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UNITED STATES OF AMERICA if 

BEFORE THE FEDERA TRADE COMMISSION itc;?f¿/ . H

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)

In the Matter of ) 

) Docket No. 9327 

Polyp ore International, Inc. ) Public Version 

a corporation. ) 

) 

COMPLAINT COUNSEL'S REPLY TO RESPONDENT'S MOTION FOR 

A PROTECTIVE ORDER REGARDING TESTIMONY OF PHILIP BRYSON 

AND CROSS MOTION TO COMPEL TESTIMONY OF PHILIP BRYSON 

Introduction 

Respondent moves to protect Philip Bryson from cross-examination at a 

deposition or at the hearng on baseless grounds. Contrar to the statements made in 

Respondent's Motion, Complaint Counsel told Respondent's Counsel orally and in 

writing earlier this week that it intended to call Mr. Bryson as a fact witness at the 

hearng (either in person or by deposition) because Mr. Bryson "was directly involved in 

negotiating with Exide on the issues (Respondent) raised in (its) motion. He personally 

discussed these issues with Mr. Gilespie and is a witness to these events. None ofthis 

involved attorney advic~ to his client, which does not interest us."i (Exhbit 1).
 

Respondent's Motion does not deny that Mr. Bryson is indeed a fact witness. Polypore 

just thinks it is oppressive for him to have to testify. But when Mr. Bryson became 

personally involved as a negotiator with Exide on the issue that Polypore wants to raise 

with this Cour, he became a key witness on this issue. Complaint Counsel should be 

i Although we believe that Respondent has told this Cour incorrectly that these are new, 

post-trial issues, because your Honor has found that based on Respondents' proffer these 

are unanticipated issues, by definition this is the proper context for rebuttal with a fact 

witness who directly negotiated with a third pary on this issue. See, e.g., In re North 

Texas Specialty Physicians, 2004 WL 1369274, No. 9312 (Order, May 18, 2004). 

1 
given the opportity to have the "effective rebuttal" that this Court offered in its Order. 

By this motion, and pursuant to Federal Trade Commission Rules of Practice 

("Rules") §3.33(a), §3.31(c)(I), §3.31(d), and §3.38(a), Complaint Counsel respectful 

moves the Court to deny Respondent's Motion for a Protective Order Regarding 

Testimony of 
 Philip Bryson ("Motion for Protective Ordet') and compel Philip Bryson to 

appear for deposition on October 27,2009. Complaint Counsel has repeatedly attempted 

to resolve this matter with Respondent, but canot reach a resolution. 

Argument 

First, Respondent claims that Complaint Counsel cannot call any witnesses at 

triaL. But this Court gave Complaint Counsel "pre-hearng procedures to ensure that 

Complaint Counsel is capable of effective rebuttaL." (Second Hearng Scheduling Order 

at 7). Surely, this does not mean that Complaint Counsel canot even depose a witness 

who actually negotiated with Exide on the issue that is being proffered by Respondent. 

Second, Respondent claims that Complaint Counsel does not have any witnesses 

at this hearng. Again, this is not correct. When Respondent asked Complaint Counsel if 

he had any witnesses, we responded: "(O)ur witness list is Messrs. Toth, Bryson, Seibert, 

and Gillespie. We assume you will call Toth, Seibert, and Gillespie, as you told the court, 

and we wil cross-examine. But if you choose not to call one or more of them, we reserve 

the right to call them and Mr. Bryson in rebuttaL. ... Then we may call Mr. Bryson, 

although we may do it by deposition." (Exhibit 1; see also Rule §3.33(a) and (c)(I) 

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

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

defenses of any respondent.")). Complaint Counsel believes that that Mr. Bryson 

2
 
personally negotiated with Mr. Gilespie of 
 Exide over the issues raised in Respondent's 

Second Motion for Reopening the Hearing and thus should be allowed to depose him for 

the requested two hours. 

Third, there is no reason to believe that the deposition wil "stray into matters 

covered by attorney-client privilege." (Motion for Protective Order, ~4). As Complaint 

Counsel has told Respondent's counsel several times, he wil not be inquiring into the 

advice that Mr. Bryson gave to Daramic. Instead, Complaint Counsel wil be conducting 

discovery regarding Mr. Bryson's direct involvement in negotiating with Exide on the 

proffered issues. There is no basis for concern. A dual role at Daramic is nothing new 

for Mr. Bryson. Mr. Bryson described his function within Polypore as "probably less that 

50% on legal duties and the rest as part ofthe 'business.'" (PXL 104; see also Exhibit 2 -

Heglie (IGP) IH Tr. 55:16-56:7)). With regard to Mr. Bryson's role as a business person 

within Daramic, there is no dispute. 

Furthermore, the case law demonstrates that an attorney can be deposed. In 

United States v. Philip Morris, Inc., 209 F.R.D. 13 (D.D.C. 2002), the court made it clear 

that "it is important to emphasize that the Federal Rules of Civil Procedure create no 

special presumptions or exceptions for lawyers, or anyone else - even a sitting President 

of the United States," and there is no rule at this Agency that suggests otherwise. See 

Sadowski v. Gudmundsson, 206 F.R.D. 25 (D.D.C.2002) (tral counsel may be deposed 

on non-privileged factual information); Amicus Communications v. Hewlett Packard 

Company, 99-0284, 1999 WL 33117227 (D.D.C.1999) (opposing counsel could be 

deposed on non-privileged and factual material); quoting United Phosphorus, Ltd. v. 

Midland Fumigant, Inc., 164 F.R.D. 245, 249 (D.Kan.1995) ("(w)hen a party employs a 

3 
counsel to represent it in a case where an attorney has played a role in the underlying 

facts, both the attorney and the pary have every reason to expect that the attorney's 

deposition may be requested."). Consistent with the case law, Mr. Bryson can be 

deposed about his role in negotiations with Exide. 

Fourh, Respondent incorrectly assumes that "Mr. Bryson's testimony would add 

nothing to the evidence and, at best, would be cumulative of the evidence to be presented 

throughout the testimony of 
 Robert Toth, Har Seibert, and Douglas Gilespie." 

(Motion for Protective Order, ~4). Complaint Counsel disagrees with Respondent and 

believes it has the right to obtain direct evidence related to Respondent's proffers from 

Mr. Bryson under Rule §3.33(a) and this Court's Second Hearng Schedule Order. 

Specifically, Complaint Counsel has leared that Mr. Bryson has personally negotiated 

with Exide's Mr. Gillespie on the issues raised in Respondents' Motion. 

Fifth, Respondent completely mischaracterizes Complaint Counsel's intended 

purose for takng Mr. Bryson's deposition. Complaint Counsel has told Respondent
 

several times why it needs to take Mr. Bryson's deposition: 

"I understand that you may oppose the deposition of Mr. 

Bryson. However, as I mentioned yesterday, he was 

directly involved in negotiating with Exide on the issues 

you raised in your motion. He personally discussed these 

issues with Mr. Gilespie and is a witness to these events. 

None of 
 this involved attorney advice to his client, which 

does not interest us. If 
 you have an objection, please make 

it quickly, so that we have some chance to resolve the issue 

before Tuesday." 

(Exhbit 1). Since Complaint Counsel is not calling Mr. Bryson for the reasons 

Respondent disingenuously claims, justice does not require this Cour to protect Mr. 

Bryson "from anoyance, embarassment, oppression, or undue burden or expense..." 

4 

----.--------­
(Rule §3.31(d)). Indeed, at Respondent's request, Complaint Counsel is flying to 

Charlotte to take the deposition and has offered to take no more than two hours of Mr. 

Bryson's time. 

Lastly, the information sought by Complaint Counsel's Requests is central to the 

pending hearng. In paricular, Complaint Counsel needs the information to contradict 

the proffered facts claimed by Respondent, which lie at the core of this hearing. Without 

the information gained from Mr. Bryson's testimony, Complaint Counsel is prejudiced, 

and this Court wil not hear the tre facts that underlie the alleged issue. 

CONCLUSION 

It would be inappropriate for this Court to issue a protective order to prevent Mr. 

Bryson's testimony and would prejudice Complaint Counsel's ability to respond. 

Pursuant to 16 C.F.R §3.33(a), §3.31(c)(I), §3.31(d), and §3.38(a), Complaint Counsel 

respectful moves the Court to deny Respondent's Motion for a Protective Order 

Regarding Testimony of Philip Bryson and compel Philip Bryson to appear for deposition 

on October 27, 2009 and testify as a witness at trial if called. 

5 

n._ .. n ---~--._-... 
October 22, 2009 Respectfully submitted, 

~~/JR~

J. obert Robertson
 

Complaint Counsel 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvana Avenue, N.W. 

Washington, DC 20580
 

Telephone: (202) 326-2008
 

Facsimile: (202) 326-2884
 

6
 

__un.,__.__ .._-~...--,-.­
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

)
 In the Matter of
 ) 

) Docket No. 9327 

Polypore International, Inc. )
 Public Version

a corporation.
 ) 

) 

PROPOSED ORDER 

Upon consideration of 
 Respondent's Motion for a Protective Order Regarding 

Testimony of 
 Philip Bryson, Complaint Counsel's Response to Respondent's Motion for 

a Protective Order Regarding Testimony of 
 Philip Bryson and Complaint Counsel's 

Motion to Compel Philip Bryson to appear for deposition on October 27,2009, any 

opposition thereto, and the Cour being fully informed, 

IT IS HEREBY ORDERED, that Complaint Counsel's Motion is GRANTED. 

IT IS FURTHER ORDERED, that Respondent shall have Philip Bryson available 

for deposition on Tuesday, October 27,2009 and testify as a witness at trial if called. 

D. Michael Chappell 

Administrative Law Judge 

Dated: 

'.,-- - _"~___.._.___.n__, ---~----..--------._. 
Exhibit 1
 

to 

Complaint Counsel's Reply to Respondent's Motion 

for a Protective Order Regarding Testimony of Philip Bryson and 

Cross Motion to Compel Testimony of Philip Bryson 

OCTOBER 22, 2009 

Polypore International, Inc., 

Docket No. 9327 . 

_._, '.,----- - ..---------_._-- -~--_.._..-. - -_...,­
Depositions Page 1 of2 

Antonio, Stephen 

From: Dahm, Steven A.
 

Sent: Wednesday, October 21, 2009 10:15 AM
 

To: Antonio, Stephen
 

Subject: FW: Depositions
 

From: Gris, Benjamin 

Sent: Wednesday, October 21,20099:38 AM 

To: Dahm, Steven A. 

Subject: Fw: Depositions
 

From: Roberton, J. Robert 

To: 'wiliamrikard(§parkerpoe.com' ~wiliamrikard(§parkerpoe.com).; Gris, Benjamin
 

Cc: 'ericwelsh(§parkerpoe.com' ~ericwelsh(§parkerpoe.com). 

Sent: Tue Oct 20 19:26:01 2009
 

Subject: Re: Depositions
 

We can start at 10 for Mr Toth with Seibert to follow later that morning. Unless we find out that others are relevant 

to your claims on the three narrow issues outlned by the court, our witness list is Messrs. Toth, Bryson, Seibert, 

and Gilespie. We assume you wil call Toth, Seibert, and Gillespie, as you told the court, and we wil crossexamine. But if you choose not to call one or more of them, we reserve the right to call them and Mr Bryson in 

rebuttaL.
 

You said half a day for the three witnesses, so I am anticipating that you wil use about 30 minutes per witness.
 

We are entitled to equal time, if we need it.
 

Then we may call Mr. Bryson, although we may do it by deposition. But if he doesn't get deposed on Tuesday,
 

then he will have to come live.
 

Let me know if you have any questions. Thanks.
 

From: Rikard, Jr., William L. ~williamrikard(§parkerpoe.com).
 

To: Roberton, J. Robert; Gris, Benjamin
 

Cc: Welsh, Eric D. ~ericwelsh(§parkerpoe.com).
 

Sent: Tue Oct 20 17:53:28 2009
 

Subject: RE: Depositions
 

Robby: 

We wil proceed with Tuesday. We are going to file a motion on Philip's deposition. Bob Toth has an early 

morning conflict, but we can start his deposition at 10. Based on our conversation yesterday. my understanding 

is that you do not propose to call a witness at the hearing. Please confirm. 

Willam 

Wiliam Rikard, Jr. 

Partner 

10/22/2009 

mnn___,,_ n__, un _ _ '..' d_ ---- ._~----~---- _m___'___ 
Depositions Page 2 of2 

d? 

Pa rker Poe 

Three Wachovia Center I 401 South Tryon Street I Suite 3000 I Charlotte, NC 28202 

Phone: 704.335.9011 I Fax: 704.335.9689 I www.parkerpoe.com I vcard I map 

From: robert roberton (mailto:rroberton(§ftc.gov) 

Sent: Tuesday, October 20, 2009 4:03 PM
 

To: Rikard, Jr., William L. 

ec: Welsh, Eric D.; Gris, Benjamin; Steven Dahm 

Subject: Depositions
 

William: 

Received your voicemail asking to put off the depositions until the last day allowed for discovery on the issues 

raised in your motion. Although we do not want to delay depositions until Tuesday, we also do not believe we 

can get the issue resolved in time to make a difference. Thus, we agree to take the depositions at your offices 

beginning at 9:00 am with Mr. Toth; Mr. Seibert at 11:00am; and Mr. Bryson at 2:00pm. 

i understand that you may oppose the deposition of Mr. Bryson. However, as I mentioned yesterday, he was 

directly involved in negotiating with Exide on the issues you raised in your motion. He personally discussed 

these issues with Mr. Gilespie and is a witness to these events. None of this involved attorney advice to his 

client, which does not interest us. If you have an objection, please make it quickly, so that we have some 

chance to resolve the issue before Tuesday. 

We still disagree with your position that we are "not entitled" to obtain any of the documents in your possession 

that relate to the issues you raised in your motion. We would like to have that issue decided before the 

depositions to avoid prejudice to us, but will not put off the depositions if the issue is not resolved by then. 

We'd rather have half the evidence, rather than none of it. 

Thanks. Robby.
 

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10/22/2009 . ....... ...... --------------~­
Exhibit 2
 

to
 

Complaint Counsel's Reply to Respondent's Motion
 

for a Protective Order Regarding Testimony of Philip Bryson and 

Cross Motion to Compel Testimony of Philip Bryson
 

OCTOBER 22, 2009
 

Polypore International, Inc., 

Docket No. 9327 

__ un n___...__n ___ ______..'__m__.. 
Daramic, LLC and Polypore International Heglie
 7/23/2008 

Page 55 I 

1 Q. If EnerSys was to get out of their II

2 contract with Microporous at the time of the Daramic " 

3 acquisition, would that affect the valuation of 

4 Microporous? 

5 A. I don't know. 

6 Q. Isn't that what you are positing here?
 

7 You say, "If that were the case, I'm not confident
 

8 their valuation of MPLP" - - MPLP' s referring
 

9 Microporous Products, correct? 

10 A. Yes. 

11 Q. "- - would be very attractive to us." You 

12 were speculating that if EnerSys got out of the 

13 contract, that would hurt the valuation of 

14 Microporous. Is that correct? 

15 A. It looks like it from this email, yeah. 

16 Q. Turning to the first page of PX1104, in 

17 the email from Mr. Gilchrist to yourself, 

18 Mr. Gilchrist noted, Phillip Bryson is the internal 

19 counsel for Polypore but he described his function 

20 to us last week as probably less than 50 percent on 

21 legal duties and the rest as part of the "business." 

22 Is this description that Mr. Gilchrist gave to you 

23 similar to what you recall Mr. Hauswald telling you 

24 about his role at Daramic Polypore? 

25 A. You mean Bryson? 

nn_...__ 

For The Record, rne. 

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 

e52261 b7 -c863-4570-bb5f-13338a660dOe 

.. ..1'. 
Daramic, LLC and Polypore International Heglie
 7/23/2008 

Page 56 

1 Q. Mr. Bryson, yes. I'm sorry. 

2 A. I don't recall, but probably. I remember 

3 being left with this impression. 

4 Q. Left by Mr. Bryson - ­

5 A. Yes. 

6 Q. - ­ with that impression? 

7 A. Yes. 

8 Q. Okay. 

9 Moving to the bottom of Mr. Gilchrist's I 

10 email .Mr . Gilchrist notes that "EnerSys, as well as ~ 

11 others, will be frustrated by this acquisition. Our ø 

12 contract with EnerSys allows only for the fact that I ;; 13 EnerSys cannot be compelled to assign the contract ~ ~ 

14 to a competitor buying" Microporous, or he says 

15 "MPLP," and, again, that's referring to Microporous,

16 correct? 

17 A. I would assume so. 

18 Q. Why would you assume that? 

19 A. That MPLP refers to Microporous, because I 

20 think he's done it interchangeably. 

21 Q. He goes on to say, "The reality is that 

22 this means basically nothing as there are no other
 

23 choices from which to source industrial separators
 

24 but MPLP and Daramic. Amer-Sil is not an option.
 

25 The reality is that everyone would be stuck with
 

-- -_..,­

For The Record, Inc. 

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
 

e52261 b7 -c863-4570-bb5f-13338a660dOe 

...~-..- -------,­
CERTIFICATE OF SERVICE 

I hereby certify that on October 22,2009, I filed via hand and electronic mail 

delivery an original and two copies of 
 the foregoing Complaint Counsel's Reply to 

Respondent's Motion for a Protective Order Regarding Testimony of 
 Philip Bryson and 

Cross Motion to Compel Testimony of 
 Philip Bryson with: 

Donald S. Clark, Secretary 

Office of the Secretar 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-159 

Washington, DC 20580 

I hereby certify that on October 22,2009, I filed via hand and electronic mail 

delivery two copies of the foregoing Complaint Counsel's Reply to Respondent's 

Motion for a Protective Order Regarding Testimony of 
 Philip Bryson and Cross Motion 

to Compel Testimony of 
 Philip Bryson with: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

oali~ftc.gov 

I hereby certify that on October 22, 2008, I filed via electronic and first class mail 

deliver a copy of the foregoing Complaint Counsel's Reply to Respondent's Motion for
 

a Protective Order Regarding Testimony of 
 Philip Bryson and Cross Motion to Compel 

Testimony of 
 Philip Bryson 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 

wi1iamrikard~parkerpoe. com 

ericwelsh~parkerpoe.com 

d~
 II aD. cuninghmÓ

Federal Trade Commission 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

lcunningham~ftc.gov 

7 

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