OR\GlNAL
 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

Polypore International, Inc., ) PUBLIC DOCUMENT
 

a corporation. )


---=------------­

RESPONDENT'S RESPONSE TO COMPLAINT COUNSEL'S
 

CROSS-MOTION TO COMPEL RESPONDENT TO COMPLY WITH
 

FEDERAL TRADE COMMISSION RULES OF PRACTICE § 3.33
 

SEEKING DISCOVERY THROUGH DEPOSITION
 

Pursuant to Federal Trade Commission Rules of Practice ("Rules"), Section 3.38(a), 

Respondent responds to Complaint Counsel's Cross-Motion to Compel Discovery Through 

Deposition which was filed at the end of the day on November 6, 2008. Complaint Counsel's 

Motion to Compel is unnecessary, which Complaint Counsel knows from conversations with 

Respondent's counsel. Because of several misstatements and mischaracterizations, Respondent 

is constrained to respond as follows. 

Immediately at the conclusion of the pre-hearing scheduling conference on October 22, 

2008, Complaint Counsel handed Respondent the eight deposition notices (and its other written 

discovery). All ofthe eight notices were for Washington, D.C., and two ofthem were scheduled 

eight days later on October 30, 2008. Two days later, after time to review the notices and written 

discovery, Respondent initiated a telephone conversation with Complaint Counsel to say that the 

depositions noticed for October 30, 2008, would have to be discussed, that Respondent would 

not be producing those deponents on that date, and that further conversation would be required to 

discuss scheduling and the written discovery. A second call was scheduled for October 29,2008. 

In the course of that call, Respondent set out the objections that it had to the deposition notices 

(and the written discovery) and informed Complaint Counsel that by the end of the day 

PPAB 1500507v2 
Respondent would send Complaint Counsel a letter stating those objections. Two of the several 

objections stated were that the depositions must occur in Charlotte and be limited to seven hours. 

Shortly thereafter, Complaint Counsell called Respondent to inform Respondent that Complaint 

Counsel agreed that the depositions of Polypore employees would occur in Charlotte and that all 

fact witness depositions would be limited to seven hours. Respondent thereafter sent a letter to 

Complaint Counsel expressing its objections to the depositions and acknowledging the 

agreements on location and the time limitation for each deposition (and the written discovery) (a 

copy is attached as Exhibit A). After receiving Complaint Counsel's written response, 

Respondent filed its motion for protective order on November 3, 2008. 

Counsel for the parties scheduled a conference call for November 5, 2008, to discuss the 

scheduling of the three proposed deponents who had not been previously examined in the 

investigational hearings conducted by the Federal Trade Commission. In that call, Respondent 

proposed dates for two of the deponents to which Complaint Counsel agreed upon. Respondent 

then informed Complaint Counsel that Mr. Bob Toth, CEO of Respondent, had been and was out 

of the country and because of that, Respondent was not ready to propose a date for his 

deposition. Complaint Counsel wanted a date then. Respondent reminded Complaint Counsel 

that Mr. Toth is Respondent's CEO, is very busy and that Respondent would be proposing a date 

as soon as practical after his return to this country. As CEO, Mr. Toth has not only had to deal 

with the FTC investigation, including making four trips to Washington to speak with the FTC 

during the investigation, and the defense of the claims made by the FTC, but also, a strike at one 

of its domestic plants, a strike at an overseas plant, the likely loss of a major customer and the 

1 This call included Robby Robertson, who had not been on the earlier call, and who was not on the next 

call on November 5, 2008. Mr. Robertson did not sign the motion to compel. 

2 

PPAB 1500507v2 
ongomg operations of Polypore and its Celgard and Membrana divisions. Accordingly, 

scheduling Mr. Toth's deposition is more complicated than other personnel, particularly given 

the heavy travel schedule required by the demands of his position. At no time, has Respondent 

refused to produce Mr. Toth for a deposition. Complaint Counsel was told specifically that 

upon Mr. Toth's return, a date or dates would be obtained and proposed for his deposition. In 

fact, on November 11,2008, Respondent proposed a specific date for Mr. Toth's deposition and 

is waiting for a response from Complaint Counsel. It is apparently the product of imagination 

that Mr. Toth, "after receiving a notice of deposition in this matter, simply left the country and is 

totally incommunicado according to counsel.,,2 

With respect to the remaining people upon whom Complaint Counsel has issued notices 

of deposition, if the Court determines that their depositions should proceed, Respondent will take 

necessary action to schedule those depositions at mutually convenient times for Respondent and 

Complaint Counsel. Respondent is certain that if this Court determines to permit the remaining 

depositions to go forward (whether limited or otherwise), Respondent and Complaint Counsel 

will be able to agree upon a mutually acceptable schedule of depositions. 

2 Similarly, Complaint Counsel's contention that Respondent is trying to delay matters is misplaced. Delay 

is occurring as the result of Complaint Counsel's failure to turn over third-party discovery. Rather than initiate 

efforts immediately after the scheduling hearing in order to produce those materials promptly, Complaint Counsel 

delayed and only began to turn over materials beginning November 6, 2008. Since then, Complaint Counsel has 

sent two additional submissions, the latest only arriving on November 11, 2008. Respondent still does not know 

whether Complaint Counsel has turned over all materials as requested. 

3 

PPAB 1500S07v2 
Dated: November 12,2008 Respectfully Submitted, 

William L. Rikard, Jr. 

Eric D. Welsh 

PARKER POE ADAMS & B RNSTEIN LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 

williamrikard@parkerpoe.com 

ericwelsh@parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN LLP 

150 Fayetteville Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

johngraybeal@parkerpoe.com 

Attorneysfor Respondent 

4
 

PPAB lSOOS07v2 
CERTIFICATE OF SERVICE 

I hereby certify that on November 13, 2008, I caused to be filed via hand delivery and 

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

Complaint Counsel's Cross-Motion to Compel Respondent to Comply with Federal Trade 

Commission Rules of Practice § 3.33 Seeking Discovery Through Deposition, and that the 

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

original signature is being filed with: 

Donald S. Clark, Secretary 

Office ofthe Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary@ftc.gov 

I hereby certify that on November 12, 2008, I caused to be served one copy via electronic 

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

Response to Complaint Counsel's Cross-Motion to Compel Respondent to Comply with 

Federal Trade Commission Rules ofPractice § 3.33 Seeking Discovery Through Deposition 

upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj@ftc.gov 

I hereby certify that on November 12, 2008, I caused to be served via first-class mail 

delivery and electronic mail delivery a copy of the foregoing Respondent's Response to 

Complaint Counsel's Cross-Motion to Compel Respondent to Comply with Federal Trade 

Commission Rules ofPractice § 3.33 Seeking Discovery Through Deposition upon: 

J. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertson@ftc.gov sdahm@ftc.gov 

W-C.~ Adam C. Shearer 

Parker Poe Adams & Bernstein LLP 

Three Wachovia Center 

40 I South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 

PPAB lSOOS07v2 
EXHIBIT A
 
In theMatterbfPolyppre It1temational, Inc., DocketNo. 9327 

. 

B ,RPOE
 

.', PAllKEllPOEADAMs &lIERNSTEIN LLP 

ThreeWachovia Center William L. Rikard, Jr. Att"nlt)'sand C,,""selors al Law

40tSouth Tryon. Street 

Partner 

Suite 3000 . ......• ·Telephone: 704.335.9011 Charlotte, NC 28i02-1942 

Direct FlIi: 704.335.9689 Telephone 704.372.9000' 

willillmnkard@parkerpoe.com Fax 704:334,4706 

www.patkerpoe.cOlI\ 

; 

.i· :: 

VIA ELECTRONIC MAIL AND FIRsT CLASS MAIL 

.J. Robert Robertson, Esq. 

Federal Trade Commission 

:.600 PellIisylvariiaAvet:ltie;~/ ..........•..•.•.•.•...•... ::\. '>
 

.Washington, DC '20580 

·1T6bertson@ftc.gov 

Steven Dahm, Esq. .... . .... . .,...... . 

Federal Trade Gommission, R.()oIll6 U~ ... 60LNewJersey Ave.,NW '.' . .... 

Washington,DC 20001 

sdahm@ftc.gov 

Re: 

· --- .. 

Dear Robby and Steve: . ' .. :-:- .' ,".:'.- - .:::>.'::: ":<::'::.' . . ....",,-. . . .. . , , . . .. .. . . 

As we discussedo"er,the tel~ph(}rietbisaftemoon,OWe have a number ofobjectionsJo the
 

discovery propounded by the FTC.mtb,ismatter. In a subsequent .calLin which Robby.
 ...., .....!

; 

.participated, it'appearsthafsome ofthe:is§hesare.resolved;·Umortunately,otlierspersist.··Hete 

isalistbftbeissllesthatwediscussed, . . .. .. .' . 

.... .First,.the' E'fChflSs~rve,~::oIl~us~ight4epositionn~tic¢s<Ofthe~~n()ti2es;fiveof.~ese·· ·Witnesses were' previ6usly':exarnined by;tl1eFTGdUrlng tl1einvestigationalpnase ofthisca.se~

Certain.·ofthose.·individuals••were·.dep()sed·for·ll1ultiple.·days'(Messrs.·.·Tucker ana·Riney)••and.one 

'was deposed fora prolonged periodofapproxirilately IThours (Mr. Hil1.iswa.Id). These 

examinations were exhaustive oftbeissues set forth in the Complaint and any further 

examination ofthe witnessesOll these {U'e~.wotlldbedupl1catiy~. SinceSteve~dvi§e4us that he 

intends to "use thejnvestigationalhea.nng~illanYll1annet permittedbytheAdministrativ~Law

Judge in this matter, we simply do not see any reason to have' further duplicative .. and 

burdensome examinations ofthese witnesses. If you are aware of any precedent that requires 

these·witnesses be deposed for a second time, please bring it to our attention immediately and we 

will consider it. . 

CHARLESTON. sc 

COLUMBIA. SC 

MYRTLE BEACH. SC 

RALEIGH.NC 

.SPARTANBURG. SC 

. ., 

PPAB 1496141vl 
J. Robert Robertson, Esq. 

Steven Dahm, Esq. 

October 29, 2008 

Page 2 

Second, you have noticed the depositions for Washington, DC. In the same conversation 

in which Robby participated, he agreed to have the depositions of any Polypore· employees 

proceed in Charlotte. We would be more than happy to make conference room space available 

for you and your colleagues here in our offices for those depositions at no charge to the 

government. Once we have either agreed upon who will be deposed, or it has been determined, 

we will work with you to detennine a mutually satisfactory schedule. 

Third, as we discussed, we believe it is appropriate that the FTC produce its 

documentation that it has received from third-parties, including affidavits, and its investigational 

hearing transcripts for those third-parties before we proceed with the depositions ofthe Polypore 

witnesses. We believe that it is only fair given the fact that you have had months to review those 

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

testimony to our clients under the Protective Order, we are entitled to receive that information so 

that we can defend depositions in a manner appropriate for this case. Polypore is entitled to a 

level playing ;field in discovery in this case. If you still disagree, please. let us know immediately. 

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

not· yet contacted all third-parties _with respect to the disclosure of their documents and 

information in this matter under the protective order and has no obligation to produce any of 

these materials to us absent a formal request. It was certainly our expectation, based on the 

representation. made in the initial disclosures made to the Administrative Law Judge, that you 

would have promptly contacted these third parties once the Protective Order was entered, which 

was one week ago. In addition, we do take issue with your statement that you are not required to 

produce the third-party documents in the investigational hearings to us absent a document 

request. In fact, in the initial disclosures filed by Complaint Counsel with the Administrative 

Law Judge, Counsel stated "Complaint Counsel will provid:e copies of third-party's 

documents and materials 10 days after such time as the Administrative Law Judge has' entered 

a protective order in this matter and the third-parties who submitted the documents have been 

apprised of their rights under the protective order." Complaint Counsel's Initial Disclosures to 

Respondent Polypore International, Inc., p. 3 (emphasis added). We reiterate our position that 

the FTC should have already advised third parties ofthe protective order and should disclose to 

us the investigational hearings and documents within 10 days of the issuance of the ALJ's 

protective order. In order that there be no confusion on the point, and although we do not believe 

this is necessary, we will be forwarding to you later today our discovery requests which 

specifically request the production ofthese documents to us. 

Finally, we believe it is appropriate to limit the length of the depositions to seven hours 

each pursuant to the Federal Rules of Civil Procedure. Robby has agreed to this limitation for 

fact witnesses. We agree that we will discuss expert witnesses when everyone knows more 

about them. 

With respect to the interrogatories served by the FTC, we are greatly troubled by the 

number ofinterrogatories tendered to Polypore. As you know, the FTC rules limit the munber of 

PPAB 1496141vl 
J. Robert Robertson. Esq. 

Steven Dahm, Esq, 

October 29. 2008 PageJ .... 

PPAB 1496141vl