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UNITED STATES OF AMERICA 

FEDERAL TRAE COMMISSION ~&,p~c¡ L l t.~,~,'JJ
 OFFICE OF ADMINISTRATIVE LAW JUGES 5' ,/S or; 1 

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In the Matter of
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 Docket No. 9327

POL YPORE INTERNATIONAL, INC.,
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Respondent.
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ORDER DENYING COMPLAINT COUNSEL'S
 

MOTION TO COMPEL DISCOVERY RESPONSES
 

I. 

On October 20,2009, Complaint Counsel submitted a motion to compel 

Respondent to produce documents, answer interrogatories, and respond to requests for 

admissions ("motion to compel"). Pursuant to an order issued on October 20,2009, 

Respondent submitted an expedited opposition response on October 21, 2009 which 

opposed the motion to compeL.
 

Upon full consideration of all the arguments ofthe parties, and as more fully set 

forth below, Complaint Counsel's motion to compel is DENIED. 

II. 

On October 15, 2009, after full briefing by the parties and for good cause
 

having been shown i, an order was issued granting Respondent's Second Motion
 

to Reopen the Record (the "Order"). The Order reopened the record to consider
 

evidence limited to Respondent's proffer, as set forth in the Order.
 

The Order set a hearng date of 
 November 4,2009 and provided a prehearng 

schedule which included, among other things, a deadline of October 27, 2009 for the 

completion of depositions, limited to the individuals to be called at the hearing and 

limited to the proffered evidence, and a deadline of 
 October 28,2009, for the exchange of 

witness lists, exhibit lists, and exhibits. Order, October 15,2009 at 7,8. The Order 

included no other prehearing discovery. 

1 Specifically, the Order of 
 October 15, 2009 held that "Respondent has demonstrated good cause for 

reopenig the record prior to the fiing of the Initial Decision. In addition, Respondent has provided a bona 

fide explanation for the failure to introduce the proffered evidence at trial, demonstrated that the proffered 

evidence is probative and is not cumulative, and shown that the reopenig of the record would not unduly 

prejudice Complaint Counsel." Order, October 15, 2009 at 7. 

. _. _____u___,.__ 
On October 16,2009, Complaint Counsel served upon Respondent 12 document 

requests, 14 interrogatories, and 19 requests for admissions, and directed Respondent to 

respond to the written discovery within seven days, by October 23,2009. On October 20, 

2009, Respondent advised Complaint Counsel that it would not comply with Complaint 

Counsel's requested discovery, and the motion to compel followed. 

III. 

The Order reopening the record is intentionally narrow in scope. It reopens the 

record for the limited purpose of considering Respondent's proffered evidence. .To 

enable the parties to prepare for this limited evidentiar proffer, the Order also authorizes 

limited depositions, and requires that any exhibits to be introduced at the hearing be 

provided in advance. The Order did not reopen discovery for all purposes, and did not 

authorize requests for production,. 
 interrogatories, or requests for admission.
 

Accordingly, because Complaint Counsel's requests for written discovery were not
 

authorized, its motion to compel such discovery is without merit.
 

Moreover, Complaint Counsel has failed to demonstrate that it wil be unable to 

adequately prepare for the hearing and, thus, prejudiced if it does not obtain the 

unauthorized discovery. In connection with the motion to reopen, Respondent provided a 

detailed proffer, an affidavit, and numerous documents, which placed Complaint Counsel 

on notice of 
 the facts and documents upon which Respondent intends to rely. Further, 

Complaint Counsel's opposition included the affidavit of Douglas Gilespie of Exide 

Technologies to dispute points in the proffer. Accordingly, Complaint Counsel has failed 

to show that the depositions and exhibit exchange provided for in the Order constitute 

inadequate discovery. 

Finally, as pointed out in the Order, the hearing wil be strctly limited to the
 

proffered evidence. Efforts by the parties to expand the scope of the hearing beyond the 

proffer, or to introduce documents that have not been exchanged in advance in 

compliance with the October 15, 2009 Order wil be rejected. 

IV. 

For the foregoing reasons, Complaint Counsel's motion to compel discovery 

responses is DENIED. 

~~CLf¥d/

D. Michael Chappell 

Chief Administrative Law Judge 

Date: October 22, 2009
 

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