ORIGINAL
 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

-st¡ 5" i ~( 

In the Matter of ) 

Polypore International, Inc., 

a corporation. 

) 

) 

) 

Docket No. 9327 

PUBLIC 

) 

) 

) 

) 

RESPONDENT'S RESPONSE TO EXIDE TECHNOLOGIES' MOTION TO MODIFY 

THE PROTECTIVE ORDER 

Respondent Polypore International, Inc. ("Polypore") hereby submits its memorandum in 

opposition to Third Party Exide Technologies' ("Exide") Motion to Modify the Protective Order. 

In its Motion, Exide falsely accuses Mr. Michael Shor (Special Litigation Counsel for Polypore) 

as well as Parker Poe of improper behavior related to the alleged use of Exide's confidential 

information. Contrar to Exide's contention, no one from either Daramic or Polypore, including
 

Mr. Shor, has had access to Exide's confidential information. Exide's argument relies solely on 

a letter from Mr. Shor which contains no reference to any confidential information provided by 

Exide under the Protective Order. Exide's claims appear to be another example of Exide's back 

chanel with Complaint Counsel in an attempt to divert the resources of Respondent's counsel as 

the hearing scheduled on November 4, 2009 quickly approaches. For the reasons set forth 

below, Respondent respectfully requests that this Cour deny Exide's Motion in its entirety. 

INTRODUCTION 

On October 23, 2008, the Honorable D. Michael Chappell entered a Protective Order 

Governing Discovery Material permitting the disclosure of confidential information only to 
specifically designated parties, including outside counsel for Respondent and Mr. Shor. Even 

after the entry of 
 the Protective Order, third parties' continued to be concerned about Mr. Shor's 

access to third pary confidential information. In recognition of these concerns, Mr. Shor,
 

voluntarily agreed to be shielded from exposure to third pary information designated as in
 

camera in order to eliminate any appearance of impropriety. Mr. Shor even wrote a letter to 

Complaint Counsel on May 1, 2009, explaining "although I was allowed under the Protective 

Order to review documents produced by other parties, I have not seen any documents produced 

by East Penn, Exide, or The Moore Company ("Amersil") (the "Permitted Parties"). (See 

Exhibit A).
 

ARGUMENT 

Contrar to the baseless allegations in Exide's Motion, Mr. Shor neither has, had or wil 

ever have access to Exide's confidential information. He has not seen a single Exide confidential 

document or for that matter any documents provided by Exide, and he stepped out of the 

courroom during the in camera portions of the examination of 
 Exide's Gilespie and Bregman at 

the triaL. Parker Poe also carefully protects third par information within its own walls in order 

to prevent disclosure. 

Exide's entire argument seeking modification of the Protective Order is based solely on 

Mr. Shor's September 23, 2009 letter in which he discusses Daramic's obligations under the 

existing contract with Exide. Mr. Shor's letter contains no reference to Exide's confidential 

information - to which Mr. Shor does not have access. 

Further, Mr. Shor's September 23, 2009 letter is eight days before Exide gave 

confidential information referencing current contract negotiations to Complaint CounseL. In fact, 

Complaint Counsel first produced Gilespie's Declaration and Exide's purorted confidential 

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i 619068v2 

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information on October 1, 2009. See Declaration of Douglas Gilespie attached to Complaint
 

Counsel's Response to Respondent's Second Motion to Reopen the Hearing Record (Oct. l, 

2009). Exide has known about Respondent's request to reopen the hearing record since 

apparently several days before October 1, 2009. Yet, Exide waited to fie this Motion with the
 

Cour until after this Cour entered an Order reopening the hearing record and less than two
 

weeks before the hearing. The Cour should consider the timing of this Motion in evaluating 

whether Exide is truly concerned about disclosure or is just harassing Polypore. This Motion is 

merely another example of continued back chanel communication between Exide and
 

Complaint CounseL.
 

Modification of the October 23, 2008 Protective Order as requested by Exide is
 

unnecessary. The curent Protective Order provides ample protection for third pary confidential 

information. Exide has no evidence that its confidential information or any information marked 

in camera has been provided to Mr. Shor or any employee at Polypore. In fact, Mr. Shor has
 

voluntarily shielded himself from access to third pary confidential information to prevent this 

very issue. 

Parker Poe has taken and will continue to take all necessary and prudent steps to fully 

comply with the Court's October 23, 2008 Protective Order and shield Polypore employees and 

Mr. Shor from access to third pary confidential information. 

CONCLUSION 

For the foregoing reasons, an order modifying the Protective Order is unnecessary to 

adequately protect third par information. Accordingly, Respondent respectfully requests that 

this Cour deny Exide's Motion to Modify the Protective Order. 

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1619068v2 
Dated: October 23,2009 Respectfully Submitted, 

i'- ?J -l I Æ/!w
 

Wiliam L. Rikard, Jr: 

Eric D. Welsh 

PARKER POE ADAMS & BERNSTEIN LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 

willamikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

John F. Graybeal 

PARKER POE ADAMS & BERNSTEIN LLP 

150 Fayettevile Street 

Raleigh, NC 27602 

Telephone: (919) 835-4599 

Facsimile: (919) 828-0564 

i ohngraybeal~parkerpoe.com 

Attorneys for Respondent 

.. .. 
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CERTIFICATE OF SERVICE
 

I hereby certify that on October 23, 2009, I caused to be fied via hand delivery and 

electronic mail delivery an original and two copies of the foregoing Respondent's Response to 

Exide Technologies' Motion to Modify the Protective Order and that the electronic copy is a true 

and correct copy of the paper original and that a paper copy with an original signature is being 

fied with:
 

Donald S. Clark, Secretary
 

Office of the Secretary
 

Federal Trade Commission
 

600 Pennsylvania Avenue, NW, Rm. H-135
 

Washington, DC 20580
 

secretary~ftc.gov
 

I hereby certify that on October 23, 2009, I caused to be served one copy via electronic 

mail delivery and two copies via overnight mail delivery of the foregoing Respondent's Response 

to Exide Technologies' Motion to Modify the Protective Order upon: 

The Honorable D. Michael Chappell
 

Administrative Law Judge
 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

I hereby certify that on October 23,2009, I caused to be served via first-class mail delivery 

and electronic mail delivery a copy of the foregoing Respondent's Response to Exide
 

Technologies'Motion to Modif the Protective Order upon: 

J. Robert Robertson, Esq. Steven Dah, Esq. 

Federal Trade Commission Federal Trade Commission 

600 Pennsylvania Avenue, NW 600 Pennsylvania A venue, NW 

Washington, DC 20580 Washington, DC 20580 

rro bertson~ftc. gov sdahm~ftc.gov

Adam C. Shearer (lL~

PARKER POE ADAMS & BERNSTEIN LLP 

Three Wachovia Center 

401 South Tryon Street, Suite 3000 

Charlotte, NC 28202 

Telephone: (704) 372-9000 

Facsimile: (704) 334-4706 

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PPAB 1619950vl 

,. .. .. 
EXHIBIT A
 

ATTACHMENT TO RESPONDENT'S RESPONSE TO
 

EXIDE TECHNOLOGIES' MOTION TO MODIFY THE
 

PROTECTIVE ORDER
 

POL YPORE INTERNATIONAL, INC. 

.A CORPORATION 

DOCKET NO. 9327 

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- - -_..
 INTERNATIONAL. INC.
 

May 1,2009 

BY ELECTRONIC MAIL 

CONFIDENTIAL AND PROPRIETARY 

Robert J. Robertson, Esq. 

Federal Trade Commission 

600 Pennsylvania A venue, NW 

Washington, DC 20580 

Re: Polvnore International. Inc.. FTC Docket No. 9327 

Dear Mr. Robertson:
 

Than you for tang the tie to speak with me over the past few days. I am wrtig to
 

address and, hopefuly, allay, any conceins that have been raised conceinIng my activities on 

behalf of Polyp ore in connection with the referenced matter pendig before the FTC. It is my 

understanding that some tlrd pares are under the impression that I may have violated the terms 

of the Protective Order enterd in the case and, more particularly, the tes of representations that I made to the Cour in connection with the Cour's consideration and entr of 
 that Order. To 

be clear, I have assiduously avoided takng any actions which could be constred as violatig the 

terms of 
 the Protective Order or at odds with my representations to the Cour Consequently, I 

do not believe that I have, at any time, violated either the letter or the spirit of 
 my representations 

to the Court or the Protective Order. Let me address these separately. 

Contract Negotiations 

I represented to the Cour that I had not paiticipated in any contract negotiations on 

behalf of 
 Dai'amc since August 2008 and that I would not parcipate in any such negotiations 

for a period of 
 two years. My intent in makg tht repreentation is that I would not paricipate 

in the negotiation of the term and conditions of any extension of an existing contract or a new 

contract. Since r made that æpresentation, and as I have defined it, I have not, in fact, pai'ticipated in any contract negotiations on behal of Daramc. I did, on behalf of PolyporelDaramic, 

communicate with 
 antitrst COUlcl for Trojan Battery to see if it was possible to exclude a new 

contract between Daramic and Trojan (not yet signed) from the scope of any right of rescission 

~ "' ,.
. Robert J. Robeitson, Esq. 

May 1, 2009 

Page 2 

that might be awarded to Daramic's customers in the event the FTC prevails iii this matter. I do 

not believe that the foregoing communication violated the representation I made to the Cour as 

it did not involve the negotiation of the terms and conditions of a iiew contract; rathel', it 

addressed only the possible implementation of a contract tht was under negotiation by others. 

D9cument Review 

Pursuant to the terms ofthe Protective Order, I was permitted to review documents
 

produced by third paries in this case. Since the Order was enteed, and by ageement with the
 

some pares, I have not seen any documents produced by the following parties, whether 

produced to the FTC durig the investigative hearing phase oftWs matter or pursuant to 

subpoenas issued by Polypore: Entek, Hollngswort & Voth, IGP, Johnson Controls, Trojan 

Battery Company and Warburg Pincus (the "Excluded Parties"). Simlarly, although I was 

allowed by the Protective Order to review documents produced by other partes, I have not seen 

any documents produced by East Penn, Exide or The Moore Company (Amersil) (the "Permitted 

Pares"). The only third-pary documents I have seen are a very small subset of the documents 

produced by EnerSys. With 1'Spec to those items, I would estimate that I saw fewer than fifty 

Parker Poe, no documents were removed
 

from Parker Poe' s offces, no copies were made and none had anything to do with any contract
 

(50) documents, they were viewed in the offces of 


negotiations between Enel'Sys and Daramic or the current dispute between EnerSys and Dal'amic 

over Daramic's recently announced pnce increase. 

As tWs case proceeds to and though trial, it will not be necessar for me to review any 

documents produced by any third party, other than those of the Permittd Pares which have 

been designated as exhibits by Complait Counsel and Polypore. However, in order to alleviate 

any concern that might have been raised, I will add EnerSys and Amersil to the list of 

"Excluded Paries" and wil not review any documents or designted trial exhbits from those 

companies. I wil continue to have access to the designated exhibits of 
 the remaining Pernutted 

Paries, but I wi only review those outside of the Polypol'e offces.
 

Litigation support 

In an email date November 7, 2008 from Eric Welsh to Steven Dab of 
 your offce, Mi'. 

Welsh reiterated my representation to avoid involvement with contract negotiations, but staed 

that "if called on, (IJ may assist Daramc in any legal action involving its customers." Since that 

date, I have assisted Daramc in disputes with Trojan and with EnerSys. I assisted in preparing 

the complaint against Trojan and r drafed and sent a demand letter to EnerSys. I have not been 

involved in any contract negotiations with either Trojan or EnerSys, having only assisted 

Daramic with its legal action agaist these two customers. 

~ ~ ,.
Robert J. Roberon, Esq. 

May 1, 2009 

Page 3
 

Employment Status 

When the Protective Order was under consideration, I advised the Court that I was not 

employed by Polypore, tht I was employed by Carolina Legal Stafg and sered as Special
 

Counsel to Polypore. That was tre until March I, 2009. At that time, I entered into a 

Constig and Confdentialty Agreement directly with Polyp 
 ore. Pursuant to that agreeent, I 

am an independent contractor providing legal servces to Polypore in connection with ths matter 

and any other matter for which Polyp 
 ore might requie my services, subject of course to the
 

limitations previously identifed. I am stil identified as "Special Counel" but I also have been
 

designted as the Company's Director of 
 Litigation. However, I am not an employee of 

Polypore and receive no benefits fl:om the company. 

I trt this allays any concerns that any thrd part may have had about my involvement 

in this matter and on behalf of Polyp ore. I wil contiue to provide services to Polypore 

consistent with the representations I made to the Cour and to Complait Counsel. Should you 

have any additional concerns, please let me know. 

siin7l~ 

Mie 1 1.~..
 

Spec Counsel
 

Polypore Inteniational, Inc. 

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