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UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of CASE NO. 9327

Polypore International, Inc.

a corporation. PUBLIC DOCUMENT

THIRD PARTY ENTEK INTERNATIONAL LLC'S OPPOSITION TO RESPONDENT'S

MOTION FOR LEAVE TO TAKE THE DEPOSITION OF GRAEME FRASER-BELL

IN THE UNITED KINGDOM PURSUANT TO 16 C.F.R § 3036(b)

ENTEK International LLC ("ENTEK"), a third party to this adjudicative

proceeding brought by the Federal Trade Commission against Polypore International, Inc.

("Polypore"), submits this Opposition to Polypore's Motionfor Leave to Take the Deposition of

Graeme Fraser-Bell in the United Kingdom Pursuant to 16 C.F.R. § 3.36(b) ("Motion for

Leave") and in support states as follows:

ENTEK never claimed that Mr. Graeme Fraser-Bell has no knowledge relevant to

this adjudicatory proceeding. This is emphatically not the point. The point is that taking his

deposition would be duplicative and that the information Polypore seeks from Mr. Fraser-Bell's

deposition (as identified in the Motion for Leave) is available to Polypore through more

convenient, less disruptive, less burdensome and less expensive means. Those alternative means

include ENTEK's document production and the deposition of Mr. Daniel Weerts, ENTEK's Vice

President of Sales & Marketing, who has been designated by ENTEK to address all of the

subjects identified in Polypore's concurrently-served corporate subpoena. Given the information
ì

/

made available by ENTEK to Polypore, Polypore's interest in obtaining whatever minimal

incremental information a deposition ofMr. Fraser-Bell may provide (if any), is outweighed by

the certain and significant expense that ENTEK would have to incur.

Accordingly, Polypore's Motion for Leave should be denied.

ARGUMENT

Polypore's right to seek discovery is not unqualified. 16 C.F.R. § 3.31(c). The

Administrative Law Judge may limit discovery that is unreasonably cumulative or duplicative, or

is obtainable from some other source that is more convenient, less burdensome, or less

expensive; or if the burden and expense of the proposed discovery outweigh its likely benefit. 16

C.F.R. § 3.31(c).

In its Motion for Leave, Polypore states that it wil seek testimony from Mr.

Fraser-Bell on the following topics: (1) "ENTEK's battery separator sales to customers located

throughout the world"!; (2) "other suppliers of battery separators in the (sic) Europe,,2; (3)

"ENTEK's business dealings with customers in the industry located in the United States and

abroad, including on issues of pricing, capacity and competition,,3; (4) "the alleged relevant

product and geographic market" for battery separators4; (5) "customers and other suppliers in

both Europe and Asia"s; and (6) "any expansion effort by ENTEK in the United Kingdom to

increase capacity for the sale of battery separators to customers located in the United States and

elsewhere in the world,,6 Polypore argues, "(t)here is simply no other person at ENTEK that

could substitute for the deposition testimony of Mr. Fraser-BelL." This is false. As discussed in

detail in ENTEK's Motion to Quash the Subpoenas Ad Testifcandum Issued to Graeme Fraser5

Memorandum in Support of Respondents Motion for Leave to Take the Deposition of

Graeme Fraser-Bell in the United Kingdom Pursuant to 16 C.F.R.§ 3.36(b) ("Mem. Supp.

Mot. For Leave") at 3-4.

Id. at 4.

Id.

Id. at 5.

Id.

Id.

2

3

4

6

2
Bell and Robert Keith Pursuant to 16 C.F.R. § 3.34(c), filed on January 9, 2009, Mr. Weerts is

the ENTEK employee who is knowledgeable with respect to all of the topics identified by

Polypore in its Motion for Leave, as well the additional subjects identified in Polypore's

corporate deposition notice.

Mr. Weerts has worked at ENTEK or its predecessor since 1989, held his present

position as ENTEK's Vice President of Sales & Marketing for over twelve years, and has been

involved in the battery separator industry for over 30 years.7 As a co-owner of the company, he

serves on ENTEK's management team and is intimately involved in ENTEK's strategic

planning.8 Mr. Weerts has extensive experience not only in the sales and marketing side ofthe

battery separator business, but also in the production and manufacturing side.9 In fact, his

position at ENTEK and vast professional experience provide him with a unique understanding of

the battery separator industry, detailed knowledge ofthe costs associated with manufacturing

battery separators, as well as a comprehensive understanding of pricing and the supply and

demand conditions in the industry. Significantly, Mr. Weerts not only oversees all ofENTEK's

sales efforts, in the U.S. and internationally with respect to Johnson Controls Incorporated

("JCI") and its affiliates, he is also intimately familiar with the operations, cost structue, and

expansion plans ofENTEK's U.K. facility. In terms of commercial relevance, Mr. Weerts is

immediately responsible for more than 80% ofENTEK's world-wide revenue. As to the

remaining 20%, any differences in the degree of knowledge between Mr. Fraser-Bell and Mr.

Weerts are likely to be minimal and do not justify the cost and disruption that would result if

ENTEK were ordered to produce Mr. Fraser-Bell for deposition in London, England.

Polypore's assertion that Mr. Fraser-Bell's deposition in London would take no

more than seven hours fails to take into account the costs ENTEK would have to incur to either

7

8

See Declaration of Joel Kuntz in Support ofENTEK's Motion to Quash Subpoenas Ad

Testificandum Pursuant to 16 C.F.R. § 3.34(c) ("Kuntz Decl. in Support of Mot. To Quash")

~4.

Kuntz Decl. in Support of Mot. To Quash ~4.

Kuntz Decl. in Support of Mot. To Quash ~4. 9

3
!

hire and educate U.K. counsel and/or have ENTEK's U.S. counsel travel from San Francisco to

London, not to mention Mr. Fraser-Bell's travel from Liverpool to London. More importantly,

the requested deposition would divert Mr. Fraser-Bell's attention away from his sales duties

relating to the lithium ion battery business. During these difficult economic times, this presents a

real hardship for the company.

CONCLUSION

For the reasons set forth above, Polypore's Motion for Leave should be denied.

In the event that the Administrative Law Judge has additional questions not addressed iI? this

memorandum, ENTEK respectfully requests a hearing.

Dated: January 23, 2009 Respectfully submitted,

By

~

Darius Ogloza

BY~ I~

LA TRAM & WATKINS LLP

505 Montgomery Street, Suite 2000

San Francisco, California 94111-6538

Telephone: + 1.415.391.0600

Facsimile: + 1.415.395.8095

hano.kaiser(flw.com

darius.ogloza(flw.com

* Admitted in New York only. Not admitted in

California.

Attorneys for ENTEK International LLC

4
UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of CASE NO. 9327

Polypore International, Inc.

a corporation. PUBLIC DOCUMENT

CERTIFICATE OF SERVICE

c:
CERTIFICATE OF SERVICE

I am employed in the County of San Francisco, State of California. I am over the

age of 18 years and not a pary to this action. My business address is Latham & Watkins LLP,

505 Montgomery Street, Suite 2000, San Francisco, CA 94111-6538.

On January 23, 2009, I served the following documents described as:

THIRD PARTY ENTEK INTERNATIONAL LLC'S OPPOSITION

TO RESPONDENT'S MOTION FOR LEAVE TO TAKE THE

DEPOSITION OF GRAEME FRASER-BELL IN THE UNITED

KINGDOM PURSUANT TO 16 C.F.R. § 3.36(b)

by serving a true copy of the above-described documents in the following maner:

BY ELECTRONIC MAIL

The above-described document was transmitted via electronic mail to the following part

on January 23, 2009:

Donald S. Clark, Secretar

Office of the Secretary

Federal Trade Commission

secretary(fftc.gov

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

oalj(fftc.gov

Robert Robertson, Esq.

Federal Trade Commission

rrobertson(fftc.gov

J. Steven Dahm, Esq.

Federal Trade Commission

sdahm(fftc.gov

Wiliam L. Rikard, Jr.

Parker Poe Adams & Bernstein LLP

williamrikard(fparkerpoe.com

Eric D. Welsh

Parker Poe Adams & Bernstein LLP

ericwelsh(fparkerpe.com

The part on whom this electronic mail has been served has agreed in writing to such

form of service pursuant to agreement.

BY OVERNIGHT MAIL DELIVRY

I am familar with the offce practice of Latham & Watkins LLP for collecting and

processing documents for overnight mail delivery by Express Mail or other express service carrier. Under

that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for

depositing documents in a post office, mailbox, subpost office, substation, mail chute, or other like

facilty regularly maintained for receipt of overnight mail by Express Mail or öther express service

carrier; such documents are delivered for overnight mail delivery by Express Mail or other express

service carrier on that same day in the ordinary course of business, with delivery fees thereon fully

prepaid and/or provided for. I deposited in Latham & Watkins LLP' interoffice mail a sealed envelope or

package containing the above-described document and addressed as set forth below in accordance with

the office practice of Latham & Watkins LLP for collecting and processing documents for overnight mail

delivery by Express Mail or other express service carrier:

Donald S. Clark, Secretary

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW, Rm. H-135

Washington, DC 20580

(Original + 12 copies)

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

(1 copy)

2
BY OVERNIGHT MAIL DELIVRY

Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

(1 copy)

Wiliam L. Rikard, Jr.

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tyson St., Suite 3000

Charlotte, NC 28202

(1 copy)

J. Steven Dahm, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

(1 copy)

Eric D . Welsh

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tyson St., Suite 3000

Charlotte, NC 28202

(1 copy)

I declare that I am employed in the office of a member of the Bar of, or permitted

to practice before, this Cour at whose direction the service was made and declare under penalty

of perjur under the laws of the State of California that the foregoing is true and correct.

Executed on January 23, 2009, at San Francisco, California.

Isl

Beth A. Davis

3
BY OVERNIGHT MAIL DELIVERY

Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

(1 copy)

Wiliam L. Rikard, Jr.

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tyson St., Suite 3000

Charlotte, NC 28202

(1 copy)

J. Steven Dah, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

(1 copy)

Eric D. Welsh

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tyson St., Suite 3000

Charlotte, NC 28202

(1 copy)

I declare that I am employed in the office of a member of the Bar of, or permitted

to practice before, this Cour at whose direction the service was made and declare under penalty

of perjury under the laws of the State of California that the foregoing is true and correct.

3