ORIGINAL 


UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


In the Matter of 

PUBLIC 

McWANE, INC., 

a corporation. Docket No. 9351 

DECLARATION OF MATTHEW A. WHITE, ESQUIRE, IN SUPPORT OF 


NON-PARTY SIGMA CORPORATION'S MOTION TO QUASH SUBPOENA 


I, Matthew A. White, declare as follows: 

1. My name is Matthew A. White. I am over 18 years of age, and have personal 

knowledge of the facts set forth in this Declaration. I am an attorney and partner in the law firm 

of Ballard Spahr LLP. I represent SIGMA Corporation ("SIGMA"), a non-party in the abovecaptioned matter. I make this Declaration based upon my personal knowledge and in support of 

SIGMA's Motion to Quash the Subpoena Ad Testificandum. 

2. On Monday, August 27,2012 at approximately 3:40 p.m., in an effort to avoid 

filing the instant Motion, I met and conferred with Complaint Counsel-Alexander Ansaldo, 

Esquire, and Thomas Brock, Esquire-via telephone in an effort in good faith to resolve by 

agreement the issues raised in the instant Motion. 

3. On Wednesday, August 29,2012, at approximately 4:00 p.m., I had a further 

conversation with Ted Hassi, Esquire, Lead Complaint Counsel. While more progress was 

made, we have been unable to resolve all issues yet, and we feel obliged to file the instant 

Motion to protect SIGMA's rights. 

DMEAST #15586208 v3 
4. I have set forth more fully below the issues leading up to the instant Motion, in 

addition to our unsuccessful efforts towards resolution. 

5. On July 17,2012, Complaint Counsel for the Federal Trade Commission (the 

"FTC") wrote to me and stated that they intended to offer into evidence at the hearing of this 

matter almost 500 exhibits related to SIGMA. The exhibits were not included in Complaint 

Counsel's letter to me, but included only by a list of the very same "Attachment A" that is 

attached to the instant subpoena. 

6. In that July 17 correspondence, Complaint Counsel requested that SIGMA sign 

and return a declaration regarding the admissibility of those exhibits. The declaration sought a 

SIGMA witness to attest that each of the documents was (a) "made at or near the time of the 

occurrence of the matters set forth by, or from information transmitted by, a person with 

knowledge of those matters," (b) "was kept in the ordinary course of regularly conducted 

activity," and (c) "was made by the regularly conducted activity as a regular practice." A true 

and correct copy of the proposed declaration is attached hereto as Exhibit A. 

7. On August 14,2012, without having sent to me true and correct copies of the 

documents that Complaint Counsel sought to offer into evidence, Complaint Counsel again 

asked that SIGMA sign the declaration regarding admissibility of these documents. 

8. On that same date, I requested that Complaint Counsel confer with counsel for 

Respondent, McWane, Inc. ("McWane")-as I had received a similar request from McWane's 

counsel regarding admissibility of McWane's documents in the trial of this matter-and propose 

a narrower subset of documents for which SIGMA could review to determine whether such 

documents would qualify for a declaration as to their admissibility. 

OMEAST #15586208 v3 2 
9. On August 16,2012, Complaint Counsel informed me that McWane would not 

stipulate to the admissibility of any SIGMA documents and requested that SIGMA sign the same 

declaration that was provided to me on July 17,2012. 

10. On August 17,2012, I wrote to Complaint Counsel outlining several issues 

relating to the requested declaration. I stated that the burden on SIGMA to review these 500 

documents would be substantial, especially because the documents for which Complaint Counsel 

was seeking a declaration had not been sent to me. I stated that the documents would have to be 

retrieved, printed, reviewed, and then presented to the correct witness within SIGMA to attest to 

each document's authenticity-as the hundreds of documents identified in Attachment A 

contained communications from dozens of different people, both within and without SIGMA. I 

stated to Complaint Counsel that I estimated it would cost more than $20,000.00 in legal fees to 

do this work and requested, again, that Complaint Counsel confer with counsel for Mc Wane to 

limit the scope of documents. 

11. In that same communication to Complaint Counsel, I stated that the declaration 

sought was substantively flawed. I stated that, while SIGMA would be willing to stipulate or 

affirm that any document provided in response to a subpoena in this proceeding came from its 

files and was a true and correct copy as maintained in the regular course of its record-keeping, 

SIGMA could not declare, as was requested, that every document on Attachment A "was kept in 

the ordinary course of regularly conducted activity," and "was made by the regularly conducted 

activity as a regular practice." I was concerned and expressed to Complaint Counsel that almost 

all of the documents in Attachment A are e-mails or other such documents that arise under a 

variety of circumstances. I gave an example of certain documents that related to negotiations of 

a Master Distribution Agreement with McWane. I explained that such documents were the result 

DMEAST #15586208 v3 3 
of a fairly extraordinary set of circumstances and, in my opinion, could not satisfy the 

affirmation sought. I stated that SIGMA was prepared to work with Complaint Counsel to 


achieve a declaration that would accurately apply to all of the requested documents. 


12. On August 24, 2012, Complaint Counsel sent to my colleague an electronic file 

containing 24 documents, which was a subset of the documents contained in Attachment A to the 

instant sUbpoena. Complaint Counsel stated that counsel for McWane would stipulate to the 

admissibility of every document contained in Attachment A, aside from these 24 documents. 

Therefore, Complaint Counsel again requested that SIGMA execute the same declaration 

language set forth in their July 17, 2012 letter with respect to these 24 documents. 

13. After reviewing these 24 documents, I set up a telephone call with Complaint 

Counsel on August 27,2012, as set forth in Paragraph 2 above. During that call, I stated to 

Complaint Counsel that the language sought in the proposed declaration was inaccurate and, 

therefore, SIGMA could not declare that these 24 documents were "made by the regularly 

conducted activity as a regular practice" because, in my opinion, none of them were a "regular 

practice," but related to unique business issues that did not arise in any regular course of 

SIGMA's operations. I also stated almost all of the 24 documents had been the subject of 

examination with SIGMA witnesses in both the Investigative Hearing that preceded the 

complaint in this matter and during the depositions conducted in the adjudicative proceeding of 

this matter and that any evidentiary issues were, or should have been, dealt with by Complaint 

Counsel during those depositions. 

14. Complaint Counsel stated during this call that they would be noticing a records 

deposition of those 24 documents for August 31, 2012. I replied that such a deposition would be 

DMEAST #15586208 v3 4 
futile, as no SIGMA deponent could state that each of the 24 documents "was kept in the 

ordinary course of regularly conducted activity," or "was made by the regularly conducted 

activity as a regular practice." In response, Complaint Counsel stated it still intended to go 

forward with the records deposition of a SIGMA representative. 

15. Following this phone call, I again reached out to Complaint Counsel to state that 

SIGMA wanted to be truthful and accurate in any declaration it signed regarding these 24 

documents for which the FTC sought admissibility at trial. I stated that SIGMA would entertain 

a draft affidavit that contained accurate language. I stated that I would accept service on behalf 

of SIGMA of a subpoena ad testificandum in the event we could not reach agreement on the 

language of a declaration. Late in the date on Wednesday, August 29,2012, Complaint Counsel 

forwarded to me a draft affidavit addressing the authenticity of the documents produced from 

SIGMA's files. Bye-mail shortly thereafter, I advised Complaint Counsel that I believed that 

SIGMA (or its counsel) could sign a declaration stating that the documents it produced in this 

matter are "(1) accurate duplicates, produced from SIGMA's files, or original records that were 

kept as a regular practice in the ordinary course of SIGMA's business, and (2) in the same, or 

substantially the same, condition as when it was produced, sent, or received by SIGMA (as the 

case may be)."! 

16. It is my understanding that such a declaration would satisfactorily address 

Complaint Counsel's concerns about authenticity of documents produced by SIGMA. 

! Attachment A to the subpoena lists three documents bearing an "E" Bates label prefix, five 

documents bearing an "SPP" Bates label prefix, and 11 documents bearing a CX Bates label 

prefix. None of these documents was produced from SIGMA's files, so SIGMA will be unable 

to attest to the authenticity of those documents. 

DMEAST #15586208 v3 5 
I 

17. By Federal Express delivery, on August 28,2012, I received the subpoena at issue 

in this Motion. The subpoena seeks to compel a SIGMA witness to review and testify about the 

"authenticity and admissibility" of approximately 500 documents. The subpoena does not 

contain copies of the documents. The date of the deposition is less than 72 hours after the 

subpoena was served. 

18. By Federal Express delivery received on August 29,2012, I received a CD-ROM 

containing .pdf files that purports to be all of the approximately 500 documents listed in 

Attachment A to the subpoena. I received this disc less than 48 hours before the noticed 

deposition. 

19. As set forth in Paragraphs 15 and 16, it is my understanding that Complaint 

Counsel only seeks examination on the 24 documents identified on August 24, 2012, and not on 

all of the approximately 500 documents set forth on Attachment A to the subpoena. 

20. As counsel for SIGMA, I also was present at, and am familiar with, the 

depositions of SIGMA's employees in this matter. In particular, I entered into an agreement 

with counsel for McWane, and Complaint Counsel to agree upon a nine-hour deposition of 

Victor Pais-who no longer is an active employee at SIGMA-due, in part, to the large number 

of documents that he sent or received. Mr. Pais's Investigative Hearing took almost seven hours, 

and Mr. Pais has been subpoenaed to appear as a witness in the hearing of this matter, along with 

Mitchell Rona, Thomas Brakefield, Larry Rybacki, and Matt Minamyer-all of whom were 

deposed already concerning many of the instant documents. Siddharth Bhattacharji, who has 

been deposed in this proceeding, and who also sent or received documents subject to the 

subpoena, has been subpoenaed for trial by McWane's counsel. 

DMEAST #15586208 v3 6 
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 

and correct. 

in 

Executed 

Philadelphia, 

this 30th 

Pennsylvania. 

day of August, 2012, 1~~CL4J~ Matthew A. White 

DMEAST #15586208 v3 7 
EXHIBIT A 

UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


) 

In the Matter of ) PUBLIC 

) 

MeW ANE, INC., ) DOCKET NO. 9351 

Respondent ) 

---------------------------------) 


DECLARATION 

I, , pursuant to 28 U.S.C. § 1746, make the following 

statement: 

1. 	 I am an employee of Sigma Corporation. I have personal knowledge of the facts set forth in 

this declaration, and if called as a witness I could and would testify competently under 

oath to such facts. 

2. 	 I have reviewed the documents referenced in Attachment A to this Declaration, which have 

been identified by Complaint Counsel with CX numbers for use as exhibits in the abovecaptioned matter. 

3. 	 I hereby certify that each document referenced in Attachment A herein: (a) was made at or 

near the time of the occurrence of the matters set forth by, or from information transmitted 

by, a person with knowledge of those matters; (b) was kept in the course of regularly 

conducted activity; and (c) was made by the regularly conducted activity as a regular 

practice. 
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. 

Executed on: 

Name: 

Title: 

2 

UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


In the Matter of 

PUBLIC 

McWANE, INC., 

a corporation. Docket No. 9351 

Certificate of Service and Regarding Electronic Submission 

I certify that on August 30, 2012 .. I submitted the "Motion To Quash Subpoena" along 

with a proposed order and Declaration of Matthew A. White, Esquire, electronically in PDF 

format using the FfC's E-Filing System, and also served a copy of the foregoing document in on 

the following by the method indicated: 

Donald S. Clark 


Office of the Secretary 


Federal Trade Commission 


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


NW Washington, DC 20580 


(original and 10 copies ofunredacted version sent by Federal Express) 

The Honorable D. Michael Chappell 


Administrative Law Judge 


Federal Trade Commission 


600 Pennsylvania Ave., NW, Rm. H-106 


Washington, DC 20580 


(original and 10 copies ofunredacted version sent by Federal Express) 

Edward Hassi 


Geoffrey M. Green 


Linda Holleran 


Thomas H. Brock 


Michael L. Bloom 


Jeanine K. Balbach 


DMEAST #15578455 v5 
J. Alexander Ansaldo 

Bureau of Competition 

Federal Trade Commission 

Washington, DC 20580 

Complaint Counsel 

(by email to ehassi@ftc.gov; ggreen@ftc.gov; lholleran@ftc.gov; tbrock@ftc.gov; 

mjbloom@ftc.gov; jbalbach@ftc.gov;jansaldo@ftc.gov) 

Joseph A. Ostoyich 


William Lavery 


Baker Botts L.L.P. 


1299 Pennsylvania Ave., N.W. 


Washington, D.C. 20004-2420 


J. Alan Truitt 


Thomas W. Thagard III 


Maynard Cooper & Gale PC 


1901 Sixth Avenue North 


2400 Regions Harbert Plaza 

Birmingham, AL 35203 

Counsel for Mc Wane, Inc. 

(by. email tojoseph.ostoyich@bakerbotts.com;William.lavery@bakerbotts.com; 

atruitt@maynardcooper.com) 

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

Secretary of the Commission via the FTC E-Filing System is a true and correct copy of the 

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

0\cttov C-~ Matthew A. White 

DMEAST #15578455 v5 2