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08 13 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) 

) PUBLIC 

McWANE, INC., ) 

Respondent. ) DOCKET NO. 9351 

) 

__________________________________________) 

COMPLAINT COUNSEL’S OPPOSITION TO MCWANE, INC.’S 

MOTION IN LIMINE TO PRECLUDE COMPLAINT COUNSEL FROM USING 

PRIVILEGE AS A SWORD AND A SHIELD 

Introduction 

McWane, Inc.’s Motion in Limine to Preclude Complaint Counsel from Using Privilege 

as a Sword and a Shield (“Motion”) should be denied as a poorly disguised motion to compel 

documents that Complaint Counsel properly withheld as privileged. It is untimely, see February 

15, 2012 Scheduling Order, as amended, at ¶ 9 (“Scheduling Order”), and meritless: Respondent 

does not claim that any documents on Complaint Counsel’s privilege log are not privileged, or 

that Complaint Counsel waived any privilege. Nor does Respondent claim that Complaint 

Counsel intends to introduce at trial any withheld information. Instead, Respondent argues that 

because Complaint Counsel produced some documents from its Part 2 investigation, it should 

have to produce all documents – including privileged ones – or be barred from using any such 

documents. Respondent’s position is inconsistent with this Court’s decision in In re MSC 

Software Corp., 2002 WL 31433972 (F.T.C. May 7, 2002). Moreover, Respondent does not 

claim it will suffer any prejudice from Complaint Counsel’s use at trial of documents available to 

both parties. Respondent’s only express justification for the Motion – so that it can “know 

exactly what information the Commission and Complaint Counsel used in their decision to bring 
                                                            

 

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suit here,” Motion at 5 (emphasis in original)1 – is clearly shielded by the deliberative process 

privilege and not subject to discovery. Accordingly, Respondent’s Motion should be denied. 

Analysis 

A. Respondent’s Motion to Compel Should Be Denied 

Respondent’s Motion seeks to compel the production of all Part II submissions from 

Complaint Counsel’s privilege log. See Motion at 2, 5 (“Complaint Counsel should produce all 

[Part 2] submissions immediately”). This Motion is untimely and meritless. 

On March 30, 2012, after completing its document production in response to 

Respondent’s First Set of Requests for Documents, Complaint Counsel produced its privilege log 

to Respondent. This privilege log identified documents and IH transcripts that Complaint 

Counsel had withheld from its document production on the basis of various privileges, including 

government investigatory privilege, informer privilege and attorney work product. Holleran 

Decl., at ¶ 2 (noting that privilege log was never amended). Respondent therefore had notice as 

of March 30, 2012, that Complaint Counsel had not produced the documents that are now the 

subject of its Motion. Paragraph 9 of the Scheduling Order requires any motion to compel to be 

filed within 30 days of service, or within 20 days after the close of discovery, whichever occurs 

first. Under either deadline, Respondent’s Motion is untimely. 

Respondent’s Motion is also meritless. Respondent never argues that any of the withheld 

documents are not privileged, or that Complaint Counsel waived any of its properly asserted 

privileges. Accordingly, Respondent’s demand that Complaint Counsel produce Part 2 materials 

from its privilege log should be denied. 

1

 Respondent’s Motion is an improper effort to prove its unconfirmed theory that Star Pipe Products LLP was one of 

the complainants that prompted the investigation in this matter. See Motion at 4-5; Holleran Decl., at ¶ 7-9. A 

complainant’s identity is protected by the informer’s privilege, and Complaint Counsel has properly protected that 

privilege by neither confirming nor denying the identity of any protected informers. See Holleran Decl., at ¶ 3, 7. 

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B. Respondent’s “Sword” and “Shield” Argument For Excluding Evidence Is Without 

Merit 

In the alternative, Respondent seeks to preclude Complaint Counsel “from using any 

submissions to the Commission during its Part 2 investigation by any party or non-party during 

trial.” Motion at 2, 5. Respondent bases its argument on the fact that Complaint Counsel did not 

produce all documents submitted in Part 2, but withheld some as privileged. Id. at 1. Contrary 

to Respondent’s characterization of this as “improper game-playing,” Complaint Counsel was 

following this Court’s precedent. 

In MSC, this Court recognized the Commission’s interest in protecting the identity of 

informers, and specifically held that producing some Part II materials does not waive the 

privilege with respect to all Part II materials: 

Complaint Counsel’s identification of some of the individuals with whom it 

communicated during the investigatory stage and Complaint Counsel’s production of the 

investigational hearing transcripts of those individuals does not waive the privilege as to 

other individuals’ identities that have not yet been disclosed. 

2002 WL 31433972, at *2. In addition to being protected by the informer privilege, this Court 

also held that IH transcripts were protected by the work product doctrine because “[t]he attorney 

in an investigational hearing questioning a third party witness should be able to ask questions, 

lead the witness, comment and summarize without fear that the latter would later be turned over 

to his adversary...”. Id. at *3. 

Consistent with MSC and the cases cited therein, Complaint Counsel withheld documents 

as necessary to protect the government informer privilege, government investigatory privilege, 

and work product privilege, but produced non-privileged Part 2 submissions. For example, 

Complaint Counsel produced all prior sworn testimony, including any IH transcripts and 

declarations, for any individuals who appeared on Complaint Counsel’s preliminary witness list. 

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See id.; see also Harper & Row, 1990 FTC LEXIS 213, at *15 (June 27, 1990) (ruling that 

complaint counsel must reveal the identities of witnesses they expect to call). 

Importantly, Respondent does not identify any prejudice whatsoever that it would suffer 

from the use at trial of non-privileged materials from the Part 2 investigation produced to it by 

Complaint Counsel (the alleged “sword”). Holleran Decl. at ¶ 9. For example, Respondent 

criticizes Complaint Counsel’s expert for relying on { }, but 

it never explains how this prejudices Respondent. Id. Respondent has { } 

Complaint Counsel’s expert reviewed, and { 

} Dr. 

Schumann’s review of those materials inured to Respondent’s benefit. Respondent’s only 

express justification for its Motion – that it has “a clear interest to know exactly what information 

the Commission and Complaint Counsel used in their decision to bring suit here,” Motion at 5 

(emphasis in original) – is irrelevant to the issues in this case, is protected by the deliberative 

process privilege, and does not justify excluding any evidence. See FTC v. Warner Communics., 

Inc., 742 F. 2d 1156, 1161 (9th Cir. 1984) (citations omitted) (deliberative process privilege 

protects from discovery all deliberations comprising the process by which government decisions 

and policies are formulated); see also MSC, 2002 WL 31433972, at *3 (noting that results of 

Complaint Counsel’s investigation is not a “‘need,’ nor a right recognized by the Commission’s 

rules”). 

Respondent acknowledges that both parties will try this case on the same discovery 

record. Holleran Decl., at ¶ 6. Consistent with this Court’s earlier ruling, neither Complaint 

Counsel nor its expert have relied upon during discovery -- nor will rely upon at trial -- any Part 

2 materials withheld from Respondent. Id. at ¶ 5; see also In re McWane, Inc., Dkt. 9351, Order 

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at 6 (July 13, 2012) (ruling that “Respondent may not offer evidence at trial which Respondent 

withheld from discovery on privilege grounds.”). Respondent has thoroughly used nonprivileged Part 2 materials throughout the discovery process, and precluding Complaint Counsel 

from similarly relying on materials that have been fully available to Respondent for months 

would be unfair and prejudicial. See Holleran Decl., at ¶ 10. 

Conclusion 

For the above reasons, Respondent’s Motion should be DENIED. 

Dated: August 13, 2012 Respectfully submitted, 

 s/ Linda M. Holleran 

Edward D. Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda M. Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael J. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq.

 Monica M. Castillo, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

 Telephone: (202) 326-2470 

 Facsimile: (202) 326-3496 

 Electronic Mail: ehassi@ftc.gov 

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__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) 

) PUBLIC 

McWANE, INC., ) 

Respondent. ) DOCKET NO. 9351 

) 

__________________________________________) 

DECLARATION OF LINDA M. HOLLERAN 

Pursuant to 28 U.S.C. § 1746, I make the following statement: 

1.	 My name is Linda M. Holleran. I am making this statement in In the Matter of McWane, 

Inc., FTC Docket No. 9351, in support of Complaint Counsel’s opposition to McWane, 

Inc.’s Motion in Limine to Preclude Complaint Counsel from Using Privilege as a Sword 

and a Shield (“Motion”). All statements in this Declaration are based on my personal 

knowledge as Attorney for the U.S. Federal Trade Commission, Bureau of Competition, 

and if called upon to testify, I could competently do so. 

2.	 After completing its document production in response to Respondent’s First Set of 

Requests for Documents, Complaint Counsel produced to Respondent a privilege log on 

or about March 30, 2012. This privilege log identified documents and IH transcripts that 

Complaint Counsel had withheld from its document production on the basis of various 

privileges, including government investigatory privilege, informer privilege and attorney 

work product. This privilege log was never amended. 

3.	 To protect those firms and individuals whose identities are protected by the informer’s 

privilege, Complaint Counsel has never confirmed or denied whether a specific firm or 

individual assisted Complaint Counsel during the Part 2 investigation. 
PUBLIC

4. Complaint Counsel produced to Respondent at the beginning of the discovery period all 

non-privileged materials from the Part 2 investigation. For example, Complaint Counsel 

issued subpoenas duces tecum for third party documents, and subpoenas ad testificandum 

for numerous investigational hearings (“IH”) during the Part 2 investigation. Complaint 

Counsel produced to Respondent all responsive third-party document productions. 

Complaint Counsel also produced any IH transcripts (and all of their exhibits), any 

declarations (and their attachments), or any other prior sworn testimony for the 

individuals who were identified on Complaint Counsel’s Preliminary Witness List. 

5.	 Complaint Counsel has assured counsel for Respondent that Complaint Counsel would 

not rely on any Part 2 materials – either in discovery or at trial – that were withheld as 

privileged and not produced to Respondent. Complaint Counsel also has assured counsel 

for Respondent that Complaint Counsel’s expert would not review or rely upon any Part 

2 materials – either in preparing his expert report or in providing testimony at trial – that 

were not produced to Respondent. 

6.	 Counsel for Respondent has acknowledged these assurances, and has admitted that 

Respondent does not dispute that both Respondent and Complaint Counsel, including 

Complaint Counsel’s economic expert, are relying on the exact same discovery record for 

trial. 

7.	 On July 26, 2012, William Lavery, counsel for Respondent, called me to meet and confer 

about the Motion. In the telephone call, Mr. Lavery informed me that Complaint Counsel 

had to produce all alleged white papers from Star Pipe Products LLP (“Star”) that 

Complaint Counsel allegedly had withheld as privileged from the Part 2 investigation or 

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else it would file the instant Motion. Consistent with the informer’s privilege, I did not 

confirm or deny whether any such white papers existed. 

8.	 When I explained that a motion in limine was to exclude evidence, and that the time for 

motions to compel had passed, Mr. Lavery finally identified that they would move to 

strike six exhibits from Complaint Counsel’s Proposed Trial Exhibits (CX 0015-0020), 

and the references in the expert report of Complaint Counsel’s economic expert, Dr. 

Schumann, that reflected Dr. Schumann’s review and reliance on { 

} during the Part 2 investigation. 

9.	 I queried Mr. Lavery as to how Dr. Schumann’s reliance on { 

} would prejudice Respondent as 

that appeared to only benefit Respondent. Mr. Lavery could not articulate any way in 

which Dr. Schumann’s review of and reliance upon { } 

would prejudice Respondent at trial or otherwise. While Mr. Lavery insisted that 

Complaint Counsel should not be able to use privilege as a shield and a sword, he also 

could not explain how Respondent would be prejudiced by the introduction of CX 0015-

0020 as trial exhibits. Nevertheless, Mr. Lavery reiterated his original statement that the 

only way Complaint Counsel could avoid this Motion was to produce any alleged white 

papers from Star. 

10. Complaint Counsel would be unfairly prejudiced if, on the eve of trial, it suddenly could 

not use non-privileged discovery from the Part 2 investigation that had been equally 

available to Respondent for months. Both parties regularly used Part 2 materials 

throughout the discovery period. If Respondent had raised its objection to Complaint 

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Counsel’s privilege log earlier, Complaint Counsel could have used the discovery period 

to develop alternate evidence that would have established the facts contained in the Part 2 

materials Respondent now wishes to exclude. It is now too late to do so. 

Pursuant to 28 U.S.C. § 1746, I declare, under the penalty of perjury, that the foregoing is 

true and correct to the best of my knowledge, information, and belief. 

 Respectfully submitted, 

 s/ Linda M. Holleran 

 Linda M. Holleran, Esq. 

 Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

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CERTIFICATE OF SERVICE 

I hereby certify that on August 13, 2012, I filed the foregoing document electronically 

using the FTC’s E-Filing System, which will send notification of such filing to: 

Donald S. Clark 

Secretary

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

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CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true and 

correct copy of the paper original and that I possess a paper original of the signed document that 

is available for review by the parties and the adjudicator. 

August 13, 2012 By: s/ Thomas H. Brock 

Attorney 

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