__________________________________________ 

 

 

04 30 2012 

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) PUBLIC 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

MCWANE, INC.’S MOTION TO COMPEL COMPLAINT 

COUNSEL’S ANSWERS TO INTERROGATORY NOS. 16-23 

Pursuant to Rule 3.38 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, McWane respectfully moves the Court to compel Complaint Counsel 

to answer at least five (5) of Interrogatory Nos. 16 through 23 of McWane’s First Set of 

Interrogatories, dated February 15, 2012 (“McWane’s Interrogatories”). In Complaint Counsel’s 

Response and Objections to McWane’s Interrogatories, dated March 16, 2012 (“Complaint 

Counsel’s Response”), Complaint Counsel objected to answering Interrogatory Nos. 16 through 

23 because McWane allegedly exceeded its allotted 25 interrogatories. See Exh. A at 15-18 

(Complaint Counsel’s Interrogatory Responses). Complaint Counsel’s objection is erroneous, 

because it is based on a miscalculation of the number of discrete subparts in Interrogatory Nos. 2, 

3, 5 and 10. When those subparts are properly counted, Complaint Counsel has answered only 

twenty (20) interrogatories at most, and should be compelled to answer at least five (5) of the 

remaining Interrogatory Nos. 16-23. As Complaint Counsel argued in its Motion to Compel 

(“Motion”), and this Court held in its April 16, 2012 Order (“Order”), “[i]f interrogatory subparts 

1
	
‘are logically or factually subsumed within and necessarily related to the primary question,’ they 

are to be counted as one interrogatory.” See Exh. B (Motion) at 7; see Exh. C (Order) at 2, citing 

Safeco of America v. Rawstrom, 181 F.R.D. 441, 445 (C.D. Cal. 1998). Any subparts in 

Respondent’s Interrogatory Nos. 2, 3, 5 and 10 are logically and factually subsumed within and 

related to the primary questions, and thus each should be counted as one interrogatory. 

Although McWane’s counsel has met and conferred with Complaint Counsel, no 

resolution on the issue of how to properly count interrogatory subparts could be reached, despite 

the fact that Complaint Counsel’s position is in direct conflict both with the arguments made in 

its own Motion and with this Court’s April 16, 2012 Order granting that Motion. See Exh. B 

(Motion) and Exh. C (Order); see also Exh. D (McWane’s Statement Regarding Meet and Confer 

Pursuant to Scheduling Order); Exh. E (L. Holleran Letter to W. Lavery, dated April 25, 2012). 

Factual Background 

On February 15, 2012, McWane propounded 23 interrogatories to Complaint Counsel. 

On March 16, 2012, Complaint Counsel served its Response, but refused to answer Interrogatory 

Nos. 16-23, objecting that “Responded has exceeded its allotted number of interrogatories, 

including all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012 

Scheduling Order.” See Exh. A at 15-18. Complaint Counsel’s objection arises from a 

miscounting of alleged multiple discrete subparts in many of McWane’s Interrogatories, 

including Interrogatory Nos. 2, 3, 5, and 10. 

Argument 

1. Interrogatory No. 2 

Complaint Counsel incorrectly contends that Interrogatory No. 2 contains three discrete 

subparts. Interrogatory No. 2 states: 

2
	
 

 

State all facts that you contend support your definition of a 

relevant Domestic Fittings product market, including but not 

limited to all facts upon which Complaint Counsel based the 

product and geographic market allegations in the Complaint and all 

facts upon which Complaint Counsel may or will rely at trial, 

including the relevant start and end dates of any ARRA-related 

markets or sub-markets, the likelihood of recurrence of such 

markets or sub-markets, and all facts refuting, or otherwise relating 

to such market definition. 

Exh. A at 4. 

Complaint Counsel initially contended that Interrogatory No. 2 contains three discrete 

subparts: 1) Domestic Fittings product market; 2) geographic market(s); and (3) ARRA-related 

submarkets. Exh. A at 4. Because any alleged ARRA-related submarket is subsumed within the 

Domestic Fittings product market, this contention is an artificially strained parsing of the phrases 

in the interrogatory. Complaint Counsel later revised its objection to allege that Interrogatory 

No. 2 contains two, rather than three, distinct subparts: 1) Domestic Fittings product market, 

including ARRA submarkets; and 2) geographic markets. See Exh. E. This artificial distinction 

does not pass muster on its face because, by definition, the “Domestic Fittings” product market 

includes an inextricable geographic component, namely fittings made in the United States, and 

thus can only be considered a single request. Complaint Counsel’s revised objection also 

conflicts with the position Complaint Counsel took in its own Motion, and with this Court’s 

Order granting that Motion. See Exh. B and Exh. C. 

It is well settled that an interrogatory with subparts should be counted as a single 

interrogatory where the subparts are “logically or factually subsumed within and necessarily 

related” to the primary question. In re Netbank, Inc. Securities Litigation, 259 F.R.D. 656, 679 

(N.D.Ga. 2009) (citations omitted). Overly restrictive readings of the numerical limit on 

interrogatories are discouraged, because such readings “would be inconsistent with the Federal 

Rules’ notions of broad discovery”. Id. As one court has explained: “Legitimate discovery 

3
	
efforts should not have to depend upon linguistic acrobatics, nor should they sap the court’s 

limited resources in order to resolve hypertechnical disputes.” Id. (quoting Ginn v. Gemini, Inc., 

137 F.R.D. 320, 322 (D.Nev. 1991). 

McWane’s Interrogatory No. 2 seeks all facts supporting Complaint Counsel’s definition 

of any market relevant to its claims in this action. To the extent Interrogatory No. 2 contains any 

subparts, those subparts are logically and factually subsumed within and necessarily related to 

Complaint Counsel’s definition of the relevant markets. Therefore, Interrogatory No. 2 should 

count only as one interrogatory. 

2. Interrogatory No. 3 

Complaint Counsel incorrectly contends that Interrogatory No. 3 contains two discrete 

subparts. Interrogatory No. 3 states: 

Identify all facts that you contend establish that McWane possesses 

or possessed market power or monopoly power in any relevant 

antitrust market, including but not limited to any evidence relating 

to market shares, the ability to control prices or output, the time 

period during which McWane allegedly possessed market power, 

and all facts that you contend establish that McWane acquired, 

enhanced, maintained, or exercised such market power through 

anticompetitive or unfair conduct or attempted to do so, and all 

facts refuting, or otherwise relating to McWane's alleged 

possession or exercise of market power. 

Exh. A at 5. Complaint Counsel contends this interrogatory seeks: 1) facts relating to McWane’s 

possession of market power; and 2) facts relating to McWane’s exercise of market power. Id. 

The possession and exercise of market power, however, are so inherently intertwined as to be 

“logically or factually subsumed within and necessarily related” to each other, and thus should be 

counted as one interrogatory. See Safeco, 181 F.R.D. at 445, citing Kendall v. GES Exposition 

Services, 174 F.R.D. 684 (D.Nev. 1997); Banks v. Office of the Senate Sergeant-at-Arms, 222 

F.R.D. 7, 10 (D.D.C. 2004). Complaint Counsel’s objection should be overruled because 

4
	
Interrogatory No. 3 contains no subpart logically or factually independent from the main 

question in the interrogatory. See Exh. C (Order) at 2. See also In re Polypore Int’l, Inc., 2008 

FTC LEXIS 155, at *3-4 (Nov. 14, 2008); In re Dynamic Health of Florida, 2004 FTC LEXIS 

254, at *2 (Dec. 9, 2004). 

3. Interrogatory No. 5 

Complaint Counsel incorrectly contends that Interrogatory No. 5 contains four discrete 

subparts. Interrogatory No. 5 states: 

Identify all facts supporting, refuting, or otherwise relating to 

Complaint Counsel’s contention that consumers were substantially 

injured or likely to be injured as a result of McWane’s alleged 

anticompetitive or unfair conduct, including but not limited to 

McWane’s 2008-09 DIWF prices, that such injury was not 

reasonably avoidable by consumers themselves and not 

outweighed by countervailing benefits to consumers, including, but 

not limited to (1) each specific instance of any Respondent’s 

alleged anticompetitive or unfair conduct, (2) the alleged harm 

associated with each specific instance, (3) any specific 

consumer(s) allegedly injured, and (4) the likelihood of the alleged 

anticompetitive or unfair conduct or any resulting harm recurring 

in the future. 

Exh. A at 7. Interrogatory 5 simply seeks facts supporting Complaint Counsel’s allegation that 

consumers have been harmed by McWane’s actions. Whether an alleged consumer injury could 

have been avoided, whether the consumer experienced any countervailing benefit, and whether 

the consumer’s injury is likely to recur are matters so logically and factually subsumed within 

and necessarily related to the primary question of the existence of a consumer injury that 

Interrogatory No. 5 should be counted as one interrogatory. See Estate of Manship v. United 

States, 232 F.R.D. 552, 545-55 (M.D.La. 2005); Safeco of America, 181 F.R.D. at 445 (C.D.Cal. 

1998); Banks, 222 F.R.D. at 10; In re Polypore Int’l, Inc., 2008 FTC LEXIS 155, at *3-4 (Nov. 

14, 2008); In re Dynamic Health of Florida, 2004 FTC LEXIS 254, at *2 (Dec. 9, 2004). As 

5
	
 

Complaint Counsel stated in its own Motion on this very issue, subparts “directed at eliciting 

details concerning a common theme should be considered a single question”. See Complaint 

Counsel’s Motion at 5, citing 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 

Federal Practice & Procedure § 2168.1, at 39-40 (3d ed. 2010); see Exh. B at 5; see also Mezu 

v. Morgan State University, 269 F.R.D. 565, 572-73 (D. Md. 2010) (same). 

4. Interrogatory No. 10 

Complaint Counsel incorrectly contends that Interrogatory No. 10 contains three discrete 

subparts. Interrogatory No. 10 states: 

Is it Complaint Counsel’s contention that any alleged injury caused 

by the Domestic Rebate Policy, McWane’s participation in DIFRA, 

and/or the Sigma MDA was not outweighed by countervailing 

benefits or pro-competitive justifications? If so, state with 

particularity why consumers are or were harmed on balance, by 

identifying and describing the basis for this contention, and 

identify all facts relating to the contention upon which Complaint 

Counsel based the Complaint and upon which Complaint Counsel 

may or will rely at trial in support of the contention, including all 

facts refuting, or otherwise relating to, your contention. 

Exh. A at 11. Complaint Counsel awkwardly parses and construes this interrogatory in order to 

contend that it contains three subparts: one relating to McWane’s Domestic Rebate Policy, one 

relating to McWane’s participation in DIFRA, and one relating to the Sigma MDA. To the 

contrary, Interrogatory 10 simply seeks facts supporting Complaint Counsel’s allegation that 

consumers on balance were harmed rather than benefited by McWane’s alleged activities in the 

relevant market. Because Interrogatory No. 10 seeks details about a common theme -- namely, 

the balance of consumer harm / benefit resulting from alleged conduct that is the subject of the 

Complaint -- it contains no subpart logically or factually independent from that common theme, 

and thus counts as one interrogatory. See Swackhammer v. Sprint Corp. PCS, 225 F.R.D. 658, 

664-65 (D.Kan. 2004); In re Polypore Int’l, Inc., 2008 FTC LEXIS 155, at *3-4 (Nov. 14, 2008); 

6
	
In re Dynamic Health of Florida, 2004 FTC LEXIS 254, at *2 (Dec. 9, 2004). 

WHEREFORE, for the reasons set forth herein, as well as in this Court’s Order dated 

April 16, 2012, McWane’s Motion is due to be GRANTED. 

__/s/ Joseph A. Ostoyich________________
	

Joseph A. Ostoyich
	

One of the Attorneys for McWane, Inc.
	

OF COUNSEL: 

Joseph A. Ostoyich 

Andreas Stargard 

William C. Lavery 

Baker Botts L.L.P.

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2420 

Phone: 202.639.7700 

Fax: 202.639.7890 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard, III 

Julie S. Elmer 

Maynard, Cooper & Gale, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203-2608 

(205) 254-1000 

(205) 254-1999 (facsimile) 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

jelmer@maynardcooper.com 

7
	
CERTIFICATE OF SERVICE
	

I hereby certify that on April 30, 2012, I filed the foregoing document electronically using the 

FTC’s E-Filing System, which will send notification of such filing to: 

Donald S. Clark 

Secretary 

Federal Trade Commission 

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

Washington, DC 20580 

I also certify that I delivered via overnight mail a copy of the foregoing document to: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

I further certify that I served via electronic mail a copy of the foregoing document to: 

Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael L. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq. 

By:		 ___/s/ William C. Lavery_________ 

William C. Lavery 

Counsel for McWane, Inc. 

8
	
 

__________________________________________ 

 

 

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) PUBLIC 

) 

a corporation, and ) DOCKET NO. 9351 

)
	

STAR PIPE PRODUCTS, LTD., )
	

a limited partnership, )
	

)
	

Respondents. )
	

__________________________________________)
	

PROPOSED ORDER 

On April __, 2012, McWane, Inc. filed McWane’s Motion to Compel 

Complaint Counsel’s Answers to Interrogatory Nos. 16-23. Upon consideration of 

this motion, this Court grants McWane’s motion. Complaint Counsel is ordered to 

answer five (5) of McWane’s Interrogatory Nos. 16 through 23. 

ORDERED: __________________________ 

D. Michael Chappell 

Administrative Law Judge 

___________, 2012 

EXHIBIT A
	
 

____________________________________ 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

) 

In the Matter of ) 

) 

MCWANE, INC., ) DOCKET NO. 9351 

 a corporation, and ) 

) 

STAR PIPE PRODUCTS, LTD., ) 

 a limited partnership, ) 

) 

Respondents. ) 

____________________________________) 

COMPLAINT COUNSEL’S RESPONSE AND OBJECTIONS TO RESPONDENT 

MCWANE INC.’S FIRST SET OF INTERROGATORIES (1-23) 

Pursuant to Section 3.35(b) of the Federal Trade Commission’s Rules of Practice, 

Complaint Counsel hereby responds to Respondent McWane, Inc.’s First Set of Interrogatories 

(“Respondent’s Interrogatories”). Subject to the General and Specific Objections below, and 

without waiving these objections, Complaint Counsel answers as follows: 

General Objections 

The following General Objections apply to all of Respondent’s Interrogatories and are 

hereby incorporated by reference into each of the following responses. The assertion of the 

same, similar, or additional objections or the provision of partial answers in response to an 

individual interrogatory does not waive any of Complaint Counsels’ general objections as to the 

other interrogatories. 

1.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent the interrogatories 

are directed to the Federal Trade Commission rather than to Complaint Counsel. 

-1-
 

2.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent they seek to impose 

duties and obligations upon Complaint Counsel beyond the Commission’s Rules of Practice 

for Adjudicative Proceedings. Complaint Counsel’s responses will comply with the 

Commission’s Rules of Practice for Adjudicative Proceedings. 

3.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent the interrogatories, 

including all separate and distinct subparts, exceed the 25 interrogatories allowed under Rule 

3.35(a) of the Commission’s Rules of Practice for Adjudicative Proceedings and in 

Paragraph 10 of the February 15, 2012, Scheduling Order. 

4.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent they seek 

information that relates to expert testimony prior to the dates prescribed by the February 15, 

2012, Scheduling Order. 

5.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent the interrogatories 

seek information protected by deliberative process privilege, law enforcement investigative 

privilege, informant’s privilege, or the attorney work product doctrine. Complaint Counsel 

does not, by any response to any Request, waive or partially waive any applicable privilege 

or attorney work product claim. 

6.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent it seeks information 

and materials from sources and persons within the Commission that are beyond the scope of 

the records search that Complaint Counsel are required to undertake pursuant to Rule 

3.31(c)(2), and/or are expressly excluded from interrogatory responses by Rule 3.35(a)(1). 

7.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent they are overly 

broad, vague, ambiguous, unduly burdensome, oppressive, and are not reasonably calculated 

to lead to the discovery of admissible evidence. 

-2-
 

8.	 Complaint Counsel objects to Respondent’s Interrogatories to the extent the interrogatories 

call for information previously provided to Respondent McWane or for information that may 

be less onerously obtained through other means. 

9.	 Complaint Counsel objects to Respondent’s Interrogatories as overly broad, unduly 

burdensome and oppressive in that they ask Complaint Counsel to disclose information that 

is already in Respondent McWane’s possession or control, or is a matter of public record. 

Complaint Counsel will not undertake to catalogue and organize these materials for 

Respondent McWane. 

10. Complaint Counsel objects to each interrogatory to the extent that it seeks information for 

which the burden of deriving or ascertaining the answer is substantially the same for the 

party serving the interrogatory as for the party served. 

11. Complaint Counsel objects to Respondent’s Interrogatories to the extent that, as framed, they 

purport to obligate Complaint Counsel to conduct an extensive and complete investigation of 

detailed facts within the thirty (30) days allotted for its responses and objections when such 

facts are known to Respondent McWane and/or contained in hundreds of pages of documents 

already produced by Respondent McWane. 

12. Complaint Counsel reserves all of its evidentiary objections or other objections to the 

introduction or use of any response herein at the hearing in this action, and does not, by any 

response to any Request, waive any objection to that Request, stated or unstated. 

13. Complaint Counsel’s has not completed its investigation of the facts relating to this case, its 

formal discovery or its preparation for trial. Complaint Counsel reserves the right to assert 

additional objections to Respondent’s Interrogatories, and to amend or supplement these 

objections and responses as necessary after the close of discovery. 

-3-
 

SPECIFIC OBJECTIONS AND RESPONSES 

Subject to the foregoing, Complaint Counsel provides the following responses to 

Respondent’s Interrogatories: 

Interrogatory No. 1 

Identify every communication, if any, between the FTC and any other agency or 

instrumentality of the federal or a state government referring or relating to the subject 

matter of the DIWF Investigation or the allegations in the Complaint. 

Response to Interrogatory No. 1 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because it seeks information protected by the law enforcement investigative 

privilege, attorney work product doctrine, and deliberative process privilege. Complaint Counsel 

also specifically objects to this interrogatory as irrelevant and not reasonably calculated to lead to 

the discovery of admissible evidence. 

Interrogatory No. 2 

State all facts that you contend support your definition of a relevant Domestic 

Fittings product market, including but not limited to all facts upon which Complaint 

Counsel based the product and geographic market allegations in the Complaint and all 

facts upon which Complaint Counsel may or will rely at trial, including the relevant start 

and end dates of any ARRA-related markets or sub-markets, the likelihood of recurrence 

of such markets or sub-markets, and all facts refuting, or otherwise relating to such market 

definition. 

Response to Interrogatory No. 2 

Complaint Counsel notes that this interrogatory contains at least three discrete subparts, 

and seeks: (1) all facts relating to a Domestic Fittings product market, (2) all facts supporting the 

geographic market(s) alleged in the Complaint; and (3) all facts relating to any ARRA-related 

submarkets. 

-4-
 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory to the extent it impermissibly seeks attorney work product and Complaint 

Counsel’s trial strategy. Complaint Counsel also objects to this interrogatory as premature to the 

extent it seeks information relating to issues that may be the subject of expert testimony in this 

case. Counsel Complaint Counsel further objects to the interrogatory as unduly burdensome to 

the extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and 

analysis on behalf of Respondent. Complaint Counsel also objects to this interrogatory as 

premature and unduly burdensome because it is a contention interrogatory and no response is 

required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will 

supplement its answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 3 

Identify all facts that you contend establish that McWane possesses or possessed 

market power or monopoly power in any relevant antitrust market, including but not 

limited to any evidence relating to market shares, the ability to control prices or output, the 

time period during which McWane allegedly possessed market power, and all facts that 

you contend establish that McWane acquired, enhanced, maintained, or exercised such 

market power through anticompetitive or unfair conduct or attempted to do so, and all 

facts refuting, or otherwise relating to McWane’s alleged possession or exercise of market 

power. 

Response to Interrogatory No. 3 

Complaint Counsel notes that this interrogatory contains at least two discrete subparts, 

and seeks: (1) all facts establishing, refuting or otherwise that McWane possesses market power 

or monopoly power; and (2) all facts establishing, refuting or otherwise relating to McWane 

exercising such power through anticompetitive or unfair conduct or attempted to do so. 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory as premature to the extent it seeks information relating to issues that may be the 

subject of expert testimony in this case. Counsel Complaint Counsel also objects to the 

-5-
 

interrogatory as unduly burdensome to the extent it seeks to compel Complaint Counsel to 

undertake investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel 

further objects to this interrogatory as premature and unduly burdensome because it is a 

contention interrogatory and no response is required prior to the close of discovery pursuant to 

Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as appropriate, after the close 

of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 4 

Identify all facts that you contend establish that McWane had the specific intent to 

monopolize a relevant antitrust market or that there was or is a dangerous probability that 

McWane could monopolize a relevant antitrust market, including all facts refuting, or 

otherwise relating to, such contention. 

Response to Interrogatory No. 4 

Complaint Counsel notes that this interrogatory contains at least two discrete subparts, 

and seeks: (1) all facts establishing, refuting or otherwise relating to McWane’s specific intent to 

monopolize; and (2) all facts establishing, refuting or otherwise relating to the dangerous 

probability that McWane would monopolize a relevant antitrust market. 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory as premature to the extent it seeks information relating to issues that may be the 

subject of expert testimony in this case. Counsel Complaint Counsel also objects to the 

interrogatory as unduly burdensome to the extent it seeks to compel Complaint Counsel to 

undertake investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel 

further objects to this interrogatory as premature and unduly burdensome because it is a 

contention interrogatory and no response is required prior to the close of discovery pursuant to 

Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as appropriate, after the close 

of discovery, as set forth in Rule 3.35(b)(2). 

-6-
 

Interrogatory No. 5 

Identify all facts supporting, refuting, or otherwise relating to Complaint Counsel’s 

contention that consumers were substantially injured or likely to be injured as a result of 

McWane’s alleged anticompetitive or unfair conduct, including but not limited to 

McWane’s 2008-09 DIWF prices, that such injury was not reasonably avoidable by 

consumers themselves and not outweighed by countervailing benefits to consumers, 

including, but not limited to (1) each specific instance of any Respondent’s alleged 

anticompetitive or unfair conduct, (2) the alleged harm associated with each specific 

instance, (3) any specific consumer(s) allegedly injured, and (4) the likelihood of the alleged 

anticompetitive or unfair conduct or any resulting harm recurring in the future. 

Response to Interrogatory No. 5 

Complaint Counsel notes that this interrogatory contains at least four discrete subparts, 

and seeks: (1) all facts establishing, refuting or otherwise relating to consumers being injured by 

McWane’s anticompetitive conduct; (2) all facts establishing, refuting or otherwise relating to 

the ability of consumers to reasonably avoid the harm; (3) all facts establishing, refuting or 

otherwise relating to any alleged countervailing benefits to consumers from McWane’s 

anticompetitive conduct; and (4) all facts establishing, refuting or otherwise relating to the 

likelihood of the alleged anticompetitive conduct or any resulting harm recurring in the future. 

In addition to the General Objections, specifically objects to the terms “substantially 

injured,” “likely to be injured,” “reasonably avoidable,” and “countervailing benefits” as vague 

and ambiguous. Complaint Counsel also objects to this interrogatory as premature to the extent 

it seeks information relating to issues that may be the subject of expert testimony in this case. 

Counsel Complaint Counsel further objects to the interrogatory as unduly burdensome to the 

extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and analysis 

on behalf of Respondent. Complaint Counsel also objects to this interrogatory as premature and 

unduly burdensome because it is a contention interrogatory and no response is required prior to 

-7-
 

the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will supplement its 

answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 6 

Identify all facts that you contend establish that McWane’s alleged conduct raised 

prices to supra-competitive levels, artificially decreased output, otherwise harmed 

consumers or the competitive process, or was contrary to McWane’s own self-interest. 

Response to Interrogatory No. 6 

Complaint Counsel notes that this interrogatory contains at least two discrete subparts, 

and seeks: (1) all facts establishing that McWane’s conduct harmed consumers or the 

competitive process; and (2) all facts establishing that McWane’s conduct was contrary to its 

own self-interest. 

In addition to the General Objections, Complaint Counsel specifically objects to the term 

“artificially decreased output” as vague and ambiguous. Complaint Counsel further objects to 

this interrogatory as premature to the extent it seeks information relating to issues that may be 

the subject of expert testimony in this case. Counsel Complaint Counsel also objects to the 

interrogatory as unduly burdensome to the extent it seeks to compel Complaint Counsel to 

undertake investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel 

further objects to this interrogatory as premature and unduly burdensome because it is a 

contention interrogatory and no response is required prior to the close of discovery pursuant to 

Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as appropriate, after the close 

of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 7 

Is it Complaint Counsel’s contention that McWane directly communicated its list 

prices, multipliers, specific job bids, or any other information related to the pricing of its 

DIWF products to any other manufacturers or suppliers of Domestic Fittings or Nondomestic Fittings before it communicated those prices to its customers or potential 

-8-
 

customers? If so, identify and describe the basis for Complaint Counsel’s contention and 

identify all facts relating to the contention upon which Complaint Counsel based the 

Complaint and upon which Complaint Counsel may or will rely at trial in support of the 

contention, and all facts refuting, or otherwise relating to your contention. 

Response to Interrogatory No. 7 

In addition to the General Objections, Complaint Counsel specifically objects to the term 

“directly communicated” as vague and ambiguous. Complaint Counsel also objects to this 

interrogatory to the extent it impermissibly seeks attorney work product and Complaint 

Counsel’s trial strategy. Counsel Complaint Counsel further objects to the interrogatory as 

unduly burdensome to the extent it seeks to compel Complaint Counsel to undertake 

investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel also objects 

to this interrogatory as premature and unduly burdensome because it is a contention interrogatory 

and no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). 

Complaint Counsel will supplement its answer, as appropriate, after the close of discovery, as set 

forth in Rule 3.35(b)(2). 

Interrogatory No. 8 

Is it Complaint Counsel’s contention that there was parallel pricing relating to 

Domestic Fittings or Non-domestic Fittings by McWane or any other DIWF manufacturer 

or supplier? If so, identify and describe the basis for Complaint Counsel’s contention and 

identify all facts relating to the contention upon which Complaint Counsel based the 

Complaint and upon which Complaint Counsel may or will rely at trial in support of the 

contention, including all facts refuting, or otherwise relating to, your contention. 

Response to Interrogatory No. 8 

In addition to the General Objections, Complaint Counsel specifically objects to the term 

“parallel pricing” as vague and ambiguous. Complaint Counsel also objects to this interrogatory 

to the extent it impermissibly seeks attorney work product and Complaint Counsel’s trial 

strategy. Counsel Complaint Counsel further objects to the interrogatory as unduly burdensome 

-9-
 

to the extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and 

analysis on behalf of Respondent. Complaint Counsel also objects to this interrogatory as 

premature and unduly burdensome because it is a contention interrogatory and no response is 

required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will 

supplement its answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 9 

Is it Complaint Counsel’s contention that any decision by McWane to change its 

DIWF pricing in 2008-09 was not made independently? If so, identify and describe the 

basis for Complaint Counsel’s contention and identify all facts relating to the contention 

upon which Complaint Counsel based the Complaint and upon which Complaint Counsel 

may or will rely at trial in support of the contention, including all facts refuting, or 

otherwise relating to, your contention. 

Response to Interrogatory No. 9 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “any decision” and “independently” as vague and ambiguous. Complaint Counsel further 

objects to this interrogatory as compound to the extent that McWane made multiple pricing 

decisions in 2008 and 2009. Complaint Counsel also objects to this interrogatory to the extent it 

impermissibly seeks attorney work product and Complaint Counsel’s trial strategy. Counsel 

Complaint Counsel further objects to the interrogatory as unduly burdensome to the extent it 

seeks to compel Complaint Counsel to undertake investigation, discovery, and analysis on behalf 

of Respondent. Complaint Counsel also objects to this interrogatory as premature and unduly 

burdensome because it is a contention interrogatory and no response is required prior to the close 

of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as 

appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

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Interrogatory No. 10 

Is it Complaint Counsel’s contention that any alleged injury caused by the Domestic 

Rebate Policy, McWane’s participation in DIFRA, and/or the Sigma MDA was not 

outweighed by countervailing benefits or pro-competitive justifications? If so, state with 

particularity why consumers are or were harmed on balance, by identifying and describing 

the basis for this contention, and identify all facts relating to the contention upon which 

Complaint Counsel based the Complaint and upon which Complaint Counsel may or will 

rely at trial in support of the contention, including all facts refuting, or otherwise relating 

to, your contention. 

Response to Interrogatory No. 10 

Complaint Counsel notes that this interrogatory contains at least three distinct subparts, 

and seeks: (1) all facts relating to the balance of harm and any alleged efficiencies related to 

McWane’s Domestic Rebate Policy; (2) all facts relating to the balance of harm and any alleged 

efficiencies related to McWane’s participation in DIFRA; and (3) all facts relating to the balance 

of harm and any alleged efficiencies related to the Sigma MDA. 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “countervailing benefits” and “harmed on balance” as vague and ambiguous. Complaint 

Counsel also objects to the interrogatory as impermissibly seeking attorney work product and 

Complaint Counsel’s trial strategy. Complaint Counsel further objects to this interrogatory as 

premature to the extent it seeks information relating to issues that may be the subject of expert 

testimony in this case. Counsel Complaint Counsel also objects to the interrogatory as unduly 

burdensome to the extent it seeks to compel Complaint Counsel to undertake investigation, 

discovery, and analysis on behalf of Respondent. Complaint Counsel further objects to this 

interrogatory as premature and unduly burdensome because it is a contention interrogatory and 

no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint 

Counsel will supplement its answer, as appropriate, after the close of discovery, as set forth in 

Rule 3.35(b)(2). 

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Interrogatory No. 11 

Is it Complaint Counsel’s contention that McWane had no valid business reason for 

changing its published multipliers for DIWF in 2008? If so, identify and describe the basis 

for Complaint Counsel’s contention and identify all facts relating to the contention upon 

which Complaint Counsel based the Complaint and upon which Complaint Counsel may 

or will rely at trial in support of the contention, including all facts refuting, or otherwise 

relating to, your contention. 

Response to Interrogatory No. 11 

In addition to the General Objections, Complaint Counsel specifically objects to the term 

“valid business reason” as vague and ambiguous. Complaint Counsel also objects to this 

interrogatory as impermissibly seeking attorney work product and Complaint Counsel’s trial 

strategy. Complaint Counsel further objects to this interrogatory as compound to the extent that 

McWane made multiple pricing decisions in 2008. Counsel Complaint Counsel also objects to 

the interrogatory as unduly burdensome to the extent it seeks to compel Complaint Counsel to 

undertake investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel 

further objects to this interrogatory as premature and unduly burdensome because it is a 

contention interrogatory and no response is required prior to the close of discovery pursuant to 

Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as appropriate, after the close 

of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 12 

Is it Complaint Counsel’s contention that any alleged injury arising from McWane’s 

Domestic Rebate Policy that consumers could not reasonably avoid was not outweighed by 

countervailing benefits to consumers or to competition? If so, identify and describe the 

basis for Complaint Counsel’s contention and identify all facts relating to the contention 

upon which Complaint Counsel based the Complaint and upon which Complaint Counsel 

may or will rely at trial in support of the contention, including all facts refuting, or 

otherwise relating to, your contention. 

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Response to Interrogatory No. 12 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “reasonably avoid” and “countervailing benefits” as vague and ambiguous. Complaint 

Counsel also objects to this interrogatory as impermissibly seeking attorney work product and 

Complaint Counsel’s trial strategy. Complaint Counsel further objects to this interrogatory as 

premature to the extent it seeks information relating to issues that may be the subject of expert 

testimony in this case. Counsel Complaint Counsel also objects to the interrogatory as unduly 

burdensome to the extent it seeks to compel Complaint Counsel to undertake investigation, 

discovery, and analysis on behalf of Respondent. Complaint Counsel further objects to this 

interrogatory as premature and unduly burdensome because it is a contention interrogatory and 

no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint 

Counsel will supplement its answer, as appropriate, after the close of discovery, as set forth in 

Rule 3.35(b)(2). 

Interrogatory No. 13 

Is it Complaint Counsel’s contention that McWane had no valid business reason for 

implementing McWane’s Domestic Rebate Policy? If so, identify and describe the basis for 

Complaint Counsel’s contention and identify all facts relating to the contention upon which 

Complaint Counsel based the Complaint and upon which Complaint Counsel may or will 

rely at trial in support of the contention, including all facts refuting, or otherwise relating 

to, your contention. 

Response to Interrogatory No. 13 

In addition to the General Objections, Complaint Counsel specifically objects to the term 

“valid business reason” as vague and ambiguous. Complaint Counsel also objects to this 

interrogatory as impermissibly seeking attorney work product and Complaint Counsel’s trial 

strategy. Counsel Complaint Counsel also objects to the interrogatory as unduly burdensome to 

the extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and 

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analysis on behalf of Respondent. Complaint Counsel further objects to this interrogatory as 

premature and unduly burdensome because it is a contention interrogatory and no response is 

required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will 

supplement its answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

Interrogatory No. 14 

Is it Complaint Counsel’s contention that McWane’s Domestic Rebate Policy 

foreclosed or was likely to foreclose competition in a relevant product market and 

precluded Star or any other supplier from selling Domestic or imported DIWF products to 

any Person? If so, identify and describe the basis for Complaint Counsel’s contention 

including, but not limited to, the identification of any foreclosure of competition, the type of 

product at issue, the identity of any Person from which Star was allegedly foreclosed and 

the basis for the alleged foreclosure, the percentage of foreclosure in the alleged relevant 

market that was caused by McWane’s Domestic Rebate Policy, and all facts relating to the 

contention upon which Complaint Counsel based the Complaint and upon which 

Complaint Counsel may or will rely at trial in support of the contention, including all facts 

refuting, or otherwise relating to, your contention. 

Response to Interrogatory No. 14 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “foreclosed,” “foreclosure” and “precluded” as vague and ambiguous. Complaint Counsel 

also objects to this interrogatory as impermissibly seeking attorney work product and Complaint 

Counsel’s trial strategy. Complaint Counsel further objects to this interrogatory as premature to 

the extent it seeks information relating to issues that may be the subject of expert testimony in 

this case. Counsel Complaint Counsel also objects to the interrogatory as unduly burdensome to 

the extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and 

analysis on behalf of Respondent. Complaint Counsel further objects to this interrogatory as 

premature and unduly burdensome because it is a contention interrogatory and no response is 

required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will 

supplement its answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

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Interrogatory No. 15 

Is it Complaint Counsel’s contention that McWane or Sigma have made threats 

related to the Domestic Rebate Policy, and if so, identify all threats you contend McWane 

or Sigma have made, including but not limited to whom the threat was made, who has 

personal knowledge of it, and what effect each such threat had. 

Response to Interrogatory No. 15 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “threats” as vague and ambiguous. Complaint Counsel further objects to this interrogatory 

as premature to the extent it seeks information relating to issues that may be the subject of expert 

testimony in this case. Counsel Complaint Counsel also objects to the interrogatory as unduly 

burdensome to the extent it seeks to compel Complaint Counsel to undertake investigation, 

discovery, and analysis on behalf of Respondent. Complaint Counsel further objects to this 

interrogatory as premature and unduly burdensome because it is a contention interrogatory and 

no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint 

Counsel will supplement its answer, as appropriate, after the close of discovery, as set forth in 

Rule 3.35(b)(2). 

Interrogatory No. 16 

Is it Complaint Counsel’s contention that any of the allegedly anticompetitive or 

unfair conduct by any Respondent is ongoing at present? If so, identify and describe the 

basis for Complaint Counsel’s contention and identify all facts relating to the contention 

upon which Complaint Counsel based the Complaint and upon which Complaint Counsel 

may or will rely at trial in support of the contention. 

Response to Interrogatory No. 16 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

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Interrogatory No. 17 

Identify each and every alleged anticompetitive or unfair conduct of each 

Respondent or other third party regarding the prices of Non-domestic Fittings or in any 

manner relating to their participation or membership in DIFRA. 

Response to Interrogatory No. 17 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 18 

Is it Complaint Counsel’s contention that McWane’s participation in DIFRA, 

including its receipt of aggregated, anonymized shipment tonnage data compiled by 

SRHW, caused the price of DIWF products it sold into Open Preference jobs to be higher 

than they otherwise would have been? If so, identify and describe the basis for Complaint 

Counsel’s contention and identify all facts relating to the contention upon which Complaint 

Counsel based the Complaint and upon which Complaint Counsel may or will rely at trial 

in support of the contention, including all facts refuting, or otherwise relating to, your 

contention. 

Response to Interrogatory No. 18 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 19 

Is it Complaint Counsel’s contention that McWane had no valid business reason for 

participating in DIFRA or receiving aggregated, anonymized volume data compiled by 

SRHW? If so, identify and describe the basis for Complaint Counsel’s contention and 

identify all facts relating to the contention upon which Complaint Counsel based the 

Complaint and upon which Complaint Counsel may or will rely at trial in support of the 

contention, including all facts refuting, or otherwise relating to, your contention. 

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Response to Interrogatory No. 19 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 20 

Is it Complaint Counsel’s contention that the MDA was not an arms-length 

transaction between McWane and Sigma? If so, identify and describe the basis for 

Complaint Counsel’s contention and identify all facts relating to the contention upon which 

Complaint Counsel based the Complaint and upon which Complaint Counsel may or will 

rely at trial in support of the contention, including all facts refuting, or otherwise relating 

to, your contention. 

Response to Interrogatory No. 20 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 21 

Is it Complaint Counsel’s contention that McWane had no valid business purpose 

for selling Domestic Fittings to Sigma and/or for entering into the MDA? If so, identify and 

describe the basis for Complaint Counsel’s contention and identify all facts relating to the 

contention upon which Complaint Counsel based the Complaint and upon which 

Complaint Counsel may or will rely at trial in support of the contention, including all facts 

refuting, or otherwise relating to, your contention. 

Response to Interrogatory No. 21 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

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all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 22 

Is it Complaint Counsel’s contention that, but for the MDA, Sigma would have 

begun selling Domestic Fittings during or after the ARRA period? If so, identify when you 

contend Sigma would have begun selling Domestic DIPF, in what diameter sizes and 

configurations, and at what prices and describe the basis for this contention and identify all 

facts relating to the contention upon which Complaint Counsel based the Complaint and 

upon which Complaint Counsel may or will rely at trial in support of the contention, 

including all facts refuting, or otherwise relating to, your contention and all facts referring 

or relating in any manner to Sigma’s plans, preparations for, and entry into the Domestic 

Fittings market and Sigma’s decision to produce, buy, or sell Domestic Fittings. 

Response to Interrogatory No. 22 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

Interrogatory No. 23 

Is it Complaint Counsel’s contention that McWane’s Domestic or imported DIPF 

prices would have been lower but-for McWane’s conduct and, if so, state all facts and 

counter-facts. 

Response to Interrogatory No. 23 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory because Respondent has exceeded its allotted number of interrogatories, including 

all subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the February 15, 2012, 

Scheduling Order. 

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CERTIFICATE OF SERVICE 

I hereby certify that on March 16, 2012, that I delivered via electronic mail a copy of the 

foregoing document to: 

Joseph A. Ostoyich 

Andreas Stargard 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

Gregory S.C. Huffman 

William Katz 

Nicole Williams 

Brian Stoltz 

Thompson and Knight LLP 

One Arts Plaza 

1722 Routh Street, Suite 1500 

Dallas, TX 75201 

(214) 969-1700 

Gregory.Huffman@tklaw.com 

William.Katz@tklaw.com 

Nicole.Williams@tklaw.com 

Brian.Stoltz@tklaw.com 

Counsel for Respondent Star Pipe Products, Ltd. 

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EXHIBIT B
	
__________________________________________ 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and ) 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) 

__________________________________________) 

COMPLAINT COUNSEL’S MOTION TO COMPEL RESPONDENT 

MCWANE, INC.’S ANSWERS TO INTERROGATORY NOS. 13-16 

(REQUEST FOR EXPEDITED BRIEFING) 

Pursuant to Rule 3.38 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel respectfully moves the Court to compel 

Respondent to answer Interrogatory Nos. 13 through 16 of Complaint Counsel’s First Set 

of Interrogatories, dated February 21, 2012 (“Complaint Counsel’s Interrogatories”). In 

McWane, Inc.’s Responses and Objections to Complaint Counsel’s First Set of 

Interrogatories, dated March 22, 2012 (“Respondent’s Interrogatory Responses”), 

Respondent objects to answering these interrogatories on the basis that Complaint 

Counsel allegedly exceeded its allotted 25 interrogatories. See Exhibit A at 12-14 

(Respondent’s Interrogatory Responses). Respondent reaches this erroneous conclusion 

by miscounting the number of discrete subparts in Interrogatory Nos. 1, 6 and 10 of 

Complaint Counsel’s Interrogatories. When properly counting only those subparts that 

are logically or factually independent of the main interrogatory, Respondent has 

answered no more than 21 interrogatories and should therefore be compelled to answer 

Interrogatory Nos. 13 through 16 of Complaint Counsel’s Interrogatories. 
 

 

 

 

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Complaint Counsel met and conferred with counsel for Respondent regarding a 

number of issues related to Respondent’s Interrogatory Responses, but counsel could not 

reach a resolution on the issue of how to properly count interrogatory subparts. See 

Exhibit B (Complaint Counsel’s Statement Regarding Meet and Confer Pursuant to 

Scheduling Order); see also Exhibit C (A. Stargard E-Mail to L. Holleran, dated March 

27, 2012 (“March 27, 2012 E-Mail”)); Exhibit D (L. Holleran Letter to A. Stargard, dated 

March 28, 2012 (“March 28, 2012 Letter”)). Given the short time frame allowed for 

discovery in this matter, Complaint Counsel respectfully requests expedited briefing of 

this issue. See Rule 3.22(d) (allowing the Administrative Law Judge to set a shorter or 

longer period of time to respond to a written motion). 

I. Factual Background 

On February 21, 2012, Complaint Counsel propounded 16 interrogatories to 

Respondent McWane. On March 22, 2012, Respondent answered Complaint Counsel’s 

Interrogatories, but refused to answer Interrogatory Nos. 13-16 due to its objection that, 

“Complaint Counsel has exceeded its allotted number of interrogatories, including all 

subparts, as specified in Rule 3.35(a) and in Paragraph 10 of the Court’s February 15, 

2012, Scheduling Order.” See Exh. A at 12-14 (Respondent’s Interrogatory Responses). 

Respondent bases its objection by counting multiple discrete subparts in many of 

Complaint Counsel’s interrogatories, including Interrogatory Nos. 1, 6 and 10.1 

Specifically, Respondent counts four discrete subparts in Interrogatory No. 1, 

which states: 

1

 Respondent counted multiple subparts on most of Complaint Counsel’s interrogatories. See Exh. C 

(March 27, 2012 E-Mail). While Complaint Counsel believes that Respondent over-counted the number of 

discrete subparts in many of its interrogatories, for purposes of this motion, Complaint Counsel is assuming 

arguendo that Respondent’s count of subparts is accurate except for Interrogatory Nos. 1, 6 and 10. 

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1. Identify each current or former employee of the Company who has or had any 

management or supervisory responsibilities or duties with respect to pricing of 

any Relevant Product, including without limitation: involvement in marketing, 

sales, distribution, or influencing list prices, catalog prices, multiplier prices, 

project discounts or any form of rebates; or who has had any Communication with 

any Competitor; and for each such current or former employee of the Company, 

provide: 

a.	 The business and home telephone numbers and telephone service 

providers of each voice, facsimile or cellular line assigned to or used for 

any business purpose by each employee (whether exclusive or not), and 

the period during which each such number was assigned to or used by the 

employee; and, 

b.	 Each business and home telecopier and electronic mail identifier assigned 

to or used for business purpose by the employee (whether exclusive or 

not) and the period during which each such identifier was assigned to or 

used by the employee. 

Exh. A (Respondent’s Interrogatory Responses) at 4. 

Respondent initially counted the subparts in Interrogatory No. 1 as follows: (i) the 

identification of Respondent’s employees with pricing authority; (ii) the identification of 

Respondent’s employees with communications with Competitors; (iii) the phone numbers 

of those employees; and (iv) the e-mail addresses of those employees. See Exhibit C 

(March 27, 2012 E-Mail); Exhibit D (March 28, 2012 Letter). During subsequent 

conversations, Respondent conceded that telephone numbers were not a separate and 

discrete subpart, but continued to count four subparts by now counting them as follows: 

(i) the identification of Respondent’s employees with pricing authority; (ii) the e-mail 

addresses of employees with pricing authority; (iii) the identification of employees who 

communicate with competitors; and (iv) the e-mail addresses of employees who 

communicate with competitors. As discussed further below, this interrogatory consists of 

no more than 2 discrete subparts. 

Respondent also counts two discrete subparts in Interrogatory No. 6, which states: 

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6. Quantify each justification, efficiency, rationale or Effect identified in 

response to Specification 5 above, and describe in detail the basis used in 

quantifying the justification, efficiency, rationale or Effect. 

Exh. A (Respondent’s Interrogatory Responses) at 8. Specifically, Respondent counts the 

following as distinct subparts: (i) the quantification of any claimed efficiencies relating to 

DIFRA; and (ii) the description of how it reached this quantification. See Exh. B (March 

28, 2012 Letter). As discussed below, this is a single interrogatory. 

Finally, Respondent counts two discrete subparts in Interrogatory No. 10, which 

states: 

10. Quantify each justification, efficiency, rationale or Effect identified in 

response to Specification 9 above, and describe in detail the basis used in 

quantifying the justification, efficiency, rationale or Effect. 

Exh. A (Respondent’s Interrogatory Responses) at 11. Consistent with its approach to 

Interrogatory No. 6, Respondent counts the following as distinct subparts: (i) the 

quantification of any claimed efficiencies relating to its exclusive dealing arrangements; 

and (ii) the description of how it reached this quantification. This is also a single 

interrogatory. 

II. Legal Analysis 

Rule 3.35(a) of the Commission’s Rules of Practice for Adjudicative Proceedings 

and Paragraph 10 of the Court’s February 15, 2012, Scheduling Order allot each party 25 

interrogatories, including all discrete subparts. Discrete subparts are included in the total 

count of interrogatories propounded by a party so as to prevent a litigant from evading 

the numerical limit on interrogatories by requesting many different types of information 

under the guise of a single interrogatory. Under the appropriate standard for identifying 

discrete subparts, Interrogatory Nos. 1, 6 and 10 should be counted as no more than four 

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total interrogatories, and not eight as contended by Respondent. Accordingly, even 

assuming arguendo that Respondent correctly counted the subparts of all other 

interrogatories, Respondent has answered no more than 21 interrogatories in Complaint 

Counsel’s Interrogatories, and should therefore be compelled to answer Interrogatory 

Nos. 13 through 16. 

A. Interrogatories Have Discrete Subparts Only If the Subparts are Logically or 

Factually Independent from the Main Question of the Interrogatory 

Following the approach of courts interpreting Rule 33(a) of the Federal Rules of 

Civil Procedure, the Commission counts a subpart as “discrete,” or as a separate 

interrogatory under Rule 3.35(a), only if the subpart is logically or factually independent 

from the main question in the interrogatory. See In re Polypore Int’l, Inc., 2008 FTC 

Lexis 155, at *3-4 (2008); In Re Dynamic Health of Florida, 2004 FTC Lexis 254, at *2 

(2004) (finding subpart discrete when answer could be understood and “stand alone” 

without a response to the other aspects of the interrogatory request). As explained in 

Moore’s Federal Practice & Procedure, 

However, courts agree generally that a discrete subpart is one that is not 

logically or factually subsumed within and necessarily related to the 

primary question. Therefore, even if a question is listed as a subpart, if it 

can be answered independently from the primary question, that subpart 

must be counted as a separate interrogatory. On the other hand, multiple 

interrelated questions in subparts constitute a single interrogatory. For 

example, a subpart is not a separate interrogatory if it requests that the 

time, place, persons present, and contents be stated separately. 

2-15 Moore's Federal Practice and Procedure § 15.25(3)(b) (2011); see also 8B Charles 

Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 

2168.1, at 39-40 (3d ed. 2010) (subparts "directed at eliciting details concerning a 

common theme should be considered a single question"); Kendall v. GES Exposition 

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Servs., Inc., 174 F.R.D. 684, 685 (D. Nev. 1997)) (“Probably the best test of whether 

subsequent questions, within a single interrogatory, are subsumed and related, is to 

examine whether the first question is primary and subsequent questions are secondary to 

the primary question. Or, can the subsequent question stand alone? Is it independent of 

the first question?”). 

B. Interrogatory Nos. 1, 6 and 10 of Complaint Counsel’s Interrogatories 

Should Be Counted As No More Than a Total of Four Interrogatories 

Applying the appropriate standard for identifying discrete subparts here, 

Complaint Counsel’s Interrogatory No. 1 should count as two interrogatories, and 

Interrogatory Nos. 6 and 10 should each only count a single interrogatory. 

1. Interrogatory No. 1 

Interrogatory No. 1 seeks two distinct areas of information and should be counted 

as two discrete subparts: (i) identifying employees with pricing authority; and (ii) 

identifying employees who have communications with competitors. The identification of 

employees with pricing authority can be understood and “stand alone” without reference 

to the identity of employees who have had communications with competitors. 

Respondent counts two additional subparts for this interrogatory by separately 

counting the Interrogatory’s request for the above employees’ e-mail addresses. In doing 

so, Respondent relies on the fact that the definition of “Identify” in Complaint Counsel’s 

Interrogatories does not explicitly call for e-mail addresses. This definition, however, 

does not undermine the concept that e-mail addresses for these two categories of 

employees fails the factual independence test for discrete subparts. 

As explained by the Advisory Committee Notes to FED. R. CIV. P. 33(a), an 

interrogatory asking for details about a single topic should be counted as a single 

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interrogatory. FED. R. CIV. P. 33(a), Advisory Committee’s Note (1993 Amendments). In 

the example provided by the Advisory Committee, a “question asking about 

communications of a particular type should be treated as a single interrogatory even 

though it requests that the time, place, persons present, and contents be stated separately 

for each such communication.” Id. Likewise here, the request for e-mail addresses of 

employees identified by Respondent is “subsumed” in the identity of the employee and 

should not be counted as discrete subparts. See Safeco of America v. Rawstrom, 181 

F.R.D. 441, 445 (C.D. Cal. 1998) (stating that “a single question asking for several bits of 

information relating to the same topic counts as one interrogatory. (E.g., ‘State the name, 

address and telephone number of each person present at the meeting.’)”). 

2. Interrogatory Nos. 6 and 10 

Interrogatory Nos. 6 and 10 seek information related to the quantification of any 

efficiency claims by Respondent and should each count as a single interrogatory. 

Complaint Counsel propounded four separate interrogatories seeking information related 

to Respondent’s efficiency claims: Interrogatory No. 5 asks Respondent to identify and 

describe any efficiencies related to Respondent’s participation in the Ductile Iron Fittings 

Research Association (“DIFRA”); Interrogatory No. 6 asks Respondent to quantify, and 

describe the basis for that calculation, any DIFRA-related efficiencies; Interrogatory No. 

9 asks Respondent to identify and describe any efficiencies related to Respondent’s 

exclusive dealing arrangements; and Interrogatory No. 10 asks Respondent to quantify, 

and describe the basis for that calculation, any exclusive dealing-related efficiencies. 

Respondent counted Interrogatory Nos. 5 and 9 as single interrogatories, but counted 

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Interrogatory Nos. 6 and 10 as each containing two discrete subparts for a total of four 

separate interrogatories. 

In Interrogatory Nos. 6 and 10, Complaint Counsel seeks information about a 

single topic – how Respondent quantifies its efficiencies. Respondent calculates two 

discrete subparts for each of these interrogatories by erroneously de-coupling the 

quantification of an efficiency from the calculations or basis used for arriving at that 

calculation. Describing the basis, or the component parts, that Respondent used to 

calculate or quantify its efficiencies is necessarily related to the main question of the 

interrogatory: how does Respondent quantify its efficiencies? Put simply, these are not 

“stand alone” questions or concepts. See In Re Dynamic Health of Florida, 2004 FTC 

Lexis 254, at *2. 

For example, in Polypore Int’l, this Court found that Complaint Counsel’s 

interrogatory seeking cost data for each relevant market and in each relevant area was a 

single interrogatory notwithstanding the fact that Complaint Counsel had sought 

numerous data elements as part of the requested cost data. Polypore Int’l, 2008 FTC 

Lexis 155, at * 3-4. The Court ruled that seeking the various data elements were 

“logically or factually subsumed within and necessarily related to the primary question” 

regarding Respondent’s costs. Because the components of an efficiency calculation are 

similar to the data elements of an interrogatory seeking cost data, Interrogatory Nos. 6 

and 10 should likewise be counted as a single interrogatory. 

III. Conclusion 

By properly counting Interrogatory Nos. 1, 6 and 10 and their discrete subparts as 

a total of four interrogatories (rather than eight as contended by Respondent), and by 

8
 
Public
__________________________________________ 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

Public

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and ) 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) 

__________________________________________) 

PROPOSED ORDER 

On April 4, 2012, Complaint Counsel filed Complaint Counsel’s Motion to 

Compel Respondent McWane, Inc.’s Answers to Interrogatory Nos. 13-16. Upon 

consideration of this motion, this Court grants Complaint Counsel’s motion. Respondent 

is ordered to answer Complaint Counsel’s Interrogatory Nos. 13 through 16. 

ORDERED:

 D. Michael Chappell

 Administrative Law Judge 

April , 2012 
__________________________________________ 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

Public

)
 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and ) 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) 

__________________________________________) 

PROPOSED ORDER FOR EXPEDITED RESPONSE 

On April 4, 2012, Complaint Counsel filed Complaint Counsel’s Motion to 

Compel Respondent McWane, Inc.’s Answers to Interrogatory Nos. 13-16. 

Rule 3.22(d) of the Commission’s Rules of Practice provides for a response 

period of “10 days after service of any written motion, or within such longer or shorter 

time as may be designated by the Administrative Law Judge...” 16 C.F.R. § 3.22(d). 

Pursuant to Rule 3.22, it is hereby ORDERED that any written response to 

Complaint Counsel’s Motion to Compel Respondent McWane, Inc.’s Answers to 

Interrogatory Nos. 13-16 shall be submitted no later than 5:00 p.m. on April 10, 2012. 

ORDERED:

 D. Michael Chappell

 Administrative Law Judge 

Date: April , 2012 
 

 

 

 

 

Public

CERTIFICATE OF SERVICE

 I hereby certify that on April 4, 2012, I filed the foregoing document 

electronically using the FTC’s E-Filing System, which will send notification of such 

filing to: 

Donald S. Clark 

Secretary 

 Federal Trade Commission 

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

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing 

document to: 

Joseph A. Ostoyich 

Andreas Stargard 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

10
 
 

 

 

 

 

 

 

 

Public

Gregory S.C. Huffman 

William Katz 

Nicole Williams 

Brian Stoltz 

Thompson and Knight LLP 

One Arts Plaza 

1722 Routh Street, Suite 1500 

Dallas, TX 75201 

(214) 969-1700 

Gregory.Huffman@tklaw.com 

William.Katz@tklaw.com 

Nicole.Williams@tklaw.com 

Brian.Stoltz@tklaw.com 

Counsel for Respondent Star Pipe Products, Ltd. 

Counsel for Respondent 

 Star Pipe Products, LTD 

CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

April 4, 2012 By: s/ Thomas H. Brock 

Attorney 

11
 
EXHIBIT C
	
UNITED STATES OF AMERICA ORIGINAL 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

) 

ORDER GRANTING COMPLAINT COUNSEL'S MOTION TO COMPEL 

RESPONDENT'S ANSWERS TO INTERROGATORIES 

I. Introduction 

On April 4, 2012, Complaint Counsel filed a Motion to Compel Respondent McWane, 

Inc. ("~espondent") to Answer Interrogatories 13 through 16 ("Motion"). Respondent filed an 

opposition to the Motion on April 11, 2012 ("Opposition"). Having fully considered the Motion 

and Opposition, and as more fully explained below, the Motion is GRANTED. 

On February 21,2012, Complaint Counsel served a set ofinterrogatories on McWane, 

numbered 1 through 16 (Motion Exhibit A). McWane refused to answer Interrogatories 13 

through 16 on the ground that, counting all discrete subparts ofInterrogatories 1 through 12, 

Complaint Counsel reached its limit of25 interrogatories (Motion Exhibits C and D). The 

parties were unable to reach an agreement on this dispute, and the instant Motion followed. 

II. Applicable Legal Principles 

Commission Rule ofPractice 3.35(a)(1) states in pertinent part: "Any party may serve 

upon any other party written interrogatories, not exceeding 25 in number, including all discrete 

subparts, ..." 16 C.F.R. § 3.35 (a)(1). Rule 3.35(a)(1) is the same in this regard as Federal Rule 

ofCivil Procedure 33(a) ("Unless otherwise stipulated or ordered by the court, a party may serve 

on any other party no more than 25 written interrogatories, including all discrete subparts."). 

Fed. R. Civ. P. 33. 

"In determining whether a request is a discrete subpart, courts look to 'whether one 

question is subsumed and related to another or whether each question can stand alone and be 

answered irrespective ofthe answer to the others.' . .. Courts have found that a subpart is 
discrete when it is logically or factually independent ofthe question posed by the basic 

interrogatory." In re Dynamic Health ofFlorida, 2004 FTC LEXIS 254 (Dec. 9,2004) (citations 

omitted); accord In re Polypore Int'l, 2008 FTC LEXIS 155, at *3-4 (Nov. 14,2008). If 

interrogatory subparts "are logically or factually subsumed within and necessarily related to the 

primary question," they are to be counted as one interrogatory. Safeco ofAmerica v. Rawston, 

181 F.R.D. 441, 445 (C.D. Cal. 1998), citing Kendall v. GES Exposition Services, 174 F.R.D. 

684 (D. Nev. 1997). See also Kendall v. GES Exposition Serv., Inc., 174 F.R.D. 684, 685 (D. 

Nev. 1997) ("Genuine subparts should not be counted as separate interrogatories."); Banks v. 

Office ofthe Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004) (noting that subparts 

related to a single topic are considered part ofthe same interrogatory). 1 

III. Analysis 

The only issue presented by the Motion and Opposition is the appropriate calculation of 

the number ofinterrogatories contained in Interrogatories 1,6 and 10, which are set forth 

verbatim below. Complaint Counsel contends that Interrogatory No.1 presents no more than 

two interrogatories, while Respondent contends that this Interrogatory presents four discrete 

subparts. Complaint Counsel contends that Interrogatories 6 and 10 each presents only one 

interrogatory, while Respondent argues that each interrogatory presents two interrogatories. 

Respondent contends that, ifthe number of discrete subparts in Interrogatories 1, 6, and 10 are 

properly calculated, it has no obligation to answer Interrogatories 13 through 16 because they 

exceed the 25 interrogatory limit. 

A. Interrogatory No.1 

Interrogatory 1 states: 

Identify each current or former employee ofthe Company who has or had any 

management or supervisory responsibilities or duties with respect to pricing of 

any Relevant Product, including without limitation: involvement in marketing, 

sales, distribution, or influencing list prices, catalog prices, multiplier prices, 

project discounts or any form ofrebates; or who has had any Communication with 

any Competitor; and for each such current or former employee ofthe Company, 

provide: 

a. The business and home telephone numbers and telephone service 

providers of each voice, facsimile or cellular line assigned to or used for 

any business purpose by each employee (whether exclusive or not), and 

the period during which each such number was assigned to or used by the 

employee; and, 

1 Where, as in this case, the Federal Rules ofCivil Procedure are similar to the Commission's Rules ofPractice, 

those rules and case law interpreting them are useful, though not controlling, in adjudicating a dispute. In re L. G. 

Balfour Co., No. 8435, 61 F.T.C. 1491, 1492, 1962 FTC LEXIS 367, *4 (Oct. 5, 1962); In re Gemtronics, Inc., 2010 

FTC LEXIS 40, *10 (ApriI27, 2010). 

2 

b. Each business and home telecopier and electronic mail identifier 

assigned to or used for business purpose by the employee (whether 

exclusive or not) and the period during which each such identifier was 

assigned to or used by the employee. 

The parties agree that the foregoing interrogatory requests identification for two distinct 

classes ofpersons - employees with responsibility for pricing decisions and employees who had 

any communication with competitors on any topic. Respondent maintains that the subparts a. 

and b., asking for both telephone numbers and electronic mail (email) addresses for each such 

emploYt!e that are used for "any business purpose," present two additional discrete questions, for 

a total of four interrogatories. Complaint Counsel argues that the subparts in Interrogatory No.1 

are not discrete but are subsumed within the primary question ofidentification. 

The advisory committee notes to Federal Rule 33 state in part, a "question asking about 

communications of a particular type should be treated as a single interrogatory even though it 

requests that the time, place, persons present, and contents be stated separately for each such 

communication." Fed. R. Civ. P. 33(a), Advisory Committee's Note (1993 Amendments). 

Applying a similar principle in Poiypore, 2008 FTC LEXIS 155, it was held that an interrogatory 

asking for all sales, by relevant product, and relevant market, and for additional specific 

information as to such sales constituted a single interrogatory. "Simply asking for data elements 

for the same topic, as Complaint Counsel has done here, does not multiply each data element into 

a separate interrogatory. The interrogatories seeking various data elements for each relevant 

market and in each relevant area are logically or factually subsumed within and necessarily 

related to the primary question." Id. at *4. In the instant case, the requests in Interrogatory No.1 

for telephone numbers and email addresses are requesting various data elements that are both 

logically and factually subsumed within the primary request for identification. Accordingly, 

Interrogatory No. 1 presents two, and not four, interrogatories. 

B. Interrogatories 6 and 10 

Interrogatory No.6 states: "Quantify each justification, efficiency, rationale or Effect 

identified in response to [Interrogatory 5 as arising in connection with Respondent's participation 

in the Ductile Iron Fittings Research Association ("DIFRA")], and describe in detail the basis 

used in quantifying the justification, efficiency, rationale or Effect." 

Interrogatory No. 10 states: "Quantify each justification, efficiency, rationale or Effect in 

response to [Interrogatory 9 as arising in connection with any exclusive dealing arrangement], 

and describe in detail the basis used in quantifying the justification, efficiency, rationale or 

Effect." 

Respondent contends that the foregoing interrogatories each present two discrete subparts 

by requesting Respondent to "quantify" certain efficiencies, by providing a number, and then to 

"describe in detail the basis" for that number, which requires a narrative explanation ofthe 

underlying methodologies or models used to determine the number. Complaint Counsel 

contends that the request in each ofthese interrogatories for the component parts or basis used 

3 
 
for arriving at the number requested by the interroga:tory is not Cl~ding discrete, or "stand alone" . \. ' . . .

questIOns. ' . , '>: 

Respondent relies on Pot/uri v. Yalamanchili, 2007'U.S: DisC LEXIS 29238 (E.D. Mich. 

Apr. 20, 2007), in which the court held that an interrogatory asking to set forth all business 

interests held by the plaintiff, as well as for the nature ofthe interest and the location of the 

business, requested discrete pieces ofinfonnation. Respondent also cites Trevino v. ABC Am., 

Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006), in which it was held that a single interrogatory 

requesting identification of each expert witness, the subject matter on which the expert was 

expected to testify, the substance ofthe facts and opinions to which the expert would testify, a 

summary ofthe grounds for each expert opinion, and the expert's qualifications presented three 

discrete subparts. 

Respondent's cited authorities are not sufficiently analogous, on the facts or the 

applicable law, and, thus, are not persuasive. In this case, the primary question in both 

Interrogatories 6 and 10 presents a single topic - Respondent's efficiency defenses. See Banks, 

222 F.R.D. at 10 (noting that subparts related to a single topic are considered part ofthe same 

interrogatory). The basis for the requested quantification is logically subsumed within the 

primary question. A number and its basis are not "stand alone" concepts. Compare In re 

Dynamic Health ofFlorida, 2004 FTC LEXIS 254, at *2 (Dec. 9,2004) (finding interrogatory 

requesting the identity of certain business associates ofrespondent and infonnation about their 

compensation presented two separate interrogatories). Accordingly, both Interrogatories 6 and 

10 present only one interrogatory each. 

IV. Conclusion 

Complaint Counsel has demonstrated that Interrogatory No.1 consists oftwo 

interrogatories and that Interrogatories 6 and 10 consist of only one interrogatory each. 

Because Respondent's Opposition is based solely on its proposed higher calculation, Complaint 

Counsel's Motion is GRANTED.2 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: April 16, 2012 

2 Respondent asserts that Complaint Counsel refused to respond to certain ofRespondent's interrogatories by 

applying a strict counting methodology, similar to that which is proposed herein by Respondent. The nature of any 

dispute between Complaint Counsel and Respondent over Respondent's Interrogatories is not dispositive as to 

whether Complaint Counsel's Motion to Compel Respondent's answers to Complaint Counsel's interrogatories 

should be granted. 

4 
EXHIBIT D
	
 

__________________________________________ 

 

 

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) PUBLIC 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

RESPONDENT MCWANE, INC.’S STATEMENT REGARDING MEET AND CONFER 

PURSUANT TO SCHEDULING ORDER 

Counsel for Respondent McWane, Inc. has conferred with Complaint Counsel regarding 

Complaint Counsel’s Objections and Responses to Respondent McWane, Inc.’s First Set of 

Interrogatories. Counsel spoke during the weeks of April 16 and 23, and Complaint Counsel 

sent a letter in response, dated April 25, 2012. Despite the good faith efforts of counsel, the 

parties were unable to reach a resolution with respect to how interrogatory subparts should be 

counted, and we remain at an impasse related to the issues raised by the motion. 

Respectfully submitted, 

__/s/ William C. Lavery________________
	

William C. Lavery
	

One of the Attorneys for McWane, Inc.
	
EXHIBIT E
	
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

United States of America
 

FEDERAL TRADE COMMISSION
 

WASHINGTON, D.C. 20580 

Linda M. Holleran
 

Anticompetitive Practices
 

Phone: 202-326-2267
 

Email: lholleran@ftc.gov
 

April 25, 2012 

VIA ELECTRONIC MAIL 

William Lavery, Esq. 

BakerBotts LLP 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, D.C. 20004-2400 

Re: In the Matter of McWane, Inc. and Star Pipe Products, Ltd., Dkt No. 9351 

Dear Will: 

In our telephone conversation on April 20, 2012, you expressed concerns regarding how 

Complaint Counsel counted the subparts to Interrogatory Nos. 2, 3, 5 and 10 in Complaint 

Counsel’s Response and Objections to Respondent McWane Inc.’s First Set of Interrogatories 

(1-23), dated March 16, 2012. This letter addresses each of your concerns in turn. 

Interrogatory No. 2 

State all facts that you contend support your definition of a relevant Domestic Fittings 

product market, including but not limited to all facts upon which Complaint Counsel based the 

product and geographic market allegations in the Complaint and all facts upon which 

Complaint Counsel may or will rely at trial, including the relevant start and end dates of any 

ARRA-related markets or sub-markets, the likelihood of recurrence of such markets or submarkets, and all facts refuting, or otherwise relating to such market definition. 

Response to Interrogatory No. 2 

Complaint Counsel notes that this interrogatory contains at least three discrete 

subparts, and seeks: (1) all facts relating to a Domestic Fittings product market, (2) all facts 

supporting the geographic market(s) alleged in the Complaint; and (3) all facts relating to any 

ARRA-related submarkets. 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory to the extent it impermissibly seeks attorney work product and Complaint 

Counsel’s trial strategy. Complaint Counsel also objects to this interrogatory as premature to 

the extent it seeks information relating to issues that may be the subject of expert testimony in 

this case. Counsel Complaint Counsel further objects to the interrogatory as unduly 

burdensome to the extent it seeks to compel Complaint Counsel to undertake investigation, 

discovery, and analysis on behalf of Respondent. Complaint Counsel also objects to this 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

William Lavery, Esq. 

April 25, 2012 

Page 2 

interrogatory as premature and unduly burdensome because it is a contention interrogatory and 

no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint 

Counsel will supplement its answer, as appropriate, after the close of discovery, as set forth in 

Rule 3.35(b)(2). 

You claim that Interrogatory No. 2 seeks information for only two separate subparts 

related to domestic product markets, and geographic markets. While this interrogatory clearly 

seeks information regarding a possible ARRA-specific submarket, we are willing to amend our 

position and count this interrogatory as containing two subparts, and not three. 

Interrogatory No. 3 

Identify all facts that you contend establish that McWane possesses or possessed 

market power or monopoly power in any relevant antitrust market, including but not limited 

to any evidence relating to market shares, the ability to control prices or output, the time 

period during which McWane allegedly possessed market power, and all facts that you 

contend establish that McWane acquired, enhanced, maintained, or exercised such market 

power through anticompetitive or unfair conduct or attempted to do so, and all facts refuting, 

or otherwise relating to McWane’s alleged possession or exercise of market power. 

Response to Interrogatory No. 3 

Complaint Counsel notes that this interrogatory contains at least two discrete subparts, 

and seeks: (1) all facts establishing, refuting or otherwise that McWane possesses market power 

or monopoly power; and (2) all facts establishing, refuting or otherwise relating to McWane 

exercising such power through anticompetitive or unfair conduct or attempted to do so. 

In addition to the General Objections, Complaint Counsel specifically objects to this 

interrogatory as premature to the extent it seeks information relating to issues that may be the 

subject of expert testimony in this case. Counsel Complaint Counsel also objects to the 

interrogatory as unduly burdensome to the extent it seeks to compel Complaint Counsel to 

undertake investigation, discovery, and analysis on behalf of Respondent. Complaint Counsel 

further objects to this interrogatory as premature and unduly burdensome because it is a 

contention interrogatory and no response is required prior to the close of discovery pursuant to 

Rule 3.35 (b)(2). Complaint Counsel will supplement its answer, as appropriate, after the close 

of discovery, as set forth in Rule 3.35(b)(2). 

You claim that Interrogatory No. 3 only contains one interrogatory. In essence, you 

assert that asking for information related to how McWane exercised its monopoly power is 

somehow subsumed into the topic of providing information that establishes the existence of 

McWane’s monopoly power. In fact, this interrogatory contains three separate subparts that ask 

for distinct information related to: i) the existence of McWane’s monopoly power; ii) McWane’s 

exercise of monopoly power using its exclusive dealing policy; and iii) McWane’s exercise of 

monopoly power through its Master Distribution Agreement with Sigma. An interrogatory that 

asks for information related to the different elements of a claim (e.g., monopoly power and the 

exercise of monopoly power), as well as asking for the same information across several distinct 

allegations, are appropriately counted as separate subparts. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

William Lavery, Esq. 

April 25, 2012 

Page 3 

Interrogatory No. 5 

Identify all facts supporting, refuting, or otherwise relating to Complaint Counsel’s 

contention that consumers were substantially injured or likely to be injured as a result of 

McWane’s alleged anticompetitive or unfair conduct, including but not limited to McWane’s 

2008-09 DIWF prices, that such injury was not reasonably avoidable by consumers themselves 

and not outweighed by countervailing benefits to consumers, including, but not limited to (1) 

each specific instance of any Respondent’s alleged anticompetitive or unfair conduct, (2) the 

alleged harm associated with each specific instance, (3) any specific consumer(s) allegedly 

injured, and (4) the likelihood of the alleged anticompetitive or unfair conduct or any resulting 

harm recurring in the future. 

Response to Interrogatory No. 5 

Complaint Counsel notes that this interrogatory contains at least four discrete subparts, 

and seeks: (1) all facts establishing, refuting or otherwise relating to consumers being injured by 

McWane’s anticompetitive conduct- (2) all facts establishing, refuting or otherwise relating to 

the ability of consumers to reasonably avoid the harm; (3) all facts establishing, refuting or 

otherwise relating to any alleged countervailing benefits to consumers from McWane’s 

anticompetitive conduct; and (4) all facts establishing, refuting or otherwise relating to the 

likelihood of the alleged anticompetitive conduct or any resulting harm recurring in the future. 

In addition to the General Objections, specifically objects to the terms “substantially 

injured,” “likely to be injured,” “reasonably avoidable,” and “countervailing benefits” as vague 

and ambiguous. Complaint Counsel also objects to this interrogatory as premature to the extent 

it seeks information relating to issues that may be the subject of expert testimony in this case. 

Counsel Complaint Counsel further objects to the interrogatory as unduly burdensome to the 

extent it seeks to compel Complaint Counsel to undertake investigation, discovery, and analysis 

on behalf of Respondent. Complaint Counsel also objects to this interrogatory as premature and 

unduly burdensome because it is a contention interrogatory and no response is required prior to 

the close of discovery pursuant to Rule 3.35 (b)(2). Complaint Counsel will supplement its 

answer, as appropriate, after the close of discovery, as set forth in Rule 3.35(b)(2). 

You claim that Interrogatory No. 5 only contains two subparts, essentially combining 

nd th rd Complaint Counsel’s 1st, 2 and 4 subparts; and separately, the 3 subpart. While all of the 

subparts relate generally to the issue of consumer injury, they are distinct inquiries that can be 

answered independently of one another; they are not merely details of a single topic, such as the 

time, date and place of a communication. These inquiries are therefore properly counted as 

discrete subparts, which is consistent with how McWane counted Complaint Counsel’s 

interrogatories (see, e.g., McWane’s response to CC’s Interrogatory No. 4). In addition, because 

McWane asks for this information across all seven counts of the complaint, this interrogatory 

should really be counted as containing 28 subparts. To avoid this result, we recommend that you 

identify the specific anticompetitive conduct for which you would like information. If McWane 

fails to identify which count Interrogatory No. 5 is intended to address, Complaint Counsel will 

choose which of the seven counts it will address in its response. 
 

 

 

 

 

 

 

 

 

William Lavery, Esq. 

April 25, 2012 

Page 4 

Interrogatory No. 10 

Is it Complaint Counsel’s contention that any alleged injury caused by the Domestic 

Rebate Policy, McWane’s participation in DIFR!, and/or the Sigma MD! was not outweighed 

by countervailing benefits or pro-competitive justifications? If so, state with particularity why 

consumers are or were harmed on balance, by identifying and describing the basis for this 

contention, and identify all facts relating to the contention upon which Complaint Counsel 

based the Complaint and upon which Complaint Counsel may or will rely at trial in support of 

the contention, including all facts refuting, or otherwise relating to, your contention. 

Response to Interrogatory No. 10 

Complaint Counsel notes that this interrogatory contains at least three distinct subparts, 

and seeks: (1) all facts relating to the balance of harm and any alleged efficiencies related to 

McWane’s Domestic Rebate Policy- (2) all facts relating to the balance of harm and any alleged 

efficiencies related to McWane’s participation in DIFR!- and (3) all facts relating to the balance 

of harm and any alleged efficiencies related to the Sigma MDA. 

In addition to the General Objections, Complaint Counsel specifically objects to the 

terms “countervailing benefits” and “harmed on balance” as vague and ambiguous. Complaint 

Counsel also objects to the interrogatory as impermissibly seeking attorney work product and 

Complaint Counsel’s trial strategy. Complaint Counsel further objects to this interrogatory as 

premature to the extent it seeks information relating to issues that may be the subject of expert 

testimony in this case. Counsel Complaint Counsel also objects to the interrogatory as unduly 

burdensome to the extent it seeks to compel Complaint Counsel to undertake investigation, 

discovery, and analysis on behalf of Respondent. Complaint Counsel further objects to this 

interrogatory as premature and unduly burdensome because it is a contention interrogatory and 

no response is required prior to the close of discovery pursuant to Rule 3.35 (b)(2). Complaint 

Counsel will supplement its answer, as appropriate, after the close of discovery, as set forth in 

Rule 3.35(b)(2). 

Finally, you claim that Interrogatory No. 10 should be counted as a single interrogatory. 

In essence, you assert that the first question of the interrogatory requires a yes or no answer, and 

that the second half of the interrogatory merely asks for an explanation of that answer. As 

indicated above, interrogatories that ask for the same information across multiple, distinct 

allegations are appropriately counted as discrete subparts. Because this interrogatory seeks 

information regarding three separate allegations – the Domestic Rebate Policy, DIFRA, and the 

Sigma MDA – this interrogatory is properly counted as containing three subparts. 

Our position with respect to how interrogatory subparts should be counted is fully 

consistent with the Judge’s ruling in this case as well as all applicable caselaw. Because the true 

subpart count for these four interrogatories is actually greater than what is set forth in our 

interrogatory response, we do not see the need to supplement any additional interrogatories based 

on our objection that Respondent exceeded 25 interrogatories. Please note that Complaint 

Counsel is not waiving our objections to these or any other interrogatories, and that any answers, 

at the appropriate time, will be subject to those objections. 
 

 

 

 

William Lavery, Esq. 

April 25, 2012 

Page 5 

Please feel free to call me at (202) 326-2267 if you have any questions or would like to 

discuss this matter further. 

Regards, 

/s/ 

Linda M. Holleran 

cc:	 Andreas Stargard, Esq. 

Ted Hassi, Esq.