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 '\ S3rit1 j'
 UNITED STATES OF AMERICA ~~~e 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION TO COMPEL ENTEK 

INTERNATIONAL LLC TO PRODUCE DOCUMENTS REQUESTED 

BY SUBPOENA DUCES TECUM 

Respondent Polypore International, Inc. ("Polypore") respectfully submits this 

memorandum in support of its Motion to Compel ENTEK International LLC ("ENTEK") to 

Produce Documents Requested by Subpoena Duces Tecum, as amended by agreement between 

Polypore and ENTEK, in accordance with Commission Rule § 3.38(a)(2). 

FACTUAL BACKGROUND 

Respondent served a subpoena duces tecum on ENTEK on November LO, 2008 

(hereinafter "the Subpoena"). (Tab A). The Subpoena originated in an adjudicatory proceeding 

currently pending before the Federal Trade Commission ("Commission" or "FTC") in which 

Polypore is alleged to have violated Section 5 of 
 the Federal Trade Commission Act, 15 D.S.C. § 

45, and Section 7 of the Clayton Act, 15 D.S.C. § 45, by its acquisition of 
 Microporous Products 

L.P. ("Microporous"). The Subpoena was one of several subpoenas-duces-tecum-issued-by-the---­

Commission's Administrative Law Judge, on behalf of Respondent, and directed to participants 

in the battery separator industry - including both manufacturers of batteries and separators. 

Materials responsive to the Subpoena were to be produced for inspection on November 28,2008. 

Counsel for Respondent and counsel for ENTEK were in communication about the 

Subpoena soon after its service. (See generally January 7, 2009 e-mail of Eric D. Welsh, 

PPABlS21S44vl 
Esq.)(Tab B). ENTEK initially raised some objection to the Subpoena and had previously 

sought to block the FTC's production of documents to Respondent that ENTEK had provided to 

the FTC during the investigational hearing of this matter. i In the weeks that followed, however, 

counsel for Respondent attempted to negotiate in good faith with counsel for ENTEK in order to 

discuss and resolve any concerns that ENTEK had concerning its compliance with the Subpoena. 

November 24,2008, November 25,2008, December 5, 2008 and 

December 9, 2008)(Tab C). Indeed, since the Subpoena was first served, Counsel for 

Respondent and counsel for ENTEK have had numerous telephone conferences, including on 

November l4, 18,24,2008 and December 5, 2008, and have exchanged numerous e-mails in an 

attempt to move towards the production of the requested documents. 

In particular, during the course of the negotiations, ENTEK expressed concern about the 

disclosure of information to Michael Shor, Esq., Special Counsel for Polypore. In response, 

Respondent agreed to prohibit Mr. Shor from access to any information produced by ENTEK in 

response to Respondent's Subpoena. (See December 5, 2008 e-mail from Eric D. Welsh, 

Esq.)(Tab C). Several other issues were also broached and discussed by Respondent's counsel 

and ENTEK's counsel during the course of these negotiations. Such issues were ultimately 

(See e-mail correspondence of 


resolved and a substantive discovery agreement was reached in principal on December 1 1, 2008 

which allowed ENTEK to begin the production of documents. (See e-mail correspondence of 

December 10, 2008 and December 12, 2008)(Tab D). The terms of the agreement in principal 

reached on December 1 1, 2008 were memorialized in a letter agreement signed on December 22, 

2008 (hereinafter the "Letter Agreement"). (Tab E). 

) ENTEK fied a Motion for Protective Order on November S, Z008 seeking to prevent the disclosure of documents 

initially produced by ENTEK to the FTC in compliance with the Commission's Civil Investigative Demand ("CID"). ENTEK 

withdrew that motion on November 17, Z008 following an agreement reached between Polypore and ENTEK. 

2 

PPAB ISZIS44vl 
As of the date of this fiing, ENTEK has produced only 1094 pages of documents, a small 

portion of the total documents requested by the Subpoena, with the first installment occurring on 

January 5, 2009. In fact, ENTEK has made only four substantive productions to Respondent 

thus far. On January 5, 2009, ENTEK produced a six-page affidavit which had been executed in 

July 2008 and previously submitted to the FTC. On January 7, 2008, ENTEK produced 70 pages 

of information related to an ENTEK supply contract. Finally, after counsel for Respondent 

expressed concern about ENTEK's lengthy delay in production, (see January 7, 2009 e-mail 

from Eric D. Welsh, Esq.)(Tab B), ENTEK produced documents (246 pages) on January 7, 2009 

which it had previously produced to the FTC in response to the Commission's CID. Additional 

documents which had been provided by ENTEK to the FTC in compliance with the 

Commission's CID were produced in separate submissions to Respondent (458 pages and 194 

pages, respectively) on January 9, 2009. 

Although ENTEK reached an agreement in principal on December 1 1, 2008 which 

resolved all discovery issues and disputes raised in connection with the Subpoena, its production 

to date, which consists almost entirely of information ENTEK has already produced to the FTC, 

falls far short of providing all of the information sought by Respondent's Subpoena - and which 

is necessary for Respondent to adequately defend itself in this proceeding. Moreover, during a 

telephone conference on January 6, 2009, ENTEK's counsel was unable to provide any 

commitment as to when Respondent would receive the remainder of ENTEK's production 

pursuant to the Letter Agreement. (see January 7, 2009 e-mail from Eric D. Welsh, Esq.)(Tab 

B). 

Importantly, Respondent has served four subpoenas ad testifcandum on the following 

individuals and entities: (a) Mr. Robert Keith (ENTEK's President and Chief Executive 

3 

PPAB 1521544vl 
Officer), (b) Mr. Daniel Weerts (ENTEK's Vice President of Sales and Marketing), (c) Mr. 

Graeme Fraser-Bell (ENTEK's Vice President of International Sales), and (d) ENTEK 

International, LLC.2 (Tab F). On December 30, 2008, ENTEK accepted service of each of the 

aforementioned subpoenas ad testifcandum. (See December 30, 2008 e-mail of Darius Ogloza, 

Esq.)(Tab G). The depositions of Mr. Fraser-Bell and ENTEK International, Inc. were noticed 

for January 19, 2009, while the depositions of Mr. Keith and Mr. Weerts were noticed for 

January 20,2009. Consequently, it is of 
 paramount importance that the documents requested by 

Respondent's Subpoena be produced immediately in order to allow Respondent to properly 

review and analyze such documents in preparation for the noticed deposition examinations. 

Despite the efforts of Respondent's counsel, and the December 1 1, 2008 resolution of all 

discovery disputes related to the Subpoena, ENTEK has continued to delay and stall in its 

production efforts. Respondent cannot afford any further delay from ENTEK, as important 

deadlines are approaching, including a discovery cut-off of February 13, 2009, and therefore 

Respondent is left with no option but to fie this motion. 

ARGUMENT 

Respondent seeks the immediate production of documents and electronic data responsive 

to its Subpoena. Respondent's Subpoena is tailored to seek documents pertinent to the issues 

raised by the FTC in the Complaint and to Polypore's defense. Under the FTC's Rules,
 

Respondent has the right to "obtain discovery to the extent that it may be reasonably expected to 

yield information relevant to the allegations in the complaint, to the proposed relief, or to the 

defenses of (the) respondent." 16 CFR. § 3.31(c)(1). Moreover, "public interest requires that 

once a complaint issues. . . Commission counsel (and respondent's counsel when they put on 

2 On Januar 9, 2009, ENTEK served Respondent with a Motion to Quash the Subpoenas Ad Testifcandum issued to 

Mr. Fraser-Bell and Mr. Keith. 

4 

PPAB 1521544vl 
their defense) be given the opportunity to develop those facts which are essential" to support or 

undermine the allegations in the pleadings. In re Gen. Foods., No. 9085 C, 1978 FTC LEXIS 

412 at *6 (April 18, 1978). The applicant for a subpoena need only show that the materials 

sought are generally or reasonably relevant. In re Kaiser Aluminum & Chern. Corp., 1976 FTC 

LEXIS at *4 (Nov. 12, 1976). In contrast, the subpoenaed party bears "(t)he burden of showing 

that the request(s) are unreasonable." In re Rambus, Inc., No. 9302,2002 FTC LEXIS 90, at *9 

(Nov. 18, 2002). Such a showing is a heavy burden, even when the subpoena is directed at a 

non-party. In re Flowers Indus., Inc., No. 9148,1982 FTC LEXIS 96 at * l5 (Mar. 19, 1982). 

The factual allegations of 
 the Commission's Complaint and the Respondent's defenses to 

the allegations contained therein make it clear that the information sought by Respondent's 

Subpoena is relevant. ENTEK does not challenge the relevance of the discovery. Indeed, 

ENTEK has agreed to produce documents and provide the requested information to Polypore. 

The discovery sought by the Subpoena is necessary and relevant. By way of example, 

Polypore cannot rebut the FTC's allegation that it has monopolized any alleged battery separator 

market without information about its competitor's market share, geographic scope and product 

line. (Subpoena, Nos. 5-13, 31)(Tab A). Polypore cannot rebut the FTC's allegation that its 

acquisition of Microporous led to higher prices without information about its competitor's 

pricing as related to Respondent and other competitors. (Subpoena, Nos. 5, 14-16, 18,22, 34). 

Polypore cannot rebut the FTC's allegation that testing and capital requirements prevent entry 

into the relevant markets without information about its competitor's qualification process and 

capital requirements. (Subpoena, Nos. 3-4, 28, 32). Polypore cannot rebut the FTC's allegation 

that battery separators manufactured for a particular application cannot be effectively used for 

other applications without information about its competitor's competitive products for certain 

applications and the end-use of such products. (Subpoena, Nos. 1-2, 17, 19, 23-27, 35). 

5 

PPAB 1521544vl 
Polypore canot rebut the FTC's allegation that battery separator producers outside North 

America canot economically compete with Polypore in the United States without information 

about its competitor's sales and cost data. (Subpoena, No. 5-6, 18-21). And finally, Polypore 

cannot rebut the FTC's allegation that ENTEK's manufacturing capacity constrains it from 

expanding production without information about ENTEK's manufacturing capacity here and in 

the United Kingdom. (Subpoena, Nos. 3-4, 18, 31). 

Clearly, the documents sought by Respondent are highly relevant to the issues raised in 

the pleadings and should be immediately produced. See In re Kaiser Aluminum & Chern. Corp., 

1976 FTC LEXIS at *6-8 (opining that "(i)nformation in the fies of competing companies is 

frequently crucial in (FTC) proceedings" and such proceedings "would be crippled if neither the 

Commission not the pary charged could produce the essential industry data"). Moreover, 

ENTEK has already reached an agreement resolving all discovery disputes related to the 

Subpoena. (See Letter Agreement)(Tab E). Polypore's receipt and review of ENTEK's 

materials is necessary for. its defense and any further delay or limitation on this review wil tilt 

the playing field heavily in favor of the FTC. 

Although ENTEK has resolved all discovery issues related to the production of 

documents pursuant to the Respondent's Subpoena, it has delayed its production, producing 

belatedly documents that were readily accessible, which had been previously provided to the 

FTC last July. Indeed, many of the documents sought by the Subpoena were no doubt previously 

provided to the FTC as par of the thousands of document submitted by ENTEK in response to 

the FTC's subpoena during the investigation stage of this proceeding. Polypore needs ENTEK's 

production so that it can move forward efficiently with depositions of ENTEK's witnesses. 

Otherwise, Polypore wil be forced to proceed with the depositions without the benefit of 

ENTEK's documents and wil then need to leave the depositions open, to be resumed after the 

6 

PPAB 1521544vl 
production is complete. Given the current discovery schedule, such an outcome would be 

necessary, but ultmately not economical to Polypore due to the costs associated with traveling 

from North Carolina to Oregon twice for these depositions. 

CONCLUSION 

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

order compellng ENTEK to immediately comply with Respondent's subpoena duces tecum, as 

amended by agreement between Polypore and ENTEK. 

Dated: January 12,2009 Respectfully Submitted, 

t.'-è ?-4L ~ 

Wiliam L. Rikard, Jr. 

Eric D . Welsh 

PARKER POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 . 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

wiliamrikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKR POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street
 

Raleigh, NC 27602 

Telephone: (9l9) 835-4599
 

Facsimile: (9l9) 828-0564 

iohngraybeal~parkerpoe.com 

Attorneys for Respondent 

7 

PPAB 152I544vl 
CERTIFICATE OF SERVICE 

I hereby certify that on January 13, 2009, I caused to be filed via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Memorandum in Support of 

Respondent's Motion to Compel ENTEK International LLC to Produce Documents Requested 

by Subpoena Duces Tecum, and that the electronic copy is a true and correct copy of the paper 

original and that a paper copy with an original signature is being fied with: 

Donald S. Clark, Secretary 

Offce of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary~ftc. goV 

I hereby certify that on January 12, 2009, I caused to be served one copy via electronic 

mail delivery and two copies via overnight mail delivery of the foregoing Memorandum in 

Support of Respondent's Motion to Compel ENTEK International LLC to Produce Documents 

Requested by Subpoena Duces Tecum upon: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali(fftc.gov 

I hereby certify that on January 12, 2009, I caused to be served via first-class mail 

delivery and electronic mail delivery a copy of the foregoing Memorandum in Support of 

Respondent's Motion to Compel ENTEK International LLC to Produce Documents Requested 

by Subpoena Duces Tecum upon: 

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

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rro bertson~ftc. gov sdahm~ftc.gov 

Darius Ogloza, Esq. 

LATHAM & WATKINS, LLP 

505 Montgomery Street, Suite 2000 

San Francisco, California 941 i 1-6538 

DARIUS.OGLOZA(fL W.com 

PPAB 1521544vl 
Cu~
 

Adam C. Shearer
 

Parker Poe Adams & Bernstein LLP
 

Three Wachovia Center
 

401 South Tryon Street, Suite 3000
 

Charlotte, NC 28202
 

Telephone: (704) 335-9050
 

Facsimile: (704) 334-4706
 

10
 

PPAB 1521544vl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327

) 

) 

) 

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

TAB A 

ISSUED TO ENTEK INTERNATioNAL LLC 

ON BEHALF OF POL YPORE INTERNATIONAL, INC. 

FTC DOCKET NO. 9327 

SUBPOENA DUCES TECUM 

EXHIBIT A 

I. REQUESTS'
 

, 1. ,All documents describing, any product in development by ENTEK to compete
 

with Polypore lead acid battery separators. 

2. . All. documentsdescrihing - any product ih development by any Third Pary to
 

compete with Polypore lead acid battery separators.' '
 

3. . All do.cuments .listing ,or describing any II~ufactuirig or piodu~tion facility-


for lead acid: battery
 (including' any expi;nsion of the sm,e or additions of. separator lines) 


, .

any separators in which ENTEK maintains any.ownership interest including without limitation 

siich facility, whether' curently operational or under construction or expansion, in the United States or the United Kingdom. '

,4: . For any facilty respòiisive tClRecÎliest No.3, all documents suffcient to reflect (a) ,
 

such facilty, (b) th~date the capital expenditue for the constrction-and star..up ör expansion of 


on whichplan for such facilty or expansion of Such facilty were approved, (c) the date nn 

of such
 which constrction, began on such facilty, (d) the date of commissiorig .or stap 


,.facilty, (e) the proç1uctioncapacity of such facilty, (f) the type.of produèt(S) produced at such 

the anticipated ~nd use(s) of the products manufac~ed at such facilty, (h) the the facilIty; (g) 


jechnology used at such facilty to manufactue lead acid battery separators and:(i) the cost of 


battery separatoi;srnanpfactuedal1d s()ld at spch facilty, including without limitation
 

profit and loss "staterrents -and, ntliei'd döcumiÚits reflecting the' cost of mat1ufactuing and sellng
 

lead acid 


such products, including$hippirigcosts~ . .
 

.. - .
 

.5. ,Alld.ocumerits.rehitlg to': alY.:cörotiicationl;etween ENTEK and (a) Johnson
 

Controls, Inc. ("rCI"), (b) ExideTechnologies ("Exide"), (c) EnerSys,' (d) East' Penn
 

Manufaciuing Co. ("Cr.own"); .(t). "Manufactuing Co.,, Inc. eEast' Penn"), '(e). CroWn Battery 


, Trojan 'B.attery Co. ("Trojat"), , (g) US Battery ManufactwingCo.: ("US BatterY")~ (h) C&D 

TeClmologies/1nc. ("C&U"), or (í)'any othir eritity manufactuing båtteii~s.fòI sale ip:North 

Anerica:, conc.ernng:. (i) àry .actnaror poie.ntíal coritractor~gieenierifbetWeen suchenthy and 

ENtEK fox'the sale 
 and pi:çháse of lead add battery separatorsi (ii) contêmporaneous'or future

prices of lead 'acid. battery' separators, (ii) Polypore or. (iv) Microporous. 

," 6. ,', All. -d~~ùIènts.CXiištiiü~:~gu or r~flécti~g' any'¡cfualqr pÓt~ìitìal cóntract or 

agr'eemeiit '1?etWeeii ENTEK~-ånd. 'Ea.)~JGI;:tb.). -lixíde,-~(c.)J~iieiSys,~(d)~.EasLl-imh,.-(e)_.Ctl)Fn,,(ft_., 

Trojah;(g) l1S Battery; (b) C&p,.Qr (i)ary other entity fuaiufactudng led ¡icta bait~ries for sale ­

. in N ort AIiierica~ tor th~' sa1e. byENTEK. t~ stich entity' óflead ~cid bâttery separato.rs. " 

7. Ail, docùmerit~ relating tÒ ENTEK's ora~y' otherfuanufacturer's .sh"àre of ,any
 

market for lead acídb~ttery'separafòrs. ,,' " '. ' , '
 

PPAB 1489509vl 
8. AL.l docuients discussing ENTEK'sor' any other nian~acturer's share of any
 

market for lea~ acid battery separators by product end use or other classincation used by ENTEK 

to record market share for the sale of lead acid battery separators. '
 

9: All documents relating to 
 any ,actUal or potential competitor of ENTEK for lead

acid battery sepàrators. . " , ' ,
 

10: All doc'uents .relating to the, geographic scope of competition for battery separators foi: lead 
 acid batteries,

11. All documents relating to the scope of competition across 'products for battery 

separators for lead acid batt~ries. 

12. All doçmments relating to the level or state of competition Ín the lead acid battery 

separator business prior to Februar 29, 2008. 

13. An documents relating to the level or 
 'state of competition in the lead acid battery

'after Februar
 29, 2008: separator business 


,

pricing 14. All documents relating to ENTEK',s pr!ejng, 'incl\lding any d,atabase of 


transactions,ann priCing strategy
 'for lead 'acidbàttèry sepáratorsfromJáiiuary. 1, 2003 to

Febni 29, 2008. ' . '


15, All documents relating to ENTEK's.pÌicing,. inchid.ing any database of pricing
 

transactIons, ard pricing strategy fodead äCidbatteiy sepåiåtors áftërFebruat 29,2008.
 . . '
 , '


16. All docUments' sitfficient to shovv or explai the factots us~d, in ENTK's making 

Uider any contract with its customers. ' any adjustIent to, 
 its price for 1eaílaeidbaitery separator


17. All dncuments', disCllsing, desçribi,g' or i:eferr~g to ,. any product, either in
 

commercial production or Urd~i development, that' cotipetes of ìs..expeCted to compete with any 

lead acid 'battery separator,manufactured by ENTEK. . , '
 ." . .". . ' . '
 

,18" ' ,:, For each. Eiitek facilty,that has'manufactuiea of ,is cUrently manufactuing lead 

açidhittery separators, all doculents discussing, describing or reflectingENTEK's manufactUe 

. and/o~ sal,e of lead 
 acid .battery separatQrs n()m ,such JacUtty inçl'tding d~ouments r.èf1ecting th~

amount ofprodu¿t sòldpidollar"ünìts; sqúarè meters; and pródùclfypè or brand; ard the'price 

, of all such product sold. . '
 

19, ,.,F9~ aii Pród\1çis:~espÓri$hTe. t9dReqiiest:No:::i7;:äir4o~umërits ièfl~cÙiig 'the actual
 prodúct." ' or'an~icip,ated,:end useofthe-'próductsold by ENTEI(andtlîë'dèStfuation öfthe slípment of such

, ' 20., ,ÅIl dQcJments, re.fI¿ctitig_:thejd~ntitYald-lgcai1o~"()f:aii ,eustomerspurchásing
 

lea,d àcid'båtterý' separators from each 'ôf ENT~I('s manufacfuÍn.g tåciltÌes. '
 

2 

PPAB 1489509vl 
21. Documents suffcient to reflect the percentage oflead aCid ,battery' separators söld 

by ENTEK anually under contract with a duration in excess of ,one Y(tar as compared to total 

sales oflead acid battery separators ,by ENTEK during the same period Qftime. 

22. Documents sufficient to reflect the prices ofleadacid,bariery. separators sold 
 by 

ENTEK 'on a spot basis nr, under purchase orders or cO,ntracts or öne y~ar or less. 

23. All documents relating' to any patent either, owned directly' or. indirectly by 

ENTEK, or for which ENTEK obtained either ,directly or indirectly' a license, for technology or 

equipmetit,usea by E.NTEK in the maIufacture'ofÌead acid battery separators. . ,
 

24. All documents discussing or, describjng any technology. used in the manufacture 

of battery sepárators for le~dacid '.aatteries. .


, ", , , 25. All docuients describing, discussing, or reflecting products that currently
 

compete or which could compete with lead acid battery separators including those products used 

for the following' 
 end uses or applications: golf car or car; autòmotive; motorcycle; trck; train; 

fork lift; submarine; uninterrpted, power 'suPply for hospitals, telephone companes or other 

uses; and/or nuclear 
 power plant.

26. All do¿~erits di~ëuss:ingQr' ~ef~irihg tóanytýpe' of lead acìd'batteryseparator;
 

iricludin.g AGM, separators, other than thèise used in flooded lead acid battery separators. . 

27 Alldocumentsdes'crìbing, discussing o.r reflecting by brand namë or man\ifactuer 

thc"products .compnsint(leadadd battery separatoislnclüding" those products 'used tòrthe
 

;fcillo~ng end useS .Or .'applications: ' golfèar'ói car; automotive; motorcycle';' trck; train; fork

lift;:submarine; uninterrpted power supply for hospitals, telephone compinies or other uses; 

and/o.r nuClear power plárt.., '." "
 . . . \I

28.' All documents relatirig tó any testing or' qúdliñcation of any' lead acid battery
 

separator produc.ed 1;Y E:NTEK during ~e pe~iod ofJanuar 1,2000 to the present. '

29. 'Aiid~cum~.mts teIatiiig tp :any curent produ,cer (excluding ENTEK)or potential' 

" '
 

en4-ant into the production'or man,ufactue' oflead atid battery separators. . . . . ".' . .' -­

,30. All docUments relating to any potendal entr of MicròpòI'ous iiitothe business ,of
 

manufactUng lead acid battery separators fór sal~ to iluinûfac~ets of lead add batteries for automotive use; " . " ,
 3l,., AJldQCUlent~ .relating toany"pptt~l1tiai entr 
 or 'ree)ltr of'ENTEK, intQ the 

busi,nessof mañufaCtiniig lèRd..àçid sepåiátors:fòrsále' to.rnanufåcturers Òf(a) golf car batteries: 

Ch)'battéI-es for il1dûstlaiórm6ÍiveUse~ ipçlüdmg foÓisëiÍifork liftbattenes or (è)batteries for uninterrpted power supply. " , ,/
 

. 32,' 'Alldó,cUneiits, discûssing,' de~crlbiItg or rêfIectÚigan:Vac.tQal '()i pbte1ithilbarri~r
 

to entry'for supplierš,Ol~ rnaiùfactiersofl~t\d:aCid batiery.sepaiators in (a) N~rth America and

\ (b) the -wodd. ' ' " , " 

3 

PPAB 1489509vl 
" 

33. All documents 
 'discussing or mentioning the' i;cttial or potential acquisition of 

Microporous by Polypore. 

,34. . All documents discussing, in~ntioiiing, or describing any effect, actul, potential
 

,or perceived, on ENTEK's business of an acquisition 
 of Microporous by Polypore, and all documents relating to any plan 
 or course of-action c,onsidered or ~dopted by ENTEK in response 

to sl:ch actual or potential acquisition. ' ,
 

35. All documents ref1~cting any product or, technology that is a substitute produçt or 

teclmology for lead acid battery separators for flooded lead acid batteries, including without 

.limitation, those lead'acid öårtery separators sold by ENTEK.' ' " ' 

36. All dciciuehts;'ihchidingaffdavits and .statements, which ENTEK provided to
 

the FTC relating iriany way to PolyPore, or Microporous. . 

37. 'A copy of any transcript 
 of any.testim~ny, deposition or investigational hearing' 

conducted in the Polypore Matter. .
 

38. All dócum~mts' evide;rcing, relating or referrng to coiiuncations between the
 

FTC and ENTEK relating iJ, any",ay to Polypore. o,r. Miçi;oporoqs. 

.39. ,All docllents suffcient to show any contractüal. or comrnercial rv1ationship
 

between ENTEK and Berl'ard Dun~ (ori.ts a.fi1lates), Inclu4ing without Jimitatiol1, documents 

, showjl1g or retlecting: ,(a) thé da:tè :åly .such 'e:òntråct or relati'on,smp began~ '(b) the commercial 

natUre "of the reiat,ionship or coiitract", (6) the' 'prødiicts' to., which such, relationship, or contract 

applied, .( d) the amount of product ~old by either ENTEK or Beriàrd Dumas (of its affliates). 

liclei such, contract or relationship, (e) the' amount of .revenue obtained from such contract' or 

relationship, and (t) the date such contract, or relati'onship ended, expired or terminated, if 

applicable, for the period of Januar' l ~ 1999, to thè 'present- " , , .,
 

40~ Any' contract or other agréemeiit. between ENTEK and Bernard Dumas (or its 

affliates) from Jantl 1, 1999 to the prl:sent.
 

" ' "

\ 

4 

PPAB 1489509v1 
Il. INSTRUCTIONS AND DEFINITIONS
 

i. "Document" means the complete original or a tre, correct and complete copy and imy 

non-identical copies of any written or graphic matter, no matter 

, .
 , how produced, recorded, stored

or reproduced, including, but not'limited to, 
 any 'writing, le~er, e-mail, envelope, telegram,
 

" meeting minute, memorandum, statement, affidavit, declaration, book, record, surey, map,

- study, handwritten 'note, working' paper, char, index tabulation, graph, tape, data sheet, data
 

, ,
 

processing card, printout, microfilm, index, computer readable mêdia or other - electronically 

stored data, appointment book, diar, diar entry~ calendar, desk pad, telephone message slip,
 

note of intervew or commuÌication or any other data compilation in your possession, custody or 

control, jnc1uding ~l drafts Qr all such dQcuments. "Document" also includes every writing, 

dràwing,' graph, char, photograph,- phoriörecord, tape and other data compilations from which ' , . . , . informatÌon can beobWned; 'translated, 
 . - .
 if necessar,' by ENTEK' Inteinationftl LLC through .' .. . . 

dëtec,tion deviceS into reàsohably usäble fbnn, ätdincludes äii dr~ aid all cOpies of every such
 

writing or recnrd that contain any coirmentai, notes,' or marking whatsoever not' appearing on'
 

2.

the originaL.


 "You" "ýour" ard'~ENTEK" for puIoses of 


, , ,
this reqûest, m,eans ENTEK Int(~rIåtional 

Iv directors or nianagirig agents,-attomeys, emjiloyees, èonsultants,' agents, as well as,' any 

LLC 'or any ,of'its parents, 'c.ivisioiis,sribdivisions; s~bsidiare:S, afliates, ttembër~, 'offcer~,

, ,


predecessors in interest, äid all otherpérsons- acting orpiiorting to' act Òn its behalf. " 

- . . ~". . .' . . - ,
 3. "Pol)'oh:i" for the purósés' of this request~ méanS the Polýpore Int,erratiorial, Ine: and . . . .. ~ . i

any subsidiar ot, division therèof;, iiiClüding' Withöütliriitation, Daramic" LLC, including their 

respective employees. 

5 

PPAB 1489509yl 

i 
4. "Microporous" for the puroses of this request, means the Microporous Products, L.P.,
 

and any affiliate, subsidiar or division thereof, and their respective employe,es, offcers,
 

" directors, parner's, attorneys and agents. 

5. "FtC" means the Federal Trade COmiission, and any of its directors, cOrrissioners, 

employees, consultants and agents. 

6. "Polypore matter" means the investigation conducted by the FTC under Rule No. 081­

0131 and this Administrative Proceeding, pocket No. 9327. 

7. "Investigation" means any FTC investigation, whether fOl'al or informal, public or non-


public. 

8. "Third Pary" means any person; corporate, entity; parnership; association; joint venture;

. "
 state, federal or local -govérnentiil agency, authority or offcial; research or" 
 trade asso,ciation; or

any other entity- other than ENTEK Interratibnal LLC or 
 any of its subsidiaries or affliates. '

9. ' "Complaint" pleansthe Complaint issued by 
 the Federal Trade Commission to Polypore

International, Inc. in Docket.N6. 9327. " 

10. ,"Relating to" 
 mean" in whole o,r in par constituting, containing, concerning, discussing,

describing; analyzing, identifyÍng orstatirig. 

, ,
 

i 1. Unless otherwse stated; the relevant time period for these requests is Januar 1, 2003 to 

the present.
 

12. The use of the singular 'shall "be deemed t() include the plural and vice versa. 

i 3. 'The' teris "and;' ård' "or" 'snair be: :¡nteI'rt~ted" IibeI'allY asconjiuCtive, disjunctive, or
 . . ... l . .

both, depending Ön the context; 'so ,ãS~ to 
 have ildl- broadest meaning.

14. whençver necessar tohriIigWithin-tIie, scope of a, request all dOCuients that might 

otherwse be construed to 
 he outside its scopé, the use of a verb'in any ttnse shaiihe constred as 

the use of the verb in all other tenses. 

, 6 

PPAB 1489509vl 
15. The term "all" inCludes any and vice versa.
 

I

\ 

16. If 
 you object to any par ora document request under the FTC Riles orPractice §3.37(b), 

set forth the basis for your objection and respond to all pars or the document request to which 

you do not object. 'No par , /" \
 of a documenttequest'shall be left 
 ,unanswered merely bec!;use an

objection is interposed to another part Of a document request: 

17. "All documents that respond, in' whole or in par, to any portion of any document request 

shall be produced jn their entirety, including all, attachments, enClosures, cover memoranda and 

post-it notes. , 

18. If a document database is provided, provide an explanation-ufthe definitions used and the
 

fields existing in such database. 

19. If. any privilege is Claimed as a gro~d for not producing any document, provide for each
 

, stich document withheld on the basis of privilege all infòrnÜition required by FTC Rules of

rractice §3.38A. 

20. In the -eventtha:t ,any respo~~i~e dÒcunent was, but is no longer in your possession, State
 

what disposition was made ofit~ when, an~ the I'eas~Il for such disposition. In the eve~t tha~ a , '
 , ,
 

responsive d~cumeiit has been destroyed or retured to Ii Third Par, state (i) the re!;s,on for such 

document's destrction or retUrn, the- date órl which the'docuíenf was destroyed or returned, and 

the Thud Par to whom the document was, rettUed or on whose .behalf the document was

. . . - . .
 . '
 , , '
 destroyed; (ii) the name; - title, , and location thereof withinENTEK Iiifernatioiiål LLC' of the 

iiidividual in 'whose possession, custody or control the document was when it was destroyed or 

returned; ard (ii) tl1e haiê, titIe; fud Iocatión thereof withiii ENTEI( I~tetnätional LLC of the 

individual who deströyed ol-I'etumed'the do¿umêJit2,1. These 
 document -requests are continuing inua.tue, up to -and during the course of the 

adjudicative hearing. A1ldocumeiits' souglitby'theserequeststhatyóu_o_btaìii ör lócateafter you 

7, " 

PPAB 1489509vl 
serve your responses must be immediately produced to counsel for Polypore by supplementay 

response. 

." 

8 

PPAB 1489509vl 

J

I 

rr ~(Q fY:':J 

UNITED STATES OF AMEl,CA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATfVELAW JUDGES 

) In the MaUer of ) 

) Docket No. 9327

, Polyporc International, Inc. )
 a corporation. )
 

) 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

captioned matter against improper use and 


For the purpose of protecting the interests of the Paries and Third Paries in the above- .

disclosure 

. .
 ,of confidential information submitted or 

produced in coriection with this Matter: 

IT is HEREBY ORDERED THAT this 
 Protective Order Governing Confidential 

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

defined. 

DEFiNITIONS 

For purposes of 
 this Protective Order, the following definitions apply: . ,
 i. "Confidential Material" shall mean all Discovery 
 Material that is confidential or 

proprieta information produced in discovery. Stich material is referred to in, and 
 protected by, 

section 6(0 of the Federal Trade Commission Act, 15 U.S.C. § 46(f); section 21 ofthe Federal 

Trade Commission Act, 15 U.S.C. § 57b-2, the FTC Ri.les of 
 Practice, Sections 4.9, 4.10, 16
 

C.F.R.§§ 4.9, 4.lO¡. and precedents thereunder. C'onfidentìal Matenal shaH include llon~public 

trade secret 01' other researçh, development, commercial or financial information, tiie disclosure ' 

l ' 

of which would likely cause ,commercial har to the Producing Par or to Respondent. The 
folÌowing is a non-exhaustive iist of examples of information that likely wil qualify for 

treatment as Confidential Material: strat.egic plans (involving pricing, marketing, research and 

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

been fully implemented or revealed to the public; ttade secrets; customeNpecific evaluations or 

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

evaluations;infonnation subject to confdentiality 'o non-disclosurcagreements; propri-etary 

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

consumer, customer, or market research or analyses applicable to current or future market 

conditions, the disclosure of which could reveal Confidential MateriaL. Discovery Material 
 Will 

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

2~ "Document" means the complete original or a true, correctj and complete copy 

\ 

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

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

envelope, telegraph,' e-mail, meeting minute, memorandum, statement, affdavit, 
 declaration, 

transcript of oral testimony, book, record, survey, map" study" handwrttelÚ1Ote, \'orking paper, 

char, index, tablIation, graph, drawing, chart, printout, microfim i~dex', computer readable 

media or otherelectronicaHy stored data, appointment booki diary, diar entry, calendar, 

organizer, desk,pad, telephone nies~age slip, note of interview or communicàtion, and any öther 

data compilation from which inforration cart be obtained, and includes all 
 ,drafts and all copies 

of such Documents and every wrting or record that contains any commentar, notes, or marking 

whatsoeve.rno~ appearng on the originaL. 

3. ' "Discovery Material" includes without limitation deposition testimon~,exhibit$,
 

interrogatory responses, admissions, affdavits, declarations, :Oocuments~ tangible thing or
 

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

and any other Documents or ihfonnation produced or given to one Part by another Part or by a '. ,
 

Third Pary in connection with discovery in this Matter; Infonnatioi; taken from Discovery
 

.Mat~nal that reveals its substance,shaU also be considered DiscoveryMaterial.
 

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

employees, agents,attorneys, and all 
 ,other persolis actin~ on its behalf, excluding persons

retained as consultants or experts for purposes ofthìs proceeding. 

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

and subsidiaries, and all persons- acting or purporting'to act on its behalf., 

6. "Respondent" means Polypore.
 , \ '
 , ! 

7. "Par" means the COinmission O-l Polypore.
 

8. "Third Par" means any natUral person, ptirtership, corporation, associa~ion,or 

other legal entity not iiared as a Par to ,this Matter and its employees, directors, officers,
 

attorneys and agents.
 

9. ' "Producing Par"'nieans a Part or Third Pary that prod~ced or intends to
 

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

Third Pary that is in the possession, custody or control of the FTC, or has been produced by the 

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


any Document or material to the FTC. The Producing Part shall-mean the FTC for puroses or 


Discovery Material prepared by, or on behalf of; the FTC. 

,10; "Matter" means the above captioned matter pending ~fore the Federal Trade
 

,CoIIssion, ard all-subsequent administrative"appelfate or other review proce~dings related


thereto. 

, \.
 

, -3­
TERMS AND CONDITIONS OF PROTECTIVE ORDER 

during the Federal Trade Commission'("FTCIO)inyestigation preceding this.Matter or during the 

1. Any Document or portion thereof submitted, by Respondent or a Thrd Par , '


course of proceedings in this Matter that is entitled to confidentiality under the Federal Trade 

Commission Act,' or aIy regulation, interpretation, or precedent concerning documents in the 

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

, docúilient, shall be treated as Confidential Material for purposes of this Protective Order: For

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

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

writing such confidential treatment.
 

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

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

rtlsponsÎve do.cument or portion thereof Confidential Material; including documents, obtain~ by 

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

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

Third Part a copy of this Protective Order ~o as to ,inform each. such Third part of 
 his, her ol-ts

rights herein.
 

4. . A designation of confidentiality shall con~títute a representation in good faith and
 

after careful determInation that the material is not reasonably believed to be already in the public 

, domain and that ,counsel believes the materiål so, dei¡Ignatedconstit,utes Co~fidential Material as 

defined in Pargrph lofthe Definitions ofthis Protective Order. All deposition trscripts
 

-4­
~ 

shall be treated as Confidential MateriaL. 

Par's designation of material as
 5. If any Part seeks to chaUenge th(f Producing 


Paries Confdential Material, the challenging par shall notify the Producing Par and all other 


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

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

of 

.11at-trials) the desígnationObeingchallenged, The Producing Par may prestr.e its designation 

the reasons for the by providing the challenging Part and all other Parties a wntten statement of 


designation within five (5) business days of receiving notice of the confidentiality challenge. If 

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

Par or order material as Confidential Materials, ßbsent a wntten agreement with the Producing 


of the Coinission providing otherwise. 

6. If any conflct regarding a confidentiality designation arises and the Pares and
 

, Producing Par involved have failed to resolve the conflct via good~faith negotiations,a Part 

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


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

accompanied by a certification Producing Par and th(fotber Parties to-tliis Matter; and shall be 

that gpod.faith negotiations have failed to resolve the outstanding jssues. The Producing' pii
 

and any other Par shall have five (5) business ,days after receiving a copy ofthe mot.ion to

respond to the application. 'While an application is pending, the Paries shall maintain the pre-

° application status of the Confidential 
 Materiåi. , Nothing in this Protective Order shall create a

persuading the hearing .offcer or-the propriety of a requested 

disclosure or change in designation. 

pre,immption or alter the burden of 


-5­
7.' The Parties shall not be obligated to challenge the propriety of 
 any designation or. 

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

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

penni~sion to disclose such material to Persons not otherWise entitled to access under the terms ' 

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

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

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

designated and provides an the Parties with an appropriately labeied replacement. The Paries 

shall return promptly or destroy the unmarked materials. 

, ,


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


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

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

: affixing to that folder or boX, the designation. "CONFIDENTIAL-r-TC Docket No. 9327" or åny 

other appropriate notice that considered to be confidential material. Confidential information , 

con'tainedin electronic documents may also be designated as 
 confidential by placin~the 

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

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

document is produced. The foregoing desigriatioaûf"CONFIDENTIAL-FTC Docket No'. 9327"

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

, .
 produced voluntaily or pursuant 
 to a Çivil Investigative Demand or subpoena during the 

inve.stigatìonal phrase preceding this Matter for which confdential treatment was requested. 

Masked or otherwise redacted copies of documents maybe produced where the portiòns deleted 

-6­
contain privileged matter, provided that the copy produced shall indicate at ther-appr~priate point 

that portions have been deleted and the reasons therefor. 

9. Confidential Material shall be disclosed only to: (a) the Administrative Law
 

Judge presiding over 
 this proceeding, personnel assisting the Administrative Law Judge, the
 

Commission and its employees, and personnel retained by the commission as experts or
 

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

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

matter, (d) outside counsel ofrecord for Resp~ndent, its associated attorneys aiid other 

employees of its law finn(s), provided they are not employees of Resp6ndent, (e) Michael Shor, 

Polypore Special CounseL, (f) anyone retained to assist outside counsel in the preparation of 

hearing of 
 this proceeding including consultants, provided they are not affiliated in any way with 

Respondent and have signed Exhibit A hereto, (g) any witiiess or d~'ponent who may-I,ave 

authored or received the infoImation in question; (h) any individual who was in the direct chain 

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

that this provision does not permit di~closure ofIndustrial Growth partner or Warburg Pincus 

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

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

received the Discovery Material;.6 anyone 


, , '
 'representing the author or recipient of the Discovery 

, Material 
 in this Matter; and (k) any other tlerson(s) authorized in wrting by the Producing Party-. 

10. Disclosure ofconfidential material to any persön described in Paragrph 9 of this 

Protective Order shall be only for the p:urposes of the PJ"el)aàition and heang of.this~atter, or 

any appeal therefrom, and for no other purose whatsoever; provided, however, that the 

-7­
r. 

Conuission may, subject to uling appropriate steps 
 to preserve the confidentiality of such 

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

and 21 of the Federal Trade Commission Act; or anyotber legai obligation imposed upon the 

COllission. 

i 1. In the event that any Confidential Material is contained in any pleading, motion
 

exhibit or other paper filed or to be tiled with tl1e Secretary of 
 the Comiission; the Secretary 

shall be so infonned by the Part fili~g such papers. and such papers shiÙlbe filed under seaL
 

To the extent that such material was originally .submitted by a Third Par, the Part including
 

the Matedals 'in its papers shall immediately notify the submitter of such inclusion.Confi~entia:1 

Material contained in the papers shall remain under seal until furter order of the Administrative , 

" Law Judge; provided, however, that such papers maybe furnished-to persons or.entities,Who

may receive Confidential Material pursuant to Paragraphs 9 or i O. Upon Qr afer filing any , , ,


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

· copy' of the paper that, does not reveal confidential materiaL. Further, if the protectiori of any ,
 

the fonnerly protected materiaL.
 

such material expires, a Part may fie on the pubHc record a duplicate copy which:also-eontains
 , ­

12. If cQunsel plans to introduce int-o evidence at the hearng any document or
 

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

shall provide ten, (1 0) days advance not~ce to the other Pll or Third Par for purposes öf 

allowin,g that Par or Third Par to seek ail order that the document or transcript be granted in 

camera treatment. Ifthat Par or Third Par wish~s in caera treatment for 
 . . ~ . . " .
 the document or

transcript. the Par 'Or Third , ,
 Par shallfie an appropriate motion with the Administrative Law


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

with the C~nfidentia1 Material .deleted therefrom may be placed on the, public record. 

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

the disclosure of 
 Confdential Matenài submitted by another Part or Third Par, the recipient 

of the discovery request shall pJ~mptly not1fy the submitter of receipt of such request. Unless 
 a 

shorter time is mandated by 
 an order. 
 of a courl; such notification.shall be in writing anqbe 

received by the sübmitter at least 'i 0. business days before production, and shall include a coPY of
 

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

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

else covered by this 'Order to 
 challenge or appealanyorder-equiring production ofConfdential 

Material, to subject itself 
 to any penalties for n,on-compliance with any,such order, or to seek any 

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

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

perein shaH limit the applicabilty of 
 Rule4.I i (e) of the Comrission's Rules of Pra:ctice,' i 6 

C,F.R. §4.11(e), to discovery requests in another proceeding 
 that are directed to the Commission. 

14. 'At the time that ary consultant ot other person retained to assist counsel in the ' , ,
 preparation ofthìs action concludes participation in the'action, such persopshall retur t9

, counsel all 
 copies of dOCUments or portions thereof designateq cO,nfidential that are in tle 

possession of such persOn, together with a1l notes, memoranda.or other papers containÌng . ,
 

judi~ial revieW, the paries sha:ll retur documents ~btained in this action to their submìtters" 

provided, hQwever, that the Commission's obligat,ion to rehi documents shall be gôverned by 

the provisions ofRule 4.12 of 
 ' , , , , the Rules of 
 Practice, 16 C.F.R. §4.12.

-9­
i 

15. The inadvertent production or disclosure of any Discovery Material, which a 

Producing Par claims should .riot have been produced or disclosed because of a privilege, will 

,not ,be deemed to be a waiver of any privilege to which the Producing Par would have been 

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

be d.eeme~ a waiver of
 The inadvertent production ofa privileged document shall not in itself 


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

its 16. This Protective Order shaH not apply to the disclnsure by a Producing Party or 


'counsel of 
 its own Confidential Material,

i 7. The provisions of this Protective Order, insofar as they restrict the 

communication and use of confidentiai discovery material, shall, without wrtten permission of' 

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


this proceeding. 

, ORDERED: t)~ c4~

D. Michael.Chappell 

Administrative Law Judge 

Date: October 23, 2008
 

.-10­
EXHIBIT A 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION
 

OFFICE OF APMINISTRA TIVE LAW JUGES
 

, ,In the Matter of 

Polypore International, Inc. 

a corporation. ­

) 

) 

) Docket No. 9327

) 

) 

) 

DECLARATION CONCERNING PROTECTIVE ORnER
 

GOVERNINC:DISCOVERY MATERIAL'
 . '. . . 

1, _ , hereby.declare and certify the following to be true: ' '
 

1. (Statement of ernp10ymentJ
 

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

Order") issued, by the Commission on October 23, 2008, in connection with tneabove-capti()ned ,of any
 Confidential Material (as . Matter. 1 w1derstáiid the restrctions on my access to and use 


that term is used in the Protective Order) in this Matter, and I agree to abide by the ,Protective Order. : " , on my use of
 such Confidentiality Material 3. I understaçl that the restrictions 


include: 

a. that I wínuse sU,ch Confidential Material only for the purpose of pr~,parng ,
 

and any appeal of
 this proceedjng and fotthis pro~eeding, and hearing(s) 


for no other purpse; 

b. that I wil not disclose such Confidential Material to anyone, expect as.
 

permitted by the Protective Order; , 

such a way c. . that I wil use; stQre and maintain the Confidential Material in 


as to ensure its continued protected status; and 

d. . that, upon the tennination army participation in this proceèding, I wil ,
 

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


_Confi~_entialMaterial,.to ~omplaint Cöunselor Respondent's Outside Counsel as appropriate. 

4. I understad that 'if I.am reèeiving Confidential Material as an Ex;pertConsultan~
 

, ,as that term is defined hi this Protective Qrder, the restrictions on my use of Confdential 

-11­

, í 

! 

i 
Matenal also include the duty and obligation to: 

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

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

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

, Outside Counsel, as 'approikiate, upon the conclusion of my assignment or 

retention; or upon condusi.on of this Matter; and 

c. use such Confidential Materia! and the information contained therein
 

solely for the pUrose of rendering consulting services to,a Part to ths 

Matter, including providing testimony injlldicial or administrative 

proceedings arising out of this Matter. 

5. Iam fully aware that, pursuant to Section 3:42(h) of the FTC Rules ofPractict, 16 

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

contempt of 
 the Commission ançl may subject me to sanctions.

Date: 

Full Name (Typed or Printed) 

I, 

SigIature 

-12­

( 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327

) 

) 

) 

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

TABB 
From: Welsh, Eric D. 

Sent: Wednesday, January 07,2009 11:12 AM
 

To: 'DARIU5.0GLOZA(gLW .com'; Hanno.Kaiser(glw.com; Brett.Collns(glw.com 

Subject: In re Polypore International, Inc. 

Darius 

In our "meet and confer" call yesterday, you continue to persist in your position that Entek would not make 

Mr. Keith available for a deposition, You also refuse to produce Mr. Bell, whether in the US or UK for an 

examination. While you agreed to produce Mr. Weerts both individually and as a corporate witness, you 

did not provide any date for that deposition, You also were unable to provide any commitment on when 

we would receive Entek's production pursuant to our agreement. This is unacceptable. 

As you must acknowledge, we have worked hard to address Entek's concerns in discovery. We served 

our subpoena duces tecum on or about November 10, 2008 which called for production on November 24, 

2008. Entek raised some objection to that discovery and sought to block the FTC production of 

documents to us of documents that Entek provided to the FTC during the investigational hearing and prior 

to the drafting of the complaint. After many lengthy conference calls, including on November 14, 

November 18, November 24, December 5, we resolved those issues and reached an agreement in 

principle on all of the substantive issues in early December for the production of documents. In fact, by 

the second week of December, our only issues remaining were as to the identity of the three custodians 

and the issues surrounding confidentiality, It was our expectation that Entek would have been working 

dilgently on gathering documents (many of which had already been produced to the FTC in the 

investigational hearing). As of today, however, we received only a six page affdavit which had been 

executed in July 2008. Other than this one affidavit, previously submitted to the FTC, we have received 

nothing further from Entek and, as noted above, you were unable to commit to any date for completion of 

the production, (i am surprised that we have not even received Entek's CID response which Hanno 

advised on December 10 we would receive, This would not be diffcult to copy and email to us, as you 

did the affdavit.) As I advised, I need Entek's documents by January 12, 2009, You could not commit to 

a production by that date. We have no choice but to move to compel Entek's production, 

With respect to Mr. Keith and Mr, Bell's examinations, we are entitled to discovery of these witnesses 

under the FTC Rules of Practice. As I said, we intend to keep our examinations focused and will 

minimize the time commitment imposed on these witnesses, Your proposal that we proceed with Mr, 

Weerts first and then see if we require Mr. Keith's deposition is unacceptable, First, we believe Mr, Keith 

was directly involved in many important matters relevant to this action including in dealing with Entek's 

customers, strategic planning for Entek and Entek's expansion efforts in the UK and related customer 

agreements. We are entitled to discovery regarding his personal involvement and recollections of these 

and other matters and are not required to limit our examination to only Mr. Weerts. Second, it is 

unreasonable to require Respondent to travel across the country twice to take these depositions. In order 

to maximize effciencies and reduce costs, we continue to believe that the depositions should occur 

during the same trip to Portland, It would seem that this would be more efficient for you as welL. Third, 

our schedule does not permit us to divide up the depositions as you suggest. Entek is not the only 

company that we are deposing. We are also busy covering the FTC depositions of Respondent's 

witnesses. With our discovery cut off in mid February, we simply cannot accommodate such a request. 

With respect to Mr. Bell, I continue to be very troubled by Entek's response, In your letter of December 

22, which was negotiated at length with us over December, you agreed to search for documents from Mr. 

Bell as one of the three custodians, This was a compromise to our request for a larger search to be 

undertaken by your client. You also represented to us in that letter that Mr. Bell was Vice President of 

International Sales of Entek. It is at best disingenuous to now claim that he does not have relevant 

information in this matter or that he is not under the control of Entek, We continue to seek the depositions 

of both of these gentlemen. 

If you would like to discuss this with me, please let me know. 

Eric 
Eric Welsh 

Partner
 

Ext. 9052
 

2 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

) 

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

TABC
 
I 

Message Page 1 of 1 

Welsh, Eric D.
 

From: Welsh, Eric D,
 

Sent: Monday, November 24,20082:16 PM
 

To: 'darius.ogloza~lw,com'; 'hanno,kaiser~lw.com'; 'brett,coiiins~lw,com'
 

Cc: Shor, Michael, Polypore/US
 

Subject: In re Polypore Internationallnc" Docket No, 9327 

look forward to speaking with you shortly, 

Best regards, 

Eric Welsh 

1/7/2009
 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of CASE NO. 9327 

Polypore International, Inc. 

a corporation. PUBLIC DOCUMENT 

DECLARATION OF MICHAEL L. SHOR IN SUPPORT OF
 

POL YPORE INRNATIONAL, INC.'S OPPOSITION
 

TO ENTEK'S MOTION FOR PROTECTI ORDER 

I, Michael L. Shor, under penalty ofpeijury, declare that the following is true and 

correct to the best of my knowledge: 

1. I am an attorney duly licensed to practice before the courts of the State of
 

North Carolina. 

2. I am employed by Carolina Legal Staffing and, since April 7, 2008, I have 

served as Special Counsel for Polypore International, Inc., Respondent in this matter. 

3. From April 2008 until early September 2008, my primary fuction at
 

Polypore was to assist the Company in responding to the investgation conducted by the 

FTC. My role was to manage outside counsel and to coordinate the Company's response 

to the FTC's crn and subpoena duces tecum. 

4. I attended some of the investigative hearings, paricipated in several of the 

Company's meetings with staff 
 and provided substantive advice and counsel to the 

Company whie managing outside counseL. 

5. On several occasions, I provided advice and counsel to Po1ypore's
 
Daramic unit by parcipatig in telephone conversations with representatives of Johnson 

Controls, Inc. for the purpose of negotiating a supply contract for deep cycle battery 

separators and by revising drafts of the contract. On other occasions, I assisted the 

Celgard and Membrana units of Polypore with varous customer and business-related 

matters. 

6. Commencing on September 9, on the issuance of 
 the admistrative 

complaint in this matter, my responsibilities shifted to maaging the litigation for the 

Company. I was involved in retaining outside counsel and I am actively involved in 

managing and coordinating all aspects of the case, including managing outside counel 

and coordinating the collection of data and responsive documents. I am also involved in 

advising the Company on the substance of 
 the litigation and offering strategic gudance to 

counel. 

7. During the negotiation of the Protective Order entered in this case,
 

Complait Counsel objected to my access to confidential materials, assertng the same 

concerns as those raised by Entek here. I advised Complaint Counsel that I have not 

paricipated in any contract negotiations for Daramic since early August and I represented 

to Complaint Counsel that I wil not paricipate in any such negotiations for a period of 

two years. Following that representation, Complaint Counsel agreed to the Protective 

Order and it was entered by the ALJ. 

8. During discovery and trial preparation, I wil review documents and
 

materials produced by third paries-including those identified as confidential-and,
 

bringing the Company's perspective to bear on the case, advise outside counsel on the 

conduct of the litigation. I am not permitted to, and I will not, share any confdential 
material or information wìth Company representatives. 

9. Any review ofthird party, confidential, documents that I undertake wil 

take place at the offices of ParkerPoe, our outside counseL. I wìl not load or send any 

third party , confidential, documents to the Polypore computer system, nor wìll I remove 

any copies of any confidential documents from Parker Poe. 

I declare, under the penalty of perjury, that the foregoing is true and correct to the 

best of my knowledge, infoiniation and belief. 

Signed this 4th day of 
 November 2008, in Charlotte, North Carolina.

By: 

Mic e1 L. Shor, Esq. 

Speci 1 Counsel
 

Polypore Inteinational, Inc.
 

1 1430 Noith Community House Road 

Suite 350 

Charlotte, NC 28277 

Tel: (704) 587-8450
 

Fax: (704) 587-8796
 

mshor(àJpolYmm~,.r-.,l 
Welsh, Eric D. 

From: Welsh, Eric D, 

Sent: Monday, November 24,20086:12 PM 

To: 'darius, ogloza~lw, com'; 'hanno, kaiser~lw ,com'; 'brett,collins~lw.com' 

Cc: 'Shor, Michael, Polypore/US'; Rikard, Jr" William L. 

Subject: In re Polypore International, Inc" Docket No. 9327 

Here is the email that I mentioned.
 

Best regards, 

Eric Welsh
 

E-Mail to Steven
 

Dahm.PDF (38 ...
 

1 
Message Page i of i 

Welsh, Eric, D. 

From: Welsh, Eric D, 

Sent: Friday, November 07, 20084:53 PM
 

To: Dahm, Steven A.
 

Ce: 'Robertson, J. Robert'; Rikard, jr., Willam L. 

Subject: In re Polypore International Inc., Case No. 9327 

Steven 

Per our conversation, I provide the following statement regarding Mr. $hor, I think this is what you have asked 

for. If you need something else, let me know. 

/ 

Michael Shor is employed by Carolina Legal Staffng and is serving as Special Counsel toPolypore International 

Inc. ("Polypore"); Mr. Shor is not an employee of Polypore. Mr.Shor's responsibilities are principally in managing 

this litigation. Mr. Shor has provid,ed some legal adviCe to other business units of Polypore, namely Celgard and 

Membrana, and for a limited period of time, endingin early August, participated in conference calls with JCI 

related to negotiations for a contract for deep cycle separators, 

Poiypore and Mr. Shor have agreed that Mr. Sh,or wil riot provide legal advice or counsel to Polypore regarding its 

customer contract negotiations on the lead acid separator business for a period of two years. He wil, however, 

èontinue to provide legal advice to the Celgardand Membran;: business units and if called on, may assist the FTC action. '
 Daramic in any legal action involving its customers,Mr. Shor wil also continue his responsibilty with respect to

Best regards, 

Eric 

/ 

11/20/2008
 
Message Page 1 of 1 

Welsh, Eric D. 

From: Welsh, Eric D, 

Sent: Tuesday, November 25,20085:09 PM
 

To: 'darius,oglozacælw.com'; 'hanno,kaisercælw.com'; 'brett,collnscælw.com'
 

Cc: Rikard, Jr., William L. 

Subject: In re Polypore International, Inc" Docket No. 9327 

Darius, Hanno and BrettThank you for speaking with me yesterday, We seem to be moving forward in a productive manner. 

I checked on the issue that you raised about limiting the start date to Jan. 1, 2006, Unfortunately, we cannot do 

that. The FTC's complaint covers a much broader time period and in order to assert our defenses, we need to 

cover more than the last two years, Moreover, the FTC's discovery to us has also used a general start date of 

January 1, 2003, although some requests go back even further, Evidently, the FTC finds this time period to be 

relevant. I am conscious of issues of burden. By limiting the requests, generally speaking, to the period after 

January 1, 2003, we feel that we have reached a middle ground where we have limited the demand to your client 

but still seek the information that is necessary to our defense. If there are other ways to address your concerns, I 

would be more than happy to consider them, 

Also, I checked on Darius' suggestion of redacting customer names, Unfortunately, this will not work either. It is 

important that we be able to match up customers to pricing in order to address the issues in this matter. I 

understand the question that you have raised here relates to confidentiality, By this time, you should have 

received (1) Mr. Shor's declaration, (2) the statement I provided to the FTC counsel prior to finalizing the 

protective order, and (3) the protective order itself, which was presented to the Administrative Law Judge at a 

hearing on October 22, 2008 and later signed, I believe we have more than adequately addressed any questions 

that you have raised on this point. 

Thank you for your continued attention to this matter. i 
 look forward to receiving your letter on Tuesday,

Best regards, 

Eric Welsh 

1/7/2009
 
Message Page 1 of 1 

Welsh, Eric D. 

From: Welsh, Eric D. 

Sent: Friday, December 05,20086:21 PM
 

To: DARIUS.OGLOZA§LW.com; Hanno,Kaiser§lw,com; 'Brett.Collns§lw,com' 

Subject: In re Polypore International, Inc, Docket No 9327 

Darius 

I just left you a brief message concerning the subpoena. I spoke with my client. We agree with Hanno's 

proposaL. Mr, Shor will not have access to ENTEK's production and we will handle that in a letter between our 

firms, I wanted to get that to you quickly so you can talk with your client and draw our discussions to a 

conclusion, As I mentioned, if your client is not willing to provide documents and information for the time period of 

January 1, 2003 to the present, then please prepare the motion to the Administrative Law Judge, I think the clock 

should start on this issue today, 

Also, as I mentioned, we need to know the identity of three custodians. I would appreciate it if you would provide 

those names to me as soon as possible. As I also mentioned, we are willing to proceed with the "suffcient to 

show" and "written response" noted in your December 3 letter provided that it is without prejudice to our right to 

request specific additional information from ENTEK should we view it necessary and provided that a witness 

would be made available to testify about the written responses. Finally, as we discussed, we need the identity of 

the customers but I understand that ENTEK's objection there is now moot with our agreement about Mr, Shor. 

I look forward to hearing from you very soon with respect to ENTEK's compliance with the subpoena. Thank you 

again for your time and efforts. I thought the conversation was productive and, in light of what you said, this 

should expedite ENTEK's production, 

Best regards, 

Eric Welsh 

1/7/2009
 
Message Page 1 of 1 

Welsh, Eric D. 

From: Welsh, Eric D, 

Sent: Tuesday, December 09,200812:41 PM
 

To: 'hanno.kasier(§lw,com'
 

Cc: 'darius,ogloza(§lw.com'; 'brett.collins(§lw.com' 

Subject: In re Polypore International, Inc., Docket No, 9327 

Hanno 

I received your message yesterday, I 
 look forward to receiving the letter today, We must have the issues 

resolved today, As I understand your message, your client has agreed to our start date of January 1, 2003. As 

we discussed, this was the largest issue before us on Friday and Darius stated that if we resolved the issue in 

Entek's favor regarding Mr. Shor, that he would recommend that Entek agree to our start date, I have agreed with 

respect to Mr. Shor based on the understanding that your client will agree to our start date. Again, as Darius said, 

"a fair horse trade." 

If my understanding is incorrect regarding your client's agreement with respect to our start date, please let me 

know immediately, Also, as I mentioned on Friday, I consider the time for Entek to file its motion to have begun if 

your client is not in agreement on this time frame. It sounds like that issue is behind us though. Finally, I look 

forward to hearing your thoughts on the three custodians referred to in Darius' letter. 

Best regards, 

Eric Welsh 

117/2009
 
Message Page 1 of 1 

Welsh, Eric D. 

From: Welsh, Eric D. 

Sent: Tuesday, December 09,200812:42 PM
 

To: 'hanno,kaiser~lw.com'
 

Cc: 'darius.ogloza~lw,com'; 'brett.collins~lw,com' 

Subject: FW: In re POlypore International, lnc" Docket No. 9327 

-----Original Message----­

From: Welsh, Eric D.
 

Sent: Tuesday, December 09,2008 12:41 PM
 

To: 'hanno.kasier(Qlw.com'
 

Cc: 'darius.ogloza(Qlw.com'; 'brett.collns(Qlw.com'
 

Subject: In re Polypore International, Inc., Docket No. 9327
 

Hanno 

I received your message yesterday, I 
 look forward to receiving the letter today. We must have the issues 

resolved today, As I understand your message, your client has agreed to our start date of January 1,2003, As 

we discussed, this was the largest issue before us on Friday and Darius stated that if we resolved the issue in 

Entek's favor regarding Mr, Shor, that he would recommend that Entek agree to our start date, I have agreed with 

respect to Mr, Shor based on the understanding that your client will agree to our start date, Again, as Darius said, 

"a fair horse trade," 

If my understanding is incorrect regarding your client's agreement with respect to our start date, please let me 

know immediately. Also, as I mentioned on Friday, I consider the time for Entek to file its motion to have begun if 

your client is not in agreement on this time frame. It sounds like that issue is behind us though, Finally, I look 

forward to hearing your thoughts on the three custodians referred to in Darius' letter. 

Best regards, 

Eric Welsh 

Eric Welsh 

Partner 

Ext. 9052 

1/7/2009
 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

TABD
 
Welsh, Eric D. 

From: Welsh, Eric D.
 

Sent: Wednesday, December 10,20081:48 PM
 

To: 'Hanno. Kaiser~lw,com'
 

Cc: DARIUS. OGLOZA~L W,com; Brett, Collns~lw.com 

Subject: RE: ENTEK; discovery agreement 

Darius: 

Thank you for your letter. I have talked with my client and we have the following in
 

response. 

First, as we discussed over the telephone, Hanno' s proposal on confidentiality was to
 

treat certain information as highly confidential, and it was that information that we
 

agreed with you Mr. Shor would not see. There was no discussion of "Safe Locations."
 

Now, the proposed agreement from you not only excludes Mr. Shor from all confidential
 

documents, but it also includes the restriction of having the "Most Sensitive
 

Information" reviewed at only "Safe Locations" during normal business hours. This is
 

unreasonable, excessive and unnecessary. In order to move this along, we will agree to
 

exclude Mr. Shor as to all of Entek' s production, but I cannot agree to the Safe Location
 

provision as it is far too restrictive on my ability to engage in discovery and prepare
 

for trial and imposes undue expense to me and my economists. We have come quite far in
 

our repeated concessions to address confidentiality concerns of your client. If this is
 

not satisfactory, then please file your motion.
 

Second, as to the list of those individuals in the "Disclosure Group," it would need to
 

include our industry expert once we have notified you per paragraph 6. The Group would
 

also need to include Entek's witnesses, court reporters, the court, and the others
 

referred to in paragraph 9 of the Protective Order (excluding Mr. Shor).
 

Third, we will agree to notify you of the industry expert, but absent your filing a
 

motion, we would be permitted to show the documents to such person ten days after our
 

notification to you.
 

Fourth, Entek Information must be able to be removed from Restricted Locations for
 

depositions and hearings. I assume the FTC would want to receive a copy too, but your
 

agreement excludes that ability.
 

Fifth, I would like the return of Entek information (paragraph 5) to parallel the language
 

in the Protective Order.
 

Sixth, your letter does not mention our right to seek additional information should the
 

written responses or sufficient to show productions not fully respond to the level of


inquiry sought. As I said, you would reserve your right to obj ect . 

Seventh, your letter does not mention our right to have a witness tendered to respond to
 

questions regarding such responses.
 

Eighth, please verify that the response to Request Nos. 3 and 4 will cover any such
 

facility owned directly or indirectly by ENTEK.
 

Ninth, you have limited the custodian to Mr. Weerts. We understood that you were
 

proposing three custodians to search. We were agreeable to that proposal but needed to
 

know the identity of those custodians. I did not think this was unreasonable. You have
 

now dropped the inquiry to a single person in this organization. We request you also
 

search Mr. Graham Fraser Bell's and Rob Keith's files.
 

Tenth, please include documents covering North America and the World in response to


Request No.6. 

I think we have now narrowed all of the issues down. If there is anything left that we
 

need to discuss, let me know today. Otherwise, please revise the letter accordingly and
 

send it to me for signature or file your motion with the ALJ.
 

1 
Thank you for your attention to this matter.
 

Eric Welsh
 

- - - - -Original Message- - - -­

From: Hanno. Kaiser0lw. com (mailto : Hanno . Kaiser0lw. coml 

Sent: Tuesday, December 09, 2008 7:32 PM 

To: Welsh, Eric D. 

Cc: DARIUS. OGLOZA0LW . com¡ Brett. Collins0lw. com

Subj ect: ENTEK¡ discovery agreement 

Dear Eric: 

As discussed, please find attached our proposed discovery agreement. Please let us know if


you have any questions. 

Best, 

Hanno 

Hanno F. Kaiser I LATHA & WATKINS LLP I 505 Montgomery Street, San Francisco, CA 94111­

6538 I P: 415.395.8856, F: 415.395.8095, E: hanno.kaiser0lw.com I Admitted in NY. CA bar
 

admission pending.
 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * 

To comply with IRS regulations, we advise you that any discussion of Federal tax issues in
 

this e-mail was not intended or written to be used, and cannot be used by you, (i) to
 

avoid any penalties imposed under the Internal Revenue Code or (ii) to promote, market or
 

recommend to another party any transaction or matter addressed herein.
 

For more information please go to http://ww.lw.com/docs/irs.pdf
 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

This email maycontainmaterialthatisconfidential.privileged and/or attorney work
 

product for the sole use of the intended recipient. Any review, reliance or distribution
 

by others or forwarding without express permission is strictly prohibited. If you are not
 

the intended recipient, please contact the sender and delete all copies.
 

Latham & Watkins LLP
 

2 
Welsh, Eric D. 

From: Welsh, Eric D. 

Sent: Friday, December 12, 20084:59 PM 

To: 'Hanno. Kaisercælw,com' 

Cc: DARIUS,OGLOZAcæLW.com; Brett.Collnscælw,com 

Subject: RE: DRAFT Discovery Agreement ENTEKlPolypore 

Hanno 

I will get back to you later today or Monday on your latest.
 

Thanks. 

Eric 

- - - - -Original Message- - - -­

From: Hanno. Kaiserêlw. com (mailto: Hanno. Kaiserêlw. com)
 

Sent: Thursday, December 11, 2008 4:10 PM
 

To: Welsh, Eric D.
 

Cc: DARIUS. OGLOZAêLW. com; Brett. Collinsêlw. com
 

Subj ect: DRAFT Discovery Agreement ENTEK/Polypore 

Dear Eric: 

Please find attached, as discussed, a further revised version of the Discovery Agreement.
 

As you will see, we accepted virtually all of your proposed changes and requests.


Specifically: 

(1) The Safe Location concept has been removed.
 

(2) The Disclosure Group has been expanded per your request.
 

(3) As to the industry expert, the new provision strikes a reasonable compromise. We have
 

10 days in which to file a motion; in return we get information about the proposed expert
 

and one short interview if required. The new provision also clarifies that the expert must
 

be a Polypore outsider. That should not be controversial.
 

(4) Documents may now be removed from Safe Locations for the purposes you identified.
 

(5) The process of returning ENTEK documents now follows the concept in the PO.
 

(6) Polypore i s reservation of rights in case of claims of insufficient compliance with the 

agreement have been clarified.
 

(7) Polypore has the right to call a witness; that, in my view, had already been part of
 the previous draft. 

(8) Request Nos. 3 and 4 will cover facilities owned directly or indirectly by ENTEK; we
 

added language to clarify that point.
 

(9) We i re fine with adding Graham Fraser Bell per your request. In lieu of Rob Keith,
 

however, we propose Greg Humphrey, North & South America Account Manager. Greg is a much
 

better and more direct source for detailed information about actual or potential


contracts, separator prices, Polypore and Microporous (i. e., the information requested in 

Spec. 5) than Rob Keith. Moreover, the vast maj ori ty of relevant information requested in
 

Spec. 5 in Rob Keith' files would likely be duplicative with the much more detailed set
 

contained in the files of Dan Weerts. As a result, the benefit to Polypore of including
 

Rob Keith would be minimal, whereas the burden on ENTEK of having its CEO divert
 

significant time and attention away from operations at a time of overall financial and
 

economic crisis and at a critical time of the business year would be significant and
 

harmful to the company. Including Rob Keith would thus be unduly burdensome.
 

1 
(10) As discussed yesterday, we did not make any changes to Spec. 6.
 

Best, 

Hanno 

Hanno F. Kaiser I LATHA & WATKINS LLP I 505 Montgomery Street, San Francisco, CA 94111­

6538 I P: 415.395.8856, F: 415.395.8095, E: hanno.kaiserêlw.com I Admitted in NY. CA bar
 

admission pending.
 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * 

To comply with IRS regulations, we advise you that any discussion of Federal tax issues in
 

this e-mail was not intended or written to be used, and cannot be used by you, (i) to
 

avoid any penal ties imposed under the Internal Revenue Code or (ii) to promote, market or
 

recommend to another party any transaction or matter addressed herein.
 

For more information please go to http://ww.lw.com/docs/irs.pdf
 

* ** * * * * * * * * * * * * * * * * * ** * * * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 

This email may contain material that is confidential, privileged and/or attorney work 

product for the sole use of the intended recipient. Any review, reliance or distribution 

by others or forwarding without express permission is strictly prohibited. If you are not 

the intended recipient, please contact the sender and delete all copies. 

Latham & Watkins LLP
 

2 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

)

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

TABE 
Darius C. Ogloza 505 Montgomery Street, Suite 2000 

Direct Dial: 415-395-8149 San Francisco, Califomia 94111-6538 

darius,ogloza~lw.com Tel: +1.415,391,0600 Fax: +1.415.395,8095 

ww.lw.com 

FIRM I AFFILIATE OFFICES LA THAM&WATK IN SLLP Abu Dhabi Munich 

Barcelona New Jersey 

Brussels New York 

Chicago Northern Virginia 

Doha Orange County 

December 22,2008 Dubai Paiis 

Frankfurt Rome 

VIA EMAIL Hamburg San Diego

Hong Kong San Francisco 

London Shanghai 

Los Angeles Silcon Valley 

Eric D. Welsh Madiid Singapore 

Parker Poe Adams & Bernstein LLP Milan Tokyo

Moscow Washington, D,C. Three Wachovia Center, Suite 3000
 

401 South Tryon Street File No, 030380-0007
 

Charlotte, NC 28202
 

Re: In the Matter of Polyp ore InternationaL. Inc., Case No. 9327 

Dear Eric: 

This letter, if countersigned by you, modifies the subpoena duces tecum served on 

ENTEK International LLC ("ENTEK") by Polypore International, Inc. ("Polypore") on 

November 6, 2008 ("Subpoena") and constitutes an agreement ("Agreement") between Polypore 

and ENTEK Gointly, the "paries"), resolving all discovery issues and disputes raised in 

connection with the Subpoena. The Agreement affords additional protection to documents and 

other information to be produced by ENTEK in response to the Subpoena ("ENTEK 

Information"), and at the same time ensures that a group of outside counsel and advisors to 

Polypore, defined below, wil obtain access to ENTEK Information that Polypore requires for its 

defense in a timely manner. The Agreement shall not limit Polypore's right to interview or seek 

relevant deposition testimony from ENTEK personnel, or additional ENTEK Information if 

Polypore believes that the ENTEK Information produced fails to respond to the level of inquiry 

described in this letter. Correspondingly, ENTEK reserves it right to object to such requests. 

I. General Al!reements 

(1) Date cutoff: The default date cut off for the Subpoena is January 1, 2003. 

(2) Disclosure Group and Michael L. Shor: Disclosure of ENTEK Information is limited 

to the following individuals: (a) outside antitrust litigation counsel, i.e., Parker Poe Adams & 

Bernstein LLP ("Parker Poe") attorneys staffed on the matter; (b) outside antitrust economists 

(e.g., CRAI, CompassLexecon, LECG, Brattle Group) retained by Polypore as consultats or 

testifying experts for purposes of this litigation ("Economic Experts"); (c) Approved Industry 

Experts as defined in paragraph (5) below; (d) Administrative Law Judge presiding over this 

proceeding, personnel assisting the Administrative Law Judge, the Commission and its 

employees, and antitrust economists retained by the Commission as experts or consultants for 

this proceeding; (e) judges and other court personnel of any court having jurisdiction over any 
Eric D. Welsh 

December 22, 2008 

Page 2
 

LA THAM&WATKI NSLLP 

appellate proceedings involving this matter; (f) court reporters in this matter; (g) any ENTEK 

witness or deponent who may have authored or received the ENTEK Information; and (h) any 

other person(s) to whom ENTEK agrees to in writing. Each individual member of the Disclosure 

Group identified in (2)(a)(b)(c) and (h) shall sign and retu a copy of 
 this letter to Brett Collins, 

Esq., LATHAM & WATKINS LLP, 505 Montgomery Street, San Francisco, CA 94111 

(brett.collnsêlw.com) prior to accessing any ENTEK Information. For purposes of clarification, 

Michael L. Shor is not a member of the Disclosure Group, and no ENTEK Information may be 

shared, disclosed, or made available in any way, directly or indirectly, to him. 

(3) Access to ENTEK rnformation: In order to prevent disclosure ofENTEK Information 

to Polypore beyond the Disclosure Group, as defined in (2) above, all ENTEK Information shall 

only be maintained in and accessed from the offices of Parker Poe, those of the Economic 

Experts and/or those of 
 the Approved Industry Experts (together, the "Restricted Locations"). In 

the event that ENTEK Information is imported into a document review system, such ENTEK 

Information shall be accessed only from terminals located in a Restricted Location. Access to 

any document review system shall be password protected. The distribution of passwords shall be 

limited to members of 
 the Disclosure Group. No ENTEK Information may be removed from the 

Restricted Locations except as necessary to transfer ENTEK Information from one Restricted 

Location to another (e.g., from Parker Poe to the Economic Experts). ENTEK Information that 

wil be used as exhibits at depositions, hearings or trial may be removed from the Restricted 

Locations for that purose only and, afer use, must be returned to a Restricted Location. For
 

purposes of clarification, Polypore may provide the Commission with a copy of ENTEK 

Information produced in response to the Subpoena as required by the Scheduling Order, dated 

October 22, 2008. 

the present proceedings and 

any related appeal, the Disclosure Group shall return all ENTEK Information obtained in this 

action to ENTEK and no copies may be maintained. 

(4) Retur ofENTEK Information: Upon the completion of 


(5) Industry experts: Should Polypore retain industr experts - as opposed to Economic 

Experts - in connection with this proceeding and wish to disclose ENTEK information to such 

experts, Polypore shall notify ENTEK of 
 its intent and identify the industr expert(s) to whom it 

wishes to disclose such information along with sufficient information about the proposed 

expert(s) to permit ENTEK to ascertain whether the proposed expert is acceptable (including, but 

not limited to, a curiculum vitae). Moreover, and to the same end, Polypore shall at ENTEK's 

request make any proposed industr expert(s) available for one telephone interview not to exceed 

one (1) hour. Any industry expert shall not have been employed by Polypore and shall not be 

employed by Polypore or provide consulting services to Polypore (outside of 
 the present matter) 

for a period of two (2) years after the final resolution of 
 this proceeding. For purposes of 

clarification, the industry expert must under no circumstances disclose ENTEK Information to 

anyone outside of the Disclosure Group. ENTEK shall have the opportnity to fie a motion for 

protective order with the Administrative Law Judge, seeking to stop disclosure of ENTEK 

Information to the noticed industry expert( s) within (10) business days of receipt of the notice. In 

the event that ENTEK does not seek a protective order, the noticed expert(s) shall be considered 

approved after expiration of the ten (10) business day period or written approval notice from 

ENTEK, whichever is earlier ("Approved Industry Experts"). 
Eric D. Welsh 

December 22, 2008 

Page 3
 

LATHAM&WATKI NSlL 

(6) No waiver of privilege: For purposes of clarification, the parties do not interpret this Agreement as requiring ENTEK to waive its right to withhold from production any information 

protected from discovery by the attorney-client privilege, the work product doctrine, the common 

interest doctrine or any other applicable discovery privilege or exemption. 

(7) Remedies: The paries acknowledge and agree that breach of the General Agreements 

may cause irreparable injury to ENTEK for which monetary damages are not a sufficient 

remedy. Accordingly, ENTEK may seek injunctive relief and any other available equitable
 

remedies to enforce these provisions without posting a bond if otherwise required by law. For
 

puroses of clarification, this provision in no way limits ENTEK's rights to seek monetay, 

including punitive damages for breach ofthis agreement and/or improper disclosure ofENTEK 

Information from Polypore, Parker Poe, the Economic Experts, and other natual persons or 

entities as the case may be. Moreover, this Agreement shall in no way limit ENTEK's rights 

under the Protective Order dated October 23,2008. 

II. A2reements With Respect to Specific Requests 

Request Nos. land 2: ENTEK shall produce a written response listing all products in 

development by ENTEK or any Third Party to compete with Polypore lead acid battery
 

separators.
 

Request No.3 and 4: ENTEK shall produce a written response listing manufacturing or
 

production facilities for lead acid battery separators in which ENTEK maintains any direct or
 

indirect ownership interest. The wrtten response shall include the following information: (a) the
 

capital expenditure for the construction and start-up or expansion of such facilty, (b) the date on
 

which plans for such facilty or expansion of such facilty were approved, (c) the date on which
 

construction began on such facilty, (d) the date of commissioning or starp of such facility, (e)
 

the production capacity of 
 such facility, (f) the type ofproduct(s) produced at such facility, (g) the anticipated end use(s) of 
 the products manufactured at such facilty, (h) the technology used 

at such facilty to manufacture lead acid battery separators and (i) the cost of the lead acid battery 

separators manufactued and sold at such facilty, including without limitation the cost of 

manufacturing and sellng such products, including shipping costs. 

Request No.5: ENTEK shall produce copies of 
 responsive documents from the fies of
 

Dan Weerts, Vice President of 
 Sales & Marketing, Graeme Fraser-Bell, Vice President 

International Sales, and Greg Humphrey, North & South America Account Manager, on the basis 

of a list of specific search terms to be agreed upon by the parties. 

Request No.6: ENTEK shall produce copies of 
 the supply agreements and proposals for supply agreements, excluding drafts, between ENTEK and (a) JCI, (b) Exide, (c) EnerSys, (d) 

East Penn, (e) Crown, (f) Trojan, (g) US Battery, (h) C&D, or (i) any other entity manufacturing 

lead acid batteries for sale in North America, for the sale by ENTEK to such entity of lead acid 

battery separators.
 
Eric D. Welsh 

December 22, 2008 

Page 4 

LA THAM&WATKI NSLLP 

Request Nos. 7-8, 10-13: ENTEK shall produce documents sufficient to show the
 

information sought by these requests.
 

Request Nos. 14-16: ENTEK shall produce a wrtten response reflecting the information 

sought. 

Request Nos. 9, l7, 25, 29: ENTEK shall produce documents suffcient to show the
 

information sought by these requests.
 

Request Nos. 18-23, 27: ENTEK shall produce written responses reflecting information 

sought by these requests. 

Request No. 24: Polypore has withdrawn this request. 

Request Nos. 26, 35: ENTEK shall produce documents sufficient to show the information 

sought by these requests. 

Request No. 28: ENTEK shall produce documents suffcient to show customer testing or 

qualification of any lead acid battery separator produced by ENTEK. 

Request Nos. 30,33,34 and 36-38: ENTEK shall produce documents in response to these 

requests. 

Request Nos. 31 and 32: ENTEK shall produce documents sufficient to show the
 

information sought by these requests.
 

Request Nos. 39 and 40: ENTEK shall produce documents in response to these requests. 

ENTEK wil seek reimbursement for costs incurred in connection with the search for and 

production of the materials requested by Polypore. 

Best regards, 

Darus Ogloza
 

of LATHAM & WATKINS 

Counsel for ENTEK Internat 

Eric D. Welsh 

of PARKR POE ADAMS & BERNSTEIN LLP 

Counsel for Polypore International, Inc. 

cc: Hanno F. Kaiser
 
Eric D. Welsh 

December 22, 2008 

Page 5
 

LATHAM&WATKI NSLLP 

Disclosure Group Sie:natures 

Name 

Affiiation 

Date 

Name 

Affiliation 

Date 

Name 

Affiiation 

Date 

Name 

Affiiation 

Date 

Name 

Affiiation 

Date 

Name 

Affiliation 

Date 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

)

Polypore International, Inc. ) 

a corporation ) PUBLIC DOCUMENT 

) 

TABF 
'.. . 

SUBPOENA 'A'D TESTIFICANDUM
 

l.ssuedPursuant to Ru'le 3.34(a)(.1), 16 C.F.R. § 3.34(a)(1) (1997) 

1. TO 

Mt . 
 Robert Keith , ,
 

Chief Operating Officer 

ENTEK Intern!:tìonlll LLC
 

250 N. Ha~sard Ave.
 

Lebanon,' OR 97355
 

2. FROM 

UNED STATES OF AMERICA. 

, FEDERAL TRDE COMMISSION. 

This subpoena requlres,you to appear and give testimony, at the date and time specified in Item 5, at the 

request of Counsel listed in Item 8, in the proceeding described ih Item 6. , 

3. PLACE OF HEARING ' 

Miller Nash::
 

11 1 s. W. Fifth Avenue 

Portlarid, Oregon 97204
 

6. SUBJECT OF PROCEEDING 

In the Matter of Polyp ore International, Inc., Docket No. 9327 

7. ,ADMIf)ISTRATIVE LAW JUDGE 

The Honorable D. Michael Chappell 

Federal Trade Commission ' 

Washington, D.C. 20.580. 

DATE ISSUED 

December 10, 2008 

,

, APPEARÁNce
 

The delivery of this subpoena to you by any method,. 

prescribed by the Commission's RU!as of Practice is 

. Jegal sèrvice,andmay subject you to a pe.nalty 

lniposed by law for failure to compiy~ 

MOTIQN TO LÏMIT OR ,QUASH 

. The Com,niission's Rl:les of Praptice requi~e t/1at any 

motion to limit or quash ,this suppoema be filed within 

the. earlier' of 10 dèiys after seMca, 'or the time for , 

compllanq9. The original and ten copie.s of ttw petition 

must be.filed with the'Secretary ofthe Federal Trad~ 

Corririssioii, accompanied by. an affidavit of .se'r:ice of 

the document upon counsel 
 'listed ÏI./tei'8,ahd upon

ällother partie,S pre.scribed by the Rules of Practice. 

4. YOUR APPEARANCE WILL BE BEFORE 

Counsel 'for Respond'ent 'and a pe.rson autho'rized 

by ,law to administer, oaths. 

'5. DATE AND TIME OF HEARING OR DEPOSITION 

'1/20/09 at 9,:00 AM
 

8. COUNSEL REQUESTING SUBPOENA . 

Eric D. Welilh 

Three Wiiehovia Center 

Suite 300 

401, South Tryon Street " .
 

Charlotte, NC 2S202- l935 

~ j2 ~ 

, TRAVEL EXPl:NSES .
 

The CommiaSionrs Rules--f Practice, requiretÌ1at fees and 

mileage be 'paid by the part that requested your ' ,
 

appearani:e. You ,shoUld 'present your claim to Counsel 

listed in ltE¡rT a.'for pa.yment , If you are RermaneÍ1tly or 

temporariiy living some'Ner: other than' the addres,s on
 

this subpoena', and it .would require excessive tr'avelfor
 

you to appear, you must get prior approval from Counsel

listed in Item -8. . ' "
 

This subpoena does not r~quire approvål by OMS \jnder 

,the 'Paperwrk 'Reduc~io~ Act of 1980. . '
 

FTC Form 70-A (rev. 1/97) , 
, \
 

RETURN OF SEflVICE 

I hereby certfy that a duplicate original of the within
 

subpoena was duly served: ('?eck the meod used)
 

o in pers.on.
 

o by registered mail.
 

o by leaving,copy at principal .office or piar:e.'of business, to wit: 

on the person nåmed herein on:
 

(Mont. day, and year)
 

(Nam'ol persDl making servca) 

(Ole/aJ nile) 

" 
UNITE,D STATES OF AMERICA
 

BEFORE THE FEDER.L TRE ÇOMMSSION
 

In the Matter of ) Docket No. 9327 

) PolypQre International, Inc., )
 PUBLIC DOCUMENT

a ~otpQralion.
 ) 

CERTIFICATE OF SERVICE
 

I hereby certify that on Deçemb~r 29, 2008, I caused to be served the foregning Subpoena 

Ad Testificandum via'Certified Mail Retu~ Receipt Requested upon: 

Mr. Robert Keith 

Chi~f Operating Offçer 

ENTEK International LLC 

250 N. Ifansard Ave. 

Lebanon, OR 97355 

I hereby çertify that on Dec~mber 29,2,008, I caused to beserve4 one copy via electronic 

mail delivery, ¡md ,two copies via overnght mail delivery of the foregoing Subpoena Ad 

Testificandui upon:
 

The Honorable D. Micha~l Chappell 

Administrative Lf,w Judge
 

l"ederal TI'?,de Commission 

60ÖPennsylva,ia Avenue, NW 

Washligton, DC 20580 ' 

oalj~ftç.gòV' 

I herelJycertify that çm December 29, 2008, I caused to be served via first-class mail 

'mail delivery.a cqpy',of the foregoing Subpoena Ad Testifcandum 

upon: 

delivery and electronic 


1. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade -Cömnssion 

600 PennsyIvana A v~mue, Nw 600 P~nn~y1và.a Avenue, NW 

Washington,DC 2058:0 Was1igtón, DC 20580 

rrobertson§ftc.gov sdah(gftc.gov 

PPAB"1516744vl 
Adam C. Sheaer . ,
 (j~

Parker Poe Ad~s & Bernstein LLP 

Thee Wachovia Center 

401 S9uth Tryon Street, Suite 3000
 

Charlotte, NC 282Q2
 

Telephone: (704) 335-9050
 

Facsimile: (704) 334-4706
 

2
 

PPAB lS16744vl 
SUBPOENA AD TESTIFICANDUM,.
 

Is'sued Pursuant to R,ule 3.34(ä).(1), 16 C.F.R. § 3.34(a)(1) (199.7) 

1. TO 2. FROM Mr'. 'Daniel Weerts , 

ENTEK International LLC
 

250 N. H~nsard ,Ave.
 UNTED STATES OF AMERICA Lebanon, OR 9735~
 'FEDERAL TRADE COMMISSION

- . 

This subpoena requires you to appear and,give testlm.ony, at the date a,nd -time specified in Item 5, at the
 

request of Counsel .lsted in Item 8, In the proceedIng described in Item 6.
 

3. pLACE OF HEARrNG 4. YOUR APPEARANCE WILL BE BEFORE
 Miller Nash Counsel for. Re~pondent. and a person authori~ed 1 i i s. W. Fifth Ave~ue' , by, law to administer oaths. 

Portiand~ Qregon 97204
 

5. DATE AND TIME OF HEAR1NG OR DEPOSITION 

1/20/09 at 2: 00 PM
 

6. SUBJECT OF PROCEEDING 

In the Matter ofPoly.pore Inteia:tional, Inc., Docket No. 9327 

7. ,ADMINISTRATIVE LAW JUDGE 6. COUNSEL REQUESTING SUBPOENA 

The Honorable D',Michael Chappell	 Eric D. Welsh , 

Thee Wachovia Center 

Suite 300 

Federal Trade Commissio/". ' 401 South Tryon Street, '

Charlotte, NC 2g20~-1935 Washington, D.C. 20580 

DATE ISSUED 

Dec,ember 10, 2008. 

G"EN.ÈRAL INSTRUCTIONS " 

APPEARANCE .' TRAVEL ÈXPENSES 

The delivery-of this subpoena to you by any methad, The.Commission's Rules-of Praotioe.requlre that fees and prescribed, by the Commission's Ru!es of Prå.ctice is mileage be paid by the part that requested your .Iegal servic~,and may subjeot you tö a penalty , appearance. You 'sho~ld'present your claim to Coi:nsel iniposed by law for failure tocomp/y. listed in Item 8 for payment; If you are ",ermanently or ' 

t.emporarily living somewhere other than the address on 

iyOTJON.TO LIMit OR QUASH this subpoena.. and if would- require excessive travel for 

you, to appear, you must get prior approval fr!)m Counsel The Cq,mmissión's Rules of Practice require t,hat,any Iisted'in- Item 8. ,. motion :to lIniit or quash -this subpoflna be 'fied within 

the earlier o.f .10 d,ays after service or the time for 

comptianqe. The original and ten copies of the petition
 

must be .fili;d with th~l Secretary of tile Féderal Trade
 

Commission, accompanied by an affidavit ohervioa of
 the doo.ument upon counsel listed in Item,8, and upon
 This suqpQemi does riot reqiJlre approval by OMB under ~" othår pàrlle,spresçribed by the Rules .of Practice. the Paperwrk:Reduotior. Act of 1980. , , ,
 

FTC Form 70~A (rev. 1/97) 
RETUR,N OF SERVICE
 

,i hereby certify that a duplicate original of the within
 

subpoena was duty seNOO: (chec the method used) 

o in person.
 

o by reistered mall.
 

o by leaving oopy at principal office or place' of business, to wit: 

on the person named herein on: 

(Mau. day, and ye 

(Nama 01 pen making sarvce)
 

- - - - - - - - - - - - - - - - - - - -.- - - - - - - - - - - - - - - - - ~ ­ (OIiclallltle) 
AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

, ' UNITED STATES OF 


In the Matter of ) Docket No. 9327 

) Polypore International, Inc., ) PUBLIC DOClJMENT a corporation. ' ) , 

CERTIFICATE OF SERVICE , . 

I hereby certify that on December 29,2008, I caused to be servyd the fo,regoing Subpoena 

Ad Testificandum via' C~rtfied MailReturn Receipt RequesWd upon: ' '
 

Mr. Daniel Weert 

ENTEK. In.ternational LLC 

250 N.Hansald Ave. 

Lebanon, OR 97355, 

, I hereby certify that on December 29, 2008, I caused to be served one copy via electronic 

mail delivery and two copies via overnght mail delivery of the foregoing Subpoena Ad
 

Testificaidum upon:
 

The Honorable D. Michael Chappell 

Administrative Law JuClge
 

Federal Trade Coinssion 

600 Pennsylvania Avenue, NW 

Was4ington, DC 20580 

Qa1j~ftG.gov 

I hereby çertify tht on December 29, 2008, I caused to qe served via first-class mail 

upon: 

deliveiy and electronic'mail delivery a copy of the fòregoingSubpo'ena A4 Testifcandum , .


J. Robert Raberton, Esq. , Steven Dah Esq. 

Federal Trade Commss,ion Federal Trade Commission 

600 Pennylvana Avenue, NW 600 .Pennsylvana A Venue, NW 

Washington, DC 20580 Washington, DC 20580 

rrd~ertson~ftc.gov sda.($ftc. gov 

PPAB lS16742vl 
~~ 

Adai C. Shearer
 

p'arker Poe Adams & Bernstein LLP
 

Thr~e Wachovia Center
 

401 South Tryon Street, Sl.ite 3000
 

Charlotte, NG 48202
 

Telephone: (704) 335-9050
 

Facsimile: (?04) 334-4706
 

2
 

PPAB 1516742vl 
SUBPOENA AD TEST/F/CA-NDUM Issued Pursuant to R,ute 3.34(a)(1), 16 ,C.F.R. § 3.34(a)(1) (1997) 

1. TO 2. FROM 

Mr. Graéme FrG~ßr-~e~l
 

ENTEK ,Intern~tional.LL6c
 

250 H. Hansatd Av~.
 UNED STA. TES OF AMERICA 

Lebànon, OR 07355, FEDERAL TRADE COMMISSION 

This'subpoeria requires.you to appear and give testimony, at th~ date and time specified 
 in Item 5, at the request of Counsel listed in Item 8, in the proceeding described in Item 6. 

3. pLACE OF HEARING'

Miller Nash
 

iii s.w. F~fth Avenue
 

Portland, Oregon 97204
 

6. SUBJECT OF PROCEEDING 

In the Matter ofPoly.ore International, Inc., Docket No. 9327 

7. ADMINistRATIVE LAW JLlDGE
 

The Honorable D. Michael Chappell 

Federal Trade Commission ' 

, 4. YOUR APPEARANCE WILL BE BEFORE , 

'èoun~el for Respondent 'and a pe-rson authorized

by law to administer oaths. 

'5. DATE AND TIME OF HEARING OR DEPOSITON 

1/19/09 at 2:00 PM '
 

8. COUNSEL REQUESTING SUBPOENA 

Eric D, Welsh 

Three Wac1Iovia Center

Suite 300, ' 

401 South Tryon Street , '

, ,

Charlotte, NC 28202-1935 Washington, D.C. 20580

DATE ISSUED SEC~~,J~fl
 

December 10, 2008 .~.

GENERAL INSTRUCTIONS 

APPEARANCE 

The delivery of this subpoena to YOI. by any. method, , 

prescribed by the Commission's ,Rules of Practice'ls 

,legal servlce.a:ncrraysubJect you to a penalty 

, 'iniposed by law for fáili,¡re to cbrnp,ly. 

ivOt,ION TO LIMIT OR QUASH 

, The Commission's Rules" of Praèticerequire that, any' 

, motion to limit or qlJÇish this subp0i!ha be filed within 

the earlier of 10 days after service or the time for ' 

complifmce. The 'original and ten copies öf th.e petition 

musf be filed with the: Sec.retarY of the Federal Tradë 

'Comrrission, accompanied by..an affldavit oher-ica of '

thé doc,umsnt Üpon couhseillsted in'/terr:B, and upon 

'ä,ll other partia,s 'prescribed by the Rules of Practice. 

"FrC Form ¡O-A' (rev. 1/97)' 

, TRAVEl EXPENSES . 

The Commission's Rules~f Practice,.requlre that fees and 

'milè¡ige be paid by th!' part that requested your 

appearance. You ,shouldpresen-t your claim to Counsel 

, listed in It$m 8, for payment. If you are ~eirmanently or 

temporar!ly,living SOmeWhere other than the address on 

this'subpoena-andlt.wouIÇJ'require excessive travel 
 ,for 

YO\l to appear, you must get prior app.roval from Counsel 

listed in-Ifem 8. 

This sUbpoena'aoes not require, 
 approval by OMB u~der the Paperwork "Reduction Act of 1980. , 
RETURN OF SERVICE , .
 

I hereby certify that a'duplicate original ofthe within 

subpoena was duly served: (check the method used)
 

o in person.
 

o by registered mail.
 

o by leaving,coPY at principal offcø or place of business, to wit: 

on the person named herein on:
 

(Month, day, an year
 

- - - - ~ -"- - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - ­

(Nam 01 persn 'making sell)
 

(oiclal tiUe) 
UNITED STATES OF AMERICA 

BEFORETll FEDERA TRAE COMMISSION
 

'in the Matter' of , ' ) Docket No. 9327

) Polyp ore Iiiternatio:nal, Inc., ) PUBLIC DO,CUMENT

a corporâtion. ) 

CERTIFICATE OF SERVICE . . .... .
 

I hereby certify that, On Deçember .29,2008, I callsed to be served the foregoing Subpgena 

Ad Testificandum via Certified Mail,Retu Receipt Requested lipon: 

Mr. Graeme Fra.er-Bell 

ENTEK International LLC 

250 N. Hansard Ave. 

Lebanon, OR 97355 

I hereby certi:f that on December 29,2008, I caused to be served one copy vi¡; electronic 

mail delivery and two copies via overnight mail deUvery of the foregoing .subpoena Ad
 TestificanduI UPOll:' ' 

The Hono.rable D. Michael Chappell 

Administrative Law Judge 

Fedëtal Tr~de Commission 

60pPennylvania Ave.nue,'NW
 

Washington, DC 20580 

oalj~ftc.gQV 

I hereby certify that on December 29, 2008, Ica.used to be served via first-class mail 

deliv~ry and électrömc mail deliyery ',i: 'copy ,of .the, föregoÍiig $u!JPQena Ad Testijcanila1t 

upon: 

J. Robert Robertson,. Esq. St~ven Dahm, Esq. 

Federal Trade Commssión Federal Traae Commission 

600 lçnnsyi~ana A~enue, NW 6ÓO PeDnsy1v¡;a Avenue, NW 

. WaShingto!?, pc '20580, Washigton, DC 20580 

110 bertson(qftc.gov sdah~ftc.gôv 

PPAB lS16741vl 
(ksL
 Adam C. Shearer' ' 

Park~l' Poe Adams & Bernstein LLP 

Thr~e Wach.ovia Center 

401 South Tryon 
 'Street, Suite'3000 

Charlotte, NC 28202 

Telephone: (704) 335~9050
 

Facsimile: (704) 334A706 

2 

PPAB lS1674lvl 
I 

I' 

SUBP'OENA AD TESTIFICANDUM
 

',lssued Pursuant to Rule 3.3.4(a).(1), 16 C.F.R. § 3.34(a)(1) (1'9'91) 

1. TO 2. FROM 

EN¡EK International LLC
 

250 N. Hansard ,Ave.
 

Lebanon, ,OR 97355
 UNED- STATES OF AMERICA
 

FEDERAL TRADE COMMISSION,
 

This subpoena requires you to appear i;nd give testimony, at the date 'and time 
 specified in Item 5, at the request af Counsel listed In Item 8, in the proo~edfng described in Item 6. 

3. PLACE OF HEARING 4. YOUR APPEARANCE WILL.BE BEFOR.E .
 Miller Na'sh
 ,Counsel for Respondent and a 
 person authorized ILL ,S.W. Fifth Avenue	 by law to administer ,oat~s. Portland~ Oregon ~7Z04
 

: 15. DATE AND TIME-OF HEARING OR DEPOSITION 

1/19/09 at 9:00, AM
 

'6. SUBJECT OFPROCËEDING 

I,n the Mattr ofPolypore International, Inc., Docket No. 9327 , ,
 

Pleasepesignllte and provide witnes,ses 'to testify on the s,1ibjec,ts identifieCl in the 

attached s~heauié.
 

7. ,ADMINISTRATIVE LAW JUDGE " 8. COUNSEL REQUESTING SUBPOENA 

The Honorable D. Michaèl Chappell	 Brie-Ð, Welsh ,
 

Three WachQvia Center


Suite 300 ,
 

Federal Trade Commission ' '401 South Tryon Stret," ,
 

Charlotte, Ne 28202-1935 Washington, D.C. 20ß80,
 " DATE ISSUED 

December 10, 2008 

GENERAL INSTRUCTIONS
 

APPEÁRC£ ' TRAVEL EXPl:NSIES 

The delivery of this subpoena to you bY' any method, The Commission's,Ruloo-qf Practice,require that fees and prescnbad by the Commission's Rules of Practice is' mile~ge be paid 'by th~ part that requested your ,legal 'st;rviçe, and' may subject you tò a penalty , appearance, You '$ho~ld:present your olaim to Counsel ,~rTpö$ed by law for failure to oomply:	 listed in lt~m8 for payment. If you ate ~årmanently or 

temporarily:living somewhere other than the address on 

MQr.iONTO blMIT'OR QUASH'	 this subpoena',and it.wOiJtd requirG excess,IVe travel for 

you to appear; you must get prior,app.r()val 'from Counsel The CO,mmlSsiolJ's Ri,iiøs of Practice requlret,hat any
 

listed in- Item ,8. ,
 motion ,to IlrTit or qua$h this subpoena' bé filed 
 within the earlier of 1.0 d.ays after servlèe or t,h~ time. for 

compU~qè. The Original and tel" copies of the petition 

must be filed wif~ th'e"Secretary Of the FederalTrade , 

Commiss.ion" aCGörnpariied, by;,ar affidavit of 'service, of 

the dOÇ.U!1êrit upem counsel listed in Item.8(and upon, , This subpoena does not require approvaJ by OMB under ~ii othër partie,S prescribed, by the Rules 0f Practice. the Paperwork 'Reduction Act of 19aO. , '
 

.. . 

FTC form 70-A (rev. 1197) , 
---- -- - - ------ ----- -- -------- -- --- - - ---

\. 

RETUR,N OF SERVICE
 

I hereby certify that a duplicate onginal of the within
 

subp,oena was duly served: (check Ihe method used)
 

o in person.
 

o by registered mail.
 

o by leaving, copy at pnncipal offce or place'ofb~siness. to wit: 

on t~e person named he1'n on: 

. (Mont, day, and yeri .
 

------~- ---- -- ~- ------- ---------- -- - --­ . ,
 (Nam of parsn mang selle)
 

------ - - ------ -~i~~~~~~------ - ---- - - - -­ . ,


,i 
SCHEDULE 

i. Sales by ENTEK International LLC ("ËNTEK") of lead acid battery separators during 

the period of Januar i, 2003 to the present, including but not limited to, the specific 

products sold, the amount of volume of each product sold, the prices of the 
 products sold, 

including shipment costs, if 
 any, the' dates of purchase or sale, the .end uses or 

applications of the product sold, the ENTEK plant from which such product was sold and 

the final destination of the product. 

2. The wrtten responses provided by ENT)K in response to the subpoena issued to ENTEK 

in this matter and dated October 24,2008. 

3. Any actual or potential contract between .ENTEK and Johnson Controls, Inc. ("JCI"), 

Exide Technologies ("Exide"), EnerSys, East Penn, Manufacturing Co., Inc. ("East 

Penn"), Crown Battery Manufactuing Co. ("Crown"), Trojan Battery Co. ("Trojan"), US 

Battery Co. ("US Battery"), C&D Technologies? Inc. ("CD") or any other entity 

manufacturing batteri~s for sale in Nort America from Januar i, 2003 to the present, 

inclu,ding the related contractul negotiations. 

4. Negotiations, discussions or corrunications,between ENTEK and JCI, Exide, EnerSys, 

East PeiI, Crown, Trojan, US Battery, C&D, or any other battery manufacturer 

regarding (it) any change in price of or cost surcharge for any battery separator
 

man~factued or to be manufactued by Entek (b) Polypore International, Inc. (including 

wìthout limitation Daramic, LLC) 
 ("Polypore"), (c) 
 Microporous Products, LP

("Microporous"), or (d) any other manufactuer of battery sepärators from January i, 

2003 to the present. 

5; Factors related to any change; in price or cost surcharge instituted. by -ENTEK from 

Januar i, 2003 to the present. 

6. Any consideration byENTEK of manufacturing separators for industral or deep cycle 

batteries, including any communcation between Entek and any third part regarding the 

Saie from Ja:uar 1, 2003 to the present. " ,
 

.7. The Scope of competition for battery separators for lead acid batteries from January 1, 

2003 to the present. 

8. Actu or potentialcompeiitors of ENTEK for lead acid battery separat()rsfrom Januar 

1",2003 to the present.
 

9. ENTEK's or other nianuÜictuer's sp.are of ahy market, for lead ,acid battery separators, 

including manufactuers of absorptive glass mat ("AGM") fróm JanU?ry 1, 2003 to the 

present. ' 

10. For the period of January i, 2003 to the present, 'ENTEK's expansion of any of its 

" facilties for manl1factung lead acid battéty stparators, including capacity of such 

expanded facì1ty, prodUCts to' be made from such facility, the customers fòr ,such facilty, 

PPAB lSlO2S1vl 
the cost of such expanion, and the time period covered by such expansion, including
 

star date of expansion project, commissionig date and actu or anticipated date of 

product being manufactued and sold. '
 

11. Testing or qualification by ENTEK or anyone On behalf of ENTEK of lead acid battery 

separators during the period of Januar 1,2003 to the present. 

12. ENTEK.'s consideration of or efforts'in developing alternative technology or substitutes 

to lead acid battery separators manufactued 'by Polypore, including AGM separators 

during the period of January 1, 2003 to the present. 

13. The actual or potential acquisition of Microporous by Polypore (the "acquisition"). 

14. The actual, potential or perceived effect on ENTEK's business of an acquisition of 

Microporous by Polypore. 

15. COIIuncations between ENTEK and the Federal Trade Commission regarding the 

acquisition or Polypore. 

16. Any actual or potential barier tö entr for suppliers or manufactuers oflead acid battery 

separators, including without .1initation cost of entr or achieving minimal viable .scale in 

(ii) North America and (b) the W orld for the period of Januar 1, 2003 tö the present. 

17. Any actual or potential ownership interest ofENTEK in any joint venture or other entity 

that manufactuers lead acid battery separators for the period cif Januar 1, 2003 to the 

present. 

18. Any actual or potential ownership interest of any person other than ENTEK in any joint 

venture or other entity that manufacturers lead acid battery separators including BFR for 

the period of January 1, 2003töthe present. 

2 

PPAB lSlO251vl 
UNITED STATES OF AMERICA
 

BEFORE TilE FEDERAL TRAE COMMISSION
 

In the Matter 
 of ) l)ocket No. 9327 

) P-olypore Inte~atÌ(mal, Inc., ) PUBLIC DOCUMENT 

a corp9ration. ) 

CERTiFICATE OF SERVICE , . 

I hereby certify that on Dtcember 29,2008, I caused to be served the foregoing Subpoena 

Ad Testificandum via Certified Mail Retun Receipt Requested upon: 

ENTEK International LLC 

250 N. Hansard Ave. 

Lebanon, OR 97355 

I hereby certify that on December 29,2008, I caused to be served one copy via electronic 

mail delivery' 'and two copies via overnight mail' delivery of the foregoing Sunpoena Ad 

Testificandum upon:
 

Thellonorable D. Michael Chappell
 

Adminstrative Law Judge
 

Federal Tt~de Commission 

6QO Pennsylvania Avenue, NW 

Washington, DC 20580 

oalj(êftc.gov, 

I hereby certify that on December 29, 2008; I caused t9 be served via first-class mail 

delivery ,and e1ectromc iIa,l d~liverY a copy òf the foregoing Subpoena Ad 'Jesiïcandum 

upon: 

J. Robert Robertson, Esq. Steven Dah, Esq.
 

Federal Traqe Commission Federal Trade COilission
 

" 6QO Pennylvana Avenue; NW 600 Pennylvana Avenue, NW 

, Washington"DC 20580 WaShingt.on, DC 20580 

rtobertori~ftc.gov sda1(gftc.gov , 

PPA/ lSl674Svl 
I,
 

W-ó~
 

Adim C. Sheårer
 

Parker Poe Adams & Bemstein LLP
 

Three Wachovia Center
 

401 South Tryon Street, Suite 3000
 

Charlotte, NC ,i8202
 

Tèlephone: (704) 335-9050
 

Facsimile: (704) 334-4706
 

2
 

PPAB lS1674Svl 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) Docket No. 9327 

) 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) PUBLIC DOCUMENT 

) 

TABG
 
From: DARIUS.OGLOZA(QLW.com (mailto:DARIUS.OGLOZA(QLW.com) 

Sent: Tuesday, December 30,2008 1:35 PM
 

To: Welsh, Eric D. 

Cc: Hanno.Kaiser(Qlw.com; Brett.Collns(Qlw.com 

Subject: RE: In re Polypore International, Inc., Docket No. 9327 

Eric: 

This confirms that we are authorized to accept service of your deposition subpoena, If you have 

available dates/locations for the deposition in mind, we would appreciate hearing from you as this will 

help get the ball rolling. 

From: Welsh, Eric D. (mailto:ericwelsh(Qparkerpoe.com)
 

Sent: Tuesday, December 30,20088:16 AM
 

To: Ogloza, Darius (SF)
 

Subject: In re Polypore International, Inc., Docket No. 9327
 

In connection with the above referenced matter, i wanted to let you know that I am sending out some 

deposition subpoenas for depositions of representatives of your client, Entek. As we have discussed 

before, we have certain deadlines in this matter that must be met and accordingly, I am serving the 

subpoenas now. i will certainly work with you to the extent possible on the date for the examinations, 

Please let me know if you would like me to send a copy to you and whether you would accept service on 

behalf of your client. Thank you. 

Also, with respect to the documents to be produced pursuant to the subpoena duces tecum, we obviously 

will need to receive the documents in advance of these depositions so that we can be effcient in the 

examinations, If documents are to be produced in electronic format, i ask that you please contact my 

paralegal, Timora Wilkerson, at 704-335-9521 to coordinate on formatting, which I understand would 

need to be in tiff form, Thank you for your attention to this matter. 

Best regards, 

Eric Welsh 

Eric Welsh 

Partner 

Three Wachovia Center I 401 South Tryon Street I Suite 3000 I Charlotte, NC 28202 

Phone: 704.335.9052 I Fax: 704.335.9755 I www.parkerpoe.com I vcard I map 

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U,S, federal tax advice 

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