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UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

(:,'~:'¡-;P::"-;';"\f.\r

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polyp ore International, Inc.

a corporation. PUBLIC

MOTION TO EXTEND TIME TO PRODUCE DOCUMNTS

EnerSys hereby moves to extend the deadline by which it must produce

documents pursuat to the Subpoena served upon it by Respondent Polypore International, Inc.

("Respondent" or "Polypore") and the Order dated Janua 15,2009. In support thereof,

EnerSys states the followig:

1. EnerSys is a nonpar.

2. Respondent has directed a subpoena duces tecum ("Subpoena") to EnerSys.

3. On December 16, 2008, EnerSys moved for an award of attorneys' fees and to limt

the Subpoena.

4. On Janua 14, 2009, Respondent and EnerSys jointly moved for leave of Cour to

conduct depositions ofEnerSys employees after the discovery deadline of Februar 13,2009.

5. By Order dated Janua 15,2009 ("Janua 15th Order"), the Cour denied EnerSys'

Motion for an award of attorneys' fees and ordered EnerSys to produce responsive documents

with ten (10) calendar days.

6. By Order dated Janua 16,2009 ("Janua 16th Order"), the Cour granted the Joint

Motion of Respondent and EnerSys and allowed Respondent to depose EnerSys employees afer

the discovery deadline.

7. EnerSys intends to use its best efforts to comply with both the Subpoena and the

Janua 15th Order.

1

SLl 8971 i Svll00844.00930
8. EnerSys is in the process of reviewig the documents and preparg them for

production.

9. As set fort in EnerSys' motion for an award of attorneys' fees, however, EnerSys

has gathered approximately 15,500 documents, or 100,000 pages, of potentially responsive

documents.

10. Although EnerSys has devoted substatial resources to ths document review,

EnerSys respectflly submits that it canot review these documents and process them for

production with ten (10) calendar days.

11. With regard to processing, the documents must be converted to Sumation "load tiff'

files, Bates labeled, and labeled for confdentiality designations pursuant to Paragraph 8 of the

October 23,2008 Protective Order.

12. Durg the pendency of its motion, EnerSys could not begin reviewig the documents

because one of the tyes of relief it sought was that Polypore would rust review the documents

and cull them down to a more manageable review.

13. EnerSys respectfly requests that the Cour modify the Order to allow EnerSys

twenty (20) calenda days to produce the documents, with documents to be produced on a rolling

basis (i.e., producing documents in batches, rather than as a single document production), with

the rust production to occur durg the week of Janua 26,2009.

14. Given the substatial volume of documents gathered, EnerSys respectfly submits

that twenty (20) calendar days is a more reasonable and manageable deadline for reviewig,

processing and producing such a large volume of documents.

2

SLl 89711Svll0084.00930
15. The wife of EnerSys' lead counsel, Neil Schur, is pregnant with a due date of Janua

28,2009. EnerSys also requests the additional time so that Mr. Schur can coordinate the'

document production and stil attend to his wife and imently due inant child.

16. Simply stated, EnerSys respectfly requests that the Cour modify the Order to

requie EnerSys to produce all responsive documents by Febru 4,2009.

17. EnerSys has attempted to confer with counsel for Respondent and Complait Counsel

regarding ths issue.

18. Respondent's counsel was willing to agree to an extension in concept but said he

could not so agree because Complait Counsel is not allowig Respondent any latitude on

deadlines and apparently intends to vigorously oppose Respondent's motion to reschedule all

deadlines by th days, which Respondent apparently filed on Janua 16, 2009.

19. EnerSys respectfly submits that Respondent's position lacks merit in light of the

Janua 16th Order.

20. In light of the Janua 16th Order, Respondent will sufer no unai prejudice from

allowig EnerSys an extra ten days to produce its documents, as Respondent's deadline for

deposing EnerSys does not begin to run until EnerSys' document production is complete.

21. As a result, Respondent sufers no prejudice, and the tral of ths matter will not be

delayed by the additional ten days.

22. Indeed, as a practical matter, the requested relief will give both Respondent's counsel

and Complait Counsel additional time to review EnerSys' documents because of the rolling

document production.

23. EnerSys respectfully submits that ifEnerSys produces all of its documents at one

time, and the depositions must be completed with 14 days, Respondent and Complait Counsel

3

SLl 89711SvI/00844.00930
will not have time to review and analyze the documents and prepare them for use as exhbits at

depositions.

24. EnerSys' counsel was unable to reach Complaint Counel because ofthe Marin

Luther Kig, Jr. holiday on Janua 19,2009 and the closing of federal offces on Janua 20,

2009 for securty reasons durg the Presidential Inauguation.

25. Simply stated, EnerSys is attempting to comply and intends to comply with both the

Subpoena and the Janua 15th Order, but needs more time to do so.

WHREFORE, EnerSys respectflly requests that the Cour modify the Order to

requie EnerSys to produce all responsive documents with twenty (20) calenda days.

Dated: Janua 20,2009 STEVENS & LEE, P.C.

BYN1tl&f. Jd;j~

Eugene V. Lipkowitz

1818 Market Street, 29t Floor

Philadelphia, Pennylvana 19103

(215) 751-1944

ncsc~stevenslee.com

evl~stevenslee.com

4

SLl 8971ISvll0084.00930
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRAE COMMISSION

)

In the Matter of )

) Docket No. 9327

Polypore International, Inc. )

a corporation. ) PUBLIC

)

STATEMENT OF COUNSEL PURSUANT TO 16 C.F.R. § 3.22(0

Counsel for the moving pary, Neil C. Schur, Esquire, has conferred with counsel

for Respondent, Eric D . Welsh, Esquire and Brian Weyhrich, Esquire, and Complaint Counsel,

Steven A. Dahm, Esquire, in an effort in good faith to resolve by agreement the issues raised by

the motion and have been unable to reach such an agreement.

Counsel for EnerSys conferred with Respondent's counsel by telephone on

January 16 and 19,2009.

Counsel for EnerSys attempted to reach Complaint Counsel on January 19,2009

but was unable to reach Complaint Counsel because of the Marin Luther King, Jr. holiday on

January 19, 2009 and the closing of federal offices on January 20,2009 for security reasons

during the Presidential Inauguration.

Dated: January 20, 2009

Neil C. Schur, Esquire

i2~.~llo/~

STEVENS & LEE, P.c.

Counsel for EnerSys

5

sLl 8971ISvll008444.00930
CERTIFICATE OF SERVICE

I hereby certify that on Janua 20, 2009, I filed via overnght courer and electronic mail

delivery an origial and two copies of the foregoing Motion to Extend Time to Produce

Documents and proposed Order with:

Donald S. Clark, Secreta

Offce of the Secreta

Federal Trade Commssion

600 Pennsylvana Avenue, NW, Rm. H-135

Washigton, DC 20580

secreta~ftc.gov

I hereby certify that on Janua 20, 2009, I delivered via overnght courer and electronic

mail delivery two copies of the foregoing Motion to Extend Time to Produce Documents and

proposed Order to:

The Honorable D. Michael Chappell

Admstrative Law Judge

Federal Trade Commssion

600 Pennylvana Avenue, NW

Washigton, DC 20580

oalj~ftc.gov

I hereby certify that on Janua 20, 2009, I served via overnght courer and electronic

mail delivery a copy of the foregoing Motion to Extend Time to Produce Documents and

proposed Order on:

Eric D. Welsh, Esquie

Parker Poe Adams & Berntein, LLP

Thee Wachovia Center

401 S. Tryon Street, Suite 3000

Charlotte, NC 28202

ericwelsh~parkerpoe.com

Date: Janua 20,2009

Steven A. Dah, Esquie

Federal Trade Commssion

Bureau of Competition

Mergers II Division

601 New Jersey Avenue, NW

Washigton, D.C. 20001 sd~ft.go~ 4 ~C.l& 'ta Neil C. Schur' ~

SLl 89711Svll0084.00930
UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation.

ORDER

Upon consideration of the motion of EnerSys, it is hereby ordered that the Order

dated Janua 15,2009 is hereby modified to allow EnerSys twenty (20) calendar days to

produce documents responsive to Respondent's subpoena duces tecum.

ENTER:

Admstrative Law Judge D. Michael Chappell

SLl 8971 ISvll00844.00930