UNITED STATES OF AMERICA ORIGINAL 

FEDERAL TRADE COMMISSION 

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McWANE, INC.,
 )
 

a corporation, and ) DOCKET NO. 9351


)


STAR PIPE PRODUCTS, LTD.,
 )

a limited parnership, )
 

Respondents.
 ) 

) 

ORDER ON RESPONDENT'S MOTION TO COMPEL
 

ANSWERS TO INTERROGATORIES
 

I. Introduction
 

On April 
 30, 2012, Respondent McWane, Inc. ("Respondent") fied a Motion to Compel 

Complaint Counsel to Answer Interrogatories 16 through 23 ("Motion"). Complaint Counsel 

filed an opposition to the Motion on May 7,2012 ("Opposition"). Having fully considered the 

Motion and Opposition, and as more fully explained below, the Motion is GRANTED IN PART 

and DENIED IN PART. 

On February 15,2012, Respondent served a set of 
 interrogatories on Complaint Counsel, 

numbered 1 through 23. In Complaint Counsel's Responses and Objections to Respondent's 

Interrogatories, dated March 16, 2012, Complaint Counsel objected to answering Interrogatories 

16 through 23 on the ground that Respondent had exceeded its limit of 25 interrogatories 

(Motion Exhibit A). The parties were unable to reach an agreement on this dispute, and the 

instant Motion followed. 

II. Applicable Legal Principles
 

The applicable legal principles have previously been set forth by the April 16, 2012 

Order granting Complaint Counsel's earlier filed motion to compel Respondent's Answers to 

Interrogatories ("April 
 16, 2012 Order"). Those principles are: 

Commission Rule of 
 Practice 3.35(a)(1) states in pertinent part: "Any pary may 

serve upon any other party written interrogatories, not exceeding 25 in number, including 

all discrete subparts, . .." 16 C.F.R. § 3.35(a)(1). Rule 3.35(a)(1) is the same in this 

regard as Federal Rule of Civil Procedure 33(a) ("Unless otherwise stipulated or ordered 
by the court, a party may serve on any other party no more than 25 written 

interrogatories, including all discrete subparts."). Fed. R. Civ. P. 33. 

"In determining whether a request is a discrete subpart, courts look to 'whether 

one question is subsumed and related to another or whether each question can stand alone 

and be answered irrespective of the answer to the others.' . .. Courts have found that a 

subpar is discrete when it is logically or factually independent ofthe question posed by 

the basic interrogatory." In re Dynamic Health of Florida, 2004 FTC LEXIS 254 (Dec. 

9,2004) (citations omitted); accord In re Polypore Intl, 2008 FTC LEXIS 155, at *3-4 

(Nov. 14,2008). If 
 interrogatory subpars "are logically or factually subsumed within

and necessarly related to the primary question," they are to be counted as one 

interrogatory. Safeco of America v. Rawston, 181 F.R.D. 441,445 (C.D. CaL. 1998), 

citing Kendall v. GES Exposition Services, 174 F.R.D. 684 (D. Nev. 1997). See also 

Kendall v. GES Exposition Serv., Inc., 174 F.R.D. 684,685 (D. Nev. 1997) ("Genuine 

subpars should not be counted as separate interrogatories."); Banks v. Offce of the 

Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004) (noting that subpars related to 

a single topic are considered part of the same interrogatory). 1 

April 16, 2012 Order at 1-2. 

III. Analysis
 

The only issue presented by the Motion and Opposition is the appropriate calculation of 

the number of 
 interrogatories contained in Interrogatories 2, 3, 5, and 10, which are set forth 

verbatim below. 

Respondent contends that Interrogatories 2, 3, 5, and 10, each present one interrogatory. 

Complaint Counsel contends~ Interrogatory 2 presents three discrete subparts; Interrogatory 3 

presents three discrete subpars; Interrogatory 5 presents four discrete subparts; and Interrogatory 

10 presents three discrete subpars. Complaint Counsel contends that, if the number of discrete 

subparts in Interrogatories 2, 3, 5, and 10 are properly calculated, it has no obligation to answer 

Interrogatories 16 through 23 because they exceed the 25 interrogatory limit. 

A. Interrogatory No.2 

Interrogatory 2 states: 

State all facts that you contend support your definition of a relevant Domestic 

Fittings product market, including but not limited to all facts upon which 

Complaint Counsel based the product and geographic market allegations in the 

Complaint and all facts upon which Complaint Counsel mayor wil rely at tral, 

including the relevant start and end dates of any ARR-related markets or subi Where, as in ths case, the Federal Rules of Civil Procedure are similar to the Commission's Rules of 
 Practice, 

those rules and case law interpreting them are useful, though not controlling, in adjudicating a dispute. In re L. G. 

Balfour Co., No. 8435, 61 F.TC. 1491, 1492, 1962 FTC LEXIS 367, *4 (Oct. 5, 1962); In re Gemtronics, Inc., 2010 

FTC LEXIS 40, *10 (April 27, 2010). 

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markets, the likelihood of recurrence of such markets or sub-markets, and all facts 

refuting, or otherwise relating to such market definition. 

Respondent asserts that, "by definition, the 'Domestics Fittings' product market includes 

an inextricable geographic component, namely fittings made in the United States, and thus can 

only be considered a single request." Motion at 3. Respondent further asserts that Interrogatory 

2 seeks all facts supporting Complaint Counsel's definition of any market relevant to its claims 

in this action and thus, to the extent Interrogatory 2 contains any subparts, those subpars are 

logically and factually subsumed within and necessarily related to Complaint Counsel's
 

definition of the relevant markets. Motion at 4.
 

. Complaint Counsel responds that Interrogatory 2 contains three discrete subparts that 

seek: "all facts" that support, refute or otherwise relate to Complaint Counsel's contentions 

pertaining to: 1) a relevant product market for domestically-produced ductile iron fittings; 2) a 

relevant geographic market; and 3) an AR-specific submarket. First, Complaint Counsel 

asserts that a relevant market is comprised of two distinct elements - a relevant product market 

and a relevant geographic market; and that defining a relevant geographic market is an inquiry 

that is factually and legally independent from defining a relevant product market. Opposition at 

3-4. Second, Complaint Counsel asserts that, within the product market, submarkets are 

considered to be separate and distinct markets from any larger market in which they may be 

contained, and therefore also represent a factually and legally independent inquiry. Opposition 

at 4. 

Defining a relevant product market and defining a relevant geographic market are two 

separate factual inquiries. Brown Shoe Co. v. United States, 370 U.S. 294, 324 (1962). Thus, 
 the 

subpar on the product market and the subpart on the geographic market each can stand alone and 

be answered irrespective of the answer to the other. 

Defining a submarket within the relevant product market is factually subsumed within 

and related to defining the relevant product market. See Brown Shoe, 370 U.S. at 325. Thus, the 

subpar on the product market and the sub-markets are factually intertined and constitute one 

subpar. 

Accordingly, Interrogatory 2 presents two interrogatories. 

B. Interrogatory No.3 

Interrogatory 3 states: 

Identify all facts that you contend establish that McWane possesses or possessed 

market power or monopoly power in any relevant antitrust market, including but 

not limited to any evidence relating to market shares, the ability to control prices 

or output, the time period during which MeW ane allegedly possessed market 

power, and all facts that you contend establish that McWane acquired, enhanced, 

maintained, or exercised such market power through anti 
 competitive or unfair 

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conduct or attempted to do so, and all facts refuting, or otherwise relating to 

McWane's alleged possession or exercise of 
 market power. 

Respondent asserts that the possession and exercise of market power are so inherently 

intertwined as to be logically or factually subsumed within and necessarily related to each other. 

Motion at 4. Respondent thus asserts that because Interrogatory 3 contains no subpart logically 

or factually independent from the main question, it should be counted as one interrogatory. 

Complaint Counsel responds that Interrogatory 3 contains three discrete subparts that 

seek "all facts" establishing, refuting, or otherwise relating to Complaint Counsel's contentions 

that Respondent: 1) possesses market power or monopoly power; 2) unlawfully exercised this 

power through its exclusive dealing policy; and 3) unlawfully exercised this power by entering 

into a Master Distribution Agreement ("MDA") with its competitor, Sigma, Inc. First, 

Complaint Counsel asserts that possession of monopoly power and the exercise of monopoly 

power are separate elements of a monopolization claim and thus should be counted as two 

discrete subparts. Second, Complaint Counsel asserts that Complaint Counsel's contention that 

Respondent unlawfully exercised its monopoly power is set forth in Paragraphs 46 through 61 of 

the Complaint and that those paragraphs of the Complaint allege that Respondent exercised 

monopoly power through two distinct courses of conduct: (i) implementing an exclusive dealing 

policy; and (ii) entering into a MDA with Sigma, Inc. 

The possession of monopoly power and the exercise of monopoly power are separate 

elements of a monopolization claim. United States v. Grinnell Corp., 384 U.S. 563, 570-71 

(1966). Thus, the subpart on possession of market or monopoly power and the subpar on 

exercise of market or monopoly power each can stand alone and be answered irrespective of the 

answer to the other. 

The subpar ofthe interrogatory inquiring on the exercise of 
 market or monopoly power 

is one subpar. Regardless of 
 Complaint Counsel's attempt to characterize it as making two 

separate inquiries based on Complaint Counsel's own interpretation of the interrogatory based on 

Complaint Counsel's reading ofthe Complaint issued in the case, this subpart asks for facts 

relating McWane's exercise of 
 market power. Therefore, the subpart inquiring on the exercise of 

market or monopoly power constitutes one subpar. 

Accordingly, Interrogatory 3 presents two interrogatories. 

c. Interrogatory 5
 

Interro gatory 5 states: 

Identify all facts supporting, refuting, or otherwise relating to Complaint Counsel's 

contention that consumers were substantially injured or likely to be injured as a result 

of Me Wane's alleged anti competitive or unfair conduct, including but not limited to 

McWane's 2008-09 DIWF prices, that such injury was not reasonably avoidable by 

consumers themselves and not outweighed by countervailing benefits to consumers, 

including, but not limited to (1) each specific instance of any Respondent's alleged 

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anti competitive or unfair conduct, (2) the alleged har associated with each specific 

instance, (3) any specific consumer(s) allegedly injured, and (4) the likelihood of the 

alleged anti 
 competitive or unfair conduct or any resulting har recurng in the 

futue. 

Respondent asserts that Interrogatory 5 seeks facts supporting Complaint Counsel's 

allegation that consumers have been harmed by McWane's actions and that whether an alleged 

consumer injury could have been avoided, whether the consumer experienced any countervailing 

benefit, and whether the consumer's injury is likely to recur are matters so logically and factually 

subsumed within and necessarly related to the primar question of the existence of consumer 

injury that Interrogatory 5 should be counted as one interrogatory. 

Complaint Counsel argues that Interrogatory 5 is a wide-ranging interrogatory that 

propounds four distinct inquiries concerning consumer har. Complaint Counsel fuher 

contends that questions - regarding (1) whether consumers were injured; (2) whether consumers 

could have avoided being injured; (3) whether consumers received any countervailing benefits; 

and (4) whether the alleged har is ongoing or likely to recur - can each stand alone and be 

understood without reference to any inquiry in the interrogatory. 

The subpars contained in interrogatory 5 are logically and factually subsumed within and 

necessarily related to the primary question concerning consumer har. Accordingly, the 

subpars of this single topic are considered par of the same interrogatory and Interrogatory 5 

presents one interrogatory. 

D. Interrogatory 10
 

Interrogatory 10 states: 

Is it Complaint Counsel's contention that any alleged injury caused by the 

Domestic Rebate Policy, McWane's participation in DIFRA (Ductile Iron Fittings 

Research Association), and/or the Sigma MDA was not outweighed by 

countervailing benefits or pro-competitive justifications? If so, state with 

particularty why consumers are or were hared on balance, by identifyng and
 

describing the basis for this contention, and identify all facts relating to the 

contention upon which Complaint Counsel based the Complaint and upon which 

Complaint Counsel mayor wil rely at trial in support of the contention, including 

all facts refuting, or otherwise relating to, your contention. 

Respondentasserts that Interrogatory 10 seeks facts supporting Complaint Counsel's 

contention that consumers, on balance, were hared rather than benefited by McWane's alleged 

activities. Respondent further asserts that because Interrogatory 10 seeks details about a 

common theme - balance of consumer harmenefit resulted from the challenged conduct - it 

contains no subpart logically or factually independent from that common theme. 

Complaint Counsel argues that Interrogatory 10 contains three discrete subpars 

supporting, refuting, or otherwise relating to Complaint Counsel's contention regarding: (1) the 

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balance of 
 har and alleged efficiencies related to McWane's Domestic Rebate Policy; (2) the 

balance of 
 harm and any alleged efficiencies related to McWane's paricipation in DIFRA; and 

har and any alleged efficiencies related to the Sigma MDA. Complaint (3) the balance of 


Counsel asserts that an interrogatory that seeks the same information across distinct allegations 

or subjects should be counted as three discrete subparts. 

Interrogatory 10 seeks information regarding the balance of consumer harenefit as it
 

relates to three separate alleged activities: (1) the Domestic Rebate Policy; (2) McWane's 

paricipation in DIFRA; and (3) McWane's paricipation in the Sigma MDA. Each of these 

distinct subjects can stand alone and be answered irrespective of the answer to the others. 

Accordingly, Interrogatory 10 presents three interrogatories. 

IV. Conclusion
 

Respondent's motion to compel is based solely on its proposed calculation of the number 

interrogatories it propounded on Complaint Counsel. As discussed above, Respondent's 

assertion that Interrogatories 2, 3, 5, and 10 constitute a total of 4 interrogatories is rejected. In 

accordance with this Order, Respondent's Interrogatories 2, 3, 5, and 10 constitute a total of8 

interrogatories. Accordingly, Respondent's Motion is GRANTED in par and DENIED in par. 

of 

ORDERED: 'D "0 

D. Michal bM 

Chief Administrative Law Judge 

Date: May 17, 2012 

6