NICHOLA E.O. GAGUO

(212) 728-2228

NGAGUO@AX.COM

ORIGiNltl"

,,'~;C1R;::O¡~'ê'ô"~~í~;;'" '.

~~X. riECEiV~f1 r,(;(.;.',e',;:;;l-l;\,f.'

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~~~~1~~l:f:!1 ~/

AXiNN

December 9, 2013

VIA HAND DELIVERY

Donald S. Clark

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW, H-113

Washington, DC 20580

Re: Ardagh Group S.A. et aI., Dkt. No. 9356

Mr. Clark,

i represent non-party Ball Corporation in the above referenced adjudicative proceeding.

Please find enclosed the following documents:

· The originan3rid one copy of the in camera version of Non-Party Ball

Corporation's Unopposed Motion for In Camera Treatment of Proposed

Evidence, and all accompanying exhibits;

· The original and one copy of the public version of Non-Party Ball Corporation's

Unopposed Motion for In Camera Treatment of Proposed Evidence, and all

accompanying exhibits;

· Electronic versions of the above documents on the enclosed disk.

Sincerely, 92f!

Nicholas E.O. Gaglio

Enclosures

Axinn, Veltrop & Harkrider LLP I Axinn.com

New York

114 W 47th Street

New York, NY 10036

212.728.2200

Washington, DC

950 F Street, NW

Washington, DC 20004

202.912.4700

Connecticut

90 State House Square

Hartord, CT 06103

860.275.8100
PUBLIC ORIGINAL

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRAE COMMISSION

OFFICE OF ADMINISTRA TIVE LAW JUDGES

~MM~.

~~C(~~ÇEIVEO DOCUMENTS Ilk ~ ól1~( ,

DEC ~ 2013

SEcR8Mtt_ In thé matter of

Ardagh Group S.A.,

a public limited liabilty company, and DOCKET NO. 9356

Compagne de Saint-Gobain, a corporation,

and

Saint-Gobain Containers, Inc.,

a corporation

NON-PARTY BALL CORPORATION'S UNOPPOSED MOTION FOR

IN CAMERA TREATMENT OF PROPOSED EVIDENCE

Pursuant to Rule 3.45 of the Federal Trade Commission's Rules of Practice, 16 C.F.R. §

3.45(b), non-par Ball Corporation ("Ball") respectfully submits this motion for in camera

treatment of certain competitively-sensitive, confidential business documents. Ball's counsel

conferred with counsel for the Federal Trade Commission and for the respondents, and none of

the paries in this matter oppose this motion.

The sixteen documents and nine excerpts of deposition testimony for which Ball is

seeking in camera treatment were produced in response to a third-pary subpoena in this matter,

and both the Federal Trade Commission and Ardagh Group S.A., Compagnie de Saint-Gobain,

and Saint-Gobain Containers ("Respondents") have notified Ball that they intend to introduce the

documents that are the subject of this motion into evidence at the administrative trial in this

matter. See Letter from the Federal Trade Commission dated November 18,2013 (attached as

Exhbit A); Letter from Counsel for Respondents, dated November 19, 2013 and emails from

Counsel for Respondents, dated November 20, November 26, and December 4,2013 (attched as

Exhbit B).

1
PUBLIC 

This motion seeks to prevent disclosure of documents and testimony that contain 

confidential business information that Ball has kept secret and that are material to Ball’s business. 

Ball would be seriously harmed in its ability to compete in the beverage container industry if this 

information was publicly disclosed. For the reasons discussed in this Motion, Ball requests that 

this Court afford Ball’s confidential business information in camera treatment for a period of at 

least three or five years, depending on the specific document. In support of this Motion, Ball 

relies on the Affidavit of Bruce H. Doelling, attached as Exhibit C, which provides additional 

details on the documents and testimony for which Ball is seeking in camera treatment. 

I. THE DOCUMENTS AND TESTIMONY FOR WHICH PROTECTION IS SOUGHT 

Ball seeks in camera treatment for sixteen documents and nine excerpts from the 

deposition of Bruce Doelling, which are attached as Exhibit D along with a summary index. The 

information contained within the documents and testimony falls into the following four 

categories: 

. Ball’s business strategies and plans 

 Pricing information 

 Customer information 

 Documents that contain information Ball has agreed with third-parties to maintain 

as confidential 

The above documents and testimony contain highly sensitive confidential information that would 

seriously injure Ball should they be publicly disclosed, as described more fully below. 

II. BALL’S DOCUMENTS AND TESTIMONY ARE SECRET AND 

MATERIAL SUCH THAT DISCLOSURE WOULD RESULT IN SERIOUS INJURY 

Third party Ball’s documents and testimony listed in the index in Exhibit D warrant in 

camera treatment as provided by 16 C.F.R. § 3.45(b). As an initial matter, as a third-party, Ball 

2 
PUBLIC 

deserves "special solicitude" in its request for in camera treatment of its confidential business 

information. In re Kaiser Aluminum & Chem. Corp., 103 F.T.C. 500, 500 (1984) ("As a policy 

matter, extensions of confidential or in camera treatment in appropriate cases involving third 

party bystanders encourages cooperation with future adjudicative discovery requests."). 

Requests for business sensitive documents to be given in camera treatment should be granted 

where public disclosure of the document "will likely result in clearly defined, serious injury to 

the. . . corporation requesting in camera treatment. . . ." 16 C.F.R. § 3.45(b). Serious injury is 

demonstrated by showing that the documents have been kept secret and that they are material to 

the company’s business. In re Dura Lube Corp., Dkt. No. 9292, 1999 FTC LEXIS 255, at *6 

(Dec. 23, 1999); In re General Foods Corp., 95 F.T.C. 352, 355 (1980); In re Bristol-Myers Co., 

90 F.T.C. 455, 456 (1977). "The likely loss of business advantages is a good example of a 

’clearly defined, serious injury." Dura Lube, 1999 FTC LEXIS 255, at *7 (quoting General 

Foods, 95 F.T.C. at 355). Generally, courts "protect confidential business information from 

unnecessary airing." H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961). 

Six factors typically are weighed in determining whether the document or testimony in 

question is sufficiently material and secret to warrant in camera treatment: 

(1) the extent to which the information is known outside of his business; (2) the 

extent to which it is known by employees and others involved in his business; (3) 

the extent of measures taken by him to guard the secrecy of the information; (4) 

the value of the information to him and to his competitors; (5) the amount of 

effort or money expended by him in developing the information; (6) the ease or 

difficulty with which the information could be properly acquired or duplicated by 

others. 

Dura Lube, 1999 F.T.C. LEXIS 255, at *6..7 (quoting Bristol-Myers, 90 F.T.C. at 456-57). 
PUBLIC 

A. Ball Has Preserved the Confidentiality 

of the Documents and Information in Question 

Ball has taken substantial measures to protect the secrecy of the information contained in 

the documents. Ball has limited dissemination of the information contained in the documents by 

only disseminating the documents to particular Ball employees. (Doelling Decl. ¶ 5.) In fact, 

one of the cover emails specifically informs the recipients that the document is confidential and 

should not be shared or forwarded on to anyone outside Ball. See Ex. D, document 

BALL00011320-351. Ball only produced the documents pursuant to a subpoena, and took care 

to maintain confidentiality by designating the documents as confidential. As such, Ball has taken 

all reasonable steps to guard the secrecy of the information. Further, the information is not 

known outside of Ball, and it would be difficult for Ball’s competitors or others within the 

industry to access or duplicate the information contained therein. (Doelling Dccl. ¶ 5.) The 

"secrecy" prong of the "serious injury" standard is therefore met. 

B. Public Disclosure of the Information 

Would Result in Serious Competitive Injury to Ball 

As discussed in Section I, the sixteen documents and nine excerpts of deposition 

testimony for which Ball seeks in camera treatment fall into four categories of information: 

First, documents and testimony discussing business strategies and plans are 

entitled to in camera treatment. See, e.g., In re Mc Wane, Inc., Dkt. No. 9351, 

2012 WL 3862131, at *3..4 (F.T.C. Aug. 17, 2012) (granting in camera treatment 

to business plans); In re Polypore Int’l, Inc., Dkt. No. 9327, 2009 WL 1353461, at 

*4..5 (F.T.C. May 6, 2009) (granting in camera treatment for global business 

plans and strategies for customers). Ball’s business plans contain prospective 

general commercial strategies, Ball’s views on the industry’s present and future, 

Ball’s views on its competitors, specific goals for particular Ball customers, and 

information relevant to negotiations with those customers, such as the status of 

contracts.’ (Doelling Deci. ¶ 6.) 

1 Documents and testimony which fall in this category are BALL0000095-107, BALL0000012O, BALL00000121 

(also referred to as DX3), BALL00003405-06, BALL34I8-19, BALL00004I73-74, BALL00008559-60, 

BALL00008564, BALL00008566, BALL000 11320-51, Dep. Tr. 26:13-27:11. 
JiRi. 

For example, Ball’s three-year strategic plans, such as BALL00004173-74, titled 

"North American Metal Beverage Strategic Plan 2012-2014," detail Ball’s market 

predictions, customer business strategies, and Ball’s development strategies for 

those customers. (Other three-year strategic plans are BALL00008559-60, 8564, 

and 8566.) BALL00003406, titled "Beverage Business Review," contains 

customer-specific and competitor-specific prospective strategies. BALL00000121, 

which is an excerpt from a Ball N.A. Metal Beverage three-year strategic plan, 

contains customer-specific prospective business strategies, as well as specific cost 

and sales information. These documents are of the highest sensitivity to Ball and 

any public disclosure of the information would place Ball at a competitive 

disadvantage with both its competitors and customers. (Doelling Decl. ¶J 6-7.) 

 Second, information relating to pricing is also appropriate for in camera treatment. 

See, e. g., Mc Wane, 2012 WL 3862131, at *3..4, 6 (granting in camera treatment to 

pricing and cost information); Polypore Int’l, 2009 WL 1353461, at *4..5 

(granting in camera treatment for and pricing data). Public disclosure of Ball’s 

internal pricing lists, which are not made available to any of Ball’s customers or 

competitors, as well as testimony on Ball’s pricing strategies, would have a very 

damaging effect on Ball. (Doelling Decl. ¶ 9)2 

Third, in camera treatment is also appropriate for information relating to 

customers. See, e.g., Mc Wane, 2012 WL 3862131, at *34, 6, 8-9 (granting in 

camera treatment to customer sales data and other specific customer information); 

Polypore Int’l, 2009 WL 1353461, at *4..5 (granting in camera treatment for 

customer strategies). Public disclosure of summary calls with Ball’s customers, a 

list of Ball’s top customers, communications with customers or confidential 

contract terms would inflict a serious injury on Ball. 3(Doelling Decl. ¶ 10.) 

Finally, in camera treatment is appropriate for information that a producing party 

has previously agreed to keep confidential. In re OSF Healthcare System, Dkt. 

No. 9349, 2012 WL 1355598, at *1 (F.T.C. Mar. 29, 2012) (granting in camera 

treatment to deposition testimony based on information subject to non-disclosure 

agreements). Ball has previously agreed with MillerCoors and BeveragePulse to 

keep certain information confidential .4 (Doelling Decl. ¶ 11.) These documents 

and testimony should remain confidential, as public disclosure would undermine 

Ball’s future relationships with these clients and customers. Id. 

2 Documents and testimony which fall in this category are BALL00000268-69, Dep. Tr. 120:16-121:9, 149:6-25, 

and 150:14-23. 

Documents and testimony which fall in this category are BALL000001O9-1 1, BALL00000237, BALL0001 1273-

74, Dep. Tr. 9:19-25, 96:7-11, 121:20-122:5, 135:24-136:8 and 153:7-25. 

"Documents and testimony which fall into this category are BALL00000094, BALL00006340, Dep. Tr. 121:20-

122:5, 153:7-25. 

5 
PUBLIC 

The "materiality" prong of the serious injury standard is therefore met for the sixteen documents 

and nine deposition excerpts. 5 

C. Protection for the Information Should Last 

for at Least Three or Five Years, Depending on the Document 

The highly confidential information contained in the materials in Exhibit D is central to 

Ball’s competitive position and business strategy. Ball respectfully requests, therefore, that all 

the documents for which Ball has requested in camera treatment be afforded in camera 

protection for a period of at least three years. For the most highly sensitive documents, however, 

which relate to Ball’s business strategy and plans and are identified in paragraph 7 of the 

Doelling Declaration, Ball respectfully requests that they be afforded in camera protection for a 

period of at least five years. 

Respectfully submitted, 

AlLfl1W?4 óCLq ccP 

Nicholas E.O. Gaglio" 

AXINN VELTROP & HARKRIDER LLP 

114 West 47th Street 

New York, New York 10036 

Tel: (212) 728-2200 

Email: ngaglio@axinn.com 

Counsel for Non-Party Ball Corporation 

The analysis applies equally to the few documents for which Ball seeks in camera treatment that are more than 

three years old. While there is a presumption that information three or more years old is not to be provided in 

camera treatment, see Dura Lube, at *4, the presumption is overcome when an applicant demonstrates that the 

information remains commercially sensitive. Mc Wane, Inc., 2012 WL 3 86213 1, at *2; see also In re ProMedica 

Health System, Inc., Dkt. No. 9346, 2011 WL 2258040, at *18 (F.T.C. May 25, 2011) (finding presumption 

overcome where respondent demonstrated that documents remained relevant and significant, as the documents 

reflected business strategies which could impact future negotiations). The sensitive information contained within 

these documents could impact Ball’s relationships and negotiations with customers, competitors and other thirdparties if it is made public. For example, BALL00000I20, BALL0000121 and BALL00008560 are strategy plan 

documents which contain information that remains relevant to Ball’s current and future business. (Doelling Dccl. ¶ 

8.) 
PUBLIC 

CERTIFICATE OF SERVICE 

I, Nicholas E.O. Gaglio, certify that on December 9, 2013 I caused the foregoing to be 

served on the following in the manner indicated: 

Hand Delivery - Original, one copy and electronic copy 

Donald S. Clark 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Room H- 113 

Washington, DC 20580 

VIA Federal Express and Electronic mail - One copy and electronic copy 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Room H-106 

Washington, DC 20580 

I also certify that on December 9, 2013, I caused one copy of the Motion (both public and 

in camera versions) to be served by electronic mail and Federal Express on the following: 

Complaint Counsel 

Steven Wilensky, Esq. (swilensky@ftc.gov ) 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Avenue, N.W. 

Washington, DC 20001 

Counsel for Respondents 

Jason M. Swergold (Jason. Swergold(dshearman.com) 

Shearman & Sterling LLP 

599 Lexington Avenue 

New York, NY 10022 

By: cr. 

Nicholas E.O. Gagli6’ 

Counsel for Non-Party 

Ball Corporation 

7 
PUBLIC 

CERTIFICATE OF CONFERENCE 

On December 5, 2013, the undersigned personally conferred with Complaint Counsel and 

counsel for Respondents. All counsel indicated that they do not oppose the relief requested in 

this Motion. 

By: ,4J1’A’A9fr.M 

Nicholas E.O. Gaglid

tcP 

CERTIFICATE FOR ELECTRONIC COPIES 

I certify that the electronic copies sent to the Secretary of the Commissioner are true and 

correct copies of the paper originals, and that paper copies with original signatures are included 

in the same package that was delivered via Federal Express. 

By: JJIürLa, 62e&e ccP 

Nicholas E.O. Gaglid 

NOTICE OF USE TO NON-PARTY 

In the event the Commission intends to disclose any materials for which in camera 

treatment was sought in this Motion, the name and address of the individual to be contacted 

pursuant to Rule 3.45(b) is Nicholas E.O. Gaglio, Axinn, Veltrop & Harkrider LLP, 114 W. 47 

St., New York, NY 10036, 212-728-2200, ngaglio(axinn.com . 

8 
PUBLIC 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of 

Ardagh Group S.A., 

a public limited liability company, and 

Compagnie de Saint-Gobain, a corporation, 

and 

Saint-Gobain Containers, Inc., 

a corporation 

DOCKET NO. 9356 

PROPOSED ORDER 

Upon consideration of non-party Ball Corporation’s Motion for In Camera Treatment, it 

is HEREBY ORDERED that the following documents are to be provided in camera treatment 

for a period of five years from the date of this Order: BALL00004173-174; BALL00008564; 

BALL00008566; BALL00008559-560; BALL00003405-406; and BALL00000 121. 

It is further HEREBY ORDERED that the following documents are to be provided in 

camera treatment for a period of three years from the date of this Order: BALL00000094; 

BALL00000095-107; BALL00000109-1 11; BALL00000120; BALL00000237; 

BALL00000268-269; BALL000034 18-419; BALL00006340; BALL000 11273-274; and 

BALL00011320-3 5 1. 

It is further HEREBY ORDERED that the following excerpts from the transcript of the 

deposition of Bruce Doelling of Ball Corporation are to be provided in camera treatment for a 

period of three years from the date of this Order: 9:19-25; 26:13-27:11; 96:7-11; 120:16-121:9; 

121:20-122:5; 135:24-136:8; 149:6-25; 150:14-23; and 153:7-25. 
PUBLIC 

D. Michael Chappell 

Chief Administrative Law Judge 

2013 

10 






1

From: Jason Swergold [mailto:Jason.Swergold@Shearman.com] 

Sent: Wednesday, December 04, 2013 7:14 PM 

To: Gaglio, Nicholas E.O. 

Subject: RE: FTC v. Ardagh -- Ball redaction request 

Thanks, Nick. Following up on our earlier discussion, we do intend to offer the power point presentation 

bearing bates number Ball00003406, which is the attachment to Ball00003405. 

Best,

Jason

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

 

  

  
1

From: Jason Swergold [mailto:Jason.Swergold@Shearman.com] 

Sent: Tuesday, November 26, 2013 2:54 PM 

To: Gaglio, Nicholas E.O. 

Cc: Mark Lanpher 

Subject: RE: In the Matter of Ardagh Group - Letter to N. Gaglio 

Nicholas,

Pursuant to the scheduling order in this case, yesterday the parties were required to identify any counterdesignations of deposition testimony that they may seek to introduce during the hearing. I write to advise

you that Respondents have identified the following additional testimony:

21:20-25, 22:2-5, 26:13-16, 26:19-25, 27:2-6, 27:9-11,

83:18-21, 108:14-22, 119:4-9, 127:23-25, 128:2-7, 148:2-

25, 149:2-4, 153:7-16, 153:18-25, 154:23-25, 155:2-5

Best,

Jason

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

From: Jason Swergold 

Sent: Thursday, November 21, 2013 3:01 PM 

To: 'neog@avhlaw.com' 

Cc: Mark Lanpher 

Subject: RE: In the Matter of Ardagh Group - Letter to N. Gaglio

  

Nicholas,

This is to advise you that the Administrative Law Judge has granted a motion filed by Ardagh to extend 

the deadline for motions for in camera treatment of confidential materials. Accordingly, any motion that 

you may seek to file for in camera treatment is now due on December 9. A copy of the judge’s order is 

attached.

Best,
2

Jason

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

From: Jason Swergold 

Sent: Wednesday, November 20, 2013 9:01 AM 

To: 'neog@avhlaw.com' 

Cc: Mark Lanpher 

Subject: RE: In the Matter of Ardagh Group - Letter to N. Gaglio

  

As a follow up to my email last night, these are the excerpts of the deposition that we plan to introduce at 

the hearing. A copy of the transcript is attached for reference.

3:15-17, 5:19-22, 8:4-25, 9:2-25, 12:16-20, 12:24-25, 13:2-

15, 14:4-16, 15:4-6, 15:10-25, 16:2-4, 16:10-13, 16:17-25,

17:2-3, 17:7-15, 17:18-23, 18:3-21, 18:23-25, 19:2-13,

19:16-25, 20:2-14, 22:18-22, 23:14-22, 24:12-25, 25:2-6,

25:13-25, 26:2-12, 27:12-16, 27:21-25, 28:2-5, 29:11-25,

30:4-25, 31:2-4, 31:7-25, 32:2-14, 33:4-13, 35:6-25, 36:2-

18, 39:10-13, 40:2-24, 41:5-8, 41:11-20, 42:17-25, 43:2-8,

45:22-25, 46:2-6, 46:9-16, 46:21-25, 47:2-15, 48:14-25,

49:2-5, 54:17-20, 54:22-23, 55:17-19, 56:11-25, 57:2-25,

58:10-16, 58:18-22, 59:20-25, 60:2-6, 60:10-18, 61:7-25,

62:2-6, 62:14-25, 63:2-25, 64:2-25, 65:2-18, 65:25, 66:2-25,

67:2-7, 67:13-16, 68:15-25, 69:2-20, 70:21-25, 71:2-5,

71:23-25, 72:2-6, 73:17-20, 74:4-11, 75:11-13, 75:22-25,

76:2-17, 78:6-9, 81:15-20, 83:22-25, 84:7-18, 85:24-25,

86:2-11, 87:20-24, 89:17-20, 89:22, 91:14-25, 92:2-13,

92:15-25, 93:2-25, 94:2-13, 96:7-11, 96:21-25, 97:2-8,

98:2-7, 98:9-15, 106:7-15, 144:8-25, 145:2-10, 149:6-23,

146:25, 150:14-21, 150:23-25, 151:2-7, 151:9, 152:5-9,

152:11-17, 155:12-15, 155:23-25, 156:2-9, 157:2-5, 158:20-

25, 159:2-8, 159:10-17, 159:21-25, 160:2-6

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

From: Jason Swergold 

Sent: Tuesday, November 19, 2013 7:27 PM 

To: 'neog@avhlaw.com' 

Cc: Mark Lanpher 

Subject: In the Matter of Ardagh Group - Letter to N. Gaglio

  
3

Dear Mr. Gaglio,

Please see the attached letter. A hard copy of the letter and enclosures will arrive via US mail.

Regards,

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

  

IRS Circular 230 Disclosure 

Any tax advice contained in this communication is not intended or written to be used, and cannot be used, for 

the purpose of avoiding tax penalties and is not intended to be used or referred to in promoting, marketing or 

recommending a partnership or other entity, investment plan or arrangement. 

********************************************************************* 

This communication and any attachments may be privileged or confidential. If you are not the intended 

recipient, you have received this in error and any review, distribution or copying of this communication is 

strictly prohibited. In such an event, please notify us immediately by reply email or by phone (collect at 212-

848-4000) and immediately delete this message and all attachments. 
1

From: Jason Swergold [mailto:Jason.Swergold@Shearman.com] 

Sent: Wednesday, November 20, 2013 9:01 AM 

To: Gaglio, Nicholas E.O. 

Cc: Mark Lanpher 

Subject: RE: In the Matter of Ardagh Group - Letter to N. Gaglio 

As a follow up to my email last night, these are the excerpts of the deposition that we plan to introduce at 

the hearing. A copy of the transcript is attached for reference.

3:15-17, 5:19-22, 8:4-25, 9:2-25, 12:16-20, 12:24-25, 13:2-

15, 14:4-16, 15:4-6, 15:10-25, 16:2-4, 16:10-13, 16:17-25,

17:2-3, 17:7-15, 17:18-23, 18:3-21, 18:23-25, 19:2-13,

19:16-25, 20:2-14, 22:18-22, 23:14-22, 24:12-25, 25:2-6,

25:13-25, 26:2-12, 27:12-16, 27:21-25, 28:2-5, 29:11-25,

30:4-25, 31:2-4, 31:7-25, 32:2-14, 33:4-13, 35:6-25, 36:2-

18, 39:10-13, 40:2-24, 41:5-8, 41:11-20, 42:17-25, 43:2-8,

45:22-25, 46:2-6, 46:9-16, 46:21-25, 47:2-15, 48:14-25,

49:2-5, 54:17-20, 54:22-23, 55:17-19, 56:11-25, 57:2-25,

58:10-16, 58:18-22, 59:20-25, 60:2-6, 60:10-18, 61:7-25,

62:2-6, 62:14-25, 63:2-25, 64:2-25, 65:2-18, 65:25, 66:2-25,

67:2-7, 67:13-16, 68:15-25, 69:2-20, 70:21-25, 71:2-5,

71:23-25, 72:2-6, 73:17-20, 74:4-11, 75:11-13, 75:22-25,

76:2-17, 78:6-9, 81:15-20, 83:22-25, 84:7-18, 85:24-25,

86:2-11, 87:20-24, 89:17-20, 89:22, 91:14-25, 92:2-13,

92:15-25, 93:2-25, 94:2-13, 96:7-11, 96:21-25, 97:2-8,

98:2-7, 98:9-15, 106:7-15, 144:8-25, 145:2-10, 149:6-23,

146:25, 150:14-21, 150:23-25, 151:2-7, 151:9, 152:5-9,

152:11-17, 155:12-15, 155:23-25, 156:2-9, 157:2-5, 158:20-

25, 159:2-8, 159:10-17, 159:21-25, 160:2-6

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

jason.swergold@shearman.com | www.shearman.com

From: Jason Swergold 

Sent: Tuesday, November 19, 2013 7:27 PM 

To: 'neog@avhlaw.com' 
2

Cc: Mark Lanpher 

Subject: In the Matter of Ardagh Group - Letter to N. Gaglio

  

Dear Mr. Gaglio,

Please see the attached letter. A hard copy of the letter and enclosures will arrive via US mail.

Regards,

Jason M. Swergold

_______________________________________

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

D +1.212.848.5414 | M +1.516.343.5487

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Document Redacted From Public Version 
V ’ct1 aw 

16 C.F.R. § 3.45 Page 1 

Effective: August 22, 2011 

Code of Federal Regulations Currentness 

Title 16. Commercial Practices 

Chapter I, Federal Trade Commission 

Subchapter A. Organization, Procedures and 

Rules of Practice 

rj Part 3. Rules of Practice for Adjudicative Proceedings (Refs & Annos) 

Subpart E. Hearings 

§ 145 In camera orders. 

(a) Definition. Except as hereinafter provided, material made subject to an in camera order will be 

kept confidential and not placed on the public record of the proceeding in which it was submitted. 

Only respondents, their counsel, authorized Commission personnel, and court personnel concerned 

with judicial review may have access thereto, 

provided that the Administrative Law Judge, the 

Commission and reviewing courts may disclose 

such in camera material to the extent necessary for 

the proper disposition of the proceeding. 

(b) In camera treatment of material. A party or third 

party may obtain in camera treatment for material, 

or portions thereof, offered into evidence only by 

motion to the Administrative Law Judge. Parties 

who seek to use material obtained from a third 

party subject to confidentiality restrictions must 

demonstrate that the third party has been given at 

least 10 days notice of the proposed use of such 

material. Each such motion must include an attachment containing a copy of each page of the document in question on which in camera or otherwise 

confidential excerpts appear. The Administrative 

Law Judge shall order that such material, whether 

admitted or rejected, be placed in camera only after 

finding that its public disclosure will likely result in 

a clearly defined, serious injury to the person, partnership, or corporation requesting in camera treatment or after finding that the material constitutes 

sensitive personal information. "Sensitive personal 

information" shall include, but shall not be limited 

to, an individual’s Social Security number, taxpayer 

identification number, financial account number, 

credit card or debit card number, driver’s license 

number, state-issued identification number, passport number, date of birth (other than year), and 

any sensitive health information identifiable by individual, such as an individual’s medical records. 

For material other than sensitive personal information, a finding that public disclosure will likely result in a clearly defined, serious injury shall be 

based on the standard articulated in H.P. Hood & 

Sons, Inc., 58 F.T.C. 1184, 1188 (1961); see also 

Bristol-Myers Co., 90 F.T.C. 455, 456 (1977), 

which established a three-part test that was modified by General Foods Corp., 95 F.T.C. 352, 355 

(1980). The party submitting material for which in 

camera treatment is sought must provide, for each 

piece of such evidence and affixed to such evidence, the name and address of any person who 

should be notified in the event that the Commission 

intends to disclose in camera information in a final 

decision. No material, or portion thereof, offered 

into evidence, whether admitted or rejected, may be 

withheld from the public record unless it falls within the scope of an order issued in accordance with 

this section, stating the date on which in camera 

treatment will expire, and including: 

(1) A description of the material; 

(2) A statement of the reasons for granting in 

camera treatment; and 

(3) A statement of the reasons for the date on 

which in camera treatment will expire, except 

in the case of sensitive personal information, 

which shall be accorded permanent in camera 

treatment unless disclosure or an expiration 

date is required or provided by law. For in 

' 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 
16 C.F.R. § 3.45 Page 2 

camera material other than sensitive personal 

information, an expiration date may not be 

omitted except in unusual circumstances, in 

which event the order shall state with specificity the reasons why the need for confidentiality of the material, or portion thereof at issue is not likely to decrease over time, and any 

other reasons why such material is entitled to in 

camera treatment for an indeterminate period. 

If an in camera order is silent as to duration, 

without explanation, then it will expire 3 years 

after its date of issuance. Material subject to an 

in camera order shall be segregated from the 

public record and filed in a sealed envelope, or 

other appropriate container, bearing the title, 

the docket number of the proceeding, the notation "In Camera Record under § 3.45," and the 

date on which in camera treatment expires. If 

the Administrative Law Judge has determined 

that in camera treatment should be granted for 

an indeterminate period, the notation should 

state that fact. Parties are not required to 

provide documents subject to in camera treatment, including documents obtained from third 

parties, to any individual or entity other than 

the Administrative Law Judge, counsel for other parties, and, during an appeal, the Commission or a federal court. 

(c) Release of in camera material. In camera material constitutes part of the confidential records of the 

Commission and is subject to the provisions of § 

4.11 of this chapter. 

(d) Briefs and other submissions referring to in 

camera or Confidential information. Parties shall 

not disclose information that has been granted in 

camera status pursuant to § 3.45(b) or is subject to 

confidentiality protections pursuant to a protective 

order in the public version of proposed findings, 

briefs, or other documents. This provision does not 

preclude references in such proposed findings, 

briefs, or other documents to in camera or other 

confidential information or general statements 

based on the content of such information. 

(e) When in camera or confidential information is 

included in briefs and other submissions. If a party 

includes specific information that has been granted 

in camera status pursuant to § 3.45(b) or is subject 

to confidentiality protections pursuant to a protective order in any document filed in a proceeding under this part, the party shall file 2 versions of the 

document. A complete version shall be marked "In 

Camera" or "Subject to Protective Order," as appropriate, on every page and shall be filed with the 

Secretary and served by the party on the other 

parties in accordance with the rules in this part. 

Submitters of in camera or other confidential material should mark any such material in the complete 

versions of their submissions in a conspicuous matter, such as with highlighting or bracketing. References to in camera or confidential material must be 

supported by record citations to relevant evidentiary materials and associated Administrative Law 

Judge in camera or other confidentiality rulings to 

confirm that in camera or other confidential treatment is warranted for such material. In addition, the 

document must include an attachment containing a 

copy of each page of the document in question on 

which in camera or otherwise confidential excerpts 

appear, and providing the name and address of any 

person who should be notified of the Commission’s 

intent to disclose in a final decision any of the in 

camera or otherwise confidential information in the 

document. Any time period within which these 

rules allow a party to respond to a document shall 

run from the date the party is served with the complete version of the document. An expurgated version of the document, marked "Public Record" on 

every page and omitting the in camera and confidential information and attachment that appear in the 

complete version, shall be filed with the Secretary 

within 5 days after the filing of the complete version, unless the Administrative Law Judge or the 

Commission directs otherwise, and shall be served 

by the party on the other parties in accordance with 

the rules in this part. The expurgated version shall 

' 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 
16 C.F.R. § 3.45 Page 3 

indicate any omissions with brackets or ellipses, 

and its pagination and depiction of text on each 

page shall be identical to that of the in camera version. 

(f) When in camera or confidential information is 

included in rulings or recommendations of the Administrative Law Judge. If the Administrative Law 

Judge includes in any ruling or recommendation information that has been granted in camera status 

pursuant to § 3.45(b) or is subject to confidentiality 

protections pursuant to a protective order, the Administrative Law Judge shall file 2 versions of the 

ruling or recommendation. A complete version 

shall be marked "In Camera" or "Subject to Protective Order," as appropriate, on every page and 

shall be served upon the parties. The complete version will be placed in the in camera record of the 

proceeding. An expurgated version, to be filed 

within 5 days after the filing of the complete version, shall omit the in camera and confidential information that appears in the complete version, 

shall be marked "Public Record" on every page, 

shall be served upon the parties, and shall be included in the public record of the proceeding. 

(g) Provisional in camera rulings. The Administrative Law Judge may make a provisional grant of in 

camera status to materials if the showing required 

in § 3.45(b) cannot be made at the time the material 

is offered into evidence but the Administrative Law 

Judge determines that the interests of justice would 

be served by such a ruling. Within 20 days of such 

a provisional grant of in camera status, the party offering the evidence or an interested third party must 

present a motion to the Administrative Law Judge 

for a final ruling on whether in camera treatment of 

the material is appropriate pursuant to § 3.45(b). If 

no such motion is filed, the Administrative Law 

Judge may either exclude the evidence, deny in 

camera status, or take such other action as is appropriate. 

[52 FR 22293, June 11, 1987; 54 FR 49279, Nov. 

30, 1989; 60 FR 37748, July 21, 1995; 61 FR 

50650, Sept. 26, 1996; 66 FR 17630, April 3, 2001; 

66 FR 20527, April 23, 2001; 74 FR 1832, Jan. 13, 

2009; 76 FR 52253, Aug. 22, 2011] 

SOURCE: 32 FR 8449, June 13, 1967; 64 FR 

46269, Aug. 25, 1999, unless otherwise noted. 

AUTHORITY: 15 U.S.C. 46, unless otherwise 

noted. 

16 C. F. R. § 3.45, 16 CFR § 3.45 

Current through November 14, 2013; 78 FR 68657 

' 2013 Thomson Reuters. 

END OF DOCUMENT 

' 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 
ORIGINAL . UNITED STATES OF AMERICA’ RECEIVEO DOWffl 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW ’JUDGES .iui 012013 

5-gi3 

SECRETARY 

uy-my- lon 

Ardagh Group S.A., 

a public limited liability company, and 

Saint-Gobain Containers, Inc., 

a corporation, and 

Compagnie de Saint-Gobain, 

a corporation, 

Respondents. 

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIAL 

Commission Rule 3.31(d) states: "In order to protect the parties and third parties 

against improper use and disclosure of confidential information, the Administrative Law 

Judge shall issue a protective order as set forth in the appendix to this section." 16 C.F.R. 

§ 3.31(d). Pursuant to Commission Rule 3.31(d), the protective order set forth in the 

appendix to that section is attached verbatim as Attachment A and is hereby issued. 

CAMPA 

D. Michael Chajcpell 

Chief Administrative Law Judge 

HJm- flwJpMi 
ATTACHMENT A 

For the purpose of protecting the interests of the parties and third parties in the 

above-captioned matter against improper use and disclosure of confidential information 

submitted or produced in connection with this matter: 

IT IS HEREBY ORDERED THAT this Protective Order Governing 

Confidential Material ("Protective Order") shall govern the handling of all Discovery 

Material, as hereafter defined. 

1. As used in this Order, "confidential material" shall refer to any document or portion 

thereof that contains privileged, competitively sensitive information, or sensitive personal 

information, "Sensitive personal information" shall refer to, but shall not be limited to, 

an individual’s Social Security number, taxpayer identification number, financial account 

number, credit card or debit card number, driver’s license number, state-issued 

identification number, passport number, date of birth (other than year), and any sensitive 

health information identifiable by individual, such as an individual’s medical records. 

"Document" shall refer to any discoverable writing, recording, transcript of oral 

testimony, or electronically stored information in the possession of a party or a third 

party. "Commission" shall refer to the Federal Trade Commission ("FTC"), or any of its 

employees, agents, attorneys, and all other persons acting on its behalf, excluding persons 

retained as consultants or experts for purposes of this proceeding. 

2. Any document or portion thereof submitted by a respondent or a third party during a 

Federal Trade Commission investigation or during the course of this proceeding that is 

entitled to confidentiality under the Federal Trade Commission Act, or any regulation, 

interpretation, or precedent concerning documents in the possession of the Commission, 

as well as any information taken from any portion of such document, shall be treated as 

confidential material for purposes of this Order. The identity of a third party submitting 

such confidential material shall also be treated as confidential material for the purposes of 

this Order where the submitter has requested such confidential treatment. 

3. The parties and any third parties, in complying with informal discovery requests, 

disclosure requirements, or discovery demands in this proceeding may designate any 

responsive document or portion thereof as confidential material, including documents 

obtained by them from third parties pursuant to discovery or as otherwise obtained. 

4. The parties, in conducting discovery from third parties, shall provide to each third 

party a copy of this Order so as to inform each such third party of his, her, or its rights 

herein. 

5. A designation of confidentiality shall constitute a representation in good faith and after 

careful determination that the material is not reasonably believed to be already in the 

public domain and that counsel believes the material so designated constitutes 

confidential material as defined in Paragraph 1 of this Order. 

IP 
6. Material may be designated as confidential by placing on or affixing to the document 

containing such material (in such manner as will not interfere with the legibility thereof), 

or if an entire folder or box of documents is confidential by placing or affixing to that 

folder or box, the designation "CONFIDENTIAL - FTC Docket No, 9356" or any other 

appropriate notice that identifies this proceeding, together with an indication of the 

portion or portions of the document considered to be confidential material. Confidential 

information contained in electronic documents may also be designated as confidential by 

placing the designation "CONFIDENTIAL - FTC Docket No. 9356" or any other 

appropriate notice that identifies this proceeding, on the face of the CD or DVD or other 

medium on which the document is produóed. Masked or otherwise redacted copies of 

documents may be produced where the portions deleted contain privileged matter, 

provided that the copy produced shall indicate at the appropriate point that portions have 

been deleted and the reasons therefor, 

7. Confidential material shall be disclosed only to: (a) the Administrative Law Judge 

presiding over this proceeding, personnel assisting the Administrative Law Judge, the 

Commission and its employees, and personnel retained by the Commission as experts or 

consultants for this proceeding; (b) judges and other court personnel of any court having 

jurisdiction over any appellate proceedings involving this matter; (c) outside counsel of 

record for any respondent, their associated attorneys and other employees of their law 

firm(s), provided they are not employees of a respondent; (d) anyone retained to assist 

outside counsel in the preparation or hearing of this proceeding including consultants, 

provided they are not affiliated in any way with a respondent and have signed an 

agreement to abide by the terms of the protective order; and (e) any witness or deponent 

who may have authored or received the information in question. 

8. Disclosure of confidential material to any person described in Paragraph 7 of this 

Order shall be only for the purposes of the preparation and hearing of this proceeding, or 

any appeal therefrom, and for no other purpose whatsoever, provided, however, that the 

Commission may, subject to taking appropriate steps to preserve the confidentiality of 

such material, use or disclose confidential material as provided by its Rules of Practice; 

sections 6(1) and 21 of the Federal Trade Commission Act; or any other legal obligation 

imposed upon the Commission. 

9. In the event that any confidential material is contained in any pleading, motion, exhibit 

or other paper filed or to be filed with the Secretary of the Commission, the Secretary 

shall be so informed by the Party filing such papers, and such papers shall be filed in 

camera. To the extent that such material was originally submitted by a third party, the 

party including the materials in its papers shall immediately notify the submitter of such 

inclusion. Confidential material contained in the papers shall continue to have in camera 

treatment until further order of the Administrative Law Judge, provided, however, that 

such papers may be furnished to persons or entities who may receive confidential 

material pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing 

confidential material, the filing party shall file on the public record a duplicate copy of 

the paper that does not reveal confidential material. Further, if the protection for any 

such material expires, a party may file on the public record a duplicate copy which also 

contains the formerly protected material, 
10. If counsel plans to introduce into evidence at the hearing any document or transcript 

containing confidential material produced by another party or by a third party, they shall 

11.If any party receives a discovery request in any investigation or in any other 

proceeding or matter that may require the disclosure of confidential material submitted by 

another party or third party, the recipient of the discovery request shall promptly notify 

the submitter of receipt of such request. Unless a shorter time is mandated by an order of 

a court, such notification shall be in writing and be received by the submitter at least 10 

business days before production, and shall include a copy of this Protective Order and a 

cover letter that will apprise the submitter of its rights hereunder. Nothing herein shall be 

construed as requiring the recipient of the discovery request or anyone else covered by 

this Order to challenge or appeal any order requiring production of confidential material, 

to subject itself to any penalties for non-compliance with any such order, or to seek any 

relief from the Administrative Law Judge or the Commission. The recipient shall not 

oppose the submitter’s efforts to challenge the disclosure of confidential material.’ In 

addition, nothing herein shall limit the applicability of Rule 4.11(e) of the Commission’s 

Rules of Practice, 16 CFR 4.11(e), to discovery requests in another proceeding that are 

directed to the Commission. 

12.At the time that any consultant or other person retained to assist counsel in the 

preparation of this action concludes participation in the action, such person shall return to 

counsel all copies of documents or portions thereof designated confidential that are in the 

possession of such person, together with all notes, memoranda or other papers containing 

confidential information. At the conclusion of this proceeding, including the exhaustion 

of judicial review, the parties shall return documents obtained in this action to their 

submitters, provided, however, that the Commission’s obligation to return documents 

shall be governed by the provisions of Rule 4.12 of the Rules of Practice, 16 CFR 4,12, 

13.The provisions of this Protective Order, insofar as they restrict the communication 

and use of confidential discovery material, shall, without written permission of the 

submitter or further order of the Commission, continue to be binding after the conclusion 

of this proceeding. 
SHEARMAN & STERLING IL 

801 PENNSYLVANIA AVENUE, NW I WASHINGTON, DC 1 20004-2834 

WWW.SHEARMAN.COM I T *1.202508.8000 1 F *1.202.508.8100 

November 19, 2013 

CONFIDENTIAL 

Via Email and U.S. Mail 

Nicholas E.O. Gaglio 

Axinn, Veltrop, Harkrider LLP 

114 West 47th Street 

New York, New York 10036 

L?e.’ In the Matter ofArdagh Group S.A. et al., Docket No. 9356 (F. F. C.) 

Dear Mr. Gaglio, 

Pursuant to Paragraph 10 of the Protective Order in the above-referenced matter (enclosed), the 

Scheduling Order in the above-referenced matter, Paragraph 7 of the Stipulated Side Agreement 

to Protective Order between the parties and Ball Corporation entered into on July 31, 2013, and 

16 C.F.R. § 3.45 (enclosed), this letter is providing notice to Ball Corporation that Respondents 

Ardagh Group S.A., Compagnie de Saint-Gobain, and Saint-Gobain Containers plan to introduce 

confidential material produced by Ball Corporation into evidence at the Commission’s hearing in 

the above-referenced matter, scheduled to commence on December 19, 2013. 

Respondents intend to introduce into evidence the following confidential material produced by 

Ball Corporation in the above-referenced matter or FTC v. Ardagh GroupS.A., et al., No. 13-cv1021 (BJR) (D.D.C.): 

Transcript excerpts of the oral deposition of Bruce Doelling, taken on August 21, 2013 

 Document with bates range BALL00000095 -- BALL00000 107 

 Document with bates range BALL00000IO9 BALL00000I 11 

 Document with bates range BALL00000 124 BALL00000 129 

 Document with bates range BALL00000236 - BALL00000236 

 Document with bates range BALL00000237 - BALL00000237 

 Document with bates range BALL00002089 - BALL00002089 

 Document with bates range BALL00003405 - BALL00003 405 

 Document with bates range BALL000034I8 - BALL000034I9 

ABU DHABI I BEIJING I BRUSSELS I FRANKFURT I HONG KONG I LONDON I MILAN I NEW YORK I PALO ALTO 

PARIS I ROME I SAN FRANCISCO I SAO PAULO I SHANGHAI I SINGAPORE I TOKYO I TORONTO I WASHINGTON, DC 

SHEAEMAE & STEELING LLP IS A LIMITED LIABILITY PARTNERSHIP ORGANIZED IN THE UNITED STATES UNDER THE LAWS OF THE STATE OF DELAWARE, WHICH LAWS LIMIT THE PERSONAL LIABILITY OF PARTNERS 
Nicholas E.O. Gaglio November 19, 2013 

Page 2 

0 Document with bates range BALL00005504 BALL00005 505 

a Document with bates range BALL00005613 BALL00005622 

0 Document with bates range BALL00008566 BALL00008566.0030 

0 Document with bates range BALLOOO 11273 - BALL000I 1274 

0 Document with bates range BALL0001 1320 - BALL0001 1351 

@ Additional documents without bates stamps ,! enclosed) 

Pursuant to the Scheduling Order, a party may file a motion for in camera treatment of its 

confidential material with the Administrative Law Judge by November 26, 2013. The strict 

standard for motions for in camera treatment of confidential material is set forth in 16 C.F.R. § 

3.45, and is explained in In re Dura Lube Corp., 1999 FTC LEXIS 255 (Dec. 23, 1999); In re 

Hoechst Marion Roussel, Inc., 2000 FTC LEIXIS 157 (Nov. 22, 2000) and 2000 FTC LEXIS 138 

(Sept. 19, 2000); In re Basic Research, Inc., 2006 FTC LEXIS 14 (Jan 25. 2006). Motions must 

be supported by a declaration or affidavit by a person qualified to explain the confidential nature 

of the documents. In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23, 

2004). Each party or non-party that files a motion for in camera treatment shall provide one 

copy of the documents for which in camera treatment is sought to the Administrative Law 

Judge. 

If you have any questions, please feel free to contact me at 202.508,8120. 

I:I.t;P.4jJLon 

/s/ Mark Lanp her 

Mark Lanpher 

Enclosures 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

Ardagh Group S.A., 

a public limited liability company, and 

Compagnie de Saint-Gobain, a corporation, 

and 

Saint-Gobain Containers, Inc., 

a corporation 

DOCKET NO. 9356 

DECLARATION OF BRUCE H. DOELLING IN 

SUPPORT OF NON-PARTY BALL CORPORATION’S 

MOTION FOR IN CAMERA TREATMENT OF PROPOSED EVIDENCE 

I, Bruce H. Doelling, declare as follows: 

1. I am currently the Director of Sales, North America, at Ball Corporation ("Ball"), 

and submit this declaration in support of Non-Party Ball Corporation’s Motion for In Camera 

Treatment of Proposed Evidence which was produced by Ball in response to a subpoena duces 

tecum issued by Complaint Counsel in this matter. 

2. Counsel for Ball informs me that the parties in this matter have identified as 

potential trial exhibits several Ball documents and many excerpts from my deposition. 

3. Of the materials the parties have identified, sixteen documents and nine 

deposition excerpts contain information that Ball considers highly confidential. 

4. I have reviewed these documents, which I understand are attached as Exhibit D to 

Ball’s motion. 

1 
5. Ball has taken substantial measures to guard the information contained in the 

documents and testimony attached in Exhibit D by limiting dissemination of such information 

and taking every reasonable step to protect its confidentiality. Information contained in Exhibit 

D would be extremely difficult for Ball’s competitors, customers or other outside parties to 

access or duplicate. 

6. Ten of the documents and one of the excerpts contained in Exhibit D reveal 

information relating to Ball’s business strategy and plans, including Ball’s prospective business 

and marketing strategies, Ball’s views on the industry’s present and future, Ball’s views on its 

competitors, specific goals for particular Ball customers, and information relevant to negotiations 

with those customers. Ball has expended considerable time and effort in developing these 

strategies and plans, which have allowed it to gain a competitive advantage in the marketplace. 

This is information that Ball’s competitors could potentially use for their own advantage. These 

documents are of the highest sensitivity to Ball and any public disclosure of this information 

could result in serious damage to Ball’s competitive advantage in the marketplace. These 

materials include: BALL0000095-107, BALL0000012O, BALL00000121 (Exhibit DX3 from my 

deposition), BALL00003405-06, BALL000034 18-19, BALL000004 173-74, BALL000085 59-60, 

BALL00008564, BALL00008566, BALL0001 1320-51, and Dep. Tr. 26:13-27:11. 

7. Among the documents that reveal information relating to Ball’s business strategy 

and plans, a handful are of the utmost sensitivity to Ball. Specifically, Ball’s three-year strategy 

plans distill and analyze the business and planning information that we consider most critical to 

our competitive success. This critical information includes, for example, sales and margin data 

(customer-specific and general), business development strategies for both industry sectors (such 

as craft beer) and specific customers, market analysis and intelligence, projections for sales, 

2 
profit, demand and production, and cost information. These documents are BALL000004173-74, 

BALL00008559-60, BALL00008564 and BALL00008566, and also include BALL00000121 

(Exhibit DX3 from my deposition), which is a two page excerpt from a Ball three-year strategic 

plan. Similarly, the strategic business review at BALL00003405-06 contains both customerspecific and competitor-specific prospective strategies. Disclosure of the information contained 

in these most highly sensitive documents would disadvantage me in contract negotiations with 

my customers and would seriously disadvantage Ball in the marketplace. 

8. Three of the strategy documents listed in paragraph six are more than three years 

old. These documents are BALL00000 120, BALL00000121 and BALL00008560. 

Notwithstanding the date of these documents, the information within these documents remains 

commercially sensitive today. All three discuss Ball’s specific business strategies on both a 

market- or segment-wide and customer-specific basis, which remain relevant to Ball’s current 

and future business. 

9. One of the documents and three of the excerpts contained in Exhibit D reveal 

information relating to Ball’s pricing, including Ball’s internal pricing lists and Ball’s pricing 

strategies for specific products. Ball’s internal pricing lists are not made available to its 

competitors or customers. This is information that Ball’s competitors and customers could 

potentially use for their own advantage. Any public disclosure of this information could result in 

serious damage to Ball’s competitive advantage in the marketplace. These materials include: 

BALL00000268-69, Dep. Tr. 120:16-121:9, 149:6-25, and 150:14-23. 

10. Three of the documents and five of the excerpts contained in Exhibit D reveal 

information relating to specific Ball customers, including Ball’s internal summaries of calls with 

specific customers, the identity of Ball’s largest customers, direct communications with Ball’s 

3 
customers relating to production levels, Ball’s profit margins for sales to certain customers, and a 

confidential term of an agreement with a customer. Any public disclosure of this information 

could result in serious damage to Ball’s relationships with its customers, while undermining 

Ball’s competitive advantage in the marketplace. These materials include: BALL000001O9-1l, 

BALL00000237, BALL0001 1273-74, Dep. Tr. 9:19-25, 96:7-11, 121:20-122:5, 135:24-136:8, 

and 153:7-25. 

11. Two of the documents and two of the excerpts contained in Exhibit D reveal 

information that Ball has undertaken an obligation to maintain as confidential. BALL00000094 

is a consultant report presented to Ball by Bob Falkenberg of BeveragePulse. Bob Falkenberg is 

a highly regarded industry consultant who provides his analyses to Ball on a confidential basis. 

Ball undertook an obligation not to disclose Mr. Falkenberg’s proprietary analysis. Similarly, 

BALL00006340 is a proprietary market survey conducted by Ball customer MillerCoors, to 

which Ball owes a obligation of confidentiality pursuant to a January 1, 2012 Master Packaging 

Purchase and Sale Agreement. The excerpts from my deposition transcript at (A) page 121 line 

20 through page 122 line 5, and (B) page 153 lines 7 through 25 both reveal a confidential term 

of Ball’s agreement with MillerCoors. Public disclosure of this information could limit Ball’s 

ability to access and utilize BeveragePulse market analyses in the future, and could jeopardize 

Ball’s relationship with MillerCoors, one of its most important customers. 

12. In sum, the documents and testimony contained in Exhibit D fall into four 

categories of confidential business information that Ball routinely takes substantial measures to 

protect from disclosure: (i) information relating to Ball’s business strategy and plans; (ii) 

information relating to Ball’s pricing; (iii) information relating to specific Ball customers; and 

F. 
(iv) information that Ball has previously undertaken an obligation to keep confidential. Ball 

could be harmed, therefore, by these materials’ disclosure. 

I declare under penalty of perjury that the foregoing is true and correct. 

H24 

/ 

Bruce Doelling 

Signed this 61 day of December 2013. 

5 
EXHIBIT D 

Document Redacted From Public Version