ORIGtNAL 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFCE OF ADMISTRTIVE LAW JUGES 

)
 

In the Matter of
 ) 

) 

Polyp ore International, Inc., ) Docket No. 9327
 

a corporation, ) Public Document
 

)
 

Respondent. )
 

)
 

NON-PARTY HOLLINGSWORTH & VOSE 

COMPANY'S MOTION FOR IN CAMERA TREATMENT 

Pursuant to 16 C.F.R. § 3.45(b), non-part Hollngswort & Vose Company ("H&V") 

moves for an order requesting in camera treatment, at the hearing in this matter, of certain 

portions of documents and testimony set fort in the attached Appendix A. In support of ths 

Motion, H&V respectfully refers to the accompanying affdavit of Thomas A. Whte, and 

furter states:
 

1. H&V is a privately-held, family-owned company founded in 1843. It is a 

leading manufacturer of specialty papers and nonwoven fabrics for various commercial and 

industrial applications. H&V's Battery Products Business Unit manufactures battery 

separators, including absorptive glass mat ("AGM") separators for use in valve-regulated lead 

acid ("VRLA") batteries. H&V's AGM separators are sold to battery manufacturers for use in 

automotive, telecommunications, and uninterrptible power supply applications. The Battery
 

Products Business Unit makes other battery separators, including those for use in alkaline 

manganese batteries. Separators for alkaline manganese batteries are made of different 

materials than AGM battery separators and are used for different purposes. Discovery of 
H&V in this case has been limited to AGM battery separators. 

2. Complaint Counsel and Respondent have made numerous discovery requests of
 

H&V relating to H&V's AGM battery separator business. During the pre-complaint and 

discovery stages, H&V responded to three subpoenas for documents and made four witnesses 

available to testify. H&V designated its non-public, commercially-sensitive materials provided 

during the investigative stage as "Confdential," in accordance with 15 U.S.C. § 46(f) and 16 

C.F.R. § 4.1O(a)(2). During the course of discovery, H&V submitted materials pursuant to 

the Protective Order Governng Discovery Material entered in this matter and dated October 

23,2008, and additionally sought and obtained, by consent, a protective order specifically 

governng H&V's discovery (the "H&V Protective Order")! that provided for a "Highly 

Confidential - Outside Counsel and Expert Only" designation, on the ground that H& V was 

producing confidential documents the disclosure to Respondent which would have caused 

competitive har to H& V . Pursuant to the H& V Protective Order, these materials were not
 

permtted to be shown to anyone at Polypore International, Inc., including to the company's 

Special In-House CounseL. 

3. On March 27 and 30, 2009 respectively, Complaint Counsel and counsel for the 

Respondent identified documents and testimony provided by H& V that might be introduced 

into evidence at the hearing commencing on May 12,2009. H&V now seeks in camera 

protection for the most commercially sensitive of those documents and testimony. 

4. Under Commssion rules, documents and testimony may be granted in camera 

treatment where their disclosure wil "likely result in a clearly defined, serious injury" to the 

person or corporation whose records are involved. 16 C.F.R. § 3.45(b). "That showing can 

i The H& V Protective Order is attached hereto at Appendix B. 

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be made by establishing that the documentary evidence is 'sufficiently secret and suffciently 

material to the applicant's business that disclosure would result in serious competitive injury,' 

and then balancing that factor against the importance of the information in explaining the 

rationale of Commission decisions." In the Matter of Union Oil Co. of Cal., Dkt. No. 9305, 

2004 FTC LEXIS 197, at *1-*2 (Oct. 7, 2004) (Chappell, J.) (citations omitted). 

5. H& V has reviewed the documents and testimony designated for trial and 

carefully identified those portions containing highly proprietary, commercially-sensitive 

information, that is maintained in strict confidence by H& V and retains significant market 

value that wil be compromised if disclosed to a competitor. 

6. As discussed in greater depth in the Affidavit of Thomas A. Whte submitted in
 

support of this Motion ("White Aff. "), H&V seeks in camera treatment for the following types 

of information: 

a. Market Strategy and Product Development: Included in this category are
 

high-level strategic plannng and product development documents and testimony. This 

information constitutes the company's core secrets. (White Aff. , 5(a)). Even the
 

internal distribution of these documents is limited, often only to senior management. 

(Id.) Chief among these documents are those identifying H&V's primary strategic and 

product development initiative, the existence of which has been maintained 

confidentially with the exception of those customers who are testing a prototype 

pursuant to confidentiality agreements. (Id.) The disclosure to H&V's competitors of 

the nature of its product development efforts, the specific strategies being pursued, the 

analysis underlying H&V's strategy, or even the mere existence of this project would 

harm H&V by allowing competitors to prepare to counteract H&V's strategies. (/d.) 

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All of the documents in this category are designated "H&V Highly Confidential ­

Outside Counsel and Experts Only." (/d.) Because these documents reflect the 

company's long-term plans, which have been in place and wil continue to be 

implemented over an extended time frame, H&V seeks to protect them for a ten-year 

period. See, e.g., In the Matter of Evanston Northwestern Healthcare Corp., Dkt. No. 

9315, 2005 FTC LEXIS 38, at *19-*21 (Jan. 26, 2005) (granting ten-year in camera 

treatment to non-party's recent business plans, strategic analyses, marketing 

recommendations, and capital budget projections). 

b. Prices: H&V seeks to protect from public disclosure its pricing 

information. The H&V products relevant to ths matter - AGM battery separators ­

are largely custom-made. (White Aff. , 5(b)). Pricing for these custom products is 

negotiated on a customer-by-customer and product-by-product basis. (Id.) H&V 

protects its pricing information by entering non-disclosure agreements with customers 

so competitors do not have access to H&V's prices or negotiations. (Id.) Documents . 

produced during discovery that contained prices or that contained information 

permtting a determnation of prices were designated "Highly Confidential - Outside 

Counsel and Expert Only." (Id.) Public disclosure of H& V's pricing wil afford its 

competitors an unfair advantage in competing for business. (Id.) Since H&V's average 

pricing levels have remained relatively stable over the past five years and are expected 

to remain stable for the next five years, H&V seeks to protect its pricing information 

for a five-year period. See, e.g., In the Matter of N. Tex. Specialty Physicians, Dkt. 

No. 9312, 2004 FTC LEXIS 109, at *16-*18 (Api. 23, 2004) (Chappell, J.) (granting 

five-year in camera treatment to documents containing fee schedules and contracted 

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prices) . 

c. Sales Volume and Revenue: As a privately-held company, H&V enjoys
 

the advantage of maintaining the confidentiality of its financial information. (White 

Aff. , 5(c)). H&V does not publicly disclose general sales and revenue information, or 

sales and revenue figures at the business unt, market segment, product or regional 

leveL. (Id.) H&V's competitors do not have ready access to this information or even to 

reliable estimates of H&V's U.S. sales or revenues. (Id.) Other companies sellng 

AGM battery separators in the United States are located overseas and do not have 

sufficiently broad exposure to the marketplace to make reliable estimates of H& V's 

sales or revenue, particularly in the absence of any publicly available source for ths 

information. (Id.) Disclosure of 
 ths information to H&V's competitors would allow 

them to identify and target the largest and most profitable segments of H&V's AGM 

battery separator business. (/d. ) Documents containing sales volume and revenue 

produced in discovery were designated "Highly Confidential - Outside Counsel and 

Expert Only." (Id.) H&V's sales volume and revenue trends are expected to remain 

relatively stable over the next five years. (Id.) H&V seeks in camera treatment, for a 

period of five years, of those documents containg current volume or revenue 

information and documents containing such information for prior years where the 

information has remained relatively unchanged to the present. See In the Matter of 

Champion Spark Plug Co., Dkt. No. 9141,1982 FTC LEXIS 94, at *4-*7 (Mar. 24, 

1982) (granting in camera treatment, for between 5 and 10 years, to documents 

revealing non-party's volume of sales to specific customers and annual sales volume, 

profits, and costs).
 

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d. Market Share: H&V analyzes its share of the battery separator business 

by various product lines, market segments and geographic territories. (White Aff. ,
 

5(d)). The company's market share analyses are based upon and arise from H&V's 

actual sales volume and revenue in the particular business line, segment or geographic 

area. (Id.) H&V seeks the protection of market share information which reflects 

H&V's actual volume or revenue. H&V has been careful to select for in camera 

protection only those market share calculations that are current or that have not 

appreciably changed over time. (Id.) Market share information tht is dated and no
 

longer reflective of the current marketplace has not been designated for in camera 

treatment. (Id.) H&V's documents containing market share analysis were marked
 

"Highly Confdential - Outside Counsel and Expert Only." (Id.) H& V requests that 

these documents be subject to in camera treatment for a period of five years, consistent 

with treatment of its sales and revenue information. See, e.g., In the Matter of 

Champion Spark Plug Co., Dkt. No. 9141,1982 FTC LEXIS 85, at *3 (Api. 5,1982) 

(granting five-year in camera treatment to documents that "wil give competitors a 

definite picture of (movant's) relative size in a particular product line market which 

competitors could employ to their advantage"). 

e. Customer Information: H&V enters confidentiality agreements with 

customers and otherwise maintains a policy of preserving the confidentiality of sales 

and contractual terms, sales volumes and purchasing history of its customers. (White 

Aff. , 5(e)). During discovery and with the consent of Respondent and Complaint 

Counsel, customer names were redacted from documents; however, some documents 

identified by the parties as potential trial exhbits were produced during the 

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investigative portion of ths case and did contain customer names. (Id.) Disclosure of 

this information wil harm H& V by revealing the nature and scope of its customer 

relationships, allowing competitors to compete more effectively with respect to these 

customers. (Id. ) H& V seeks in camera treatment for a period of five years for 

documents identifying a particular customer's sales volume, purchasing history, or sales 

or contractual terms. See Champion Spark Plug Co., Dkt. No. 9141, 1982 FTC 

LEXIS 94, at *4-*5 (granting 5-year in camera treatment to document showing sales to 

specific customers). 

f. Alkaline battery separator business: Several documents designated for
 

trial contain information on H& V's market strategy and sales of battery separators for 

alkaline (as opposed to VRLA) batteries. The information contained in these 

documents concernng alkaline battery separators is maintained with strict 

confidentiality. (White Aff. , 5(f)). H&V understands that alkaline batteries and 

alkaline battery separators are not a subject of this proceeding. H& V seeks in camera 

protection for a term of five years for this information on the grounds that it is not 

relevant to the proceeding. See In the Matter of Intl Tel. & Tel. Corp., Dkt. No. 

9000, 1978 FTC LEXIS 99, at *1-*2 (Nov. 16, 1978) (in camera status granted to 

portions of documents "not relevant to any viable issue in this proceeding"). 

7. In addition to the documents and testimony discussed above, Mr. White's
 

Affidavit supporting this Motion discusses, in considerable detail, the specific information 

from the documents and testimony that H& V considers to be deserving of in camera treatment. 

In particular, Mr. White describes the nature of the company's confidential strategic plans and 

product development efforts. (See, e.g., White Aff. " 5(a), 7, 8, 11). Accordingly, H&V 

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seeks in camera protection of Mr. White's Affidavit and the accompanying exhbits for a 

period of ten years (i.e, the period of time for which in camera treatment is sought for 

strategic and product development documents). 

WHEREFORE, non-party Hollngsworth & V ose Company respectfully requests that 

(i) in camera status be granted for those portions of documents and testimony identified in the 

attached Appendix A; and (ii) in camera treatment be granted for a period of ten years to the 

accompanying Affdavit of Thomas A. White and its exhbits. 

Dated: April 8, 2009 Respectfully submitted, 

HOLLINGSWORTH & VOSE COMPANY 

By its attorneys, 

iJ(£ncl

Jonathan D. Persky 

Nutter McClennen & Fish LLP 

155 Seaport Boulevard 

World Trade Center West 

Boston, MA 02210 

Tel: (617) 439-2420 

Fax: (617) 310-9420 

E-mail: kconde(lnutter.com 

jpersky(lnutter. com 

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CERTIFICATE OF SERVICE 

I hereby certify that on April 8, 2009, I filed via overnght delivery and electronic mail 

delivery an original and two copies of 
 the foregoing Non-Party Hollingswort & Vose 

Company's Motion for In Camera Treatment 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
 

Office of the Secretary
 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135
 

Washington, DC 20580
 

secretary(lftc. gov 

I hereby certify that on April 8, 2009, I caused to be served one copy via electronic 

delivery and two copies via overnight mail delivery a copy of the foregoing Non-Party 

Hollingswort & Vose Company's Motion for In Camera Treatment upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commssion
 

600 Pennsylvania Avenue, NW
 

Washington, DC 20580
 

oalj(lftc.gov
 

I hereby certify that on April 8, 2009, I caused to be served via electronic delivery and 

first-class mail delivery a copy of the foregoing Non-Party Hollngswort & Vose Company's 

Motion for In Camera Treatment on: 

Wiliam L. Rikard, Jr., Esq. J. Robert Robertson, Esq. 

Eric D . Welsh, Esq. Steven Dah, Esq. 

Parker, Poe, Adams & Bernstein, LLP Bureau of Competition 

401 South Tryon Street, Suite 3000 Federal Trade Commssion 

Charlotte, North Carolina 28202 600 Pennsylvania A venue, NW 

willamrikard(lparkerpoe. com Washigton, DC 20580 

ericwelsh(lparkerpoe. com rrobertson(lftc. gov 

sdahm(lftc.gov 

grA 0 Ii 

/fonathan D. Persky
 

1820006.3 

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APPENDIX A
 

Documents and Testimony for Which In Camera Treatment is Sought 

Exhibit / Pages / Line Numbers 

Deposition 

RX95 HV002474 

HV002476-HV002477 

HV002487-HY002491 

HY002497 

HY002501-HY002506 

HY002509- HY002511 

HY002513- HV002520 

RX97 HY002376-HV002377 

HY002379-HY002380 

HY002388-HV002392 

HV0ü2395-HY0ü2398 

HV002400-HY002417 

HY002419-HY0ü2424 

HY002432-HY0ü2434 

HY002438 

HY002440-HY002452 

HY002454 

HY002458-HY002460 

HY002462-HY002466 

RX96 HY002525-HY002533 

RX94 HY003220-HY003226 

RX93 HY002546-HY002549 

RX98 HY003812-HY003826 

HY003828-HY003862 

HY0ü3864- HY003868 

RX382 HY0ü3208- HV003219 

RX104 HV003435-HV003437 

RX105 HY004076-HY0ü4101 

RX102 HY004072-HY004075 

RX106 HY003424-HV003430 

HY003434 

RX107 HY003464 

RX103 HY003727.1-HV003727.5 

HY003727.11 

HY003727.13 

RX363 HYOO0206-HYOO0208 

RX364 HYOO0212-HYOü0214 

RX365 HYOO0219-HYOO0221 

RX381 HY003133-HY003137 

Robert Cullen p. 205, line 9-p. 206, line 7 

Feb. 6, 2009 p. 225, line 18-p. 226, line 24 

(Y 01. II) p. 227, line 22-p. 228, line 1 

p. 228, lines 11-23 

p. 230, lines 18-20 

p. 233, lines 3-13 

p. 234, line 20-p. 235, line 16 

p. 241, line 1O-p. 242, line 17 

p. 244, line 1-p. 245, line 5 

Length of In Camera 

Treatment Requested
 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

10 years 

5 years 

10 years 

10 years 

10 years 

10 years 

10 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

5 years 

10 years 

10 years 

10 years 

10 years 

5 years 

10 years 

10 years 

5 years 

10 years 
Exhibit / Pages / Line Numbers Length of In Camera 

Deposition Treatment Requested 

p. 249, line 9-p. 251, line 4 10 years 

p. 258, lines 7-23 10 years 

p. 271, lines 3-10 10 years 

p. 275, lines 12-17 10 years 

p. 286, line 2-p. 287, line 12 5 years 

Jeffrey Jordan p. 24, line 19-p. 25, line 1 5 years 

July 30, 2008 

Kevin Porter p. 135, lines 3-25 10 years 

Feb. 4, 2009 p. 138, line 18-p. 140, line 3 10 years 

p. 145, lines 12-23 10 years 

p. 147, lines 1-17 10 years 

p. 149, line 16-p. 151, line 16 10 years 

p. 153, lines 22-24 10 years 

p. 168, lines 7-13 10 years 

Thomas White p. 52, line 23-p. 53, line 25 10 years 

Feb. 6, 2009 p. 54, lines 13-25 10 years 

1820366.3 

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APPENDIX B
 

ORIGINAL 

ITTED STATES OF AMERICA
 

FEDERAL TRADE COMMSSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

)


hi the Matter of
 )
 

)


POLYPORE INRNATIONAL, INC., ) Docket No. 9327 .
 

Respondent.
 ) 

) 

PROTECTIVE ORDER GOVERNG DISCOVERY 

FROM HOLLINGSWORTH & VOSE COMPANY 

On Februar 3, 2009, Complaint Counsel, Respondent, and non-pary Hollngsworth &
 

V ose Company ("H& V") (collectively, "the Paries") submitted a stipulation governing highly
 

confidential, proprietar, trade secret and other competitively sensitive documents from H&V
 

("H& V Highly Confidential M~teriai"'). The Pares have stipulated and agreed that in order to ' 

protect against improper use and disclosure of H& V Highly Confidential Material to officers, 

directors, employees or representatives of Respondent, it is necessar to amend the Protective 

Order Governng Discovery Material dated October 23, 2008 ("October 23 Protective Order") as 

to H& V to provide for an additional designation for highly confidential discovery material that 

shall not be disclosed to Respondent, other than to its outside counsel and its experts or 

consultants. 

Based upon the Stipulation of the Paries, it is hereby ORDERE that the October 23, 

2008 Protective Order is amended as follows: 

1. Discovery Material produced in this matter designated "H& V mGm. y
 

CONFENTIAOUTSIDE COUNSEL AN EXPERTS ONL YIFC Docket No. 9327" shall 

be disclosed only to the categories of persons identified in sub-paragraphs 9(a) - 9(d), 9(f) and 

9(k) of the October 23 Protective Order, to Complaint Counsel and to any officer, director, 

employee or representative of H& V, and any witness or deponent who authored or received the 

document in question; provided that the document reflects that the witness or deponent authored 

or received the document or counsel for H&V stipulates or otherwise agrees in writing that the 

witness or deponent was an author or recipient. 

2. Any expert or consultant receiving H&V Highly Confidential Material shall be 

provided with a copy of this Order and shall execute the acknowledgrent in the form attached 
hereto as Exhibit A. 

3. All deposition transcnpts shall be treated as Confidential Matenal in accordance
 

with the October 23 Protective Order, unless the testimony concerns a document marked H&V 

Highly Confdential or unless counsel designates testimony as H& V Highly Confidential on the 

record, in which case such testimony and any information contained in such testimony shall be 

treated as H&V Highly Confidential, in accordance with the terms of 
 this Protective Order 

Governng Discovery from Hollngsworth & V ose Company.
 

4. Except as provided otherwise herein, all H& V Highly Confidential Matenal shall
 

be treated in accordance with the terms of the October 23 Protective Order governng
 

Confidential Matenal.
 

5. Except as provided otherwise herein, the provisions of the October 23 Protective
 

Order shall remain unaltered. 

ORDERED: :tlv ~ 

. D. Michael Chappell "-

Admnistrative Law Judge 

Date: Februar 4, 2009
 

2