__________________________________________ 

 

 

PUBLIC 

08 02 2012 

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) PUBLIC 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

MCWANE, INC.’S MOTION IN LIMINE TO PRECLUDE COMPLAINT COUNSEL 

FROM USING PRIVILEGE AS A SWORD AND A SHIELD 

It is now clear that Complaint Counsel intends to affirmatively use at trial some white 

papers and other submissions McWane, Sigma, and Star provided to the Federal Trade 

Commission during its Part 2 investigation, but withhold other submissions or parts of 

submissions as “privileged.” That, by definition, is improper game-playing because it uses the 

privilege as a sword (selectively waiving it when Complaint Counsel believes it suits its interest) 

and a shield (invoking it to withhold submissions from McWane when its suits Complaint 

Counsel’s interest). This Court has already noted that such game-playing is improper: “the 

sword and shield theory applies to a litigant that seeks to use information as a ‘sword,’ in 

furtherance of a claim or defense, but at the same time ‘shields’ such information from discovery 

by invoking a privilege.” (See July 13, 2012 Order at 4.) Indeed, Complaint Counsel has also 

acknowledged, that a party cannot use privilege as “both a sword and shield by selectively using 

the privileged documents to prove a point but then invoking the privilege to prevent an opponent 

from challenging the assertion.” (see CC’s June 25, 2012 Motion to Exclude quoting In re OSF 

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Healthcare & Rockford Health Sys., 2012 FTC LEXIS 70, at *4-5 (Mar. 19, 2012).) 

Case law is clear that Complaint Counsel cannot selectively use some white papers and 

other submissions affirmatively while withholding others with no valid basis. Accordingly, 

McWane respectfully requests that this Court order Complaint Counsel to produce all white 

papers and other submissions made by Star (and others, if any) to the Federal Trade Commission 

during its investigation, or in the alternative, preclude Complaint Counsel from proffering an 

expert opinion based on any submissions to the FTC by any non-party during the Part 2 

investigation at trial, and striking those portions of Dr. Schumann’s report that relies on such 

information. McWane further requests that Complaint Counsel be precluded from eliciting 

testimony (whether from a live witness or via deposition or investigative hearing designations) 

regarding any submissions from the FTC’s Part 2 investigation. McWane’s counsel has met and 

conferred with Complaint Counsel and was unable to reach a resolution. 

FACTUAL BACKGROUND 

Complaint Counsel has proffered an expert opinion for trial based, at least in part, on the 

white papers and others submissions made by McWane, Sigma and Star, but Complaint Counsel 

has continuously refused to produce all submissions to Respondent. 

 Complaint Counsel has also designated 19 

investigational hearing transcripts as exhibits for trial that contain questions on some documents 

from government submissions, but again Complaint Counsel has withheld the other submissions. 

At minimum, Complaint Counsel 

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PUBLIC
	

 On the other hand, Complaint Counsel has withheld a number of 

submissions by Star on the basis of government informant privilege. 

 Further, Complaint Counsel has used parts of Star submissions during 

investigational hearings, which it has included on both their exhibit list and deposition 

informant privilege. (Id.) 

For example, Complaint Counsel questioned 

designations, yet withheld other parts of the same submissions on the basis of government 

While they selectively choose to include these two particular Star submissions, their 

privilege log indicates they are withholding other materials submitted by Star on the very same 

day (presumably, part of the same submission) on the basis of government informer and attorney 

client privilege. This 

is just one example of many. There are dozens of entries on Complaint Counsel’s privilege log 

of CC withholding Part 2 submissions on the basis of privilege, while affirmatively using others. 

 This is by definition using 

privilege as a sword and a shield. 

ARGUMENT 

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PUBLIC 

This Court has made clear that a party cannot use privilege as “both a sword and shield 

by selectively using the privileged documents to prove a point but then invoking the privilege to 

prevent an opponent from challenging the assertion.” In re OSF Healthcare & Rockford Health 

Sys., 2012 FTC LEXIS 70, at *4-5 (Mar. 19, 2012) (citing Frontier Refining Inc. v. GormanRupp Co., Inc., 136 F.3d 695, 704 (10th Cir. 1998). This Court further held in its recent ruling 

on CC’s motion to compel that “[t]he operative case law holds that subject matter waiver occurs 

only where a party attempts to gain a tactical advantage by ‘us[ing] the disclosed material for 

advantage in the litigation but [invoking] the privilege to deny its adversary access to additional 

materials that could provide an important context for proper understanding of the privileged 

materials.’” (See July 13, 2012 Order at 4) (citing Lerman v. Turner, 2011 U.S. Dist. LEXIS 

715, at *25-26 (N.D. Ill. Jan. 5,2011). This is exactly what is occurring here - -

 Now, Complaint Counsel is 

attempting to use Star’s submissions to gain a tactical advantage in this litigation while hiding 

behind the government informer privilege to deny McWane access to Star’s other white papers 

and submissions. 

Here, Complaint Counsel is picking and choosing what submissions it wants to use (and 

therefore produces) and what they withhold. This violates well-settled case law as well as 

fundamental fairness. McWane has an interest in the truth coming out in this litigation and 

Complaint Counsel is merely hiding behind their privilege log in an attempt to prejudice 

McWane. 

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Complaint Counsel has not denied that additional Star white papers exist, but merely 

argued that such submissions are privileged, were not provided to their expert, and has thus 

refused to produce them on those grounds.1

 Accordingly, Complaint Counsel should produce all 

such submissions immediately, or be precluded from using any submissions to the Commission 

during its Part 2 investigation by any party or non-party during trial. 

CONCLUSION 

For the reasons set forth herein, McWane’s Motion is due to be granted. 

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OF COUNSEL: 

Joseph A. Ostoyich 

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 

J. Alan Truitt 

Thomas W. Thagard, III 

Julie S. Elmer 

Maynard, Cooper & Gale, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203-2608 

(205) 254-1000 

(205) 254-1999 (facsimile) 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

jelmer@maynardcooper.com 

PUBLIC 

__/s/ Joseph A. Ostoyich________________
	

Joseph A. Ostoyich
	

One of the Attorneys for McWane, Inc.
	

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PUBLIC
	

CERTIFICATE OF SERVICE 

I hereby certify that on August 2, 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 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: 

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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__________________________________________ 

 

 

PUBLIC
	

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

PROPOSED ORDER 

On July 27, 2012, McWane, Inc. filed its Motion in Limine to Preclude 

Complaint Counsel From Using Privilege as a Sword and a Shield. Upon 

consideration of this motion, it is hereby GRANTED. 

ORDERED: __________________________ 

D. Michael Chappell 

Administrative Law Judge 

___________, 2012 

8
	
 

__________________________________________ 

 

 

PUBLIC
	

UNITED STATES OF AMERICA
	

BEFORE THE FEDERAL TRADE COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	

In the Matter of ) 

) 

McWANE, INC., ) 

) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

) 

Respondents. ) 

__________________________________________) 

STATEMENT REGARDING MEET AND CONFER 

Pursuant to Paragraph 4 of the Scheduling Order, counsel for McWane met 

and conferred in good faith with Complaint Counsel regarding the issues raised in 

this motion but could not reach an agreement. 

By:		 _/s/ William C. Lavery________ 

Counsel for McWane, Inc. 

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EXHIBIT 1
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT 2
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT 3
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT 4
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety
	
EXHIBIT 5
	

This exhibit has been 

marked Confidential 

and redacted in its 

entirety