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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) 

) 

Docket No. 9327 

cl1/ 6?/ , Ci~" '" 

S Ifl) Ollr 

) 

Polypore International, Inc. 

a corporation 

) 

) 

) Public Document 

) 

MEMORANDUM IN SUPPORT OF RESPONDENT'S MOTION 

TO AMEND THE SCHEDULING ORDER 

Respondent Polypore International, Inc. ("Polypore") respectfully submits this 

memorandum in support of its Motion to Amend the Scheduling Order entered on October 22, 

2008 (hereinafter the "Scheduling Order"). Respondent's proposal is to extend by one month 

all remaining deadlines set forth in the Scheduling Order, which would set the commencement 

date of the hearing on May 14, 2009. Counsel for Respondent conferred with Complaint
 

Counsel in a good faith attempt to resolve by agreement the issues raised by the present motion, 

but has been unable to reach such an agreement. Complaint Counsel has indicated that they 

oppose any extension of the Scheduling Order's deadlines, but that they would be wiling to 

work with Respondent on a case-by-case basis to conduct discovery after the deadline has 

expired. Complaint Counsel's position is inadequate for a variety of reasons. It places an unfair 

burden on Respondent to obtain agreement from Complaint Counsel on discovery issues and 

ignores Respondent's right to have a fair opportunity to develop evidence with which to defend 

itself. Accordingly, Respondent requests that an order be entered extending all deadlines in the 

Scheduling Order by thirty (30) days and establishing May 14,2009, as the commencement date 

of the hearing. Neither Complaint Counsel nor any third party wil be prejudiced by this 

minimal extension of 
 the relevant dates and deadlines.

PPAB 1522382vl 
In support of 
 this motion, Respondent says: 

FACTUAL BACKGROUND 

1. On February 29, 2008, Polypore and Microporous Products L.P. ("Microporous")
 

finalized a transaction in which Polypore acquired the stock of Microporous Holding 

Corporation, the parent company of Microporous. 

2. In March 2008, the Federal Trade Commission ("FTC" or "Commission") first
 

contacted Polypore regarding its acquisition of Microporous and soon thereafter began an 

investigation. Over the course of the next six and one-half months, Polypore fully cooperated
 

with the Commission's investigation. It provided answers and supporting exhibits to 

investigative interrogatories propounded by the FTC, produced witnesses in Washington for 

extensive investigational hearings, answered numerous inquiries through correspondence and 

exchanges with FTC staff, and sent executives to Washington on five occasions to discuss issues 

with staff and members of the Commission.

3. During its investigation, the FTC also collected documents from and conducted 

investigational hearings of third parties. Polypore, however, did not, nor could it, engage in any 

formal discovery or review any third-pary evidence being compiled by the Commission at that 

time. 

4. On September 9, 2008, the Commission, in stark contrast to the substantial evidence 

that Polypore's acquisition of Microporous did not lessen competition or tend to create a 

monopoly, issued a Complaint against Polypore. The Complaint, which among other things 

wholly ignored the global nature of the separator market, set the hearing date of the Complaint to

begin on December 9, 2008. 

5. Importantly, the undersigned counsel and his firm ("Parker Poe") were retained to
 

represent Respondent with respect to the Complaint and these proceedings on September 1 0, 

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PPAB 1522382vl 
2008. During the investigative process, Parker Poe was not involved in the development of 

positions in response to the FTC inquiry, and did not collect, review or produce Polypore's
 

documents. (Motion to Reschedule Hearing Date, October 1, 2008). Immediately after its 

retention, Parker Poe began the enormous effort of developing Polypore's positions and has 

strived to move this proceeding forward effectively and expeditiously, without undue delay and 

with due regard Polypore's right to develop evidence and defenses to Complaint Counsel's
 

allegations. 

6. On October 1, 2008, Respondent fied a Motion to Reschedule Hearing Date and
 

asserted that to begin the hearing only eighty-four days after service of the Complaint would be 

manifestly unjust and would deprive Respondent of a reasonable opportunity to prepare its 

defense in this complex matter. (Motion to Reschedule Hearing, October 1, 2008). Respondent 

requested that the hearing begin no earlier than May 18, 2009 in order to allow Respondent 

sufficient time to develop its defenses fairly and fully and to present those defenses efficiently 

and effectively at a hearing. (Id.) 

7. On October 2, 2008, Respondent's counsel received a Draft Scheduling Order from
 

Judge Chappell's offce which proposed to set the commencement date of the hearing in this 

matter on April 14, 2009. Complaint Counsel then fied a statement accepting April 
 14, 2006, as 

the hearing date. 

8. On October 7, 2008, Judge Chappell granted Respondent's Motion to Reschedule
 

Hearing Date, in part, and set the hearing for April 
 14, 2008. Importantly, Judge Chappell noted 

the importance of allowing "sufficient time for the parties to prepare for the administrative trial 

in this case." (Order on Motion to Reschedule Hearing Date, October 7, 2008). 

9. In light of the October ih Order and the Draft Scheduling Order, Respondent's
 

counsel conferred with Complaint Counsel and agreed to a schedule of deadlines based on that 

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PPAB 1522382vl 
trial date. Respondent's agreement was in part also based on the representation, as articulated by 

Complaint Counsel, that the discovery sought by Complaint Counsel would be targeted, narrow 

and specific, given the information it had already developed. For example, Complaint Counsel 

indicated that they might identify as many as ten (10) witnesses in the disclosures. Respondent's 

agreement to the date was also based on obtaining third-party discovery in a timely manner and 

Complaint Counsel's indication that it would produce third-pary information in its possession 

promptly. (Id.) These premises underlying Respondent's agreement to the April 14, 2009
 

hearing date have proven to be inaccurate as the matter has progressed. 

10. On October 22, 2008, an agreed upon scheduling order was submitted at the 

scheduling conference and Judge Chappell issued the Scheduling Order. Complaint Counsel's 

Initial Disclosures were served and fied the same day and stated that "Complaint Counsel wil 

provide copies of third-party's documents and materials 10 days after such time as the 

(ALJ) has entered a protective order in this matter and the third parties who submitted the 

documents have been apprised of their rights under the protective order." i At the hearing, 

Complaint Counsel gave Respondent its Initial Disclosures, identifying scores and scores of 

witnesses, of which it identified 15 third parties who had submitted documents or other materials 

to the Commission. In their preliminary witness list, Complaint Counsel identifed 50 

witnesses, of 
 which 31 were third parties.

11. The parties had worked out and agreed to a protective order governing the discovery
 

of material and protecting third party material which was handed to Judge Chappell at the 

conference and was entered the next day. (Protective Order Governing Discovery Material,
 

October 23, 2008). A week later, upon inquiry from Respondent, Complaint Counsel indicated 

i In an effort to minimize unnecessar duplication and waste, Respondent submits as exhibits ("Tabs") hereto only 

those documents which have not been previously provided to the Secretary of the Commission. 

4 

PPAB 1522382vl 
that it had not yet contacted all third parties and, despite its initial representation, had no 

obligation to produce third party material absent a formal request. (Respondent's Motion for a 

Protective Order Regarding Discovery, November 3, 2008). 

12. In fact, no third party information collected by the FTC was made available to
 

Respondent until November 7, 2008. Thereafter, such information was only produced to 

Respondent on an incremental, sporadic basis, including productions on November 10, 11, 14,20 

and 21,2008 and on December 2, 16, 17 and 19,2008. 

13. Also on October 22, 2008, Complaint Counsel served Respondent with Complaint
 

Counsel's First Set of Interrogatories, Complaint Counsel's First Set of Document Requests and 

eight Notices of Deposition - five of which were directed at individuals previously questioned at 

length by Complaint Counsel on the very same issues set forth in the Complaint. 

14. Complaint Counsel's promise of limited discovery immediately turned into a
 

staggering deluge of discovery, consisting of sweeping document requests and interrogatories. 

Both required the production of great quantities of information and documents - much of which 

with no conceivable relevance to the' pleadings in the proceeding. (See Complaint Counsel's 

First Set of Interrogatories to Respondent Polypore International, Inc., October 22, 2008, (Tab 

Aj; Complaint Counsel's First Set of Document Requests to Respondent Polypore International, 

Inc., October 22,2008 (Tab Bj). 

15. Respondent sought protection from the FTC's discovery by motion (Respondent's
 

Motion for a Protective Order Regarding Discovery, November 3, 2008), but its request was 

denied. Significantly, in its motion at that time, Respondent pointed out that if it "had known 

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

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

holding the hearing in this matter on April 14, 2009." (Respondent's Motion for a Protective 

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PPAB 1522382vl 
Order Regarding Discovery, November 3, 2008). After entry of the order, Respondent 

proceeded in the hope that events would occur that would allow the schedule to be met, allowing 

Respondents the fair opportunity to develop its case. Events, however, have not turned out that 

way. 

16. Respondent has devoted substantial resources in its attempt to comply with 

Complaint Counsel's document requests and interrogatories. As of January 14, 2009,
 

Respondent has made more than 23 rollng productions of documents pursuant to Complaint 

Counsel's discovery requests and more remains to be produced. In Response to Complaint 

Counsel's discovery requests served on October 22,2008, Respondent has now produced nearly 

180,000 documents, exceeding 1.1 milion pages. This is in addition to the 1.1 milion pages that 

were produced during the FTC's investigation of this matter. The compilation, review, and 

production of over 2.2 milion pages of documents is a massive undertaking and has already
 

caused Respondent significant financial costs, including tens of thousands of dollars in vendors' 

fees and costs alone. 

17. In order to comply with these discovery requests, Respondent has had to collect paper
 

and electronic records from approximately six physical 
 locations (in four states and three foreign

countries). In an effort to meet the deadlines in the scheduling order, Parker Poe has had to
 

utilze numerous attorneys and contract attorneys to review the collected material for 

responsiveness and privilege. 

18. Complaint Counsel has broadened even further their massive discovery requests with 

Complaint Counsel's Second Set of Interrogatories and Second Set of Document Requests 

served on Respondent on January 13, 2009, (See Complaint Counsel's Second Set of 

Interrogatories to Respondent Polypore International, Inc., January 13, 2009(Tab C); 

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PPAB 1522382vl 
Complaint Counsel's Second Set of Document Requests to Respondent Polypore International, 

Inc., January 13, 2009 (Tab Dj). 

19. On October 22, 2008, at the conclusion of the scheduling conference, Complaint 

Counsel served Respondent with eight deposition notices. On Wednesday, November 26, 2008, 

at 4: 18 p.m. (immediately before the Thanksgiving holiday), Complaint Counsel served an 

additional 24 deposition notices on Respondent. These notices were served without consultation 

or the courtesy of a telephone call. When challenged about this procedure, Complaint Counsel 

responded that it was noticing the depositions because they were in Respondent's "preliminary 

witness" - logic, if followed, would entitle Respondent to notice 31 third parties in Complaint 

Counsel's witness list, something Respondent has not done. The result has been that valuable 

time was required to sort through these, reduce the numbers and then work out a complex 

schedule in multiple locations over an extended period of time - and this, just in defense of 

depositions Complaint Counsel wants to take without regard to those necessary to Respondent's 

2 

case. 

20. In the midst of Complaint Counsel's massive discovery, Respondent has also had to 

prepare its own defense, including the identification of necessary witnesses for trial, discovery of 

third parties, the review of documents produced by third parties and by the FTC, and the 

preparation for and the taking of necessary depositions to promote its defenses. 

21. Compounding the situation, Complaint Counsel's responses to Respondent's First Set 

of Interrogatories Directed to the FTC have been deficient at best. Counsel for Respondent has 

specified in writing to Complaint Counsel those deficiencies. If the deficiencies cannot be
 

2 After Respondent eliminated people from its preliminary witness list, Complaint Counsel has withdrawn some of 

those notices. 

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PPAB 1522382vl 
resolved at the "meet and confer" conference, Respondent wil promptly move to compel the 

Commission to properly comply with its discovery requests. 

22. Respondent's discovery is targeted at specific third parties which it believes are likely 

to possess relevant information which wil be vital to Respondent's defense of the Commission's 

allegations. As a result, Respondent has sought discovery from only a smaller portion of the 31 

third parties identified in Complaint Counsel's Preliminary Witness List, including ENTEK 

International LLC ("ENTEK"), Exide Technologies ("Exide"), Johnson Controls, Inc. ("JCI"), 

The Moore Company ("The Moore Company"), EnerSys ("EnerSys"), East Penn Manufacturing 

Company, Inc. ("East Penn"), Hollingsworth & Vose ("H&V") and Trojan Battery Company 

("Trojan"). 

23. Most, if not all, of the identified third parties cooperated extensively with the FTC 

(and continue to do so) in the investigation leading up to the filing of the Complaint, including 

the production of documents and witnesses. It is necessary that Respondent also be able to 

obtain discovery from these third parties' in order to examine the third parties' allegations in the 

light of 
 the day with the relevant documents.

24. Respondent believes the information likely in the possession of the above third parties 

is critical to Respondent's defense to the allegations of the Commission's Complaint. Further, 

the information Respondent seeks is necessary for Respondent's economist to be able to
 

formulate opinions and create an expert report. This information includes, but is not limited to, 

the following: 

. purchasing and pricing data needed to fully understand the global market
 

for battery separators, including the relevant suppliers' representative sales 

positions and pricing; 

. testing and qualification data and information about competitors'
 

manufacturing processes needed to evaluate the extent of any alleged 

barriers to entry in the battery separator market; 

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PPAB 1522382vl 
. sales data needed to evaluate whether alternative source of separators exist
 

in several alleged battery separator markets and to determine which 

products may be competitive with lead acid battery separators. 

25. Respondent served subpoenas duces talcum on these third parties and served 

subpoenas ad testifcandum noticing the deposition examination of approximately twenty fact 

witnesses. As of the date of this filing, no deposition of third parties noticed by Respondent has 

taken place and only a few third parties have produced documents to Respondent. 

26. Respondent's attempts to obtain discovery of third parties has been protracted and 

difficult. Respondent endeavored to negotiate with and accommodate third parties to the best of 

its abilities under the confines of the Scheduling Order in order to avoid costly and premature 

motions practice. For the most part, however, cooperation has not been forthcoming and 

compulsory process has been required. 

ENTEK 

27. ENTEK is a direct competitor of Polypore. ENTEK is a leading producer of 

polyethylene ("PE") battery separators for starting, lighting and ignition (SLI) lead-acid 

batteries. 

28. On November 5, 2008, ENTEK International LLC ("ENTEK") fied a Motion for 

Protective Order seeking to prevent the disclosure of information to Respondent which was 

initially produced by ENTEK to the FTC in compliance with the CID. (Third Party ENTEK 

International LLC 's Motion for Protective Order and Proposed Order, November 5, 2008). 

29. After extensive discussions, ENTEK and Respondent were able to reach a resolution
 

of this matter. (Stipulation and Proposed Order Regarding Discovery Related to ENTEK 

International, LLC, November 17, 2008; Order on Non-Party ENTEK's Motion for a Protective
 

Order, November 18, 2008). Unfortunately, that resolution has proven to be ilusory. 

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PPAB 1522382vl 
30. On November 10, 2008, Respondent served a subpoena duces tecum on ENTEK. 

ENTEK initially raised some objection to the subpoena, but such concerns were ultimately 

resolved and a discovery agreement was reached in principal on December 11, 2008 which 

allowed ENTEK to begin the production of documents. 

31. As of the date of this filing, however, ENTEK has only produced a small portion of 

the total documents requested by the subpoena duces tecum, with the first installment occurring 

on January 5, 2009. 

32. Despite the efforts of 
 Respondent's counsel, ENTEK has continued to delay and stall

in their production efforts. In light of the impending February 13, 2009 discovery cut-off,
 

Respondent was left with no option but to fie a motion to compel, which it did on January 13, 

2009. (Respondent's Motion to Compel ENTEK International LLC to Produce Documents 

Requested by Subpoena Duces Tecum and Proposed Order, January 13, 2009). 

33. Additionally, on December 29, 2008, Respondent served four subpoenas ad
 

testifcandum and noticed the depositions of the following individuals and entities: (a) Mr. 

Robert Keith (ENTEK's President and Chief Executive Officer), (b) Mr. Daniel Weerts 

(ENTEK's Vice President of Sales and Marketing), (c) Mr. Graeme Fraser-Bell (ENTEK's Vice 

President of International Sales), and (d) a corporate subpoena directed to ENTEK International, 

LLC. 

34. The depositions of Mr. Fraser-Bell and ENTEK International, Inc. were noticed for 

January 19, 2009, while the depositions of Mr. Keith and Mr. Weerts were noticed for January 

20,2009. 

35. On January 9, however, ENTEK filed a motion to quash the subpoenas ad 

testifcandum directed to Graeme Fraser-Bell and Robert Keith. (Third Party ENTEK 

International LLC 's Motion to Quash the Subpoenas Ad Testifcandum Issues to Graeme Fraser10 

PPAB 1522382vl 
Bell and Robert Keith, January 13, 2009). Respondent is currently drafting a response to 

ENTEK's motion to quash which wil be filed on January 18,2009.3 A date has not yet been 

scheduled for the depositions of ENTEK and Mr. Weerts, and given the current motion practice 

and impending deadlines, Respondent wil be required to make several trips from Charlotte, 

North Carolina, to Oregon, or elsewhere, for these depositions, at considerable expense, if 

ENTEK's motions to quash are denied as they should be. 

Exide 

36. Exide is a purchaser of battery separators. With operations in more than 80 countries, 

Exide is one of the world's largest producers and recyclers of lead-acid batteries. 

37. Respondent served a subpoena duces tecum on Exide on November 10, 2008. Exide
 

did not fie any motions or objections with this Court in response to the subpoena duces tecum. 

Soon after the subpoena duces tecum was first served, counsel for Respondent attempted to 

negotiate in good faith with counsel for Exide in order to discuss and resolve any concerns Exide 

had concerning its compliance with the subpoena duces tecum. Respondent agreed to several 

modifications of the subpoena duces tecum in order to allow Exide to begin the production of 

documents as soon as possible. 

38. As of the date of this fiing, however, Respondent has received only a handful of 

pages of documents from Exide - which were first produced on January 9, 2009. Thus, even 

though Exide reached an agreement with Respondent in early December which addressed and 

resolved all discovery issues and disputes raised in connection with the subpoena, only a 

minimal amount of documents sought by Respondent's subpoena duces tecum have been
 

produced thus far. Exide's continued delay in their production efforts forced Respondent to file 

3 In light ofENTEK's Motion to Quash the deposition of 
 Mr. Fraser-Bell, Respondent fied a Motion for Leave to 

Depose Graeme Fraser-BelL. This motion is pending. 

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PPAB 1522382vl 
a motion to compel on January 13,2009. (Respondent's Motion to Compel Exide Technologies
 

to Produce Documents Requested by Subpoena Duces Tecum and Proposed Order, January 13, 

2009). That motion is pending. 

39. On December 29, 2008, Respondent also served five subpoenas ad testifcandum on 

the following individuals and entities: (a) Mr. Pradeep Menon (Exide's Vice President of Global 

Procurement), (b) Mr. Douglas Gilespie (Exide's Vice President of Global Procurement), (c) 

Mr. Alberto Perez (Exide's Director of Commodities), (d) Mr. Gordon Ulsh (Exide's President 

and Chief Executive Officer), and (e) a corporate subpoena directed to Exide Technologies.

40. These depositions were originally noticed for January 14-16, 2009. By agreement,
 

Respondent and Exide have re-scheduled the depositions for January 21-23, 2009. Without the 

documents requested by Respondent's subpoena, however, Respondent wil not have an
 

opportunity to review and analyze such documents in preparation for the depositions and wil not 

be in a position to conduct thorough and comprehensive depositions. Consequently, Respondent 

wil be forced to keep the depositions open pending completion of Exide's production of
 

documents. (See January 15, 2009 e-mdil of Eric D. Welsh, Esq. (Tab Ej). 

JCI 

41. JCI is a purchaser of battery separators and the largest automotive battery 

manufacturer in the world. 

42. Respondent served a subpoena duces tecum on JCI on November 10, 2008. JCI raised
 

certain concerns over the subpoena duces tecum with counsel for Respondent in November and 

December 2008. Through the discussions between counsel for Respondent and JCI, JCI's 

concerns over the subpoena duces tecum were resolved and an agreement was reached with 

respect to the subpoena duces tecum on or about December 9, 2008. JCI did not begin its 

production, however, until January 5, 2009. 

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PPAB 1522382vl 
43. On or about December 31, 2008, Respondent also served three subpoenas ad
 

testifcandum on the following individuals and entities: (a) Mr. Flavio Almedia (JCI's Director of 

Procurement, Americas), (b) Mr. Rodger Hall (JCI's Vice President, Procurement), and (c) a 

corporate subpoena directed to JCI. These depositions were originally noticed for January 12­

13,2009. 

44. Thereafter, counsel for JCI represented that JCI would not complete its production in 

advance of the then scheduled date for the JCI depositions. (Stipulation and Proposed Order 

Regarding Discovery Related to Johnson Controls, Inc., January 14, 2009). As a result, counsel 

for JCI and counsel for Respondent fied a stipulation and proposed order with this Court 

whereby JCI wil produce documents and responses sought by the subpoena duces tecum to 

Respondent no later than January 16,2009 and the depositions of 
 the JCI witnesses wil occur on

January 27 and 28, 2009 in Milwaukee, Wisconsin. (Id.) 

The Moore Company 

45. The Moore Company is a direct competitor of Polypore, through its wholly-owned 

subsidiary, Amer-SiL. Amer-Sil produces microporous polymer/silica separators for industrial 

lead acid batteries in several of the Complaint's alleged battery separator markets, including the 

uninterrptible power supply ("UPS") market.
 

46. On October 24, 2008, Respondent had a subpoena duces tecum issued to The Moore
 

Company, the parent company of Amer-SiL. From the time the subpoena duces tecum was first 

served through mid-December, counsel for Respondent and counsel for The Moore Company 

communicated on multiple occasions in regards to the subpoena duces tecum and Respondent's 

wilingness to discuss and resolve any concerns The Moore Company may have had concerning 

its compliance with the subpoena duces tecum. 

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PPAB 1522382vl 
47. Nevertheless, on December 23, 2008, The Moore Company fied a motion to limit
 

Respondent's subpoena duces tecum and sought cost reimbursement. (Non-Party The Moore 

Company's Motion to Limit Subpoena Duces Tecum and for Cost Reimbursment, December 23, 

2008). Additionally, The Moore Company moved for in camera treatment of the material 

submitted in support of its motion to limit the subpoena duces tecum. (Non-Party The Moore 

Company's Motion for In Camera Treatment of Material). 

48. Respondent responded to The Moore Company's motions on January 8, 2009 and
 

additionally moved this Court to compel The Moore Company to produce documents requested 

by Respondent's subpoena duces tecum. (Respondent's Memorandum in Opposition to the 

Moore Company's Motion to Limit Subpoena Duces Tecum and for Cost Reimbursement and In 

Response to The Moore Company's Motion for In Camera Treatment of Material and in Support 

of Respondent's Cross-Motion to Compel the Moore Company to Produce Documents Requested 

by Subpoena Duces Tecum, January 8, 2009). Those motions remain pending and as of the date 

of this fiing, none of documents sought by Respondent's subpoena have been produced by The 

Moore Company. 

49. On December 29, 2008, Respondent also served a corporate subpoena ad 

testifcandum on The More Company. The deposition is noticed for January 29, 2009, but to 

date, The Moore Company has not notified Respondent's counsel whether or not it intends to 

proceed with a deposition on the date noticed in the subpoena. 

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PPAB 1522382vl 
EnerSvs 

50. EnerSys is a purchaser of battery separators. EnerSys is the largest industrial battery 

manufacturer in the world, operating manufacturing and assembly facilities worldwide for 

customers in over 100 countries. 

51. Respondent served a subpoena duces tecum on EnerSys on November 10,2008. Two
 

days later, Counsel for Respondent and counsel for EnerSys had a telephone conversation to 

discuss any issues EnerSys may have had in regards to the subpoena duces tecum. At that time, 

counsel for Respondent explained Respondent's wilingness to discuss and resolve any concerns 

EnerSys may have concerning its compliance with the subpoena duces tecum. 

52. Instead of discussing the subpoena duces tecum, including the manner of production,
 

as Respondent's counsel had initially suggested, EnerSys choose to immediately proceed with 

the gathering of documents. On December 5, 2008, after blindly gathering responsive 

documents, counsel for EnerSys suggested, for the first time, a "meet and confer" conference to 

discuss a number of 
 issues EnerSys had with the subpoena duces tecum.

53. Thereafter, EnerSys rejected all proposals made by Respondent's counsel and refused
 

to provide Respondent's counsel with a list of the document custodians and their responsibilities 

at EnerSys in order to allow a targeted search of the documents to be conducted. 

54. Instead, on December 16, 2008, EnerSys moved to limit Respondent's subpoena
 

duces tecum and sought an award of attorneys' fees and costs. (EnerSys' Motion for Award of 

Attorneys' Fees and Costs and to Limit Subpoena served by Respondent on Non-Party,
 

December 16, 2008). Respondent filed a response to EnerSys' motion on December 24, 2008. 

(Respondent's Memorandum in Oppositon to EnerSys' Motion for Award of Attorneys' Fees and 

Costs and to Limit Subpoena Served on Non-Party, December 24, 2008). EnerSys' motion has 

been denied by order dated January 14, 2009. EnerSys has not produced a single document 

15 

PPAB 1522382vl 
sought by Respondent's subpoena duces tecum, although by the terms of the Order, it has ten 

days to do so. 

55. On December 29, 2008, Respondent also served five subpoenas ad testifcandum on 

the following individuals and entities: (a) Mr. John Gagge (EnerSys' Director of Engineering 

and Quality Assurance for the Americas and Asia), (b) Mr. Larry Burkhert (EnerSys' Senior 

Supply Chain Manager), (c) Mr. John D. Craig (EnerSys' Chief Executive Officer), (d) Larry 

Axt (EnerSys' Vice President of Procurement and Operations Planning), and (e) a corporate 

subpoena directed to EnerSys. Respondent's subpoenas ad testifcandum scheduled depositions 

in Philadelphia, Pennsylvania on January 26-28, 2009. 

56. On January 7, 2009, counsel for EnerSys indicated that given its pending motion 

regarding the subpoena duces tecum, EnerSys had not begun a review of its documents, and 

Respondent was unlikely to have an opportunity to review EnerSys' documents by the dates of 

the depositions. (Joint Motion of Respondent and EnerSys for Leave of Court to Conduct 

Depositions of EnerSys and EnerSys Employees After the Discovery Deadline, January 14, 

2009). 

57. At that time, Respondent indicated its position that EnerSys' failure to produce
 

documents in advance of the depositions would force Respondent to leave the depositions open 

and to seek its costs in relation to resuming those depositions. (Id.) In light of the inefficiencies 

and unnecessary cost that would result from proceeding with depositions prior to EnerSys' 

production of documents, as a compromise, Respondent and EnerSys jointly moved this Court to 

allow Respondent leave to depose EnerSys employees and designees after the Cour has decided 

EnerSys' pending Motion to Limit Subpoena even if that should occur after fact discovery 

deadline of 
 February 13,2009. (Id.)

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PPAB 1522382vl 
58. Complaint Counsel has fied is response to that joint motion, consenting to the relief 

requested provided that the trial and discovery deadline not be affected. In that response, the 

FTC makes the wholly unsupportable allegation that Respondent has recently implemented 

"monopolistic price increases." Complaint Counsel's accusation is factually and legally without 

basis and is part of Complaint Counsel's continued inappropriate interjection of their views into 

Polypore's contractual relationship with its customer. 

Trojan 

59. Trojan is a purchaser of battery separators. It is the world's leading manufacturer of 

deep cycle batteries for golf carts, renewable energy, floor machine, aerial work platform, marine 

and recreational vehicle applications. 

60. On January 13, 2009, Respondent served a subpoena duces tecum on Trojan and a
 

subpoena ad testifcandum on Trojan's president, Mr. Rick Godber. During a January 14,2009 

telephone call with Complaint Counsel, it became evident to counsel for Respondent that Trojan 

has raised some objections to Respondent's subpoenas to the FTC, although none has been made 

to Respondent's counseL. As it has done with counsel for other third parties, Respondent intends 

to negotiate in good faith with counsel for Trojan in order to discuss and resolve any concerns 

Trojan has regarding its compliance with the subpoenas. Nevertheless, Respondent's counsel is 

concerned by Complaint Counsel's apparent communications with Trojan - including apparently 

notifying Trojan of Respondent's application to the Commission for a subpoena duces tecum, in 

advance of Respondent actually serving the same upon Trojan. In particular, Respondent's 

counsel is surrised that Complaint Counsel would find it appropriate to actively seek to involve 

itself in third party discovery disputes or offer its support to Trojan in any effort Trojan may 

attempt to limit or quash Respondent's subpoenas. The actions of Complaint Counsel are 

another example of 
 the discovery burdens Respondent is forced to unnecessarily confront.

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PPAB 1522382vl 
, ARGUMENT
 

Despite extraordinary efforts at great expense to the company, Polypore cannot 

effectively meet the deadlines set forth in the Scheduling Order.4 Respondent has made every 

effort to avoid unnecessary delay and to ensure that the proceeding has been conducted swiftly. 

See FTC Rule 3.1, 16 C.PR. 3.1. The Scheduling Order may be modified upon a showing of 

"good cause." FTC Rule 3.21, 16 C.PR. 3.21. Good cause exists when a deadline in a 

scheduling order "cannot reasonably be met despite the diligence of the party seeking the 

extension." In the Matter of Chicago Bridge & Iron Co., 2002 FTC LEXIS 69, *2 (2002). The

extensive discovery in this case, the lack of cooperation from third parties and Complaint 

Counsel, Complaint Counsel's massive discovery requests and Respondent's need for additional 

time to prepare its defense constitutes good cause. Moreover, while Complaint Counsel opposes 

any amendment to the Scheduling Order, Complaint Counsel has had more than six and one-half 

months to prepare their affirmative case before the Complaint was even filed and delayed by 

weeks its sharing of this information with Respondent. In contrast, Respondent has had to 

prepare its defense in approximately half of the time that Complaint Counsel has had to date to 

prepare its case while, at the same time, responding to exceedingly onerous requests for
 

additional discovery. 

Over 1.1 millon pages of documents were produced by Polypore to the FTC during the 

investigational portion of this matter. Substantial additional documents were obtained by the 

FTC from third parties during the investigational portion of this matter. None of the third party 

data in possession of the Commission was produced to Respondent until November 7, 2008 and 

4 Respondent has complied with every discovery deadline set forth in the Scheduling Order as of the date of this 

motion, but is forced to request an amendment which would extend all future deadlines set forth in the Scheduling Order by one 

month so that Respondent can reasonably and aâequately prepare its defense. 

18 

PPAB 1522382vl 
has only been provided on a sporadic basis since that time.5 Thus, since the Complaint was 

issued, a great deal of time and effort has been expended by Respondent's counsel to thoroughly 

review these documents and effectively prepare for trial, in an attempt to "catch-up" with 

Complaint Counsel's six and one-half month head start. Moreover, an additional 1.1 milion
 

pages of documents have been produced by Respondent to Complaint Counsel in response to 

Complaint Counsel's far-reaching discovery requests. 

As discussed above, since the issuance of the Scheduling Order on October 22, 2008, 

third parties. Nevertheless, 

discovery in this proceeding has been extensive and time-consuming. Respondent's efforts have 

included issuing subpoenas duces tecum to competitors and customers with operations around 

the globe, negotiating the scope of the subpoenas to accommodate the third parties and avoid 

unnecessary and costly motion practice, litigating motions to limit or quash (or alternatively to 

compel) where agreements could not be reached, collecting, reviewing and analyzing documents, 

and subpoenaing third party witnesses for deposition. 

The extent of third party discovery needed to defend the case and the slow rate at which 

third parties have been complying with the subpoenas served by Respondent necessitate an 

extension of time. To date, only one third party has made any substantial production pursuant to 

a subpoena duces tecum issued by Respondent. The other third parties have only recently made 

small productions or have refused to produce documents at all. Polypore needs this information 

so that it can move forward efficiently with depositions of witnesses. Additionally, Respondent 

Respondent has been moving forward diligently with its discovery of 


5 In their Response to Joint Motion of Respondent and EnerSys For Leave of Court to Conduct Depositions of EnerSys 

Employees after the Discovery Deadline, Complaint Counsel contends that Respondent was somehow delinquent in not serving 

subpoenas on third parties immediately on October 22, 2008 - as Complaint Counsel did by handing their discovery to 

Respondent's counsel in the courtroom following the hearing before this Court on the Scheduling Order. Respondent submits 

that serving subpoenas on third paries is somewhat more involved than handing discovery requests to opposing counseL. Second, 

it certainly is not unreasonable for Respondent to opt to wait for Complaint Counsel to produce the third par documents to it 

before it served its subpoenas. However, given Complaint Counsel's delay in doing so, however, Respondent could not wait and 

proceed to serve those subpoenas. 

19 

PPAB 1522382vl 
has retained an economist to testify as an expert in this matter. Respondent's expert needs access 

to the discovery sought from third parties (including their production and/or sales of battery 

separators) in order to gain a thorough understanding of the market at issue, prepare his report, 

and be prepared to be deposed by Complaint CounseL. Under the curent schedule, Respondent 

must identify its proposed witnesses and trial exhibits, including designated testimony to be 

presented by deposition, by February 20, 2009. The process of identifying potential exhibits 

from the hundreds of thousands of documents produced, preparing them for trial, and 

authenticating them, which under any circumstances would take a significant amount of effort, 

has been made even more onerous by the fact that Respondent has stil not received the majority 

of the documents it seeks from third parties. 

Moreover, as noted above, none of the deposition examinations noticed by Respondent 

have been conducted to date. The individual witnesses and enterprises which Respondent
 

intends to call upon for deposition are located in seven states across the country and in several 

foreign countries (including the United Kingdom, Taiwan and Korea). The logistics of obtaining 

documents, and scheduling and taking these depositions has taken and wil continue to take 

substantial time. Moreover, only eight of Respondent's noticed depositions have a confirmed 

date at this point in time. Respondent's counsel is in negotiation with counsel for several of the 

respective third parties, but no agreement has been reached as to when and where the noticed 

depositions wil occur. As discussed, other third parties have objected to Respondent's 

subpoenas ad testifcandum and moved to quash. 

The difficulty of taking the necessary third party discovery is compounded by Complaint 

Counsel's onerous discovery requests. Indeed, Polypore must continue to produce documents, 

answer interrogatories, defend depositions, and prepare for trial at the same time Respondent is 

20 

PPAB 1522382vl 
pursuing third party discovery.6 At the same time, Respondent is stil awaiting a sufficient 

response from Complaint Counsel to its own discovery requests. As of the date of this filing, 

Complaint Counsel's response to Respondent's Second Set of Interrogatories is past due and 

Complaint Counsel's response to Respondent's First Set of Interrogatories remains woefully 

inadequate. 

The discovery sought by Respondent from third parties is necessary and relevant. 

Respondent's discovery of the witnesses and materials of these third parties is vital to 

Respondent's defense. As demonstrated above, Respondent needs additional time to complete 

the appropriate discovery of these third parties. Without a modest amendment to the Scheduling 

Order, Respondent wil be severely limited in its discovery of these third parties, which in turn, 

wil tilt the playing field heavily in favor of the FTC and infringe upon Respondent's due process 

rights. Complaint Counsel itself, while opposing this amendment, has noted the need for
 

completing discovery beyond the current deadline. In the last ten days, Complaint Counsel has 

sought a deposition of Nippon Sheet Glass ("NSG") and has proposed that that deposition occur 

in Tokyo on February 27,2009, after the discovery cut-off. 

Although Respondent has devoted substantial time and resources to secure compliance by 

the subpoenaed third parties, it is not reasonably possible for Polypore to complete appropriate 

discovery prior to the February 13, 2009 discovery cut-off deadline, submit its expert report by 

February 20, 2009, or sufficiently prepare for the hearing of this matter on April 14, 2009. 

Consequently, a modest one month extension of the Scheduling Order's remaining deadlines is 

necessary to allow Respondent a fair opportunity to explore the issues in this matter and defend 

6 As one example only, after Respondent identified its expert witnesses pursuant to the requirements of 
 the scheduling 

order, Complaint Counsel - in typical heavy-handed fashion - served a subpoena on one of the experts (LECG) for documents 

which Respondent is not obligated to produce to Complaint Counsel under the Scheduling Order, and additionally requested that 

LECG search back-up tapes and provide documents used in preparation of any papers authored by Dr. Kahwaty, which LECG is 

also not required to do under the Scheduling Order. 

21 

PPAB 1522382vl 
itself in the hearing of this proceeding. Moreover, a one-month extension of the trial date to 

May 14, 2009, wil not prejudice Complaint Counsel, nor wil it have any impact on any third 

parties. Finally, Respondent contends that an extension makes sense in view of 
 the scheduling of

6, 2009. 

CONCLUSION 

For the foregoing reasons, Respondent Polypore respectfully submits that it has 

demonstrated good cause to amend the Scheduling Order and therefore moves this Court to enter 

an order amending the Scheduling Order. A proposed revised scheduling order has been 

attached to Respondent's motion. 

the trial in FTC v. Whole Foods Market, Inc., Docket No. 9324 on April 


22 

PPAB 1522382vl 
Dated: January 16, 2009 Respectfully Submitted, 

ßtI ..__0

Wiliam L. Rikard, Jr. 

Eric D . Welsh 

PARKR POE ADAMS & BERNSTEIN, LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 335-9689 

williamrikardrÐparkerpoe.com 

ericwel shrÐparkerpoe. com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN, LLP 

150 Fayettevile Street
 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

iohngraybeal(fparkerpoe.com 

Attorneys for Respondent 

PPAB 1522382vl 
CERTIFICATE OF SERVICE 

I hereby certify that on January 16, 2009, I caused to be fied via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Memorandum in Support of 

Respondent's Motion to Amend the Scheduling Order, 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 filed 

with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-135 

Washington, DC 20580 

secretary(fftc.gov 

I hereby certify that on January 16, 2009, I caused to be served one copy via electronic 

mail delivery and two copies via overnight mail delivery of the foregoing Memorandum in 

Support of Respondent's Motion to Amend the Scheduling Order upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali gov (fftc. 

I hereby certify that on January 16, 2009, I caused to be served via first-class mail 

delivery and electronic mail delivery a copy of the foregoing Memorandum in Support of 

Respondent's Motion to Amend the Scheduling Order upon: 

J. Robert Robertson, Esq. Steven Dahm, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania Avenue, NW 

Washington, DC 20580 Washington, DC 20580 

rrobertson(fftc. gov sdah(fftc. gov 

(21 L~' .J"C/--_
 

Adam C. Shearer 

Parker 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 l522382vl 
UNITED STATES' OF AMRICA

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter of ) 

Docket No. 9327
 ) 

) 

Polypore International, Inc. ) 

a corporation	 )
 

)
 

TAB A 
., 

UNlTED STATES OF AMEIDCA 

. BEFORETHE FEDERA TRAE COMMSSION 

Iii t'ie l\atter ,nf. ) 

) Docket No. 9327
 

PoiYPQre International, Inc., )
 , ,a corporation. )
 : i . .,

lPursuant to 

'COMPLAlT COUNSEVS,FIRSr SET OF INTERROGATORIS TO ( .


,the lfederal Trade Commssion Rules 3.31 and 3.35, Respondent Polypore 

'\ RESlQ~.DEN:i P~LxPORE 1N1EMATIO~AL. INC. . .' . r
 .. 

Interational, me. is 
 hereby requested to answer the fol1owiginterrogatories. The requested

answers must be submitted to 601 New JerseyAvenue NW, Wasgton, 
 pC 20580, withn

twenty (2.0) days. Objections,jf any, must be made withn ten (10) days after serice of these 

,inter:ogatories., 

· DEFINIIONS , \ "I 

A. ' "Polypore," ''te 
 company," "you," or "yours"~eims PolypóreIntemational, Inc., its

.
 . 


I

domestic and foreign parents, p,redecesso~~, divisions, sUQsidiares, affliates,. pwterships, 'and, 

. . .' joint vërtues, and all diectors, offcers, t?n:ployees, agents andreprescmtati'ves of the foregoing. 

'Ihe.,terms "subsidiar," "afñli~Ú:,":~d"joint'ventUe" referto anyperson'in which there-Is 

p"ahial (25 
 "pércent or more) Or total ownership or co:ntroi between the company and, aiyother

person. 

Bo "Daraiic," means Polypote Intemational~ lnc.,itsdomestiè and foreigi parents, 

predecessors, divisions, subsidiares, affliates~ parerships, 'and joint ventues, and all .directors, 

offcers', employees, agents and represenÜitivesof the. foÚ:going prior to the ,pUrchase of 

.Mi~ropoTous Holdings Corporation on 
 Februar 29, Z008. The ters "subsidiar," "affiliate,"

, . 1 

.1 ' 

.,' 
r and "joint venture" refer to any perso~ in which ther~is paral (25 percent or more)' or total 

ownership or ,control between the 
 " "
company and any other person.

C. "Microporous" means Microporous Products L.P~, its 
 ,domestic and foreign parents, , 

predeceSsors, divisions, subsidiares, affliates, 'Parerships, .and joint ventueS, and aU directors,
 

offcers, employees, agents and 
 'representatives of the foregoing. The ters "subsidiar," 

"affliate," and "j oint ventue" refer to, any person in which there "is parial (25 percent or more) 

/ or total ownership or control between the company and any other person: 

D. "The .tansaction" meana Polypore's purchase of 100% of the stock of Micro porous 

~ '", 

Holdigs COrPorationouFebruar 29,2008.
 

E. "Re'H:vantprpduct" or "relev~t'ehd use~' as used herein means,battery separators used for
 

'\ 

deep-cycle, untemiptible power 'supply (''US''), automotiv~, or motive a1?plications. , , 

F. ' ,"R;eleva,tarea" meansand infornation shallbe provided separatelyfor: (a) Nort 

America, .(b) Asia, (c ) Europe (d) the World. 

G. "Person" in,cludes the company and means any natural person, corporate entity, 

parership, association, joint ventue,:govemmcnt entity,oi trust. 

H. ''Minimum viâble scale" means thesmaiiesta.otmt ofprod~ction at whicb average costs o '-'. . . . ..
 

viable scale differs 

er~al the price èurently charged for tbè relevant product. It should b~ noted that minimum

frm the concept ofininimum effcient 

, .
scale, which is the smaliest scaii at
 

which average costs are minn;iZed.

I.,. '¡Sun c~sts~' meanstlÍe acquisition c~sts oftangible aid intangible ass~t~ necessar to
 

, ,


'. manufacture and sell the reløvant product that c.anot pe recovered though the redeployment of 

these assets forothër uses. ( 

, J. I~Sales" mean!; net sales, Le., total sales afer deductirg discoUnts, returs, allowances and
 
excise taxes. "Sa.les" includes sales of the relevant product whether manufactued by the 

company itselfor'purchased from sources outside the company and resold by the. company in the 

same manufactured form 
 as purchased., 

K. "AId" and"or" have 
 both conjuictive and disjUnctive meanngs. 

L. . "Pescribe," "state," and "identify mean to indicate fully 
 and unambiguously each relevant 

fact ofwhiçh you have 
 knowledge. 

M. "Documents" means all computer fies and wrtten, reaorded, and graphic materials of 

every kind 
 in the possession, custody or control.of thecompary. The term "documents" 

includes, without limitation: electroniç mailmessagesielectronk correspondence and drafts of . 

documents; nietadata tãnd other bibliographic or historical dllta. describinK or relating to 

documents created, 
 revised, or distrbuted on computer systems; .copies of documents that are not

identical duplicates of the originals in t):at person's files; and copies of documents the orighials 

ofwhIch are not in the possession, custody or 
 control ofthe company. 

. N.'''Computer :fles" includes inormation stored in. or accessible tlrough, computer or other 

infonnation retrevalsysteiIs, including documents siôredinpersonal computers;portable 

computers, workstations,minicomputers, maies, serers, backup disks and tapc;s, archive 

disks and tapes" and other folis of offine storage, whetler on or off company premises. .
 

O. "Plans" means tentative and prelimiar proposals, recommendations, or considerations, 

whether. or not finalized or authorized, as well as those that hllve been adopted.

P. "Relating to" 
 means in wholeorinparconstituting, cont~ining, concerng, discussing, 

descrbing, anal~ng,identifyng, or stating. 

Q. "Data" means numeric infonnatioll orinformation expressed nurencally. 

R. "PE" means polyethylene.
 
41. 2008 Civil Investigative Demand is.sued by the Commission to ,,¡ 

Polypore. 

s. "CnY' means the April 


T. "AGM" means 'absorptive glass mat. 

U. "UPS" means uniterrptibl~,power supply. 

V. "FTC/' and "Commission" mean the Federal Trade Commssion:
 

w. , "SKU" means stock 
 keeping unit. 

X. "RFP" means reqúest for proposal or request for quotes. 

INSTRUCTIONS
 

A.. These Interog~tories call for.aU inormation (including any information contained in or on (
 " , \ '
 any document or wrting) that Iskl19wn or 
 available to you,inçludig all information in~e 

. ,possession Of, or available to, your attorneys, agen~"s, or representatives, or any othet peri~on
 

, ,acting on your behalf or under your i;irection orcpntrol. . ~ . . . 

B.

and fully, unde~ oath. If):ou object toanY'.par of ~,Iiterogatory, set forth thebasIs for your


 Each Jnterrqgat9ry, includìng subpars, is to be answered by you separately, completely , ' ,
 ~ . \ objection and respond to all pars ofthe IhtèrJSatory to which you do not object. Any ground ' .

notsta~ed in an objection witin the time provided by 
 the Federal Trade,Coirission's Rules of 

, 

Ptactice, oranYexÚmsions"thereo~ shall be waived. AU objections must be made "fith 

paricularty, and must set fort all th~ inonnationupon wmch you intend to relyín response to 

any motion to compeL.
 "" 

C. All obJections niust state with p~icl,darty whether, and 
 in what maner, the objection is . . .., .'
 

"infòimation"puru~t to any~ellenobjeêtion,~you~h~~d sQeXPtessly~ndicate. If in
 

being reliedu~on as a"~a~~s.for .1imW,ng there~onse.,IfYo:ii are witbohtiIig responsive '
 . '
 

responding to any Interogatory, you' clai~, anyambiglity ir ititeipretíng either the Interrogat9ry
 

" 
or a definition or instction applicable thereto, you shall set fort as par of your response the
 

language deemed to be ambiguous and the interretation used in responding to the hiterroga~ory, 

and shall respond to the ~terrogatory as you interret it.

D. 'Ifydu canot ånswer all or .par of any Interrogatory afer 

- .
 

exercising duedÜigence to 

secUre the ;full information to do so!~so state and answer to the fullest 
 extent possible, speòifYng 

yOur inability to answer the remaider; s!~tin~ whåtever information nr knowledge you have 

concering the unanswered portion; and" det!Ù1ing what y()u did in attempting to sëcure the 

'unkown iriormation. 

'," E. If any privilege is ,clainied as a ground for not respondi;ng to an Interrogatory, provide a 

privilege log describing the basis for the claim of 
 privilege and all information necessar' for the 

Cour ,tøassess the claim of privilege, in accordance with Rule .' . ~
 , ' 3.3l(c)(2) of the FTC Rules of

Prtice; The privilege log shaH include the following: (i) specific grounds for' ~e claim of
 

privilege; (ii) the date of the privileged cOmiiuication; (m) the persons involved in the i . , privileged coptumcation; (iv) a description of 
 the subject matter of~e privileged 

communcation insuffóient detalto assess the: clai Qfprivilege¡ and (v) the Interrogatory to 

which theprivilegedinformatioli is responsive. / 

( " 

F.

otherwise 

 Whenever necessary to 'brig wiiniii the scol:e of an Interrogatory a response that ~ight

,be construed tò be outside its scope, the following constrctions should be appliéd:' 

, . i


1. çi;mstng the teris "and" and HOr- in the disjunctive or conjunctive, as necessar, to
 

make the Interrogatory more 
 inclusive; 

Z. Constrg the singuiår form of any word to includ~ the plural and the plural form to 

include, the-singular; 

, ' 

3. Construg the past te~se ofthe verb to include the present tense and the present tene to 
,­

include the past tense;
 

4. Constrng the masculineJorm to include the feminie form; 

5. Constnig the ter "Date" to mean the exact day, month, and year if asceraiable; if not, 

the. closest approximation that can be made by means of relationship to othèr events, 

locations, or matters; aId 

6. Constrin,g negative terms to include the positive and vice versa. 

G, Urness otherwise inst1Cted, provide inorm~tion where requc;sted from the year 2005 to 

the present. 

H. Proyide data¡ where requested, in electronic spreadshee~ format, fonmitted in Excel (.xls). 

I. 'Au .sales data sb9uldbe provided in.monthly increents;
 

J. Forallresponses provide fie layouts and data dictionares, including; but nbt limited to, \: . 'definitions 'of all fields 'as well as explanations for~y codes or abbreviations within data
 

sets, and defutions for all product specific~~oD codes.
 

K. ',For allrespoDses-to interogatories 4,S,lS"and.16;-provide.datainFlat File.romaL 

you have anyquestioDs,pleasecöntact ChrstianH. Woolleyat,202-326-2018. '-;L.. if 
 , i


INTERROGA'FOiUs 

1. Complete and update all r~ponses to the CID issueq to,Polypore OD April 7, 2008. 

2. Identity each ,and every changeli prices byPo'lypore to customers in North America
 

, in anyrelevantprodu~t .sÍnce thç transaction. For each such request to increase price state~ 

a. the relevant product;
 

b. the customer;
 

c. ~he curept price; 

d. the proposoochangein price; 
e. the reason for the price change; and.'
 

f. the amQunt of change in price 
 achieved if any;

3. If the rea~on for the request for anychane it ,price in interrogatory 2, above, is 

related to increase inPolypore's costs 
 for lIanufaCtu~ or sellng the relevant pro"d'uct, st;:te, in

\ 

detail,. each cost increase for each relevant product and the facilty in which such relevant 

product is produced or from 
 where the relevant product is spld( 

4. ,.. For Polypore, Paramic, and;,Microporous, provide data op the costsassociated with 

the -relevant product ftom~ 2005 to the 'present (and projecting forward ,for all available yeas);
 

These data should c'over the totalcQsts associated with proåucing the relevant 
 product. These

dollars per squåre meter monthly, by company, 

countr, plant, line, and relevant product. Cost data shouidc~ver all sun, fixed, and variable 

data shoiid be reported in both 'dollars ,ard in 


costs and should be categorized as sUch~ The cost data should be'broken out as follows, , l including, but not limited to, these categories:
 

a.. raw materials;
 

b.labor;
 

c. overhead;'
 

d: plant administation; 

e. any rebate, includig; . ~ i
 but not limited to,
 "COS Rebate";

1: SG&A; 

i. selling;
 

/, ii. G&A; 

,. 

ii.R&D¡ and '. 

iv. other start-up expenses
 
g. depreciation;
 

h; amortzation;
 

i. taxes; and,
 

j .'. all other cost~. "­

5. . State 
 (. '
 iii sales for PoJypore~ Daramic~ and Microporous by eachrelevart product in

each relevant area tlom Januar 2003 to the present (and projecting forward for all available' 

year) organzed as follows: , '


a. company (i.e. Polypore~ Darci or Microporous); 

b. plant;
 

c.

d.product code (which Polypore terms "It~");


 line;


. ,
. i e. product 
 ' name (whíchPolypore tenus "Description");

, , f. product categories 
 (product groupings, including, but not limited to, broadly i 

defined categories such as ''PE-rubber hybrid;' and naowly de,Eined categories 

such as "CellForce"); . '
 

g. customernáie; 

h. customer cQuntr;
 

i. .custom~r's releVant area;
 

j... customer parent; 

k televant product;
 

1. yearsíÙe took place;
 i 

m. month sale t()ok place; 
n. sales dollars sold (indicating separately actual sales and sales projections for all 

years'fQr which projections exist); 

r 

0.' square ,meters , ,
 sold (indicatipg separately actul 
 sales and sales projections).

p. sales type (i.e. regular sale or,sample). 

6. State the name, address, esimated sales, and estimated market share of 
 the company 

and each of the company's competitors in each relevant area in the manufactue or sale of each 

relevant product. ,'-~.'. 

7. Identity each and every occaSion when Danunicdeclared aforce majeure, and state 

the reasons for each such declaration. 

8. Describe thec'rcuistances, the timing of, and all reasons for, the depare of any 

,company employee, :,jncluding, but notlímited to, Michael Gilchrst and George Brihyer from 

eOlployment at Polypore since July i, 2007. 

'9. Identify. costs and time necessar to fully complete all required testing for
 

, commercial qualification for each relevant product. 

10. Identify the 
 factors affecting the profitabilty analysis or swtching production from 

relevant product to relevant product, inçlud~ng, but notlited to, the minum increase in
 

price(s) that would make such a switchptofitable. 

11. ' Provide 
 the date, lists of attendees,. and identify matters discussed for every Darånic, 

Polypore or Microporous board of directors meetng, includipg a listofmatters requing vote,
 

and the oiitcome of 
 . I" .
 each vote, since Januar 1, 200t

12. Identify each and every instance 
 since Januar i, 2006 in which Daramc competed .' 

against Entek for the sale ofnon~automotive battry separators. .hi resonding to ths 

interrogatory, identify the tye of separator by SKU for each instance of competition as well as 
the vohl;ne of separators in each potentìal or actual s¡Ùe, the intended eiid use, application, and
 

, '


the separator material (e;g: PE, rubber,PE-:rubber hybrid). 

13. State the name and address of each peron who has entered or attempted to enter 

into, or exitedfro~, the developpient, production, sale, or pro.vision of each relevant product 

from Jan?ary 1,1999 'to the present. Før each such. person, identify the relevant product(s) it

develops, produces, sells, or provides or has developed produced, sold, or ~ ' '
provided and the date

ofthe person's 'entr into or exhfrQm the market. For each entrant, state whether the .entrant 

developed (or is developing) anew product, licensed a product developed by another person, 

acquired a product from ano~er person orconveitd assets preciouslyuse~ for another purose 

(identityng that purose). 

the bases for your 

resPOnse): 

14.F~r each relevant product, identify or describe. (including 


a. requirements for entr into 

, ,


the production örsale oÎthe product in ,each relevant.


area includig, 
 'but not liniited to, research and development, pla:ng atddesign,

productionreqU:rements; distrbution systems, servce requirements, patents, 

,licenses, sal~s and marketing açtivities.andany necessar govemental and 

cus~omer approvals, and the time necessar to meet 
 each such requirement; ,

b. the disco:ut rate to use to' asses!! the atactiveness Of entr; the investents by " , (
i 

each investment);'the tye req1lired fQr entr (including'thç dollar vi:lue or 


amount Ófsuch c¿sts, the tota:costsrequired for en~ iuto the prQductionQr saIe 

of the product; the.amount of such costs that would be recoverable ifthè enn;ant

were unsuccessful or elected to ,exitthe .inanufactue or sale of the product; the

.' .' t .
 

1.-' . 

methods and amount oftirte liecessar to recover s-nchcosts;and the total su . ,
 

, I
 

\ 

.j ".
 
costs entailed in satisfYng the requirements for entr; , ,
 

c.possible new entrts into 1;e manufacture or sale oftIle product in each relevant 

area; 

d. the minimum viable scale, the minimum and optimum plant size, production line

size, capacity utilization rate, production volume, requiements for multi~plant,

( "
 , , i '
 

multi~product, or vèrticaly integrated operations, or other factors required to 

, '. . I. .
 attain any available cost savligs or other effcieicies necessar to compete

profitably m the manufactue or sale oftle prodUct.; and 

e. To the extent 


or requireients to enter:the North American marketforany relevant.product, 

that an~w elitnt located in Asiawould incur any additional costs , . I '
 iden~f) those addit~onal costs or 
 requirements.

costs associated with shipping the 

relevant,product worldwide' from 2005 to the present (and projecting forw3:d for iill available 

, years). ,This information should be reported in dollars, monthly by company, countr of origi , 

and port). ( 

15; For both Daramc and Microporous; identif. the 


,plant, and relevant product, as shipped to North America (spécif. destination country 


Cost infomiationshould cover the total costs ,associated with smppingthe relevant product, Cost 

applicable) costs (and should be information shouidèover all fixed, v¡iable, and sunk (if 


categorized as such). Infonnation,should be broken out into the following imbcategories (but not 

limited to these subcategories): 

a. freight on board; 

b. custoins;,
 

ç. insurance; and 

d. all other costs includingsur"harges, taxes 'and tas, ~1'cluding, but not limited
 , , \ ' . ' ,
 
.'1......,'...: 

to, V AT and . importexpOrf. 

16. Provide inonnátion on assessments and, estiates ofthe costs of Shipping the ' 

relevant product to Norl America (specify destination countr and port;ifpossible)by OTHR 

battery sep~ator manufactuers. This information, should be reported in dollars, monthy by ,
 

total costs associated with ~hipping the relevant prodùct, covering all fixed, varable, and sunk (if 

company, origi countr, plant, and relevant product market. ' Cost estimates should cover the
 , '
 applicable) costs(and shouldqe categorized as such). Estimates should be broken out into the 

following subcategories, including, but not limted to, ,these subcategories: 

.a.FreIght on Board;,
 

\ b. customs;
 

c. 'insur~ce; and 

d. all other 
 costs including surharges, taxes and tarffs, including, but not limited

'­

to, VAT and importexport, 

,17. Identify each and ever producer of a relevant product in each relevant area, and , 

, ,state whether that peri'ln 'haS 'ev~r s.old aI'elevant PlQduct into Nort Amerca; and, if so, state 

'the type of separator-by materal and relevant end use.
 

i 8. Descrbe the role reputaiionpla.ys in gaining aid maintaining customers for each
 

relevaht product, iicludin.g, but not limited to, how thè fàCtor ofreput,tion iIpactsA~ian 

. producers of 
 relevant products~

i 9., Descrbe your strate8¥ Jorestablishitigcustomer rehitionships for the sales Qf the
 

reievait products, including, butnot1imited to, the responding to, or solicitation of, RFs.
 

:ZO. Descrbe~croporoiis'piansto enti;the automo'tve market in any relevant area 

between J anumy 2005. and the qate of the transaction. 

~) 
21. Identify 
 all communications,between Hollngswort & Vose and Daranic ,from 

Januar 1, 1997 to December 31, zOOt,related to any agreement, or attempt to enter into an 

agreement, inèludig,. but not limited to, th~ 2001 Cross Agency Atneemént and tle purchase of 

Exide's/Corydon"fudiana facilty. If imy meetings were 
 held With regard to any of the topics

which fall withn the description abQve identify:
 

a. who was present; 

b. each topic of discussion; and , ' . c. all exchanges of infonnati0!l (identifyng thos,e that were con~ide~ed 

confidenthil). 

all cOintic¡itions between Hollngswort &Vose and Daramic from 

July 1, 2005 to tne present, rehited to any agreement,' or -attempt to enter into an agreement, 

.22. identify 


any meetings including,'but not limited to, theren~wai~:ofthe2001 Cross Agency Agrei;ment. If 


wen~ held :with regar to any of the topics which fan 'within the. descrption aboveideritifY:
 

.. 

a. who was present; 

b. each topic or discussion; and
 

~. all exchanges' ofintotmation (identifying those that Were coIiidered 

confidential). 

23. Identify each and.every instace wheiiPolyporehas marketed, sold, attempted to 

market, or attempted 
 to sell AGM separators; In answering ths interrgatory identifY:

a.target customers;
 

b.associatedvoluie; and
 

c. geographic locations of each customer or potential.

24. IdentifY each and every 'agreement or attempted agreement discussed or negotiated
 

f . ,

,,', -,';'~.
 

between Daraiic, or Polypore1 and any'?tlttery separator manufacturer relating to non-compete 

agree~ntS1 acquÜiition~1 joint ventus1 or marketing agreements from Januar I, 2004 to the 

present. 

, 

25. With regard to each negotiation or discussion'identi,fied in response to interogatory 

24, identifY:
 

a. who paricipated; and . 

,b. the 
 substance of eaoh negotiation or discuiisiòn1 including but not limited-to, 

products at issue, geographies at issue, timing and dur¡itiorl ofagreement(s) , ,, ' discussed1 and tle outcome 
 of each negotiation or discussion.

26. :State 
 all efficiencies 'achieved, or are expected to be achieved, by Polypore as' a 

result of the ) ,
 acquisition ofMicrop'orous. In answerng this interogatory",provide a detaled

eiplanation ofhów each efficiency has benefitted, or will soon benefit1 your customers. ' 

27. List~ and describe1 eachaId every developmental project for any relevant product in
 

which Mícroporous had been e.gaged prior to the transaction. 'Provióe a detàiled update on the 

status of.each such pr~ject to date, including, but not Iipùted to, projeçts LEN01 CoolWhp; and 

\ Einstein., 

,28. For each proj ect mentioned in response to interrogatory number 271 describe the:
 

a. "intended con:ercial use;' 

b. targeted cus~omer:(s);
 

c. length of time in development; 

d. remaiing action items; 

e.dolIar,aroUÌt ofinvestéd capital; 

f. the expected benefit of ,. -, , . ' the new, or altered1 technology; and
" .. ,'," .. 

g. expected tìme when commercial sales are expected to begin. 

29. State all efforts by Dar.ac. tp develop a deep-cycle separator for flooded lead-acid
 

batteries since Januar 1, .1997, including, but not limited to.: 

a. money, spent in development; 

b., tìme(in man year) in development; 

. c. personnel and contrtors involved;
 

d. testig parers; 

e. testig rèsults;
 

\, 

f. associated contract negotiations;
 

g. attempted 
 sales of separators for deep-cycle applications; and 

.h. sales of separators for deep-cycle ènd use application. 

30. 'State all efforts to improve the HD separator, including but 
 not limited to, cost 

reduc~jon~ 'niabilty,' and pedormance improvement efforts.
 

, 

has been ordered or purchased for the second phase of 

the Microporous expanslon; including, but not limited to, the equipment intended for the En~sys 

31. Identify the eqùipment that 


contract, referenced by Michael Gilcbrstori pages 58 and 59 of 
 his InvestigationalHearng

transcript. Provide the status of ths èquipnient, incluclng,biit not limited to, the loc'8;tion, cost, 

and origìnal purose of each piece ofeq,uipment. To .the extent the original purose diffetsfrom

the curept ùse or planed use provide dttailed explanation of the reason(~) for the chage and 

" 

the timing of 
 the change.

32. For each product produced by Polypore, Dara.c, or Microporous siIice Januar 1,
 

2003 state the:. 

a. product code;
 

r 
.... ,. ...;........ .... ......1..-:........)
 

b. name;
 

c. different SKUs; 

d. material used (e.g. PE, rubber, PE/rubber hybrid); 

,e. end use; 

f. ,purchasing customer; and
 

-

g. ,explai in detl¡l systems for the coding of products whether as' par of thè SKU or 

product code or any other product designation scheme. 

than two (2) year in duration between 

Daric, orPolypore and any customer or faci1ty in Nort America for any relevant product. 

33. IdentitY all sUpply agreements of greater' 

For each supply 


., 

,agreement identified, state: 

a: the customer or facilty that is or was a par to the agreement with Daramic or 

Poiypore; 

effect, b. when it was entered into and when it expired or, if the, agreement is still in 


when it is due to expire; and 

c. whiah relevant product or products are covered by the agreement, with the 

square meters and dollars. ,For 

For. 

associated anual volmnes stated 
 separately in


such volumes supplied in 2008, state actual volumes on a year-to-däte basis. 


such volumes to be suplied -in the remainder of ~008, and any futue years under 

agreementsstìll iieffect, provide reasonable 
 estimates and describe the method

by wmch those estimates ~yreca1culated. ' 

34. ' FQreach relevant prodilct, -for each 
 SKU, and for each relevant area) from 1997 to

the present identity: 

i 

a. the quarter and. year jn which,the company first began to, develQp or test the

, , 
.....; ...~ . ':. " 

i 

product (including but not liited to inteinál testing according to industral 

standards or tests tequirèd by prospective customers); 

b. the quarer and year in which the product was fifst sold in commercial quantities; 

. , . .
 

c. the first customer to ,purchase the product in commerial quantities; 

d. any indepen.dent laboratóries involved in testingandlor developing the product;
 

e. any industr-w~de tests (e.g. BClstandards) to which the 
 product was subjected;

and . 

f. 11e total cost of product development and testing borne by the coinpany (Daramic 

or Microporous), betWeen the dates identifi~d inOla." and "b." above).. . '\ 

the full name and defiition for the. abbreviatioRs used hi document :\ 35. State 


"07B06A05A.x1s/'. which begins with Bates number "PP _SEIß000023482." . 

and every instance'when Hol1ingsworth& Vose marketed, .sold, 

attempted to market, or attempted to, sell PE separators. In answering this interrogatory identify: 

36. -IdentifY each 


a. target customers; 

b~ associateçi volume; and 

c. ,geographic locations 
 of each customer or potential.

37. To the extent you have already provided documents respon~ive to any ofthe

foregoing interogatories; identify each individually by Bates range;
 

r 
'.. ",.', ..:............ . .
 

l. ;
 

DatM: October22j2QO~ Resp(:çtfiltly su.~mitted, 

~. .' 
....:".,... '.., ~. ',' ",,~., ..;..... ,.... 

UNITED STATES OF AMERICA

BEFOim THE FEDERA TRADE COMMISSION 

In the Matter of ) . Docket No.
 9327 )
 

)
 

Polypore International, Inc. )
 

a corporation )
 

)
 

TABB
 
..r.. ',,-.
 

d 'BEFORE THE FEDERAL TRDE COMMSSION UND STATES:OF AMERICA , .' . - .'. -. . 

In-the Matter ,of'	 )
 

) , DockëtNo.9327
 

Polyp.Qre ~nterIatioiial, 10ç.,
 ) ,a 'corporatÎlm. ' ) 

, 'COMPLAlT"COUNSEVS FIRSrSET:QF DOCUM ItEQUESTS TO 

, :;Pursuant to Rules 3.31 and . . .,­ ." "',., '. . . .'. , RESPONDENT'POLYPORE lNT~RNATrO~AL.lNC.
 , , '
 3.37 of the'RulQs of Procedure of the Federal Trade .

, ,Commssi(m (''FC Rules: , .
 " : . . ..' '. .'. .. . of Practice"), Respondent,'PolyPore)ntenIatioÌial, Inc., is hereby'

,',.', reauèsted 19 produce the fOlloWin,g qÓCuinents fOl'nspectfon'an,d có.pýing at 601 Nçw Jersey

, ,
 " . .
 , ,

d A ven~~:NW; 'W,' a~hingtón,De 20580; withîtitwe~ty (2Ò) days. ,Objections to any requ. est ~i.st . .' . .. . '. '. .


. 'be made\vithip .ten :(1:0)' days lrom.tÍie'.date of.ervce. '
 . '
 " I. ...... . .


. l)EFOTIONS, 

A., i'lölyPore;'1 "the, compluY," ''you,'" "your;"andliketenns ,mean Respondent, its


. . . . . . . domestic' andJoreign :parents, predecessors, givisions, siibsidiares, affiliates, 

'" ,':parersh,íps"arid joint ventues" and itlljji;rectois; officers, empl.oyees, agen~s:åIld 

',re~èntativ~s of the rorégoing."SÙbsicJat,""affí1ate,".and "joint venture" refer for

this purpose'to any person in wblch there is parial 


, , ," '
 

(25 piWCc,ntor more) or total . 

, ownershìp,or control betwe.en tlie .company and any oiher person; Unless 9theiwise . 

. spccifíed, "Daramcn ineaiis 'D~amc, LLC and sh~l be sytonymous with 	

, ,


''Polypore.''

B."MîcrOPQ:roua~' means Micropotous Progucts L.P" 'its dOID(tStiC. ~d forCign parents, 

,prede,ces~rs, di.visiôns"su1?sïd¡mies,. affliaies, parnera,hips, andjoint venturs,; and, all 

dÎrectprs;o.fficers, employe~s, agen~ andreptesentative.iipf the foregoing. "Subsidiary/' . \ . , .
 "affliate/' .and '1oint ventQe" refer fot this purpose to 'anypers'on in which thère is '

'... ~.."
 

..: ~~. . 

'\ .
 
-partial (25 p.ercent or more) or total ownership or çontrol between the 
 company and any 

other person. 

C. "l)ocument," subjectto definition C b~low, shall have the broadest meaning that would 

be appliçable under the .Federal Rules of Civil Pi:ocedure, and includes without Hmitation 

computer fies; electronic mail messages; electronic correspondence and drafts of 

.documents; inetadata and other bi1?liographic or. hi~torical data describing pr relating to 

:are not 


documents cr~ated, revised,or distnbuted on coinputersystems; copies ofdocuiIents that

identical duplicates .of theorigina1s in that :person '.s fiies; and copies of documents . 

, '
 the originals of which arnat in 'Res.pondent,s possession, custody or control. 

p. . . Unless otherisesp~ified, i'document" excludes (1) bils ofla~ng,1nvoices, purchase
 

s 

orders, custólIsdeclaraÙons,aÓd other -/imUar doëuments of l: purely transactional 

, .iiature;.(2~arcWtecturai:piros and engineeringbluep!Ìnts,; and (3), documents 'solely . 

. E.. "Relevant product" 


i:elating to tax, buman 

or "relevant end USl!" means .battery. separators used for deep-cycle, 

resources, wpi'kplace .safeiy, or pension plan ~ssues; \ ,


.uninternptiblepowersQPply("lWS~'), automotive, or motive applications.. 

F.. "And" anCl "or",.have both conjunctive and dlsjunctivemeariings. .
 

G. "'rhetransaction"d~fueans Polypore's ,purchase of lOO%.ofthe, stock of 
 Microporous , ,I ': '

H()ldings Corporition'onFebruar 2?,200~. . 

. H. .HRelevant area" means; and infonnation shall Qe provided separately fOr, (1) .No.rt
 

Am,~rlca; (2) Asia, (3) Europe, and (4).he world.
 

2
 
, ­

INSTRUCTIONS 

A. 'Prod.uce alldocuments,requéstedin native 
 format, i~cluding all metadata and all data

supportíngExcel worksheets, in wbich,the fie exists within the company.

B. "If anyprlvilegeis cl~J1ed a~ aground for withholding any ~pcument respoIisive'to these
 

requests, provide alòg of-information necessar for Ute Comission and the 

, Administrative Law Judge to assess the claim of privilege, in accordance with Rule , '


, '
 all specific
 3.31 (c)(2)of the FTC Rules öf Practice, including withoutliIItation (1)


grounds for theclaiinofprivUe&e; (2) thèqàte;'natue~' subject; creator(s), and all

. . . .
 " ,,', ,.,' f . recipient(s) of the With€flddocument; and (3) each ~OCUIIent request tö wnich th~
 

"wi thheld ~dpcunient is responsive. 

the C., -,:Unless otherwisespecified,providedocuments gener;ated from Januar 1,2003 to 


¡present 

D.Jfyou.:have any questions, please contact Çhristian H. Woolley at (202) 326~2018. 

í' 

3 
l)OCU1NT REQUESTS
 

Pr9duce the following: 

produced that are r~sponsive to the Commssion's 

April 7, 2008 subpoena duces tecum issu~d to Polypore, including without limitation any 

1. Anydocùments not previously 


" responsive'documents generated since that date. 

2.. . Any documents (in any electronic fornát). not previously produced that are linked
 

.withany document(s) responsive to , . '
 the' April 7 , 2008 siibpoena duces tecum.

,3. All documents rel~ted to, identified in, or relied upon to prepare your responses to 

any of the CotJssion' s firt .setof interrogatories in this mattei\ includíng all subpars.' , , ' , 4.' AlI documentsrelatlrig to' each and every'declaration of forc:e majeure,by you',
 

under any contract since Januar200~. 

any ',: 5. A1ldocunerits relating to the deparre ~faný Microporous einployee, or 


individual fonnerly employed by Micropòrous, who,subsequent to the transaction,became a 

, Polypore employee, 


,6. Unh::ssproduc,ed in response törequest 'number 3 


between July J, 2007 and the present. . . .'
 

above. aii boardrieeting

of each" parcipating director concenlng 

yvery board rneeting'identified i~ your :fespon~e to interrogatorynwnber 12'. ' 

minutes, ,power poirtts, agendas 'Md. personal notes 

, . 7. ' All documents related to or, reflecting shipping costs for relevant products (as 

defined above) between POlyPre faciltiesIn China and Nort America.

8. Unless 
 produced in


, '
 ,response to request number 3 above, all documents related to

the requests for proposals (and responses thereto) identified in yoUt response t6 interrogatory. 

number 20. 

4. 
9. Unless praduced in response to request number' 3 above, al documents related to,
 

constituting, or reflecting any communications with Hoilingsworth & Vose identified in your' 

responses to interrgatories number 22 and 23. 

. 10. All documents 
 related to effciencies achieved or forèseen by Polypore as a result 

of the purchase, of Microporous. 

Microporous" 

relating to a~y relevant product, including, butnot limited to, projects LENO, CoolWhip, and , r 

11. ,All doCuments conçemîng each and every developmental project of 


Einstein. ' 

, '1,2.. Unless :ptOduced in rtsponse to request number 3 above; all documents' relat~d to
 

, '
 

, 'each and every effort :by~olyporeto develop"of rtarket a flooded lead-acid 'dee:p~cycle battery 

separator between Januar 1, 1997 and the pre.sent, proth~ise r~latei; to your response tò 

Jintertgatòry number 30.,

.13.; ,All documents related to or ten.dingtosuPPortPolypore's statement in ltHl.ly 3,
 

, ,
 

20081etterto then Bureau DirectorSchmidt that the' battery sepm.a~or industr is donu~atedby 

large sophisticated tmyers who have sub!)tantial buying power and, as consequence, control , '

piices vvithin,the industr. 

'1. AU documents, including without limÍtâtion da.tàcnmpHations, g~nerated by or
 

for POlyPQre or j)aramc relating to the price sensitvity"price 'elasticity, price points, or product: ,
 

substitution of any relevantproguct(s).
 

15. Alldô~umi;mts; including without limitation data aompilations,generated by or
 

fQr Mieropoiöus relathig tathe pnce sensitivity, price' elasticity t price poiIits; or product 

suçstitntion of any, 
 relevant product(s).

5 
.i.p..... 

~ ',' ~ 

,1 

I. 

'p .1, 

ì 

t 

t 

I 

'I 

, 

1 

i 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRAE COMMISSION 

In the Matter of ) 

) Docket No. 9327 

)

Polypore International, Inc. )
 a corporation
 ) 

) 

TABC 
'UNITED STATES OF AMERiëA 

BEFORE THE FEDERAL TRADE COMMSSION 

In the Matter of )
 

) Docket No. 9327
 

Polypore International, Inc., )
 

a corporation. j
 

)
 

COMPLAINT COUNSEL'S SECOND SET OF INTERROGA TORIES TO 

RESPONDENT POL VPOREINTERNATIONAL. INC. .
 

Pursuant to the Federal Trade Commission Rules 3.31 and 3.35, Respondent
 

Polypore International, Ínc. is hereby requested to answer the following interrogatories.
 

The requested answers must be submitted to 601 New Jersey Avenue NW, Washin~ton,
 

DC 20580, within twenty (20) days. Objections, if any, must be mi:de within ten (10)
 

da~8.ter service of these interrogatories. 

DEFITIONS 

A.. "Polypore," "the company," "you," or 
 "yours'; means Polypore IntenÚitional, Inc., ,­

its domestic and foreign parents, predecessors, divisions, subsidiares, affilates,
 

parnerships, and joint ventures, and all directors, officers, employees, agents and

. .. .. ',', representatives of the foreg()ing. 'theterts J'subsidiar,""atfiliate,"and "joint venture" 

refyr to any person in which there is;,parial (25 percent or more) or total ownership or
 

control between the company and any other person.
 

B. "Daramc," means Polypore Internation'al, Inc., its domestic and foreign parents, 

, predectssors,divisions, subsidiares, affiliates, parterships, andjoint ventures, and all 

directors, officers,ernployees,agentsand reptesentatives of the foregoing prior to the

. purchase 

, (
 of Microporous Holdings Corporation on Februar 29, 2008. The terms

i 
"subsidiary," "affiiate," and "joint v~nture" refer to any person in which there is partal 

the company and any other (25 percent or more) or total ownership or control between 


person. 

C. "MicrÇ)porous" means MicroporousProducts L.P., itsdoi:estic and foreign
 

parents, predeèessors, divisions, subsidiaries, affiliates, parnerships,andjoint ventures, 

and all directors, officers, employees, agents and representatives of the foregoing. The 

terms "subsidiary;" "~ffiiate," and "j'oint venture" refer to any person in which there is 

parial (25 percent or more).or total ownership or control between the company and any 

other person. 

D. "The transaction"means Polypore's purchase of lOQ~ of the stock of Microporous
 

Holdings Corporation on Februar 29, 2008, /

, 

E. "And" and "or." have both conj.i:lOctive and disjunctive meanings. 

F. "Describe," "state," and "identify" mean to indicate fully 
 and unambiguously each

relevant fact of which Y0ll have kno,wledge. .
 

G. "Documents" means all computer
 fies and_written, reco.rded, and graphic materials , \ ; .'. , ,. .. ... 

. of every kind in the possession, custody. or control of the company. The term 

"docurrents" includes, without limitation: electronic mail messages; electronic 

correspondence and drafts of documents; metadata and other bibliographic or historical 

data describing or relating to documents created, revised, or distrbuted on computer 

systems; copies of documents that are not identical duplicates' of the originals in that .. -, .
 person's fies; and copies 
 of documents the originals of which are not in the pbssession, 

custody or control of the company. 

2. 
H. "Còmputer fies" includes information stored in, or accessible through, computer or 

other information retrieval systems, including documents stored in personal computers, 

portable computers, workstations, minicomputers, mainframes, servers, backup dÜ¡ks and


tapes, archive disks and tapes, and other forms of 

, ' '


offine storage, whether on or off
 

company premises. 

1. "Pertaining to" means in whole or in par constituting, containing, concerning,
 

discussing, describing, analyzing, identifying; or stating, 

J. "Identify" and/or "identjJy" when used in reference to a document shall mean to 

state the bates range of the document; the nature of the document (e.g., letter, 

memorandum, etc.); the date, if any, appearing on the document; the identity of the 

persons who wrote, signed, dictated, or otherwise participated in the preparation of the 

document; the identity of all persons to whom the document was addressed or who 

received copies of the 
 document, the present locatíon and custodian of.he document 

. K. "State. the factuà1 basis" anòlor "state all facts" means to state all façts known to
 

by the FTC in the 

Complairit, and to the extent the facts were learned from a Third Party, to identify the

. . the FTC from whatever source that supports the allegation asserted 

i 

, ' ,
 Third Pary from whom such information was obtained and to the extent.the facts were 

leared from documents, to identify the document from which the facts were obtained. 

3 

.... '.~; 
',_.'..1' -.;. . ~ .,_.: ','I '~:'.' '.-' -,; ..:.. 

INSTRUCTIONS 

A. These Interrogatories call for 
 all infornation (including any infolmation contained 

in or on any docuinent or writing) that is known or available to you, including all 

information in the possession of, or available to, your attorneys, agents, or 

representatives, or any other person 
 acting on your behalf or under your direction or 

control.
 

r
 

B. Each Interrogatory, including subparts, is to.be answered by you separately, 

completèly and fully, under oath. If you objectto:any par 
 of an Interrogatory, set forth 

the basis for your obJectionandresPQnd to all parts of the Interrogatory to which you do 

not object. Any ground not stated in an objection within the tiihe provided by the Federal 

Trade Commission's Rules ofPra~tice; or any extensions thereof, shall be waived. All 

, objections must be made with particularty and must set forth all the information upon 

which you intend to rely in response to any motion to compel. 

C. All objections must state with parcularity whether, and in what manner, the
 

objection is being 
 relied upon as a basis for limiting the response. If you are witholding 

responsive information pursuant to any general objection, Y0t! should so expressly 

indicate. If, in responding to any Interrogatory, you claím any ambiguity in interpreting , ' , ' 

either the Interrogatory or a definition or instruction applicable thereto, you shall set forth

as par of your response the language deemed to be ambiguous and the interpretation used 

in responding to the Interrogatory, and shaH respond to the InterrogatorY,as you interpret , . 

it. 

D. If you cannot answer all or par of any Interrogatory after exercising due dilgence 

to secure the full information to do so, so state and answer to the fullest extent possible, 

14 
specifying your 
 inabilty to answer th,e remainder; stati~g whatever information or 

knowledge you have concerning the unanswered portioI1; and detailing what you did in 

attempting to secure the unknown information. 

E. If any privilege is claimed as a ground for not responding to an Interrogatory,
 

provide a privilege log describing the basis for the claim of privilege and all information 

necessary for the Court to assess the 
 claim of privilege, in accordance with Rule 

3.31(c)(2) of the FTC Rules of Practice. The privilege log shall include the following: CD
 

specific grpunds for the claim of privilege; (ii) the date of the privileged communication; 

(ii) thè persons involved in the privileged communication; (iv) a description of the 

subject matter of the privileged commuriicatión in sufficient detail to assess the claim of 

privilege; and (v) the Interrogatory to which the privileged 
 information is responsive.

Interrogatory a response that 

might otherwise be construed to be outside its scope, the following constructions should 

F. Whenever necessary to bring within the scope of an 


be applied: 

;~ .' 1. Constring the terms "and" and "or" ,in the disjunctive or conjunctive, as necessar, 

to make the IrÜetrogatory more inclusive; . 

2. Construing 
 the singular form Of anyword to inc1udethe plural anq. the plural form 

to include the singular; 

3. Constring the past tense of the verb to include the present tense and the present 

tense to include the past tense; 

4. Construing the masculine form to include 
 the feminine form; 

.:. I 

5. Constring the term "Date" to mean the exact day, month, andyear if ascertainable; 

if not, the closest approximation that can be made by means of relationship to other 

events, locations, or matters; and .. .
 

6. Construing 
 negative terms to include the positive and vice versa. 

5 
G. Unless otherwise instructed, provide information where requested from the "year 

2005 to the present. .;'
 

H. If you have any questions, please contact Christian H. Woolley at 202-326-2018.
 

/ 

v' 

) 

6 
INTERROGA TORIES
 

38. Identify 
 each document presented to the ~olypore board of directors, or to any 

member of the Polypore board of directors, yertaining to the acquisition of Microporous 

between Januar 1, 2005 and the 
 date of the transaction, including, but not limited to all 

power point presentations, and excel spreadsheets; For each document so identified state 

when and to whom the document was presented, as well as its author(s) and individual(s) 

by whom it was presented. 

39. Ideritifyall meetings where one or more board members was present where the
 

Microporous or the.acquisition of Microporouswas discussed, including, but not limited 

to, all formal board meetings, all informal board meetings, and all special board 

meetings. 

40. Identify 
 an documents supporting Mr. Toth's statements on page 148-49; 154­

55 and 159-60 of his depositon transcript that Microporous sold its PE assets for asset 

value and that Polypore paid asset value for the PE assets. 

41. . If it is Polypore's contention that Daramc margins 
 have been erodin~ for many 

~ears and tlat price increases have not offset cost increases less productivity 

improvemerits, then identify documents supporting this contention and state by customer 

'" 

7 
and type of product(pE, PE/rubber, or Rubber), the current margin on products sold to 

that custornerand the margins on products sold to that customer over the past 5 years. 

January 13, 2009 Respectfully submitted,

1. Robert Robertson fg

Steven A. Dahm 

Complaint Counsel
 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

Telephone: (202) 326-2641 

8 
CERTIFICATE OF SERVICE 

I hereby certify that on January 13,2009, I seryed via electronic mail delivery and 

first class mail two copies of the foregoing Complaint Counsel's Second Set of 

Interrogatories to Respondent Polypore Intertational, Inc. 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
 

witramrkard(Wparkerpoe.com.
 

. ericwelsh CWparkerooe;corn 

Linda D. Cunnin am. 

Federal Trade COmrssion 

600 Pennsylvania A venue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

lcunni ngharn (g ftc. gov i 

j 

9 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE' COMMISSION 

In the Matter of ) 

) Docket No. 9327 

) 

Polypore Interna.tional, Inc. ) ,

a corporation ) 

) 

'" 

TABD 

,­
UNITED STi\ TES OF 
 AMERICA 

BEFORE THE FEDERAL TRADE COMMSSION 

) 

In the Matter of ) 

)' Docket No. 9327
 

Polypore International, Inc. . )
 

a cQrporation. )
 

)
 

COMPLAINT COUNSEL'S SECOND SET OF DOCUMNT REQUESTS TO 

RESPONDENT POL YrORE INTERNATIONAL. INC. 

Pursuantto Rules 3.31 and 3.37 of the Rules of Practice of the Federal Trade 

Commission ("FTC Rules of Practice"),Respondent, Polypore Internati~nal, Inc., is hereby 

requested to produce the following documents for inspection and copying at 601 New Jersey 

Avenue NW, Washington, DC 20580,witbiiitwenty (20) days. Objectiops to any request must 

be made within ten (10) days from the date of service~ 

DEFIIONS ' 

A. "Polypore," "the company," "you," "your," and like terms mean Respondent, its
 

domestic and foreign parents, predecessors, divisions, subsidiaries, affilates,
 

parnerships, and joint ventures, and all directors, offcers, employees, agents and 

representatiyesof theforegaing. "Subsidiary,""affilate,.; and"joii1tventure" refer for 

this purpose to any person in which there i sparial (25 percent or more) or tota 

ownership ar control.between the.company and any.other person. Unless otherwise 

. specified, "Daramc" means paraiic, ILC and shall be synonymous with "Polypore." 

B. "Microporous" means MiçroporousProducts L.P., its 
 domestic and foreign parents,

predecessors" divisions, subsidiares, affiiates, parnerships, and joint ventures, and all
 

1 
directors, officers, employees, agents and representatives of the foregoing. "Subsidiary," 

"affiiate," and "joint venture" refer for this purpose to any person in which there is 

partial (25 percent or more) or total ownership or control between the company and any 

other person. 

C. "Third Party" means any person; corporate entity; parnership; association; joint venture; 

state, federal or local governmental agency, authority or offcial; research or trade 

association; or any other entity including but not limited to Tracy Tang, Amer-Sil B.A., 

Battery Council International, Bulldog Battery, Inc., C&D Technologies, Inc., EnerSys, 

East Penn, ENTEK International LLC, Exide Technologies, Inc., Freudenberg 

Nonwovens, Hollngsworth & Vose Company, lGP Industries, LLC,James Kung, 

Johnson Controls, Inc., Nippon Sheet Glass Co, Ltd., PricewaterhouseCoopers, ILP. 

D. "Document," subjecr to definition C below, 
 shall have thebroadest meaning that would 

be applicable under the Federal Rules of Civil Procedure, and includes without limitation 

and shall include, without limitation: writings, work papers, drawings, graphs, chars, 

photographs, photo records, and other datacompilatioi:s from which information can be 

obtained, translated, if necessar, by you through detection devices into reasonably 

usable fonn; any information or material of any kind or nature extsting on any media, 

including digital,analog, electronic, mechanical, optical, video or tape recording; 

"document" also means information or fies contained or retained on any electronic 

device, including handheld, laptop, desktoii and home computer systems, floppy disks, 

CD-ROMs, Zip disks/drves, USB and/or any other computerized storage devices, 

whether or not those fies have previously been converted to hard-copy format or not, and 

. the original and all drafts, outlines, proposals, and copies of any such matter (whether or 

2 
" ..-1
l 

i 

not actually used) of all kinds and descriptions, however, produced or reproduced, 

whether sent or recéivedoi' neither¡regardless of 
 whether dèsignated "confidential,"
 

"privileged,"'orotherwise to which youhave acc~ss orknowledge inçlûditig, without
 

limitation, all of the following;' hard-copy documents, voice mail messages, back~up 

voice mails, e-mâi1 rressages and fies, back:,up e-mail fies,deleted e-mails, d~ta files,
 

programfies, computer data bases, back-up and archiVal tapes, system history fies,
 

cache fies, cookies,legacy data sets from previous computer environments, 

corrspondence, papers, books, computer discs, electronically stored data in any form, 

,accounts, photographs,. agreements, cOntracts, memoraí1a, advertising materials, letters, 

telegrams, objects, reports, records, transcripts, studies, notes, notations, working papers, 

intra-office communications, charts, -minutes, index sheets, computer software and 

tickets, bils of lading, invoices, recordings of
 

. telephone or other conversations, communications; occurrnCeS, interviews and
 

';printouts, checks, check stubs, delivery 


'conferences, sound or video reording, and any other material upon which information . - .. . ' '. .


can be obtained. Unless oth~rwise specified, "dçcúment" excludes, (1) bils of lading,
 

invoices, purchase orders, customs declarations, and other similar documents of a purely
 

transactional nature, (2) architectural plans and . '. . r ,", . . engineering blueprints; and (3)

documents solely relating to tax, human resources, workplace safetY, or pension plåJ 

issues.' Information can be stored and retreved, including 
 all written, recorded,
 

electronically store~, transcribed, punched, taped, filmed and graphic matter.
 

E. "And" and "or" have both conjunctive and ~isjunctive meanings., 

F. "~oJIpiaint" means the Complaint is~ued by the Fe~eral Trade Commission to Polypore
 

International, Inc. in Docket No. 9327. 

3 
G. "Inv~stigation" means any FTC investigation, whether formal or informal, public or 

nonpi.blicinvolving Polypore or Microporous. j H. "Polypore matter" means the investigation tonductedby the FTC urider File No. 0810131 

and this Administrative Proceeding; Docket No. 9327. 

INSTRUCTIONS 

A. ProduC"e all documents r~uested in native fonnat, including all metadata and all data 

supportng Excel worksheets, in which the fie exists within the company. Each page of 

. a document shall be accompanied by a single-page TIF image with a corres~ondîng fie 

accompanied by an Opticon load file. 

custodian 

containing the extracted text from the document, 


Metadata (including the entire root directory for each document) and 


information shall be provided in a delimited ASCn fonnat. If hardcopy documents are 

provided electronically as TI images, they should beaccomparued by OCR.
 , '
 , ' .. ,.'

any document responsive to these R. If any privîlege is claimed.as a ground for withholding 


requests, provide a log of information necessary for the Commssion and the ~ 

Administrative Law Judge to asseSs the 
 claim of
 privilege, in accordance with Rule

3.31(c)(2) of 
 the PrC Rules of Practice, including without limitation (1) all specific , , grounds for the claim of 
 privilege; (2) the date, nature,subject,creator(s), and aU

and (3) each document request to which rhe 

withheld document is responsive. . 

recipient(s) of the withheld document; 


. C. Unless otherwise specified, provide dOCuments generatenfrom Februar 29,2008 to the
 

present. 

4 
D. If any documents requested herein have been lost, discarded, or destroyed, the documents 

sólost; discarded, or destroyed. shall be identified as completely as possibJe, inc1uding,

disposal, 

reason for disposal, person authorizing the disposal, and the person disposing of the 

document. 

without limitation, the following information: date of disposal, manner of 

includes the plural and vice versa; and the use 

of any tense of any verb should be considered to include also within its meaning all other 

E. The Use of the singular form of any word 


teons of the verb 
 so used.

F. If you have any questions, please contact Christian H. Woolley at (202) 326-2018.
 

DOCUMNT REQUETS
 

Produce the following:
 

13. All d~uments reçeived by Parker Poe or POlYlore from ai:y 'Third Pary in 

connection with the Flc'sInvestigation or thePolypore matter.
 

Januar 13, 2009 Respectfully submitted, 

--,. 

J. Robert-Robertson 

Steven A. Doom 

Complaint Counsel
 

Bure¡iu of Competition , 

Federal TrådeCoInS'sion' 

600 Pennsylvania Avenue, N.W. 

Washington, DC 20580 

Telephone: (202)326~26411(202) 326-2192 

5 
. '.,.': ..1'~.'."' 

J 

CERTIFICATE OF SERVICE 

I hereby certify that on Januar 13, 2009; I served via electronic mail delivery and first 

class mail two copies of the foregoing Complaint Counsel '8 Second Set of Document Requests
 

to Respondent Polypore International,Inc. with:
 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. rParker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiJiamrikard (! pärkerpoe.com 

ericwelshCß parkerpoe.com 

Linda D. Cunningha 

'\ Federal Trade Commi on 

6QQPennsylvania Avenue, NW 

Washington, DC 20580 

-Telephone: (202) 326-2638 

Icunningham ~ftc;vov
 

6 
, UNITED STATES OF AMERICA 

BEFORË THE FEDERAL TRADE COMMISSION 

In the Matter of	 ) 

) Docket No. 9327 

)
 

Polypóre International, Inc. )
 

a corporation )
 

)
 

TABE 
Mess~ge Page 1 of 1

From: Welsh, Eric D. 

Sent: Tuesday, January 13, 2009 12:20 PM
 

To: 'drussell(Qrobbinsri.issell.com' 

Subject: In re Polypore International, Inc., Docket No. 9327
 .._/ 

Don 

As you know, we have re-scheduled the depositions for Exide Technologies and Messrs. Gillespie, Menion, Ulsh an exceedingly small production of documents, and Perez to January 21,22 and 23, at your request. Other than 


we have received virtually nothing from Exide in response to thé subpoena duces tecum.. Ms. Sarti in her cover our discussion last week that Exide would at letter last night concedes the production i.s smi;ll.. l understood from 


least produce Mr. Gillespie's documents by last Friday, That has not been the case. 

As you know, we filed a motion to compel yesterday. We have been very cooperative and patient with EXíde and
 

have tried to work. with you on issues related to this discovery. Our schedule,however,does not permit us to 

. have Exide drag this production out. As I have expressed previously, we must have the production complete so 

we can use the documents at the depositions and in Respondent's deferise. Accordingly, we will proceed with the 

dèpositions as agreed nèxt Week but wil keep the depositions open pending completion of Exide's production of 

doc;uments to us. If we are required to resume the depositions, we wil seek our costs associated with. such 

depositions, including costs associated with traveling to Atlanta twice for the depositions. 

If you would like to discuss this matter with me, please feel free to contact me. . .~ 

Best regards, 

Eric Welsh 

Eric Welsh 

Partner 

Ext. 9052 

1/16/2009