UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES

__________________________________________ 

 ) 

In the Matter of ) PUBLIC 

 ) 

McWANE, INC., ) DOCKET NO. 9351 

 Respondent. )

 ) 

__________________________________________) 

 

 

COMPLAINT COUNSEL’S OPPOSITION TO TOMMY E. BRAKEFIELD’S 

MOTION TO QUASH SUBPOENA OR FOR PROTECTIVE ORDER

 Without providing any compelling reason, Mr. Brakefield’s August 29, 2012 

Motion to Quash Subpoena or for Protective Order (“Motion”) asks this Court to break 

with its prior rulings and exempt him from appearing at trial. Due to Mr. Brakefield’s 

participation in, and proximity to, the alleged wrongdoing at issue in this case, his 

presence at trial is vital to the resolution of the claims. Having denied similar motions in 

the past, we ask the Court to deny this Motion. 

BACKGROUND 

 Tommy E. Brakefield was the National Sales Manager of alleged co-conspirator 

SIGMA Corporation (“Sigma”) from 2003 until the end of 2011. Mr. Brakefield is also 

the President of the Ductile Iron Fittings Research Association (“DIFRA”), the trade 

association that the Complaint alleges implemented an unlawful information exchange 

among the three primary suppliers of ductile iron pipe fittings, Sigma, McWane and Star 

Pipe Products Ltd (“Star”). In connection with these allegations, Complaint Counsel and 

Respondent deposed Mr. Brakefield on May 4, 2012, separately as Sigma’s employee 

and as DIFRA’s President. On August 23, 2012, Mr. Brakefield provided a declaration 

09 04 2012
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authenticating DIFRA documents. On August 15, 2012 and August 17, 2012, 

respectively, Complaint Counsel and Respondents issued subpoenas ad testificandum

compelling Mr. Brakefield’s testimony at trial. Mr. Brakefield’s testimony at trial will be 

directly relevant to one of the issues at the heart of the Complaint: whether DIFRA 

facilitated collusion between Sigma, Star, and McWane. 

ARGUMENT 

 Mr. Brakefield’s live trial testimony is vital to Complaint Counsel’s case. Mr. 

Brakefield’s asserted burden in appearing is insufficient to excuse Mr. Brakefield from 

his obligation to provide live testimony pursuant to Complaint Counsel’s August 15, 

2012 subpoena. Accordingly, his Motion should be denied. 

 Contrary to Mr. Brakefield’s assertions, Mr. Brakefield’s deposition transcripts 

are not a substitute for his live trial testimony. As this Court has repeatedly held, 

deposition transcripts have the distinct purpose of helping litigants prepare their case, and 

their examinations of trial witnesses; they are not a substitute for live testimony. See In 

re: The Coca Cola Company, 1990 F.T.C. LEXIS 204, at *1 (1990); In re: ScheringPlough Company, 2002 F.T.C. LEXIS 176, at *3 (2002). 

 In Coca Cola, this Court explained that parties are “entitled to require [witness] 

attendance at trial despite his previous deposition, since the purpose of depositions is to 

prepare for trial, not to serve as a substitute for live testimony in Court.” 1990 F.T.C. 

LEXIS 204, at *1. Likewise, in Schering-Plough, this Court reiterated that depositions 

are taken in anticipation of, and not in lieu of, live trial testimony. 2002 F.T.C. LEXIS 

176, at *3 (2001). Depositions are for “learning what witnesses know and will say and 

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thus whom to call to testify at trial.” Id. Depositions also provide parties material for 

cross-examining and impeaching witnesses. See 7 Moore’s, § 30.02[1] at 30-14. 

 Thus, Mr. Brakefield’s live trial testimony is not “unnecessary” whether his 

testimony is “fully known and is available to counsel” or not. Motion at ¶ 6. That 

Complaint Counsel’s learned what Mr. Brakefield would likely say at trial during his 

deposition does not, alone, obviate Complaint Counsel’s right to present his testimony 

live at trial if it wishes. As Shering-Plough explains, this is precisely the purpose of 

depositions. Moreover, Mr. Brakefield’s trial testimony will likely address documents 

that had not been produced as of the time of his deposition. Additionally, this Court’s 

ability to assess Mr. Brakefield’s credibility is an important reason for bringing Mr. 

Brakefield to testify live at trial. 

 The bases for Mr. Brakefield’s claim that attending trial would be burdensome do 

not overcome Complaint Counsel’s right to present Mr. Brakefield’s live trial testimony. 

This Court has compelled testimony from witnesses when the burden to them has been 

“minimal.” See Schering-Plough, 2002 F.T.C. LEXIS 176, at *12 (compelling 

deposition testimony). A busy schedule or work disruptions, even for public officials, are 

generally insufficient to excuse witnesses from complying with ad testificandum 

subpoenas. See Arkwright Mutual Insurance Co. v. National Fire Ins. Co., 1993 WL 

34678 (S.D.N.Y. 1993) (enforcing a deposition subpoena against AIG’s president); CBS 

v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984) (enforcing a deposition subpoena despite 

the witness’s “busy schedule”); Culp v. Devlin, 78 F.R.D. 136.141 (E.D. Pa. 1978) 

(enforcing deposition subpoenas against the mayor and police commissioner). 

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 Here, Mr. Brakefield, who is retired from the work force, pleads no specific 

burden other than the uncertainty of the date of his testimony. Motion at ¶¶ 5-6. Yet, as 

Complaint Counsel has explained to Mr. Brakefield, he need not bear the cost of his 

travel or his lodging in connection with his testimony at trial. Having raised no other 

burden to appearing, this Court cannot rely on his mere assertion of a burden in excusing 

Mr. Brakefield appearance. 

CONCLUSION 

For the reasons stated above, Complaint Counsel asks this Court to deny Mr. 

Brakefield’s Motion. 

Dated: September 4, 2012 Respectfully submitted, 

 s/ Monica M. Castillo 

 Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael J. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq.

 Monica M. Castillo, Esq. 

 Counsel Supporting the Complaint 

 Bureau of Competition 

 Federal Trade Commission 

 Washington, DC 20580 

 Telephone: (202) 326-2470 

 Facsimile: (202) 326-3496 

 Electronic Mail: ehassi@ftc.gov 

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CERTIFICATE OF SERVICE 

I hereby certify that on September 4, 2012, I filed the foregoing document 

electronically using the FTC’s E-Filing System, which will send notification of such 

filing to: 

 Donald S. Clark 

 Secretary 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

 The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing 

document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

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Richard Gill 

Copeland, Franco, Screws & Gill, P.A. 

444 South Perry Street 

Montgomery, AL 36104 

(334) 834-1180 

gill@copelandfranco.com 

 Counsel for Mr.Brakefield 

CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

September 4, 2012 By: s/ Thomas H. Brock 

 Attorney 

PUBLIC