ORlGlNAL

Ør:E COMMI.S'

~((~RECEiVED DOCUMENTS,S104- ~ ~-'/ (53

DEe i j 2008

539'fr~

. SECRETAR'(.

UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

p

/

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation. PUBLIC

MOTION FOR AWARD OF ATTORNYS' FEES AN COSTS

AND TO LIMIT SUBPOENA SERVED BY RESPONDENT ON NON-PARTY

EnerSys respectfuly moves ths Cour for an Order directing Respondent

Polypore International, Inc. ("Respondent") to compensate EnerSys for all attorneys' and

paralegals' fees and costs incured in reviewing the documents that are potentially responsive to

a subpoena duces tecum ("Subpoena") served on EnerSys by Respondent in this proceeding, and

for the outside vendor charges incured to facilitate that review and the ultimate production of

documents.

Alternatively, EnerSys requests that the Cour order Respondent to paricipate in a

procedure proposed by EnerSys designed to reduce the uneasonable and extraordinar burden

imposed on EnerSys by the Subpoena.

EnerSys fuer requests that the Cour fuer limt the Subpaena by strking

Requests 10, 13-14, and 19-24 and modifying Paragraph 9(e) of the Protective Order dated

October 23,2008 to shield EnerSys' production from disclosure to Respondent's special inhouse counsel, Michael Shor.

In support thereof, EnerSys respectfully refers the Cour to, and incorporates by

1

sLl 890586v3/00844.00930
reference herein, the contemporaneously-filed memorandum and the Mfidavit of John Gagge

submitted therewith.

Dated: December 16, 2008 STEVENS & LEE, P.C.

i

By '_ -'~':/f .n.~~v~-

Neil C. Schur

Eugene V. Lipkowitz

1818 Market Street, 29th Floor

Philadelphia, Pennsylvana 19103

(215) 751-1944

ncsc(fstevenslee.com

evl(fstevenslee.com

2

SLl 890586v3/00844.00930
CERTIFICATE OF SERVICE

I hereby certify that on December 16, 2008, I filed via overnght courer and electronic

mail an original and two copies of the foregoing Motion of EnerSys for an Award of Attorneys'

Fees and Costs and to Limit Subpoena Served by Respondent Upon Thid Par, supporting

Memorandum and proposed Order with:

Donald S. Clark, Secreta

Offce of the Secretar

Federal Trade Commission

600 Pennsylvana Avenue, NW, Rm. H-135

Washigton, DC 20580

secretar(fftc.gov

I hereby certify that on December 16, 2008, I delivered via overnght courer and

electronic maIltwo copies of the foregoing Motion of EnerSys for an Award of Attorneys' Fees

and Costs and to Limit Subpoena Served by Respondent Upon Thd Par, supporting

Memorandum, and proposed Order to:

The Honorable D. Michael Chappell

Admstrative Law Judge

Federal Trade Commssion

600 Pennsylvana Avenue, NW

Washigton, DC 20580

oalj(fftc.gov

I hereby certify that on December 16, 2008, I served via overnght courer and electronic

mail a copy of the foregoing Motion of EnerSys for an Award of Attorneys' Fees and Costs and

to Limt Subpoena Served by Respondent Upon Thid Par, supporting Memorandum, and

proposed Order on:

Eric D. Welsh, Esquie

Parker Poe Adams & Bernstein, LLP

Thee Wachovia Center

401 S. Tryon Street, Suite 3000

Charlotte, NC 28202

ericwelsh(fparkerpoe.com

Steven A. Dah, Esquie

Federal Trade Commssion

Bureau of Competition

Mergers II Division

601 New Jersey Avenue, NW

Washigton, D.C. 20001

sdah(fftc.gov

SLl 890586v3/00844.00930
UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation. PUBLIC

MEMORAUM IN SUPPORT OF

MOTION FOR AWAR OF ATTORNYS' FEES AND COSTS

AN TO LIMIT SUBPOENA SERVED ON NON-PARTY

INTRODUCTION

EnerSys respectfully submits this memorandum in support of its motion for an

Order directing Respondent Polypore International, Inc. ("Respondent") to compensate EnerSys

for all attorneys' and paralegals' fees and costs incured in reviewig the documents that are

potentially responsive to a subpoena duces tecum ("Subpoena") served on it by Respondent in

this proceeding, and for the outside vendor charges incured to facilitate that review and the

ultimate production of documents.

Alternatively, EnerSys requests that the Cour order Respondent to paricipate in a

procedure proposed by EnerSys (described in detail below) designed to reduce the uneasonable

and extraordinar burden imposed on EnerSys by the Subpoena.

EnerSys fuer requests that the Cour fuer limt the Subpoena by strg

Requests 10, 13-14, and 19-24 and modifyng Paragraph 9(e) of the Protective Order dated

October 23,2008 to shield EnerSys' production of documents from disclosure to Respondent's

in-house counsel, Michael Shor.

As set forth below, EnerSys has already expended considerable time and

resources to comply with Respondent's broad Subpoena by gatherig approximately

200,000 potentially responsive documents in EnerSys' possession, custody or control worldwide.

1

SLl 890586v3/00844.00930
But the Subpoena imposes a fuher uneasonable and extraordinar burden on EnerSys, which is

neither a par to ths litigation nor a competitor of Respondent. The Subpoena will likely

require EnerSys to spend more than $50,000 (possibly more than $75,000) to review and produce

the documents. This is far beyond the burden a non-par under these circumstaces should be

expected to bear under F.T.C. Practice Rules and as a matter of fudamental fairess. As a

result, EnerSys respectfully asks this Cour to order Respondent to pay EnerSys the attorneys'

. and paralegals' fees and costs (or at least some sizeable portion thereof) it will incur in reviewig

the documents requested prior to their production to Respondent.

EnerSys anticipates that Respondent will point to case law rejecting requests for

cost reimbursement filed by other paries in other matters. EnerSys submits that this case is

distinguishable from those cases because EnerSys does not seek herein to recover the costs of

gatherig responsive documents, i. e., for the lost time of its employees, or to recover afer-thefact fees and costs incured. Instead, EnerSys seeks - in advance - an award of the massive outof-pocket expense it will be forced to incur for attorney and paralegal time spent reviewig the

documents. As discussed below, EnerSys fuer submits that the rationale of those cases

holding that a subpoenaed thid par must bear its own cost of compliance is somehow in

fuerance of an agency's legitimate inquir or the public interest has no application where a

respondent, rather than an agency, issues the subpoena.

Simply stated, while EnerSys is willing to absorb the not insubstatial costs of

gathering the documents as a cost of doing business, the review of the now gathered, potentially

responsive documents for relevance, attorney-client privilege and confdentiality imposes an

uneasonable and extraordinar burden on EnerSys. EnerSys has paricipated in a telephonic

"meet and confer" with Respondent's counsel and has fuher conferred via electronic mail

2

sLl 890586v3/00844.00930
correspondence, pursuant to 16 C.F.R. § 3.22(f) (2008). See Statement of Counsel Pursuant to

16 C.F.R. § 3.22(f), filed herewith. Stugly, Respondent's proposed solution to the massive

burden of attorney and paralegal review in ths matter was that EnerSys simply produce the

documents without reviewing them at alL 1 Thoughout counsel's discussions, Respondent has

been unwilling to make any meangful accommodation to EnerSys with regard to the massive

burden of paying counsel to review the now gathered, potentially responsive documents.

EnerSys, in shar contrast, has attempted to reduce the burden on both

Respondent and EnerSys by makg a balanced proposal involving three phases:

1. EnerSys would make the documents available for

inspection in its counsel's offces in Reading, Pennsylvana.

Respondent's counsel could review each document and/or search

the documents in Sumation, a softare program that allows some

searches ("Sumation"), and Respondent's counsel would select

those documents for production and, it is hoped, cull down the

production to a more manageable number of pages.

2. EnerSys' counsel would review for relevance, privilege and

confdentiality the documents selected by Respondent, and, if the

number of documents selected remains volumous, Respondent's

counsel would pay EnerSys for reasonable attorney and paralegal

time incured and for outside vendor charges. Respondent is

obviously incentivized to mie the burden by being required to

pay for the review. If Respondent selects a volume of documents

that imposes a de minimis burden on EnerSys, EnerSys would

agree not to seek fees and costs.

3. EnerSys would produce the documents about which there

was no dispute, and counsel would meet and confer regarding any

disputed documents. Any fuer dispute would be resolved by the

Cour.

Respondent flatly rejected this emiently reasonable proposal. It is apparently

willing to review all the documents now in EnerSys' counsel's possession, but does not want to

See E-mail of Neil C. Schur, Esquire to Eric D. Welsh, Esquire, dated December 12,2008, a tre and correct

copy of which is attched hereto as Exhibit 2 (rejectig Respondent's proposal that EnerSys produce the

documents without reviewing them).

3

SLl 890586v3/008444.00930
give EnerSys' counel an opportty to review the documents and is unwilling to reimburse

EnerSys for all or any par of its expenses incured in doing so (other than photocopying charges)

even if the selected documents continue to impose an uneasonable burden on EnerSys. In short,

despite EnerSys' extensive efforts to gather documents and comply with Respondent's subpoena

in ths case, as well as EnerSys' good faith efforts to reach a reasonable compromise regarding

the review, Respondent has made no meangful accommodation regarding the burden imposed

by the patently necessar review of the documents and instead, blithely dismisses EnerSys'

concerns. Apparently, Respondent fuly expects EnerSys to pay a staggerig likely bil of more

than $50,000 solely so that Respondent can obtain from EnerSys - free of charge - documents

that Respondent hopes will enable it to defend itself agaist the Federal Trade Commssion's

("F.T.C.") charges.

In view of the above, EnerSys is left with no option but to tu to ths Cour for

relief and respectflly move ths Cour to order Respondent to pay EnerSys the attorneys' and

paralegals' fees and costs EnerSys will incur in reviewig the documents called for by

Respondent's broad subpoena or accept EnerSys' proposal, set fort above.

FACTUAL BACKGROUN

EnerSys is a global manufactuer of flooded lead acid batteries headquarered at

2366 Bernvile Road, Reading, Pennsylvana 19605.

Prior to the stock purchase at issue in ths case, EnerSys purchased highperformance polyethylene battery separators from both Respondent and Microporous

Products L.P. At present, EnerSys purchases high-performance polyethylene battery separators

solely from Respondent. In short, EnerSys is a customer - not a competitor - of Respondent.

Respondent has directed a Subpoena to EnerSys (the "Subpoena"), a tre and

correct copy of which is attached hereto as Exhbit 1. EnerSys received the Subpoena from

4

SLl 890586v3/00844.00930
counel for the F.T.C. on November 7,2008. The Subpoena requests documents as set fort in

34 paragraphs, generally seeking documents generated as early as Janua 1,2003. (Ex. 1.)

Among the documents sought by the Subpoena are all documents relating to:

(a) Communcations between EnerSys, on one hand, and

Respondent, Microporous, ENTEK or any thd par, on

the other hand, regarding (a) any actu or potential

contract for lead acid battery separators, (b) any actul or

proposed change in Respondent prices and/or (c) any actul

or potential increase or decrease in the volume of lead acid

battery separators purchased from Respondent;

(b) Any actu or potential contract or agreement between

EnerSys, on one hand, and Respondent, Microporous,

ENTEK or any third par, on the other hand, for the

manufactue and sale to EnerSys of lead acid battery

separators;

(c) Any internal discussion or consideration internally at

EnerSys about EnerSys producing or manufactug lead

acid battery separators;

(d) All lead acid battery separators purchased by EnerSys from

any supplier, including but not limted to the specific,

product(s) purchased, the amount or volume of each such

product(s) purchased, the price(s) of the product(s)

purchased, the date(s) of purchase, the end use(s) or

application(s) of the product purchased and the EnerSys

plant to which such product was shipped;

(e) Units, price, square meters and product tye or brand, of all

battery separators purchased by EnerSys from any source

from Januar 1,2000 to the present; and

(f) Actual or anticipated end use or application of certai

products purchased by EnerSys and the destination of the

shipment of such product.

(Ex. 1.) The foregoing list is a sumar, not a quotation. Moreover, the foregoing list is

representative and is in no sense exhaustive. (See id)

5

SLl 890586v3/00844.00930
EnerSys determed quickly that it needed to move the Admstrative Law Judge

for an extension oftime withi which to file a motion to and including December 16, 2008. On

November 14, 2008, EnerSys filed with the Secretar of the Federal Trade Commssion a Motion

to Extend Time in Whch to Move to Limt Subpoena Served by Respondent Upon Thd Par

and to Seek Cost Reimbursement. On November 17,2008, the Cour granted that motion and

allowed EnerSys to file this motion on or before December 16, 2008.

Meanwhile, promptly upon receipt of the Subpoena, EnerSys had begu gatherig

responsive documents and electronically stored data worldwide and preparng same for

production. Certain potentially responsive documents were housed outside the United States,

and certai potentially responsive electronically stored inormation was housed outside the

United States. (Afdavit of John Gagge ("Gagge Af."), a tre and correct copy of which is

attched hereto as Exhbit 3, at ir 10.)

Respondent has received from the F.T.C. a copy of all documents EnerSys

produced to the F.T.C. in response to its subpoena, and likewise has the transcripts of the sworn

testimony of EnerSys executives John Gagge and Lar Axt, who testified at the investigative

heargs.

EnerSys executives John Gagge and Lar Burkert, along with counsel, oversaw

the gatherig of documents at EnerSys in response to the Subpoena and coordinated a worldwide

search for responsive documents. (Ex. 3, Gagge Aff. irir 5,9.) They contacted approximately

th supervisors and executives throughout EnerSys, and asked them to pass on the requests for

documents and inormation to their subordinates and coordinate the collection of potentially

responsive documents. (Ex. 3, Gagge Aff. ir 11.) As a result of those efforts, EnerSys gathered

approximately 200,000 potentially responsive pages. (Ex. 3, Gagge Af. ir 12.)

6

SLl 890586v3/00844.00930
On November 28,2008, EnerSys sent a drve contag the gathered documents

to the undersigned counsel. (Ex. 3, Gagge Af. ir 13.) Counel began its review of the

documents and quickly discovered that EnerSys had gathered approximately 200,000 pages of

responsive documents. As a result, EnerSys imediately halted the review and hied an outside

vendor to make the documents more manageable. The outside vendor loaded the documents

onto Sumation (makg them searchable to some extent), assisted with opening passwordencryted documents, and most importtly, elimated duplication, reducing the volume of the

potentially responsive documents from approximately 200,000 pages to approximately

100,000 pages or 15,500 documents. With the exception of one folder of documents that was

password-encrypted, the potentially responsive documents were loaded onto the undersigned

counsel's computer system on December 9, 2008.

On December 10, 2008, EnerSys paricipated in a meet and confer with

Respondent's counsel. EnerSys explaied the steps it had taken to comply with the Subpoena,

including the gatherig of documents as set fort above, the loading of the documents onto

Sumation, and the attempted elimation of duplication. EnerSys also objected to specific

document requests in the Subpoena, including Requests 5, 7, 10, 13-14, 17-24,31 and 33. On a

more global level, EnerSys explaied that it possessed a number of documents in which a portion

of the document was relevant but much of the document was irrelevant and contained highy

confdential proprietar information regarding EnerSys' business plans and trade secrets. As a

result, EnerSys explaied, it would obviously need to review each document carefuly to identify

and redact the irelevant and higWy sensitive inormation. Furhermore, EnerSys explained, the

fact that a business person involved in the search effort selected a document as potentially

responsive does not mean that EnerSys concedes its relevance and responsiveness or that the

7

sLl 890586v3/00844.00930
entire document is relevant or responsive. EnerSys fuher objected that the Subpoena called for

the production of documents in several foreign languges, which EnerSys would not agree to

produce without tranlation at Respondent's cost and attorney review. EnerSys fuer objected

that the documents should not be shown to Michael Shor, Respondent's in-house counsel, and

should simply be reviewed by Respondent's outside counsel. EnerSys proposed that Respondent

agree to modify Paragraph 9(e) of the Protective Order dated October 23,2008 to shield

EnerSys' production from Mr. Shor, stre certn Requests, and either: (1) agree to pay

EnerSys' attorneys' fees and costs incured in reviewig the documents and the outside vendor

charges discussed above; or (2) adopt the thee-phase proposal outlined above in an effort to

effciently review the documents and simultaneously reduce the burden on Respondent.

Both on that December 10, 2008 "meet and confer" conference call and in

electronic mail correspondence on December 12th and 13th, Respondent refused to agree to

either option. (See Email of Eric D. Welsh, Esquire to Neil C. Schur, Esquire, dated

December 12,2008, a tre and correct copy of which is attched hereto as Exhbit 4 ("I have

talked with my client and we canot agree to your proposaL").) Respondent agreed to pay

reasonable photocopying charges.

Followig that call, Respondent has agreed to withdraw Requests 5 and 7

(seekig agreements and communcations between Respondent and EnerSys) and forego the

production of documents wrtten in a languge other than English "for the time being." Most of

the more burdensome requests, however, including the requests EnerSys asks this Cour to stre,

were not able to be substatially narowed.

On December 11, 2008, the password-encryted documents were opened and

loaded onto EnerSys' counsel's computer system, adding approxiately 250 documents.

8

SLl 890586v3/00844.00930
ARGUMENT

Pertent Lee:al Authoritv

F.T.C. Practice Rule 3.31(d)(1) expressly provides that the "Admstrative Law

Judge may deny discovery or make any order which justice requires to protect a par or other

person from anoyance, embarassment, oppression, or undue burden or expense, or to prevent

undue delay in the proceeding." 16 C.F.R. § 3.31(d)(1) (2008).

The F.T.C. Practice Rules fuher authorize the Admnistrative Law Judge to limt

discovery under the followig circumstances:

The frequency or extent of use of the discovery methods otherwise

permtted under these rues shall be limted by the Admstrative

Law Judge ifhe determines that:

(i) The discovery sought is uneasonably cumulative or

duplicative, or is obtanable from some other source that is more

convenient, less burdensome, or less expensive;

(ii) The par seekig discovery has had ample opportty

by discovery in the action to obtain the inormation sought; or

(iii) The burden and expense of the proposed discovery

outweigh its likely benefit.

16 C.F.R. § 3.31(c)(1) (2008) (emphasis added).

It is equally clear that in F.T.C. proceedings, non-par witnesses may be

compensated to cover the cost of producing volumous records in response to a subpoena. Fed.

Trade Comm'n, Operating Manual (hereinafer "F.T.c. Manual') § 10.13.6.4.7.8, available at

htt://ww.ftc.gov/foia/admsta:anuals.shtm (last accessed Dec. 15,2008). The F.T.c.

Manual provides:

Thd par witnesses may move for recompense to cover the cost

of producing volumous records in response to a subpoena. When

appropriate, the ALJ s have entered such an order; in such event the

proponent of the subpoena must tender payment.

9

SLl 890586v3/00844.00930
Id

Reimbursement by the proponent of the subpoena is appropriate for costs shown

by the subpoenaed par to be uneasonable. In re Flowers Indus., Inc., No. 9148, 1982 FTC

LEXIS 96 at *16 (p.T.C. Mar. 19, 1982). "An ALJ does have the authority, in proper cases, to

condition issuance of a subpoena upon an agreement to reimburse expenses of compliance, or to

deny a motion to quash on the condition that reimbursement be made." In re Intl TeL. & Tel.

Corp., 97 F.T.C. 202, 1981 LEXIS 75 (1981). If the cost of compliance is uneasonable, the ALJ

"should require the proponent of the subpoena to cure the uneasonable burden, either by

conditionig his denial of the motion to quash upon the proponent's agreement to reimburse the

recipient so as to reduce compliance costs to a reasonable level, or (absent such an agreement) by

granting the motion to quash." Id.

Requests for cost reimbursement after compliance have been found untimely. Id.

Requests for costs of compliance may be granted, however, if a subpoenaed par begins to

comply and then later realizes the compliance costs are uneasonable. As the Admstrative

Law Judge in In re Intl Tel. & TeL. Corp explaied:

Of course, compliance costs may not be fully foreseen. A subpoena

recipient may undertake compliance with a subpoena on the belief,

which tus out to be incorrect, that the costs will be reasonable.

Therefore, the ALJ should afford the producing par the

opportty, even after compliance begins, to file a motion for a

protective order conditionig fuer compliance upon an

agreement for reimbursement of anticipated costs. The producing

party may be able to show that its experience. with partial

compliance reveals the unreasonableness of the costs of

remaining compliance. If so, the ALJ may act to relieve the

undue burden in either of the ways available to him were a

motion to quash filed: by conditioning further compliance upon

the proponent's agreement to reimburse such compliance costs,

or, if the subpoena proponent will not agree, by terminating the

obligation for further compliance.

Id. (emphasis added).

10

SLl 890586v3/00844.00930
The Federal Rules of Civil Procedure may be consulted for gudance and

interpretation ofF.T.C. Rules where no other authority exists. FT.C. Manual § 10.7. Federal

Rule of Civil Procedure 45(c)(2)(B) provides that where a par issuing a subpoena moves to

compel production of documents, the Cour "shall protect any person who is not a par ... from

signficant expense resulting from the inspection and copying commanded." FED. R. CIV. P. 45

(c)(2)(B). As Professors Wright and Miler explain:

A final protection unque to subpoenas duces tecum is to be found

in Rule 45( c )(2)(B)(ii), which protects nonparies who are required

to produce documents or materials. The provision requires that

orders compelling persons who are neither parties nor offcers of

parties to produce designated materials or permit inspection of

these materials he protected from "signifcant expense. "... The

distrct cour is not obligated to fix the costs in advance of

production, although this often will be the most satisfactory

accommodation between imposing expense on the subpoenaed

par while protecting the par seekig discovery from excessive

costs by way of an award under the rule. In some instaces, it may

be preferable to leave the matter uncertain, determing costs after

the materials have been produced, provided that the risk of this

uncertnty is disclosed fully to the discoverig par.

9A CHAES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDUR § 2463

(2008) (emphasis added and footnotes omitted).

The Court Should Order Respondent to Pay

EnerSvs' Le!!al Fees Or AcceDt EnerSvs' ProDosal

EnerSys is neither a par to this litigation nor a competitor of Respondent.

Nonetheless, EnerSys has already produced two witnesses in Washigton, D.C. to testify in ths

matter, produced hundreds of pages of documents to the F.T.C. in response to a prior subpoena,

and gone to great lengths to gather more than 15,000 documents that are potentially responsive to

Respondent's Subpoena. Only at this point does EnerSys "cry uncle" and argue the burden of

reviewing those documents is undue, uneasonable and extraordinar.

11

sLl 890586v3/00844.00930
Respondent's Subpoena forces EnerSys to pay substatial out-of-pocket costslikely more than $50,000 - to review the potentially responsive documents it has gathered in

response to Respondent's broadly-worded Subpoena. Whle EnerSys is willing to absorb limted

costs and fees incured in gathering such documents, the burden imposed by reviewing

approximately 15,500 documents, or 100,000 pages, of potentially responsive documents is

simply undue and uneasonable. Compensation of EnerSys is therefore appropriate. See In re

Flowers Indus., Inc., 1982 FTC LEXIS 96; In re Intl Tel. & TeL. Corp., 97 F.T.C. 202; FT.C

Manual § 10.13.6.4.7.8.

If ths Cour looks to case law interpreting Federal Rule of Civil Procedure for

gudance, compensation is appropriate to protect EnerSys from "signficant expense." WRIGHT

& MILLER, supra, § 2463.

EnerSys' Motion is timely because it seeks an award of its fees in advance of full

compliance (i.e., EnerSys has gathered the documents but has not yet reviewed them) and in

advance of incurng the fees and costs at issue (i.e., the fees and costs incured for reviewig

and producing the documents). In re Intl TeL. & Tel. Corp., 97 F.T.C. 202 ("The producing

par may be able to show that its experience with parial compliance reveals the

uneasonableness of the costs of remaing compliance.").

Indeed, EnerSys has come to cour seekig relief before incurg the vast

majority of the fees and costs at issue and has sought to reduce the burden on it and Respondent

by proposing a procedure that would allow Respondent to review and/or search the documents

gathered by EnerSys and select those documents it wants. EnerSys submits that many of the

documents called for by the Subpoena and gathered by EnerSys will not make any disputed fact

more or less likely and will not aid Respondent in defending itself agaist the F.T.C.'s

12

sLl 890586v3/00844.00930
allegations in this matter. See 16 C.F.R. § 3.31 (c)(1) (2008) ("Paries may obtain discovery to

the extent that it may be reasonably expected to yield inormation relevant to the allegations of

the complait, to the proposed relief, or to the defenses of any respondent.").

As a result, EnerSys' proposal that Respondent first review the documents may

substantially reduce the burden on EnerSys. If, for example, Respondent could quickly

determe that it has no interest in a certin tye of document, that determation could

potentially save EnerSys (or ultimately, Respondent) thousands of dollars in attorneys' fees.

If Respondent is ordered to pay those fees, it is incentivized to reduce them. That

incentive strctue avoids the moral hazard of allowig a par to increase the quantity,

complexity, and scope of document requests boundlessly without any regard for the costs of

gatherig and reviewig them. Respondent's broad requests here and fran unwillingness to

cooperate with EnerSys in resolving the dispute regarding the burden imposed by the necessar

document review demonstrate an utter lack of regard for the marginal and total costs imposed

upon others compelled to gather and review each potentially responsive document. (See Ex. 1.)

The appetite of an unestraied glutton for documents imposes costs upon others, and can be

readily constrained here by limting the scope ofthe Subpoena or by ordering Respondent to

adopt EnerSys' proposal.

In one relatively recent case, ths Cour found a burden not "undue" only after

substatially limiting the scope ofthe subpoena. See In re North Tex. Specialty Physicians,

F.T.C. Docket No. 9312, Order dated Januar 30,2004 (granting in par subpoenaed par's

motion to quash, and concluding: "In light of the limtations set fort below in this Order, the

burden on BCBSTX is not an undue burden."). Simlarly, here, requirig Respondent to first

review in good faith the documents in EnerSys' counsel's offces and select those documents it

13

sLl 890586v3/00844.00930
actually wishes EnerSys to produce is likely to make the burden substatially less onerous or

perhaps even not undue.

Moreover, EnerSys proposes ultimately to review these documents using junor

associates and one or more paralegals, with supervision of a shareholder, in an effort to reduce

the cost. But if Respondent could intially reduce the scope of the review and provide to

EnerSys' counsel the Sumation searches that yielded the documents it wants, EnerSys may be

able to avoid lengty reviews of certain entire categories of documents, fuer reducing the

burden. But rather than engage EnerSys in a tre, good faith discussion, Respondent has blithely

dismissed EnerSys' plainly legitimate concerns and good faith efforts to resolve the dispute

regarding burden.

EnerSys anticipates that Respondent will clai EnerSys is to blame and should

have tred to narow the scope of the Subpoena before gathering the documents. But Respondent

asked for, indeed, commanded the production of, these documents and canot now wash its

hands of the mess it has created. Request 20 is ilustrative. It seeks "All documents relating to

any testing or qualification by EnerSys of lead acid battery separators produced by any entity

other than Polypore or Micorporous." (Ex. 1 at 3, Req. 20.) When pressed, Respondent's

counsel conceded Respondent did not want actu test results but instead sought only

"sumares and status reports regarding the testing and qualification of separators/suppliers."

(Ex. 4.) No reasonable reading of Request 20 on its face would reveal that Respondent did not

want test results. (Ex. 1.) Indeed, to the contrar, a reasonable reading of that request would be

that such results were the priar category of documents it sought. (Ex. 1.) EnerSys canot

now be faulted because Respondent drafted its Subpoena inarfully or overly broadly and

EnerSys, in tu, gathered potentially responsive documents. In any event, the burden of

14

sLl 890586v3/00844.00930
searchig for such sumares may be greater than the burden of gatherig all testing documents

because each document relating to testing must be reviewed. The rub is that EnerSys responded

to the request as drafted by Respondent, and as a result, Respondent canot now complai that

EnerSys did not object and attempt to care out the most obviously responsive category of

documents from the request. Such revisionism simply makes no sense, and the burden

Respondent has created is obvious. Moreover, as the In re Int'l Tel. & Tel. Corp. opinon makes

clear, "compliance costs may not be fully foreseen. A subpoena recipient may underte

compliance with a subpoena on the belief, which tus out to be incorrect, that the costs will be

reasonable." In re Intl Tel. & Tel. Corp., 97 F.T.C. 202.

EnerSys fuer submits that the rationale, expressed in a number of opinons

denying a subpoenaed par's request for reimbursement of costs of compliance, that such

compliance is in fuherance of an agency's legitimate inquir and the public interest2 makes no

sense when a respondent, rather than the agency itself drafts and issues the subpoena. The

rationale arose in cases challenging the burdensomeness of an investigative subpoena issued by

an agency, including the F.T.C. or the Securties and Exchange Commssion,3 and has been

misapplied to cases in which a respondent drafs and issues the subpoena.

A respondent in such a case is virtally identical to a defendant in a private

litigation: it simply seeks documents to aid its defense. The respondent's discovery of such

documents fuers no "agency's legitimate inquir" and serves no "public interest" in an F.T.C.

action any more than a defendant's discovery of such documents in a private action. In both

2

In re Evanston Northwest Healthcare Corp., F.T.C. Docket No. 9315,2004 WL 3826416 (F.TC. July 7,

2004); In re North Tex. Specialty Physicians, F.T.C. Docket No. 9312, Order dated Januai 30,2004; In the

Matter of Ram bus Inc., No. 9302,2002 WL 31868184 (F.TC. Nov. 18,2002); Fed Trade Comm'n v. Dresser

Indus., Inc., No. 77-44,1977 U.S. Dist. LEXIS 16178, at *13 (D.D.C. 1977).

15

sLl 890586v3/00844.00930
cases, the subpoenaing par should bear excessive costs of compliance. The private action

would be governed by Rule 45, under which fees and costs (or a portion of them) may be shifted

to the subpoenaig par. See FED. R. CiV. P. 45(c)(2)(B). There is no compelling reason for

any different result in an agency proceeding. Assume, for example, that a private par had sued

Polypore in a United States distrct cour under Section 1 of the Sherman Act, and Polypore (as a

defendant) had served a subpoena on EnerSys. In such a case, Rule 45 would protect EnerSys

from the "signficant expense" of reviewing such a large volume of documents. See FED. R. eiv.

P.45(c)(2)(B). But here, in ths F.T.C. proceeding, Respondent asks this Cour to order EnerSys

to review and produce documents that are potentially responsive to Respondent's requests,

without Respondent contrbuting a single penny other than photocopying charges 4 or takng any

steps to mitigate the burden of the review. There is simply no rational basis for such

dramatically different treatment for a subpoena served by a respondent in an F.T.C. action and a

defendant in a private action. Accordingly, EnerSys respectfuly submits that ths Cour should

hold that the reasonig underlying those F.T.C. opinons that have denied costs to subpoenaed

paries on the basis of fuherig an agency's legitimate inqui and the public interest has no

application to cases in which a respondent - not an agency - issues and serves the subpoena.

In sum, ths case cries out for an Order of compensation, as a matter of due

process, required by the F.T.C. procedures cited above, and fudamental equity, required by our

judicial and administrative system. For all the foregoing reasons, and pursuant to the authorities

cited above, EnerSys respectfully requests that this Cour order Respondent to compensate

See, e.g., Fed Trade Comm 'n. v. Texaco, Inc., 555 F.2d 862,882 (D.C. Cir. 1977) (citig cases). Those cases

are also distinguishable because they addressed burden as a basis for quashal, rather than an award of fees and

costs. Id EnerSys does not seek to avoid discovery or quash the Subpoena in its entirety.

16

SLl 890586v3/00844.00930
EnerSys for all attorneys' and paralegals' fees and costs incured in reviewing the documents

called for by Respondent's Subpoena and for the outside vendor charges incured to facilitate

that review and the ultimate production of documents. Alternatively, EnerSys requests that the

Cour order Respondent to paricipate in the thee-phase procedure proposed by EnerSys, as set

forth above.

The Court Should Further Limit the SubDoena

In addition to the limtation identified above (requiring Respondent to either pay

EnerSys' costs of compliance or accept EnerSys' proposal to reduce the burden), EnerSys

respectfuly requests that the Cour fuher limt the Subpoena as follows.

First, EnerSys requests that the Cour strke Requests 10, 13-14, and 19-24.

(Ex. 1.) These Requests are overly broad and unduly burdensome. For example, the amount of

EnerSys' purchases of battery separators, the price paid, and the dates of purchase are simply

irrelevant to whether Respondent hared competition by acquirg Microporous. (See Ex. 1 at

Req. 10, 13-14.)

Simlarly, while testing of battery separators may be relevant to the issue of

barers to entr, Respondent's request for all documents "relating to any testing or qualification

by EnerSys oflead acid battery separators" manufactued by anyone (see Ex. 1 at Req. 19-20) is

vastly overbroad. Respondent's crytic proposal to limt its request afer the fact to "sumares

and status reports regarding the testing and qualification of separators/suppliers" (see Ex. 4) does

not reduce the burden on EnerSys at this stage, and would not have reduced the burden of review

if initially requested in this maner because extensive review of large volumes of documents is

4

It is unclear what charges are included in "photocopying charges", as document productions of this size are

tyically made electronically without any photocopying. To date, Respondent has not offered to cover

EnerSys' outside vendor charges, paralegals' fees, or Inormation Technology employees' tie spent loading

and organizing the documents, which EnerSys submits are analogous to photocopying charges.

17

SLl 890586v3/00844.00930
stil required by the request - even as narowed. Also, because it is unclear what Respondent's

counsel will view as "sumares and status reports," EnerSys may go to great lengts to exclude

all other testing documents only to be faced with a complaint from Respondent's counel that the

production was incomplete or improper.

More importtly, the revised Request remains unduly burdensome because

EnerSys' sumares and status reports of its testing are highy unikely to be relevant to ths

case, as explained below, and the burden outweighs the relevance. See 16 C.F.R. § 3.31 (2008)

(empowering an Admstrative Law Judge to limt discovery where the "burden and expense of

the proposed discovery outweigh its likely benefit."). A tyical sumar or status report of tests

of separators will not reveal or even address the lead time for such testing, which will drve the

analysis of barers to entry. (Ex. 3, Gagge Mf. ir 14.) Instead, such a document will sumarze

the results of the tests or trends in the results, or the status of the testing (see Ex. 3, Gagge Mf.

ir 14), an entirely different topic that will not aid Respondent, the F.T.C. or the Cour one iota.

Requests 21 and 23 (seeking all documents regarding "any tye of battery

separator" or any manufactuer oflead acid battery separators will inevitably captue literally

tens ofthousands of documents that are entirely irelevant to ths case. (See Ex. 1 at Reqs. 21,

23.) They are by no means narowly tailored to gather only those documents that are relevant or

reasonably expected to yield inormation relevant to the allegations of the complaint, to the

proposed relief, or to the defenses of any respondent, see 16 C.F.R. § 3.31 (c)(1) (2008).

Request 22 is simply incoherent and incapable of a response as phrased. Viewed

another way, EnerSys has no documents regarding the "products comprising lead acid battery

separators." (See Ex. 1 at Req. 22.)

18

SLl 890586v3/00844.00930
The Cour should stre these Requests because they impose an uneasonable and

extraordinar burden on EnerSys. See In re North Tex. Specialty Physicians, F.T.C. Docket

No. 9312, Order dated Januar 30, 2004 (granting in par subpoenaed par's motion to quah,

and concluding: "In light of the limtations set forth below in this Order, the burden on BCBSTX

is not an undue burden.").

Finally, EnerSys respectfully requests that the Cour modify Paragraph 9( e) of the

Protective Order dated October 23,2008 to shield EnerSys' production from disclosure to

Respondent's in-house counsel, Michael Shor. EnerSys is aware that Respondent has made

representations to ths Cour regarding Mr. Shor's role in Respondent's business operations and

pledged that he will not negotiate contracts for two years. Although EnerSys is not a competitor

of Respondent, many ofthe documents called for by the Subpoena contai higWy sensitive,

confdential inormation regarding pricing (including EnerSys' internal analysis and strategy

regarding the prices EnerSys pays Respondent) as well as testing of battery separators and efforts

to find an alternative source of polyethylene battery separators. Respondent is represented by

competent counsel, and there is simply no need for EnerSys' confdential documents to be

reviewed by Respondent's in-house counsel, Mr. Shor. Respondent has offered to shield the

production from Mr. Shor only ifEnerSys and Respondent reach a global resolution of ths

dispute. As a result, EnerSys is compelled to respectfully seek ths relief from the Cour.

CONCLUSION

For all the foregoing reasons, EnerSys respectfully requests that the Cour enter

one of the two Orders submitted herewith, directing Respondent to compensate EnerSys for all

attorneys' and paralegals' fees and costs incured in reviewig the potentially responsive

documents, and for the outside vendor charges incured to facilitate that review and the ultimate

production of documents. Alternatively, EnerSys requests that the Cour order Respondent to

19

sLl 890586v3/00844.00930
paricipate in the procedure described above. EnerSys fuer respectfully requests that the

Cour fuher limt the Subpoena by strg Requests 10, 13-14, and 19-24 and modifying

Paragraph 9(e) of the Protective Order dated October 23,2008 to shield EnerSys' production of

documents from disclosure to Respondent's in-house counsel, Michael Shor.

Dated: December 16, 2008 STEVENS & LEE, P.C.

By /¿ ¡, ,

Neil C. Schur

Eugene V. Lipkowitz

1818 Market Street, 29th Floor

Philadelphia, Pennsylvana 19103

(215) 751-1944

ncsc(fstevenslee.com

evl(fstevenslee.com

20

SLl 890586v3/00844.00930

SU.BF'OEENA Dl./CEES TEECUM

Issued Pursuant to Rule3.34(b),16C.F.R.§ 3.34(b)(1997)

1. TO

EnerSys

2366 Bernville Road

Reading, PA 19605 UNTEJ) STATES OF . AMERICA

FEDERAL TRADE COMMISSION

This subpoena requires you to produce andpermitinspection and.copying.of designated books. 

documents defined in Rule3.34(b)), or tangible things-or top~rmit.inspectionof premises-at the dateandtirne, specified (as

in Item 5, at the request of Counsel listed in Item 9; in the proceeding described in Item 6.

3. F'L.ëE ÖFPRODUCTIONOR INSPECTION 4. MATERIAL WILL BE PRODUCED TO

Parkër PoeAdams & Bernstein, LLP Polypore International, Inc.

ThreeWachovia Ceriter

401 S.Tryon Street, Suite 3000

CHarlotte, NC 28202

In the Matter ofP01ypore Interntionii, Inc., Docket No. 9327

7. MATERIAL TO BE PRODUCED

See Attached Requests , Instructions and Definitions .

8; . ADMINISTRATIVE LAW JUDGE

The HonorableD. MïchaerChappell

Eric D.' Welsh

(704) 335-9052 Federal Trade Commission

Washington, D.C. 20580

DATE ISSUED SECRETARS SIGNA7 f!

Oct ob,e r 24, 2 008

APPEARANCE

The delivery ofthis subpoena to you by any method

prescribed by the Commission's Rules of Practice is

legal service and may subject you to a penalty

impose.d by Jaw for failure to comply.

MOTION TO LIMIT OR QUASH

The Commission's Rules of Practice require that any

motion to limit or quash this subpoena be filed within

the ea' of 10 days after service or the time for..

coinpli The original and ten copies ofthe petition

mUs d with the Secret ry of the Feeeral Trade

Co n, accompani an affdavit of service of

the document upon coun ,e ted in Item 9, and upon.

all other parties prescribed by the Rules of Practice.

TRAVEL EXPENSES

The Commission's Rules of Practice require that fees and

mileage be paid by the part that requested your.

appearance. You should present your claim to counsel

listed in Item 9 for payment. If you are permanently or

temporarily livirig somewhere other than the address on

this subpoena and it would require excessive travel for

you to appear, you must get prior approval from counsel listed in Item 9. . ..

This subpoena. does not require approval by OMB under

the Paperwork Reduction Act 0(1980,

FTC Form 70-8 (rev. 1/97)
SUBPOENA DUCES TECUM ISSUED. TO ENERSYS .

ON BEHALF OF POL YPORE INTERNATIONAL, INC.

. FTC DOCKET NO. 9327

EXHIBIT A

I. . REQUESTS

1. . All documents (including without limitation internal emaIl or other' written

. . communication at EnerSy~). relating tt? any communication between .EnerSys and Polypore

regarding (a) any actual or potential contract for lead acid battery s~parators, (b) any actual or

proposed change inPolypore. prices and/or (c) aiyactual or potential increase- or decrease in the

volume oflead acid battery separators purchased from Polypore.' '.

2. All documents (including without limitation internal email or' other wrtteIi

communication at EnerSys) relating to any communcation between EnerSys and Microporous

regarding (a) any actual or potential contract for lèad acid battçry separators, (b) actual or

proposed pricing of lead acid battery separators by Microporous, (c ) actual or proposed

development and/or testing of lead acid bàtter)' separators or (d)Pólyp()re.

_ 3...' All documents (including without limitation internal.email or other written

cormunication at- EnerSys) relating 'to aDycommuncatioh between EnerSys ard ENTEK

regarding (a) any actual or potential contract for lead acid battery separators, (b) actual or

proposed prices for lead acid battery separators byENTEK, (c) actUai or proposed development

and/or testing oflead acidbatterY,separatörs,(d) Microporoùs or (e) Polypore.

4. All documents (including without limitation internal email or other written

communcation at EnerSys). relating t9 any communication between EnerSys andány-Third Par

other than Polypore, Microporousor ENTEK regarding (a)- any.actuaJ . or potential contract . for

lead acid battery sepaIators~ (b) actual Or potential pricesföt lead acid battery separators, (c)

actual ör proposed devølopitent _ aDd/or testirig Of lead Çlcid battery separators, (d) Microporous,.

(e) ENTEKor (f) Polypore; / \

agreement between' EnerSys . and Polypore for themanufaçture and' sale by Polypore to EnerSys

. 5.. Aii documents- constituting or reflecting any actul. or potential contract or . . . .. .' . r

, of lead aeidbatteryséparators. . .

6. _ . All .docUmentsconstituting orr.eflectihg any actul or potential 'contract or

agreement between EnerSys-and ENTEKfor the.manufactueand sale by ENTEK to EilerSys of

/ lead acid battery separators.

7. .. - All documents 'constluting or reflecting any actual or potential contract or

- agreement between EnerSys and Microporotls för the manufactue and saleby'Microporous to

EnerSys of leadaeid battery separators. .

I

PPAB 1495312vl - .
8. All docwneriíS constitlting or reflecting any actul or potential contract or

agreement between EntrSys ard ahýThirdParQther thaI ENTEK, Pólyporeor Microporous

for the manufactue ånd sale by.any such Thìd Pary . .to EnèrSys, . . of lead acid battery separators.

9. All documents reflecting anydiscu~sion oi:consideration internally at EnerSys

. about EnerSys producing or.. mtÏufactming leaqàeid battØri separators whether in response to

Polypore's actual Òr ¡rótential åCauisitioh of Microporous, anyacttial or .potentialchange in price

of lead acid battery. separators or, otherwse.

. .

.10. AlI doc~entsoi any. database r~fleciirig 'ali lead àcid batteI'separators

purchased by EnerSysftomanysuppliei, induding butnot limited to the speeifiç,product(s) .

. purchased, the amount or volume of each such product(s) purchased, theprice(s) of the

product(s) purchas~d,the date(s)of purchase, the end use(s) or application(s) of the product

purch.ased and the ÉnerSys plant to which such product was shipped. .

1 i. . All docuients relating'to any consideration by EnerSys or any Third Par to

sponsor, finance or support entr or expansion of a battery separator business in (a) Nort

America or (b) the world

12. All docwnents discussing, describing 0),. reflecting any actua or potential

ownership interest of EnerSys in any joint venture. or. other entity that rranufactures lead. acid

battery separators:

. .

13. . All documents discussing, describing or reflecting, by dollar amount, units, price,

square meters anqproduct type or brand, all battery separators purchased by EnerSys from any

SOUrce from Januar 1,,2000 to the present...

14. For all product responsive to Request No. 13, all documents reflecting the actual

or anticipated end use or application of the product purchased by EnerSys and the destination of

the shipment of such product. .

. 15. AU docwnents discussing, describjIigor reflecting any internal discussions,

communcations or co.nside;ration given by EnerSys tbpurcliasing or acquiring a supplier of lead

acid batterysl?P.arators, entering into a joint veptUre orsirnilar relationship for the supply of lead

add battery separators, EnerSys.. . or building a plant to manufacture lead acid battery separators for use by

16, All documents discussing, describing or reflecting any actual or potential .entrant

in the manufactuing of lead acid battery separators. '

.17. All dQcl,ents rélating toany :company or entity that enteredQi: was viewed as a

pptentialentrant into the production and sal~ of lead aCid :battery separators.

18. All docwn~nts relating to anya.çt4a.1 Qr potentiaLbarer to entr for supplicirsor

maniifacturersQf lead açid battery separtors, ,inçluciingwithöut limitatión,çosts of entry or

achieving minimum viable, scale; in (a) Nort America and (b) the wörld. .

19. . All docUIents relating tq anyt~sting OJ;. qua.lifjqitjpp by.EnerSys. of le~dacid

batterys~parators' manufaptued py,.Polypo.rew :Micr~PQroiis. . . 2. \

PPAB.1495312vl
20. All documents relatiig to any testing or qualification by EnerSys of lead acid

battery separatorspro~uced by any entity other than Polypore or Micro~orous.

21.

separators.

All docUments reflecting or discussing any manufactuer of lead acid battery

22. All documents describing, discussing or reflecting by brand name or manufacturer

the products comprising lead acid battery. separators including those products used. for the

following end. uses or applicatioI1s: golf car or car; floor scrubber or sweeper; automotive;

motorcycle; truck; train; fork lift; pallet trck; submarine; uninterrpted power supply for

hospitals, telephone companies and other uses; motive; industrial~ marne; stationar; and/or nuclear power plant. .

23; All documents discussing or referring to any type of battery separator, including

AGMseparators, otherthar those used in flooded lead a:ddbátteries.

24. All documents describing, discussing or reflecting products that are or might be

competitive with lead acid battery separators including those proancts used for the following end

uses or applications: golf car or car; f1oor scrubber or sweeper; automotive; motorcycle;. trck;

train; fork lift; pallet trck; subInarne; uninterrpted power supply for hos.pitals, telephone

companies and other uses; motive; inaustrial; marine; stationary; and/or nuclear power plant.

. .

25. Documents discussing or describing any technology used ip. the manufactue of.

battery separators for lead acid batteries. . .

. 28. All docunents reflectingany proaiict or technology that is a substitute for lead

acid battery separators manufactur~dby p'olypore or lVicropórous, inëluding but not limited to,

any substitute product or technology. considered by EnetSys as an altematê technology for lead

acid battery separators manufactued by 'polypnre or Microporous.

29. AU docure.ntsreferi:,ng tOOT dis.cussing other. soUrces of lead acid battery

separators that EnerSys CQuld Qnnight be ab.le to us-e to replace Polypore as a source of supply. .. - . .. '.

30. All documents' referring to or discussing Polypore's past, present or futue

competitive position in the lead acid battery separator business. .

31. All documents relating to any actual or perceived advantage to EnerSys of the

location of its lead acid battery supplier,

..

32. . All documents, including affidavits and statements, which EnerSys provided to

the FTC relating in any way to PoJypore.

3

PPAB 1495312vl
33. A copy of any trarscript of any testiony; deposition or investigational hearng

conducted in the Polypore Matter.

34. All documei;ts evidencing, relating or referring to cornunications between the

FTC and EnerSysrelating'iil any way to Polypore or Microporous.

'..'

4

PPAB 1495312vl
II. INSTRUCTIONS AND DEFINITIONS

1. "Document" means the complete original or a tre, correçt and complete copy and any

non-identical copies of any wrtten or graphic matter, no matter how produced, recorded, stored

or reproduced, including,. but not limited to, any writing, letter, e-mail, envelope, telegram,

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

study, handwrtten note, workig paper, char, index tabulation, graph, tape, data sheet, data

processing card, printout, microfim, . index; computer readable media. or other electronically

ì

stored data, appointment book, diary, diary entr, oalendar, desk pad, t(llephone message slip, . .' .

note of interview or communication or any other data compilation in YOlir possession, custody or

control, including all drafts or all such documents. "Document" also includes every writing,

drawing, graph, chai, photograph,phono record, ú;pe and other data compilations from which

information can. be obtained, translated, if n~cessar, by EnerSys through detection devices into

reasonably usable form, aId includes all draft and . .

all copies öf every such writing or record that

contan any comrentary, notes, or marking whatsoever n~t appearing on the originaL.

2. "Y ~)Ul' "your;' ard "EnerSys" for pUroses of this request, meaIS- EnerSys or ány of its

.. . . parents, 

attorneys, employees, consultats' and 

divisions, subdivisions,subsidiaries,affiiätes,òffcers, directors or managing agents,.

. . . -. . agërits, as welIas. any predecessors in interest, and all

other persons acting o~ purporting to act on its behalf.

3. "PolyPore" for the-'purposes Ofthisrèquest,rrearisthePolyPore Intemàtionill, hic.. and

.": ....... ".' . ." . . .

any subsidiar' or division thereof; iiichidirig Without limitation,' Ùaramic, LLC, and their

respective employees. . . . ..' .

4. "Microporous'; for the pUroses of thisreauest, IIe~s the Mictoporotis. Products, L.P.,

. .

and . ary affiliate, subsidiaròrdivision' thereof, . and theiÏ" respecti'veeriplòyees,' offcers,

directors, parnèrs, attorneys and . agérits;

5

PPAB 1495312vl
5. "ENETK" för the puroses of this request, means the ENTEK Inteiiational LLC, and any

. affiiate, subsidiar or division thereof, and their respective employees" officers, directors,

parers, attorneys and agents.

6. "FTC" means the Federal Trade Commission, and any of its directors, commissioners,

employees, consultats and agents.

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

0131 and this Administrative Proceeding, DocketNo. 9327.

8. "Investigation" means anyFTC investigation~ whether fomial or informal, public or nonpublic.

9. "Third Pary" meanS any person; corporate entity; parership; association; joint ventue;

state, federal or Iocal govemmentalagericy, äutlóriN or offciaf; research 'ör trade association; or

" '

any other-entity other than Ener8)'s or any of its subsidiares.

10. "Complaint" means the Complaint issued by the Federal Trade Commission to Polypore

International, Inc. in Docket No. 9327.

11. ' "Relating to" means hi whole or in par constituting, containìng, concerning, discllssing, ,

describing, analyzing, identifYing or stating.' ·

12. Unless otherwse státed,the' i:eiévah(tirre period for these requests is January J, 2003 to , , '

the present.

1 J. " The use of the singular shá11 be deemed to include the plural and vice versa.

both, dependingoiithe 'context, .;:0 as toha'Vetheir broadestineäririg;: "

14. The terms "ard'~aíd "or" shari beirterprèted libérEÙly ascorijunctive, disjunctive, or

. . ..,

15. 'Whenever necessar,' to biihgWIthín thë" scope of arequèst all dOCUlmmts that might , ' '

. .. - .. ,_... -" . '. . . ..' , ,otherwse be constred tò b,e outside its scope, the use öfa verb 'in aiý'tense sliall be construed as

I.

the use of the verb ii1all other tenses.

6

PPAB 1495312vl
16. The tenn "all" includes any anf! vice versa.

17. If you object to any par of a document request under the FTC Rules of Practice §3.37(b),

set fort the basis for your objection and respond.to all par of the document request to whicli

you do not object. No par of a document request shall be left unanwered merely because.ai

objectiön is interposed to another par of a document request -

18. ira document databaseIs prov~ded, proviaean explanation of the definitions used and the

fields existing in such database.

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

shall be produced in their entirety, including all attachments, enclosurès, cover memoranda and

post-it notes.

20. If any privilege 

such document withheld on 

is claimed as a. ground for not producing any document, provide for each

the basis of privilege- allïnforiation required '. . ~by FTC Rules of

Practice §3.38A.

21. In the event that any responsive. . .

document was, but is no longer in your possession, state

whaf disposition was made ofit, when, and the reason for such disposition. In the event that a

responsive document hasb~en destroyed or retued to. . . . .

a Third Pary, state (i) the reason for such

document's destrCtion or retur, the date on which the document was destroyed or retued, and

the Third Pary to whom thê document was retured ,or. on whose. behalf the document was . ", . -

destroyed; (ii) the .nai~,. titë; and. location thereof within E~erSys of the individual in whose

.possession, custody or control the document was when it was destroyed or retued; and (iii) the

name, title, and locatioriìliereöf witliinEnerSys. of the individ~alwhodestroyed or retùed. the

document.

22~ These document requests are continuing in nature, up to and during the course of the . .' .'- -. .- . adjudicative hearng. All docWnents soughfbythese requésts that yóùobtairi or locate afer you

"

7-

PPAB 14953 12~1
serve your responses must be immediately produced to counsel for .Polypore by supplementa

response.

\

)

8

PPAB 1495312vl
CERTIFICATE OF SERVICE

I hereby certify that on November. 6, 2008, I .caused.acopy. ofa.Subpoena Duces Tecum

directed to ßnerSys to be served upon the following persons, at the addresses and through the

means noted below:

ViãCertfied Mail:

EherSys

2366 Bernvile Road

Readirig,PA .19605

1. Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

rroberton~ftc. gov

Steven Dah, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

sdah~ftc.gov

ViaElectroliicMail:

~
ff ~(Q ff:DJ

UNTED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

In the Matter of

)

)

) Docket No. 9327

)

)

)

Polypore International) Ine.

. a corporation.

. PROTECTIVE ORDER GOVERNING DISCOVERY MATERIL

For the purpose of protecting the interests of the Parties and Third Paries in the abovecaptioned matter against improper use and disclosure of confidential information submitted or

produced in connection 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 ofthis Protective Order, the following definitions apply:

i. "Confidential Material" shall mea all Discovery Material that is confidential or

proprietar irionnation produced in discovery. Such material is referred to in, and protected by,

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

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

C.F;R. §§ 4.9, 4.10; and precedents. thereunder. Confidential Materialshatl inClUde nOIi-~ublic

trade secret or. other research,development, commercÎal or financial information, the disclosure

of which would likely cause commercial han to the Producing Pary or to Respondent. The
following is a non-exhaustive list of examples of information that likely wil qualify for

treatment as Confidential Material: strategic 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; trade secrets; customer.;specificevaluations or

data (e:g."prices, volumes, or revenues); sales contracts; system maps; personnel fies and

evaluations; information subject to confdentiality or non-disclosure agreements; proprietary

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

consumer, customer, or: market research or analyses applicable to current or futue market

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

not be considered confidential ifit is.in the public domain.

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

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

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

envelope, telegraph, e-mail, meeting minute, memorandum, statement, affidavit; decIaration,

transcript of oraJ testimony, book, retord, survey, map, study; handwrtten note, working paper,

char, index, tabulation, graph, drawing, char printout, microfim index:, computer readable

media or other electronically stored data appointment book, diary, diar entr, calendar,

organizer, desk pad, telephC!ne message slip, note of interview or communication, and any other

data compilation from which .infonration can be obtained, and includes all drafts and all copies

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

whatsoever not appearng on the originaL.

3. . "Discovery Material" include.s without limitation deposition testimony, exhibits,

interrogatory responses, admissions; affidavits, declarations, Documents, tangible thing or . .

-2-

)
answers tõ questions produced pursuant to compulsory process or voluntarly in lieu thereof,

. and any other Documents or information produced or given to one Part by another Part or by a

Third Par in connection withdiscoveryjn this Matter. Information taken from Discovery

Material that reveals its substance shall also be considered Discovery MateriaL.

4. "Commission" shall refer to the Federal Trade Commission, or any ofit~

employees, agents, attorIeys,and all other persons acting on its behalf, excluding persons .

retained as consultants or experts for purposes of this proceeding.

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

and subsidiaries, and all pei:sons acting or purporting to act on its behalf.

6. "Respondent" means Polypore.

7. . "Par" means the Commission or Polypore.

8. "Third Pary" means any natural person, partnership, corporatìon, 'association, or.

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

attorneys and agents.

9. "Producing Par" means a Par or Third Par that produced or intends to

produçe Confidential Material to any of the Paries. With respect to Confidential Material ora

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

I

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

material to the FTC: The Producing Part shall mean the FTC for purposes of any Document or

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

10. "Matter" means the above captioned matter pending before the Federal Trade

. Comnission, and all subsequent administrative, appellate or other review proceedings related'

thereto.

-3-
T£RMS AND CONDITIONS OF PROTECTIVE ORDER

I. Any Document or portion thereof submitted by Respondent or a Third Par

during the Federal Trade Commission ("FTC") investigation preceding this Matter or during the

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

Commission Act, Or any regulation, interpretation, or precedent concerning documents in the

possession of the COrhission, as we! I as any infonnaiion taken from any portion of such

document, shall be treated as Confidential Material for purposes of this PrQtectiye Order. For

purposes oftrus Protective Order, the identity ora Third Part submitting such Confidential

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

wrting such confidential treatment.

2. The Parties and any Third Paries,. in complying with införma! discovery requests,

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

responsive document or portion thereof Confidential Material, including documents obtained by

them from Third Paries pursuant to discovery or as otherwse obtained.

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

Third Par a copy of this Protective Order so as tö inform each such Third Par of his, her or its.

rights herein.

4. A designation of confidentiality shall constitute 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 mÇiterial so designated constitutes Confidential Material as

defined in Paragrph 1 of the Definitions or this Protective Order. All deposition transcripts

-4-
shall be trated as Confidential MateriaL.

5. If any Part seeks to challenge the Producing Par's designation of material as

Confdential Maten~l, the challenging Par shall notify the Pr~ducing Par\.and all other Paries

ofthe 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.

. materials) the designation being challenged. The Producing Par may preserve its designation

by providing the challenging Par and all other Parties a written statement of . .. .) the reasons for the

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

the Producing Pary tim~ly preserves its .rights, the Paries shall continue to treat the challenged

material as Confidential Materials, absent a wrtten agreement with the Pr~ducing Par or 

order

oftheCommission providing otherwise.

6. . If any conflct regarding a confidentiality designation arses and the Paries and

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

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

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

Producing Par and the othet Paries to this Matter, and shall be accompanied by a certification

that good-faith negotiations have failed to resolve the outstanding issues. The Producing Party

and any other Part shall have five (5) business days after receiving a copy of the qiotion to .

respond to the application. While an application ìs pending, the Paries shall maintain the preapplication status of the Confidential MateriaL. Nothing in this Protective Order shall create a

. . .

presumption or alter the burden ofpersuadii:g the hearing öfficer otthe propriety ora requested

dtsclosure or change in designation.

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

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

r'

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

permission to disclose such material to Persons not otherwise entitled to access under the terms

of tms Protective Order. If Confdential Material is produced without the designation attached,

the material shall be treated as Confidential from -the time the Producing Par advises

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

designated and provides all the Paries with an appropriately labeled 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 affixing to the dOèument containing such material (in such maimer as wil not interfere with

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

affixing to that folder or box, the designation "CONFIDENTIAL-FTC Docket No. 9327" or any

other appropriate notice that considered to be confidential materiaL. Confidential infonnation

contained in electronic documents may also be designated as confdential by placing 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 designation of "CONFIDENTIAL-FTC Docket No. 9327"

shall not be required for confidentiality to apply tò documents and irionnation previously .

)

produced voluntaily or pursuant to a Civil Investigative Demand or subpoena during the

investigational phrse preceding this Matter for which coridential treatment was requested.

Masked or otherwise redacted copies of documents may be produced wherè the .portions deleted

~6-
contain privileged matter, provided that the copy produced shall indicate at the appropriate 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, persòJUelassisting the Administrative Law Judge, the

Commission and its employees, and personnel retaine;d by the commission as experts or

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

jurisdiction over any appellate proceedings involving this matter, (ò) cour reporters in this

matter, (d) outside counsel of record for Respondent, its associated attorneys and other

. employees of its law Hrt(S), provided they are not employees of Respondent, (e) Michael Shor,

. Polypore Special CouIlsel, (t) anyone retained to assist outside counsel in the preparation of

hearing ofthis proceeding including consultants, provided they are not affliated in any way with

Respondent and have. signed Exhibit A hereto, (g) any witness or depo~ent who may have

atithored or received the information in question; (h) any individual who was in the direct chain

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

that this provisiori does not permit disclosure ofIndustrial Growth parer or Warburg Pincus

International documents tö Polypore or former Microporous persoimel who would not otherwise

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

received the Discovery Mateiial; G) anyone representing the author or recipient of the Discovery

. Material in this Matter; and (k) any other Person(s) authorized in wrting by the Producing Par.

/.

i O. Disclosure of confidential material to any person described iri Paragraph 9.ofthis

Protective Order shall be öriy for the purposes öf the preparation and hearng of this Matter, or

any'~ppeal therefrom, and for rió other purse whatsoever; provided; however, that the

-7-
1 I. In the event that any Confidential Material is contained in any pleading, motion

exhibit or other paper filed or to be filed with the Secretary of the Commission, the Secretary

shall be so informed by the 'párt fiing such papers; and such papers shall be filed under seaL.

To the extent-hat such material was .originally submitted by a Third Party, the Part including

the Matèrials in its papers shall immediately notify the submitter of such inclusion. Confidential

Materiài contained in the papers shall remain under seal until further o~der of the Administrative

Law Judge; provided, however, that such papers may be furnished to persons or entities who

may receive Confidential Materiai.pursuant to Paragraphs 9 or 10. Upon or after fiing any

paper containing Confidential Material, the filing part shall fie orithe public record a duplicate

. copy of the paper that does not reveal confidential materiaL. Further, if the protection of any

su.ch material expires, a Part may fie on the public reèord a .duplicate copy which also contains.

the formerly protected IWfteriaL. .

12. If cöunsel plans to introduce jnto evidence at the hearng any document or

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

shall provide ten (l 0) days advance notice to the other Par or Third Par for purposes of

allowing that Par or Third Par to seek an order that the document or transcript be grted in

camera treatment. If that Par or Third Par wishes in camera treatment for the document or

transcript; the Par or Third Par shall fie an appropriate motion with the Administrative Law

-8-
Judge. Where in camera treatment is grted, a duplicflte copy of such döcument or trancript

. with the Confidential Material deleted therefrom may be placed on the public rec.ord.

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

the disclosure of Confidential Material submitted by another Par or Third Par, the recipient

of the discovery request shall promptly notify the submitter of receipt of such request. Unless a

shorter time is mandated by an order of a court, such notification shall be in writing aid be

receÍved by the submitter at least 10 business days before production, and shall include a copy of

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

Nothing herein shall be construed as requiring the recipient of the discovery reque~t or anyone

else covered by ths Order to challenge or appeal any order requiring production of Confidential

Material, to subject itselfto any penalties for non-compliance with any such order, or to seek any

relieffrom.theAdministrative Law Judge or the Commission. The recipient shall not oppose the

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

herein shall limit the applicability of RuleA.ll(e) of the Commission's Rules of Practice, 16

C.F.R. §4.1I(e), to discovery requests in another ptoceedingthat.are directed to the Commission.

14. At the time that any consultant or other person retained to assist counsel in the . .

. preparation of this action concludes paricipation in the action, such person shall retut to

counsel all copies of documents or portions thereof designated confidential that are in the

possession of such person, together with all n.otes, memoranda or other papers containing

Judicial review, the paries shall ret\l documents obtained in this action to. their submitters,

provided, however; that the Commission's obligation to retur documents shall be governed by .

the provisions ofRule4.12 6fthe Rules of Practice, 16 C.F.R. §4~ 12.

-9~
i 5. The inadvertent production or disclosure of any Discovery Material, which a.

rroducing Par claims should not have been produced 

or disclosed because of a privilege, wil

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

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

The inadvertent production of a privileged document shall not in itself be deemed a waiver of

any privil~ged applicable to any other documents relating to the subject matter.

16. This Protective Order shall not apply to the disclosure by a Producing Party or its

counsel of its oWn Confidential MateriàL.

17. The provisions of this Protective Order, insofar as they restiict the

communication and use. of confidential discovery material, shall, without wrtten permission of

. the submitter or further order of the Commission, continue to be binding after the conclusion of

this proceeding.

. ORDERED:. :r)M~

D. Michael Chappell ~.

Administrative Law Judgè

Date: October 23,.2008

-10-
EXHIBIT A

. UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINlSTRATIVE LAW JUDGES

)

)

)

)

)

)

Docket No. 9327

In the Matter of

Polyporelnternationali Inc.

a corporation.

DECLARA TIONCONCERNING PROTECTIVE ORDER

GOVERNING DISCOVERY MATERIAL

.\

I, , hereby declare and certify the folIowingto be true:

I. (Statement of employment)

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

Order") issued by the Commission on October 23, 2008; in connection with the above-captioned

Matter. I understand the restrctions on myaccess to and use or ary Confidential Material (as

that term is used in the Protective Order) in this Matter, and I agree to abide by the Protective

. Order.

3. I ùnderstad that the restrictions on my use. of such Confdentiality Material -iÐGi\;d~--------

a. that I wil use such Confidential Material only for the purpose of preparing

for this proceeding, and hearng(s) and any appeal of this proceeding and

for no other purPose;

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

. permitted by the Protective Order;

c. that I wil use; store and maintain the Confide~tiai M~terialinsuch a way

. as to enSUJe its continued protected status; and .

d. that, upon the termination of my paricipation intrus proce~iIig, I will

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

Confidential Material, to Complaint Counselor Respondent's OutsidèCounsel as appropriate.

4. I . ..understad . that if I am receiving Confidential Material as im ExpertConsultat,

. .. . .

as that term is defined in this Protective Otder; the restrictions on my use of Co.nfidential

'.

.. -11-
Material also incl1.de 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 appropriate, upon the conclusion of my assignment or

retention, or uPQn conclusion of this Matter; and

c. . use such Confidentiài Material and the information. contained therein

solely for the purpose of rendering consulting services to a Par to ths

Matter, including providfrig testimony injudiciaior administrative

proceedings arsing out of this Matter.

5. I am fully aware that, pursuant to Section. 3.42(h) of the FTC Rules of Practice, 16

C.F.R. § 3.42(h); my failure to comply with: the terms of the Protective Order may constitute

contempt of the Commission and may subject me to sanctions.

Date:

Full Name (Typed or Printed)

Signature

-12-
ll, 'I

;~
Message Page 1 of2

Schur, Neil C.

From: Schur, Neil C.

Sent: Friday, December 12,20082:25 PM

To: 'ericwelsh~parkerpoe.com'

Cc: Lipkowitz, Eugene V.

Subject: RE: In re Polypore

Importance: High

Thank you again for participating in the "meet and confer." We remain hopeful that we can resolve this dispute

regarding the unreasonable and extraordinary burden imposed on EnerSys by your client's subpoena. Candidly,

we expected to receive a substantive response from you Wednesday or at the latest, yesterday, as discussed, but

have not heard from you.

Please let us know as soon as possible whether your client is agreeable to (a) paying EnerSys' attorneys fees

incurred in reviewing the documents (or any portion of those fees); or (b) the proposal we outlined on the calL. We

also need to know your client's position regarding foreign language documents, test results documents (if there

are summary/analysis documents), and not sharing the documents or their contents with Mr. Shor or anyone else

at Polypore, as well as the various specific requests to which we objected.

We are compiling the list of individuals to whom the initial internal requests for documents were sent and hope to

get that to you later this afternoon. To clanfy, they are not "custodians" but instead are supervisors of various

pieces of EnerSys' business, who then distributed the requests to their subordinates, as discussed Wednesday.

I understand that my colleague Joe Wolfson is handling a document production in response to a Polypore

subpoena in this matter. For obvious reasons, we have erected a firewall within the firm, and no one working on

one representation æn discuss the matter with anyone on the other team.

Finally, your proposal that EnerSys produce the documents without reviewing them is, as expected,

unacceptable. EnerSys cannot produce the documents without reviewing them ærefully to avoid production of

irrelevant, non-responsive information, as well as confidential and proprietary information, attorney-client

privileged information, or attorney work product. The fact that business people gathered potentially relevant or

responsive documents by no means ensures that the documents gathered are relevant or that the entire

document gathered is relevant, as you know. You would not produce documents under such circumstances and,

ændidly, we think it is unreasonable to propose that solution.

We continue to welcome any creative ideas and remain hopeful that we can resolve these issues amiæbly and

effciently, without delay or intervention of the Administrative Law Judge.

We look forward to hearing from you.

Regards,

Neil C. Schur

Stevens & Lee, P.C.

1818 Market Street, 29th Floor

Philadelphia, PA 19103

(215) 751-1944 (ph)

(610) 371-7956 (fax)

ncsc~stevenslee.com

http://ww.stevenslee.com

12/15/2008
Message Page 2 of2

From: Welsh, Eric D. (mailto:ericwelsh(§parkerpoe.com)

Sent: Wednesday, December 10, 2008 10:59 AM

To: Schur, Neil C.

Subject: In re Polypore

Neil

Thank you for the time you spent with me on the phone today. Obviously we have an number of fundamental

disagreements. I wil take your proposal to my client, as I understand you wil do with ours (although I am not

sure of that since you already told me you would not agree to the proposal). To reiterate, I understand that you

have compiled approximately 100,000 pages of documents. You have run a search on the documents for

privilege. We are wiling to take the documents on an agreement that privilege wil not be waived by an

inadvertent production. I understand there are some high level management strategy documents that contain

information your client believes is unrelated to this matter which it wants to redact. We are wiling to consider

that. I have suggested that you can limit the production by using January 1, 2003 as the cutoff for specification

no. 13. I have also suggested, to meet your concern over burden, that we wil be prepared to take summary

memorandum and email that discuss the status of the testing and qualification in lieu of all of the testing

documents themselves. (If such documents do not exist, then we would need all of the documents. I would want

the right to follow up on any specific items if the summary documents do not adequately address all of the

issues.) We are willng to take the balance of the production that has already been compiled subject to

confidentiality worked out between us or by the ALJ.

For our discussion, please provide me with a list of the custodians searched. That may help move our

discussions along. Also, please let me know if the custodians provided specific files or if an electronic search was

conducted. If the latter, let me know the parameters and the terms used in the search. I may be able to assist in

refining that search. If there are documents that can be produced in response to specific requests, we ask that

EnerSys do so. We ask that EnerSys begin a rollng production. We can then figure out how to handle the

balance.

As I said before, I have had a number of conversations with other third parties and seem to have had great

success in dealing with them. In fact, just this morning I had a very good conversation with Joe Wolfson of your

offce that seemed to be very productive. The discussions with EnerSys have unfortunately started at a

completely different point which creates most of our issues. I hope we can work through them but if not, we wil

address them with Judge ChappeL.

i look forward to hearing from you.

Eric Welsh

12/15/2008

AFFIDAVIT OF JOHN GAGGE

COMMONWEALTH OF PENNSYLVANIA

COUNTY OF BERKS

I, John Gagge, being duly sworn, depose and make the following statement:

1. I am presently employed as the Senior Director, Engineering and Quality

Assurance Americas of EnerSys.

2. EnerSys is a global manufacturer of flooded lead acid batteries headquarered at

2366,Bernville Road, Reading, Pennsylvana 19605.

3. Prior to the stock purchase at issue in this case, EnerSys purchased highperformance polyethylene battery separators from both Respondent and Microporous Products

L.P.

4. At present, EnerSys purchases high-performance polyethylene battery separators

solely from Respondent.

5. Among my duties and responsibilities is the collection and review of documents

and electronically stored information that is responsive to subpoenas served on EnerSys, along

with Larr Axt and counsel.

6. I have reviewed the Subpoena issued by Respondent to EnerSys in this matter

("Subpoena").

7. I respectfully submit ths Affdavit in support of EnerSys' Motion for an Award

of Attorneys' Fees and Costs and to Limit Subpoena Served by Respondent Upon Thrd Pary.

8. EnerSys received the Subpoena from counsel for the Federal Trade Commission

on November 7,2008.

1

Error! Unknown document property name.
9. I, along with Lar Axt and Larry Burkert, both of EnerSys, along with counsel,

coordinated EnerSys' gathering of documents that are potentially responsive to the Subpoena.

10. Certain potentially responsive documents were housed outside the United States,

and certain potentially responsive electronically stored information was housed outside the

United States.

11. Accordingly, Mr. Burkert and I sent a request for documents and information to

approximately thirty supervisors and executives worldwide throughout EnerSys, and asked them

to pass on the requests for documents and information to their subordinates and to coordinate the

collection of potentially responsive documents.

12. EnerSys gathered approximately 200,000 potentially responsive pages.

13. On November 28,2008, EnerSys sent a drive containing the gathered documents

to outside counseL.

14. A typical sumar or status report of tests of separators wil not reveal or even

address the lead time for such testing, but wil instead sumarze the results of the tests or trends

in the results or the status of the testing.

I have read the above statement and swear it is true and correct to the best of my .- j

personal knowledge and information.

Sworn to and subscribed before me

ths jL day of DfceIIber, 2008

Not8lubli"/' O~~ NOTARIAL SEAL

JERRY L. SEYLER; Notary Public

City of Reading, Berks County

My Commission Expires Sept. 14, 2010

2

Error! Unknown document propert name.

External Signatue Page 1 of2

Schur, Neil C.

From: Welsh, Eric D. (ericwelsh~parkerpoe.coml

Sent: Friday, December 12, 20082:36 PM

To: Schur, Neil C.

Cc: Rikard, Jr., Willam L.

Subject: FW: In re Polypore

Neil

I have talked with my client and we cannot agree to your proposal. I wil not reiterate the points that I have

already expressed to you regarding the manner in which you have proceeded in gathering documents for

production. I had repeatedly suggested that you discuss with me the manner of your production and issues as to

scope or burden before, not after, you had gathered the documents and information. In light of the situation that

you now find yourself, I would propose either your client produce the documents per my suggestion made to you

on December 1 0 (outlined below) or alternatively, prod uce the documents that are identifiable for the specific

requests, including the management documents in redacted form, and then provide me with a list of the

custodians, with job responsibilty descriptions, for the balance that you have gathered. We could then try to

agree on search terms for those documents. (I understand you have already searched for privilege.) If this is of

interest, let me know and we can discus it.

Also, I await word from you regarding whether your client's documents contain summaries and status reports

regarding the testing and qualification of separators/suppliers. I told you that I would be willng to take those

documents (instead of a larger production of testing related documents), but noted that if you do not have them,

then I wil need all of the testing documents. I look forward to hearing from you on this subject. Also, I am wiling

to try to come to an agreement with you with respect to Mr. Shor and confidentiality. We wil not pay for EnerSys'

attorney fees. As I expressed before, we will reimburse for reasonable photocopy charges only.

If your client is not interested in either approach discussed above, then I suggest you file your motion next week.

As I said, 1 have worked well with others that I have served subpoenas on in this matter, including your

partner, and remain willng to do so with EnerSys. It.appears from my discussions with you, and from other

information available to me, that your client has decided to make this as diffcult as possible for my client. Time is

pressing here and I am running out of latitude in dealing with your client.

I look forward to hearing from you as to the above.

Eric

Eric Welsh

Partner

PARR POlE

l\.\ l'AIW &Jilll'iTI!i UI' ...................... ....

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.parkergoe.com I vcard I map

From: Welsh, Eric D.

12/15/2008
External Signatue Page 2 of2

Sent: Wednesday, December 10, 2008 10:59 AM

To: 'ncsc(§stevenslee.com'

Subject: In re Polypore

Neil

Thank you for the time you spent with me on the phone today. Obviously we have an number of fundamental

disagreements. I will take your proposal to my client, as i understand you wil do with ours (although i am not

sure of that since you already told me you would not agree to the proposal). To reiterate, i understand that you

have compiled approximately 100,000 pages of documents. You have run a search on the documents for

privilege. We are willng to take the documents on an agreement that privilege will not be waived by an

inadvertent production. I understand there are some high level management strategy documents that contain

information your client believes is unrelated to this matter which it wants to redact. We are willng to consider

that. I have suggested that you can limit the production by using January 1, 2003 as the cutoff for specification

no. 13. I have also suggested, to meet your concern over burden, that we wil be prepared to take summary

memorandum and email that discuss the status of the testing and qualification in lieu of all of the testing

documents themselves. (If such documents do not exist, then we would need all of the documents. I would want

the right to follow up on any specific items if the summary documents do not adequately address all of the

issues.) We are willng to take the balance of the production that has already been compiled subject to

confidentiality worked out between us or by the ALJ.

For our discussion, please provide me with a list of the custodians searched. That may help move our

discussions along. Also, please let me know if the custodians provided specific files or if an electronic search was

conducted. If the latter, let me know the parameters and the terms used in the search. I may be able to assist in

refining that search. If there are documents that can be produced in response to specific requests, we ask that

EnerSys do so. We ask that EnerSys begin a rollng production. We can then figure out how to handle the

balance.

As I said before, I have had a number of conversations with other third parties and seem to have had great

success in dealing with them. In fact, just this morning I had a very good conversation with Joe Wolfson of your

offce that seemed to be very productive. The discussions with EnerSys have unfortunately started at a

completely different point which creates most of our issues. I hope we can work through them but if not, we wil

address them with Judge ChappeL.

I look forward to hearing from you.

Eric Welsh

Eric Welsh

Partner

Ext. 9052

IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal ta advice contained

in this communication (or in any attchment) is not intended or wrien to be used, and cannot be used, for the purpose of (i) avoiding penalties under

the Internal Revenue Code or (ii) promoting, marketing or recommending to another part any transaction or matter addressed in this communication

(or in any attchment).

PRIVLEGED AND CONFIDENTIAL: This electronic message and any attachments are confidential propert of the sender. The information is

intended only for the use of the person to whom it was addressed. Any other interception, copying, accessing, or disclosure of this message is

prohibited. The sender takes no responsibilty for any unauthonzed reliance on this message. If you have received this message in error, please

immediately notify the sender and purge the message you received. Do not forward this message without permission. !ppab_v1.0j

12/15/2008
UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation. PUBLIC

STATEMENT OF COUNSEL PURUANT TO 16 C.F.R. S 3.22(t)

Counsel for the moving par, Neil C. Schur, Esquire and Eugene Lipkowitz,

Esquie, have conferred with opposing counsel, Eric D. Welsh, Esquire, in an effort in good faith

to resolve by agreement the issues raised by the motion and have been unable to reach such an

agreement. Counsel conferred by telephone on December 10, 2008 and by electronic mail

(multiple exchanges) on December 10, 12, 13, 15, and 16,2008. Messrs. Schur and Welsh were

the primar paricipants, although cert electronic mail messages were copied to Mr. Schur's

colleague, Mr. Lipkowitz, and Mr. Welsh's colleague, Wiliam L. Riard, Jr., Esquire.

Counsel had also previously spoken by telephone on November 12,2008

regarding an extension of time to respond to the Subpoena and file a motion to limt the

subpoena and for cost reimbursement, as well as a futue meet and confer after the extension

issues had been resolved.

Counsel were able to resolve disputes regarding Requests 5 and 7 and documents

wrtten in a language other than English "for the time being," but were unable to resolve the

remaing issues addressed in the foregoing motion, including attorneys' fees and costs as a

result of the uneasonable and extraordinar burden

1

SLl 890586v3/00844.00930
UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation.

ORDER

Upon consideration of the Motion of EnerSys for an Award of Attorneys' Fees

and Costs and to Limit Subpoena Served by Respondent Upon Third Par, the opposition of

Respondent Polypore International, Inc., and oral arguent, it is hereby ordered that the motion

is GRATED. It is hereby fuher ORDERED that:

1. Respondent shall pay EnerSys' attorneys' and paralegals' fees and costs

incured in reviewig the potentially responsive documents EnerSys has gathered in response to

Respondent's Subpoena to EnerSys ("Subpoena"), as described in the motion.

2. Respondent shall pay EnerSys the outside vendor charges incured to facilitate

that review and the ultimate production of documents;

3. Withi twenty (20) days of the completion of the document production,

EnerSys shall submit a detailed fee application specifying such fees and costs;

4. Requests 10, 13-14, and 19-24 are hereby stricken from the Subpoena; and

5. Paragraph 9(e) of the Protective Order dated October 23,2008 is hereby

modified to shield EnerSys' production of documents from disclosure to Respondent's in-house

counsel, Michael Shor.

ENTER:

Admstrative Law Judge D. Michael Chappell

SLl 890586v3/00844.00930
UNTED STATES OF AMRICA

BEFORE THE FEDERA TRAE COMMSSION

In the Matter of

)

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation. .

ORDER

Upon consideration of the Motion of EnerSys for an Award of Attorneys' Fees

and Costs and to Limit Subpoena Served by Respondent Upon Thid Par, the opposition of

Respondent Polypore International, Inc., and oral arguent, it is hereby ordered that the motion

is GRATED. It is hereby fuher ORDERED that:

1. Respondent shall accept EnerSys' proposal as set forth in its Motion with

regard to the review and production of documents in response to Respondent's Subpoena to

EnerSys.

2. Respondent shall pay EnerSys the outside vendor charges incured to facilitate

that review and the ultimate production of documents;

3. With twenty (20) days of the completion of the document production,

EnerSys shall submit a detailed fee application specifying such fees and costs;

4. Requests 10, 13-14, and 19-24 are hereby strcken from the Subpoena; and

5. Paragraph 9(e) of the Protective Order dated October 23,2008 is hereby

modified to shield EnerSys' production of documents from disclosure to Respondent's in-house

counsel, Michael Shor.

ENTER:

Adminstrative Law Judge D. Michael Chappell

SLl 890586v3/00844.00930