UNITED STATES OF AMERICA ORIGINAL 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

) 

ORDER GRANTING COMPLAINT COUNSEL'S MOTION TO COMPEL 

RESPONDENT'S ANSWERS TO INTERROGATORIES 

I. Introduction 

On April 4, 2012, Complaint Counsel filed a Motion to Compel Respondent McWane, 

Inc. ("~espondent") to Answer Interrogatories 13 through 16 ("Motion"). Respondent filed an 

opposition to the Motion on April 11, 2012 ("Opposition"). Having fully considered the Motion 

and Opposition, and as more fully explained below, the Motion is GRANTED. 

On February 21,2012, Complaint Counsel served a set ofinterrogatories on McWane, 

numbered 1 through 16 (Motion Exhibit A). McWane refused to answer Interrogatories 13 

through 16 on the ground that, counting all discrete subparts ofInterrogatories 1 through 12, 

Complaint Counsel reached its limit of25 interrogatories (Motion Exhibits C and D). The 

parties were unable to reach an agreement on this dispute, and the instant Motion followed. 

II. Applicable Legal Principles 

Commission Rule ofPractice 3.35(a)(1) states in pertinent part: "Any party may serve 

upon any other party written interrogatories, not exceeding 25 in number, including all discrete 

subparts, ..." 16 C.F.R. § 3.35 (a)(1). Rule 3.35(a)(1) is the same in this regard as Federal Rule 

ofCivil Procedure 33(a) ("Unless otherwise stipulated or ordered by the court, a party may serve 

on any other party no more than 25 written interrogatories, including all discrete subparts."). 

Fed. R. Civ. P. 33. 

"In determining whether a request is a discrete subpart, courts look to 'whether one 

question is subsumed and related to another or whether each question can stand alone and be 

answered irrespective ofthe answer to the others.' . .. Courts have found that a subpart is 
discrete when it is logically or factually independent ofthe question posed by the basic 

interrogatory." In re Dynamic Health ofFlorida, 2004 FTC LEXIS 254 (Dec. 9,2004) (citations 

omitted); accord In re Polypore Int'l, 2008 FTC LEXIS 155, at *3-4 (Nov. 14,2008). If 

interrogatory subparts "are logically or factually subsumed within and necessarily related to the 

primary question," they are to be counted as one interrogatory. Safeco ofAmerica v. Rawston, 

181 F.R.D. 441, 445 (C.D. Cal. 1998), citing Kendall v. GES Exposition Services, 174 F.R.D. 

684 (D. Nev. 1997). See also Kendall v. GES Exposition Serv., Inc., 174 F.R.D. 684, 685 (D. 

Nev. 1997) ("Genuine subparts should not be counted as separate interrogatories."); Banks v. 

Office ofthe Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004) (noting that subparts 

related to a single topic are considered part ofthe same interrogatory). 1 

III. Analysis 

The only issue presented by the Motion and Opposition is the appropriate calculation of 

the number ofinterrogatories contained in Interrogatories 1,6 and 10, which are set forth 

verbatim below. Complaint Counsel contends that Interrogatory No.1 presents no more than 

two interrogatories, while Respondent contends that this Interrogatory presents four discrete 

subparts. Complaint Counsel contends that Interrogatories 6 and 10 each presents only one 

interrogatory, while Respondent argues that each interrogatory presents two interrogatories. 

Respondent contends that, ifthe number of discrete subparts in Interrogatories 1, 6, and 10 are 

properly calculated, it has no obligation to answer Interrogatories 13 through 16 because they 

exceed the 25 interrogatory limit. 

A. Interrogatory No.1 

Interrogatory 1 states: 

Identify each current or former employee ofthe Company who has or had any 

management or supervisory responsibilities or duties with respect to pricing of 

any Relevant Product, including without limitation: involvement in marketing, 

sales, distribution, or influencing list prices, catalog prices, multiplier prices, 

project discounts or any form ofrebates; or who has had any Communication with 

any Competitor; and for each such current or former employee ofthe Company, 

provide: 

a. The business and home telephone numbers and telephone service 

providers of each voice, facsimile or cellular line assigned to or used for 

any business purpose by each employee (whether exclusive or not), and 

the period during which each such number was assigned to or used by the 

employee; and, 

1 Where, as in this case, the Federal Rules ofCivil Procedure are similar to the Commission's Rules ofPractice, 

those rules and case law interpreting them are useful, though not controlling, in adjudicating a dispute. In re L. G. 

Balfour Co., No. 8435, 61 F.T.C. 1491, 1492, 1962 FTC LEXIS 367, *4 (Oct. 5, 1962); In re Gemtronics, Inc., 2010 

FTC LEXIS 40, *10 (ApriI27, 2010). 

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b. Each business and home telecopier and electronic mail identifier 

assigned to or used for business purpose by the employee (whether 

exclusive or not) and the period during which each such identifier was 

assigned to or used by the employee. 

The parties agree that the foregoing interrogatory requests identification for two distinct 

classes ofpersons - employees with responsibility for pricing decisions and employees who had 

any communication with competitors on any topic. Respondent maintains that the subparts a. 

and b., asking for both telephone numbers and electronic mail (email) addresses for each such 

emploYt!e that are used for "any business purpose," present two additional discrete questions, for 

a total of four interrogatories. Complaint Counsel argues that the subparts in Interrogatory No.1 

are not discrete but are subsumed within the primary question ofidentification. 

The advisory committee notes to Federal Rule 33 state in part, a "question asking about 

communications of a particular type should be treated as a single interrogatory even though it 

requests that the time, place, persons present, and contents be stated separately for each such 

communication." Fed. R. Civ. P. 33(a), Advisory Committee's Note (1993 Amendments). 

Applying a similar principle in Poiypore, 2008 FTC LEXIS 155, it was held that an interrogatory 

asking for all sales, by relevant product, and relevant market, and for additional specific 

information as to such sales constituted a single interrogatory. "Simply asking for data elements 

for the same topic, as Complaint Counsel has done here, does not multiply each data element into 

a separate interrogatory. The interrogatories seeking various data elements for each relevant 

market and in each relevant area are logically or factually subsumed within and necessarily 

related to the primary question." Id. at *4. In the instant case, the requests in Interrogatory No.1 

for telephone numbers and email addresses are requesting various data elements that are both 

logically and factually subsumed within the primary request for identification. Accordingly, 

Interrogatory No. 1 presents two, and not four, interrogatories. 

B. Interrogatories 6 and 10 

Interrogatory No.6 states: "Quantify each justification, efficiency, rationale or Effect 

identified in response to [Interrogatory 5 as arising in connection with Respondent's participation 

in the Ductile Iron Fittings Research Association ("DIFRA")], and describe in detail the basis 

used in quantifying the justification, efficiency, rationale or Effect." 

Interrogatory No. 10 states: "Quantify each justification, efficiency, rationale or Effect in 

response to [Interrogatory 9 as arising in connection with any exclusive dealing arrangement], 

and describe in detail the basis used in quantifying the justification, efficiency, rationale or 

Effect." 

Respondent contends that the foregoing interrogatories each present two discrete subparts 

by requesting Respondent to "quantify" certain efficiencies, by providing a number, and then to 

"describe in detail the basis" for that number, which requires a narrative explanation ofthe 

underlying methodologies or models used to determine the number. Complaint Counsel 

contends that the request in each ofthese interrogatories for the component parts or basis used 

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for arriving at the number requested by the interroga:tory is not Cl~ding discrete, or "stand alone" . \. ' . . .

questIOns. ' . , '>: 

Respondent relies on Pot/uri v. Yalamanchili, 2007'U.S: DisC LEXIS 29238 (E.D. Mich. 

Apr. 20, 2007), in which the court held that an interrogatory asking to set forth all business 

interests held by the plaintiff, as well as for the nature ofthe interest and the location of the 

business, requested discrete pieces ofinfonnation. Respondent also cites Trevino v. ABC Am., 

Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006), in which it was held that a single interrogatory 

requesting identification of each expert witness, the subject matter on which the expert was 

expected to testify, the substance ofthe facts and opinions to which the expert would testify, a 

summary ofthe grounds for each expert opinion, and the expert's qualifications presented three 

discrete subparts. 

Respondent's cited authorities are not sufficiently analogous, on the facts or the 

applicable law, and, thus, are not persuasive. In this case, the primary question in both 

Interrogatories 6 and 10 presents a single topic - Respondent's efficiency defenses. See Banks, 

222 F.R.D. at 10 (noting that subparts related to a single topic are considered part ofthe same 

interrogatory). The basis for the requested quantification is logically subsumed within the 

primary question. A number and its basis are not "stand alone" concepts. Compare In re 

Dynamic Health ofFlorida, 2004 FTC LEXIS 254, at *2 (Dec. 9,2004) (finding interrogatory 

requesting the identity of certain business associates ofrespondent and infonnation about their 

compensation presented two separate interrogatories). Accordingly, both Interrogatories 6 and 

10 present only one interrogatory each. 

IV. Conclusion 

Complaint Counsel has demonstrated that Interrogatory No.1 consists oftwo 

interrogatories and that Interrogatories 6 and 10 consist of only one interrogatory each. 

Because Respondent's Opposition is based solely on its proposed higher calculation, Complaint 

Counsel's Motion is GRANTED.2 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: April 16, 2012 

2 Respondent asserts that Complaint Counsel refused to respond to certain ofRespondent's interrogatories by 

applying a strict counting methodology, similar to that which is proposed herein by Respondent. The nature of any 

dispute between Complaint Counsel and Respondent over Respondent's Interrogatories is not dispositive as to 

whether Complaint Counsel's Motion to Compel Respondent's answers to Complaint Counsel's interrogatories 

should be granted. 

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