and "joint venture" refer to any person in which there is partial (25 percent or more) or total
ownership or control betweien the company and any other person,

€. © “Microporous” means Microporous Products L.P., its domestic and foreign parents,
predecessors, divisions, subsidiaries, affiliates, partnerships, and joint ventures, and all directors,
officers, employees, agents and representatives of the foregoing. The tems "subsidiary,"
“affiliate,” and "joint venture" refer to, ariy person in which there is partial (25 percent or more)
or total ownership or control between the company and any other person.’

D. “The transaction” means Polypore’s purchase of 100% of the stock of Microporous
Holdings Corporation on February 29, 2008.

. "Relevant product” or “relevant end use” as used herein means battery separators used fe

\ .
deep-cycle, uninterriptible power supply (“UPS”), automotive, or motive applications. ’

F, - “Relevant area” means and information shall be provided separately for: (a) North

America, (b) Asia, (c) Europe (d) the world. : ;

G, "Person" includes the company and means any natural person, corporate entity,

partnership, association, joint, venture, government entity, or trust,

H. ” “Vtinimum viable scale” means the smallest amount of production a which average costs

equal the price currently charged for the relevant product. It should be noted that sminiiumn

viable scale differs from the concept of minimum efficient scale, which is the smallest scale at

which average costs are minimized. ,

1. “Sunk costs” means the acquisition costs of tangible and intangible assets necessary to
“manufacture and sell the relevant product that cannot be. recovered through the redeployment of

these assets for other uses. 7 . f

‘J. “Sales” means net sales, i.e., total sales after deducting discounts, returns, allowances and



‘DOCUMENT REQUESTS

7 Produce the following: ,

1. Any documents not previously Produced that are responsive to the Commission's
April 7, 2008 subpoena duces tecum issued to Polypore, including without limitation any
tesponsive documents generated since that date.

2, Any documents (in any electronic format) not previously produced that are linked
-with any document(s) responsive to the’ April. 7, 2008 subpoena duces tecum,

3, All documents related to, identified in, or relied upon to prepare your responses to
any of the Commission’s first ‘set of interrogatories in this matter, including all subparts. .

4 All documents relating to each and every declaration of force majeure by you 7
under any contract since January’ 2003.

“+5, -. All. documetits relating to the departure of any Microporous employee, orany °
individual formerly employed by Microporous who, subsequent to the transaction, became a
Polypore employee, between July 1, 2007 and the present. ,

6. Unless produced in fesponie to. request namber 3 above, all board raeeting
minutes, power points, agendas-and personal notes of each participating director concerning
every board meeting identified in your tesponse to, interrogatory number 12,

7. All documents related to or reflecting shipping costs for relevant products (as
defined above) between Polypore facilities in China and North America. :

8. Unless produced i in response to request number 3 above, all documents related to
the requests for proposals (and responses thereto) identified in your response to interrogatory.

number 20.



EXHIBIT B



Michdel Gilchrist

‘c/o, William L.-Rikard, Jr., ESq.
Parker, Poe, Adams & Bernstein, LLP
401 South Tryon Street, Suite 3000
Charlotte, North Carolina 28202

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

This‘subpoeha-requires you to. appear and.give testimony, Gt the date and time specified in Item 5, at the
request of:Counsel listed ‘in item. 8, in the proceeding described i ‘in Item 6,

38, PLACE OF HEARING

4 "YOUR APPEARANCE WILL BE BEFORE

enjarnin Gris, Esq. —
826:3468

ND TIME-OF HEARING OH: DEPOSITION,

- November 17,2008 @.9:00-a.m.

"8 BUBJEGT OF PROCEEDING

‘“In-the' Matter of Polypore, ‘international, Inc., Docket No. 9827

7. ADMINISTRATIVE LAW JUDGE.

8 ‘SOUNSEL REQUESTING BPOENA

600. ‘eenneioania Avene, NW ‘
~ Washington,. DC: 20580.
“ (202) 826-2008

DATE ISSUED

. = | Sr et
G, 2008. rire

GENERAL INSTRUCTIONS

- “APPEARANCE
The delivery of this ‘Subposnato ee by-any: method
ibe doy he uM R ules of Practices:
gal service and may. sul joct you to.a:penalty
Impaeed by law for "alors tg. comply, Pe

filed:with’
Commission, acconipani
the-doctiment-upon counsel: list
all other parties Prescribed by the Rulés:of Prag

ted intem 8, and upon:

“ TRAVEL EXPENSES

The Commission's Rules of Practice require that fees and

Mileage. be -paid by the party-that requested your
‘appearance. You-should Prosent ‘yout: claim to Counsel
Jisted'in Item 8 for payment. If re ‘permanently or
temporarily living-somewhere: than the’address on
‘thls ond and:it wo i

r a: dogs 'not requi roval by OMB under
the: Parva oa Reduction 7 of” sapien sd

FTC Font 70h Trev. ia



Rikard, Jr., dated October 29, 2008, and Complaint Counsel’s response, dated October 31, 2008,
attached hereto as Tab 1. While the parties were able to reach agreement on several issues, the
issues identified in this motion remain unresolved.

Dated: November 3, 2008 Res] ectfully Submitted,

William L. Rikard, Jt. a,

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) 334-4706
williamrikard@parkerpoe.com
ericwelsh@parkerpoe.com

John F. Graybeal

PARKER POE ADAMS & BERNSTEIN LLP
150 Fayetteville Street

Raleigh, NC 27602

Telephone: (919) 835-4599

Facsimile: (919) 828-0564
johngraybeal@parkerpoe.com

Attorneys for Respondent

14



Williani'L, Rikard, Je. . “ais ‘aid Cotselors at Law Thice Wachovia Center

401 South Tryon Stices,
Paitin “i Suite 3000.
‘Telephiqnes 104.335.9011 : Charloite, NC. 28202-1942
‘Direct Fax: 704.335.9689 3 ‘Telephotie''704:372.9000
‘williamnkard@parkerpoe.com: Fax 704.334.4706
: October 29, 2008 ‘wwww.parkerpée.cém.

VIA BLECTRONIE? MAIL. AND FIRST CLASS MAIL

‘Federal Trade Céaimissiok
600 Pennsylvaiia Avenue, NW
Washington, DC. 20580,» °
rrobertson@fte:s Bove

Steven Dahni, Bsq.. =. te eS : :
Federal Trade Commission; Room 61 33 oe Ene : :
601 New Jetsey:-Ave., NW °

Washington, De 30001

sda ic.20V

Re: Inthe Matter of Polypore International, Inc., Docket No. 9327
‘Deat Robby and Steve:

As we-discussed:over the telephone this-afternoon,.we have a humber of objections to the
‘discovery ’ propounded by. the FTC. in. this. matter.’ * Ina: subsequent. ‘call in’ which Robby
participated, it appeat's that somie of the't issues are sesolveds Unfortunately, others persist Here
is alist of the i issues es that we: soussed,.” i F F

these: notives; five of: “hide °
the investigational ‘phiise’ of this case.
(Messrs, ‘Tucker:and Riney) and-one
approximately: 11“hours (Mr. ‘Hauswald):’ These
e exhaustive. of the issues: set forth: in the Complaint and any further
examination: of the witnesses on these areas would be duplicative. Since Steve advised us that he
intends, the ‘investigational hearings'in any’ manner petthitted by the Adininistrative Law
matter, we “simply“do' ‘not 'seé. any reason’ to ‘have further duplicative: and
Y examinations of thesé. witnesses. If you are ‘aware’ of any Rrecedent that requires
these witniesses.be.deposed for-a second’ time, please bring it to our: attention immediately ‘and we
‘will consider:it.

CHARLESTON;SC ©
“GOEUMBIA, SC
is ‘BEACH, SC
an RALEIGH NC ~

‘ : SPARTANBURG/SC.



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

Inthe Matter of

Docket No, 9327.

Polypore International, Inc.
a corporation.

eee rene

PLEASE TAKE NOTICE, that:purswant to Rule 3.33(a): of the. Federal- Trade
Commission’s:Rules of Practice for Adjudicative-Proceedings (16. €:F.R. §§3.33(a)), Complaint
Counsel will'take the deposifion of Larry Trevathan: ‘This.deposition will be conducted:before a
thorized: by law to administer-oaths, The testiniony. will’be recorded by:stenographic
and Video: méaiié. The-téstimony willbe taken at the offices ofthe-Federal Trade. Commission,
601 New Jersey Avenue; NW, Washington, DC.20580 ih Room 6201 on November 17, 2008.

Dated: October 22, 2008

J. Robert Robertson
Bureauof Competition
Federal Trade Commission:

‘ ‘Washington, De. 20580



documents and white papers, and continued to integrate its business operations with the former
Microporous since those investigational hearings were held. Complaint Counsel, with a
decidedly different purpose in mind, has a right to reexamine those individuals in light of this
new information and changed circumstances.

Complaint Counsel acknowledges that we and Respondent have agreed to hold all
depositions of Polypore employees in Charlotte, North Carolina, for the deponents’ convenience.

Respondent has objected to Complaint Counsel conducting any deposition prior to its
receipt of the third party documents from Complaint Counsel. Under FTC Rules section 3.32(b)
Respondent has the right to complaint counsel’s initial disclosures five (5) days after
Respondent’s answer to the complaint. There is no other submission to which Respondent is
entitled prior to the initiation of discovery and the associated taking of depositions. Respondent
is, of course, at liberty to seek information directly from each third party; however, Complaint
Counsel is under no obligation to submit its third party documents prior to the scheduling or
taking of a party deposition. Note, however, we are in receipt of your formal request for third
party information as of October 30, 2008, and, as all third parties have been notified of the
impending disclosures, we will be submitting their documents ten (10) days from the date each
third party received our notice. ‘

Complaint Counsel agrees that we and Respondent have decided to limit the duration of
all depositions of Polypore employees to seven (7) hours each. .

The Interrogatories submitted to Respondent number thirty-seven (37). While the FTC
Rules section '3.35(a) provides for twenty-five (25) interrogatories, under Judge Chappell’s
scheduling order Complaint Counsel is permitted fifty (50) interrogatories. We are confident
that our currently submitted interrogatories fall well short of this limit. Rather than being °
separate and distinct’, all subparts.included within each interrogatory are logically subsumed
within, and related to, their primary question, and therefore do not, in themselves, constitute

_ additional questions.*

After consideration, however, Complaint Counsel will withdraw interrogatory number 1,
which requests an update, and completion, of the previously issued Civil Investigative Demand,
and instead will serve additional discrete interrogatories as necessary.

Complaint Counsel trusts Respondent will reconsider its objections in light of these
responses. We too wish to avoid any unnecessary costs or expenses in pursuing this litigation
and believe that the concessions we have made with regard to location and duration of
depositions is evidence of our desire to reasonably accommodate each side’s interests. We share

? Willingham v. Ashcroft, 226 F.R.D. 57 (D.D.C. 2005) (“{OJnce a subpart of an
interrogatory introducés a line of inquiry that is separate and distinct from the inquiry made by.
the portion of the interrogatory that precedes it, the subpart must be considered a separate
interrogatory: . . .”) (emphasis added).

3 Ginn v. Gemini Inc., 137 F.R.D. 320, 322 (D, Nev. 1991),



. UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

Docket No, 9327

Polypore International, Inc.
a corporation.

PLEASE TAKE NOTICE, that pursuant to Rule 3.33(a) of the Federal Trade
Commission's Rules of Practice for Adjudicative Proceedings (16 C.F.R..8§ 3.33(a)), Complaint
Counsel will take the deposition of Pierre Hauswald. This deposition will-be conducted before a
pefson.authorized by law to administer oaths, The testimony will be recorded-bystenographic
and video means, ‘The testimony will be taken at the offices of the Federal: Trade Commission,
601 New Jersey Avenué, NW, Washington, DC.20580 in Room 6201 on Noveimber 10, 2008.

Dated: October 22, 2008



include the past tense; ‘ \

4. Construing the masculine form to include the feminine form;

5. Construing the term “Date” to mean the exact day, month, and year if ascertainable; if not,

the closest approximation that can be ‘made by means of Telationship to other ‘events,

locations, or matters; and

, 6, Construing negative terms to include the positive and vice versa.

G. Unless otherwise instructed, provide information where requested from the year 2005 to
the present. : :
.H. Provide data, where requested, in electronic spreadsheet format, formatted in Excel (xls).

I. “All sales data should be provided in-monthly increments:

J. Forall responses provide file layouts and data dictionaries, including, but not limited to,
‘definitions of all fields’as well as explanations for any codes or abbreviations within data
sets, and definitions for all product specification codes.

K. © For all responses to interrogatories 4, 5, 15, and 16, provide data in Flat File format.

If you have any questions, please contact Christian H. Woolley at 202-326-2018.

INTERROGATORIES

oe Complete.and update all iesponses to the cD issued to.Polypore on April 7, 2008.
“2. Identify each and every change in prices by Polypore to customers in North America ‘

» in any relevant product ‘since the transaction. For cach such request to increase price state:

a. the relevant product;
b. the customer; ,
c. the current price;

d, the proposed change in price;



9 Unless produced in response to request number 3 above, all documents related to,
constituting, or reflecting any communications with Hollingsworth-& Vosé identified in-your
tesponses to interrogatoriés number 22 and 23.

+10. All documents Tolated to efficiencies achieved or foreseen by-Polypore as a result
of the purchase of Microporous. ,

11. . All documents concerning each and every developmental project of Microporous,
telating to any relevant product, including, but not limited to, Prajecte 1 LENO, Cool Whip, and
Einstein. :

120 Unless prooed in response to request number 3 above, all documents related to
each and every effort by Polypore ‘to develop or ‘ market a flooded lead-acid -deep-cycle battery
separator between January 1, 1997 and the present, or ‘otherwise related to your response to
interrogatory numbet 30,

.13.; All documents related to or tending to support Polypore’s statement in its July 3,
2008 letter‘to then Bureau Director Schmidt that the battery separator industry is dominated by
large sophisticated buyers who have substantial buying power and, as consequence, control
prices within the industry. ; “

14. All documents, including \ without limitation data compilations, generated byor or
for Polypore or Daramic relating to the price sensitivity, price elaiciy, price points, or ‘product
substitution of any relevant product(s).

5. AN “documents, including ‘without limitation data compilations, generated by or
for Microporous relating to the price sensitivity, ptice'elasticity, price points, or product

substitution of arly. relevant product(s).



companies all over the world that are associated or affiliated with or have some relation, however
remote; to Polypore. In the context of this litigation, such a task would be Herculean — it is
certainly well outside the spirit and intent of the expédited nature of this litigation and the
aspiration to reduce “nonessential discovery and motion practice that can be very costly to both the
Commission and [the challenged] clients.”® Further, Complaint Counsel seeks duplicative and
burdensome depositions of five individuals who were subject to investigational hearings in the: Part
II investigation.
DISCUSSION
A. Scope of Discovery
“Parties may obtain discovery to the extent that it may be reasonably expected to yield
information relevant to the allegations of the complaint, to the proposed relief, or to the defenses of
any respondent.” FTC Rules 3.31(c)(1); see‘ FTC v. Anderson, 631 F.2d 741, 745 (D.C, Cir.
1979). The Administrative Law Judge has the authority to limit discovery. to the extent it is
“unreasonably cumulative or duplicative,” “the party seeking discovery has had ample opportunity
by discovery in the action to obtain the information sought;” or “the burden and expense of the
proposed discovery outweigh its likely benefit.” FTC Rules 3.31(c)(1)(-iii), Further, the ALJ
may deny discovery or make any order to protect “any party . . . from annoyance, embarrassment,
oppression, or undue burden and expense . . .” FTC Rules 3.31(d).

L Complaint Counsel’s Written Discovery is Overbroad, Unduly Burdensome
and Seeks Information Not Relevant to this Matter

The Scheduling Order in this matter entered on October 22, 2008, limits each party to 50

document requests and 50 interrogatories, including subparts. This limitation doubles the standard

6 See n.3 supra.



product (including but not limited to internal testing according to industrial
standards or tests required by prospective customers);

». the quarter and year in which the product was fist sold in commercial quantities;

c. the Sst customer to purchase the product in commercial quantities;

d. any independent laboratories involved in testing and/or developing the product;

e. any industry-wide tests (e.g. BCI standards) to which the product-was subjected;
and . - ,

f. the total cost of product development and testing borne by the company (Daramic
or Microporous), between the dates identified in “a.” and “b,” above)... ‘

35. State the full name and definition for the abbreviations used in document
“07B06A0S5A.xis,” which begins with Bates number “PP_SEI_E000023482.”

36. Identify each and every instance when Hollingsworth & Vose marketed, sold, \

attempted to market, or attempted to-sell PE separators, In answering this interrogatory identify:
, ‘a. target customers;
b. associated volume; and
©. geographic locations of cach customer or potential.

37. To the extent-you have already provided documents responsive to any of the

foregoing interrogatories, identify each individually by Bates range,



excise taxes. “Sales” includes sales of the relevant product whether manufactured by the
company itself or purchased from sources outside the company and resold by the. company in the
same manufactured form as purchased.
K,. "And" and "or" have both conjunctive and disjunctive meanings,
L. “Describe,” “state,” and “identify” mean to ‘indicate fully. and unambiguously each relevant
fact of which you have Icnowledge,
M. "Documents" means all computer files and written, recérded; and graphic materials of

, every kind in the possession, custody or control of the company, The term "documents"
includes, without limitation: electronic mail messages; electronic correspondence and drafts of
documents; metadata Gnd other bibliographic or historical data describing or relating to
documents created, revised, or distributed on computer systems; copies of documents that are not
identical duplicates of tho origicats in. that person’s files; and copies of documents the originals
of which are not in the possession, custody or control of the company.
N. "Computer files" includes information stored in, or accessible through, computer or other
information retrieval systems, inchiding documents stored in personal computers, portable ;
computers, workstations, minicomputers, mainframes, servers, backup disks and tapes, archive
disks and tapes, and other forms of offline storage, whether on or off company premises,
O. "Plans" means tentative and preliminary proposals, recommendations, or considerations,
whether.or not finalized or authorized, as well as those. that have been adopted.
P. “Relating to" means in whole or in part constituting, containing, concerning, discussing,
describing, analyzing, identifying, or stating. ,
Q. “Data” means numeric information or information expressed numerically.

R. “PE” means polyethylene.



n. sales dollars sold (indicating separately actual sales and sales projections for all
years for which projections exist);

0. square meters sold (indicating separately actual sales and sales projections),

p. sales type (j.¢. regular sale or sample). ,

6. State the name, address, estimated sales, and estimated market share of the company
and each of the company's competitors in each relevant area in the manufacture or sale of each
relevant product. Se

7. Identify each and every occasion when Daramic declared a force majeure, and state
the reasons for each such declaration, : :

; 8. Describe the circumstances, the timing of, and all reasons for, the departure of any
company employee, including, but not limited to, Michael Gilchrist and George Brilmyer from
employment at Polypore since July 1, 2007.

9. Identify. costs and time necessary to fully complete all required testing for
commercial qualification for each relevant product.

10. _ Identify the ‘actors affecting ‘the profitability analysis of switching production from
relevant product to relevant product, including, but not limited to, the minimum increase in
price(s) that would make such a switch profitable. : :

11,. Provide the date, lists of attendees, and identify matters discussed for every Daramic,
Polypore or Microporous, board of directors meeting, including a list of matters requiring vote, {
and the outcome of each vote, since January 1, 2001, 7

12. Identify each and every instance since January 1, 2006 in which Daramie competed .
against Entek for the sale of non-automotive battery separators. in responding to this
interrogatory, identify the type of separator by SKU for each instance of competition as well as



¢

or a definition or instruction applicable thereto, you shall set forth as part of your response the
language deemed to be ambiguous and the interpretation used in responding to the Interrogatory,
and shall respond to the Interrogatory as you interpret it. : :

D. Ifyou cannot answer all or pat of any Interrogatory after exercising ‘due diligence to

secure the fill information to.do 0, ‘so state and answer to the fullest extent possible, specifying

your inability to answer the remainder; stating whatever information or knowledge you have
concerning the unanswered portion; and detailing what you did in attempting to sécure the
unknown information.

E. If any privilege is claimed asa ground for not responding to an Interrogatory, provide a
privilege log describing the basis for the claim of. privilege and all information necessary for the
Court to assess the claim of. privilege, in accordance with Rule 3.31(¢)(2) of the FTC Rules of |
Practice. The privilege Jog shall include the following: @ specific grounds for the claim of
privilege; (ii) the date of the privileged communication Giiy the persons involved in the
privileged communication; (iv) a description of the subject matter of the privileged
communication in sufficient detail to assess the claim of privilege; and ® the Interrogatory to
~ which the privileged information is responsive.

F.. "Whenever necessary to brig within the scope of an Interrogatory a response: that might

__ otherwise be construed to be outside its scope, the following constructions should be applied:

1 Construing the forms “and” and “or” in the disjunctive or conjunctive, as nodescary, to
make the Interrogatory more inclusive;

2. Construing the singulér form of ‘any word to include the plural and the plural form to
include the singular, \

3. Construing the past tenee of the veib to include the present tense and the recent tense to



Dated: October 22; 2008 Respectfully-subriitted,

J, Robert Robertson
Complaint Counsel.
Bureau of Competition

Federal Trade Conimission
600Pennsylvania Ave, NW (H-374)
Washington, DC 20580

Telephone: (202), 326-2008
Facsitnile: (202) 326-2884



EXHIBIT A



time frame at issue, thus there is no reason to go beyond those companies to their predecessors or
other affiliated companies.

If. Complaint Counsel’s Deposition Notices are Duplicative and Burdensome

As recognized by the Supreme Court of the United States “[i]t is clear from experience that
pretrial discovery by depositions . . . has a significant potential for abuse.” Seattle Times Co. et al.

y. Rhinehart et_al., 467 U.S. 20, 28 (1984). Complaint Counsel’s desire to take duplicative

testimony from 5 individuals who previously submitted to one or more days of testimony during
the investigational hearings is cumulative, duplicative, and unduly burdensome. Five of the eight
witnesses were deposed at length on the issues underlying the Complaint. Complaint Counsel has
advised that they intend to use the transcripts in the hearing in this matter, just as they will use the
1.1 million documents previously produced. Complaint Counsel should not be permitted to engage
in such oppressive tactics in proceedings which are intended to be handled in an expeditious
manner without imposing undue burden on the litigant,
While discovery is designed to elicit new information, some of which may be cumulative,
. discovery is not a license to “engage in repetitious, redundant, and tautological inquiries.”
Pulsecard, Inc. v. Discovery Card Servs., et al., 168 F.R.D. 295 (D. Kan, 1996). The Federal Rules
of Civil Procedure,® and federal courts, disfavor repeat depositions. See, e.g., Graebner v. James
River Corp., 130 F.R.D. 440, 441 (N.D. Cal. 1989)(preventing. second deposition despite claim

that first deposition was “settlement” deposition and second was “trial” deposition). Re-deposing

8 Although the Federal Rules may not govern here, the FTC Rule’s essentially mirror the Federal Rules and cases under
the F-T.C. have noted that “judicial precedents under the Federal Rules provide helpful guidance ‘in resolving discovery disputes in
commission proceedings.” See, ¢.g., Dura Lupe Corp., 2000 F.T.C. Lexis 1, at *31 (Jan, 14, 2000); L.G. Balfour Corp,, et al., 61
F.T.C. 1491, 1492 (Oct. 5, 1962).

10



g. expected time when commercial sales are expected to begin.

29, ‘State all efforts by Daramic to develop a deep-cycle separator for flooded lead-acid

batteries since January 1, 1997, including, but not limited to:
a. money spent in development;
b., time (in man years) in development;
c. personnel and contractors involved;
d, testing partners;
e, testing results;
f. associated contract negotiations;
8, attempted sales of separators for deep-cycle applications; and
Lh. sales of separators for deep-cycle end use application.

30. ‘State-all efforts to improve the HD separator, including but not limited to, cost
reduction, runnability, and petformance improvement efforts,

31. Identify the equipment that has been ordered of purchased for the second phase of
the Microporous expansion, including, but not limited to, the equipment intended for the Enersys
contract, referenced by Michael Gilchrist on pages 58 and 59 of his Investigational Hearing
transcript. Provide the status of this equipment, including, but riot limited to, the location, cost,
and original purpose of each piece of equipment. To the extent the original purpose differs from
the current use or planned use provide detailed explanation of the reason(s) for the change and
the timing of the ctiange,

C 32, For each product produced by Polypore, Daramic, or Microporous since January 1,
2003 state the: ,
a. product code;



to, VAT and ‘import export
16. Provide information on assessments and estimates of the costs of shipping the
relevant product to North America (specify destination country and port, if, possible) by OTHER
battery separator manufacturers. This information should be reported in dollars, monthly by
company, ofigin country, plant, and relevant product market. Cost estimates should cover the
, total costs associated with shipping the relevant product, covering all fixed, variable, and sunk Gf
applicable) costs (and should be categorized as such). Estimates should be broken out into the
following subcategories, including, but not limited to, these subcategories:
a, Freight.on Board;
_b. customs; © mos
c. ‘insurance; and
d. all other costs including surcharges, taxes and tariffs, including, but not limited
to, VAT and import/export.
17. Identify each and every producer ofa relevant product in each relevant area, and
-state whether that person has ever sold a relevant product into North America; and, if so, state
‘the type of separator by material and relevant end use. ; : :
“18. Describe the role reputation plays.in gaining 1g and maining customers for each
relevant product, including, but not limited to, how the factor of Teputation impacts Asian
producers of relevant products. ;
19. Describe your strategy for establishing customer relationships for the gales of the
relevant products, including, but not limited to, the responding to, or solicitation of, RFPs.
20. Describe Microporous’ plans to enter the automotive mafket in any relevant area
between January 2005 and the date of the transaction. ,



and for each of Polypore, Daramic and Microporous), 5 (same), 9, 10, 14, 15, 32. In addition,
Complaint Counsel compounds this egregious discovery by asking for the same information for
each of 4 “relevant areas,” defined as North America, Asia, Europe or the World. See e.g.
Interrogatories Nos. 6, 16, 34. This additional burden takes the number of interrogatories well
beyond even the outrageous number of 116.

A subpart is'to be considered discrete only when it is “logically or factually subsumed
within and necessarily related to the primary question.” Federal Trade Commission v. Think All
Publishing, L.L.C., 2008 WL 687454 (E.D. Texas 2008). The Think All Court went on to explain
that where “the first question can be ariswered fully and completely without answering the second
question, then the second question is totally independent of the first and not factually subsumed

within [it].” Id.; see also Kendall-v. GES Exposition Servs., Inc., 174 F.R.D. 684 (D.Nev.1997)).

Thus it must be considered a separate and distinct question. Complaint Counsel ‘here has”

propounded dozens of interrogatories whose subparts can be answered fully: and completely
separate and apart from the “first” question propounded. This is in violation of the FTC Rules and
the Scheduling Order and should not be tolerated.

: Under the Scheduling Order Respondent has 20 days to respond to the written discovery
propounded upon it. It should not be given the additional burden of having to sift through
duplicative questions that are in blatant violation of the limits explicitly set by the Scheduling
Order, nor should it be required to determine which 50 of the interrogatories should be answered.

Complaint Counsel should be required to abide by not only the Scheduling Order, but by
the implicit limits set by the FTC Rules and Respondent requests that Complaint Counsel be
ordered to propound a new set of interrogatories limited to-a maximum of 50, including subparts,

I. Complaint Counsel’s Definition of “Polypore” and “Microporous”

Substantially Increases the Burden of Responding to the Written Discovery
. 7



number of interrogatories permissible under the FTC Rules, Rule 3.35. Notwithstanding this
generous allowance and clear limitation, in addition to the admonition that “[a]dditional discovery
may be permitted only for good cause shown upon application to and approval by. the
Administrative Law. Judge,” Complaint Counsel served upon Respondent on the same day the
Scheduling Order was entered Interrogatories well in excess of the 50 interrogatory limitation (by
one count, the Interrogatories are well in excess of 116). )

“The purpose of interrogatories is to narrow the issues and thus help determine what
evidence will be needed at trial . . .” In re TK-7 Corp., 1990 F.T.C. Lexis 20, *1-2 (1990), A
shotgun approach to discovery will not “narrow the issues.” Further, Complaint Counsel failed
even to ensure that it did not seek duplicative information obtained previously during the
investigatory phase. For instance, Interrogatory No. 5 which asks that Polypore, Daramic and
Microporous identify all sales by relevant product, in each relevant area, from January 2003 to the
present (and projecting forward as possible) with 16 sub-parts requiring further information, is
substantially duplicative of the CID Request No. 2 which asks for sales for each relevant product,
in each relevarit area from January 2003 to the present. The only real differences in the two
requests are that Complaint Counsel now wants Respondent to identify the “line” from which the
__ Sales came, the product code and the customer’s parent. This additional information is irrelevant

and certainly does not justify the clearly duplicative discovery sought of Polypore.

Complaint Counsel’s excesses are demonstrated by looking at the interplay of their
definitions with the interrogatories, Complaint Counsel defines “relevant product” ‘to include 4
products (battery separators for deep cycle, uninterruptible power supply, automotive and motive
applications). Complaint Counsel then requests detailed and voluminous information in the guise
of a single request for each such “product”. See e.g. Interrogatories Nos. 2, 4 (for each product,

6



a

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

_ In the Matter of. .
Docket No, 9327
Polypore International, Ine.,
a corporation.

~ COMPLAINT COUNSEL'S. FIRST SET or. INTERROGATORIES T0

Pursuant to:the Federal Trade Commission Rules 3.31 and 3.35, Respondent Polypore

_ Intemational, Inc. is hereby requested to answer the following interrogatories. The requested
answers must be submitted to 601 New Jersey Avenue NW, Washington, DC 20580, within “
twenty (20) days. ‘Objections, if any, ‘must be. made within ten (10) days after service of these
interrogatories. ; ,

2y ‘ DEFINITIONS on
AL ~“Polypore,” “the company,” “you,” or “ “yours” means Polypore, International, Inc., its

; “domestic and. foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships, and.
joint ventures, and all directors, officers, employees, agents and representatives of the foregoing.
‘The terms "subsidiary," "affiliate," and "joint venture" refer to any’ person'in which there.is
paitial (25 percent or more) or total ownership or control between the company and.any other
Person. , -
B. “Daramio,” means Polypore International, The., its domestic and foreigi parents,
predecessors, divisions, subsidiaries, affiliates, Partnerships, and joint ventures, and all directors,

officers, employees, agents and representatives of the foregoing prior to the purchase of

-Microporous Holdings Corporation on February 29,2008, The terms "subsidiary," "affiliate,"

mn)



Complaint Counsel with the circumstances, timing and reasons for the departure of any employee
of Polypore, Daramic, Warburg Pincus, and any of myriad companies all over the world which fall
within this expansive definition. Likewise, Respondent would be required to produce documents
related to these departures pursuant to document request number 5,

By way of further example, with respect to Complaint Counsel’s definition of
“Microporous,” Microporous was owned prior to the acquisition by Respondent by Industrial
Growth Partners, a private equity company that currently owns five portfolio companies,’ Thus,
accepting Complaint Counsel’s definition to include IGP as a “predecessor” would, again read
literally, require Respondents under interrogatory number 11 to provide the date, list of attendees
and matters discussed for every board of directors meeting for IGP, and any of its portfolio
companies, not to mention any prior owner (or predecessor) of Microporous, which would include
another equity firm, Kelso & Company. Likewise, Respondent would be required under document
request number 6 to produce all docurnents related to these meetings — including notes of each
individual director. As with Warburg Pincus, Respondent has no control over IGP or Kelso &
Company and cannot respond on their behalf.

Complaint Counsel should not be permitted to impose such onerous and burdensome
requests on Respondent. Respondent requests that the Court limit the requests to the following
companies: Polypore International, Inc., Daramic LLC and Microporous Products, L.P.
Respondent should not have to answer discovery on behalf of its other “parents,' subsidiaries,

affiliates” or its “predecessors.” Each of the relevant companies has been in existence during the

N

¢

" API Heat Transfer, Inc.; Atlas Material Testing Solutions; The Felters Group; Seaboard Wellhead, Inc.; and The TASI
Group. See www.igpequity,com/portfolio.html. 1GP”s former portfolio companies, which includes Microporous, number 12
different companies in as many industries.

9



e. the reason for the price change; and”
f. the amount of change in price achieved if any.

3. Ifthe reason for the request for any change in price in interrogatory 2, above, is

: related to increase in Polypore’s costs‘for manvfacturing or selling the relevant product, state, in

detail, each cost increase for each relevant product and the facility in which such relevant
product is produced or from where the relevant product is spldc
4, |For Polypore, Daramic, and Microporous, provide data on the costs associated with,
the relevant product ftom'2005 to the “present (and projecting forward for all available years).
‘These data should cover the total costs associated with producing the relevant: product. These
data should be reported in both ‘dollars and in dollars per square meter monthly, by.company,
country, plant, line, and relevant product. Cost data should cover all sunk, fixed, and variable
costs and should be categorized as such: The cost data should be broken out as follows, .
; including, but not limited to, these categories;
a. Taw. materials; - :
b. ‘Tabor;
} overhead;
d. plant administration;
e any rebate, including, but not limited to, “COS Rebate”, °
£ SG&A; Ms ,
i selling;
ii, G&A;
, iii, R&D; and -

‘iv. _ other start-up expenses



craab a4 Lod

Ls Srcaven peek eo

rae 3 2008

S3T7//
SECRETARY,

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of y Docket No. 9327

)
Polypore International, Inc., yy’ PUBLIC DOCUMENT
a corporation. )

RESPONDENT’S MOTION FOR A PROTECTIVE ORDER REGARDING DISCOVERY

Pursyant to the Federal Trade Commission’s Rules of Practice for Adjudicative
Proceedings (“FTC Rules”), 16 C.F.R. §§ 3.22 and 3.31(d), Respondent Polypore International,
Inc. Polypore”), by its attorneys, Parker Poe Adams & Bernstein LLP, hereby moves for a
protective’ order to (1) limit the scope of Complaint Counsel’s First Set of Interrogatories to
Respondent Polypore International, Inc. (the “Interrogatories”) and Complaint Counsel’s First Set
of Document Requests to Respondent Polypore International, Inc. (the “Document Requests”); (2)
deny improper discovery demanded beyond the limits set in the Scheduling Order entered on
October 22, 2008; (3) limit the depositions currently sought to the extent Complaint Counsel
intends to question witnesses based on third party discovery document; and (4) quash, or limit, the
depositions of sought of Steve McDonald, Michael. Gilchrist, Timothy Riney, S. Tucker Roe and
Pierre Hauswald (the “Depositions”) — individuals previously questioned at length by Complaint’s
Counsel as part of its pre-complaint investigation.

INTRODUCTION

After having engaged in what can only be described as unfettered and one-sided discovery
of Polypore for over five months, the Federal ‘Trade Commission (“FTC”) issued its Complaint
against Polypore on September 9, 2008. Polypore does not yet know the full extent of the FTC’s

prior discovery, as Complaint Counsel has not yet complied with its obligations and produced the

) Copies of Interrogatories, Document Requests and Deposition Notices are attached as Exhibits A, B and C, respectively.



UNITED STATES.OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

)
In the Matter of )
) Docket No. 9327
Polypore International, Inc. )
a.corporation. y
)
NOTICE OF DEPOSITION OF ROBERT TOTH

PLEASE TAKE NOTICE, that pursuant to Rule 3.33(a) of the Federal Trade
Commission's Rules of Practice for Adjudicative Proceedings (16 C.F.R. §§-3.33(a)), Complaint
Counsel will take'the-deposition of Robert Toth, This deposition will be conducted-before a
pergon'authorized by-law to adrhiistenoaths. The testimony will: be recorded by stenographic
and video tieans; ‘The testimony will'be taken: at ‘the: offices of the Federal ‘Frade. Commission,
601 New Jersey Avenue, NW! Washington, DC20580:in Room: 620]-on:October 30, 2008.

Dated: October 22, 2008

J. Robert Robertson

Bureat of Competition

Fedéral. ‘Frade Commission

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580



In its Initial Disclosures Complaint Counsel reveals that it has received documents from
twenty (20) third-party entities and individuals during the pre-complaint investigation.
Furthermore, Complaint Counsel stated in the initial disclosures that it would “pkovide copies of
the third party’s documents and materials ten days after .. . the Administrative Law Judge has
entered a protective order in this matter and the third parties have been apprised of their rights
under the. protective order.” Had Complaint Counsel acted expeditiously the ten-day period would
have passed by November 3, 2008. However, Complaint Counsel admitted that as of October 30,
2008, not all third parties had been apprised of their rights under the Protective Order. In its
response letter of October 31, 2008 to Respondent, Complaint Counsel states all third-parties have
now received the notice and their documents will be submitted ten days after each third-party
received Complaint Counsel’s notice, Assuming some third-parties did not receive notice until at
least October 31, 2008, no third-party documents will be produced to Respondent until at least
November 10, 2008. Despite this, Complaint Counsel has scheduled several depositions prior to
that date, and states that Respondent is not entitled to any of these third-party documents prior to
the taking of the seven currently noticed depositions. ;

The refusal of Complaint Counsel to produce those documents prior to the scheduled
depositions is patently unfair to Respondent and the wittiesses scheduled to be deposed.
Complaint Counsel states that it is “committed to ensuring the fairness of these proceedings,” yet it
is difficult to imagine how this commitment is advanced by the refusal to allow Respondent’s
counsel time to review documents from 20 different entities and individuals on which the
deponents may be questioned. Even if the documents and information are designated as
confidential under the October 23, 2008 Protective Order, Respondent’s counsel should still be

entitled to see these documents before Complaint Counsel is permitted to engage further in what

12



these individuals once more will simply generate hundreds of additional pages of testimony that is
repetitive of the testimony previously elicited. This is not only burdensome on the individual
defendants, but is an unnecessary waste of the Respondent’s and the government’s time and
money, a result to be avoided. See supra at 3.

To the extent Complaint Counsel seeks to ask. the same questions to the same witnesses it ;
can obtain that information from a less burdensome and costly source — the prior testimony. “In
making a decisions regarding burdensomeness, a court should balance the burden of the
interrogated party against the benefit of the discovery party of having that information.” Hoffman
y. United Telecommunications, Inc., 117 F.R.D. 436, 438 (D. Kan. 1987). To allow full access to
the same individuals does nothing more than increases costs and burden for all parties. Whether
discovery is unduly burdensome depends on “the needs of the case, the amount in controversy,

- limitations on the party’s resources, and the importance of the issues at stake in the litigation.”
Hammerman v. Peacock, et al., 108 F.R.D. 66, 67 (D.D.C. 1985). In this case, requiring these
individuals to be deposed’ a second time on any and all subjects outweighs any putative benefit
Complaint Counsel can expect to obtain and strains the resources of all parties.

To..the extent such depositions are permitted, they should be limited to topics not
previously covered and “new” information or questions related to topics that have previously been
covered. It would be inappropriate to require individuals who spent up to two full days being
questions in the Part I proceeding to have to submit to the same questions yet again, See, €.g.,
Johnston Dev. Group _v. Carpenters’ Local Union No. 1578, 130 F.R.D: 348, 353 (D.N.J.
1990)(“recollection of an event witnessed by five other petsons” is duplicative).

IV.  Deposition’s Should be Delayed or Limited until Complaint Counsel

Provides the Third Party Documents Previously Produced to Respondent

ll



your hope that you “will not have to trouble.the Administrative Law Judge with these issues,”
but should you find this unavoidable we are prepared to respond as necessary.

Sincerely,

pele ;
J. Robert Robertson
Chief Trial Counsel



EXHIBIT C



between Daramic, or Polypore, and any battery separator manufacturer relating to non-compete
agreements, acquisitions, joint ventures, or marketing agreements from January 1, 2004 to the
present, — :

25. With regard to each negotiation or discussion identified in response to interrogatory
2A, identify:

7 a. who participated; and
b, the substance of each negotiation or discussion, including but not limited.to, °
products at issue, geographies at issue, timing and duration! of agreement(s)
discussed, and the outcome of each negotiation or discussion. ;

26. State all efficiencies achieved , or are expected to be achieved, by Polypore asa
result of the acquisition of Microporous, In answering this interrogatory, provide a detailed
explanation of how each efficiency has benefitted, or will soon benefit, your customers. ~

27. List, and describe, each and every developmental project for ariy relevant product in
which Microporous had been engaged prior to the transaction. ‘Provide a detailed update on the
status of each such proj ject to date, including, but not limited to, projects LENO, CoolWhip, and
_ Einstein. :

28, For each proj ect mentioned in response to interrogatory number 27, describe -the:

a.” intended commercial use; ,

b. targeted customer(s); ” :

G length of time in development;

d. temaining action items;

e dollar amount of invested capital;

f. the expected benefit of the new, or altered, technology; and



"UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

Inthe Matter of

Docket No. 9327

Polypore-International, Inc.
a corporation. .

/

PLEASE TAKE NOTICE, that pursuant to Rule 3.33(a) of the Federal Trade
Corimission’s Rules of Practice for Adjudicative Proceedings (16°C.F.R..§§ 3:33(d)), Complaint
Counsel will take the deposition of Steve MoDoinald. This deposition will’be conducted before a
person authorized by law to‘administer oaths. The:testimony will be:récorded by stenographic:
and video means, The testimony will be'taken at the offices of the Federal Trade Commission,
601 New Jersey Avenue, NW, Washington, DC 20580 iri Room 8201 on October’ 30, 2008.

Dated: October 22, 2008

J. Robert Robertson

Bureav of'Competition

Federal. Trade. Comniission
600'Pénrisylvariia’ Avenue; :N.W.
Washingtoni, D:C.-20580



21. Identify all communications between Hollingsworth & Vose and Daramic from
January 1,.1997 to December 31, 2001, related to any agreement, or attempt to enter into an
agreement, including, but not limited to, the 2001 Cross Agency Agreement and the purchase of
Exide’s Corydon, Indiana facility. If any meetings were held with regard to any of the topics
which fall within the description above identify: ,

a, who was present;
b. each topic of discussion; and
ce. all exchanges of information (identifying those that were considered
confidential). ‘ . ,
22, Identify all communications between Hollingsworth &Vose and Daramic from
July 1, 2005 to the present, telated to any agreement, or attempt to enter into an agreement,
including, ‘but not limited to, the renewal of the 2001 Cross Agency Agreement. If any meetings
were held with regard to any of the topics which fall within the description above identify:
a. who was present;
‘b. each topic of discussion; and :
Pa all exchanged of information (identifying those that were considered”
confidential). — ,
23. Identify each and every instance when Polypore has marketed, sold, attempted to
market, or attempted to sell AGM separators In answeting this interrogatory identify:
: _ a, target customers;
b. associated volume; and
c. geographic locations of each customer or potential.

24, Identify cach and every agreement or attempted agreement discussed or negotiated



Complaint Counsel has defined “Polypore” in its written discovery as “Respondent, its
domestic and foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships, and
joint ventures, and all directors, officers, employees, agents and representatives of the foregoing.”
The definition goes on to state that “Subsidiary,” ‘affiliate,’ and ‘joint venture’ refer for this
purpose to any person in which there is a partial (25 percent or more) or total ownership or control
between the company and any other person.”

Microporous is defined with equal breadth as “Microporous Products L.P., its domestic and
foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships, and joint ventures,
and all officers, directors, employees, agents and representatives of the foregoing.”

As Complaint Counsel is aware Polypore International, Inc., is currently owned more than
25% by Warburg Pincus. Further, it is parent to four companies which, in turn are parent to, or are
affiliated with, 25 companies throughout the world. This does not take into account its affiliation
and relationship with its Liquicel and Membrana divisions. The vast majority of these companies
have ‘no connection to the issues in the Complaint. Making the definition increasingly absurd,
should Polypore be required to respond to the discovery using Complaint Counsel’s definition, it
would also be responsible for ascertaining whether all of the directors, officers, employees, agents
and representatives of these companies have documents or information potentially falling within
Complaint Counsel’s discovery requests and then, if so, gathering and producing the documents
and information no matter how remote to the issues here. Not only would this include thousands
of employees, it would include all outside directors, counsel and other “representatives” of each of
those companies. Thus, read literally interrogatory number 8, which asks Respondent to “describe
the circumstances, the timing of, and all reasons for, the departure of any company employee wee
from employment at Polypore since July 1, 2007,” would require Respondent to provide to

8



§. “CID” means the April 4, 2008 Civil Investigative Demand issued by the Commission to
Polypore.
T. “AGM” means absorptive glass mat.

“UPS” means uninterruptible; ‘power supply. a
Vv. “FTC,” and “Commission” mean.the Federal Trade Commission”
Ww. “SKU” means stock keeping unit.
X. “RFP” means request for proposal or Tequest for quotes. .

INSTRUCTIONS
A. These Interrogatories call-for.all information (including any information contained in oron
any document or writing) that is known or available to you, ineluding all information in the
‘possession of, or available to, your attorneys, agents, or representatives, or any othet person
acting on your behalf or under your direction or-control, .
B. — Each Inferrogatory, including subparts, is to be answered by you separately, completely
and fully, under oath. If you object to any'part of: an Interrogatory, set forth the basis for your
objection and respond to all parts of the Intérrogatory to which you do not object. Any ground
not. stated in an objection within the time: provided by the Federal Trade Commission’s Rules of
Practice, or any extensions thereof shall be waived, All objections must be made with :
particularity and must set forth all the information upon which h you intend to rely in Tosponse to
any motion to coimpel,

a

c. All objections must state with particularity whether, and i in what manner, the sobjetion is”
being telied.upon as a basis: for limiting the response. Ifyou are withholding responsive
information pursuant to any general objection, you should so expressly indicate. If, in

responding to any Interrogatory, you claim any ambiguity in interpreting either the Interrogatory



UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580

4. Robert Robertson
Chief Trial Counsel

600 Pennsylvania Ave., NW
~ Washington, DC 20580

Direct Line: (202) 326-2018

E-Mail: robertson @ftc.gov

October 31, 2008
‘CTRONIC

William L. Rikard, Jr.

Parker, Poe, Adams & Bemstein, LLP
401 South Tryon Street, Suite 3000
Charlotte, North Carolina 28202

Re: _In the Matter of Polypore International, Inc., Docket No. 9327
Dear Mr, Rikard:

This letter is in response to the list of issues and objections regarding the discovery
process in this matter, detailed in your letter of October 29, 2008, Complaint Counsel is
committed to ensuring the fairness of these proceedings and we believe our requests and
associated procedures are consistent with this guiding principle.

Respondent has objected to Complaint Counsel’s request to depose Polypore employees
who have préviously-been the subject of an investigational hearing, Pursuant to Section 3.33(a)
Federal Trade Commission Rules of Practice (“FTC Rules”) Complaint Counsel is entitled to
depose any individual-who can réasonably:beexpected to provide information within the scope
of discovery under section 3.31(c)(1). The-fact that a proposed deponent has been the subject of
an investigational hearing during the investigational phase of an agency matter is no, obstacle to
his being examined during the following adjudicative phase of the same matter. The purpose of
a deposition is fundamentally different from that of an investigation hearing. Where an
investigational hearing is used to gather information and facts that help the agency decide ~
whether a complaint should be issued, a deposition is used to establish testimony which canbe
used to prove allegations-at trial,’ Furthermore, Respondent has. made admissions, submitted

‘Judge Chappell has previously acknowledged this important distinction. See In re
Hoechst Marion Roussel, Inc., Dkt. 9293, Order Denying Respondents Motions for Protective
Orders (Oct. 12, 2000) Attached,



partial (25 percent or more) or total ownership or control between the company and any
other person, . .
“Document,” subject.to definition C below, shall have the broadest meaning that-would

be applicable under the Federal Rules of Civil Procedure, and includes without limitation

computer files; electronic mail messages; electronic correspondence and drafts of
documents; metadata and other bibliographic or historical data describing or relating to
documents created, revised, or distributed on computer systems; copies of documents that
are not identical duplicates of the originals in that person’s files; and copies of documents
the originals of which are not in Respondent’s possession, custody or control.

Unless: otherwise specified, “document” excludes (1) bills of lading, invoices, purchase

" orders, customs declarations, and other similar documents of a purely transactional

nature, ® architectural: plans and engineering blueprints; and (3) documents solely
relating to tax, human resources, workplace ‘safety, or Pension plan‘ issues.

"Relevant product" or “relevant end use” means Dattery separators used for deep-cycle,
uninterruptible power supply (“UPS”), automotive, or motive applications,

“And” and “or” have both conjunctive and disjunctive meanings.

“The transaction”. means Polypore’ 's purchase of 100% of the. afock. of Microporous
Holdings Corporation‘on February 29, 2008.

“Relevant area” means, and information shall be provided separately for, (1) North

America, (2) Asia, (3) Europe, and (4).the world,



INSTRUCTIONS

Produce all documents requésied in native format, including all metadata and all data

supporting Excel worksheets, in which-the file exists within the company.

If any privilege is claimed as a gtound for withholding any document responsive to these

requests, provide a'log of-information necessary for the Commission and the ”

Administrative Law Judge to assess the claim of privilege, in accordance with Rule

3.31)(2) of the FIC Rules of Practice, including without limitation (1)all specific -
~ grounds for the claim of privilege; (2) the date, nature, subject; creaion(s), and all ,

recipient(s) of the withheld document; and (3) each document fequest to which the

withheld docunient is responsive.

“Unless otherwise specified, provide documents generated from January 1, 2003 to-the

Present, —

sIf you-have any questions, please contact Christian H. Woolley at (202) 326-2018.



TAB 1



the volume of separators in each potential ‘or actual sale, the intended end use-application, and

the separator material (e.g. PE, rubber, PE-rubber hybrid).

_ 13, State the name and address of each person who ina entered or attempted to enter

into, or exited from, the development, production, sale, or provision of. cach relevant product *

: from January 1, 1999 to the present, For each such person, identify the relevant product(s) it,

. develops, produces, sells, or provides or has developed, produced, sold, or provided and the date
of the person’ 's entry into or exit from the market, For each entrant, state whether the entrant
developed (or is developing) a new product, licensed a product developed by another’person,
acquired a product from another person or converted assets preciously used for another purpose
(identifying that purpose).

14, For each relevant product, identify or describe (including the bases for your
response): ,

a, requirements for entry: into the production or sale of the product in each relevant
area including, but not limited to, research and development, planning and.design,
production requirements, distribution systems, service requirements, patents,
licenses, sales and-marketing activities, and any necessary governmental and
customer approvals, and the time necessary to meet each such requirement;

b, the discourit rate to use to apsesg the attractiveness of entry; the investments by
type required for entry (including the dollar value of each investmen) the
amount of such costs, the total costs required for entry into the production or sale
of the product; the amount of such costs that would be recoverable if the entrant
were unsuccessful ot elected to exit the tiamafiotine or sale of the product; the

methods and amount of time necessary to recover such costs; and the total sunk



J. Robert Robertson, Esq..
Steven Dahm, Esq.
October 29, 2008

Page 3

interrogatories to 25. The Adininistrative Law Judge in his scheduling order doubled that
number for this matter to 50, including subparts. The interrogatories served by the FTC on
Polypore.are well in.excess.of the 50-interrogatory limitations. By'our cotint, the interrogatories
areiat least 116. In addition; intertogatory number 1 asks for further information with respect to
the CID’s previously propounded to Polypore. If we.add the CID’s to. the interrogatories, the
number is actually in excess of 160. On this basis alone, we believe the interrogatories to be
objectionable.and we ask that thé FTC withdraw these intertogatories and propound a new set
that will comply with the limitations set by the Administrative Law Judge.

We hope that the FTC will reconsider its position and agree to these final points set forth
in this letter. We ask that you-please advise us of the FTC’s position by no later than 12:00 noon
on Friday, October 31, 2008. We-hope that we will not:have té trouble the Administrative Law
Judge with these-issues but are:prepared to do so if-you ate-unwilling to meet us on these issues.
We believe that discovery should be obtained:in a manner to avoid unnecessary cost and expense
tomy ‘client and should riot be:duplicative or cumulative of prior discovery obtained by the FTC,

Sincerely yours,
bed L. Rikard, Jr. ee

WLR/mnb
ce: Brie-D, Welsh, Esq,



place here. Respondent does not suggest that Complaint Counsel’s pre-complaint investigation
must have encompasséd and gathered “all” the details for each and every transaction that might
become an evidentiary item in this litigation, only that in an expedited action it is incumbent on all
parties and counsel to be as efficient as possible. To the extent information may be needed to
“round out, extend, or supply further details” about a transaction or topic such questions may
promote efficiency, but a wholesale free-for-all of any and all topics that have previously been
exhausted in the pre-complaint investigational hearings is burdensome and wasteful and should
have no place in an expedited schedule or under the proposed new tules.> Complaint Counsel’s
deposition of the five previously questioned witnesses should be either denied outright or limited
to information that rounds out, extend or supplies further details of specific topics and not to an
unlimited deposition of previously-ploughed ground.

Complaint Counsel’s written discovery is overbroad, unduly burdensome, harassing, seeks
information not reasonably expected to yield information relevant to this matter, and exposes
individuals who have already submitted to hours and days of deposition to additional annoyance,
oppression and burden. An order limiting the scope of Complaint Counsel’s written discovery and
depositions is appropriate. ,

Complaint Counsel has served sweeping document requests and interrogatories on
Respondent which are — on.their face — dramatically overbroad in violation of the ALJ’s October
22, 2008 Scheduling Order, and,"if read literally, might call for the production of hundreds of
thousands of documents that could have no conceivable relevance to the claims asserted in this
action. Literal compliance with the Complaint ‘Counsel’s written discovery would require
Respondent to review millions of pages of files maintained by individuals employed by dozens of :

5 All-State Indus,, et al, 72 F.T.C. 1020, 1023-24 (Nov. 13, 1967).
4



RETURN OF SERVICE

{herby oily iit cuplcce erghal of tho win .
subpoena foe ena
© inperson.
© by ragistared mal

” © by leaving copy at principal office or place of business, to wit:



UNITED STATES OF AMERICA
BEFORE THE FEDERAL. TRADE COMMISSION

bo ere

PLEASB TAKE NOTICE, that pursuant to Rule’3. 33 (a) of tlie Federar ‘Trade
i Adj €.

Datéd: October 22, 2008

i ‘Robert Robertson

-Bureawof Competition.

Federal Trade Commission

600 Pennsylvania. Avenue, as Ww.



CERTIFICATE OF SERVICE

I hereby certify that on November 3, 2008, I caused to be filed via hand delivery and
electronic mail delivery an original and one copy of the foregoing Motion for Protective Order
Regarding Discovery 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 filed with:

Donald S. Clark, Secretary
Office of the Secretary
Federal Trade Commission
600 Pennsylvania Avenue, NW, Rm. H-135
Washington, DC 20580

secretary@fic.gov

I hereby certify that on November 3, 2008, I served via hand delivery and first-class mail
delivery a copy of the foregoing Motion for Protective Order Regarding Discovery with:

The Honorable D. Michael Chappell
Administrative Law Judge
Federal Trade Commission

600 Pennsylvania Avenue, NW
Washington, DC 20580

I hereby certify that on November 3, 2008, I served via first-class mail delivery and
electronic mail delivery a copy of the foregoing Motion for Protective Order Regarding
Discovery with:

J. Robert Robertson, Esq.
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580
rrobertson@fic.gov

Steven Dahm, Esq.
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580

as gov ban

Eric D. Welsh
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

15



J. Robert Robertson, Esq.

Steven Dahm, Esq. x
October 29, 2008

Page 2

‘Second, you have noticed the depositions for Washington, DC. In the same conversation
in which Robby participated, he agreed to have the depositions of any Polypore employees
proceed in Charlotte. We would be more than happy to make conference room space available
for you and your colleagues here in our offices for those depositions at no charge to the
government. Once we have either agreed upon who will be deposed, or it has been determined,
we will work with you to determine a mutually satisfactory schedule.

Third, as we discussed, we believe it is appropriate that the FTC produce its
documentation that it has received from third-parties, including affidavits, and its investigational
hearing transcripts for those third-parties before we proceed with the depositions of the Polypore
witnesses. We believe that it is only fair given the fact that you have had months to review those

materials and shape your case. While we may not be able to show the documents or the’

testimony to our clients under the Protective Order, we are entitled to receive that information so
that we can defend depositions in a manner appropriate for this case. Polypore is entitled to a
level playing field in discovery in this.case, If you still disagree, please let us know immediately.

On a related matter, however, I am concerned with Steve’s comment today that he has -

not-yet contacted all third-parties with respect to thé disclosure of their documents and
information in this matter under the protective order and has no obligation to produce any of
these materials to us absent a formal request. It was certainly our expectation, based on the
representation made in the initial disclosures made to the Administrative Law Judge, that you
would have promptly contacted these third: parties oncé:the Protective.Order .was.entered, which
was one week ago. - In addition, we do take issue. with your statement that you are not required to
produce the third-party documents’ in the investigational hearings: to ‘us.absent’ a document
request, . In fact, in the initial disclosures filed by Complaint Counsel with the Administrative
Law Judge, Counsel stated “Complaint Counsel will provide copies of third-party’s
documents and materials 10 days after such time as the Administrative Law Judge has entered
a protective order in this matter and the third-parties who submitted the documents. have been
apprised of their rights under the protective order.” Complaint Counsel’s Initial Disclosures to
Respondent Polypore International, Inc:, p. 3.(emphasis added). We reiterate our position that
the FTC should have already advised third ‘parties of the protective order and should disclose to
us the investigational hearings and documents within 10 days of the: issuance of the ALJ’s
protective order. In order that there’be no confusion-on the point, and although we do not believe
this-is necessary, we will be forwarding to: you later today our discovery requests which
specifically request the production.of ‘these documents to-us.

Finally, we believe it is appropriate to limit the length of the depositions to seven hours
each pursuant to the Federal Rules of Civil Procedure. Robby: has agreed-to this limitation for
fact witnesses, We agree that we will discuss expert witnesses when everyone, knows more
about them. . .

With respect to the interrogatories served by the FTC, we are greatly troubled by. the
number of interrogatories tendered-to Polypore. As you know, the FTC rules limit the number of



The Honorable D. Michael Chappell
Chief Administrative Law Judge (Acting)
Federal Trade Commission



Complaint Counsel’s strategy is to cause Polypore as much financial pain as possible in the
discovery process in order to force capitulation. As noted by Commissioner Rosch, in addressing
the proposed changes to the FTC Rules, a litigant is not to be subjected to oppressive proceedings
that are unduly expensive and burdensome and outcome determinative due to such excesses:

First, in merger cases, protracted part 3 proceedings may result in the parties

abandoning transactions before their antitrust merits can be adjudicated.

Second, in all antitrust ‘cases, protracted Part 3 proceedings may result in

substantially increased litigation costs for the Commission.and for the clients whose

transactions or practices are challenged. More specifically, protracted discovery

schedules and pretrial proceedings. may be good for the litigators, but they can

result in nonessential discovery and motion practice that can be very costly to both

the Commission and those clients.’
While Commissioner Rosch was addressing the costs and determinative nature of the proceedings
in the context of the length of time for Part 3 cases, the principle applies equally to the abusive
discovery tactics being employed here by Complaint Counsel. Indeed, in arriving at an agreed-to
schedule for this case with Complaint Counsel, Respondent relied on statements made by
Complaint Counsel that its discovery of Polypore would be targeted, narrow and specific, “rifle
shots,” rather than the shotgun approach used by Complaint Counsel here. If Respondent had
known that Complaint Counsel intended to redo the extensive discovery already taken, it would
have strenuously sought a different schedule than cutting discovery off at February 13, 2009, and
holding the hearing in this matter on April 14, 2009.

Given the limited time for discovery under the expedited schedule and consistent with the
intent of the proposed FTC rule changes to “improv{e] efficiency and timing of administrative

litigation,’ subjecting five people to questioning on the same topics with no limitation has no

3 Reflections on Procedure at the Federal Trade Commission. Remarks of J. Thomas Rosch, Commissioner, Federal
Trade Commission. ABA Antitrust Masters Course IV. September 25, 2008..

“Td.



wh a

UNITED STATES OF AMERICA
"BEFORE THE FEDERAL TRADE COMMISSION

Inthe Matter of ;
Docket.No. 9327

Veen

Polypore International, Inc.,
a corporation. j :

COMPLAINT. COUNSEL'S FIRST SET OF DOCUMENT REQUESTS 70
RESPONDENT POLYPORE INTERNATIONAL, INC.

. Pursuant to Rules 3. 3. and 3, 37 of the ‘Rules of Procedure of the Federal Trade ©
(Commission CFEC Rules:of Practice” ”), Respondent, Polypore International, Inc., is hereby
. requesied to produce the following documents for inspection and copying at-601 New Jersey
: Avene NW, Washington, be 20580, within twenty (20) days. Objections to arly request must
be made, within ten (10) days from the date of service,
, : DEFINITIONS
- A “Polypore,” “the company,” “you,” “your,” and like terms mean Resporident, its :
7 domestic and foreign parents, predecessors, divisions, subsidiaries, affiliates,
partnerships, arid joint ventures, and all directors, officers, employees, agents and ~ ;
a ‘representatives of the foregoing. “Subsidiary,” “affiliate,”-and “Joint venture” refer for
- this purpose to any person in which there is partial (25 percent or more) or total
ownership or conitrol. between the company and ‘any other person. Unless otherwise
specified, “Daramic” means ‘Daramic, ic and shall be ‘syhonymous with Polypore.”
; B. “Microporous” means Microporous Producis LP., its domestic and foreign parents,

. predecessors, divisions, subsidiaries, affiliates, partnerships, and joint ventures; and all

directors, officers, employees, agents and representatives \Of the foregoing. “Subsidiary,”

“affiliate,” and “joint venture” refer for this purpose to any person in which there is



g. depreciation;
h. amortization;
i. taxes; and:

je. all other costs. ~

5. Stateall sales for Polypore, Daramic, and Microporous by each relevant product in ;

each relevant area from January 2003 to the present (and projecting forward for all available
years) organized as follows: : ,

a. company (i.e. Polypore, Daramic, or Microporous);

db. plant; :

c. line;

d. product code (which Polypore terms “Ttem”);

e, product name (which Polypore terns Description”);

f, product categories (product groupings, including, but not limited to, broadly
defined categories such as “PE-rubber hybrid” and narrowly defined categories
such as “CellForce”); :
& customer nang;

h. customer country; ©

i. customer’s relevant area;
j. customer parent;

k, relevant product;

1, year'sale took place;

m, month sale took place;



information which it obtained from third parties during its investigation.’ Polypore, of course, is
aware of what it provided to the FTC, at considerable cost and expense, leading up to this case:

° Polypore produced over 1.1 million pages of documents to the FTC in response to
its discovery requests,

. Polypore responded to 44 CID requests,

. After having produced these documents and having responded to the CID, Polypore
made five witnesses available for examination by the FTC in investigational
hearings. Two of those witnesses (Messrs. Tucker Roe and Timothy Riney) were
deposed over the course of two days and one witness (Mr. Pierre Hauswald) was
deposed for nearly 11 hours. The transcripts of the examinations of these witnesses
exceed 1660 pages. Each witness was examined on the issues that came to serve as
the basis for the allegations of the Complaint. H

While Complaint Counsel has chosen to ignore much of what Polypore provided to the FTC in this
discovery in crafting its Complaint, the fact remains’ that the FTC has already engaged in
extensive, one-sided discovery of Polypore on the very issues identified in the Complaint.

Despite all of this discovery of Polypore, Complaint Counsel has decided to extend its
fishing expedition, seeking vast quantities of documents and responses to oppressive
interrogatories and demanding examinations of the same five witnesses that they spent over 46
hours examining only months before on the very same issues set forth in the Complaint, What is

even more alarming is the fact that Complaint Counsel has violated the terms of the Administrative

Law Judge’s rules limiting the number of interrogatories to 50 including subparts. Apparently,

? See Letter of William L. Rikard, Jr., dated October 29, 2008, at p. 2 (“E.am concerned with Steve’s comment today that
he ‘has not yet contacted all third-parties with respect to the disclosure of their documents and information in this matter under the
protective order and has no obligation to produce any of these materials to us absent a formal request. It was certainly our
expectation, based on the representation made in the initial disclosures made to the Administrative Law Judge, that you would have
promptly contacted these third parties once the. Protective Order was entered, which was one week ago. In addition, we do take
issue with your statement that you are not required to produce the third-party documents in the investigational hearings to us absent
a document request. In fact, in the initial disclosures filed by Complaint Counsel with the Administrative Law Judge, Counsel
stated “Complaint Counsel will provide copies of third-party’s documents and materials 10 days after such time as the
Administrative Law Judge has entered a protective order in this matter and the third-parties who submitted the documents have
been apprised of their rights under the protective order.” Complaint Counsel’s Initial Disclosures to Respondent Polypore
International, Inc., p. 3 (emphasis added).”).

2



UNITED(STATES.OF-AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of
Docket No. 9327

)
)
)
Polypore International, Inc. )
a-corporation. )

.)

PLEASE TAKE NOTICE, that pursuant to Rule 3:33(a) ofthe Federal: Trade
Commtission’s Riiles:of Practice for Adjudicative Proceedings (16 C.F:R. §§-3.33(a)), Complaint
Counsel will take the deposition of S. Tucker Roe. This deposition. will be conducted before a
person authorized by law to administer oaths. . The téstirhony will be recorded by stenographic
and video meatis,. The testimony will be taken at the offices of the Federal Trade Commission,
601 New Jersey Avenue, NW, Washington, DC 20580 in Room 6201 on-November 3, 2008.

Dated: October 22, 2008

J, Robéit Robertson
Bureau of Competition

Federal, Trade. Commission

600 Pennsylvania Avenue, N.W,
Washington, D.C. 20580



b. name;

c. different SKUs;

d. material used (e.g. PE, ribber, PE/rubber hybrid); .

e. end use; a

f. purchasing customer; and

g cexplain in detail systems for the coding of products whether as part of the SKU or
product code or any other product designation scheme, :

33. Identify all supply agreements of greater-than two Q) years in duration: between
Daramic, or Polypore and any customer or facility in North America for any relevant product.
For each supply agreement identified, state:

a. the customer or facility that is or was a party to the agreement with Daramic or
Polypore;

b. when it was entered into and when it expired or, if the agreement is still in effect, ~
when, itis due.to expire; and os ,

¢. which relevant product or products are covered by the agreement, with the
associated annual volumes stated separately in square meters and dollars. For
such volumes supplied in 2008, state attual volumes on a year-to-date basis. For
such volumes to be supplied in the remainder of 2008, and any future years under

- agreements still in effect, provide reasonable estimates and describe the method .

by which those estimates were calculated. "

34, . Fdr each relevant product, for each SKU, and for each relevant area, from 1997 to
the present identify: : ;

a the quarter and year in which the company first began to develop or test, the



16.’ All documents relating to Daramic’ 8; Microporous? 8, or any othet person's prices

for relevant products, inchoding without ination pi priciig plans, spHiing policies ;

: piidiag forests, pricing strategies, reing analysse? ‘mailer price indises or periodic tmmarket
prices, and pricing décisions.
17, Alltax returns or both: Daramic and Microporous) for each of the last five (5)
calendar years.

18. All Profi it and loss statements:(for both Daramic and Microporous) for the last

five (5)calendar years i in the most detailed level. maintained.

__ URobert ‘Robertson
“Complaint Counsel
Bureau of Competition
~ Federal Trade Commission
600 Pennsylvania Ave, NW (H-374)
Washington; DC 20580
Telephone: (202): 326-; 2008
Facsimile: ae 326-2884"



costs entailed in satisfying the requirements for entry;

¢,

possible new entrants into the manufacture or sale of the product in each relevant

area;

d, the minimum viable scale, the minimum and optimum plant size, production line
size, capacity utilization rate, production volume, requirements for multi-plant,
multi-product, or vertically integrated operations, or other factors required to
attain any available cost savings or other efficiencies necessary to compete
profitably in the manufacture or sale of the product, and ;

e. To the extent that a new entrant located in Asia would incur any additional costs
or requirements to enter the North American market for any relovant product,
identify those additional costs or requirements. :

15, For both Daramic arid Microporous, identify the costs associated with shipping the ;
relevant product worldwide from 2005 to the present (and projecting forward for all available

years). This information should be reported in-dollars, monthly by company, country of origin ,

-plant, and relevant product, as shipped to North America (specify destination country and port).

Cost information should cover the total costs associated with shipping the relevant product, Cost
information should cover all fixed, variable, and sunk (if applicable) costs (and should be
categorized as such). Information should be broken out into the following subcategories (but not
limited to these subcategories): .°
: a. freight on board;
b. customs;
¢. insurance; and

d, all other costs including surcharges, taxes nd tariffs, including, but not limited



7

has been noticeably one-sided discovery. To permit Complaint Counsel to proceed with
examination, especially since it has chosen to delay providing notification to these third parties,
provides an unfair advantage to Complaint Counsel that is prejudicial to Respondent and the
witnesses. This potential for prejudice, oppression and harassment entitles Respondent to a
protective order postponing the depositions until at least seven (7) business days after the third-
party documents have been produced, or in the alternative preventing Complaint.Counsel from
using such documents in any deposition until at least seven (7) business days after the documents
to be used have been produced.
CONCLUSION

Complaint Counsel’s discovery tactics are unreasonable and inconsistent with the FTC
Rules and the Scheduling Order in this case. This overreaching, harassing and overly burdensome
discovery seeks documents and information that is not likely to yield information relevant to the
allegations of the complaint, to the proposed relief, or to the defenses-of Respondent. For the
reasons set forth above, and the interest of judicial efficiency and economy, this Court should limit
and deny Complaint Counsel’s invalid and improper discovery. , ,

RRR RRR RR REE RR He
Respondent hereby certifies that it has conferred with Complaint Counsel in a good faith

attempt to resolve the issues relating to the issues set out in this motion. See letter of William L.

13 >



- UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

Inthe Matter of
Docket No, 9327

Polypore International, Inc.
a corporation:

Le

PLEASE TAKE NOTICE, that pursuant to Rule 3.33(a) of the Federal Trade
Commission's Rules of Practice for Adjudicative Proceedings (16 C.F.R. §§ 3.33(a)), Complaint
Counsel will take the deposition of Timothy-Riney. This deposition Will be conducted before a
person authorized by law to:ddminister oaths. ‘The testimony will be recordéd by stehographic
and videomneans. The testimony will ‘be'taken at the. offices of the Federal Trade:Commission,
601 New‘Jersey Avenue, NW, Washitigton; DC:20580'i'Roém: 6201 ot’ November 4, 2008.

Dated: October 22; 2008

os
J-Robert-Robertson
Bureaw of Competition

Federal Trade Cornmission

600 Pennsylvania Avenue, N,W.



UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

Docket No. 9327

Polypore International, Inc.
a.corporation.

eer

NOTICE OF DEPOSITION OF HARRY SEIBERT.

PLEASE TAKE NOTICE, that pursuant to Rule 3.33(a) of the Federal Trade
Commission's Rules.of Practice.for Adjudicative Proceedings:(16 C:F.R,.§§ 3.33(a)), Complaint
Counsel will take the:deposition-of Harry Seibert. This deposition will-be-conductéd before:a
person authorized by-law to administer oaths. Thé testimony. will be recorded by stenogtaphic
and video mearis. The'testimony:will be taken at the offices of the Féderal.Tradé Commission,
601 New Jersey Avenue, NW, Washington, DC '20580 in;Room 6201 on November]4, 2008.

Dated: October. 22, 2008 Respectfully submitted,

J, Robert Robertson
Bureau of Conipetition

Federal Trade: Commission.

_, 600 :Peritisylvania Averine; N.W.
Washington, DiC. 20580 ©



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 a Protective Order, and the Court being
fully informed, itis this day of , 2008, hereby

ORDERED, that the Motion is GRANTED; and it is further ORDERED, that:

1. Complaint Counsel re-serve its First Set of Interrogatories to Respondent Polypore
International, Inc., limiting the number per the Scheduling Order in this matter to 50
interrogatories, including subparts;

2. Complaint Counsel limit its definitions in the interrogatories to those parties and
related companies that are relevant to the matters at issue in the Complaint, relief sought and
Respondent’s defenses, and define terms such that they :do not expand the information sought or

- exceed the number of permitted interrogatories beyond the limits set out in the Scheduling Order;

3. The depositions of Steve McDonald, Michael Gilchrist, Timothy Riney, S. Tucker
Roe and Pierre Hauswald be [quashed], [or limited to questions regarding issues and topics that
were not previously covered in the pre-complaint investigational hearings of those individuals, or
are simply intended to supplement or round out previously asked questions or topics of inquiry];
and

4 To the extent Complaint Counsel intends to use any ‘third-party documents in any
noticed deposition, for preparation of questions, or to question a deponent, the depositions shall be

postponed until seven days after the delivery of those documents to counsel for Respondent.