ORIGINAL
 MAR 2 0 2012

5Ç1;;o3 SECRETARY 

UNITED STATES OF AMERICA 

BEFORE THE FEDERA TRAE COMMISSION 

)
 In the Matter of
 )
 

)


McWANE, INC., ) Docket No. 9351
 

a corporation, and
 )
 STAR PIPE PRODUCTS, LTD., ) PUBLIC DOCUMNT
 

a limited parnership. ) 

) 

THE C.I. THORNBURG CO., INC.'S MOTION TO LIMIT SUBPOENA AND
 

INCORPORATED MEMORADUM IN SUPPORT
 

Pursuant to 16 C.F.R. § 3.32(c), third par, The C.1. Thornburg Co., Inc. ("Thornburg") 

hereby respectfully requests that the Federal Trade Commission (this "Agency") limit and 

modifY the subpoena duces tecum issued in the above matter to lessen the burden of compliance. 

In support of 
 this motion, Thornburg respectfully states as follows: 

1. Thornburg is a third-part and is not the subject of 
 this investigation. Nevertheless, it 

was served with a subpoena requesting a corporate designee deposition and a subpoena 

compelling a burdensome production of documents, including confidential pricing, discount, and 

rebate information, disclosure of trade secrets, and production of 
 profit and loss statements, for 

nearly the past decade. The subpoena sweeps so broadly that Thornburg would be unduly 

burdened by the time and expense required to produce the documents in the maner requested. 

2. In compliance with 16 C.F.R. § 3.22(g), counsel for Thornburg, David Allen
 

Barette, certifies that on March 12,2012, he called and spoke with J. Allen Truitt counsel for 

Mc Wane, Inc., in a good faith effort to resolve by agreement the issues raised by this motion, 

and in particular the scope of production. Although the issue has not been resolved, the paries 

(C2288945.1) 
agreed to fuher negotiate the scope of 
 the requests to reach a compromise. This motion is filed 

as a protective measure to preserve Thornburg's rights in light of 
 the applicable time limitations. 

3. Thornburg generally objects to the subpoena and states that it is insuffcient in that it 

fails to make a showing that the materials sought are generally or reasonably relevant. See 16 

C.F.R. § 3.34(b) (2009). Moreover, the subpoena should not be enforced because,
 

notwithstanding the protective order, it provides inadequate protection because the requests
 

require disclosure of 
 Thornburg's privileged information and trade secrets. 

4. With regard to the seven enumerated requests contained in the subpoena, Thornburg 

states as follows: 

a. Request No. 1. No objection. 

b. Request Nos. 2, 3, 4, 5, 6 and 7.: On grounds that the requests identified are 

unreasonably broad, unduly burdensome, and/or seek the disclosure of privileged information 

and trade secrets, Thornburg objects to Request Nos. 2, 3, 4, 5, 6 and 7. 

Request No.2 seeks production of 
 "all DIWF products from any Person from January 1, 

2003 to the present including, but not limited to the Person from whom you purchased DIWF 

and the volume, unites, SKU number, diameter, size, configuration, coating, finish, price, 

discount, or rebates attbutable to your purchases." Thornburg especially objects to the request 

for price, discount, and rebate data attbutable to its purchases, and states that the information 

requested is not readily available or accessible, and thus, compliance would threaten to unduly 

disrupt or seriously hinder Thornburg's normal operations in that such data would have to be 

generated. Furthermore, the scope of 
 the request, dating back nearly a decade, is unreasonably 

broad and unduly burdensome. Where, as here, a subpoena requires disclosure of a trade secret 

or other confidential information, or requires disclosure of data not reasonably accessible 

(C2288945.1) 2 
i 

because of 
 undue burden or cost, this Agency may limit the subpoena to protect the pary subject 

to its demands. 

Request No.3 likewise seeks disclosure of trade secrets and confidential business 

information, including "( d)ocuments sufficient to identifY your sales of all D IWF products from 

Januar 1,2003 to present including, but not limited to the Person to whom you sold DIWF, the 

volume, units, SKU number, diameter, size, configuration, coating, finish, price, discount, and 

rebates of 
 your sales." The sweeping request seeks information since 2003. 

With respect to Request No.4, Thornburg objects to the production of 
 "(a)ll profit and 

loss statements, income statements, and balance sheets related to (its) sales ofDIWF from 

Januar 1,2003 to the present," as these materials do not exist and would thus impose 

unreasonable and undue burden and cost on Thornburg to generate. 

Request Nos. 5, 6, and 7 also seek confidential "communications" and business 

information - including "any decision (Thornburg) made to cease or curtail manufacturing or 

selling DIWF in the United States" - that involve trade secrets. Furthermore, Thornburg states 

that it is not a manufacturer of 
 products. 

Based on the foregoing, Thornburg respectfully requests that this Agency modify and 

limit the scope of the requests contained in the subpoena, so as to lessen the burden of 

compliance, to protect Thornburg from production or data that is not reasonably accessible, and 

to prevent disclosure of privileged information and trade secrets. 

Respectfully submitted, 

THE C.I. THORNBURG CO., INC. 

By Counsel 

(C2288945.1) 3 
Isl David Allen Barnette 

David Allen Barette 

Vivian H. Basdekis 

JACKSON KELLY, PLLC 

P.O. Box 553
 

Charleston, WV 25322
 

Tel: (304) 340-1327
 

Fax: (304) 340-1272
 

Email: dbarette@jacksonkelly.com 

vhbasdekis@jacksonkelly.com 

(C2288945.1) 4 
CERTIFICATE OF SERVICE
 

I certifY that on March 20,2012, I fied the foregoing document electronically in PDF 

format using the FTC's E-Filng System, which wil send notification of such filing to: 

Donald S. Clark, Secretar 

Federal Trade Commission
 

600 Pennsylvania Avenue NW, Room H-I13
 

Washington, DC 20580
 

I certifY that on March 19,2012, I caused to be served one copy via electronic mail 

delivery and one copy via overnight mail delivery of the foregoing document upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commission
 

600 Pennsylvania Avenue NW, Room H-106
 

Washington, DC 20580
 

oalj@ftc.gov
 

I certify that on March 20,2012, I caused to be served one copy via electronic mail 

delivery and one copy via first-class mail delivery of 
 the foregoing document upon: 

Thomas Brock Joseph A. Ostoyich 

u.S. Federal Trade Commission Andreas Stargard 

600 Pennsylvania Avenue, NW Wiliam C. Lavery 

Washington, DC 20580 Baker Botts LLP 

tbrock@ftc.gov 1299 Pennsylvania Ave. NW 

Washington, D.C. 20004 

(202)639-7700 

joseph.Ostoyich@bakerbotts.com 

Andreas.stargard@bakerbotts.com 

William.lavery@bakerbotts.com 

Counselfor McWane, Inc. 

J. Alan Truit 

Thomas W. Thagard, II 

Maynard, Cooper & Gale, P.C. 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205)-254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for McWane, Inc. 

(C2288945.1) 5 
Gregory S.C. Huffan 

Wiliam Katz
 

Nicole Wiliams 

Brian Stolz 

Thompson and Knight LLP 

One Ar Plaza, Suite 1500 

1722 Routh Street 

Dallas, TX 75201 

(214) 969-1700 

gregory.huffian@tklaw.com 

willam.katz@tklaw.com 

nicole. wiliams@tklaw.com 

brian.stoltz@tklaw.com 

Counsel for Star Pipe Products, Ltd.
 

I also certifY that the electronic PDF copy of 
 the foregoing document sent to the 

Secretar of the Commission via the FTC E-Filng System is a true and correct copy of the 

original in my possession, which is available for review by the parties and the adjudicator. 

March 20, 2012 

By: lsi David Allen Barnette 

David Allen Barette 

(C2288945. i) 6