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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of

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)

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Docket No. 9327

Polypore International, Inc.,

a corporation. PUBLIC DOCUMENT

RESPONDENT'S STATUS REPORT ON RESPONDENT'S MOTIONS TO COMPEL

EXIDE TECIIOLOGIES AND ENTEK INTERNATIONAL, LLC PURSUANT TO

SUBPOENAS DUCES TECUM

Pursuant to the Order dated January 30, 2009, Respondent hereby fies its report on the

status of the production of documents by Exide Technologies ("Exide") and ENTEK

International, LLC ("ENTEK") and the pending motions to compel fied by Respondent with

respect to such subpoenas.

i. STATUS OF EXlDE'S PRODUCTION OF DCOUMENTS

. -

On November 10, 2008, Respondent served a Subpoena Duces Tecum on Exide (the

"Exide Subpoena"). The Exide Subpoena seeks the production of documents from Exide on

numerous issues vital to Respondent's defense in this matter. On January 12, 2009, following

Exide's production of only.six pages of docuients,RespOndent served a motion to compel

Exide to produce documents reauested bY the Exide Subpoena. Exide has responded to that

motion. In its motion to compel, Respondent noted thafin light of the deadlines it faced for

discovery and the issuance of expert reports, Respondent-had served subpoenas ad testifcandum

on Exide and several of its employees, inchidiiig Mr. Pradeep Menon, Douglas Gilespie, Alberto

Perez and Gordon DIsh for depositions on January 14~i6, 2009 and that Exide's counsel

requested that those depositions be rescheduled to the week of January 19, 2009. In its motion,

Respondent also noted "it is of paramount importce that the documents requested by

Respondent's subpoena duces tecum be produced immediately in order to allow Respondent to

PPAB 1529464vl
properly review and analyze such documents in preparation for the noticed deposition

examinations." Memorandum in Support of Respondent's Motion to Compel Exide

Technologies to Produce Documents Requested by Subpoena Duces Tecum, p. 3. The Exide

depositions went forward in Georgia on Januar 21, 22 and 23,2009.

Following the submission of the Exide motion, Exidehas produced 4,935 additional

documents with the last installment of over 3,000 pages being sent by letter dated January 19,

2009, which was not received by counsel for Respondentuntil January 20, one day before the

start of the depositions in Georgia. See Exhibit A hereto. Respondent had little opportunity to

review any of these Exide documents before traveling to Georgia for the depositions.

Respondent has not received any production from Exide since this submission on Janua 19.

Exide did nOt state in its letter of Jáimar 19 whether its production was complete. On

February 2, 2009, counsel for Respondent spoke over the telephone with counsel for Exide

regarding the status of its productiÓn. Counsel for RespOndent was advised by counsel for Exide

that Exide's production was not complete, that the prOduction would continue to be made and it

was anticipated that the production would be complete sometime between February 15 and

February 28, 2009.

Exide's rollng production has beenprejudiciá1 to Respondent. Exide produced

documents late and hàs not yet completed its produètion. Respondent did not have the

opportunity to review the overwhelming majority of Exide's production to date prior to the

depositions due to Exide's producing the documents to Respondent virtually on the eve of the

depositions in Georgia. Of course, Respondent stil does not have many documents which

Exide's ~ounsel has vaguely represented will be produced sometime in the second half of

February 2009. Moreover, virtually all of the Exide witnesses were unable to answer questions

fully at the depositions. Respondent did not have necessary documents available to it from Exide

\

2

PPAB 1529464,,1
to be able to adequately examine the witnesses during these depositions and to use those

documents to tr to refresh recollections. The situation has resulted in incomplete discovery to

Respondent's prejudice which may necessitate fuher motion practice.

Exide's documents and deposition testimony remain important to the development of

Respondent's defense in this matter and the preparation of its expert report's. As the schedule

curently exists, discovery ends Februar 14 and Respondent's expert reports are due on

Februar 20. As it stands now, only incomplete evidence has been gathered from Exide and

every indication is that it will not be complete until after the discovery deadline and after the

deadline for expert reports. Moreover, to the extent fuher examination wil be necessar of

Exide witnesses with respect to this overdue production, that will not occur before the current

deadlines given Exide's intended schedule.

Respondent respectfully submÌts that its motion to compel Exide to produce documents

has not been rendered moot, that Respondent's motion should be granted and appropriate relief

should be afforded Respondent including the resumption of depositions of Exide witnesses to

examine these witnesses on subjects coverëd by thë documents that were produced on Januar 19

or thereafter.

II. STATUS OF ENTEK PRODUCTION

On November 10, 2008, Res:pondent served its Subpoena Duces Tecum on ENTEK (the

"ENTEK Subpoena"). As with the Exide Subpoena, the ENTEK Subpoena requests documents

vital to Respondent's defense in this matter. Having received few documents in response to the

subpoena, Respondent on January 12, 2009 served a motion to compel ENTEK to produce

documents. ENTEK has responded to that motion. S1nce.the filing of that mOtion, ENTEK has

produced 3,763 documents to Respondent. Respondent is in the process of reviewing ENTEK's

3

PPAB 1529464vl
production and has not yet determined the completeness of its production. ENTEK' s counsel has

advised that it considers the production to be complete.

Respondent has scheduled the deposition of Daniel Wertz of ENTEK for February 10,

2009. One of the subjects to be examined at ths deposition will be ENTEK's production of

documents under the subpoena. It is believed that at that deposition, Respondent will be able to

verify the completeness of ENTEK's production. Respondent therefore, with respect to its

motion to compel ENTEK, respectfuly requests that the motion be held in abeyance pending the

outcome of that deposition.

CONCLUSION

Given the many difficulties encountered by Respondent with third paries which has led

to the filing of the within motions as. well as several other inotions, some of which remain

pending!, and certain difficulties experienced in obtaining discovery from Complaint Counsel,

Respondent has moved to amend the scheduling order to permit a slight adjustment to the

remaining deadlines and hearing date.2 Respondent respectfully submits that even more reason

exists to grant Respondent's pending motiOn -to amend the scheduling order in light of the

continuing difficulties experienced with Exide, noted above, and the fact that significant

discovery wil not. be completed before the discovery cutoff and date for submission of expert

1 In addition to the within motions, Respondent opposed EnerSys's motion to limit and for attorney's fees, which

motion Judge Chappell denied by Order dated Januar 15, 2009. Respondent has yet to receive any. documents from EnerSys

pursuant tö the subpoena. Respondent also served a motion to cOmpel The Moore Company to produce documents in response to

its subpoenii and has opposed a motion to limit fieQ by the Moore Company with respect to the subpoena. Those motions

remain pending and Respondent has not re~eivedany döcuments from The Moore Company. Finally, Eiitekhas sought to limit

Respondent's depositions of Rob Keith and Mr. Fraser-Bell by filing motions to quash. Respondent has opposed Entek's

motions to quash, which also remains pending.

2 Complaint CounSel has opposed Respondent's iIotion to amend the schediilitg order and in the process, has made

several misleading and incorrect statements. Among other incorrect statements is Complaint Counsel's assertion regarding

Parker Poe's involvement in the investigational phase of this matter. Hogai & Harton, not Parker Poe, represented Respondent

during the investigational phase. Parker Poe had a very limited role of interviewing certin custodians of documents to collect

documents but did not produce or review the documents. Complaint Counsel also wrongly states that a one-month extension

would somehow harm consumers withOllt offering a shred of support for this accusation and whieh ignores the fact that the socalled price increase was actually simply an energy surcharge paSsed on to all customers. Finally, Complaint Counsel incorrectly

suggests that Rule 3.51's current provision that an initial decision be fied within one year of issuance of the Complaínt is

somehow applicable to this matter which Was fied long before the amendment of the Rule. Even if applicable, the Complaint

4

PPAB 1529464,,1
report, including discovery of Ms. Tracy Tang, formerly with Anpei in Taiwan, scheduled for

Februay 24, 2009 and Complaint CounsePs deposition of Nippon Steel & Glass in Osaka Japan

on Februar 27,2009.

For the foregoing reasons, Respondent respectfully requests that the Cour (1) grant

Respondent's motion to compel Exid~.;, Technologies, order that Exide produce all documents

responsive to the Exide Subpoena. to Respondent immediately and provide Respondent such

other and fuer appropriate relief including ordering the resumption of the Exide depositions of

Exide and Messrs. Ulsh, Gilespie; Menion and Perez as to Exide documents produced on or

after January 19, 2009 and (2) hold the motion to compel of ENTEK International, LLC in

abeyance pending the outcome of the deposition of Mr. Daniel Wertz on February 10, 2009.

Respondent has been moving forward dilgently with discovery and other work in preparng for

the trial in this matter.

, .~ ~

was fied on September 9, 2008. A one month extension on the hearing to May 14,2009, even with a four week hearing, would

not jeopardize anyone-year deadline for rendering a decision.

5

PPAB 1529464vl
Dated: February 3, 2009 Respectfully Submitted,

Wi 1 .~d,Jr. l¡ h'iA Eric D. Welsh

PARKR POE ADAMS & BERNSTEIN LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 372-9000

Facsimile: (704) 335-9689

willamrikardrÐparkerpoe.com

ericwelshrÐparkerpoe.com

Attorneys for Respondent

PPAB 1529464vl
CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2009, I caused to be filed via hand delivery and

electronic mail delivery an original and two copies of the foregoing Respondent's Status Report

on Motions to Compel Exide Technologies and ENTEK International, LLC, and that the

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

original signature is being fied with:

Donald S. Clark, Secretary

Office of the Secretary

Federal Trade Commission

600 Pennsylvana Avenue, NW, Rm. H-135

Washington, DC 20580

secretarêftc. gov

I hereby certify that on Februar 3, 2009, I caused to be served one copy via electronic

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

Report on Motions to Compel Exide Technologies and ENTEK International, LLC upon:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

oaliêftc.gov

I hereby certify that on February 3, 2009, I caused to be served via first-class mail

delivery and electronic mail delivery a copy of the foregoing Respondent's Status Report on

Motions to Compel Exide Technologies and ENTEK International, LLC upon:

1. Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

rrobertsonêftc.gov

Darius Ogloza, Esq.

LATHAM & WATKINS, LLP

505 Montgomery Street, Suite 2000

San Francisco, California 94111-6538

DARIUS.OGLOZAêL W.com

PPAB 1529464vl

Steven Dah, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

sdahêftc. gov

Donald 1. Russell, Esq.

Robbins, Russell, Englert, Orseck,

Untereiner & Sauber, LLP

1801 K Street, N.W. Suite 411

Washington, DC 20006

drussellêrobbinsrussell.com
Brian R. Weyhrich

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 335-9052

PPAB 1529464vl
EXHIBIT A

r

(.
ROBBINS, Russ .., ENGLERT, ORSECK, UNTERElk .A & SAUBER LLP

1801 KSTREET, NW., SUITE411

WASHINGTON, D.C. 20006

PHONE (202) 775-4500 rfl.: r(lo fQ\Vl

FAX (202) 775-4510 ~1~\WlJ-' U

www.robbinsrussell.com

Donald J. Russell (202) 775-4502

drusseii~robblnsrussell.com

January 19, 2009

VIA FEDEX

Eric D. Welsh

Parker, Poe, Adams & Bernstein L.L.P.

Three Wachovia Center, Suite 3000

401 South Tryon Street

Charlotte, N.C. 28202-1935

Re: Subpoena Duces Tecum to Exide Technologies, Inc.

Enclosed in response to the subpoena duces tecum issued to Exide Technologies in

connection with In re Polypore International, Inc. (FTC Docket No. 9327) is a CD containing

ETl- 0001863 through ETI_ 0004931. We are providing TIFF images with matching text files,

native Excel fies, a .CSV data load file, and .mI and .LOG image load fies. The images and

disk have both been labeled "CONFIDENTIAL-FTC Docket No. 9327."

Please contact me if I may be of assistance with this data.

Sincerely,

~AdA'

Dana i. Wesley ~ '--

Litigation Support Coordinator

p.-sarti&&ro bbil1srussell.com

Tel: 202.775.4497

cc: D. Russell

B. Hatcher 'I-i

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