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 UNITED STATES OF AMERICA SECRETARY

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

)
 

) PUBLIC DOCUMENT1 2
 

Polypore International, Inc.
 )
 a corporation
 ) 

) 

RESPONDENT'S MEMORANDUM IN OPPOSITION TO THE MOORE COMPANY'S 

MOTION TO LIMIT SUBPOENA DUCES TECUM AND FOR COST
 

REIMBURSEMENT AND IN RESPONSE TO THE MOORE COMPANY'S
 

MOTION FOR IN CAMERA TREATMENT OF MATERIAL and IN SUPPORT
 

OF RESPONDENT'S CROSS-MOTION TO COMPEL THE MOORE
 

COMPANY TO PRODUCE DOCUMENTS REQUESTED
 

BY SUBPOENA DUCES TECUM
 

Respondent Polypore International, Inc. ("Polypore") submits its memorandum in 

opposition to The Moore Company's Motion to Limit Subpoena Duces Tecum and for Cost 

Reimbursement and in response to The Moore Company's Motion for In Camera Treatment of 

MateriaL. By it's cross-motion, and pursuant to Federal Trade Commission Rules of Practice 

section 3.38(a), Respondent's counsel also respectfully moves the Court to compel The Moore 

Company to produce all documents requested by Respondent's subpoena duces tecum directed to 

The Moore Company and served on November 6, 2°98. 

PRELIMINARY STATEMENT 

The Moore Company seeks to limit a subpoena, served upon it by Polypore, which 

requests documents that go to central issues raised in the Federal Trade Commission's ("FTC" or 

i Respondent's memorandum refers to and contains information identified as "Confidential Material" under the terms 

of the Protective Order entered in this matter. Such "Confidential Material" has been highlighted in the complete version of 

Respondent's memorandum and has been redacted and labeled "(Redacted - Subject to Protective Order)" in the public version 

of Respondents memorandum. 

2 Respondent's memorandum refers to and contains information subject to The Moore Company's pending Motion for 

In Camera Treatment of Material pursuant to Rule 3.45(b) of the FTC's Rules of Practice. Such information has been
 

highlighted in the complete version of Respondent's memorandum and has been redacted and labeled "(Redacted - Subject to 

Pending Motion for In Camera Treatment)" in the public version of 
 Respondent's memorandum. 

PP AB i 520659v i 
"Commission") Complaint (the "Complaint") in this matter and raised by Polypore in defense 

thereto. The Complaint contends that Polypore's acquisition of Microporous Products L.P. 

("Microporous") led to a monopoly in the alleged deep-cycle, motive, and UPS battery separator 

markets and led to higher prices and decreased competition in the alleged automotive battery 

separator market. The Complaint fuher alleges that there are significant barriers to entry in 

these alleged markets. 

In order to properly defend itself, paricularly on the critical issues of "relevant product 

markets" and/or "relevant geographic markets," Polypore has sought to obtain necessary
 

evidence from a number of third parties, including Amer-Sil, S.A. ("Amer-Sil") - a wholly 

owned subsidiary of The Moore Company. The Moore Company, in seeking to limit the 

subpoena, overlooks the fact that its compliance with the subpoena is necessitated by the 

allegations included in the Complaint and Polypore's defenses thereto. The Moore Company has 

offered to produce documents only from the time period of 2007 through the date of the 

subpoena and related only to its North American (1) gross revenue; (2) average sales price; (3) 

anual production volume; (4) annual production capacity; and (5) customer lists. 

(Memorandum at p. 6). Such a limited response is insufficient, however, as Respondent's 

intended defense requires worldwide information both on a transaction-specific and customerspecific basis from January 2003 to the present. Moreover, The Moore Company's motion to 

limit the subpoena is based on conclusory claims of undue burden which lack any specificity. 

Polypore's subpoena is tailored to seek documents pertinent to the issues raised by the 

FTC in the Complaint and to Polypore's defense. Nevertheless, The Moore Company seeks to 

limit the subpoena, claiming that (1) the subpoena does not seek relevant information; (2) 

compliance would be overly burdensome; (3) the subpoena should be limited due to 

confidentiality concerns; and (4) it should be reimbursed for the costs of compliance. None of 

2 

PPAB 1520659vl 
the arguments has any merit, and The Moore Company's motion should be denied. 

Additionally, for the reasons set forth herein, The Moore Company should be ordered to 

promptly comply with Respondent's subpoena duces tecum. 

FACTUAL BACKGROUND 

Amer-Sil is a wholly-owned subsidiary of The Moore Company, which is located in 

Rhode Island. (Amer-Sil CompanyProfie)(Tab A). (Redacted - Subject to Protective Order). 

(Redacted - Subject to Pending Motion for In Camera Treatment), Amer-Sil is an important 

participant in the battery separator market and stands to be impacted by the outcome of 

Respondent's proceedings with the FTC. 

The subpoena in question originated in an adjudicatory proceeding currently pending 

before the Commission in which Polypore is alleged to have violated Section 5 of the Federal 

Trade Commission Act, 15 U.S.C. § 45, and Section 7 of 
 the Clayton Act, 15 US.C. § 45, by its 

acquisition of Microporous. In order to obtain the information necessary for its defense, 

Polypore applied to the Commission's Administrative Law Judge for issuance of several 

subpoenas duces tecum to participants in the battery separator industry - including both 

manufacturers of batteries and separators. On October 24, 2008, one such subpoena was issued 

to The Moore Company, the parent company of Amer-Sil, pursuant to the Commission's 

authority under Section 9 of 
 the Federal Trade Commission Act, 15 U.S.C. § 49, which provides 

that "the Commission shall have power to require by subpoena . . . the production of all such 

documentary evidence relating to any matter under investigation." The subpoena was served on 

The Moore Company on November 6, 2008. (Memorandum at p. 1). Materials responsive to the 

subpoena were to be produced for inspection on December 1, 2008. 

On November 25, 2008 counsel for The Moore Company sought an extension of time 

through December 10, 2008 to respond to the subpoena or to file a motion to limit the subpoena. 

3 

PPAB 1520659vl 
Counsel's request was agreed to by Respondent's counseL. (Memorandum, Ex. A). On 

December 10, 2008, The Moore Company's counsel sought and was granted an additional 

week's extension, through December 17, 2008, to file a motion seeking protection from 

Respondent's subpoena.3 Id. 

From late-November through mid-December, counsel for Respondent and counsel for 

The Moore Company communicated on multiple occasions in regards to the subpoena. At that 

time, counsel for Respondent explained Respondent's wilingness to discuss and resolve any 

concerns The Moore Company may have concerning its compliance with the subpoena. Id. 

During these discussions, the main issue raised by counsel for The Moore Company with respect 

to the subpoena was whether Respondent had jurisdiction over The Moore Company's whollyowned subsidiary, Amer-Sil. Id. The Moore Company's counsel never contested, with any 

specificity, the relevance of the subpoena requests or the burden to comply with the subpoena, 

nor did its counsel ever raise any specific concerns about the production of confidential
 

documents under the terms of the Protective Order. Id. Instead, The Moore Company took a 

categorical approach to the type of documents it would be wiling to produce and the timeframe 

from which it would produce such documents. Id. In lieu of addressing any concerns as to 

scope, burden and privilege on a point-by-point basis with Respondent's counsel, counsel for 

The Moore Company instead took the position that the subpoena was not valid since many of its 

requests were directed at The Moore Company's wholly-owned foreign subsidiary, Amer-Sil, 

and as a result, offered only a limited, categorical "compromise" in regards to The Moore 

Company's obligations under the subpoena. When Respondent could not agree with The Moore 

Company's proposed "compromise", The Moore Company fied its untimely Motion on 

J The Moore Company's Motion to Limit Subpoena Duces Tecum and For Cost Reimbursement, and a memorandum in 

support thereof, was ultimately untimely served on the evening of December 23, 2008. 

4 

PPAB 1520659vl 
December 23,2008. By refusing to engage in a meaningful discussion as to any specific concern 

raised by Respondent's subpoena, The Moore Company's counsel has failed to abide by its 

"meet and confer" obligation. Respondent cannot afford any fuher delay from The Moore 

Company, as important deadlines are approaching. Respondent requests, for the reasons stated 

herein, that The Moore Company's motion be denied in its entirety and that The Moore 

Company be ordered to comply with Respondent's subpoena. 

ARGUMENT 

I. The Moore Company's Motion to Limit Subpoena Duces Tecum and for Cost
 

Reimbursement Should be Denied. 

The Moore Company seeks a protective order limiting and delaying Polypore's request 

for materials that are critical to Polypore's defense in this proceeding. For the reasons set out 

below, The Moore Company's objections to Respondent's subpoena are without merit and its 

motion to limit the subpoena should be denied. 

A. POL YPORE'S SUBPOENA SEEKS RELEVANT INFORMATION
 

The Moore Company contends that the subpoena should be limited because it seeks 

documents that are not relevant to the underlying FTC proceeding. (Memorandum at p. 1). 

(Redacted - Subject to Pending Motion for In Camera Treatment). In arguing that the subpoena 

should be limited, The Moore Company ignores the issues raised by the pleadings and fails to 

place the subpoena in its proper context. 

The FTC's Rules allow Polypore to "obtain discovery to the extent that it may be 

reasonably expected to yield information relevant to the allegations in the complaint, to the 

proposed relief, or to the defenses of (the) respondent." 16 CPR. § 3.31(c)(1) (emphasis 

5 

PPAB 1520659vl 
added). Discovery should be limited only if the burden outweighs the benefit. Id. Moreover, 

"public interest requires that once a complaint issues. . . Commission counsel (and respondent's 

counsel when they put'on their defense) be given the opportunity to develop those facts which 

are essential" to support or undermine the allegations in the pleadings. In re Gen. Foods., No. 

9085 C, 1978 FTC LEXIS 412 at *6 (April 
 18, 1978). The applicant for a subpoena need only 

show that the materials sought are generally or reasonably relevant. In re Kaiser Aluminum & 

Chem. Corp., 1976 FTC LEXIS at *4 (Nov. 12, 1976). In contrast, the subpoenaed party bears 

"(t)he burden of showing that the request(s) are unreasonable." In re Rambus, Inc., No. 9302, 

2002 FTC LEXIS 90, at *9 (Nov. 18, 2002). Such a showing is a heavy burden, even when the 

subpoena is directed at a non-party. In re Flowers Indus., Inc., No. 9148, 1982 FTC LEXIS 96 

at * 15 (Mar. 19, 1982).
 

Thus the Court's inquiry is whether the subpoena seeks information that is reasonably 

expected to be "generally relevant to the issues raised by the pleadings." Id. at * 14. Plainly, it 

does and The Moore Company misapplies the relevant legal standard and fails to understand - or 

utterly ignores - the scope or nature of the issues raised in this proceeding. 

(Redacted - Subject to Pending Motion for In Camera Treatment). The Moore 

Company's position mistakenly ignores Respondent's defenses to the Complaint. Throughout 

these proceedings Respondent has consistently made its defenses clear: 

· Respondent admits that it develops, manufactures and markets battery 

separators in a global market. (Answer, ir 4)(emphasis added). 

· Respondent has denied the Complaint's allegation that the relevant 

product areas in which to analyze the transaction are the separator markets 

for flooded lead-acid batteries in the deep-cycle, motive, automotive and 

uninterrptible power supply stationary ("UPS") batteries. (Answer, ir 5). 

6 

PPAB 1520659vl 
· Respondent has also denied that the transaction violates the antitrust laws 

in an all Polyethylene ("PE") separator market. (Answer, ir 6). 

· Respondent has denied that the relevant geographic market in which to
 

analyze the effects of this transaction is limited to North America.
 

(Answer, ir 14). 

· Respondent has also denied that producers of battery separators for motive, UPS, and automotive applications outside of North America are at 

a cost disadvantage in the supply of these separators to North American 

customers. (Answer, ir 16). 

· Respondent has denied the allegation that since the acquisition of 

Microporous by Daramic, there are just two battery separator companies 

that supply North America. (Answer, ir 16). 

· Respondent has repeatedly denied the characterization of "automotive, 

motive, UPS and all PE markets" as distinct and proper markets. 

(Answer, ir 42). 

· Most importantly, as an affirmative defense, Respondent asserted that the 

relevant product and geographic market definitions alleged in the 

Complaint fail as a matter of law. (Answer, Third Affirmative Defense; 

see also Resp. Mot. to Dismiss, n. 55 ("Polypore disputes the designations 

of the markets as alleged by the FTC and wil assert its defenses to the 

market claims as necessary at the hearing before the ALJ")). 

Under the FTC's discovery standard, Polypore is entitled to seek evidence which wil support 

these defenses. 16 CF.R. §3.31(c)(J). As such, the documents and information sought by
 

Respondent in it subpoena to The Moore Company are not only relevant, but are essential to its 

defense of 
 the FTC's case. 

The two pilars of The Moore Company's "lack of relevancy" argument are that 

(Redacted - Subject to Pending Motion for In Camera Treatment). The Moore Company's 

argument misses the mark and fails to grasp the nature and scope of Respondent's defense. 

(Redacted - Subject to Pending Motion for In Camera Treatment). (Redacted - Subject 

to Protective Order). As The Moore Company points out, a relevant product market consists of 

"products that have reasonable interchangeability for the purposes for which they are produced ­

7 

PP AB 1 520659v 1 
- price, use and qualities considered." United States v. E.l du Pont de Nemours & Co., 351 U.S. 

377,404 (1956); (Memorandum at p. 9). (Redacted - Subject to Pending Motion for In Camera 

Treatment). 

(Redacted - Subject to Pending Motion for In Camera Treatment) one of Respondent's 

central defenses to the Commission's Complaint is that the relevant product market should be 

defined as to include all lead-acid battery separators (including gel and AGM products) instead 

of being limited only to the flooded lead-acid battery separators. (Redacted - Subject to Pending 

Motion for In Camera Treatment). 

Moreover, it is Respondent's fundamental contention that the relevant geographic market 

is not limited to North America, but is instead a worldwide battery separator market. (Redacted 

- Subject to Pending Motion for In Camera Treatment). 

(Redacted - Subject to Protective Ordert 

Even if The Moore Company's characterization of the relevant product and geographic 

markets was accurate, which it is not, it would stil be a ilogical to conclude that the subpoena 

does not seek information reasonably relevant to the allegations of the Complaint and 

Respondent's defenses thereto. For example, the Complaint alleges that North American battery 

manufacturers prefer domestic sources of battery separators and, consequently, battery separator 

manufacturers from abroad do not find it practical to compete in North America. (Complaint at 

irir 16-17). (Redacted - Subject to Pending Motion for In Camera Treatment).5 Surely, 

Respondent is entitled to discovery of Amer-Sil to explore the validity of 
 the FTC's charges. 

Finally, the relevance of Amer-Sil's position in the battery separator market is evidenced 

by the fact that the FTC sought an affidavit from Amer-Sil during the course of its investigation 

4 (Redacted - Subject to Protective Order).
 

5 (Redacted - Subject to Pending Motion for In Camera Treatment).
 

8 

PP AB 1 520659v I 
of this matter. (See Dauwe FTC Aff.). In fact, several statements contained in the investigative 

affidavit are contrary to Respondent's assertions. It would be extremely prejudicial to 

Respondent if it is not able to obtain the information that formed the basis of such statements and 

allegations which it needs in order to examine the proffered statements' veracity and/or
 

iluminate the statements in their appropriate context if the FTC is to use this affidavit in any 

way in this case. 

(Redacted - Subject to Protective Order). One of the Commission's allegations in its 

Complaint is that the length of time necessary for the qualification of products in the battery 

separator industry serves as a formidable barrier to potential market entrants. (Complaint, ir 33). 

In its defense, Respondent intends to refute this allegation. Without access to the information 

which formed the basis of the FTC's allegation (Redacted - Subject to Pending Motion for In 

Camera Treatment), Respondent wil be hindered in its defense. (See, e.g., Subpoena, ir 27). 

Such a situation is manifestly unjust. The Moore Company's attempt to unilaterally define the 

"Relevant Product Markets" and "The Relevant Geographic Market" in order to avoid 

compliance with the subpoena and without regard to Respondent's right to put forth its defense 

to the FTC's allegations must be rejected. The Moore Company's mischaracterization of the 

underlying issues in this matter should not allow it to circumvent the FTC's subpoena power. 

Polypore must have access in discovery to The Moore Company's documents relating to the 

issues raised in the pleadings in order to properly prepare its defense. 

B. POL YPORE'S SUBPOENA is NOT OVERLY BROAD OR UNDULY
 

BURDENSOME AND SHOULD NOT BE LIMITED BY THE COURT 

The Moore Company also argues that the subpoena should be limited because it would be 

unduly burdensome for it to comply with the subpoena. In its motion, however, The Moore 

Company fails to set forth any evidence supporting its contention. The burden of showing that a 

9 

PPAB 1520659vl 
subpoena is unduly burdensome is on the subpoenaed party. FTC v. Texaco, 555 F.2d 862, 882 

(D.C. Cir. 1977). This is true even if the subpoenaed party is a non-pary. See In re Flowers
 

Indus., Inc., 1982 FTC LEXIS at * 14. While cours are "not unmindful of the tremendous 

impact which compliance with such subpoenas can have upon companies which appear to be 

innocent bystaders. The cost of effective economic regulation. . . is one which must be shared 

by all industry, indeed by the entire society." FTC v. Dresser Indus., Inc., Misc. No. 77-44, 1977 

DIST. LEXIS 16178 at *16 (D.D.C. Apr. 26,1977). 

Courts have refused to modify subpoenas unless compliance threatens to unduly disrupt 

or seriously hinder the normal operations of a business. FTC v. Texaco, 555 F.2d 862, 882 

(D.C. Cir. 1977). Broadness alone is not a suffcient justification to refuse enforcement of a 

subpoena. Id. The Moore Company, therefore, must put forth specific evidence that 

demonstrates such an undue disruption; a "general, unsupported claim ( of burden) is not 

persuasive." In re Kaiser Aluminum & Chem. Corp., 1976 FTC LEXIS at *19. This is 

especially true where a third-party, like The Moore Company's wholly-owned subsidiary ­

Amer-Sil, is in the same industry that is the subject of the proceeding, stands to benefit 

depending on the outcome of the proceeding, and therefore has "a special stake in seeing that an 

informed judgment is rendered." In re Coca-Cola Bottling Co., No. 8992,1976 FTC LEXIS 33 

at * 6 (Dec. 7, 1976). 

The Moore Company puts forth no specific evidence to show that compliance with the 

subpoena would be unduly burdensome, (Redacted - Subject to Pending Motion for In Camera 

Treatment) The Moore Company has failed to meet its evidential burden. This is manifestly 

insufficient to support a limitation of the subpoena. Indeed, "even where a subpoenaed third 

party adequately demonstrates that compliance with a subpoena wil impose a substantial degree 

of burden, inconvenience, and cost, that wil not excuse producing information that appears
 

10 

PPAB 1520659vl 
generally relevant to the issues in the proceeding." In re Kaiser Aluminum & Chem. Corp., 1976 

FTC LEXIS at * 19-20. (Redacted - Subject to Pending Motion for In Camera Treatment). 

Remarkably, counsel for The Moore Company failed to raise any specific issues of scope 

or burden with Respondent's counsel prior to filing this motion - (Redacted - Subject to Pending 

Motion for In Camera Treatment). On several occasions, Respondent's counsel expressed to 

The Moore Company's counsel Respondent's wilingness to discuss any concerns The Moore 

Company may have had with the subpoena requests. The Moore Company's counsel elected to 

ignore any specific issues The Moore Company had with respect to the subpoena's scope and 

alleged burden and instead decided to raise such issues for the first time in its motion. The 

Moore Company's refusal to negotiate with Respondent's counsel is fatal to its motion to limit 

the subpoena. "(A) Federal Trade Commission subpoena seeking relevant data wil not be 

quashed on the grounds that a burden is imposed on a third par, especially where the party
 

initiating the subpoena has expressed a wilingness to mitigate whatever burden may exist by 

negotiation and compromise." In re Gen. Motors Corp., No. 9077, 1977 FTC LEXIS 18 * 1 

(Nov. 25, 1977); see also In re R.R. Donnelley & Sons Co., No. 9243, 1991 FTC LEXIS 272 at * 

2 (June 12, 1991)(refusing to limit subpoena "in light of counsel's offer to modify some of the 

subpoena's specifications"). 

(Redacted - Subject to Pending Motion for In Camera Treatment) There is no evidence 

to support The Moore Company's contention. 

Respondent's subpoena request No. 5 seeks "all documents relating to any
 

communication between Amer-Sil" and various other entities. (Subpoena, No. 5)(emphasis 

added). Presumably, all such communications between Amer-Sil and certain battery 

manufacturers would be maintained by both parties in the language in which the communication 

was originally transmitted and would also be similarly stored by, and in the possession of, both 

11 

PPAB 1520659vl 
the communicating pary and the receiving pary. While Respondent has subpoenaed documents 

from several of the battery manufacturers, there is certainly no assurance that the battery 

manufacturers maintained all of their fies and records. Additionally, any documents "relating to 

such communication 
 ( s)" which were created by Amer-Sil would presumably reside exclusively 

in the possession of Amer-Sil - and not with another entity. (Redacted - Subject to Pending
 

Motion for In Camera Treatment). 

Respondent's subpoena request No.6 seeks "all documents constituting or reflecting any 

actual or potential contract or agreement between Amer-Sil" and various other battery 

manufacturers. (Subpoena, No.6). Again, presumably all such contracts and agreements 

between Amer-Sil and another entity would be maintained by both paries in the language in 

which the contract or agreement was originally drafted and would also be similarly stored by, 

and in the possession of, both contracting parties. Also, documents constituting or reflecting any 

actual or potential contract between Amer-Sil and another entity potentially reside exclusively in 

the possession of Amer-Sil and accordingly may only be obtained through Respondent's
 

subpoena to The Moore Company - the 100% owner of Amer-Sil. (Redacted - Subject to 

Pending Motion for In Camera Treatment). 

The Moore Company's Memorandum sets forth a general, unsupported claim of burden. 

In fact, The Moore Company's "burden" argument is really nothing more than an extension of 
 its 

"lack of relevancy" argument - (Redacted - Subject to Pending Motion for In Camera 

Treatment). As Respondent has shown above, its subpoena seeks information relevant to the 

issues raised in the Complaint and in Respondent's defense of 
 the FTC's allegations. The Moore 

Company has not put forth any factual evidence which shows that compliance would seriously 

hinder the normal operations of its business. There is no evidence detailing any of The Moore 

Company's unsubstantiated cost and time estimates. Such unsupported and conclusory
 

12 

PPAB 1520659vl 
allegations must be rejected and The Moore Company's claim of undue burden should be denied. 

Moreover, the information sought by Respondent is neither overly broad nor unduly
 

burdensome; instead it is clearly relevant to the allegations of the Complaint and Respondent's 

defenses thereto. (See Section III. A., infra). As such, The Moore Company's motion to limit 

the subpoena should be denied and The Moore Company should be ordered to comply fully with 

the Subpoena without futher delay. 

C. THE PROTECTIVE ORDER ADDRESSES THE MOORE COMP ANY'S
 

CONFIDENTIALITY AND COMMERCIALLY-SENSITIVE INFORMATION
 

CONCERNS 

In addition to its relevancy and burden arguments, The Moore Company also contends 

that Respondent's subpoena should be limited because it requests documents that may contain 

confidential or commercially sensitive information. (Memorandum at p. 15). In fact, The Moore 

Company spends several pages of its Memorandum detailng why it considers such information 

to be confidentiaL. (Memorandum at pp. 15-19). At no point, however, does The Moore 

Company mention that on October 23, 2008, this Court entered a Protective Order Governing 

6 Significantly, The Moore
 Discovery Material (the "Protective Order") in this matter. 


Company's Memorandum fails to address whether or not the Protective Order is sufficient to 

protect its confidentiality concerns, and ifit is not, why (or in what manner) the Protective Order 

allegedly does not adequately protect the interests of The Moore Company or its wholly-owned 

subsidiary Amer-SiL. (Redacted - Subject to Pending Motion for In Camera Treatment). 

The Protective Order negotiated by the FTC and Polypore explicitly protects third-paries 

and provides that any materials designated confidential can be used only for purposes of this 

proceeding and can only be disclosed to a limited group of people associated with this 

6 The Protective Order was attached to the subpoena and enclosed in Respondent's counsel's November 6, 2008 service 

letter to The Moore Company. (See Dauwe Decl., Ex. A). 

13 

PPAB 1520659vl 
proceeding. The stated purpose of the Protective Order is to "(protect) the interests of the Paries 

and Third Parties. . against improper use and disclosure of confidential information submitted or 

produced in connection with this Matter." (Protective Order at p. 1)(Tab E). Although The 

Moore Company has failed to describe even a single example of how the Protective Order would 

be insufficient to protect its confidentiality concerns, it argues, in hyperbole, that "no amount of 

safeguards could adequately protect Amer-Sil's interests if it were to produce the requested 

information to Polypore." (Memorandum at p. 19)(emphasis original). This argument has no 

merit. See In re Coca-Cola Bottling Co., 1976 FTC LEXIS 33 at *3-5 (Dec. 7, 1976)("relevant 

confidential business information may properly be called for in subpoenas issued in Commission 

proceedings."). Indeed, "the fact that information sought by a subpoena may be confidential 

does not excuse compliance." In re Rambus, Inc., 2002 FTC LEXIS 90, at * 11 (Nov. 18, 2002). 

The Moore Company turns to Federal Rule of Civil Procedure 45 to argue that 

Respondent must show "substantial need" for the requested, but allegedly confidential 

information. (Memorandum at p. 15). Under the Commission's Rules of 
 Practice, however, "a 

showing of general relevance is sufficient to justify production of documents containing
 

confidential business information and no further showing of 'need' is necessary." Kaiser 

Aluminum & Chemical Corp., 1976 FTC LEXIS 68 at *9 (Nov. 12, 1976). 

In any event, the Protective Order entered in this matter is more than sufficient to 

alleviate The Moore Company's confidentiality concerns. Protective orders are customarily 

issued to safeguard confidential information in Commission proceedings. See In re Coca-Cola 

Bottling Co., 1976 FTC LEXIS 33 at * 4 (Dec. 7,1976); see also In re Basic Research, LLC A.G. 

Waterhouse, No. 9318, 2004 FTC LEXIS 272 at *6 (Aug. 18, 2004)("The provisions of the 

Protective Order adequately protect the confidential documents of third parties through a number 

14 

PP AB 1 520659v 1 
of safeguards"). Similarly, the Protective Order in this case is suffcient to protect The Moore 

Company's confidential documents and commercially sensitive information. 

The Protective Order defines "Confidential Material" to include "nonpublic trade secret 

or other research, development, commercial or financial information, the disclosure of which 

would likely cause commercial harm to the Producing Part or Respondent." (Protective Order 

at p. 1). Importantly, the Protective Order contains a number of safeguards to adequately protect 

such Confidential MateriaL. For example, Confidential Material may only be disclosed to a 

limited number of people associated with this hearing - including the ALJ, court reporters and 

other court personnel, outside counsel of Respondent and any consultants/experts retained by 

Respondent to assist in this matter and Respondent's Special Counsel Michael Shor. (Protective 

Order at p. 7). Importantly, the Protective Order would prohibit any Polypore employee,
 

including its in-house counsel, from access to The Moore Company's confidential information. 

Additionally, any Confidential Material that is produced may only be used for the purposes of 

the preparation and hearing of this matter and for no other purpose whatsoever. (Protective 

Order at p. 7). 

Other safeguards include the obligation to file pleadings, motions or other papers
 

containing Confidential Information under seal, and the ability of a Third Pary to request in
 

camera treatment of any Confidential Material - as The Moore Company has done for this very 

motion and the supporting material thereto. (Protective Order at p. 8). The Protective Order 

also protects against the disclosure of Confidential Material if such Confidential Material is the 

subject of a discovery request in another proceeding. (Protective Order at p. 9). Additionally,
 

under the Protective Order, any consultant or other person retained by counsel to assist counsel 

in the preparation of this action is obligated to return all Confidential Material (including all 

copies thereof or notes made there from) upon the consultants conclusion of paricipation in this 

15 

PPAB 1520659vl 
matter. (Protective Order at p. 9). Finally, the obligation and safeguards of the Protective Order 

are binding even after the conclusion of 
 this proceeding. (Protective Order at p. 10). Clearly, the 

stringent Protective Order entered in this matter eradicates any concerns The Moore Company 

has that compliance with Respondent's subpoena wil somehow result in economic repercussions 

for either The Moore Company or Amer-Sil. 

While The Moore Company makes wild and unsupported allegations that Respondent is 

only seeking such alleged confidential information for a sinister or ulterior purpose (Redacted ­

Subject to Pending Motion for In Camera Treatment). 

Respondent's subpoena seeks relevant information which is central to its defense of the 

Commission's allegations. While some of the information sought by Respondent may be 

confidential, The Moore Company has not put forth any reason why the Court-ordered Protective 

Order is inadequate to protect such confidential information. It is clear that the Protective Order 

contains numerous adequate safeguards to protect The Moore Company's confidential 

information and as a result the Moore Company's motion to limit Respondent's subpoena based 

on confidentiality concerns should be denied. 

D. THE MOORE COMP ANY WAS PROPERLY SERVED WITH THE SUBPOENA
 

The Moore Company incorrectly argues that Respondent's subpoena is not proper 

because Respondent has allegedly failed to comply with the prerequisites for issuing a subpoena 

in a foreign country. Much like The Moore Company's previous arguments, this argument is 

also without merit. First, the subpoena was properly served on The Moore Company, a domestic 

corporation, located at 36 Beach Street, Westerly, Rhode Island, and not on a foreign 

corporation. Second, while several of the subpoena requests seek information from The Moore 

Company's wholly-owned foreign subsidiary, Amer-Sil, such documents are in the "possession 

or control" of The Moore Company.
 

16
 

PPAB 1520659vl 
Service of a subpoena upon The Moore Company, a domestic corporation, is the proper 

method to obtain documents of its wholly-owned subsidiary, Amer-Sil. The fact that the 

materials requested are situated in a foreign country does not prevent their discovery. Cooper 

Indus. v. British Aerospace, Inc., 102 F.RD. 918, 920 (1984).7 Federal Rule of Civil Procedure 

34 requires the production of documents "in the possession, custody, or control of the party on 

whom the request is served." Fed. R Civ. P. 34(a). "Control" is construed broadly as "the legal 

right, authority, or practical ability to obtain the materials sought upon demand." SEC v. Credit 

Bancorp, LTD, 194 F.RD. 469, 471 (S.D.N.Y. 2000). Significantly, at no point does The Moore 

Company suggest that the information sought by Respondent's subpoena is beyond its control. 

(See generally Memorandum at pp. 19-25). Instead, The Moore Company attempts to distract 

the Court's attention by arguing at length that Respondent's subpoena is directed at a foreign 

company and, as a consequence, contravenes European Union privacy and data protection laws. 

Such diversionary tactics are nothing more than a misplaced attempt by The Moore Company to 

avoid the production of information requested by Respondent's validly-issued subpoena and 

which is within The Moore Company's control. 

Courts have routinely found that a parent corporation has a sufficient degree of 

ownership control over the documents in the possession of its wholly-owned subsidiaries and 

therefore must produce such documents upon demand. Dietrich v. Bauer, Dist. LEXIS 11729 

(S.D.N.Y. Aug. 9,2000), see also United States v. Intl Union of Petroleum & Indus. Workers,
 

870 F .2d 1450, 1452 (9th Cir. 1989). The location of the documents is irrelevant. Gerling Intl
 

Ins. v. Comm'r of Internal Revenue, 839 F.2d 131, 140 (3d Cir. 1988); see also Marc Rich & 

7 See also Federal Rule of Civil Procedure 45, 1991 Advisory Committee Note (which makes clear "that the person 

subject to the subpoena is required to produce material in that person's control whether or not the materials are located within the 

distinct or within the territory within which the subpoena can be served."); Wright & Miler, Federal Practice and Procedure: 

Civil 2D § 2456 ("Even records kept beyond the territorial jurisdiction of the district court issuing the subpoena may be covered 

if they are controlled by someone subject to the court'sjurisdiction"). 

17 

PP AB 1 520659v 1 
Co., A.G. v. United States, 707 F.2d 663, 667 (2d Cir. 1983). This principle applies equally to 

both pary and non-pary alike. Addamax Corp. v. Open Software Foundation, Inc. 148 F.R.D. 

462,468 (D. Mass. 1993). 

The appropriate standard "to determine whether a corporation has custody and control 

over documents located with an overseas affiiate is not limited to whether the corporation has 

the legal right to those documents. Rather, the test focuses on whether the corporation has 

'access to the documents' and 'ability to obtain the documents.'" Hunter Douglas, Inc. v. 

Comfortex Corp., 1999 U.S. Dist. LEXIS 101 at *9 (S.D.N.Y. Jan. 11, 1999)(citations omitted). 

This standard applies to third parties as well as parties. Addamax Corp. v. Open Software 

Foundation, Inc. 148 F.R.D. 462, 468 (D. Mass. 1993).
 

Courts in FTC proceedings have previously relied upon Federal Rule of Civil Procedure 

34 and case law interpreting Rule 34 in determining that a corporation's "access to the 

documents" and "ability to obtain the documents" extends to foreign affiliates of a subpoenaed 

third pary. In In the Matter of Rambus, Inc., the Court ordered a subpoenaed third-party to
 

produce documents in the possession of its foreign parent. Rambus, 2002 FTC LEXIS at 16. The 

Cour in Rambus relied on a variety of factors to conclude that the subpoenaed third-party, a 

subsidiar, had sufficient control over the documents of its foreign parent. Id. at 4-16.
 

Certainly, if a subsidiary can be ordered to produce the documents of its foreign parent, a 

domestic parent has the requisite level of control over the documents of its foreign wholly-owned 

subsidiary and must therefore produce such documents. (Redacted - Subject to Pending Motion 

for In Camera Treatment). Moreover, The Moore Company has not put forth any evidence from 

which this Court could conclude that it does not have access to, or the ability to obtain, the 

documents in the possession of Amer-Sil, its wholly-owned subsidiary. Indeed, there is no 

evidence that The Moore Company, as the sole owner of Amer-Sil, cannot easily access any 

18 

PPAB 1520659v1 
document necessary to respond to the subpoena. (Redacted - Subject to Pending Motion for In 

Camera Treatment). 

Similarly, The Moore Company's accusation that Polypore has attempted to avoid 

required FTC procedure is also without basis. First, The Moore Company ignores the fact that 

several of the subpoenaed requests are directed at The Moore Company itself, or both The Moore 

Company and Amer-Sil. (Subpoena Request, Nos. 3-4, 6-13, 22-26, 28-34, 38). More 

importantly, the case relied on in support of the Moore Company's argument, Laker Airways, 

Ltd. v. Pan Am, is distinguishable from the present situation. 607 F.Supp. 324 (S.D.N.Y. 1985). 

In Laker Airways, the subpoena in question sought documents from two foreign parent 

corporations through their United States branch offices, which were not in existence at the time 

of the controversy to which the subpoena related. Id. at 326. The present scenario is 

distinguishable because The Moore Company is and has been the sole owner of Amer-Sil and, 

more importantly, has control of 
 the requested documents. 

It is also important to note, however, that the privacy and data protection laws cited by 

The Moore Company are not applicable to the majority of the information sought by 

Respondent's subpoena and, moreover, exceptions to the general privacy rules exist which allow 

for the processing and transfer of the data sought. Consequently, The Moore Company and 

Amer-Sil can legally process and produce the subpoenaed documents in compliance with
 

Directive 95/46/EC ofthe European Commission. 

Despite The Moore Company's suggestions, much of 
 the information sought by Polypore 

would not fall into the category of "personal data" because the information sought contains no 

data "relating to an identified or identifiable person." For example, the subpoena seeks 

documents regarding products in development, the manufacturing and production facilties 

owned by Amer-Sil or the Moore Company; any joint ventures or partnerships of which Amer19 PP AB I 520659v I 
Sil or the Moore Company is a party; any contracts between Amer-Sil and specified battery 

manufacturers; Amer-Sil' s market share for lead acid battery separators; the geographic scope of 

competition in the battery separator industry; the level or state of competition in the battery 

separator industry; the pricing strategy for lead acid battery separators; manufacturing data
 

relating to lead acid battery separators; the anticipated end-uses of the products sold by AmerSil; and customers purchasing lead acid battery separators from Amer-Sil. (See, e.g., Subpoena 

Requests, No. 1-4, 6-34, 38). In fact, only four subpoena requests seem to seek information
 

which would potentially fall into the definition of 
 "personal data." (Requests Nos. 5,35,36, and 

37). Yet, those requests seek documents transmitted to the FTC or companies located outside of 

the European Union. The Moore Company makes no attempt to explain how such documents 

would be subject to the Directive. Indeed, taken to its logical conclusion, if read as broadly as 

The Moore Company suggests, then The Moore Company itself violated the terms of the 

Directive when it produced the affidavit to the FTC and would further violate the Directive in 

providing documents pursuant to its proposed "compromise." 

Additionally, as The Moore Company points out, the Directive carves out an exception 

which permits the processing and the export of personal data where it is necessary for the 

purpose of, or in connection with, any legal proceedings. (Memorandum at p. 22). Not 

surprisingly, The Moore Company goes on to argue that this exception should not apply in the 

instant matter. Id. The Moore Company's authority for its position is unpersuasive, at best. The 

Moore Company, relies on an advisory opinion of 
 the Working Party ("an independent European 

advisory party") which comments on the application and compatibility of the Directive with 

internal whistle blowing protection schemes. See Article 29 Data Protection Working Party, 

Opinion 1/2006 on the Application of EU Data Protection Rules to Internal Whistleblowing 

Schemes in the Fields of Accounting, Internal Accounting Controls, Auditing Matters, Fight 

20 

PP AB 1 520659v 1 
Against Bribery, Banking and Financial Crime (emphasis added). Since whistle-blowing often 

implicates specific individuals and their personal data in relation to fraud, bribery, or corrption, 

it makes sense that the Directive may conflct with such whistle blower protections. 

This advisory opinion, however, is inapplicable in the present situation. First and 

foremost, this is an advisory opinion and therefore is not binding law. Second, Polypore does 

not request any information which would incriminate any individual or reveal personal 

information, as would information sought in connection with discovery regarding corrption, 

fraud, or bribery - the principle aims of litigation in connection with whistle-blowing. Polypore 

instead requests routine business information which does not interfere with the privacy rights of 

any employee at Amer-Sil. Consequently, in a non whistle-blowing situation, the processing and 

transfer of the data is permitted as an exception to the Directive where it is necessar to comply 

with a legal obligation of 
 the collector. Directive, art. 6, para. 2(a) & ar. 26, para. l(d). 

The Moore Company has done no more than throw convoluted arguments at this Court 

based upon inapplicable advisory opinions and articles which have no binding authority. 

Respondent's subpoena simply seeks information necessary for furthering its proceedings before 

the Commission. The Moore Company has made no showing that it does not have control over 

the documents held by Amer-Sil and should therefore be compelled to produce such documents. 

E. COSTS
 

The Moore Company concludes by requesting that" an Order be entered requiring 

Respondent to reimburse The Moore Company for the reasonable costs incured in complying 

with the subpoena. (Memorandum at p. 25). It is well settled, however, that in agency actions 

"some burden on subpoenaed parties is to be expected and is necessary in furtherance of the 

agency's legitimate inquiry and the public interest." FTC v. Texaco, Inc., 555 F.2d 862, 882 

(D.C. Cir. 1977); see also In re Matter of N Tex. Specialty Physicians, No. 9312, 2004 WL 

21 

PPAB l520659v1 
527337, at *3 (F.T.C. Feb. 4, 2004)(denying cost reimbursement because the subpoena did not 

create an undue burden on the third pary). Reimbursement of costs in FTC adjudicative 

proceedings is only appropriate where the subpoenaed pary has demonstrated that the cost of 

compliance would be "unreasonable" or "extraordinary." See In re International Tel.&Tel. 

Corp., 1981 LEXIS 75 at * 3 (March 13, 1981); In re R.R. Donnelley & Sons Co., 1991 FTC 

LEXIS 268 at * 1 (June 6, 1991 )(holding that subpoenaed party "can be required to bear 

reasonable costs of compliance with the subpoena"). (Redacted - Subject to Pending Motion for 

In Camera Treatment). See FTC v. Dresser Indus., Inc., Misc. No. 77-44, 1977 U.S. DIST. 

LEXIS 16178 at *13 (D.D.C. Apr. 26, 1977)(in which the court ordered compliance and denied 

costs even though the estimated cost of compliance by the third party was estimated to exceed 

$400,000.00 partly because the third pary was a participant in the industry in question.). 

Even if The Moore Company were to make a showing that the cost of compliance was 

extraordinary, reimbursement would be limited to the cost of copying because Amer-Sil is a 

participant in the battery separator industry. FTC authority mandates that "where (a) non-pary 

is in the industry in which the alleged acts occurred and the non-party has (an) interest in the 

litigation and would be affected by the judgment, only the cost of copying, and no other costs of 

the search need be reimbursed. See In re Flowers Industries, Inc., 1982 FTC LEXIS 96 at * 14 

(Mar. 19, 1982); see also In re Kaiser Aluminum & Chemical Corp., 1976 FTC LEXIS 68 at 

*20-21 (Nov. 
 12, 1976)("Where the public interest is involved, however, and where the nonparty is in the industry in which the alleged acts occurred, the non-party has an interest in the 

litigation and would be affected by the judgment. There, only the cost of copying need be 

reimbursed."). Here, The Moore Company is not even entitled to copying costs, however, as it 

has not overcome the threshold requirement of showing that the cost of compliance would be 

22 

PPAB 1520659v1 
extraordinary.8 The FTC's authority on the reimbursement of a third party's costs in complying 

with a subpoena is abundant and clear - a third pary is not entitled to the cost of compliance 

unless such costs would be unreasonable or extraordinary. The Moore Company has made no 

such showing and its motion for costs must therefore be denied. 

As ilustrated above, The Moore Company's arguments in support of its motion to limit 

the subpoena and for costs are without legal or factual merit and, accordingly, The Moore 

Company's motion must be denied. 

II. Polypore Takes No Position On The Moore Company's Motion for In Camera
 

Treatment of MateriaL. 

The Moore Company, in its Motion for In Camera Treatment of Material, seeks in 

camera treatment of it Motion to Limit Subpoena Duces Tecum and To Seek Cost 

Reimbursement, its Memorandum of Law in support thereof, and the accompanying declaration 

of Guy Dauwe, all of which are dated December 23, 2008. Respondent takes no position with 

respect to the Moore Company's Motion for In Camera Treatment of MateriaL. 

III. The Moore Company's Should be Ordered to Produce All Documents Responsive
 

to Respondent's Subpoena Duces Tecum. 

Respondent seeks the immediate production of documents and electronic data responsive 

to its subpoena duces tecum. Counsel for Respondent has attempted to negotiate with counsel 

for The Moore Company in order to reach a resolution on The Moore Company's compliance 

with Respondent's subpoena. Respondent and The Moore Company have been unable to resolve 

the dispute and Respondent therefore respectfully petitions this Cour for an Order requiring 

immediate compliance. 

8 Particularly where, as here, the complaining part failed to raise with any specificity the purported scope or burden 

issues in advance of filing a motion to limit the subpoena and seek costs. 

23 

PPAB l520659v1 
A. POL YPORE'S SUBPOENA SEEKS RELEVANT INFORMATION
 

As discussed at length above, the factual allegations of 
 the Commission's Complaint and 

the Respondent's defenses to the allegations contained therein make it clear that the information 

sought by Respondent's subpoena duces tecum is relevant. By way of example, Polypore cannot 

rebut the FTC's allegation that it has monopolized the battery separator market without
 

information about its competitor's market share, geographic scope and product line. (Subpoena, 

Nos. 7-13). Polypore cannot rebut the FTC's allegation that its acquisition of Microporous led to 

higher prices without information about its competitor's pricing as related to Respondent and 

other competitors. (Subpoena, Nos. 5, 14-15, 21). Polypore canot rebut the FTC's allegation 

that testing and capital requirements prevent entry into the market without information about its 

competitor's qualification process and capital requirements. (Subpoena, Nos. 27, 31). Polypore 

canot rebut the FTC's allegation that battery separators manufactured for a particular 

application cannot be effectively used for other applications without information about its 

competitor's competitive products for certain applications and the end-use of such products. 

(Subpoena, Nos. 1-2, 16, 18, 24-26, 30, 34). Polypore cannot rebut the FTC's allegation that 

battery separator producers outside North America cannot economically compete with Polypore 

in the United States without information about its competitor's sales and cost data. (Subpoena, 

No. 5-6, 17, 19-20). And finally, Polypore canot rebut the FTC's allegation that Amer-Sil's 

manufacturing capacity constrains it from expanding production without information about 

Amer-Sil's manufacturing capacity. (Subpoena, Nos. 3-4). Polypore's receipt and review of
 

The Moore Company's materials is necessary for its defense and any further delay or limitation 

on this review wil tilt the playing field heavily in favor of the FTC. 

The FTC's own investigative efforts demonstrate the relevance of Amer-Sil in the battery 

separator market. (Redacted - Subject to Protective Order). Certainly, Respondent is also
 

24 PP AB I 520659v I 
entitled to seek discovery of this information in order to challenge and probe these bare and 

conclusoryassertions. The FTC's Rules allow Respondent to "obtain discovery to the extent that 

it may be reasonably expected to yield information relevant to the allegations in the complaint, to 

the proposed relief, or to the defenses of (the) respondent." 16 CF.R. § 3. 
 31 (c) (I). The 

documents sought by Respondent are highly relevant to the issues raised in the pleadings and 

should be immediately produced. See In re Kaiser Aluminum & Chem. Corp., 1976 FTC LEXIS 

at *6-8 (opining that "(i)nformation in the files of competing companies is frequently crucial in 

(FTC) proceedings" and such proceedings "would be crippled if neither the Commission not the 

party charged could produce the essential industry data"). 

B. POL YPORE'S SUBPOENA is NOT OVERLY BURDENSOME
 

As noted above, there is no merit to The Moore Company's claim of undue burden. 

"(T)he public interest requires that once a complaint issues . . . Commission counsel (and 

respondent's counsel when they put on their defense) be given the opportunity to develop those 

facts which are essential" to support or undermine the allegations in the pleadings. In re Gen. 

Foods., No. 9085 C, 1978 FTC LEXIS 412 at *6 (April 18, 1978). A subpoena "seeking 

relevant data wil not be quashed on the grounds that the burden is imposed on a third party, 

especially where the party initiating the subpoena has expressed a wilingness to mitigate 

whatever burden may exist by negotiation and compromise." General Motors Corp., 1977 FTC 

LEXIS 18 at * 1 (Nov. 25, 1977). The Moore Company bears the burden of showing that 

compliance with the subpoena imposes an unreasonable burden: 

The burden ofns!,owing that the request is uneasonable is on the subpoenaed 

pary. Furher, that burden is not easily met where, as here, the agency inquiry is
 

pursuant to a lawfl purpose and the requested documents are relevant to that 

purpose. Broadness alone is not sufficient justification to refuse enforcement of a 

subpoena. Thus courts have refused to modify investigative subpoenas unless 

compliance threatens to unduly disrupt or seriously hinder normal operations of a 

business. FTC v. Texaco, Inc., 555 F.2d 862,882 (D.C. Cir.1977). 

25 

PPAB 1520659v1 
The Moore Company has not and cannot meet its burden. (Redacted - Subject to Pending 

Motion for In Camera Treatment). Such unsupported allegations are clearly insufficient to 

support a limitation of the subpoena. The Moore Company's alleged, but unsupported, cost 

information and the allegation that the requested information can be obtained from U.S. battery 

manufacturers is also unpersuasive. "Even where a subpoenaed third pary adequately
 

demonstrates that compliance with a subpoena wil impose a substantial degree of burden, 

inconvenience, and cost, that will not excuse producing information that appears generally
 

relevant to the issues in the proceeding." In re Kaiser Aluminum & Chem. Corp., 1976 FTC 

LEXIS at * 19-20. As previously described, the subpoena seeks information relevant to the 

issues raised in the pleadings and should be complied with forthwith. 

CONCLUSION 

For the foregoing reasons, Respondent Polypore respectfully moves this Court to deny 

The Moore Company's Motion to Limit Subpoena Duces Tecum and for Cost Reimbursement 

and additionally, enter an order compellng The Moore Company to immediately comply with 

Respondent's subpoena duces tecum.
 

26 

PPAB 1520659v1 
Dated: January 8, 2009 Respectfully Submitted,
 6 !//

Wiliam L. Rikard, Jr. 

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 

wiliamrikard~parkerpoe. com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

iohngraybeal~parkerpoe.com 

Attorneys for Respondent 

PPAB 1520659v1 
CERTIFICATE OF SERVICE 

I hereby certify that on January 8, 2009, I caused to be fied via hand delivery and 

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

in Oppositon to the Moore Company's Motion to Limit Subpoena Duces Tecum andfor Cost 

Reimbursement and in Response to The Moore Company's Motion 
 for In Camera Treatment
 

of Material and in Support of Respondent's Cross-Motion to Compel the Moore Company to 

Produce Documents Requested by Subpoena Duces Tecum, 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 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary(8ftc. gov 

I hereby certify that on Januar 8, 2009, I caused to be served one copy via electronic 

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

Memorandum in Opposition to the Moore Company's Motion to Limit Subpoena Duces 

Tecum andfor Cost Reimbursement and in Response to The Moore Company's Motion 
 for In 

Camera Treatment of Material and in Support of Respondent's Cross-Motion to Compel the 

Moore Company to Produce Documents Requested by Subpoena Duces Tecum upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali(8ftc.gov 

I hereby certify that on January 8, 2009, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Memorandum in Opposition 

to the Moore Company's Motion to Limit Subpoena Duces Tecum and for Cost 

Reimbursement and in Response to The Moore Company's Motion 
 for In Camera Treatment
 

of Material and in Support of Respondent's Cross-Motion to Compel the Moore Company to 

Produce Documents Requested by Subpoena Duces Tecum upon: 

PPAB 1520659v1 
J. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rro bertson~ftc. gov sdah~ftc.gov 

Michael 1. Connolly 

Laura B. Angelini 

Hinckley, Allen, & Snyder LLP 

28 State Street 

Boston, Massachusetts 02109-1775 

mconnollv~HASLAW.com 

lanqelini~HASLAW.com ~c~
 

Adam C. Shearer 

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 

PPAB 1520659v1 
Tab A 
The AMER-SIL Company Page 1 of2 

AMER-SIL S.A. 

AMER-SIL S.A. was founded in 1970 to produce high~quality microporous PVC/Silica separators to be used 

in Industrial Lead Acid batteries. Its production facilities and offices are located near Kehlen in the Grand 

Duchy of Luxembourg, in the heart of Europe. 

AMER-SIL S.A. has acquired a well deserved reputation for top product quality and excellent service over 

the past thirty years. It was accredited with an ISO 9002 certification in 1994, followed by ISO 9001 

certification in 1997 and its Quality/Service Departments have been audited by major Battery Companies. 

AMER-SIL S.A. Maintains its position as the leading European Industrial Battery Separator supplier and 

markets its products worldwide. 

AMER-SIL S.A. is a wholly owned subsidiary of THE MOORE COMPANY, headquartered in Westerly, R.I., 

USA. 

Coordinates 

Amer-Sil S.A. Luxembourg: 

Zone industrielle 

L-8287 KEHLEN 

LUXEMBOURG 

Phone: +352-309282-1
 

Fax: +352-308375 

E-mail: amer-silcæamer-sil.com 

Sales representatives: 

CHINA: 

Plastam Battery Components (Shanghai) Co., Ltd 

Contact: Mr. Yang Deyao 

Shuangdeng Industrial Park 

http://amer-sil.com/rames/Comp_About.htm 1/7/2009 
The AMER-SIL Company Page 2 of2 

Liangxu, Jiangyan 

Jiangsu Prov. 225526
 

PR CHINA 

Phone: +86-523-8912358
 

Fax: +86-523-8912356 

E-mail: plastam(Qplastam.com.cn or 

yang .deyao(Qplastam.com.cn 

KOREA: 

EBC Korea Co., Ltd 

Contact: Mr. Jhames Lee 

Room No. 1222 Byucksan Digital Valley ii 

#481-10 Gasan Dong 

Keum Cheon GU 

SEOUL, Rep. of Korea 

Phone: +82-2-2113 1700
 

Fax: +82-2-2113 1701
 

E-mail: ebc~ebckorea.com 

THAILAND: 

TPEC Enterprise Co. Ltd 

Contact: Mr. Kosakd Leetavorn 

33 Sukhumvit 46 

Sukhumvit Road, Prakanong 

Klongtoey 

BANGKOK 10110 

Thailand 

Phone: +662-381 24801
 

Fax: +662-381 2482 

E-mail: tesikrap~cscoms.com 

TAIWAN: 

EU-POR Co. Ltd 

Contact: Mr. J. A. Wang 

San Min Road, 84, 7th Floor 

Hsin Tien City 

TAIPEI HSIEN 

Taiwan 

Phone: +886-2-291 45767
 

Fax: +886-2-291 45337 

E-mail: eupor~ms16.hinet.net 

AMER-SIL S.A. is member of the following international organisations: 

-E- r~ EUBAT
 

http://amer-sil.comlrames/Comp_About.htm 11712009 
TabB
 
TABB
 

(Redacted - Subject to Protective Order)
 

2
 
TabC
 
TABC
 

(Redacted - Subject to Protective Order)
 

3
 
TabD
 
TABD
 

(Redacted - Subject to Protective Order)
 

4
 
TabE
 
rÐ ~(Q (T'" 'J7 

UNITED STATES OF AMERICA 

FEDERA TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of
 

Docket No. 9327
 

Polypore International, Inc.
 

a corporation.
 

PROTECTIVE ORDER GOVERNING DISCOVERY MA TERlAL 

For the purpose of protecting the interests of the Parties and Third Parties in the ahovecaptioned matter against improper use and disclosure of confidential infomiation submitted or 

produced in connection with this Matter: 

IT is HEREBY ORDERED THATthis Protective Order Governing Confidential 

Material ("Protective Order") shall govern the handling of all Discovery Material, as hereafter 

defined. 

DEFINITIONS
 

For purposes of this Protective Order, the following definitions apply:
 

I. "Confidential Maierial" shall mean all Discovery Material that is confidential or
 

proprielar information produced in discovery. Such material is referred to in, and protected by, 

section 6(f) ofihc Federal Trade Commission Act, iS U.S.C. § 46(1); section 2 i of 
 the Federal
 

Trade Commission Act, IS U.S.C. § 57b-2, the FTC Rules of 
 Practice, Sections 4.9, 4.10, 16
 

C.F.R. §§ 4.9, 4.10; and precedents thereunder. Confidential Matenal shall include non-public 

trade secret or other research, development, commercial or financial information, the disclosure 

of which would likely cause commercial har to the Producing Party or to Respondent. The 
following is a non-exhaustive Iisl of examples of ¡nfonnaiion that likely will qualify for 

treatment as Confidential Material: strategic plans (involving pricing, marketing, research and 

development, product road maps, corporate alliances, or mergers and acquisitions) that have not 

been fully implemented or revealed to the public; trade secrets; customer-specitic evaluations or 

data (e.g., prices, volumes, or revenues); sales contracts; system maps; personnel fies and 

evnluations; information subject to confdentiality or non-disclosure agreements; proprietary 

technical or engineering information; proprietary financial data or projections; and proprietary 

con~iUmer, customer, or market research or analyses applicable to current or future markct
 

conditions, the disc1osW'c of wlùch could rcveal Confidential MateriaL. Discovery Material \\-ill 

not be considered confidential if it is in the public domain. 

2. "Document" means the complete original or a true, correct, and complete copy 

and any non-identical copies of any wrtten or graphic matter, no matter how produced, 

recorded, stored, or reproduced. "Document" includes, but is not limited to, any wrting, letter, 

envelope, telegraph, e-mail, meeting minute, memorandum, statement, uffdavit, dcclaration, 

transcript of oral testimony, book, record, survey, map, Shidy, handwrtten note, working paper, 

char, index, tabulation, graph, drawing, char, printout, microtìm index, computer readable 

media or other electronically stored data, appointment book, diary, diar entry, calendar, 

organizer, desk pad, telephone message slip, note of interview or communication, and any other 

data compilation from which infonnation can be obtained, and includes all drafts and all copies 

of such Documents and evcry wrting or record thaI contains any commentary, notes, or marking 

whatsoever not appearng on the originaL. 

3. "Discovery Material" includes without limitation deposition testimony, exhibits,
 

interrogatory responses, admissions, affdavits, declarations, Documents, tangible thing or 

-2­
answers to questions produced pursuant to compulsory process or voluntarly in lieu thereof, 

and any other Documents or infonnation produced or given to one Part by another Part or by a 

Third Pary in eoriection with discovery in this Malter. Infonnation taken from Discovery
 

Material that reveals its substance shall also be considered Discovery MateriaL.
 

4. "Commission" shall refer to the Federal Trade Commission, or any of its 

employees, agents, uttorncys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding.
 

5. "Polypore" means Polypore International, Inc., and its predecessors, divisions, 

and subsidiaries, and all persons acting or purporting to act 011 its behalf. 

6. "Respondent" means Polypore.
 

7. "Party" means the Commission or Polypore.
 

8. "Third Par" means any natural person, partnership, corporation, association, or 

other legal entity not named as a Par to this Matter and its employees, directors, offcers, 

attorneys and agents. 

9. "Producing Par" means a Part or Third Par that produced or intends to 

produce Confidential Material to any of the Parties. With respect to Confidential Material of a 

Third Par that is in the possession, custody or conlrol oflhc FrC, or has been produced by the 

FTC in this matter, the Producing Part shall mean the Third Part that originally provided such 

material to ihc FTC. The Producing Part shall mean the FTC ror puroses of any Docwnent or 

Discovery Matenal prepared by, or on behalf of, the FTC. 

10. "Matter" means the above captioned matter pending before the Federal Trade 

Commission, and all subsequent administrative, appellate or other review proceedings related 

thereto. 

-3­
TERMS AND CONDITIONS OF PROTECTIVE ORDER 

I. Any Document or portion thereof submitted by Respondent or a Third Pary 

during the Federal Trade Commission ("FTC") investigation preceding this Matter or during the 

course of proceedings in this Matter that is entitled to confid\:ntiality under the Federal Trade 

Commission Act, or any regulation, interpretation, or precedent concerning documents in the 

possession of the Commission, as well as any infonnation taken from any portion of such 

document, shall be treated as Confidential Material for purposes of this Protective Order. For 

purposes of this Protective Order, the identity of a Third Party submitting such Confidential 

Material shall also be treated as Confidential Material where the submitter has requested in 

wrting such confidential treatment. 

2. The Parties and any Third Paries, in complying with informal discovery requests,
 

disclosure requirements, discovery demands or formal process in this Matter may designate any 

responsive document or portion thereof Confidential Material. including documents obtained by 

them from Third Parties pursuant to discovery or as otherwise obtained. 

3. The Paries, in conducting discovery from Third Parties, shall provide to each
 

Third Part a copy of this Protective Order so as to inform each such Third Part of his, her or its 

rights herein.
 

4. A designation of confidentiality shall constitute a representation in good faith a.nd
 

after careful determination that the material is not reasonably believed to be already in the publie 

domain and that counsel believes the material so designated constitutes Confidential Material as 

defined in Paragraph i of the Definitions of 
 this Protective Order. All deposition transcnpts 

.4. 
shall be treated as Confidential MateriaL.
 

5. If any Part seeks to challenge the Producing Par's designation of matenal as
 

Confidential Material, the challenging Part shall notify the Producing Par and all other Paries 

of the challenge. Such notice shall identify with specificity (i.e., by document control numbers, 

deposition transcript page and line reference, or other means suffcient to locate easily such 

materials) the designation being challenged. The Producing Part may preserve its designation 

by providing the challenging Part and all other Parties a WTtlen statement of the reasons ror the 

receiving notice orthe confidentiality challenge. If 

the Producing Party timely preserves its rights, the Paries shall continue to treat the challenged 

designation within five (5) business days of 


material as Confidential Materials, absent a wrtten agreement with the Producing Par or order 

orthe Commission providing otherwise. 

6. If any contlct regarding a confidentiality designation arses and the Paries and
 

Producing Pary involved have railed to resolve the contlct via good-faith negotiations, a Part 

seeking to disclose Confidential Material or challenging a confidentiality designation may make 

wrtten application to the hearing offcer for relief. The application shall be served on the 

Producing Par and the other Parties to this Matter, and shall be accompanied by a certification 

that good-raith'negotiations have failed to resolve the outstanding issues. The Producing Par 

and any other Party shall have five (5) business days after receiving a copy of the motion to 

respond to the application. While an application is pending, the Paries shall maintain the preapplication status of the Confidential MateriaL. Nothing in this Protective Order shall create a 

presumption or alter the burden of 
 persuading the hearing offcer of the propriety of a requested

disclosure or change in designation. 

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7. The Parties shall not be obligated to challenge the propriety of any designation or
 

treatment of information as Confidential Material and the failure to do so promptly shall not 

preclude any subsequent objection to such designation or treatment, or any motion seeking 

pennission to disclose such material to Persons not otherwise entitled to access under the terms 

of this Protective Order. If Confidential Material is produced without the designation attached,
 

the material shall be treated as Confidential from the time the Producing Party advises 

Complaint Counsel and Respondent's Counsel in wrting that such material should be so 

designated and provides all the Parties with an appropriately labeled replacement. The Parties 

shall return promptly or destroy the unmarked materials. 

8. Material produced in this Malter may be designated as confidential by placing on
 

or aflxing to the document containing such material (in such manner as will not interfere with 

the legibility thereof), or if an entire folder or box of documents is confidential by placing or 

affxing to that folder or box, the designation "CONFroENTIAL-FTC Docket No. 9327" or any 

other appropriatt: notice that considered to bt: confidential materiaL. Confidential infomiation 

contained in electronic documents may also be designated as confidential by placing the 

designation "CONFIDENTIAL-FTC Docket No. 9327" or any other appropriate notice that 

identifies this proceeding, on the face of the CD or DVD or other mediwn on which the 

document is produced. Thc foregoing designation of "CONlIDENTIAL-FTC Docket No. 9327" 

shall not be required for confidentiality to apply to documents and il1fonnation previously 

produced voluntarily or pursuant (0 a Civil Invesiigaiive Demand or subpoena during the 

investigational phrase preceding this Malter lor whicli confdentiaJ treatment was requested. 

Masked or otherwise redacted copies of documents may be produced where the portions deleted 

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contain privileged matter, provided that the copy produced shall indicate at the appropnate point 

that portions have been deleted and the reasons therefor. 

9. Confidential Material shall be disclosed only 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 us experts or 

consultants for this proceeding, (b) judges and other court personnel of any cour having 

jurisdiction over any appellate proceedings involving this matter, (c) court reporters in this 

maHer, (d) outsiùe counsel of record for Respondent, its associated attorneys and other 

employees of Its law fimi(s), provided they are no! employees of Respondent, (e) Michael Shor, 

Polypore Special Counsel, (I) anyone retained to assist outside counsel in the preparation of 

hearng of this proceeding including consultants, provided they arc not affliated in any way with 

Respondent and have signed Exhibit A hereto. (g) any witness or deponent who may have 

authored or rt:ceIved the information in question; (h) any individual who was in the direct chain 

of supervision of the author at the time the Discovery Material was created or received, except 

that this provision does not pennit disclosure of Industrial Growth parner or Warburg Pincus 

International documents to Polypore or former Microporous personnel who would not otherwise 

have had access to the Discovery Material; (i) any employee or agent of the entity that created or 

received the Discovery Material; (j) anyone representing the author or recipient of the Discovery 

Material in this Matter; and (k) any other Person(s) authorized in wrting by the Producing Pary, 

10. Disclosure of confidential material to any person described in Paragraph 9 of this
 

Protective Order shall be only for the purposes of the preparation and hearng of this Matter, or 

any appeal therefrom, and for no other pw-se whatsoever; provided, however, that the 

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--

Commission may, subject to taking appropriate steps to preserve the confidentiality of such 

material, use or disclose confidential materials as provided by its Rules of Practice; Sections 6(f) 

and 21 of the Federal Trade Commission Act; or any other legal obligation imposed upon the 

Commission. 

11. In the event that any Confidential Material is contained in any pleading, motion
 

ex.hibit or other paper fied or to be filed with the Secretai)' otthc Commission, the Secrctary 

shall be so informed by the Pary filing such papers, and such papers shall be fied under seaL.
 

To the extent that such material was originally submitted by a Third Pary, the Party including 

the Materials in its papers shall immediately notify the submitter of such inclusion. Confidential 

Material contained in the papers shall remain undcr seal until further order of the Administrative 

Law Judge; provided, however, that such papers may he furnished to persons or entities who 

may receive Confidential Material pursuant to Paagraphs 9 or to. Upon or after filing any 

paper containing Confidential Material, the fiing part shall fie on the public record a duplicate 

copy of the paper that does not reveal confidential materiaL. Furher, if the protection of any . 

such material expires, a Part may file on the public record a duplicate copy which also contains 

the formerly protected materiaL.
 

i 2. If counsel plans to introduce into evidence at the hearng any document or
 

transcript containing Confidential Material produced by another Part or by a Third Par, they 

shall provide ten (i 0) days advance notice to the other Part or Third Par for purposes of 

allowing that Par or Third Party to seek an order that the document or transcript be granted in 

camera treatment. If that Par or Third Pary wishes in camera treatment for the document or
 

transcript, the Par or Third Par shall fie an appropriate motion with the AdmilÚstrative Law
 

-8­
Judge. Where in camera treatment is granted, a duplicate copy of such document or trancript 

with the Confidential Material deleted therefrom may be placed on the public record. 

13. If any Par receives a discovery request in another proceeding that may require
 

the disclosure of Confidential Material submitted by another Part or Third Par, the recipient
 

of th~ discovery request shall promptly notify the submitter of receipt or such reques\. Unless a 

,shorter time is mandated by an order ora court, such notification shall be in writing and be 

received by the submitter at least 10 business days before production, and shall include a copy of 

this Protective Order and a cover letter that will apprise the submitter of its rights hereunder. 

Nothing herein shall be construed as requiring the recipient of the discovery request or anyone 

else covered by this Order to challenge or appeal any order requiring production of Confidential 

Material, to subject itself to any penalties for non-compliance with any such order, or to seck any 

relief from the Administrative Law Judge or the Commission. The recipient shall not oppose the 

submitter's efforts to challenge the disclosure of confidential materiaL. In addition, nothing 

herein shall limit the applicability of Rule 4.11(e) of ihe Coinmission's Rules of Practice, 16 

C.F.R. §4.ll(e), to discovery requests in another proceeding that are directed to the Commission. 
i S. The inadvertent production or disclosure of any Discovery Material, which a
 

Producing Par claims should not have been produced or disclosed because of a privilege, wil 

any privilege to which the Producing Part would have been 

entitled had the privileged Discovery Material not inadvertently been produced or disclosed. 

The inadvertent production of a privileged document shall not in itself be deemed a waiver of 

any privileged applicable to any other documents relating to the subject matter. 

not be deemed to be a waiver of 


16. This Protective Order shall not apply to the disclosure by a Producing Pary or its
 

counsel of its own Coitfdential MateriaL. 

i.,. The provisions of this Protective Order. insofar as they restrict the
 

corrnurucation and use of confidential discovery material, shall. without written pem1ission of 

the submitter or further order of the Conunission, continue to be binding after the conclusion of 

this proceeding. 

ORDERED: 'f) Yv c4~ 

D. Michael Chappell 

Admirústrative Law Judge 

Date: October 23,2008
 

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EXHIBIT A 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION
 

OFFICE OF AOMINISTRA TIVE LAW JUDGES
 

.) 

In the Matter or ) 

) Docket No. 9327 

Polypore Intcroatiooal, Inc. ) 

a corporation. ) 

) 

DECLAR6.TION CONCERNING PROTECTlVE ORDER
 

GOVERNING DISCOVERY MATERIAL
 

I, . hereby declare and certify the following to b~ true:
 

I. (Statement of employment)
 

2. i have read the "Protective Order" governing Discovery Material ("Protective
 

Order") issued by the Commission on October 23, 2008, in connection with the above-captioned 

Mattcr. 1 understand the restrictions on my access to and use of any Confidential Material (as 

that tenn is used in the Protective Order) in trus Matter, and I agree to abide by the Protective
 

Order. 

3. 1 understad that the restrictions on my use of such Confidentiality Material
 

include: 

a. that I will use such Confidential Material only for the purpose of preparng
 this proceeding and for this proceeding, and hearing(s) and any appeal of 


for no other purpse; 

liS b. that I will not disclose such Confidential Material to anyone, expect 


pennitted by the Protective Order; 

c. that I will use, store and maintain the Confidential Material in such a way
 

as to ensure its continued protected status; and 

d. that, upon the termination of my participation in this proceeding, 1 wil
 

promptly return all Confidential Materials and all notes, memoranda, or other papers containing 

Confidential Material, to Complaint Counselor Respondent's Outside Counsel as appropriate. 

4. i understad that iff am receiving Confidential Material as an ExpertConsultant,
 Confidential as that term is defined in this Protective Order, the restnctions on my use of 


- i i. 
Material also include the duty and obligation to: 

a. maintain such Confidential Material in separate locked room(s) or locked
 

cabinet(s) when such Confidential Material is not being reviewed; 

b. return such Confidential Material to Complaint Counselor Respondent's
 

Outside Counsel, as appropriate, upon the conclusion of my assignment or 

retention, or upon conclusion of this Matter; and 

c, use such Confidential Material and the information contained therein
 

solely for the purpose of rendering consulting services to a Par to trus 

Matter, including providing testimony in judicial or administrative 

proceedings arsing out of this Matter. 

S. i am fully aware that, pursuant to Section 3.42(h) of the FTC Rules of Practice, i 6
 

C.F.R. § 3.42(h), my failure to comply with the temis of the Protective Order may constitute 

contempt of the Commission and may subject me to sanctions, 

Date: 

Full Name (Typed or Printed) 

Signature 

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