UNITED STATES OF AMERICA 


BEFORE THE FEDERAL TRADE COMMISSION 


) 

In the Matter of ) 

) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent ) 

) 

MOTION TO QUASH SUBPEONA OR FOR PROTECTIVE ORDER 

COMES NOW Tommy E. Brakefield, and moves the Court for the entry of a 

protective order or an order quashing Subpoenas Ad Testificandums served on him 

in this matter. Movant respectfully shows: 

1. Tommy Brakefield is a retired former employee of SIGMA 

Corporation, who was also given the title ofPresident ofDIFRA during the efforts 

to organize that association. 

2. DIFRA functioned only briefly and ineffectually, and, while it has not 

been formally dissolved, it is completely inactive, and has been so since 2008. Mr. 

Brakefield held the title ofPresident, but had no executive function. 

3. On May 4, 2012, Mr. Brakefield was called as a witness by 

complainant to give a deposition covering both his knowledge of DIFRA, and his 

job at SIGMA. During that all-day deposition, Mr. Brakefield fully answered all 

questions posed ~y FTC counsel and by McWane's counsel. He identified and 
authenticated all documents shown to him. Mr. Brakefield had to engage counsel, 

review documents and attend, at considerable imposition oftime and cost to him. 

4. Since that time, Mr. Brakefield has further given a declaration at the 

request of complainant, and one at the request of defendant on the authenticity of 

documents which those parties apparently seek to use at trial. 

5. Mr. Brakefield resides in Birmingham, Alabama, but has now 

received subpoenas to appear in Washington sometime during the trial of this 

matter, with the date of such attendance being uncertain. The subpoena states, that 

it is for September 4, the opening day of the trial, but Mr. Brakefield has been 

informed that he will not actually be called as a witness that day. No fixed day has 

been made known. 

6. It is both burdensome to Mr. Brakefield and unnecessary to the trial 

for Mr. Brakefield to be required to be available for multiple days, and to travel to 

Washington, apparently on short notice from counsel, when his testimony is fully 

known and is available to counsel and the Court. 

7. Mr. Brakefield's counsel has sought to obtain the consent of 

complainant to withdraw the subpoena, but such request has been refused. It is 

neither fair nor reasonable for a private citizen to be compelled to appear when he 

has already fully cooperated and fully testified. 
WHEREFORE. movant Tommy E. Brakefield respectfully prays that the 

Court will enter an order that the subpoenas for his attendance at trial be quashed, 

and for such other relief as may be appropriate in the premises. 

Richard H. Gill 

. Copeland, Franco, Screws & Gill, P A 

444 South Perry Street (36104) 

P.O. Box 347 


Montgomery, AL 36101-0347 


334-834-1180 


334-834-3172 FAX 


Counsel for Tommy E. Brakefield 

CERTIFICATE OF SERVICE 

This is to certify that on August 29, 2012, I delivered via electronic mail a 

copy ofthe foregoing document to: 

Joseph A. Ostoyich 


William C. Lavery 


Baker Botts L.L.P. 


The Warner 


1299 Pennsylvania Avenue, NW 


Washington, DC 20004 


(202) 639-7700 


joseph.ostoyich@bakerbotts.com 


william.laverly@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 

Matthew A. White 

Ballard Spahr LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 864-8849 

whitema@ballardspahr.com 

J. Alexander Ansaldo 

Thomas H. Brock 

Bureau ofCompetition 

Federal Trade Commission 

601 New Jersey Ave., N.W. 

Washington, D.C. 20580 

(202) 326-3695 

jansaldo@fic.gov 

\ 


Richard H. Gill 

Counsel for Tommy E. Brakefield 
CORRECTED 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, Rm. H-I13 

Washington, DC 20580 

I also certify that I delivered via electronic mail and U.S. Mail a copy ofthe foregoing 

document to: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

·1 	 Federal Trade Commission 

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

Washington, DC 20580 

I further certify that I delivered via electronic maiIa copy ofthe foregoing document to: 

J. Alexander Ansaldo Vv'illiatn.lavery@bakerbotts.com 

Thomas H. Brock 

Bureau ofCompetition J. Alan Truitt 

Federal Trade Commission Thomas W. Thagard, III 

601 New Jersey Ave., N.W. Maynard Cooper and Gale PC 

Washington, D.C. 20580 1901 Sixth Avenue North 

(202) 326-2470 2400 Regions Harbert Plaza 

iansaldo@ftc.gov Birmingham, AL 35203 

tbrock@ftc.gov (205) 254-1000 

atruitt@maynardcooper.com 

Joseph A. Ostoyich tthagardUilmavnardcooper.com 

William C. Lavery 

Baker Botts L.L.P. Matthew A. White 

The Warner. Ballard Spahr LLP 

1299 Pennsylvania Avenue, NW . 1735 Market Street, 51 st Floor 

Washington, DC 20004 Philadelphia, PA 19103 

(202) 639-7700 (215) 864-8849 

joseph.ostoyich(ii!,bakerbotts.com > whitemaw{ballar<ispahr.com

Richard H. Gill 

Counsel for Tommy E. Brakefield 

. _ _ -~ __r._____••' :'-~-"!.'""",-..l:i.'--'