ORIGINAL
 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

) 

) 

POL YPORE INTERNATIONAL, INC., 

) 

) 

Docket No. 9327 

Respondent. ) 

) 

ORDER ON NON-PARTIES' MOTIONS FOR 
 IN CAMERA TREATMENT 

I. 

Pursuant to Rule 3.45(b) of the Commission's Rules of 
 Practice and the October 22,2008 

Scheduling Order entered in this matter, several non-paries filed motions for in camera 

treatment for materials that the parties have listed on their exhibit lists as materials that might be 

introduced at trial in this matter. Neither Complaint Counsel nor Respondent have filed an 

opposition to any of the motions addressed below filed by the non-paries. 

II. 

Under Rule 3.45(b) of the Federal Trade Commission's Rules of 
 Practice, the 

Administrative Law Judge may order that material "be placed in camera only after finding that 

its public disclosure wil likely result in a clearly defined, serious injury to the person, 

partnership or corporation requesting in camera treatment." 16 C.F.R. § 3.45(b). Accordingly, 

in proceedings at the Federal Trade Commission, "requests for in camera treatment must show 

'that the public disclosure of the documentary evidence wil result in a clearly defined, serious 

injury to the person or corporation whose records are involved.'" In re Kaiser Aluminum & 

Chem. Corp., 103 F.T.C. 500, 500 (1984), quoting In re H P. Hood & Sons, Inc., 58 F.T.C. 

1184, 1188 (1961). Applicants for in camera treatment must "make a clear showing that the 

information concerned is sufficiently secret and sufficiently material to their business that 

disclosure would result in serious competitive injury." In re General Foods Corp., 95 F.T.C. 

352,355 (1980). If 
 the applicants for in camera treatment make this showing, the importance of 

the information in explaining the rationale of decisions at the Commission is "the principal 

countervailing consideration weighing in favor of disclosure." Id. 

The Federal Trade Commission recognizes the "substantial public interest in holding all 

aspects of adjudicative proceedings, including the evidence adduced therein, open to all 

interested persons." Hood, 58 F.T.C. at 1186. A full and open record of the adjudicative 

proceedings promotes public understanding of decisions at the Commission. In re Bristol-Myers 

Co., 90 F.T.C. 455, 458 (1977). A full and open record also provides guidance to persons 
affected by its actions and helps to deter potential violators of the laws the Commission enforces. 

Hood, 58 F.T.C. at 1186. The burden of 
 showing good cause for withholding documents from 

the public record rests with the party requesting that documents be placed in camera. Id. at 

i 188. However, a request for in camera treatment by a non-party warants "special solicitude." 

In re Crown Cork & Seal Co., 71 F.T.C. 1714, 1715 (1967). 

Under Commission Rule 3.45(b)(3), indefinite in camera treatment is warranted only "in 

unusual circumstances," including circumstances in which "the need for confidentiality of the 

material. . . is not likely to decrease over time." 16 C.F.R. § 3.45(b)(3). The Commission has 

nonetheless recognized that "in some unusual cases 'the competitive sensitivity or the 

proprietar value of the information for which in camera treatment is requested wil not
 

necessarily diminish, and may actually increase, with the passage of time.'" In re Coca-Cola 

Co., 1990 FTC LEXIS 364, at *7 (Oct. 17, 1990) (quoting Commission comments on 

amendments to the Rule). 

The Commission has recognized that it may be appropriate to provide in camera 

treatment to business records to be introduced as evidence. In re Champion Spark Plug Co., 

1982 FTC LEXIS 85, at *2 (April 5, 1982); see Hood, 58 F.T.C. at 1188-89; Kaiser Aluminum, 

103 F.T.C. at 500. Where in camera treatment is granted for business records, such as business 

strategies, marketing plans, pricing policies, or sales documents, it is typically extended for two 

to five years. E.g., In re Union Oil Co. ofCal., 2004 FTC LEXIS 223, at *2 (Nov. 22, 2004); In 

re Intl Ass 'n of 
 Conference Interpreters, 1996 FTC LEXIS 298, at *13-14 (June 26, 1996); 

Champion Spark Plug, 1982 FTC LEXIS 85 at *2 and 1982 FTC LEXIS 92, at *2 (March 4, 

1982). In addition, there is a presumption that in camera treatment wil not be accorded to 

information that is more than three years old. Conference Interpreters, 1996 FTC LEXIS 298, at 

*15 (citing General Foods, 95 F.T.C. at 353; Crown Cork, 71 F.T.C. at 1715). 

In order to sustain the burden for withholding documents from the public record and to 

overcome the presumption that in camera treatment may be withheld for information that is 

three or more years old, an affidavit or declaration demonstrating that a document is sufficiently 

secret and sufficiently material to the applicant's business that disclosure would result in serious 

competitive injury is required. See In re North Texas Specialty Physicians, 2004 FTC LEXIS 

109, at *2-3 (Apr. 23,2004). 

III. 

As set forth below, each ofthe non-parties filed separate motions for in camera treatment 

that complied with the standards for granting in camera treatment. Each motion was supported 

by an affidavit or declaration of an individual within the company who had reviewed the 

documents. These affidavits or declarations supported the applicants' claims that the documents 

are sufficiently secret and sufficiently material to their business that disclosure would result in 

serious competitive injury. That showing was then balanced against the importance of the 

information in explaining the rationale of decisions at the Commission. Each motion attached 

the documents or deposition testimony for which in camera treatment was sought. Where in 

camera treatment for deposition testimony was sought, the non-pary narrowed its requests to 

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specific page and line numbers. The specific motions of each of the non-parties are addressed 

below. 

A. 

Non-party EnerSys submitted a motion for in camera treatment on April 9, 2009. 

EnerSys supports its request with a Declaration from Lar Axt, who states that he is the Vice 

President, Global Procurement, of EnerSys ("Axt Declaration"). Axt declares that the 

information contained in the documents for which EnerSys seeks in camera treatment is secret, 

commercially sensitive, and material to EnerSys' current and prospective business. According 

to the Axt Declaration, the documents contain commercially proprietary and confidential 

information regarding EnerSys' prices, costs, procurement spending, supply of raw materials or 

inputs, purchasing outlook, planning and strategy, and product technical detaiL. Axt further 

declares: that each of these documents has been maintained internally by EnerSys in a 

confidential maner, shared only with those individuals requiring knowledge ofthe information 

the document contained; that the information in these documents was not made available to 

EnerSys' competitors or other outside persons; that all of the information in the documents is 

held in strict confidence by EnerSys; and that if such information were publicly disclosed, 

EnerSys would suffer serious competitive injury. 

EnerSys requests in camera treatment for each of its documents for a period of at least 

ten years.
 

A review ofthe Axt Declaration in support of EnerSys' Motion and of the documents 

reveals that all but one of the documents for which protection is sought meet the standards for in 

camera treatment. In camera treatment is DENIED for a July 2004 EnerSys "Investor 

Roadshow" document, bearng Bates stamps EN18267 through EN18300, for two reasons: The 

documentary evidence does not appear sufficiently secret and material to EnerSys' business that 

disclosure would result in serious competitive injury, and the document is over three years old 

and EnerSys has not provided sufficient 
 justification for extending in camera treatment to it. For 

all other documents, EnerSys has not demonstrated circumstances necessitating an extension of 

in camera treatment beyond the five-year period typically given to business records. 

Accordingly, EnerSys' motion is GRANTED in part. 

In camera treatment, for a period of 
 five years, to expire on June 1,2014, wil be 

extended to the documents listed by the parties in accordance with Section IV of this Order. 

B. 

Non-party Entek International LLC ("Entek") submitted a motion for in camera 

treatment on April 9, 2009. Entek supports its motion with a Declaration from Dan Weerts, Vice 

President of Sales & Marketing at Entek ("Weerts Declaration"). Weerts states that all of the 

documents for which Entek seeks in camera treatment contain confidential business information, 

the disclosure of which would seriously injure Entek's ability to compete. Weerts further states 

that the documents are material to Entek's business as core company information and/or 

important business records. The documents are, according to his Declaration, grouped into six 

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subject matter categories: (1) customer contracts, (2) confidential communications with 

customers and/or confidential customer information, including Entek's strategy for keeping 

and/or securing additional business, (3) Entek's price lists, individual customer pricing, and 

product costs, (4) Entek's sales and/or capacity, (5) Entek's products and the testing thereof; and 

(6) Entek's global business plans and strategy. Weerts declares, for the documents in each of 

these subject matter categories, that the "( dJetails are disclosed only to a select group" of Entek 

employees, and that all Entek employees are required to sign a non-disclosure agreement 

covering all of the kinds of documents included in these categories. 

Entek requests in camera treatment for each of these documents for a specified period of 

either one, three, or five years.
 

A review ofthe Weerts Declaration in support ofEntek's motion and ofthe documents 

reveals that all of the documents sought to be protected meet the standards for in camera 

treatment. Accordingly, Entek's motion is GRANTED. 

In camera treatment for a period of 
 five years, expiring on June 1, 2014, wil be extended 

to the documents for which Entek requests in camera treatment of such duration, in accordance 

with Section IV ofthis Order.
 

In camera treatment for a period ofthree years, expiring on June 1,2012, wil be 

extended to the documents for which Entek requests in camera treatment of such duration, in 

accordance with Section IV of 
 this Order. 

In camera treatment for a period of one year, expiring on June 1,2010, will be extended 

to the documents for which Entek requests in camera treatment of such duration, in accordance 

with Section IV of this Order. 

c. 

On April 9, 2009, non-party Exide Technologies ("Exide") submitted a motion seeking in 

camera treatment for documents relating to three categories: (1) Exide's ongoing contract 

negotiations with potential suppliers, including information about the price, volume, and other 

terms of the offers Exide received from potential suppliers, Exide's internal evaluations of those 

offers, and Exide's negotiating strategies and objectives; (2) specific and detailed information 

about costs, prices, volumes, and contract terms, including information about Exide's current 

contract with Daramic; and (3) strategic planing documents that disclose sales opportnities, 

product plans, strategies for dealing with particular customers, price and volume data, 

evaluations of specific suppliers, potential business partners and opportnities. Exide seeks in 

camera treatment for a period ofthree years for the documents in category (1), one year for the 

documents in category (2), and two years for the documents in category (3). 

Exide's motion provides a declaration ofPradeep Menon, who states that he is Vice 

President of Commodities and Strategic Supplier Development at Exide ("Menon Declaration"). 

According to the Menon Declaration, the documents regarding ongoing contract negotiations for 

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which in camera treatment is sought contain material that Exide regards as highly confidential, 

the disclosure of 
 which could, the Declaration states, severely compromise Exide's negotiating 

position with potential suppliers. The Menon Declaration also states that the public release of 

documents that reveal detailed information about prices, costs, volumes, and specific contract 

terms, and the public release of the three strategic planning documents, would cause Exide 

serious commercial and competitive harm. 

A review of the Menon Declaration in support of the motion and of the documents 

reveals that the information Exide seeks to protect meets the standards for in camera treatment, 

except with respect to the following documents: (1) documents bearing Bates stamps EX002390 

through EX002451 (i.e., all of the documents that Exide provides under "Tab 16"), and (2) 

documents bearing Bates stamps that are, for the first and many subsequent pages, cut off, but 

that conclude with Bates stamp ETIHC_0001758 (i.e., all of 
 the documents that Exide provides 

under "Tab 37"). These specified documents, under Exide Tabs 16 and 37, are over three years 

old and the Menon Declaration does not provide a sufficient justification for extending in 

camera treatment to them. 

Accordingly, Exide's motion is GRANTED with respect to all documents except for the 

documents specified above under Exide Tabs 16 and 37. With respect to those documents, 

Exide's motion is DENIED WITHOUT PREJUDICE, to allow the company an opportnity to 

demonstrate, if it can, that in camera treatment would be warranted. 

In camera treatment, for a period ofthree years, expiring on June 1,2012, wil be granted 

to Exide's documents concerning its ongoing contract negotiations with potential suppliers in 

accordance with Section IV of this Order. 

In camera treatment, for a period of one year, expiring on June 1, 2010, wil be granted 

to Exide's specific and detailed information about costs, prices, volumes, and contract terms in 

accordance with Section IV of this Order. 

In camera treatment, for a period of two years, expiring on June 1, 2011, wil be granted 

to the three Exide strategic planning documents in accordance with Section IV of this Order. 

D. 

Non-party Hollingsworth & Vose Company ("H&V") submitted a motion for in camera 

treatment on April 9, 2009. H&V supports its motion with an affidavit of 
 Thomas White, Vice 

President and General Manager ofthe Battery Products Business Unit at H&V ("White 

Affidavit"). White avers that the documents for which in camera treatment is requested include 

high-level strategic planning and product development documents, pricing information, sales and 

revenue information, and customer information. White further states that the documents for 

which it seeks in camera treatment are maintained in strict confidence and that disclosure could 

harm H&V's business. 

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H&V has narrowly tailored its request for in camera treatment. In addition, H&V has 

requested in camera treatment for specific portions of deposition designations that relate to 

confidential information meeting the in camera standards. H& V has requested in camera 

treatment for a period of ten years for some categories of its documents and a period of five 

years for other categories. 

A review of the White Affidavit in support of the motion, the documents, and the 

excerpted designated deposition testimony reveals that all of the information sought to be 

protected meets the standards for in camera treatment. However, H&V has not demonstrated 

circumstances necessitating an extension of in camera treatment beyond the five-year period 

typically given to business records. Accordingly, H&V's motion is GRANTED in part. 

In camera treatment, for a period of 
 five years, to expire on June 1,2014, wil be 

extended to the documents listed by the parties, including the designated deposition testimony, in 

accordance with Section IV of this Order. 

E. 

Non-party Johnson Controls, Inc. ("JCI") submitted a motion for in camera treatment on 

April 9, 2009. Johnson Controls supports its request with a Declaration from Flavio Almeida, 

Director of 
 Procurement, Americas in JCI's Power Solutions Group ("Almeida Declaration"). 

Almeida declares that the documents for which it seeks in camera treatment are highly 

confidential and contain proprietary information regarding JCI's global separator supply 

strategy, joint venture with BFR, and relationship with Entek. The documents contain 

technically sensitive parameters, analysis of capacity and production, contract negotiations, 

strategy and pricing information, and internal testing results. Almeida further declares that the 

documents for which it seeks in camera treatment are disclosed to only a limited group within 

JCI and that disclosure ofthis information would cause real and serious damage to the 

competitive position of JCI. 

In addition, Almeida states that although some of the documents are more than three 

years old, JCI considers them highly confidential because the separator strategy is a multi-year 

strategy that remains in effect today. JCI requests in camera treatment for each of its documents 

indefinitely, or, at a minimum, for a period of seven years. 

A review of the Almeida Declaration in support of the motion and of the documents 

reveals that all of the documents sought to be protected meet the standards for in camera 

treatment. In addition, JCI has provided a sufficient justification to overcome the presumption 

that documents over three years old may not warant in camera treatment. However, JCI has not 

demonstrated circumstances necessitating indefinite in camera treatment or an extension of in 

camera treatment beyond the five-year period typically given to business records. Accordingly, 

JCI's motion is GRANTED in par. 

In camera treatment, for a period of 
 five years, to expire on June 1,2014, will be 

extended to the documents listed by the parties in accordance with Section IV of this Order. 

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F. 

Non-party Trojan Battery Co. ("Trojan Battery) submitted a motion for in camera 

treatment on April 9, 2009. Trojan Battery supports its request with a Declaration from Rick 

Godber, President and Chief Executive Officer of 
 Trojan Battery ("Godber Declaration"). 

Godber avers that public disclosure of the documents for which in camera treatment is sought 

would cause serious competitive injury to Trojan Battery. Godber further states that Trojan 

Battery has taken and continues to take measures to guard the secrecy of the information; that 

the documents are not widely disseminated; and that public disclosure of commercially sensitive 

information would be very detrimental to Trojan Battery and would expose Trojan Battery to a 

serious competitive disadvantage. 

Trojan Battery narowly tailored its request to 22 documents. For each ofthese 

documents, Trojan Battery requests in camera treatment for a period of five years. 

A review of the Godber Declaration in support of the motion and of the documents 

reveals that all of the documents sought to be protected meet the standards for in camera 

treatment. Accordingly, Trojan Battery's motion is GRANTED. 

In camera treatment, for a period of 
 five years, to expire on June 1,2014, wil be 

extended to the documents listed by the paries in accordance with Section iv ofthis Order.
 

G. 

Non-party Warburg Pincus LLC ("Warburg Pincus") submitted a motion for in camera 

treatment on April 9, 2009. Warburg Pincus supports its request with the Declaration of Michael 

Graff, Managing Director of War burg Pincus and Chairman ofthe Board of Polyp ore 

International, Inc. ("Graff Declaration"). Graff avers that the documents for which in camera 

treatment is sought contain proprietar methodology for valuing its investments that is not 

available to the public and highly confidential and extremely sensitive business information 

about Polypore, including information about its strategic growth plans, revenue sources, 

competitive intelligence, and customer relations. Graff further avers that the documents for 

which it seeks in camera treatment are not widely disseminated. 

Warburg Pincus narrowly tailored its request to excerpts of 13 documents. For each of 

these documents, Warburg Pincus requests in camera treatment for a period of three years. 

A review of the Graff Declaration in support of the motion and of the documents reveals 

that all of the documents sought to be protected meet the standards for in camera treatment. 

Accordingly, Warburg Pincus' motion is GRANTED. In camera treatment, for a period ofthree 

years, to expire on June 1,2012, wil be extended to the documents listed by the parties in 

accordance with Section IV of 
 this Order. 

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iv. 

Complaint Counsel's Final Proposed Exhibit List identified approximately 1,364 exhibits 

and Respondent's Final Proposed Exhibit List identified approximately 1,500 potential trial 

exhibits. By Order dated April 27,2009, the paries were directed to significantly narrow their 

lists of documents that they intend to introduce at trial in order to comply with Rule 3.43(b) or 

provide sufficient 
 justification for all listed exhibits. On May 1,2009, Complaint Counsel and 

Respondent each submitted revised final exhibit lists. These non-paries' motions for in camera 

treatment were filed prior to these revised exhibit lists and thus the non-parties may have sought 

in camera treatment for documents that, as a result ofthese modifications to the parties' exhibit 

lists, wil not be offered into evidence. 

Because in camera treatment is appropriate only for information that is offered into 

evidence, the parties are required to prepare a joint proposed order, with a signature line for the 

Administrative Law Judge, that lists by exhibit number the documents that, by this Order, have 

been granted in camera treatment and that sets forth the expiration date of in camera treatment 

for each exhibit. 

Each non-party that has documents or information that has been granted in camera 

treatment by this Order shall inform its testifyng current or former employees that in camera 

treatment has been extended to the material described in this Order. At the time that any 

documents that have been granted in camera treatment are offered into evidence or before any of 

the information contained therein is referred to in court, the parties shall identify such documents 

and the subject matter therein as in camera, inform the court reporter of the trial exhibit 

number( s) of such documents, and request that the hearing go into an in camera session. 

ORDERED: 

D.

.:)~ cf~ Michael C ap e 1 

Administrative Law Judge 

Date: May 6, 2009 

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