ORfGINAL 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRAE COMMISSION
 

In the Matter of ) Docket No. 9327 

) 

) PUBLIC 

) 

) 

Polypore International, Inc. ) 

a corporation ) 

) 

) 

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EXIDE TECHNOLOGIES' (I) MOTION FOR IN CAMERA TREATMENT 

OF THE GILLESPIE DECLARATION, AND (II) OPPOSITION TO
 

RESPONDENT'S MOTION FOR A COURT ORDER ALLOWING
 

RESPONDENT TO REVIEW THE DECLARATION OF DOUGLAS
 

GILLESPIE
 

Non-party Exide Technologies ("Exide") moves, pursuant to Federal Trade
 

Practice 3.45(b), 16 C.F.R. § 3.45(b), for an order directing 

in camera treatment of the September 30, 2009 Declaration of Douglas Gillespie 

Commission ("FTC") Rule of 


("Gillespie Declaration") that was submitted with Complaint Counsel's Response To 

Respondent's Second Motion To Reopen The Hearing Record. 

In addition, Exide submits this opposition to Respondent's Motion For A Court 

Order Allowing Respondent To Review The Declaration Of Douglas Gillespie. 

i. THE GILLESPIE DECLARATION SHOULD BE GIVEN IN CAMERA
 

TREATMENT 

In the Declaration Of Douglas Gilespie In Support Of In Camera Treatment that 

is attached to this pleading, Mr. Gillespie explains why the Gilespie Declaration (i.e., his 

prior declaration on September 30, 2009) should receive in camera treatment. As he 

explains, the Gillespie Declaration principally discusses Exide's ongoing negotiations 
with Daramic for the supply of separators. It also discloses highly confidential 

information concerning Exide's plans and expectations concerning potential contractual 

arrangements with Daramic and others after the expiration of Exide's current contract 

with Daramic at the end of 2009. Disclosure of this information would cause serious 

harm to Exide's ability to negotiate new supply arrangements and place Exide at a 

significant negotiating disadvantage. For that reason, Exide treats such information as 

highl Y confidentiaL. 

Similar Exide documents have previously been given in camera treatment for 

these reasons. See Order On Non-Party Exide's Supplemental Motion For In Camera 

Treatment at 2 (May 18, 2009) (granting in camera treatment for documents relating to 

Daramic contract proposal, including "minutes and notes reflecting Exide's internal 

analysis of Daramic's proposal"); Order On Non-Parties' Motions For In Camera 

Treatment at 4-5 (May 6, 2009) (granting in camera treatment for documents relating to 

ongoing contract negotiations with potential suppliers). The Gillespie Declaration merits 

the same in camera treatment. 

II. RESPONDENT'S COUNSEL SHOULD NOT BE PERMITTED TO
 

DISCLOSE THE GILLESPIE DECLARATION TO DARAMIC'S
 

EXECUTIVES 

Polypore has requested an order that would permit disclosure of the Gilespie 

Declaration to "Respondent" - which presumably includes, but certainly is not limited to, 

the Daramic executives who are directly involved in ongoing contract negotiations with 

Exide. That motion should be denied. 

Respondent's arguments in support of this motion are frivolous, at best. The 

claim that it is "impossible" to comply with the October 2, 2009 Order Requiring Reply 

2
 
Brief ("Order") without disclosing the Gilespie Declaration is refuted by the clear terms 

of the Order itself, which requires Respondent to address "( w )hether Respondent
 

Order ~ 2. Compliance with the Order does not require 

disclosure of information to Respondent; it requires disclosure of information by 

possesses evidence. " 


Respondent. Respondent surely knows what evidence it does or does not possess. And if 

Respondent possesses relevant evidence, any competent counsel should be able to elicit it 

without disclosing the Gillespie Declaration or its contents. 

Respondent's counsel surely understands this. The Protective Order that has
 

governed the treatment of confidential discovery information throughout this proceeding 

has forbidden the disclosure of confidential information to Respondent. Respondent's 

counsel has vigorously defended the litigation, without once (to Exide's knowledge) 

claiming that there was any need to disclose protected confidential discovery information 

in order to respond to such confidential information. Similarly, Respondent's counsel
 

was barred from disclosing Mr. Gillespie's in camera testimony to Respondent, but 

nonetheless mounted a vigorous defense with no claim that there was any need to waive 

the in camera rules for the benefit of Daramic's executives. Indeed, if there were any 

merit to Respondent's argument - that confidential information from third parties must be 

disclosed to the Respondent, in order to elicit evidence that Respondent already possesses 

- protective orders and in camera rules would be set aside routinely, not only in this case 

but in every case. 

There is no reason to inflict harm on Exide, a non-party, or to confer a 

commercial advantage on Daramic, by permitting the disclosure of Exide's confidential 

3
 
information - especially when such disclosure is entirely unsupported by any legitimate 

need. 

CONCLUSION 

The Gillespie Declaration should be given in camera treatment. Respondent's 

motion should be denied. 

Dated: October 9, 2009 Respectfully submitted,/. /

&'-g""Á /~LfjA//C'(¡

Donald J. Russell 

ROBBINS, RUSSELL, ENGLERT, ORSECK, 

UNTEREINER & SAUBER LLP 

1801 K Street, N.W., Suite 411L 

Washington, D.C. 20006 

Telephone: (202) 775-4500
 

Facsimile: (202) 775-4510 

drussell(à)robbinsrussell.com 

Counsel for Exide Technologies 

4
 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of	 ) Docket No. 9327 

) 

) 

) 

) 

Polypore International, Inc. ) 

a corporation	 )
 

)
 

)
 

PROPOSED ORDER 

Upon the motion of non-party Exide Technologies, and for good cause shown, it 

is hereby ORDERED: 

The September 30, 2009 Declaration Of Douglas Gillespie, submitted with 

Complaint Counsel's Response To Respondent's Second Motion To Reopen The Hearing 

Record, shall be placed in camera for a period of three years; AND 

Respondent's Motion For A Court Order Allowing Respondent To Review The 

Declaration Of Douglas Gillespie is denied. 

ORDERED: 

D. Michael Chappell 

Administrative Law Judge 

Date: 
CERTIFICATE OF SERVICE 

I hereby certify that on October 9, 2009, I caused to be filed via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Exide Technologies' 

(I) Motion For In Camera Treatment Of The Gilespie Declaration, And (II) Opposition 

To Respondent's Motion For A Court Order Allowing Respondent To Review The 

Declaration Of Douglas Gilespie, and that the electronic copy is a true and correct copy 

of the paper original and that a paper copy with an original signature is being fied with: 

Donald S. Clark, Secretary
 

Office of the Secretary
 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W., Rm H-135
 

Washington, D.C. 20580
 

secretary(à;ftc.gov
 

I hereby certify that on October 9,2009, I caused to be served one copy via 

electronic mail delivery and two copies via hand delivery of the foregoing Exide 

Technologies' (I) Motion For In Camera Treatment Of The Gilespie Declaration, And 

(II) Opposition To Respondent's Motion For A Court Order Allowing Respondent To 

Review The Declaration Of Douglas Gillespie upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commission
 

600 Pennsylvania Avenue, N.W.
 

Washington, D.C. 20580
 

oa!j(wftc.gov
 

I hereby certify that on October 9,2009, I caused to be served by first class mail 

delivery and electronic mail delivery a copy of the foregoing Exide Technologies' (I) 

Motion For In Camera Treatment Of The Gilespie Declaration, And (II) Opposition To 

Respondent's Motion For A Court Order Allowing Respondent To Review The 

Declaration Of Douglas Gillespie upon: 

William L. Rikard, Jr. 

Eric D. Welsh 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, N.C. 28202 

w il i iamrikard(à)parkerpoe. com 

cri cwelsh(wparkerpoe.com 

J. Robert Robertson 

Steven Dahm 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

rrobertson((j)ftc. gov 

sdahm Cùftc.o-o 1 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

In the Matter of	 ) Docket No. 9237 

) 

) 

) PUBLIC

) 

) 

Polyp ore InternationaL, Inc. )
 

a corporation )
 

)
 

)
 

DECLARATION OF DOUGLAS GILLESPIE 

IN SUPPORT OF IN CAMERA TREATMENT 

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

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I. My name is Douglas Gilespie. I am the Vice President for Global Procurement 

for Exide Technologies. On September 30, 2009, I signed the "Declaration Of Douglas 

Gilespie" ("Gilespie Declaration") which Complaint Counsel submitted with its 

Response To Respondent's Second Motion To Reopen The Hearing Record. I submit
 

thi declaration in support of 
 Exide Technologies' (1) Motion For In Camera Treatment

Of The Gilespie Declaration, and (II) Opposition To Respondent's Motion For A Cour 

Douglas Gilespie. Order Allowing Respondent To Review The Declaration Of 


2. The Gilespie Declaration contained informtion that is highly confidentiaL. 

Public disclosure of that material would seriously har Exide's commercial and 

competitive interests. For that reason, Exide requests that the Gilespie Declaration be 

given in camera treatment until such time as disclosure wil not cause this har 

3. The Gilespie Declaration principally discusses Exide's ongoing negotiations with
 

Dararc for the supply of separators. The declaration discloses, among other thigs, 

Exide's analysis of the available sources of 
 supply for separators used to produce flooded

1 
automotive (SLI) batteries in North America and separators used to produce flooded 

motive, deep cycle, and UPS batteries manufactured in North America. It also discloses 

higWy confidential information concerning Exide's plans and expectations concerning 

potential contractual arangements with Daramic and others after the expiration of 

this information Exide's current contract with Darallc at the end of2009. Disclosure of 


would cause serious har to Exide's ability to negotiate new supply arangements. 

4. Disclosure of the Gilespie Declaration to Darallc business executives, il
 

paricular, would har Exide's position in the ongoing negotiations. In my experience as
 

the executive in charge of negotiating Exide's procurement contracts, disclosure of 

information of this type may lead to a significant negotiating disadvantage.

5. This information about Exide's negotiating plans and options is treated by the
 

company as highly confidentiaL. The information is distributed withi the company only 

to those who have a specific need for it. These individuals are typically bound by 

confidentiality obligations that would prohibit them from disclosing the information if 

they left the company. This information is not disclosed to others outside ofthe company 

and, in paricular, is not disclosed to Exide's competitors or suppliers.
 

6. Whatever the result of current negotiations, Exide may find itself negotiating with 

Daramc for a new agreement at any time in the foreseeable future. Disclosure of the 

Gilespie Declaration would prejudice Exide's negotiating position in such negotiations. 

For this reason, I believe that the information in the Gilespie Declaration should receive 

in camera treatment for a period of at least three years, and that any shorter period would 

risk substantial competitive and commercial har to Exide. 

2
 
I declare under penalty ofperjury under the laws ofthe United States of America that the 

foregoing is true and correct. 

n-~ ~~ i ( l,D~ 

Douglas Gilespie Date 

3