Exhibit C.
 

12. As a result of Exide's March 19, 2009 letter, Respondent was forced to seek a 

modification of the Amended Scheduling Order for the purpose of extending certain deadlines as 

related to Dr. Stevenson. See Respondent's Motion for Extension of Time, March 24, 2009.1 

13. The fact that Exide chose to communicate with Dr. Stevenson by letter on March
 

19, 2009, the day before Dr. Stevenson's report was due to be submitted reflects a calculated 

move to interfere with Dr. Stevenson's testimony. Exide's counsel had innumerable
 

opportunities to raise their concerns about Dr. Stevenson directly with Respondent's Counsel 

during multiple depositions that occurred weeks before Dr. Stevenson was due to submit his 

report,2 but instead chose to threaten Respondent's witness with a lawsuit the day before his 

expert report was due for submission. 

14. Moreover, as note previously, information concerning Dr. Stevenson's 

engagement by Respondent as an expert witness in this proceeding is not publicly available 

information. Respondent's identification of Dr. Stevenson as an expert witness was not fied 

with the Commission nor is such information available on the Commission's website. That 

information could only have come to Exide from counsel for the FTC. 

15. Exide's communications with Dr. Stevenson also reflect an inappropriate 

interference with Respondent's witness. Exide's question to Dr. Stevenson, in substance, of "do 

you intend to testify that other suppliers could sell into the United States" reflects Exide's
 

intentions to interfere with this witnesses' testimony. Such a question cannot be linked to any 

i On March 24, 2009, Administrative Law Judge Chappell granted Respondent's Motion for Extension of 
 Time. See
 

March 24, 2009 Order Granting Respondent's Motion for Extension of Time 

2 Indeed, Exide's Counsel sat through several depositions of Exide's witnesses, including as recently as March 10, 

2009, and never expressed any concern about the confidentiality of Dr. Stevenson. 

4 

PPAB l55l628vl 
legitimate concern about "confidential information." The question reflects that Exide is only 

concerned with preventing Dr. Stevenson from testifying in this matter (or influencing Dr. 

Stevenson's testimony as to certain topics) and has no real concern of his potentially violating 

the terms of a twenty-five year old confidentiality agreement. 

16. Exide's true intention of 
 preventing Dr. Stevenson from testifying in this matter is 

further reflected in Exide's Counsel's comment to Dr. Stevenson that his submission of an expert 

report in this proceeding would not be a problem in terms of the purported confidentiality 

agreement, but that confidentiality concerns remained over what Dr. Stevenson might say 

testifying in deposition and in cour, while refusing to identify the source of those concerns. 

17. In a letter dated March 26,2009, Respondent's counsel expressed its concern over 

Exide's conduct and suggested that Exide's "concern" over Dr. Stevenson's testimony at the 

deposition and in court could be handled under the existing protective order. A copy of Eric 

Welsh's letter of March 26, 2009 to Russell is attached as Exhibit D. 

18. On March 27, 2009, Exide's counsel responded to Respondent counsel's March 

26, 2009 letter. A copy of Russell's letter of March 27, 2009, is attached as Exhibit E, but left 

unresolved Exide's alleged "concern" about Dr. Stevenson's deposition or trial testimony and 

without any indication that it could be protected under the protective order. 

19. Dr. Stevenson has repeatedly sought clarification of his obligations under the 

purported confidentiality agreement from Exide and assurances that Exide wil not take any legal 

action against him should he testify in court in this matter. See Exhibit B hereto. 

20. Exide has refused to give any such assurances. See Exhibit C hereto.
 

21. Dr. Stevenson has advised Respondent's Counsel that he cannot move forward as
 

an expert witness without such assurances from Exide. 

5 

PPAB l55l628vl 
22. In a final effort to try to resolve this situation outside of motion practice, 

Respondent's counsel spoke with Exide's counsel on April 15, 2009. In that telephone 

conversation, Respondent's counsel outlined an approach for addressing Exide's alleged concern 

over confidentiality. Respondent's counsel forwarded this proposal in written form to Exide's 

counsel later that day. A copy of Respondent's Counsel's email to Exide's counsel of April 15, 

2009 is attached as Exhibit F. 

23. Exide's counsel responded to Respondent's Counsel's proposal of April 15,2009,
 

steadfastly rejecting it and offering no constructive solution to address its alleged concerns. A 

copy of Exide Counsel's email of April 
 15, 2009 is attached as Exhibit G. Exide Counsel'sApril 

15, 2009 email further demonstrates Exide's intention of preventing Dr. Stevenson from 

testifying in this matter. Exide's supposed concerns can be addressed easily under the existing 

protective order and rules of the FTC. Indeed, on April 9, 2009, Exide fied a motion for in 

camera treatment of certain of its documents which the FTC and Respondent intend to use as 

exhibits at triaL. Clearly, Exide is aware that concerns over confidentiality can be adequately 

addressed in this manner. Indeed, in that motion, Exide asked for confidentiality for 44 

documents and - in contrast to its manufactured objection that it is not clear how long 

confidential treatment would be provided to Dr. Stevenson's testimony, Exide was able to 

specify the duration requested for the confidential treatment as to its documents, none of which 

exceeded 3 years and 23 of which were less than 3 years. See Exide Technologies' Motion for 

In Camera Treatment of Certain Material Designated as Trial Exhibits, pending before Judge 

Chappell. Instead of working to address its "concerns" in this manner, Exide has chosen to 

continue to stonewall. 

24. Indeed, the absurdity of Exide's position is highlighted by the fact that even if Dr. 

Stevenson had knowledge of Exide confidential information, which Exide has failed to 

6 

PPAB l55l628vl 
demonstrate, and assuming that Dr. Stevenson were a current employee of Exide, Respondent 

would be entitled to depose Dr. Stevenson and call him as a witness at the hearing in this matter 

in any event. In such a situation, Exide could handle any concerns over confidentiality through 

the protective order and seeking in camera treatment at trial - exactly what Respondent has 

proposed and Exide has rejected here. 

25. It is abundantly clear from the above facts that Exide's current actions are simply
 

the latest chapter in its efforts to obstruct Respondent's efforts to defend itself in this matter. 

Respondent has already been embroiled in motion practice with Exide in this matter. After 

serving a subpoena duces tecum on Exide for documents relevant to this matter on November 10, 

2008, Exide made a paltry production of only 6 documents by January 12, 2009. In order to 

comply with then existing deadlines, Respondent had scheduled the depositions of Exide 

witnesses for January 21, 22 and 23, 2009. Due to the lack of production by Exide, however, 

Respondent was forced to move to compel production on January 12, 2009. In that motion, 

Respondent also requested the opportunity to question Exide's witnesses on the documents that 

had not been produced by Exide timely in this matter. Respondent, reserving its rights, 

proceeded with the depositions of the Exide witnesses on the above scheduled dates. 

26. Judge Chappell granted Respondent's motion by Order dated February 5, 2009. 

Following the fiing of Respondent's motion to compel, Exide produced an additional 85,883 

pages of documents to Respondent in this matter with over 78,100 pages being produced on 

February 16, 2009. Accordingly, at the time Respondent took the depositions of the Exide 

witnesses in January, Respondent was in possession of only 9% of the E,xide production. This 

delay was prejudicial to Respondent's defense, and while Respondent tried to reduce the har by 

resuming a deposition of Mr. Gilespie on March 10, 2009, due to impending deadlines,
 

Respondent's deposition of Mr. Gilespie was limited, and Respondent was forced to forego 

7 

PPAB l55l628vl 
further examinations of Exide's other witnesses. Exide's conduct here with respect to Dr. 

Stevenson is simply another calculated effort to interfere with Respondent's presentation of its 

defenses in this matter. 

27. Exide's interference with Dr. Stevenson has resulted in extreme prejudice to
 

Respondent. Third-parties, like Exide, should not be able to benefit from such tactics. 

WHEREFORE, Respondent prays that the Administrative Law Judge enter an order 

finding that Exide has intentionally and improperly interfered with Respondent's expert witness 

and interfered with justice, and provide appropriate relief to Respondent. Respondent 

respectfully requests that the Administrative Law Judge enter an order (a) providing that Exide's 

relief is in camera treatment for any testimony offered by Dr. Stevenson in this matter, whether 

at deposition or at the hearing, (b) determining that Dr. Stevenson's testimony in this matter wil 

not constitute a breach of any obligation of confidentiality owed by Dr. Stevenson to Exide and 

(c) precluding Exide from offering any testimony, whether by deposition or otherwise, at the 

hearing in this case. Finally, Respondent respectfully requests that the Administrative Law
 

Judge order that an inquiry be conducted with respect to Exide's conduct. 

CONCLUSION 

For all the foregoing reasons, Respondent Polypore respectfully requests that its Motion 

for Sanctions Due to Exide Technologies' Interference with Respondent's Expert Witness be 

granted in all respects and that the Commission enter such relief as it deems appropriate,
 

including the entry of an order limiting Exide's rights to in camera treatment for any testimony 

offered by Dr. Stevenson in this matter, whether at deposition or at the hearing, finding that Dr. 

Stevenson's testimony in this matter wil not constitute a breach of any obligation of 

confidentiality owed by Dr. Stevenson to Exide, precluding Exide from offering any testimony, 

whether by deposition or otherwise, at the hearing in this case and awarding Respondent its 

8 

PPAB l55l628vl 
attorneys fees and costs. Granting such relief wil protect the integrity of the Commission's 

administrative process.
 

Dated: April 17, 2009
 ~peCtflY submitted, ~W~ -- Wi am L. Rikard, Jr. 

Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamrikard(iparkerpoe.com 

ericwelsh(iparkerpoe.com 

Attorneys for Respondent 

9 

PPAB l55l628vl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

STATEMENT PURSUANT TO SCHEDULING ORDER 

I, Eric D. Welsh, Esq., on behalf of Parker Poe Adams & Bernstein LLP ("Parker Poe") 

as counsel for Polypore International, Inc. ("Polypore"), hereby represent that Parker Poe has 

conferred with Exide's Counsel and Complaint Counsel in an effort in good faith to resolve by 

agreement the issues raised by its Motion for Sanctions Due to Exide Technologies' Interference 

with Respondent's Expert Witness and have been unable to reach such an agreement. Parker Poe 

and Exide's Counsel discussed these issues in written correspondence on March 26,2009, March 

27, 2009 and April 16, 2009 and over the telephone on April 16, 2009. Parker Poe and 

Complaint Counsel discussed these issues in written correspondence on March 26, 2009 and 

March 31, 2009. As a result of this correspondence, Polypore, Exide and Complaint Counsel are 

at an impasse with respect to the issue raised in Respondent's motion. 

Dated: April 17,2009 

Er~ l/~


PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

ericwelsh(iparkerpoe.com 

PPAB 1551628vl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

PROPOSED ORDER 

Upon consideration of Respondent's Motion for Sanctions Due to Exide Technologies' 

Interference with Respondent's Expert Witness, any opposition thereto, and the Court being fully 

informed, 

IT IS HEREBY ORDERED, that Respondent's Motion is GRANTED. 

Specifically, it is hereby ORDERED that Dr. Stevenson shall be permitted to testify in 

this matter, at deposition and at trial, that such testimony wil not be deemed a breach of any 

obligation of confidentiality owed by Dr. Stevenson to Exide and all such testimony wil be in 

camera, and it is furher 

ORDERED that Exide is precluded from offering any testimony, whether by deposition 

or otherwise, at the hearing in this case, and it is further 

ORDERED that Exide shall pay to Respondent its costs and legal fees incured in 

connection with this motion. 

D. Michael Chappell 

Administrative Law Judge 

Date: 

PPAB l551628vl 
. CERTIFICATE OF SERVICE
 

I hereby certify that on April 17, 2009, I caused to be filed via hand delivery and
 

electronic mail delivery an original and two copies of the foregoing Respondent's Motion for 

Sanctions Due to Exide Technologies' Inteiference with Respondent's Expert Witness, and 

that the electronic copy is a true and correct copy of the paper original and that a paper copy with 

an original signature is being fied with: 

Donald S. Clark, Secretary 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary(iftc. gov 

I hereby certify that on April 17,2009, I caused to be served one copy via electronic mail 

delivery and two copies via overnight mail delivery of the foregoing Respondent's Motion for 

Sanctions Due to Exide Technologies' Interference with Respondent's Expert Witness upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali(iftc.gov 

I hereby certify that on April 17, 2009, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Motion for Sanctions Due to 

Exide Technologies' Inteiference with Respondent's Expert Witness upon:
 

1. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania A venue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertson(iftc. gov sdah(iftc.gov 

Donald J. Russell, Esq. 

Robbins, Russell, Englert, Orseck, 

Untereiner & Sauber LLP 

1801 K Street, N.W., Suite 411 

Washington, D.C. 20006 

d russe"~robbinsrussell.com 

PPAB l55l628vl 
Br:¿ ~YlriCf: P


Parker Poe Adams & Bernstein LLP 

Three Wachovia Center
 

401 South Tryon Street, Suite 3000
 

Charlotte, NC 28202
 

Telephone: (704) 335-9050
 

Facsimile: (704) 334-4706
 

PPAB 155l628vl 
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 

1801 K STREET, N.W., SUITE 411
 

WASHINGTON, D.C. 20006
 

PHONE (202) 775-4500
 

FAX (202) 775.4510 

www.robbinsrussell.com 

Donald J. Russell (202) 775-4502 

drussell(Qrobbinsrussell.com 

March 19, 2009 

BY MAIL AN EMAIL 

Dr. James Mark Stevenson 

213 Higher Lane 

Lymm 

Cheshire 

WA13 ORN 

United Kingdom 

Dear Dr. Stevenson: 

I am writing to you on behalf of 
 Exide Technologies, which has retained me to protect the 

company's interest in preserving the confidentiality of 
 its proprietary information. It has come to 

our attention that you have contracted to serve as an expeit witness in litigation brought by the 

United States Federal Trade Commission against Polyp ore International, Inc.
 

As you know, your employment by Exide was conditioned on a contractual commitment that 

requires you to keep secret all confidential inforniation that you acquired during your 

employment with the company. The contract also prohibits your use of such information to your 

own or another's advantage. Confidential information includes, among other things, any 

technical or commercial infoiiuation as well as infoimation about research and development 

projects or planned research and development projects concerning products or manufacturing 

processes. Your contractual obligation to maintain the confidentiality of si1Ch information did 

not terminate when your employment with Exide ended, but continues so long as the infol111ation 

remains confidential. 

We have concerns that your work as an expert witness for Polypore may conflct with your 

continuing obligations under your employment agreement. We believe that there is a risk that 

your work as an expeit witness wil require the disclosure of confidential infonnation in your 

testimony or, at the very least, in your discussions with counsel for Polypore. We expect you to 
ROBBINS, RUSSELL, ENGLERT, ORSECK & UNTEREINER LLP 

Dr. James Mark Stevenson
 

March 19,2009
 

Page 2 

comply fully with your contractual obligations, but Exide Technologies wil take action, if 

necessary, to protect the confidentiality of 
 its proprietary information. 

If you have any questions concerning this matter, please feel free to contact me. 

Sincerely yours,
 g¿,~ ~ 

Donald J. Russell 

Counsel for Exide Technologies 

cc: Barbara Hatcher
 

Wiliam Rickard 
----- .Original Message ~-~~ 

From: Mark Stsy:ari~on 

1'0: BlJ.$sell. Don 

Sent: Mondi:y, March 23, 2009 10:02 PM 

SUbject: Re: Your Work for Pölypòre 

Deâr Mr Russell, 

Thâhk you for getting bàCk to me as qVickfy ~ls you haVe dóhesb. 

I i:ppreciate Exide'sstatementin.this matter. I would alsor~qu!i$t that ,.asyöu offer,a statell!intfromExlcleoh 

wliat they 
 corisiôerthe scope ofthese ooligations. I haverei:d myConfidEmtiaHty âg reernent that you sent together with. theattach.eq '1etter whichsoughl to quaHfythe sCope.The i:ttachedlettérseeh1edto relate principally to deveiopment projects,. J would like to be 100 % clear on what I 
 can and cannotdiscUs$On any 'forthcoming events before i proceed further. 

Thank you foryourassistar:cé
 

Yours sincerely 

Mark Stevenson 

- --- Original Messi:ge.--­

From:ß.,s-sell. D9J1
 

To: MarK..$tevensòli 

Sent: Mortday, Mi:rCh23, 20098:34 PM 

SUbjøct: Your work for porypore 

Dear Mr.'Stevenson, 

Thank YOLlif()r your prompt røply to my letter of 
 March 19:, 2009, . YQuhÇl\,e~ssured us 
 that ìn
 

the course of your workasanexpertwitness forPolyp,ore, YOUhavenotha~Jaliâ do 
 hot expe.ct to have, 
 any .need tor~ly ønortoâiscloseEXidé's.confidentìalinfofrnatiøn. ....In .liaht of 

that assurance, we have noobJectioh to youryontlfluation ofthat wprk-- pr?viâed1ot course, j that in the course of 
 such work, YOl.wHl. notuseorâlsclose confidat'tialinforrnation in
 

violc.tion of the continuingobllgations14l'lâeryour employment agreement,
 

If you haVE;l âny questions concerníng'IExida(s viêwson the scope of 
 those obJìg'øtløns, please 

4/16/2009
 

I 
feel free to contact. me. 

(Donald J. Russ~1I
 

Robbins, Russell, Englert, Orseck, 

Untereiner & Sauber LLP 

1801 K Street N.W., Suite 411 L 

Washington, D.C. 20006 

ww.RobbinsRussell.com 

d russeillg robbìnsrussell. com 

202-775-4502 (Direct Dial) 

202-775-4510 (Fax) 

4/16/2009
 
----- Original Message ----­

From: Mark enson
 

To:Russ-~L
 

Sent: VVedÍ1 y, March 25,2009 10;52 AM 

Subject: Re: Your work for PQlypore 

bear Mr Rus$eii, 

Thank you your respoïise on this matter. 

i am trying not to be pedantic on this but I need complete peace of mind that I am not going to concern Exìdein

anything that I state. 

LOOking at the side letter in the Service Agreement and in partiøulãrlYPoints 4 âfi 5 and I quote Point 4.
 

The nature of your employment and thécontihualchanges of projects 
 make it diffcuit to d~ine preciseiy the areas of confidential. information WhiCh theCompanywlshto protect throygh the useofa constraint under Clause 10 at some future date .' The Company's intention rs that 
 is that the specifiòareasshouid be d~fined in the 
 event of your leaving Chloride employment at the time when it becomes appropriate to do sa. . You. may. at any time request that the Company should so specify the areasO.f possible cønstraint within fourteen ( 14 ) days. 

Point 5. 

In this connection it is. envisaQed thaJ theareasofcönfidentlal'inforll('tion wlUbe deemeql to inclUdè all 
 recent research projects and devei?pment pr9jectsa.sweHasi;1l pianned development projectsc concerning products and manufacturedprocesseswith Which you have been directly inVolvetLorön \\hieI" yoU hávehadaccess to informationJtwlii. also be deemed to ¡nclude any such projects WhiGh hayebeen otare being deàIt with by employees who repQrt directly or indlrectl¥ t~ you. Ilshould not.bedeemed to coveratiy information On 
 such projects which is'a matter of pUblic knowlèdge.as a result of authorized publication. 

As discussed with yourself and Barbara Hatô.her.thestopeof. my expert WitnesS in the Polypore is to.give an 

opinion on theg loba! nature ofthe lead acid batteiylncl.ustry and the te$tln9andappr9v~linthe use of polyethYlene separators Pêlrti~ulatlyln Motive Power cells . The QPlniQn on the gíobal nature of the business is derivedfrom knowledge ofthe industry 
 and the rtanYexallples one can see publicallYon this; The opinion on the use of polyethYleneseparatorsagainj~form:edfrom my3ôXéars in thebu~lness .In ti.,e r~port I have 

prepared, but noty~tapproved for releasein~ . .... .. .do.1 rtenti ..... researehordeveloprnent. projects r have 

worked. on OT ihdeedExicleinany Te~hnlc~ls~nse..... ... . . ä ts rnent¡onè'dfhâtärespeCifictp E~ide. 

Given thislthinkth~Hhel'eportd0esnotlnfrlngethecG'on . ...... . issue 
 EiutJ still~ClUÎteÇlSSurance otrthis. lam also conc.ernedonYQurQQmment.Cll;putmestagesaftèr .. ........ . ....... o~ such as the dEiposltl~m and the' risk 
 that I could discuss conffdential InforrnatiQn :Asl. hØvênèver been throÜ~btfÜs process 1 envisaged myself at deposition to sticktoth7 scppeofth~ repo~onlyandoffernoopinioJ1s. 'Outsideòf this. 

i WOulô appreciate theCompány'sviewon thIs. 

Thank you 

Yours sirioerely 

Mark Stevenson 

4/16/2009
 
. II

-II

-

- --- ,Originai MesGage--~­

From: ,RusseH,~DoQ
 

'To: Mark Stevenson
 

Sent: Monday, March 23, 2009 8':34 PM
 

Subject: Your work for Polypore
 

Dear Mr. stevenson, 

¡ 

Thank you for your promptrëpIytolTY letter of 
 March 19,2009. YoU have 
 assured us that in 

, 

the course of your work as an eXPert witness i. for POIYt:ôre', you have not had, and do not expect to have, any need to rely 
 on Qr to disclose EX'ide's cQnfide.htiallhfôr'mation.. In light 


that assurance, we have no Q.pjeoticmto yourcontinuaticmoftha'tV'()rK--. providedi.ofcoursé, or

that in the; course 
 of such work, you wil not useord1s'Close'Con~dential information in

violation of thecontinu ing obligationsunderyouremployme'rlt àgreement. 

If you have anyque:stionsCOnCèthinSExlde's views 
 on the scope of those obligations, please feel free to contact. me,.
 

Donald J. RUS$èll i. 

Robbins, Russell, Englert, Örseck, I 

Untereiner & Sauber LLP 

1801 K Street N.VV., Suite 411 L 

Washington, D.C. 
 20006 

WW Rgbbll1§R!ssèJl,corn 

grqs$elt~-lQJ~b¡ris-lLI-S.$é'll.com. 

202- 775-4ó02(Direct Dial) 

202., 775-451 o 
 (Fax) 

4/16/2009
 
.. --'- Origihäl Message _w___
 

From: Russéll. Don 

fa: MarkStevensol1
 

Sent: Tuesday, March 24,20092:38 PM 

Subject: RE: YoUrworkfor POlypore
 

Dear Mr. Steve.nsøri, 

We believe t.helåhQuage În.tne employment.agre.ement is 
 olear and reqüires.rioaddifkmal explanation or clarification, and that it would not be produotive to attempt to address any 

c¡uestionsaböutthe scope öf the obligatIons in the abstract. 

However, we understand that you may have c¡uesfionsabout whether Specificinformati.on is, 

or is not, considered by the company to be confidential at this time. We would be happy to 

state the company's posíton with regard to any 
 specific information youidenfiry Tor us.
 

Don Russell 

4/16/2009
 
---- Origlnal Message --..­

From: RY:~~ILDon
 

To: MgriS..Sle¥eI1i?QIl
 

Sènt: Wednesday, March 25, 2009 3:35 PM 

Subject: RE: Your work for Poiypore
 

Dear Dr. stevenson, 

Thanks for your r~sponse.. I want 
 to trytoanswer YQurquestions as 
 clearly as possIble, but ultimately I thInk YOLFWiU nave to rely 
 on your own JudgmentandtheadVise of the attorneys 

with whom you areworking. 

Here is what lean say: 

Fi rst, . the .Ietter thatyouq uote speaks to a situation. in which; pursuant toséction 10 of the 

agreement, the company has asked you forego certain employment opportunities. I hope we 

have made it clear that we are NOT 
 asking you to forego any.employméht opportunities. 

Second, if yourrépÖrt is. based On ptibJíclya"ailåble.infotmationahdknôWled~ethat is widely 

knOWn in the.in~.Lst'ofanddoes notcontainconfidentialinfQrniation obtaineØthrough your
 

emplo~nient\NithERxideí then .re1e.ase of 
 the report.\NíltnatViqlateYQur oQli~Eltions. underthe 

agréernent. . Ofcours~f~xide . confirmthEltthìsisthecasébeøaus:A~e have.l1otseen


t.he report, ~ndY"eas'sumef.. . ore; forupderstandables,w()ulânotauthorize 

releaseQfthere~ørtto9s. d.. ... . ... ..i.l.a~sume.youwoLlJdbe....id.iaskthedPomRÇ1nyifit 

regards certain . .i.nfø:rm~tion . at you obtaìnedfromExiGieasC(mfìdentI~l(without tfisplosing

yöúr report). If yoü ohooseto dO.$o, the.companywillattemptto provide a.promptresponsê. 

Third, with respect to thepössible soopeoTdìsolosures that 
 may .6e. .called for ina .deposìtion, I reoommend that you consult with the 
 attorneys for Polypore with whom you have been 

working. 

We appreoiate youroooperatìon in this matter. 

Sinoerely, . 

Don Russell 

~ M. , 

411 6/2009 
PA.RKER PlilE
 

PAR POEADAMS &BERSlEIN LLP 

Eric D. Welsh 

Parer Attorney and Counstlors at LAw Three Wachovia Center 401 South Tryon Street 

Telephone: 704.335.9052 Suite 3000 

Direct Fax: 704.335.9755 Charlotte, NC 28202- i 942 

ericwelsh¡garkerpoe.com Telephone 704.372.9000 

Fax 704.334.4706 

March 26, 2009 ww.parkerpoe.com 

VIA ELECTRONIC MAIL AND FIRST CLASS MAIL 

Donald 1. Russell, Esq. 

Robbins, Russell, Englert, Orseck, 

Untereiner & Sauber, LLP 

1801 K Street N.W., Suite 411L 

Washington, DC 20006 

Re: In the Matter of Polypore International, Inc., Docket No. 9327 

Dear Don: 

I have been provided a copy of your letter dated March 19, 2009 to Dr. James Mark 

Stevenson concerning his engagement as an expert witness in this matter. I understand that my 

parner, Wiliam L. Rikard, Jr., spoke with you on the telephone on March 19 with respect to 

your letter. I also understand that during that call you advised Mr. Rikard that you had become 

aware of Dr. Stevenson's engagement in this matter as an expert prior to that day but that you 

were "too busy" to raise the issue before then. I also understand that during your conversation 

with Mr. Rikard you had stated that the information regarding Dr. Stevenson's engagement as an 

expert was public. 

Since receiving a copy of your letter and your conversation with Mr. Rikard, we have 

conducted further inquiry into this matter. We are greatly troubled by Exide's improper conduct 

in this matter. While you state that the information regarding Dr. Stevenson's engagement was 

"public", that information was not fied with the Commission and is not available on the 

Commission website. We had, however, advised the FTC Complaint Counsel with respect to 

this matter and while you refused to respond to Mr. Rikard's question as to whether you learned 

of this information from Complaint Counsel, the facts would certinly indicate that that was the 

source. It would certainly be consistent with what we leared in discovery regarding Exide's 

communications with Complaint Counsel in this matter. This close relationship was further 

evidenced by the lunch that you and your client had with Complaint Counsel at the continued 

deposition of Douglas Gilespie on March 10, 2009. The fact that you chose to send this letter 

threatening Dr. Stevenson with a lawsuit the day before his report was due to be submitted 

reflects a calculated move to interfere with this witness's testimony. 

I have had several conversations with Dr. Stevenson since this event regarding your letter 

and his subsequent conversations with you and Ms. Hatcher on this subject. I found the content 

CHARESTON, SC
 

COLUMIA, SC
 

MYTLE BEACH, SC 

RAEIGH, NC
 

SPARTANBURG, SC
 
Donald J. Russell, Esq. 

March 26, 2009 

Page 2
 

of what he told me to be equally distubing. It is apparent to me that Exide is only concerned
 

about preventing Dr. Stevenson from testifying in this matter and has no real concern of his 

potentially violating the terms of a twenty-five year old confidentiality agreement embedded in 

an employment agreement. Indeed, your question to Dr. Stevenson, in substance, of "do you 

intend to testify that other suppliers could sell into the United States" reflects Exide's intentions 

to intedere with this witness's testimony. Finally, Ms. Hatcher's and your apparent comments 

that while Dr. Stevenson's report in this matter, as generally outlned by Dr. Stevenson in the 

call, would not be a problem in terms of his confidentiality agreement, but that concerns
 

remained over his testifying in cour reflects again Exide's tre intentions of preventing Dr. 

Stevenson from testifying in this matter. Indeed, Exide's position is apparently that it will sue 

Dr. Stevenson for testifying in a cour of law. Absurd! I remind you that there is a far-reaching 

protective order in place in this case which would protect any confidential information of Exide 

from disclosure to my client whether in deposition or at tral. You have produced documents to 

us (many belatedly) and sat through a number of Exide depositions, all of which are subject to 

the terms of 
 the confidentiality order which was provided to you months ago. You expressed no 

concern then about confidentiality or Dr. Stevenson. Dr. Stephenson left Exide's employment 

over two years ago. Any purported concerns over confdentiality could be addressed prior to 

trial. Instead of raising any such concern directly with us, which you had innumerable
 

opportunities to do so, you chose instead to threaten our witness with a lawsuit the day before his 

report was due for submission. 

Dr. Stevenson has forwarded to me your recent e-mail communications in this matter. 

Although he has asked for clarification of his obligations and assurance from your client that 

they will take no legal action against him for testifying in a cour of law in this matter, you and 

your client have refused to give those assurances. Dr. Stevenson has advised that he canot 

move forward as an expert witness without such assurances. Exide's conduct here is resulting in 

great prejudice to my client and we intend to bring this matter to the attention of Judge Chappell 

as soon as possible. We wil ask Judge Chappell to look into this matter and provide appropriate 

relief to my client. 

Sincerely yours, 

~£'hlV~ 

EDW/mnb 

cc: Wiliam 1. Rikad, Jr., Esq. 

J. Robert Robertson, Esq. 
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 

1801 KSTREET, N.W., SUITE411 

WASHINGTON, D.C. 20006
 

PHONE (202) 775-4500
 

FAX (202) 775-4510 

www.robbinsrussell.com 

Donald J. Russell (202) 775-4502 

drussell¡Irobblnsrussell.com 

March 27, 2009 

By Email and U.S. Mail 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, N.C. 28202 

Re: In the Matter of Polyp ore Intemational, Inc., Docket No. 9327 

Dear Mr. Welsh:
 

Your letter of 
 March 26, 2009 is riddled with factual inaccuracies and allegations that are 

entirely false. I see no point in trying to cOlTectall of them, but your central charge - that Exide 

has tried to prevent Dr. Stevenson fì'om testifying as an expeii witness for Polypore - is one that
 

I wil not leave unanswered. 

We have made it perfectly clear to Dr. Stevenson, orally and in the emaIl correspondence 

that you reference, that Exide has no objection to his work for Polypore, so long as he complies 

with his continuing obligations under his employment contract. We also told him that ifhe was 

in doubt whether specific information that he obtained through his employment with Exide was 

or was not confidential in Exide's view, he could ask Exide and get a prompt response. After 

hearing his assurances that his work did not involve information specific to Exide or its products 

and processes, we told him that the work as described would not be in conflct with his
 

confidentiality obligations. We absolutely did not tell Dr. Stevenson that he would be sued for 

testifying. When Dr. Stevenson asked about the potential scope of questioning in a depositon, 

we advised him to consult with you. 

Dr. Stevenson, as you know, was a high level executive at Exide through the end of2006, 

and therefore had access to information that was and stil is highly confidentiaL. It is entirely 
ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 

Eric D. Welsh
 

March 27, 2009
 

Page 2
 

appropriate for Exide to protect the confidentiality of that information by reminding Dr. 

Stevenson of his contractual obligations. At the same time, we have assured him that we do not 

seek in any way to interfere with work that is consistent with those obligations. 

In short, Exide's actions in this matter have been entirely appropriate. 

Sincerely yours,
 i7~~ 

Donald J. Russell 

cc: J. Robei1 Robertson 
I 

Welsh, Eric D. 

From: Welsh, Eric D. 

Sent: Wednesday, April 15, 2009 11 :58 AM 

To: 'Russell, Don'
 

Cc: Rikard, Jr., William L. 

Subject: In re Polypore International, Inc., Docket No. 9327 

Don 

Further to our conversation this morning, in an abundance of caution and to resolve any concern that Exide has 

over confidentiality, I propose that Dr. Stevenson's deposition testimony be covered under the protective order. I 

would also propose that his testimony at the hearing be handled in camera. In return, I ask that Exide advise Dr. 

Stevenson in writing that if his testimony is covered in this way, Exide will not take any legal action against him 

with respect to these issues of confidentiality. Please understand that we do not concede that Dr. Stevenson has 

or would disclose any confidential information of Exide in this engagement. In addition, my silence in this email 

regarding our view of Exide's intentions should not be taken as our conceding anything on this point either. I am 

simply trying to keep the discussion focused on the proposal so we can move forward in this matter. 

This proposal will give Dr. Stevenson the assurances that he needs to move forward in this matter and will 

certainly address any concern of Exide with respect to confidentiality. While you raised some question about 

whether I may have forwarded information that I learned from Dr. Stevenson to my client, please be advised that, 

while I am not going to divulge to you my communications with my client, I have not provided to my client the 

specifics of what I have discussed with Dr. Stevenson. 

Let me know as soon as possible your client's response to this proposal. If this proposal is not acceptable to your 

client, we will need to bring the matter to the immediate attention of Judge ChappelL. 

look forward to hearing from you. 

Best regards, 

Eric Welsh 

Eric Welsh 

Partner 

Ext. 9052 

4/16/2009
 
Welsh, Eric D. 

From: Russell, Don (drussell(frobbinsrussell.com) 

Sent: Wednesday, April 
 15, 2009 5:26 PM

To: Welsh, Eric D.
 

Cc: Rikard, Jr., William L. 

Subject: RE: In re Polypore International, Inc., Docket No. 9327 

Eric, 

Thank you for your proposaL. After reviewing it carefully, I have several concerns. First, it is 

unclear how you can assure that Dr. Stevenson's testimony would be given in camera 

treatment. It is my understanding that the FTC will be the ultimate arbiter of that question. 

Second, even assuming that in camera treatment is provided, it is unclear how long that 

last. Third, it is not clear what advance notice, if any, Exide would receive before 

such testimony would be made public, or even whether Exide, if notified, would be given an 

opportunity to review the testimony prior to its public release. These concerns are magnified 

by the fact that we have only the vaguest idea of the possible scope of Dr. Stevenson's 

treatment will 


testimony. 

Of course, none of those concerns will matter if Dr. Stevenson's work as a paid expert will not 

entail the disclosure of confidential Exide information. When Dr. Stevenson assured us 

several weeks ago that it would not, we indicated to him that we had no objection to his work 

for you based on that representation. 

Our position then and now is simple. If Dr. Stevenson does not disclose confidential Exide 

information, he is perfectly free to do as he chooses. As we have indicated many times before, 

if he is unsure whether Exide would regard certain information as confidential or not, we 

would promptly tell him Exide's view, so that he can avoid any inadvertent disclosure. 

However, we cannot simply give him and you a blanket assurance, when we do not know what 

information might be at issue, what protections wil or will not be in place to prevent public 

disclosure, and how long those protections will remain. 

Don 

From: Welsh, Eric D. (mailto:ericwelsh(gparkerpoe.com) 

Sent: Wednesday, April 15,200911:58 AM 

To: Russell, Don 

Cc: Rikard, Jr., William L. 

Subject: In re Polypore International, Inc., Docket No. 9327
 

Don 

Further to our conversation this morning, in an abundance of caution and to resolve any concern that Exide has 

over confidentiality, I propose that Dr. Stevenson's deposition testimony be covered under the protective order. I 

would also propose that his testimony at the hearing be handled in camera. In return, I ask that Exide advise Dr. 

Stevenson in writing that if his testimony is covered in this way, Exide will not take any legal action against him 

with respect to these issues of confidentiality. Please understand that we do not concede that Dr. Stevenson has 

or would disclose any confidential information of Exide in this engagement. In addition, my silence in this email 

regarding our view of Exide's intentions should not be take:n as our conceding anything on this point either. I am 

4/16/2009
 
I 

simply trying to keep the discussion focused on the proposal so we can move forward in this matter. 

This proposal wil give Dr. Stevenson the assurances that he needs to move forward in this matter and will 

certainly address any concern of Exide with respect to confidentiality. While you raised some question about 

whether I may have forwarded information that I learned from Dr. Stevenson to my client, please be advised that, 

while I am not going to divulge to you my communications with my client, i have not provided to my client the 

specifics of what i have discussed with Dr. Stevenson. 

Let me know as soon as possible your client's response to this proposaL. If this proposal is not acceptable to your 

client, we will need to bring the matter to the immediate attention of Judge ChappelL. 

look forward to hearing from you. 

Best regards, 

Eric Welsh 

Eric Welsh 

Partner 

Three Wachovia Center I 401 South Tryon Street I Suite 3000 I Charlotte, NC 28202 

Phone: 704.335.9052 I Fax: 704.335.9755 I www.parkerpoe.com I vcard I map 

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