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04 11 2012 

UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

) 

In the Matter of ) PUBLIC DOCUMENT 

) 

MCWANE, INC., ) 

a corporation, and ) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership. ) DOCKET NO. 9351 

) 

__________________________________ ) 

RESPONDENT McWANE, INC.’S OPPOSITION TO COMPLAINT
 

COUNSEL’S MOTION TO COMPEL ANSWERS
 

TO INTERROGATORY NOS. 13-16
 

Pursuant to Rule 3.38 of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Respondent McWane, Inc. (“McWane”) respectfully requests that the 

Court deny Complaint Counsel’s Motion to Compel Respondent McWane, Inc.’s Answers to 

Interrogatories 13-16 (“Motion”), because the three specific interrogatories at issue in Complaint 

Counsel’s Motion consist of at least eight distinct subparts.

1 Complaint Counsel (“CC”) has 

therefore exceeded its allotted number of interrogatories and permissible subparts as of 

Interrogatory 12, inclusive. 

I. FACTUAL BACKGROUND 

On February 21, 2012, CC served its interrogatories on McWane. On March 22, 2012, 

Respondent served its answers and objections to CC’s Interrogatories and supplemented those 

answers on March 27, 2012. 

The vast majority of CC’s Interrogatories contain requests for multiple, distinct pieces of 

information. Thus, they exceeded the twenty-five interrogatories permitted by the scheduling 

order. In its Motion, CC challenges only three of McWane’s objections to its tactic of lumping 

multiple distinct requests under a single Interrogatory. 

1 McWane expressly reserves its relevance objections and all other general and specific objections contained in its 

Interrogatory responses (including objections to Interrogatories 13-16), e.g., undue burden, and does not intend by 

this opposition to relinquish its objections. 

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McWane, Inc.’s Opposition to CC’s Motion to Compel 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interrogatory 1. CC concedes that Interrogatory 1 requests multiple distinct pieces of 

information. It is easy to see why: the Interrogatory explicitly contains twenty-two (22) distinct 

“and/or” connectors and many additional “and/ors” are implicit. CC concedes that this jampacked Interrogatory contains more than one distinct request, but argues that it should be 

interpreted to contain “no more than 2 discrete subparts” - - one, calling for the identification of 

employees with responsibility for pricing decisions and another calling for the identification of 

employees who had any communication with competitors on any topic. The parties are in 

agreement that these are clearly two distinct requests. The only difference is whether the 

Interrogatory contains two additional, distinct requests. On its face, it does: subpart (a) calls for 

telephone numbers (and service providers) (business, home, voice, fax, and cellular) assigned to 

or used by the identified employees “for any business purpose,” i.e., for purposes beyond - - and 

distinct from - - either price determinations or communications with competitors; .subpart (b), 

likewise, calls for telecopier and email identifiers assigned to or used “for business purpose,” 

again, beyond - - and distinct from - - pricing decisions or communications.2 

Interrogatory 6. This Interrogatory also calls for two distinct pieces of information on 

its face. First, it asks McWane to “quantify” efficiencies with regard to its participation in a 

ductile iron fittings trade association. That requires McWane to provide a number. Second, it 

calls for McWane to “describe in detail the basis” for its determination of that number. That 

requires a narrative explanation of the economic or mathematical methodologies or models used 

to determine the quantification. 

Interrogatory 10. This Interrogatory contains the same distinct requests to “quantify” 

and “describe in detail” as Interrogatory 6, but applied to a different topic. Again, providing a 

2 As a practical matter, the request for information related to “any business purpose” will require information to be 

gathered from different and distinct sources, particularly for employees who have multiple jobs with different 

responsibilities in different parts of McWane over a several year period. Of course, it is not clear how emails, 

telephone numbers, and faxes unrelated to pricing decisions or to communications with competitors are relevant to 

this litigation. McWane expressly reserves its relevance objection to this Interrogatory. 

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FTC Docket No. 9351 – PUBLIC 

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number is distinct from providing a detailed explanation of the methodologies or models used to 

determine the number.3 

Indeed, CC lodged similar “counting” objections to McWane’s written discovery, 

objecting, for example, to McWane’s Interrogatory 3 on the grounds that it constitutes “at least 

two discrete subparts ...: (1) all facts establishing, refuting or otherwise that McWane possesses 

market power or monopoly power; and (2) all facts establishing, refuting or otherwise relating to 

McWane exercising such power through anticompetitive or unfair conduct or attempted to do 

so.” (See CC’s March 16, 2012 Response and Objections to Respondent McWane’s First Set of 

Interrogatories). There are many similar instances of CC’s strict method of counting subparts (in 

McWane’s Requests for Admission and Interrogatories, both of which were only partially 

answered by CC due to its subpart-counting objections). As a result, CC refused to respond to 

roughly one-third of McWane’s interrogatories and 10% of its RFAs.4 

II. ARGUMENT 

McWane’s count of the multiple distinct requests in Interrogatories 1, 6, and 10 fits 

squarely within the caselaw. In Potluri v. Yalamanchili, where the parties were likewise faced 

with a discovery limitation of 25 requests, the court found three distinct interrogatories calling 

“for discrete pieces of information” - - the (1) “identi[t]y [of] all entities” in which defendant 

owned an interest, (2) a description of the “nature of the business interest,” and (3) the identity of 

“the location of the business interest.” Potluri v. Yalamanchili, No. 06-13517, 2007 WL 

1201576, at *1–2 (E.D. Mich. Apr. 20, 2007). The Court rejected plaintiff’s argument that they 

should be treated as one simply because plaintiff lumped them together under a single 

interrogatory. In Trevino v. ACB Am., Inc., 232 F.R.D. 612 (N.D. Cal. 2006), the court likewise 

found multiple distinct requests for information lumped together under a single interrogatory that 

3 Again, McWane reserves its other objections to this Interrogatory, including that it is premature to the extent it 

calls for expert calculation and assessment. 

4 It should be noted that McWane offered to withdraw all of its “counting” objections to Complaint Counsel’s 

discovery if Complaint Counsel would withdraw its “counting” objections to McWane’s discovery. That was a 

reasonable compromise, but Complaint Counsel rejected it and continues to insist it can use “counting” objections as 

both a shield and a sword. (See Ex. A, March 26, 2012, Stargard e-mail to Ms. Holleran). 

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FTC Docket No. 9351 – PUBLIC 

McWane, Inc.’s Opposition to CC’s Motion to Compel 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

called for (1) the identification of expected expert witnesses at trial, (2) a description of the 

expected subject matter of their testimony, and (3) a summary of the grounds for each opinion 

and expert’s qualifications. three distinct answers: expert identification, subject matter, and 

grounds for each opinion. “This looks to the court to be three separate interrogatories.” Id. at 

614. 

McWane’s position is also quite reasonable - - as demonstrated by the fact that CC used 

the same bases to count McWane’s written discovery and lodge its objections. The three 

Interrogatories discussed herein really mask multiple discrete requests. They contain requests 

for multiple “discrete areas” of inquiry and thus should be “counted as more than one.” 8A 

Charles Alan Wright & Arthur Miller, Federal Practice and Procedure §2168.1 at 261 (2d ed. 

1994); see also In Re Dynamic Health of Florida, 2004 FTC Lexis 254, at *2 (Dec. 9, 2004) 

(subparts are discrete when answer is capable of “stand[ing] alone” without response to other 

subpart of interrogatory). Indeed, CC concedes as much, at least with respect to Interrogatory 1. 

Thus, CC has exceeded its allotted number of interrogatories and permissible subparts as of 

Interrogatory 12, inclusive. 

IV. CONCLUSION 

In sum, the Court should deny Complaint Counsel’s Motion. 

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FTC Docket No. 9351 – PUBLIC 

McWane, Inc.’s Opposition to CC’s Motion to Compel 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Dated: April 11, 2012 

/s/ J. Alan Truitt 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

Phone: 205.254.1000 

Fax: 205.254.1999 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

/s/ Joseph A. Ostoyich 

Joseph A. Ostoyich 

Andreas Stargard 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2420 

Phone: 202.639.7700 

Fax: 202.639.7890 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

william.lavery@bakerbotts.com 

Attorneys for Respondent McWane, Inc. 

5 

FTC Docket No. 9351 – PUBLIC 

McWane, Inc.’s Opposition to CC’s Motion to Compel 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE
 

I hereby certify that on April 11, 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, Rm. H-113 

Washington, DC 20580 

I also certify that I delivered via overnight mail 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 served via electronic mail a copy of the foregoing document to: 

Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael L. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq. 

By:	 ___/s/ William C. Lavery_________ 

William C. Lavery 

Counsel for McWane, Inc. 

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FTC Docket No. 9351 

McWane, Inc.’s Opposition to CC’s Motion to Compel 
 

 

      

           

     

     

   

           

 

                                   

   

 

                               

                           

                                    

       

 

                                    

                                    

     

 

 

 

                       

                               

              

Exhibit A
 

From: Stargard, Andreas

Sent: Monday, March 26, 2012 17:10

To: 'Holleran, Linda'

Cc: Lavery, William

Subject: Counting interrogatory subparts

Linda:
 

I hope your Dr's appointment went well.
 

We have a proposal to cut through the procedural rhetoric as far as the counting of subparts is
 

concerned, as follows:
 

Without prejudice to any party's future counting of subparts of new discovery requests, if any, let's
 

simply agree for both CC and McWane to respond with substantive answers to all interrogatories
 

and RFAs. We can both keep the objections alive for the record, but will both answer in substance
 

without resort to the objection.
 

Think about it. It's a win­win, I think, which gets both sides farther and in addition avoids bickering
 

over how to count relative clauses vs. sequences of items separated by commas vs. etc etc. If you
 

agree, let me know.
 

Andreas.
 

Andreas Stargard

Baker Botts L.L.P.

The Warner Building | 1299 Pennsylvania Ave., N.W. | Washington, D.C. 20004

Direct: +1 202.639.7712 | Cell: +1 202.288.4476 | Fax: +1 202.585.1036 | EU mobile: +32 484.175.754

E­Mail: Andreas.Stargard@bakerbotts.com | Admitted in New York and D.C.

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McWane, Inc.’s Opposition to CC’s Motion to Compel