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5t'Òá'! UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

) PUBLIC 

Docket No. 9327 

) 

RESPONSE TO JOINT MOTION OF RESPONDENT AND ENERSYS 

FOR LEAVE OF COURT TO CONDUCT DEPOSITIONS OF ENERSYS 

EMPLOYEES AFTER THE DISCOVERY DEADLINE 

Complaint Counsel does not oppose the Joint Motion of Respondent and Enersys for 

Leave of Coui1 to Conduct Depositions of Enersys Employees after the Discovery Deadline so 

long as other discovery deadlines and trial are not delayed. Complaint Counsel is not willing to 

agree to any delay of trial for any reason, especially in light of the fact that Polypore has recently 

been initiating monopolostic price increases upon third-party customers. 

Complaint Counsel respectfully opposes any delay of trial or extension of other discovery 

deadlines for any reason. No delay of trial is wan"anted because Polypore has issued an 

extremely broad and extensive subpoena to Enersys well after discovery had begun. The 

subpoenas that Polypore has issued to Enersys and other third parties are significantly more 

extensive than both the Part 2 document subpoena and document requests issued by Complaint 

Counsel to Polypore. J Complaint Counsel served its document request on Polypore on October 

22, 2008. Polypore did not issue its subpoena to Enersys until November, despite more than a 

IPolypore complained to this Court that Complaint Counsel's document request was "a 

fishing expedition"seeking "vast quantities of documents." See Exhibit A, Respondent's 

November 3,2008 Motion for a Protective Order Regarding Discovery at 6. Respondent also 

characterized Complaint Counsel's discovery request as "onerous" and "burdensome." ¡d. At 9. 
month to prepare before discovery even began. Respondent had already noted the need for it to 

conduct discovery quickly in this matter in its Motion to Reschedule Hearng Date on October 1, 

2008, and had apparently already identified the firms from whom it intended to conduct 

discovery. Exhibit B at pp. 6-7. In view of its recognition that it must conduct discovery 

quickly, it is unacceptable that Polypore would wait two weeks or more after discovery had 

begun to issue document subpoenas to those firms. Moreover, Polypore failed to object when 

Enersys sought additional time to file its motion to limit the subpoena or seek cost 

reimbursement. See Enersys' Motion to Extend Time in Which to Move to Limit Subpoena 

Served by Respondent Upon Third Party and to Seek Cost Reimbursement, attached as Exhibit 

C. During the course of that time, Polypore failed to negotiate and narrow its subpoenas to 

Enersys in a way that permtted timely discovery. 

Polypore issued its extensive and onerous discovery request late, sat on its rights, and now 

seeks additional time to conduct depositions. Any delay of trial wil redound to the detriment of 

lead-acid battery separator consumers. However, to accommodate Respondent and Enersys, 

Complaint Counsel is willng to agree to additional time for Polyp 
 ore to conduct its depositions 

of Enersys. 

Dated: Januar 15, 2008 Respectfully submitted, 

do&ls~~ 

Complaint Counsel 

Bureau of Competition 

Federal Trade Commssion 

600 Pennsylvania Ave, NW (H-374) 

Washington, DC 20580 

Telephone: (202) 326-2813 

Facsimile: (202) 326-2214 

2 
CERTIFICA TE OF SERVICE 

I hereby certify that on Januar 15,2009 I filed via hand and electronic mail delivery an 

original and two copies of the foregoing Response to Joint Motion of Respondent and Enersys 

For Leave of Court to Conduct Depositions of Enersys Employees after the Discovery Deadline 

with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

I hereby certify that on Januar 15, 2009, I served via electronic mail and mail delivery a 

copy of the foregoing Response to Joint Motion of Respondent and Enersys 

For Leave of Court to Conduct Depositions of Enersys Employees after the Discovery Deadline 

with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW, H-I06 

Washington, DC 20580 

oali (gftc.gov 

I hereby certify that on January 15,2009, I served via electronic mail delivery and first 

class mail two copies of the foregoing Response to Joint Motion of Respondent and Enersys 

For Leave of Court to Conduct Depositions of Enersys Employees after the Discovery Deadline 

with: 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrikard (gparkerpoe.com 

ericwelsh (gparkerpoe.com 

Linda Cunningham 

Federal Trade Commssion 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

!cunningham (gftc.gov 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

In the Matter of ) Docket No. 9327 

Polypore International, Inc., )

) 

PUBLIC DOCUMENT
 

a corporation.
 ) 

RESPONDENT'S MOTION FOR A PROTECTIVE ORDER REGARDING DISCOVERY 

Pursllant to the Federal Trade Commission's Rules of Practice for Adjudicative 

Prpceedings ("FTC Rules"), 16 C.F.R. §§ 3.22 and 3.31(d), Respondent Polypore International, 

Inc. ("Polypore"), by its attorneys, Parker Poe Adams & Bernstein LLP, hereby moves for a 

protective order to (1) limit the scope of Complaint Coun.sel's First Set of Interrogatories to 

Respondent Polypore International, Inc. (the "Interrogatories") and Complaint Counsel's First Set 

of Document Requests to Respondent Polypore International, Inc. (the "Docmnent Requests"); (2) 

deny improper discovery demanded beyond the limits set in the Scheduling Order entered on 

October 22, 2008; (3) limit the depositions curently sought to the extent Complaint Counsel
 

intends to question witnesses based on thrd pary discovery document; and (4) quash, or limit, the 

depositions of sought of Steve McDonald, Michael Gilchrst, Timothy Riney, S. Tucker Roe and 

Pierre Hauswald (the "Depositions") - individuals 
 previously questioned at lengt by Complaint's 

Counsel as par of its pre-complaint investigation. i 

INTRODUCTION 

After having engaged in what can only be described as unettered and one-sided discovery 

of Polypore for over five months, the Federal Trade Commission ("FTC") issued its Complaint 

against Polypore on September 9,2008. Polypore does not yet know the full extent of the FTC's 

prior discovery, as Complaint Counsel has not yet complied witl its obligations and produced the 

i Copies ofInterrogatories, Document Requests and Deposition Notices arc attached as Exhibits A, B and C, respectively. 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
information which it obtained from third paries during its investigation.2 Polypore, of course, is 

aware of 
 what it provided to the FTC, at considerable cost and expense, leading up to this case: 

· Polypore produced over i.1 milion pages of docmnents to the FTC in response to
 

its discovery requests. 

. Polypore responded to 44 CID requests.
 

· After having produced these documents and having responded to the CID, Polypore
 

made five witnesses available for examination by the FTC in investigational 

hearings. Two of those witnesses (Messrs. Tucker Roe and Timothy Riney) were 

deposed over the course of two days and one witness (Mr. Pierre Hauswald) was 

deposed for nearly 1 i hours. The transcripts of the examnations of these witnesses 

exceed 1660 pages. Each witness was examined on the issues that came to serve as 

the basis for the allegations of 
 the Complait. i 

Whle Complaint Counsel has chosen to ignore much ofwh¡it Polypore provided to the FTC in ths 

discovery in crafing its Complaint, the fact remains' that the FTC has already engaged in 

extensive, one-sided discovery of Polypore on the very issues identified in the Complait. 

Despite all of ths discovery of Polypore, Complaint Counsel has decided to extend its
 

fishing expedition, seeking vast quantities of documents and responses to oppressive 

interrogatories and demanding examinations of the same five witnesses that they spent over 46 

hours examinig only months before on the very same issues set forth in the Complaint. What is 

even more alaring is the fact that Complaint Counsel has violated the terms of the Admistrative 

Law Judge's rues limting the number of interrogatories to 50 including subpars. Apparently, 

2 ~ Letter of Wiliam L. Rikard, Jr., dated October 29. 2008, at p. 2 ("I am conccrncd with Steve's comment today that 

he has not yet contacted all thrd-paries with respect to the disclosure of their documents and infonnation in this matter under the 

protective order and has no obligation to produce any of these materials to us absent a formal request. It was certainly our 

expectation, based on lle representation made in thc initial disclosures made to the Administrtivc Law Judge, that you would have 

promptly contacted thtse third paries once the Protcctive Order was entered, which was onc week ago. Jnaddition, we do take 

issue with your statement that you are not required to produce the third-par documents in thc investigational hearings to us absent 

a document request. In fact, in the initial disclosures fied by Complaint Counsel will the Administrative Law Judge, Counsel 

statcd "Complaint Counsel will provide copies of third-part's documents and materials 10 days afer such time as the
 

Administative Law Judge has entered a protective order in this matter and the third-paries who submitted thè documents have 

been apprised of thcir rights under the protective order." Complaint Counsel's Initial Disclosures to Respondent Polypore
 

International. Inc., p. 3 (emphasis added)."). 

2 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of /
 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
Complaint Counsel's strategy is to cause Polypore as much fiancial pain as possible in the 

discovery process in order to force capitulation. As noted by Commssioner Rosch, in addressing 

the proposed changes to the FTC Rules, a litigant is not to be subjected to oppressive 
 proceedings 

that are unduly expensive and burdensome and outcome determinative due to such excesses: 

First, in merger cases, protracted par 3 proceedings may result in the paries 

abandoning transaetions-before-their- antitrust--merits-can- be adjudicated. 

Second, in all antitrst 
 cases, protracted Par 3 proceedings may result in
 

substantially increased litigation costs for the Commission and for the clients whose
 

transactions or practices are challenged. More specifically, protracted discovery 

schedules and pretrial proceedings may be good for the litigators, but they can
 

result in nonessential discovery and motion practice that can be very costly to both
 

the Commission and those clients.3
 

Whle Commissioner Rosch was addressing the costs and determinative nature of the proceedings 

in the context of the length of time for Par 3 cases, the principle applies equally to the abusive
 

" 

discovery tactics being employed here by Complaint Counsel. Indeed, in arving at an agreed-to 

schedule for ths case with 
 Complaint Counsel, Respondent relied on statements made by 

Complait Counsel that its discovery of Polypore would be targeted, narow and specifc, "rifle 

shots," rather than the shotgu approach used by Complaint Counel here. If Respondent had 

known that Complaint Counsel intended to redo the extensive discovery already taken, it would 

have strenuously sought a different schedule than cuttg discovery off at February 13, 2009, and 

holding the hearing in ths matter on April 14,2009. 

Given the limited time for discovery under the expedited schedule and consistent with the 

intent of 
 the proposed FTC rule changes to "improv( e) effciency and timing of administrative 

litigation,,,4 subjecting five people to questioning on the same topics with no limitation has no 

3 Reflections on Procedure at the Federal Trade Commission. Remarks of 1. Thomas Rosch, Commissioner, Federa 

Trade Commission. ABA Antitrust Masters Course iv. September 25, 2008. 

4 Id. 

3 

PPAB 14959I5v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
place here. Respondent does not suggest that Complaint Counsel's pre-complaint investigation 

must have encompassed and gathered "all" the details for each and every transaction that might \ 

become an evidentiar item in ths litigation, only that in an expedited action it is hicmnbent on all 

pares and counsel to be as effcient as possible. To the extent information may ,be needed to 

"round out, extend, or supply furter details" about a transaction or topic such questions may
 

promote effciency, but a wholesale free-for-all of any and all topics that have previously been 

exhausted in the pre-complaint investigational hearngs is burdensome and wastefu and should 

have no place in an expedited schedule or under the proposed new rules.5 Complaint Counsel's 

deposition of the five previously questioned witnesses should bè either ,denied outright or limited 

to information that rounds out, extend or supplies fuher details of specific topics and not to an 

unlimited deposition of previously-ploughed ground. 

. Complaint Counsel's written discovery is overbroad, unduly burdensome, harassing,' seeks 

information not reasonably expected to yield inform,ation relevant to this matter, and exposes 

individuals who 
 have already submitted to hours and days of deposition to additional anoyance, 

oppressiòn and burden. An otder limiting the scope of Complaint Counsel's written discovery and 

depositions is appropnate. i 

Complaint Counsel has served sweeping docmnent requests and interrogatories on 

Respondent which are - on their face - dramatically overbroad in violation of the ALJ's October 

22, 2008 Scheduling Order, and, if read literally, might call for the production of hundreds of 

thousands of docmnents that could have no conceivable relevance to the clais asserted in this
 

\ 

action. Literal compliance with the Complaint Counsel's written discovery would require
 

Respondent to review milions of pages of fies maintained by individuals employed by dozens of 

s All-State Indus.. et al.. 72 F.T.C. 1020, 1023-24 (Nov. 13, 1967). 

4 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
companies allover the world that are associated or affliated with or have some relation, however 

remote, to Polypore. In the context of this litigation, such a task would be Herculean - it is 

certnly well outside the spint and intent of the expedited natue of ths litigation and the 

aspiration to reduce "noneSsential discovery and motion practice that can be,very costly to both the 

Commission and (the challenged) clients.,,6 Furter, Complaint Counsel seeks duplicative and 

burdensome depositions of five individuals who were subject to investigational hearngs in the Par 

II investigation. 

DISCUSSION 

A. Scope of Discoverv
 

"Pares may obtain discovery to the extent that it may be reasonably expected to yield 

information relevant to the allegations of the complaint, to the proposed relief, or to the defenses of 

any respondent." FTC Rules 3.3I(c)(I); see-FTC v. Anderson. 631 F.2d 741, 745 (D.C. Cir. 

1979). The Administrative Law Judge has the authority to limit discovery to the extent it is 

"uneasonably cumulative or duplicative," "the par seeking discovery has had ample opportunty 

by discovery in the action to obtain the information s~ught;" or "the burden and expense ~f the 

proposed discovery outweigh its likely benefit." FTC Rules 3.31(c)(I)(i-ii). Furer, the ALJ
 

may deny discovery or make any order to protect "any pary. . . from anoyance, embarassment, 

oppression, or undue burden and expense . . ." FTC Rules 3 .31 (d). 

I. Complaint Counsel's Written Discovery is Overbroad, Unduly Burdensome
 

and Seeks Information Not Relevant to this Matter 

The Scheduling Order in ths matter entered on October 22, 2008, limits each par to 50
 

dòêunent requests and 50 interrogatones, including subpar. Ths limitation doubles the stadard 

6 See n. 3 supra. 

5 

PPAB 1495915v3 

EXHIBiT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

. -


to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
nmnber of interrogatories permissible under the FTC Rules. Rule 3.35. Notwithstading this 

generous allowance and clear limitation, in addition to the admonition that "(a)dditional discovery 

may be permitted only for good cause shown upon application to and approval by the 

Administrative Law Judge," Complaint Counsel served upon Respondent on the same day the 

Scheduling Order was entered Interrogatories well in excess of the 50 interr~gatory limitation (by 

one count, the Interrogatories are well in excess of 116).
 

"The purose of interrogatories is to narow the issues and thus help determine what 

evidence will be needed at trial. . ." In re TK-7 Coi:.. 1990 F.T.C. Lexis 20, *1-2 (1990). A 

shotgun approach to discovery will not "narow the issues." Furer, Complaint Counsel failed 

even to ensure that it did not seek duplicative Irormation obtained pteviously during the
 

invèstigatory phase. For instace, Interrogatory No.5 which asks that Polypore, Daramc and 

Microporous identify all sales by relevant product; in each relevant area, from Januar 2003 to the 

present (and projecting forward as possible) with 16 sub-pars requiring fuer information, is
 

substantially duplicative of the CID Request No. 2 which asks for sales for each relevant product, 

in each relevant area from Januar 2003 to the present. The only real differences in the two 

requests are, that Complaint Counsel now wants Respondent to identify the "liiie" from which the 

sales came, the product code and the customer's parent. Ths additiona information is irrelevant 

and certainly does not justify the clearly duplicative discovery sought of Polyp ore. 

Complaint Counsel's excesses are demonstrated by looking at the interplay of their 

definitions with the interrogatories. Complaint Counsel defines "relevant product" 'to include 4 

products (battery separators for deep cycle, uninterrptiblepower supply, automotive and motive 

applications). Complaint Counsel then requests detailed and volmninous information in the guise 

of a single request for each such "product". See ~.g. Interrogatories Nos. 2, 4 (for each product, 

6 

PPAB 14959ì5v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
and for each of Polypore, Daramic and Microporous), 5 (same), 9, 10, 14, 15, 32. In addition, 

Complaint Counsel compounds this egregious discovery by asking for the same information for 

each of 4 "relevant areas," defined as Nort America, Asia, Europe or the World. See ~.g. 

Interrogatories Nòs. 6, 16, 34. This additional burden taes the number of interrogatories well 

beyond even the outrageous number of i i 6. 

A subpar is' to be considered discrete only when it is "logically or factually subsmned 

withn and necessarly related to the primary question." Federal trade Commission v. Thin All 

Publishing. L.L.C.. 2008 WL 687454 (E.l)~ Texas 2008). The Think All Cour went on to explain 

that where "the first question can be anwered fully and' completely without answering the second 

question, then the second question is totaly independent of the first and not factually subsumed 

withn (it)." Id.; see also Kendallv. GES Exposition Servs.. Inc., 174 F.R.D. 684 (D.Nev.1997)). 

Thus it must be considered a separate and distinct question. Complait Counsel here has 

propounded dozens of interrogatories whose subpars can be answered fuly and completely 

separate and apar from the "first' question propounded. ' This is in violation of the FTC Rules and 

the Scheduling Order and should not be tolerated. 

Under the Scheduling Order Respondent has 20 days to respond to the wrtten discovery 

propoutdedupon it. It should not be given the additional burden of havig to sift though 

duplicative questions that are in blatant violation of the limits explicitly set by the Scheduling 

Order, nor should it be required to determine which SO of the interrogatories should be answered. 

Complaint Counsel should be required to abide by not only the Scheduling Order, but by 

the implicit limits set by the FTC Rules and Respondent requests that Complaint Counsel be 

ordered to propoood a new set of interrogatories limited toa maximum of 50, including subparts. 

II. Complaint Counsel's Definition of 
 "Polypore" and "Microporous" 

Substantially Increases the Burden of Responding to the Written Discovery 

7 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
Complaint Counsel has defined "Polypore" in its written discovery as "Respondent, its 

domestic and foreign parents, predecessors, divisions, subsidiares, affliates, parnerships, and 

joint ventures, and all directors, officers, employees, agents and representatives of the foregoing." 

The definition goes on to state that "'Subsidiar,' 'afliate,' and 'joint ventue' refer for this 

purose to any person in which there is a parial (25 percent or more) or total ownership or control 

between the company and any other person." 

Microporous is defined with equa breadth as "Microporous Products L.P., its domestic and 

foreign parents, predecessors, divisions, subsidiaries, affiliates, parerships, and joint ventures, 

and all offcers, directors, employees, agents and representatives of 
 the foregoing." 

As Complait Counsel is aware Polypore International, Inc., is curently owned inore than 

25% by Warburg Pincus. Furher, it is parent to four companies which, in tu are parent to, or are 

affiliated with, 25 companies throughout the world. This does not tae irto account its afliatr~n 

and relationship with its Liquicel and Membrana divisions. The vast majority of these companies 

have no. connection to the issues in the Complairt. Making the definition increasingly absurd, 

should Polypore be required to respond to the discovery using Complaint Counsel's definition, it 

would also be responsible for ascertaining whether all of the directors, offcers, employees, agents 

and representatives of these companes have documents or information potentially falling within 

Complaint Counsel's discovery requi¡sts and then, if so, gatherig and producing the docmnents 

and information no matter how remote to the issues here. Not only would this include thousands 

of employees, it would include all outside directors, counsel and other "representatives" of each of 

those companies. Thus, read literally interrogatory nmnber 8, which asks Respondent to "describe 

the circumstances, the timing of, and all reasons for, the depare of any company employee . . . 

from employment at Polypore since July 1, 2007," would require Respondent to provide to 

8 

PPAB 149591Sv3 

, EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
Complaint Counsel with the circumstances, timing and reasons for the deparure of any 
 employee 

of Polyp ore, Daramc, Warburg Pincus, and \iy of myriad companies allover the world which fall 

within this expansive defintion. Likewise, Respondent would be required to produce docmnents 

related to these depares pursuant to docmnent request number 5, 

By way of fuer example, with respect to Complaint Counsel's definition of 

"Microporous," Microporous was owned prior to the acquisition by Respondent by Industral 

Growt Parers, a private equity company that curently oWIs five portfolio companes.7 Thus, 

accepting Complait Counel's definition to include IGP as a "predecessor" would, again read 

literally, require Respondents under interogatory nmnber 11 to provide the date, list of attendees 

and matters discussed for every board of directors meeting for IGP, and any of its portfolio 

companies, not to mention any prior owner (or predecessor) of Microporous, which would include 

another equity firm, Kelso & Company. Likewise, Respondent would be requied under document 

request number 6 to produce all docutents related to these meetings - including notes of each 

individual director. As with Warburg Pincus, Respondent has no control over IGP or Kelso & 

Company and canQt respond on their behalf. 

Complaint Counsel should not be permtted to impose such onerous and burdensome 

requests on Respondent. Respondent requests that the Cour limit the requests to the followig 

companes: Poly¡ore International, Inc., Daraiic LLC and Microporous Products, L.P. 

Respondent should not have to answer discovery on behalf of its other "parents,' subsidiaries, 

affiliates" or its "predecessors." Each of the relevant companes has been in existence durng the 

" 

7 API Heat Transfer, Ine;; Atlas Material Testing Solutions; 1be Felters Gr~up; Seahoard Wellhead, Inc.; ~d The T ASI 

Group. See www.iirequitv.comlnortolio.htiJ. IGP's former portolio companies, which includes Microporous, number 12
 

different companies in as many industries. .
 

9 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
time frame at issue, thus there is no reason to go beyond those companies to their predecessors or 

other afliated companies.
 

III. Complaint Counsel's Deposition Notices are Duplicative and Burdensome
 

As recognized by the Supreme Court of the United States "(i)t is clear from experience that 

pretral discovery by depositions. . . has a signficant potential for abuse." Seatte Times Co. et al. 

v. Rhinehar et al., 467 U.S. 20, 28 (1984). Complait Counel's desire to tae duplicative 

testimony from 5 individuals who previously submitted to one or more days of testimony durng 

the investigational hearngs is cumulative, duplicative, and unduly burdensome. Five of the eight 

witnesses were deposed at lengt on the issues underlying the Complaint. Complaint Counsel has 

advised that they intend to use the transcripts in the hearng in ths matter, just as they will use the 

1.1 millon docmnents previously produced. Complaint Counsel should not be pennitted to engage 

in such' oppressive tactics in proceedings which are intended to be handled in an expeditious 

manner without imposing undue burden on the litigant. 

While discovery is designed to elicit new infonnation, some of which may be cumulative, 

discovery is not a license to "engage in repetitious, redundant, and tautological inquiies." 

Pusecard. Inc. v. Discovery Card Servs.. et al., 168 F.R.D. 295 (D. Kan. 1996). The Federal Rules 

of èïvil Procedure,8 and federal cours, disfavor repeat depositions. See. e.g., Graebner v. James 

River Corp.. 130 F.R.D. 440, 441 (N.D. Cal. 1989)(preveIitingsecond deposition despite claim 

tht first deposition was "settement" deposition and second was "trial" deposition). Re-deposing 

8 Although the Feder~1 Rules may not govern here, the FTC Rule's essentially mirror the Federal Rules and cases under
 

the F.T.C. have noted that "judicial precedents under the Federal Rules provide helpful guidance in resolving discovery disputes in 

commission proceedings." See. e.g.. Dura Lupe Corp., 2000 FTC. Lexis i, at *31 (Jan. 14,2000); L.G. Balfour Corp., et aI., 61 

F.T.C. 1491,1492 (Oct. 5, 1962). 

10 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
these individuals once more will simply generate 
 hundreds of additional pages of testimony that is 

repetitive of the testimony previously elicited. This is not only burdensome on the individual 

defendants, but is an unnecessary waste of the Respondent's and the governent's time and 

money, a result to be avoided. See supra at 3. 

To the extent Complaint Counsel seeks to ask the same questions to the same witnesses it 

can obtain that information from a less burdensome and costly source - the prior testimony. "In 

making a decisions regarding burdensomeness, a cour should balance the burden of the
 

interrogated pary against the benefit of the discovery par of 
 having that information." Hoffman 

v. United Telecommuncations. Inc., 117 F.R.D. 436,438 (D. Kan. 1987). To allow full access to 

the same individuals does nothng more than increases costs and burden for all paries. Whether 

discovery is unduly burdensome depends on "the needs of the case, the amount in controversy, 

,limitations on the pary's resources, and the importaice of the issues at stae in the litigation." 

Hamerman v. Peacock. et al., 108 F.R.D. 66, 67 (D.D.C. 1985). In this case, requirng these 

individuals to be deposed a second time on any and all subjects outweighs any putative benefit 

Complaint Counsel can expect to obtain and strains the resources of all paries. 

To the extent such depositions are permitted, they should be limited to topics not 

previously covered and "new" information or questions related to topics that have previously been 

covered. It would be inappropriate to require individuals who spent up to two full days being 

questions in the Par II proceeding to have to submit to the same questions yet again. See. e.g., 

Johnston Dev. Group v. Carenters' Local Union No. 1578. 130 F.R.D. 348, 353 (D.N.J. 

1990)("recollection of an event witnessed by five other persons" is duplicativé). 

iv. Deposition's Should be Delayed or Limited until Complaint Counsel
 

Provides the Third Part Documents Previously Produced to Respondent 

11 

PPAB 149591Sv3 

'EXHIBIT A to Response to Joint Molion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
In its Initial Disclosures Complaint Counsel reveals that it has received documents from 

twenty (20) third-pary entities and individuals durng the pre-complaint investigation.
 

Furermore, Complaint Counsel stated in the initial disclosures that it would "pLovide copies of 

the third pary's documents and materials ten days afer. . . the Administrative Law Judge has 

entered a protective order in this matter and the third parties have been apprised of their rights 

under the protective order." Had Complaint Counel acted expeditiously the ten-day period would 

have passed by November 3, 2008. However, Complaint Counsel admitted that as of October 30, 

2008, nöt all third paries had' been apprised of their rights under the Protective Order. In its \ ' , 

response letter of October 31, 2008 to Respondent, Complaint Counsel states all thrd-paries have 

now received the notice and their docmnents will be submitted. ten days afer each thd-pary 

received Complaint Counsel's notice. Assuming some thrd-paries did not rec.eve notice until at 

least October 31, 2008, no thid-pary documents will be produced to Respondent until at least 

November 10, 2008. Despite ths, Complaint Counsel tias scheduled several depositions prior to 

that date, and states that Respondent is not entitled to any of these third-par documents prior ,to 

the takng of the seven curently noticed depositions.
 

The refusal of Complaint Counsel to produce those documents prior to the scheduled 

depositions is patently unair to Respondent and the witnesses scheduled to be deposed. 

Complaint Counsel states that it is "committed to ensuring the fairness of these proceedings," yet it 

is diffcult to imagine how this commitment is advanced by the refusal to allow Respondent's 

counsel time to review documents from 20 different entities and individuals on which the 

deponents may be questioned. Even if the documents and information are designated as . 

confidential under the October 23, 2008 Protective Order, Respondent's counsel should still be 

entitled to see these documents before Complaint Counsel is permitted to engage fuer in what 

12 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
has been noticeably one-sided discovery. Tq permit Complaint Counsel to proceed with
 

examination, especially since it has chosen to delay providing notification to these thrd pares, 

provides an unfai advantage to Complait Counsel that is prejudicial to Respondent and the 

witnesses. This potential for prejudice, oppression and harassment entitles Respondent to a
 

protective order postponing the depositions until at least seven (7) business days after the thirdpar documents have been produced, or il the alternative preventing Complaint. Counel from 

using such documents in any deposition until at least seven (7) business days after the docmnents 

to be used have been produced. 

CONCLUSION 

Complaint Counsel's discovery tactics are uneasonable and inconsistent with the FTC 

Rules and the Scheduling Order in ths case. This overreaching, harassing and overly burdensome 

discovery seeks documents and information that is not likely to yield information relevant to the 

allegations of the complaint, to the proposed relief, or to the defenses of Respondent. For the 

reasons set fort above, and the interest of judicial effciency and economy, this Cour should limit 

and deny Complaint Counel's invalid and improper discovery. 

********************* 

Respondent hereby certfies 
 that it has conferred with Complaint Counsti in a good faith 

attempt to resolve the issues relating to theIssues set out in this motion. See letter of Wiliam 1. 

13 

PPAB 1495915v3 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
Rikard, Jr., dated October 29, 2008, and Complaint Counsel's response, dated October 31, 2008, 

attched hereto as Tab I. While the parties were able to reach agreement on several issues, the
 

issues identified in this motion remain unresolved. 

Dated: Nòvember 3, 2008 R/~ctfullY Submitted, 

Ä/~ ~ ßa. L


Wiliam L. Rikard, Jr. ' f"
 

Eric D. Welsh 

PARER POE ADAMS & BERNSTEIN LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000
 

Facsimile: (704) 334-4706 

williamikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS &, BERNSTEIN LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599
 

Facsimile: (919) 828-0564 

iohngraybeal~parkerpoe.com 

Attorneys for Respondent 

14 

PPAB 1495915v2 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court, 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
./ 

CERTIFICATE OF SERVICE 

I hereby certfy that on November 3, 2008, I 
 caused to be filed via hand delivery and 

electronic mail delivery an original and one copy of the foregoing Motion for Protective Order 

Regarding Discovery and that the electronic copy is a tre and correct copy of the paper original 

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

Donald S. Clark, Secretar
 

Offce of the Secretar
 

Federal Trade Commission
 

600 Pennsylvania Avenue, NW, Rm. H-135
 

Washington, DC 20580
 

secretar(gftc. gov 

I hereby certify that on November 3,2008, I served via hand delivery and first-class mail 

delivery a copy of the foregoing Motion for Protective Order Regarding Discovery with: 

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commission
 

600 Pennsylvana Avenue, NW
 

Washington, DC 20580
 

I hereby certify that on November 3, 2008, I served via first-class mail delivery and 

electronic mail delivery a copy of the foregoing Motion for Protective Order Regarding 

Discovery with: 

J. Robert Robertson, Esq. 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

rrobertson(gftc.gov 

Steven Dah, Esq.
 

Federal Trade Commssion
 

600 Pennsylvana Avenue, NW
 

Washigton, DC 20580
 

'c,gOV;U. W¿,c

Eric D. Welsh .
 

Parker Poe Adams & Berntein LLP
 

Thee Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 

15 

PPAB 1495915v2 

EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter or-- ) Docket No. 9327 

Polyp ore International, Inc., )
 

a corporation. ) PUBLIC DOCUMENT
 

)
 

PROPOSED ORDER 

Upon consideration of Respondent's Motion for a Protective Order, and the Cour being 

fully informed, it is this _ day of , 2008, hereby
 

ORDERED, that the Motion is GRANTED; and it is fuer ORDERED, that:
 

1. Complaint Counsel re-serve its First Set of Interrogatories to Respondent Polypore
 

International, Inc., limiting the nmnber per the Scheduling Order in ths matter to 50
 

interogatories, including subpars; 

2. Complaint Counsel limit its definitions in the interrogatories to those paries and 

related companies that are relevant to the matters at issue in the Complait, relief sought and 

i 

Respondent's defenses, and define terms such that they 
 do not expand the information sought or 

.'.. exceed the nutber of permitted interrogatories beyond the limits set out in the Scheduling Order; 

3. Tht; depositions of Steve McDonald, Michael Gilchrist, Timothy Riney, S. Tucker
 

Roe and Pierre Hauswald be (quashed), (or limted to questions regarding issues and topics that 

were not previously covered in the pre-complaint investigational hearngs of those individuals, or 

are simply intended to supplement or round out previously asked questions or topics of inquiry);
 

and
 

A. To the extent Complaint Counsel intends to use any thrd-pary docmnents in any
 

noticed deposition, for prepartion of questions, or to question a deponent, the depositions shall be
 

postponed until seven days after the delivery of 
 those documents to counsel for Respondent. 

PPAB 1495915v3 

EXHIBIT Å to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct. Depositions of Enersys Employees 

after the Discovery Deadline 
The Honorable D. Michael Chappell 

Chief Administrative Law Judge (Acting) 

Federal Trade Commission 

" 

PPAB 1495915v3 , , ' EXHIBIT A to Response to Joint Motion of 

Respondent and Enersys For Leave of Court 

to Conduct Depositions of Enersys Employees 

after the Discovery Deadline 
UNITED STATES OF AMERICA 

BEFORE THE FEDERA TRADE COMMISSION 

c: '" 0 l. I," "' 0: In tbe Matter of ) (' c: (" Docket No. 9327 c: CD :i ) :i 0 i. ri ci r­ ) 'Z -l -i:i Polypore International, Inc. ) -i t ia corporation ) PUBLIC DOCUMNT '/T

) 0 '" n ::-0 

CI

0 

C" :K :x ri - 3­ fA .. fA ëñ

MOTION TO RESCHEDULE HEARG DATE U1 en Z 

C) + Õ:z 

Pursuant to Rule 4.3(b) of the Rules of Pratice of the Federa Trade Commission, 16 

C.F.R. § 4.3(b), Polypre International, Inc. ("Polypre") moves that the hearng on the 

Complait fied in ths matter be rescheduled to begi on May 18,2009. The Complaint states
 

that the hearng on the Complaint wil begin on "December 9, 2008, or such other date as 

determed by the ALl" Begiing a hearng in this mat~r on December 9,2008, only ejghtyfour (84) days afer servce of the Complaint, is manfestly unai and unjus, would matena1ly 

prejudice Polypore and depnve Polypre of a reasonable opportty to prear its defense to
 

ths complex matter. For the reasns set fort below, Polypore requests that the hearg on ths 

matter be set to commence on May 18, 2009: 

A. Matters PrcedinlZ the Issuace of 
 the Comølait

the stock of Micro 1. The matter grows out ofPolypre's purchas of porous Holding 

Corporation ("Mjcroporous") in a trsation that closed on Februar 29, 2008. FTC sta first
 

contacted Polypre regardig ths matter in March 2008.
 

2. Thrughout the investigative penod and the respnses to the civil investigative 

demand (CID), Polypre has worked coperatively with FTC staf to provide requested 

infOrIation, including the following:
 

. Polypore provided over one millon pages of documents to the FTC.
 

Exhibit B to Response to Joint Motion , '


of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
. Polypore provided answers and supporting exhibits to interrogatories propounded
 

by the FTC. 

. Polypore produced five witnesses for investigational hearings, with some hearings
 

takg multiple days to complete.
 

. Durng the course of the investigation, Polypore executives traveled to
 

Washington no less than five (5) times for various meetings with FTC sta and 

with Commissioners. 

. Polypore answered nUmerous inquiries though correspondence and exchanges
 

with FTC staff.

3. Durng the course of its six and one-half month investigation, FTC staf 

conducted other investigational hearings and inquiries of third paries about which Polypore has 

no information at all: neither the transcripts of any hearings, copies of any documents or 

afdavits, nor information about the inquiries made. Polypore believes FTC staf has obtaied 

1 Complaint
 afdavits and documents from thrd pares about which it has no information. 


Counel has indicated that they may identify ten (1 0) witnesses in their disclosures. At the 

earliest, disclosures will not be made until mid-October, less than sixty (60) days before the \ " '
 

December 9, 2008 hearng, providing insufficient time for Polypore to review the disclosed 

materials or pursue independent discovery from the entities who provided materials to the FTC. 

B. The Issuance of the Comolairt
 

4. On September 9, 2008, the Commission issued,the Complaint agaist Polypore.
 

The Complaint was served on Polypore on September 15, 2008. The Complaint, purortirg to
 

assert three claims agaist Polypore under Section 7 of the Clayton Act and SectionS of the FTC 

Act, is strking for its lack of clarity, its vagueness and absence of necessar allegations. Such 

infirmities wil cause Polypore significant work and time to be able to respond to the Complaint,
 

i In Complaint Couns~l's Response to Respondent's Motion to Extend Respondent's Time to Respond to Complaint 

(the "Response to Motion to Extend"), Complaint Counsel has stated its opposition to any delay in the hearng, arguing, in par, 

that "the case is not complex." Having had the advantage of over six montls of investigation in this matter, and crafng its 

complaint to, ignore, among other things, the global nature of the separator market, it is disingenuous, at best, for Complaint 

Counsel to object to Polypore being provided suffcient opportity to gather evidence to assert its defense. 

2 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
assert its defenses, conduct discovery and otherwse prepare to defend itself at the Hearing in this 

matter. Due to many serious deficiencies in the Complaint, Polypore moved the Cour on 

September 25, 2008 for a more definite statement or clarification òf the allegations in Counts II 

and II of the Complaint. Complaint Counsel has opposed that motion, yet failed to address in 

any meaningf way in its opposition the points raised by Polypore in its motion for more 

definite statement or clarfication. See Complait Counsel's Response to Respondent's Motion 

for a More Definite Statement ("Response to Motion for More Definite Statement"). Among 

other thgs, Complaint Counsel fails to address at all the serious issue raised by Polypore in its 

motion with respect to the pleading stadard Complaint Counsel asserts it must meet for its 

Section 5 FTC Act claims and fails to state whether it proposes to present its monopolization and 

attempt to monopolize claims under Section 5 of the FTC Act without satisfyng the standards 

required by Section 2 of the Sherman Act. Complaint Counsel also glosses over the deficiencies 

pleading related to its failure to allege monopolies in the supposed UPS, automotive and 

PE separator markets by simply characterizing the allegations of the Complaint, which do not 

say what Complaint Counsel suggests (compare Polypore's Motion, pp. 4-5 with the Response to 

of its 


Motion for More Definite Statement, p. 1), and by even referrng to some unspecified
 

conversations with Polypore's prior counsel (Id. at 2). Polypore's motion for more definite 

statement or clarfication is pending with the Court. 

its multiple vague and deficient allegations, manifest that the 

case the FTC intends to bring against Polypore is complex. It is evident that the FTC's 

allegations have broadened substantially beyond the merger concerns which were the heavy and 

5. The Complaint, and 


i 

exclusive focus of the discussions between Polypore and the Commissioners leading up to the 

filing of the Complaint. Indeed, the Complaint stands as an unexpected deparre from the 

Commission's prior approach to this matter. 

3 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
6. Durng the multiple meetings between Polypore, and the FTC, there were
 

numerous and repeated indications that FTC staff was limiting its inquiry and investigation. On 

the day the Complaint was voted out, Polypore's CEO was again in Washirgton to meet with 

two different Commissioners to answer questions and fuer explain why ths small merger
 

(which does not even trgger pre-merger notifi~ation requiementS under the Har-Scott-Rodino 

Antitrst Improvements Act of 1976) neither violates Section 7 of 
 the Clayton Act nor har any

consumers. Not once during the meetings on September 9 was anyting said to indicate that a 

complaint would be voted out that very afernoon by the FTC, let alone, that the complaint would 

include vague allegations purortedly grounded in Section 5 of the FTC Act and set a hearng 

date only ninety (90) days later. Accordingly, the abrupt change in the Commssion's approach 

to ths matter, by itself, requies an extension of time. Ths case canot be ready for an efficient, 

effective hearng on December 9, 2008. 

C. Polvoore's Preparation of its Defense 

7. On September 10,2008, the undersigned and his firm (collectively "Parker Poe") 

were retained as trial counsel to represent Polypore With respect to the Complaint in these Par, 3 

proceedings. To this point, Parker Poe has had only very limted involvement in responding to 

the FTC investigation. While Parker Poe is workig diligently to gain command of the facts and 

circumstances that the FTC has worked on for six months, it will obviously take it some time to 

reach ths level, let alone move, beyond that to conduct adequate discovery and prepare for the 

Counsel has seriously overstated 

Parker Poe's prior involvement in this matter. In the investigative process, Hogan & Harson 

hearng. In its Response to Motion to Extend, Complaint 


was primar counsel. Parker Poe acted only in narowly derined roles to provide very limited 

assistance to Polypore and Hogan & Hartson. Parker Poe was not involved in the development 

of positions in response to the FTC inquir, or in the strategy and tactics of responding to FTC 

4 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
staff. It was not involved in any investigational hearings and its narrow involvement ended in 

early June. Parker Poe did not collect. review or produce Polvoore's documents. It only
 

forwarded to Hogan & Harson certain pleadings, transcripts and exhbits and from a preexisting' unelated arbitration. Complaint Counsel in his Response to Motion to Extend is in '
 

error in asserting otherwse. A redacted copy of the May 1, 2008.. letter referenced by Complaint
 

Counsel is attached ~s Exhbit A to confirm Parker Poe's limited role and to ilustrate the extent
 

of Complaint Counsel's misrepresentation. Parker Poe also assisted Polypore and Hogan &
 

Haron in responding to eight interrogatories dealing with sales, proøuct-specific information, 

development and changes, and certain information concerning Microporous, by gatherig basic ' 

factual information for those interrogatories. 

8.Polypore would like to bring ths matter to hearg as soon as practical. Given the 

seriousness of the allegations in the Complaint, however, Polypore does not believe that it can 

present its defenses fairly and effectively without the requested extension. As evidence of 

Polypore's intent to tr to move this matter forward expeditiously, Parker Poe intiated, and came 

to Washington for, an introductory, informal meeting with Complaint Counsel on September 16, 

2008. Furer, Polypore has moved the Cour to schedule the initial scheduling conference in
 

ths matter for October 22 or 23, 2008 irrespective of the Court's decision on the motion for
 

more definite statement. Polypore's counsel ha also reviewed, revised and on September 25,
 

provided to Complaint Counsel a proposed Protective Order which would govern the use of 

confdential information from the paries and thd paries in this matter. Complaint Counsel has
 

. not yet provided any comment on Polypore's revised draf ofthê Protective Order. 

9. Without the requested additional time to prepare its défenses and to conduct vital
 

discovery, Polypore wil not be afforded the fundamental right of any litigant:, to develop its 

defenses fairly and fully and to present those defenses effectively and efficiently at a hearg. 

5 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
The work wil take some tie, but is critical and wil take consideranle effort even with the 

proposed extension. At present, the tasks to prepare for tral include, but may not be limited to: 

(a) Identification of the necessar witnesses for triaL. At this time, Polypore has
 

identified fourteen (14) of its offcers and employees who may have relevant inormation and are 

likely witnesses. Five. of them aleady have been the subject of investigational hearngs. 

Substantial work wil need to be accomplished to determine the actual witnesses and the scope of 

their testimony. Assuredly, several of them will have to be defended at depositions taken by
 

Complaint CounseL.
 

(b) Docmnents have to be reviewed. At ths point, 1. millon documents have been
 

tued over to the FTC. These documents have not been reviewed by Parker Poe and must be
 

thoroughly reviewed. Complaint Counsel has indicated that the FTC may seek more discovery 

from Polypore. Polypore believes that the FTC has obtaied additional documents from third 

paries which presumably will be tued over to Polypore in discovery. The quantity of these 

documents is not known, yet they, too, will have to be reviewed in order to prepare effectively 

for maL. 

thd paries (customers and competitors). At this time,
 (c) Discovery must occur of 


Polypore does not know whether the customers and competitors' will cooperate or whether 

compulsory process will be necessar to obtain the discovery. 

(i) With respect to çustomers, Polypore has identified at this time twelve (12) 

domestic customers who may have relevant information. Those customers and their 

representatives which Polypore may call upon for deposition are located in: nine (9) states across 

the countr. The logistics of obtaining documents, scheduling and takng depositions wil be
 

substantial and take 
 a considerable amount of time. Polypore canot predict the amount of

6 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
document discovery that will be necessar. There are also foreign customers that Polypore likely 

will need to obtain discovery from in ths matter. 

(ii) Polypore has ,identified at this time eight (8) competitors who may have
 

relevant inormati'on. All are foreign enterprises whose main offces are in the countres of the 

United Kigdom, Japan, Chia, Thailand and India. Only two of those have substatial 

presences in the United States. Cooperation will probably not be forthcoming and some form of 

compulsory process will likely be required. Polypore fuly expects that it may have to utilize the 

Hague Convention to obtain discovery from certain of these international competitors. 

Compliance with the Hague Convention will take significant time. Depositions under the Hague 

Convention may be necessar and will likewise add complexity and time. 

(d) When disclosures are made by the FTC in mid-October, Polypore wil have to 

determine what discovery it must do with respect to such disclosures. Complaint Counsel has 

indicated ten (10) witnesses may be identified. , The scheduling and takng of those depositions 

alone will take signficant time. Follow-up docmnent requests Will likewise take time. Under
 

the current hearg schedule, both of these discovery efforts will have to be done in 

approximately fort-five (45) days -to meet a December 9, 2008 hearing dàte, an 
 impossible task.

(e) Polypore intends to employ an economist to testify as an expert in ths matter.
 

Complait Counsel has not indicated whether the FTC will use testifying experts. Even if the 

FTC does not use an expert, it wil take signficant time for Polypore to work with the expert,for 

the expert to develop his theories, data and report, and presumably, be deposed by Complaint 

CounseL. If Complaint Counsel chooses to use an expert, then Polypore will also have to engage 

in discov~ry concerning such experts' bases for opinions, theories, data and reports, and depose 

such expert. 

7 

Exhibit Ei to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
10. Polypore wants this matter to be resolved in an orderly and expeditious manner, 

but as set fort above, that canot be done without a fair and ful opportty for Polypore to 

protect its' own interests. At this point, the FTC staff has had a six and one-half month ' 

opportity, to gather its inormation, collate, review and analyze it. The Complaint was only 

served on September 15,2008, laying out the claims that the FTC will make in this proceeding. 

in this case are sophisticated 

purhasers. Polypore is entitled to full due process in responding to these clais. 

Extendingthe date for the hearing will not har consumers who 


11. Finaly, it should be noted that the scheduling of this Hearng for December 9,
 

2008, a mere thee months afer issuance of the Complaint, is signficantly shorter th the
 

period suggested by FTC in its recently released proposed rules. Under the FTC's proposed 

rues, the time for scheduling a hearg is 5 months afer issuance of the complaint for merger
 

cases and 8 months afer issuance of a complaint for non-merger cases. This is important to note 

in light of the fact that ths rue change is being proposed because "the Par 3 process has long 

been criticized as being too protracted." See FrC Seeks Comments on Proposed Amendments to 

its Rules of Practice Regarding Adjudicatie Proceedings, September 25, 2008, a true and 

correct copy of which is attched as Exhbit B. Here, in a case which appears to involve merger
 

and non-merger claims, the extension 
 sought is equal to 8 months from issuance of the curent

i 

defective Complaint, a time equa to the period proposed by the FTC for non-merger cases. 

For the reasons stated, Polypore requests that the hearing be extended unti May 18, 

agree upon the appropriate 

discovery schedule that will facilitate and enable the effcient and effective tring of this matter 

at that time: Polypore requests the opportity to discuss ths motion with the Cour at any time , 

it deems appropriate, or at the scheduling conference (which Polypore has requested be set for 

2009, and that at the scheduling conference, the paries set fort and 


either October 22 or 23, 2008). 

8 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
Dated: October 1, 2008 Respectflly Submitted,
 

/;~:t SQa- f
 

Wiliam 1. Rikard, Jr. '
 

Eric D. Welsh 

PARKR POE ADAMS & BERNSTEIN LLP 

Thee Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile; (704) '334-4706
 

wi11amkard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal
 

PARER POE ADAMS & BERNSTEIN LLP ,
 

150 Fayetevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

johngtaybeal~parkerpoe.com 

Attorneys for Respondent 

9 

PPAB 1481350v3 

Exhibit 8 to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
CERTIFICATE OF SERVICE
 

I hereby certify that on October 1, 2008, I caused to be filed via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Motion to Reschedule 

Hearing Date, and that the electronic copy is a tre and correct copy of the paper original and 

that a paper copy with an original signatue is being fied on the same day by other means with:
 

Donald S. Clark, Secreta 

Offce of the Secretar 

Federal Trade Commission 

600 Pennsylvana Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretar~ftc.gov 

I hereby certif that on October 1,2008, I served via hand delivery and first-class mail
 

delivery a copy of the foregoing" Motion to Reschedule Hearing Date with:

The Honorable D. Michael Chappell 

, Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

I hereby certify that on October 1, 2008, I served via first-class mail delivery and 

electronii; mail delivery a copy of 
 the foregoing Motion to Reschedule Hearing Date with:

J. Robert Robertson, Esq. 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

rrobertson(éc.gov 

Steven Dah, Esq. 

Federal Trade Commission 

600-Pensylvana Avenue, NW 

Washington, DC 20580 

sdah~ftc.gov 

Adam C. Shearer 

C1SL

Parke,r Poe Adams & Bernstein LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 335-9050 

Facsimile: (704) 334-4706 

PPAB 1481350v3 

Exhibit B to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions 

of Enersys Employees 
UNTED STATES OF AMRICA
 

BEFORE THE FEDERA TRE COMMSSION
 

) 

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. ) 

a corporation. ) 

) 

MOTION TO EXTEND TIME IN WHICH TO MOVE TO
 

LIMIT SUBPOENA SERVED BY RESPONDENT UPON THIRD PARTY
 

AND TO SEEK COST REIMBUREMENT
 

EnerSys hereby moves to extend the time in which it may move to limit the 

Subpoena served upon it by Respondent Polypore International, Inc. ("Respondent" or 

"Polypore") to and including December 16,2008. In support thereof, EnerSys attches as 

Exhibit A the Affidavit of Lar Axt ("Axt Affdavit") and states the following: 

1. EnerSys is a global manufactuer of flooded lead acid batteries headquaered at 2366 

Bernvile Road,Reading, Pennsylvana 19605. Axt Affdavit ~ 2. 

2. Prior to the stock purchase at issue in ths case, EnerSys purchased high-performance 

polyethylene battery separators from both Respondent and Microporous Products L.P. Axt 

Afdavit ~ 3. 

3. At present, EnerSys purchass high-performance polyethylene battery separtors 

solely from Respondent. Axt Affdavit ~ 4. 

4. Respondent has directed a Subpoena to EnerSys, a copy of which is attached hereto 

as Exhbit B (the "Subpoena"). 

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

counsel on November 7, 2008. Axt Afdavit ~ 8. 

6. The Subpoena is retuable on November 17,2008. 

7. The Subpoena requests documents as set fort in 34 paragaphs. 

1 

SLl 884054vIl00844.00930
 

EXHIBIT C to Response to Joint Motion 

of Respondent and Enersys For Leave 

of Court to Conduct Depositions of Enersys 

Employees after the Discovery Deadline