___________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

04 06 2012 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

) 

In the Matter of ) PUBLIC DOCUMENT 

) 

MCWANE, INC., ) 

a corporation, and ) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership. ) DOCKET NO. 9351 

) 

__________________________________ ) 

RESPONDENT McWANE, INC.’S OPPOSITION TO SIP INDUSTRIES’ MOTION TO 

QUASH SUBPOENA DUCES TECUM 

Respondent McWane, Inc. (“McWane”) respectfully requests that the Court deny NonParty SIP Industries’ (“SIP”) Motion to Quash McWane’s Subpoena Duces Tecum.

1 SIP’s 

motion contains only boilerplate assertions that McWane’s Subpoena is “unreasonable, unduly 

burdensome, and requests proprietary or confidential information” that the January 5, 2012 

Protective Order is “not sufficient under the circumstances” to protect. (SIP Mot. at 4, 9.) SIP 

has failed to meet its “heavy burden” to show that McWane’s subpoena should be quashed, and 

therefore SIP’s motion should be denied. 

BACKGROUND 

On February 17, 2012, McWane served SIP with a subpoena duces tecum (“Subpoena”) 

that requested SIP to produce documents related to its sales and purchases of Ductile Iron 

Waterworks Fittings (“DIWF”).

2 SIP filed a motion to quash McWane’s Subpoena (“SIP 

Mot.”) on March 7, 2012. In order to allow McWane and SIP additional time to negotiate the 

scope of McWane’s subpoena, this Court granted McWane’s two unopposed motions to extend 

time to respond to SIP’s motion to quash, on March 20, 2012 and April 2, 2012, extending the 

1 McWane and SIP’s remaining disagreement is with respect to Requests 2, 3, and 5 only. 2 SIP received service of the Subpoena via registered mail on February 22, 2012. 

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time for McWane to respond to April 6, 2012. The parties have been negotiating in good faith 

since that time in an attempt to come to an agreement, and have narrowed the scope of the 

Subpoena significantly, but have been unable to reach a final agreement. Specifically, SIP and 

McWane have been unable to reach an agreement regarding Requests 2, 3, and 5, which read: 

Request No. 2: Documents sufficient to identify your purchases of all DIWF products 

from any Person from January 1, 2003 to the present including, but not limited to the 

Person from whom you purchased DIWF and the volume, units, SKU number, diameter, 

size, configuration, coating, finish, price, discount, or rebates attributable to your 

purchases.” 

Request No. 3: Documents sufficient to identify your sales of all DIWF products from 

January 1, 2003 to present including, but not limited to the Person to whom you sold 

DIWF, the volume, units, SKU number, diameter, size, configuration, coating, finish, 

price, discount, and rebates of your sales. 

Request No. 5: All Documents constituting or relating to communications between you 

and any Person relating to a proposed or actual sales price for DIWF, including any 

discounts or rebates, between January 1, 2003 to the present. 

(See SIP Mot. Ex. A.) 

McWane has since agreed to narrow Requests 2 and 3 to only seek summary level sales 

and purchase data, from January 1, 2007 to present. McWane has also agreed to narrow Request 

5 to only seek emails from one custodian, the Vice President of Business Development at SIP, 

from January 1, 2007 to present. SIP continues to object to producing these documents on the 

grounds that the requests are “unreasonable, unduly burdensome, and requests proprietary or 

confidential information” that the January 5, 2012 Protective Order is “not sufficient under the 

circumstances” to protect. (SIP Mot. at 4, 9.) 

ARGUMENT 

SIP’s motion to quash should be denied for two reasons. First, SIP has not met its “heavy 

burden” of demonstrating that McWane’s Subpoena seeks documents that are unreasonable or 

unduly burdensome. To the contrary, the information sought from SIP, a competitor of 

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FTC Docket No. 9351 

McWane, Inc.’s Opposition to SIP’s Motion to Quash 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

McWane’s, is directly relevant to McWane’s defenses to Complaint Counsel’s allegations in this 

case, and McWane has been reasonable in narrowing its requests to prevent any undue burden. 

Second, SIP’s objection to producing proprietary or confidential information on the ground that 

the Protective Order is “not sufficient under the circumstances” is unfounded and unsupported. 

A. The Law Strongly Favors Discovery of Relevant Evidence 

A party moving to quash a subpoena has the burden to show the subpoena is improper. 

See In the Matter of Intel Corp., No. 9341, 2010 WL 2143904 at *3 (F.T.C. May 19, 2010) 

(Chappell, J.). Due to the strong public policy in favor of broad discovery, that burden is a heavy 

one. Id. (“The law is clear that a recipient of a subpoena duces tecum issued in an FTC 

adjudicative proceeding who resists compliance therewith bears a heavy burden.”); see also 

Flowers Indus., Inc., No. 9148, 1982 FTC LEXIS 96, at *12 (F.T.C. Mar. 19, 1982). “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.” 16 C.F.R. § 3.31(c)(1). “The burden of showing that the request is unreasonable is 

on the subpoenaed party.” FTC v. Dresser Indus., 1977 U.S. Dist. LEXIS 16178, at *13 (D.D.C. 

1977) (internal quotations omitted). 

B. McWane’s Narrowed Subpoena Is Reasonable and Seeks Relevant Documents 

SIP asserts that production of the requested documents from a “non-party” is 

unreasonable and unduly burdensome, but has failed to make any concrete showing of why 

McWane’s significantly narrowed document requests are unreasonable, or how this amounts to 

undue burden sufficient to quash the Subpoena. 

First, the documents McWane seeks are directly relevant and necessary to defend against 

Complaint Counsel’s broad allegations and claimed relief. The Administrative Complaint 

alleges, among other things, that McWane engaged in anticompetitive practices to “acquire, 

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FTC Docket No. 9351 

McWane, Inc.’s Opposition to SIP’s Motion to Quash 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

enhance or maintain its monopoly power in the relevant domestic DIPF market.” (See Compl. ¶¶ 

69-70.) As a competitor to McWane’s, SIP’s purchases and sales of DIWF in the industry are 

directly relevant to Complaint Counsel’s allegations of monopolization by McWane, and 

McWane’s defenses. See In the Matter of N. Tex. Specialty Physicians, No. 9312, 2004 WL 

527340 at *2 (Jan. 30, 2004) (finding competitors’ business documents “crucial” to antitrust 

cases); Service Liquor Distributors, Inc. v. Calvert Distillers Corp., 16 F.R.D. 507, 509 

(S.D.N.V. 1954) (finding competitors’ documents “not only not immune from inquiry, but . . . 

the source of the most relevant evidence”). 

Second, SIP has not demonstrated undue burden in producing these documents. The 

summary level sales and purchase data McWane now seeks in response to Requests 2 and 3 can 

be easily gathered by SIP and produced. McWane’s significantly narrowed Request 5 is now 

only seeking emails from one custodian, and SIP cannot claim that collecting emails from a 

single person in response to one request is unduly burdensome. 

Finally, SIP cannot use its status as a “non-party” to justify its refusal to comply with the 

Subpoena. SIP Mot. at 5. This argument has already been rejected in FTC proceedings. See, 

e.g., In re Polypore Int'l, Inc., 2009 FTC LEXIS 41, at *2-*5 (Jan. 15, 2009). Non-parties, like 

parties, must show that compliance with the subpoena would “unduly disrupt or seriously hinder 

normal operations of a business.” In re Rambus, Inc., No. 9302, 2002 FTC LEXIS 90, at *9 

(Nov. 18, 2002). McWane’s remaining requests at issue would take minimal time and effort to 

collect. Accordingly, SIP has provided no basis for the Court to find that the burden is so 

substantial that it outweighs the strong policy in favor of broad discovery and McWane’s need 

for the information relevant to its defenses in this case. 

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C. The January 5, 2012 Protective Order Protects SIP’s Confidential Information 

Finally, SIP’s claim that the Protective Order in this case is “not sufficient” to protect its 

information from disclosure is unfounded. As McWane’s counsel informed SIP, the Protective 

Order mandates that confidential documents can only be disclosed to: 

“(a) the Administrative Law Judge presiding over this proceeding, personnel assisting the 

Administrative Law Judge, the Commission and its employees, and personnel retained by 

the Commission as experts or consultants for this proceeding; (b) judges and other court 

personnel of any court having jurisdiction over any appellate proceedings involving this 

matter; (c) outside counsel of record for any respondent, their associated attorneys and 

other employees of their law firm(s), provided they are not employees of a respondent; 

(d) anyone retained to assist outside counsel in the preparation or hearing of this 

proceeding including consultants, provided they are not affiliated in any way with a 

respondent and have signed an agreement to abide by the terms of the protective order; 

and (e) any witness or deponent who may have authored or received the information in 

question.” 

See, January 5, 2012 Protective Order, at ¶ 7. 

This Court’s Order is more than sufficient to protect the confidentiality of any document 

that SIP identifies as confidential, and courts routinely order competitors to produce confidential 

documents in antitrust cases. See Service Liquor Distributors, Inc., 16 F.R.D. at 509. SIP has 

made no specific showing of how the particular Protective Order in this matter is “not 

sufficient.” Thus, SIP’s argument that this Court’s Protective Order is insufficient should be 

rejected, and SIP should be ordered to produce the limited documents that remain at issue. 

CONCLUSION 

For the reasons set forth herein, Respondent McWane respectfully requests that the Court 

deny SIP’s motion to quash and order it to produce documents responsive to Requests 2, 3, and 5 

of McWane’s Subpoena no later than April 20, 2012. 

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FTC Docket No. 9351 

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Dated: April 6, 2012 

/s/ J. Alan Truitt 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

Phone: 205.254.1000 

Fax: 205.254.1999 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

/s/ William C. Lavery 

Joseph A. Ostoyich 

Andreas Stargard 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2420 

Phone: 202.639.7700 

Fax: 202.639.7890 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

william.lavery@bakerbotts.com 

Attorneys for Respondent McWane, Inc. 

6 

FTC Docket No. 9351 

McWane, Inc.’s Opposition to SIP’s Motion to Quash 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

______________________________ 

 

 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of PUBLIC 

McWANE, INC., 

a corporation, and 

DOCKET NO. 9351 

STAR PIPE PRODUCTS, LTD., 

a limited partnership. 

[PROPOSED] ORDER DENYING SIP INDUSTRIES’ MOTION TO QUASH 

SUBPOENA DUCES TECUM 

McWane, Inc. (“McWane”) proposes the entry of an Order Denying SIP Industries’ 

Motion to Quash Subpoena Duces Tecum, and ordering it to produce documents responsive to 

McWane’s Subpoena by April 20, 2012. 

Good cause having been shown, 

IT IS SO ORDERED: 

That SIP’s Motion to Quash Subpoena Duces Tecum is DENIED; and SIP’s deadline to 

produce documents responsive to McWane’s Subpoena is April 20, 2012. 

D. Michael Chappell 

Administrative Law Judge 

DATED: ____________ 

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Certificate of Service 

I hereby certify that on April 6, 2012, I filed the foregoing document electronically in 

PDF format using the FTC’s E-Filing System, and served a copy on the following by overnight 

mail: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-106 

Washington, DC 20580 

I also certify that on April 6, 2012, I served the forgoing document via email on the 

following: 

Donald S. Clark 

Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-113 

Washington, DC 20580 

DCLARK@ftc.gov 

Thomas Brock 

Federal Trade Commission 

601 New Jersey Ave., NW 

Rm. NJ-6249 

Washington, DC 20001 

TBROCK@ftc.gov 

H. Miles Cohn 

Sheiness, Scott, Grossman & Cohn, L.L.P. 

1001 McKinney St., Suite 1400 

Houston, Texas 77002 

mcohn@hou-law.com 

/s/ William C. Lavery 

William C. Lavery 

8