ORIGINAL
 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUGES
 

) 

In the Matter of ) 

) Docket No. 9327 

POL YPORE INTERNATIONAL, INC., ) 

Respondent. ) 

) 

ORDER ON RESPONDENT'S MOTION FOR IN CAMERA TREATMENT 

I. 

Pursuant to Rule 3.45(b) ofthe Commission's Rules of 
 Practice and the October 22,2008 

Scheduling Order entered in this matter, Respondent Polypore International, Inc. submitted its 

motion for in camera treatment for materials ("Motion"), on April 9, 2009. Complaint Counsel 

23, 2009, 

Respondent submitted a motion for leave to file a reply brief and its proposed reply brief. 

submitted its Opposition to Respondent's Motion on April 16, 2009. On April 


is GRANTED. For the reasons set forth 

below, Respondent's motion for in camera treatment is DENIED WITHOUT PREJUDICE. 

Respondent's motion for leave to file a reply brief 


II. 

Respondent states that Complaint Counsel's Final Proposed Exhibit List identifies 

approximately 1,364 exhibits and that Respondent's Final Proposed Exhibit List identifies 

approximately 1,500 potential trial exhibits. Respondent further states that it carefully reviewed 

each document identified on either party's exhibit list to determine whether the confidential 

material warranted in camera treatment. Respondent identified several categories of documents 

and listed and described the documents within them and argues that disclosure of these 

documents is likely to cause direct, serious har to Respondent's competitive position. 

Complaint Counsel states that Respondent's motion seeks in camera treatment for over 

1,600 documents and argues that Respondent has failed to justify its broad request for what 

should be a narow application of in camera treatment. Complaint Counsel contends that 

Respondent seeks in camera treatment for: business plans and strategies containing the type of 

information considered by the Commission in HP. Hood & Sons, Inc., 58 F.T.C. 1184 (1961); 

documents that are three or more years old; and documents containing information that is 

already in the public domain. 

In its Reply, Respondent charges that, in suggesting that the public be allowed unfettered 

access to Respondent's confidential and sensitive documents, Complaint Counsel wil inevitably 
create a less competitive marketplace and har competition. Respondent asserts that Complaint 

Counsel objects to Respondent's motion simply to further harm and waste Respondent's limited 

resources. 

III. 

In Commission proceedings, requests for in camera treatment must show that the public 

disclosure of the documentary evidence wil result in a clearly defined, serious injury to the 

person or corporation whose records are involved. In re Kaiser Aluminum & Chem. Corp., 103 

F.T.C. 500 (1984); In re HP. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). That showing 

can be made by establishing that the documentary evidence is "sufficiently secret and 

sufficiently material to the applicant's business that disclosure would result in serious 

competitive injury," and then balancing that factor against the importance ofthe information in 

explaining the rationale of 
 Commission decisions. Kaiser, 103 F.T.C. at 500; In re General 

Foods Corp., 95 F.T.C. 352, 355 (1980); In re Bristol Myers Co., 90 F.T.C. 455, 456 (1977). 

The Federal Trade Commission strongly favors making available to the public the full 

record of its adjudicative proceedings to permit public evaluation of the fairness of the 

Commission's work and to provide guidance to persons affected by its actions. In re Crown 

Cork & Seal Co., Inc., 71 F.T.C. 1714, 1714-15 (1967); Hood, 58 F.T.C. at 1186 ("(T)here is a 

substantial public interest in holding all aspects of adjudicative proceedings, including the 

evidence adduced therein, open to all interested persons."). A heavy burden of showing good 

cause for withholding documents from the public record rests with the pary requesting that 

documents be placed in camera. Hood, 58 F.T.C. at 1188. 

A review of the documents submitted with the motion reveals that many of the 

documents do not meet the strict standards for in camera treatment. A motion for in camera 

treatment must be narrowly tailored to request in camera treatment for only that information that 

is sufficiently secret and materiaL. In General Foods, the Commission upheld the ALl's denial 

of in camera treatment to a number of chars prepared by an expert witness which showed 

profits, breakdowns of various costs, sales, and assets relating to several brands of respondent's 

products. 95 F.T.C. at 353-54. The Commission rejected the respondent's argument that the 

data was compiled at great expense and would give competitors significant insights into 

respondent's strengths and weakesses. Id. "(D)ocuments should not be sealed simply because 

an applicant asserts that its competitors would like to possess the information the documents 

contain." Bristol Myers Co., 90 F.T.C. at 455. 

A number of the documents for which Respondent seeks in camera treatment are many 

years old. "There is a presumption that in camera treatment wil not be provided to information 

that is three or more years old." In re Hoechst Marion Roussel, Inc., 2000 FTC LEXIS 157, at 

*5 (Nov. 22, 2000). The Commission places "a greater burden on a respondent when the 

information is old" and "has usually denied in camera treatment for data (more than three years 

old)." In re General Foods Corp., 95 F.T.C. at 353-54 (citing Crown Cork & Seal Co., 71 

F.T.C. 1714, 1715 (1967) (two and a halfto six year old sales data denied in camera treatment); 

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Columbia Broadcasting Sys., Inc., 72 F.T.C. 27, 177-80,334-35 (1967) (in camera treatment for 

sales data, especially five year old data, criticized by the Commission). 

iv. 

The overwhelming problem with Respondent's motion is the sheer breadth of documents 

for which Respondent seeks in camera treatment. Upon a cursory review, it appears that 

Respondent is seeking in camera treatment for documents that do not qualify for in camera 

treatment either because the information may have been widely disseminated throughout the 

company or to investors or does not contain sufficiently secret materiaL. Respondent's 

designation of 
 Complaint Counsel's proposed final exhibit list is one example ofa document that 

does not readily appear to meet the Commission's strict in camera standards. 

In addition, the overwhelming number of documents for which in camera treatment is 

sought stems from an apparent overdesignation of documents to be used at triaL. According to 

Respondent, Complaint Counsel's Final Proposed Exhibit List identifies approximately 1,364 

exhibits and Respondent's Final Proposed Exhibit List identifies approximately 1,500 potential 

trial exhibits. Pursuant to Additional Provision 15 of the Scheduling Order entered in this case, 

"The final exhibit lists shall represent counsels' good faith designation of all trial exhibits other 

than demonstrative, ilustrative, or summary exhibits." A designation of close to 1,500 trial 

exhibits by each side does not appear reasonable or in good faith. 

Rule 3.43 of the Commission's Rules of 
 Practice sets forth: "Irelevant, immaterial, and 

unreliable evidence shall be excluded. Evidence, even if relevant, may be excluded. . . by 

considerations of 
 undue delay, waste oftime, or needless presentation of cumulative evidence." 

16 C.F .R. § 3 .43 
 (b). Both Complaint Counsel and Respondent shall significantly narrow their 

lists of documents they intend to introduce at trial in order to comply with Rule 3 .43(b) or 

provide sufficient justification for all listed exhibits. 

v. 

The parties shall submit revised Exhibit Lists by May 1, 2009. The parties shall also 

include a list of documents that have been removed from their Exhibit Lists. Several non-paries 

have filed motions for in camera treatment for documents that may be offered by the parties at 

triaL. Each party shall review the lists of documents for which in camera treatment has been 

sought by non-parties and indicate which ofthose documents remain on the party's exhibit list or 

have been removed from the party's exhibit list. 

Respondent shall file a renewed motion for in camera treatment by May 5,2009. 

Respondent must significantly reduce the number of documents for which it seeks in camera 

treatment to only those documents which are sufficiently secret and material to their business 

that disclosure would result in serious competitive injury. In re Kaiser Aluminum & Chem. 

Corp., 103 F.T.C. 500, 500 (1984); In re HP. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). 

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Complaint Counsel shall file its opposition to Respondent's motion for in camera 

treatment, that notes with specificity the documents to which it objects to the in camera request, 

by May 8,2009. 

VI. 

For reasons set forth above, Respondent's motion for in camera treatment is DENIED 

WITHOUT PREJUDICE. 

ORDERED: ~~wA D. Michael Chappell 

Administrative Law Judge 

Date: April 
 27, 2009 

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