OR\G\NAL
 

a?~~ 9~i2 

or¡iIW? 

UNITED STATES OF AMERICA ~tl""ó6D 

BEFORE THE FEDERA TRADE COMMISSION 

) In the Matter of ) 

) Docket No. 9327

Polypore International, Inc. ) PUBLIC a corporation. ) 

) 

COMPLAINT COUNSEL'S MOTION 

TO COMPEL PRODUCTION OF DISCOVERY RESPONSES 

By this motion, and pursuant to 16 C.F.R. § 3.38(a), Complaint Counsel respectfully 

moves the Cour to compel Respondent to produce all documents identified in Complaint 

Counsel's Third Request for Production of 
 Documents, Third Set of 
 Interrogatories, and First 

Set of 
 Requests for Admission. Respondent has advised Complaint Counsel that they will 

oppose this motion. 

Respondent has sought to reopen the hearng to present evidence óf evemts to which 

. Complaint Counsel is not a pary and to which Respondent has significant control. While the 

parties agree that the Hearg wil tae only half a day, Respondent now proposes that Complaint 

Counsel respond to this evidence without an adequate opportnity to seek discovery of
 

Respondent's new evidence. 

Pursuant to the Cour's October 15,2009 Order Granting Respondent's Second Motion to 

Reopen the Hearing Record and Setting Heanng Schedule ("Second Hearing Schedule Order"), 

the parties are to exchange exhibit lists on October 28, 2009. In order to obtain documents and 

information for trial exhibits, Complaint Counsel immediately began drafting discovery requests 

tailored to the four proffers outlined by the cour. The docmnent request (Attachment A) and 

interrogatories (Attachment B) were issued on October 16,2009, the day after the order had been 

issued. The Request for Admissions (Attachment C) was issued on October 19, 2009. Since 
depositions must be concluded by October 27,2009 and because the requests are limited to 

documents only since the previous close of discovery, Complaint Counsel requested that the 

documents and responses be provided"by Friday, October 23,2009. 

The discovery requests are necessar and relevant to evaluate and rebut the four proffers 

made by Respondent to the Cour. For example, Daramic asserts that it has evidence that it can 

only retain Exide's business by t ). Complaint Counsel
 

needs documents and information about the ongoing negotiations between Respondent and Exide 

in order to rebut this assertion (Document Requests 14, i 6, i 8, 21, 22, and 25). Daramc also 

infers that Exide's purchasing behavior demonstrates that there is a new entrant or entr is 

imminent. Complaint Counsel needs documents and information from Daramic, including its 

internal assessments and plans to respond in order to rebut this assertion (Document Requests 15, 

16,20,22, and 25). Finally, DaramIc asserts that it will have to t ) because of 

Exide's purchases. Complaint Counsel needs documents and information related to Daramic' s 

plant costs, financial statements, alternatives, board discussions, and plans/contingency plans in 

order to rebut this assertion (Document Requests 17, 19,20, and 22 - 25). Without this 

information Respondent has an unfair advantage at the hearing. 

On October 19,2009, Respondent informed Complaint Counsel that it believed that it has 

no obligation under the Second Hearing Schedule Order to produce documents and that it was 

reviewing whether or not it would produce the requested documents. In a subsequent 

conversation, Complaint Counsel asked if Respondent was taking the same position with respect 

to the Interrogatones and Requests for Admission. Respondent asserted that it would inform 

Complaint Counsel by noon on October 20. On October 20, 2009, at 11 :30 am Respondent 

2
 
informed Complaint C01lsel that it had no intention of 
 responding to Complaint Counsel's Third 

Set of Document Requests, Third Set of Interrogatories and First Set of 
 Requests for Admission. 

Because ofthe extemely limited time for Complaint Counsel to obtain discovery related to 

Respondent's new facts, Complaint Counsel cannot wait until Friday, October 23 to find out 

whether Respondent has changed its mind. 

The Second Hearing Schedule Order clearly contemplates that Complaint Counsel will 

conduct discovery. The order explicitly provides for an exchange of exhibit lists~ something that 

would be impossible if Complaint Counsel cannot obtain exhibits. See Second Hearing Schedule 

Order at 8. Moreover, the Order explicitly provides that it gives "Complaint Counsel with prehearing procedures to ensure that Complaint Counsel is capable of effective rebuttaL." Naturally 

Respondent wil have the opportunity to pick and choose the documents in its possession that it 

wil present at the hearing. If Respondent is not compelled to respond to Complaint Counsel's 

discovery requests, Complaint Counsel wil have no opportunity to review docwnents or obtain 

information that might contradict or clarifY the evidence presented by Respondent Most 

importantly, it wil be extremely difficult, if not impossible, to effectively depose and later cross 

examine Respondent's witnesses without an opportunity to use their documents for 

impeachment. 

The information sought by Complaint Counel's Requests is çritical to the pending 

hearing. In particular, Complaint Counsel needs the data to confirm or contradict the proffered 

fàcts claimed by Respondent, which lies at the core of this hearing. Without the prompt 

submission of 
 the documents and information Complaint Counsel is irretrievably prejudiced by 

the inability to effectively cross-examine Respondent's witnesses, which must be done by next 

3
 
Tuesday. Because of 
 this fast-approaching deadline, it is evident that Complaint Counsel will 

not be able to take adequate depositions in preparation for the hearing. In addition, without 

documents and information about Respondent's new facts, Complaint Counsel will be unable to 

effectively cross-examine Respondents witnesses. Any delay in receiving the requested 

documents and information will tilt the playing field heavily in favor of 
 Respondent. 

The discovery requests are not burdensome. There are only 12 document requests that are 

limited to documents produced since the previous close of discovery in March. There are only 

14 interrogatories and only 19 Requests for Admission. These discovery requests are tailored to 

get documents and information responsive to the four proffers made by Respondent to the Court 

and to the legal arguments made by Respondent in its Second Motion to Reopen the Hearing and 

its subsequent Reply to Complait Counsel's response. 

CONCLUSION 

Pursuant to 16 C.F.R. § 3.38 Complaint Counsel respectfuly moves the Cour for an 

order compellng Respondent to produce all documents identified in Complaint Counsel's Third 

Request for Production of Documents and compellng responses to Complaint Counsel's Thrd 

Set of Interrogatories and First Set of Requests for Admission by the close of business on Friday, 

4
 
October 23,2009. 

Dated: OCTOBER 21,2009
 Respectfully submitted, 

Steven A. Dah
 

Bureau of Competition
 

Federal Trade Commission
 

601 New Jersey Ave. N.W.
 

Washington, DC 20580
 

Telephone: (202) 326.2192
 

Facsimile: (202) 326-2071
 

5
 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRAE COMMISSION
 

)

In the Matter of ) 

) Docket No. 9327 

Polypore International, Inc. )

a corporation. ) PUBLIC DOCUMENT 

) 

STATEMENT PURSUANT TO SCHEDULING ORDER 

I, Steven A. Dahm, Esq., on behalf of Complaint Counsel, hereby represent that 

Complaint Counsel has conferred with Respondent in an effort in good faith to resolve by 

agreement the issues raised by the instant Motion and have been unable to reach such an 

agreement. Complaint Counsel and Respondent discussed these issues in three telephone 

conversations on October 19,2009 and again over the telephone on October 20,2009. As a result 

of these communications, Complaint Counsel and Respondent are at an impasse with respect to 

the issue raised in Complaint Counsel's Motion. 

Dated: October 20, 2009 Respectfully submitted, 

Steven A. Dahm 

~ 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave. N.W. 

Washington, DC 20580 

Telephone: (202) 326-2192 

Facsimile: (202) 326-2071 
ATTACHMENT A
 

TO 

COMPLAINT COUNSEL'S MOTION TO COMPEL
 

PRODUCTION OF DISCOVERY RESPONSES
 

OCTOBER 20, 2009 

POL YPORE, D. 9327 
UNITED STATES OF ¡-\.MERlCA
 

BEFORE THE fEDEIL"-L TRADE COMMlSSION
 

In theM.alter of ) 

) Docket No, 9327
 

Polypure International, Inc.,
 )
 

a corporation. )
 

COMPLAINT COUNSEL'S THIRD SET OF DOCUMENT REQUESTS TO 

.RESPONDENT POLYPORE INTERNATIONAL, INC. 

Pursuant to Rules 3.3 l and 3.37 of the Rules ofProccdurc of 
 the Federal.Trade 

Commission ("FTC Rules of Practi.ce"). R~spondcnt, Polypore InternationaL, Inc.. is hereby 

requested 10 produce the to.lowing documents for inspection and copying at 601 New Jersey 

Avenue NW, Washington. DC 20580, on Friday, October 23, 2009. O~jectìons 10 any request 

must be made at that time. 

DEFINITIONS 

A. "Polypor~;' "the company," "you," "your," ,md like tenus mean Respooocnti Îls domestic
 

and foreign parents, predecessors, divisions, subsidi.aries, affliates, partnerships, a1id 

joint ventures, and all directors, o.mcers~ employees, .agents and r~preSe111atives uf the
 

f()f~going. "Subsidiary," "affliate;' and "joint venture" refer for this purpose to ¡my
 

person in which there is partial (25 percent or more) or total ownership or control 

between the çompany and any other person. Unless othcrwi~e spèdiled, "Dararnic" 

means Darumic, .LLC and shaH be synonymous with "l)olYPolc," 

B. "'Microporous" means Mìcroporous .Products L.P" its domestic and foreign parents, 

predecessors, divisions, subsidiares, affilates, parnerships, and joint ventures, and all
 

directors, offcers, employet:$, agents and representatives ofthe foregoing. ';Subsidiary:' 
~;afliliatc." and "joint venture" refer lor this purpose to any person in which there i~ 

partal (25 percnt or more) or total ownership or control bchveen the comp,UlY and any
 

other person.
 

C. "Third l)arty" means any person; corpor:te entity; 'partnership~ association; joint venture;
 

state, ièderal or local goyemmental agency, authority or official; rese.arch or ¡rade 

association; or any other entity including hut not .limÍled to Tracy Tang, Amer~Sil B.A., 

Battery Council InternationaL, Bulldog Battery, Inc" C&D Technologies, Inc., EnerSys, 

East Penn, ENTEK International Ltc, Exide Technologies, Inc., Freudenberg 

Kung, 

Johnson Controls, fne" Nippon Sheet Glass Co, Ltd., PricewatcrhonscCoopcrs, LtP. 

Nonwovens, l-lollingswo.rt& Vose Company, fOP Industries, LtC, James 


D. Document:' subject to definition C. below, shall have the broadest mcaning that would be 

applicable under the Federal Rules ofCìvil Pi'ocedure, and includes without limitation 

and shall include, without limitation: writings, work papcrs~ drawings, .graphs, chas, 

'photographs, photQ records, and other data compilations from \vhich information can be 

obtajned~ translated.. if necessary, hy you through detection devices into reasonably usable 

form; any inÜmnation or material of any kind or nature ex.isting on any media. inc.luding 

digitaL analog, electronic. mechanical, opticaL. video or tape recording: ., ':i also m~uns 

information or ties contained or retained on any electronic device. including handheld, 

laptop, desktop Hnd home computer systems, floppy dîsks, CD-ROMs, Zip disks/drives, 

USB and/or any other computerized storage devices; whether or nol those fíles have 

previously been converted to hard-copy format or not, and the original and all drnÜs, 

outlines, proposals, and copies of any such matter (whether or .not actually used)of aH 

kinds and descriptions. hO\vcver. produced or reproduced, whethe.r sc.nt or rcç(,~ii,çd nr 
neither. regardless of w.hcther designated "confidential," "privileged;' or otherwise to 

which you have access or knowledge including, without limitation, all o1Jhe following: 

hard-copy dOCtmicnt&, voice mail messages, back-up voice mails, e-mail messages and 

ties, back-up e-mail.fìlcs, deleted c-maíls, data mes, program 1ies, computer data bases, 

back-up and archival tapes, system ii¡stmy fifes, cache fies, cookies, legacy data sets 

from previous computer environments, correspondence, papers, books. cqmputer discs, 

electronically stored data in any form, accowlts. photographs, ¡igrecments, contracts, 

memoranda, advertising materials. letters, telegrams, objects, reports, records, transcripts, 

studies, notes, notations, working papers, ¡n1m-offce communications. charts, minutes, 

index sheets, computer software and prÌntouts, checks. check stubs, delivery tickets, bils 

of lading, invoices, recordings of telephone or other conversations, comrl11ii.cations, 

occurrences, intc.rvicws and conferences, sound or video recording" and any other 

material upon which Unless otherwise specified, "documcnC ex.cludes (1) bils of lading, 

invoices. purchase orùers, customs declarations, and other similar documents of a purely 

tran.sactional nature, (2) architectural plans and engineering blueprints; and (3) documents 

solely relating to tax, human resources, workplace safety. Qr pension plan issues. 

infonnation can be stored and retrieved. indi.iding all written. recorded, electronically 

stored, traiiscríbed, puiiched, taped, tìmed and graphic matter. 

F "And" and '"or" have both coi~iunctive and disjunctive meanings. 

F. "Complaint" means the Complaint i.ssued by the redi;ntl Trade C()inmis~ion to Po.lyporc 

Intemational, r.ne. in Docket :-0. 9327. 

G. ".Investigation" means any FTC investigation, whether formal or Ínlonnal. public or 

non pubLic involving Polypore or Microporous. 
n. "Polypore mutterl' niçans the investigation conducted by the FTC under Rule N(i.
 

0810131 and this Administrative Proceed¡ng~ D()ckct No. 9327.
 

l. "Separators" means lead acid battery separators made "vith polyethylene or polyethylene
 

and rubber.
 

INST1U;CTIONS 

A. Produce aU documents requested in native fbrrnat, including all mctadMa and äll data 

supPQning Excel worksheets, in which the me e~jsts within the comp~Uly. Each page of:i 

document shall be accompanied by a single-page TIFF image with a com..--ponding tie 

containing the cxtmctcd text from Ùie document, accompaied by a Opiii.tHl Ioadiie. 

Metadata (including the entire root directory for each document) and custodian 

information shall be provided in a delimited ASCII formot. If hardcopy documents ar 

provided. e.lectronically as TIFF image;s, thëy should be accomp¡uúed by OCR 

B. Ifany privilege is claìl1t..J as a ground tor withholding any document responsive to these 

n:.quests, provide a log of information necessary tì.)l the Commission and the 

Administrative. Law Judge to assess the claim of privilege, in accordance with Rule 

3.3 I (c)(2) of the FTC Rules of Practíce, including "\vithout limitation (i) all specific 

grounds tor the claim of 
 privilege; (2) the date, nature, subject, crcator(s), and all 

rccipient(s) of the withheld document;. and (3) each document request to which tle 

withheld document is responsive. 

C. Unless othet'\vise specitìed, provide documents generated from March 13, 2009 to the
 

present. 
D. If any dm:umi.nts requested herein hay!; bet:n lost, discarded~ or destroyed~ the documents 

so lost, discarded, or destroyed. shaH be identified as completely as possible, including, 

without limitation, the following information; date of disposaL. manner of di.sposal~ 

reason tor disposaL. person authorizing the disposal, and the person disposing of the 

document. 

E. The use of the singular form of any word includes the plural and vice versa; and the US~ 

of any tense of any verb should be considered to include also within its meaning aU other 

terms of the verb so used.
 

F If you have any questions, please contact Steven A. Dahrn at (202) 326-2192.
 

DOCUMh'NT REQUESTS
 

Produçe the following:
 

14. All documents related to negoti¡itjolîs with Exide for supply of separators; 

15. AU documents related to purchase orders for, or the purchase ot~ an excess supply 

öfs.epm-ators by Exide; 

) 6. All documents related to E-xide's intent to buy separators from Daramic or any
 

other supplier in the fiiturc~ 

17. AU documents related to J)aramic's proposals, plans. or consideration to_ 

l.8. All documents relatett to any proposed, planned, or considered change in pricing
 

to Exide; 

19. All documents related to Daram.í's. costs, including, but not limited to, raw 

material costs to produce separatols~ 
20. All doçumcnts related to additional costs incurred or that wil be incurred to 

supply to Exide; 

21. All documents related t() Exìde'g alleged purcha.~ing power or la.ck thereof; 

22. All dOCLUhcrtts related to, identified in, or relied upon in preparation of responses
 

to Complaint Cml1sel s third set of interrogatories in this matter, including aU 

subparts; 

23. AU board minutes, presentations, memoranda, agendas. and personal notes of each 

participaiing director for all mceiings of the Polypore board of dilectors; 

24. All IÏnancial statements of Daramic, including, but not limited to, protlt and Joss
 

statements, by manulàcturing facility, customer, or product; 

25. The latest version ofthc AFS database, including all data contained therein. 

Dated: October 16, 2009 Rcspéctfully submìtted, 

~'¿"-:1._--7 

.. .~_...._._- ._...._­ ,. r- __--,.- ..,. ,._.,ø_
 

¿0A/::..' ...-"' 

Stéven A. Dahin 

Bureau of Competìtion 

Federal Trade Commission 

601 New Jersey Ave. \LW. 

Washington, .DC 20580 

Telephone: (202) 326-2192 

Facs.imile: (202) 326-2071 
CERTIF'CATE O.F SERVICE
 

.I hereby certify that on October 16, 2009, r served via electronic mail delivery and first 

class mail two copi.es ofthe foregoing Complaint Counsel~s Third Set of 
 Document Requests to 

Responde.nt Polypore International, Inc. to: 

William L. Rikard, JT., Esq.
 

Eric D. Welsh, .Esq.
 

Parker, Poc, Adams & Bernstein, LL?
 

401 South Tryon Street, Suite 3000
 

Charlotte., North Carolina 28202
 

~jJlj;inl'rika 1:!l~Î¡.ipai'ktq)oç .~9Jl!
 

!:ri£':.d~.biÙHl.r.h.~.nJoe. LO II
 

.' 

~/~'-r--~-:=-­

Steven A. Dahm 

Bureau ùfCompetition 

Federal Trade Commission 

601 New Jersey Ave. N.W. 

Wasington, DC 20580
 

Telephone: (202) 326~2192 

Facsimile: (202) 326~207i 
ATTACHMENTB 

TO
 

COMPLAINT COUNSEL'S MOTION TO COMPEL
 

PRODUCTION OF DISCOVERY RESPONSES
 

OCTOBER 20,2009
 

POL YPORE, D. 9327 
UNITED STATES OF AMERICA 

BEFORE THE FEDERA TRADE COMMISSION 

In the Matter of )
 

) Docket No. 9327
 

Polypore International, Inc.,
 )


a corporation.
 ) 

COMPLAINT COUNSEL'S THIRD SET OF INTERROGATORIES TO 

RESPONDENT POL YPORE INTERNATIONAL. INC. 

Pursuant to the Federal Trade Commission Rules 3.3 i and 3.35, Respondent Polypore 

International, Inc. is hereby requested to anwer the following interrogatories. The requested 

answers must be submitted to 601 New Jersey Avenue NW, Washington, DC 20580, within five 

(5) days. Objections, if any, must be made within five (5) days after service of these 

interrogatories. 

DEFINITIONS 

A. .'Polypore," "the company," "you," or "yours" means Polypore International, Inc., its 

domestic and foreign parents, predecessors, divisions, subsidiaries, affiiates, parerships, and 

joint ventures, and all directors, offcers, employees, agents and r.cpresentatives of the foregoing. 

The terms "subsidiar," "affliate," and "joint venture" refer to any person in which there is 

paral (25 percent or more) or total ownership or control between the company and any other
 

person. 

B. "DaramIc," means Polypore International, Inc., its domestic and foreign parents, 

predecessors, divisions, subsidiaries, affiliates, partnerships, and j oint ventures, and all directors, 

offcers, employees, agents and representatives of the foregoing prIor to the purcha..e of 

Mícroporous Holdings Corporation on February 29, 2008. The terms "subsidiar," "affiiate," 
and "joint venture" refer to any person in which there is partial (25 percent or more) or total 

ownership or control between the company and any other person. 

C. "Microporous" means Microporous Products L.P., its domestic and foreign parents, 

predecessors, divisions, subsidiaries, affiliates, partnerships, and joint ventures, and all directors, 

officers, employees, agents and representatives of 
 the foregoing. The terms "subsidiary," 

"affiiate," and "joint venturer, refer to any person in which there is partial (25 percent or more) or 

total ownership or control between the company and any other person. 

D. "The transaction" means Polypore's purchase of 100% of the stock of 
 Microporous 

Holdings Corporation on Februar 29, 2008. 

E. "Relevant product" or "relevant end use" as used herein means battery separators used for
 

1) deep-cycle, 2) uninterrtible power supply ("UPS"), 3) automotive, or 4) motive applications. 

f'. "Relevant area" means and information shall be provided separately for: (a) North
 

America, (b) Asia, (c) Europe (d) the world. 

G. "Person" includes the company and means any natural person, corporate entity, parnership, 

association, joint venture, governent entity, or trust. 

H. "Sunk costs" means the acquisition costs oftangible and intangible assets necessary to 

manufacture and .sell the relevant product that canot be recoyered through the redeployment of 

these assets for other uses. 

1. "Sales" means net sales, i.e., total sales after deducting discounts, returns, allowances and 

excise taxes. "Sales" includes sales of 
 the relevant product whether manufactured by the 

company itself or purchased from sources outside the company and resold by the company in the 

same manufactured fonn as purchased. 

2 
J. "And" and "or" have both conjunctive and disjunctive meanings.
 

K. "Describe," "state," and "identify" mean to indicate fully and unambiguously each relevant 

fact of which you have knowledge. 

L. 'i 
 Documents" means all computer files and written, recorded, and graphic materials of 

every kind in the possession, custody or control of 
 the company. The term "documents" includes, 

without limitation: electronic mail messages; electronic correspondence and drafts of documents; 

metadata and other bibliographic or historical data describing or relating to documents created, 

revised; or distributed on computer systems; copies of documents that are not identical duplicates 

of the originals in that person's fies; and copies of documents the originals of which are not in 

the possession, custody or control of the company. 

M. "Computer files" includes information stored in, or accessible through, computer or other 

information retrieval systems, including documents stored in personal computers, portable 

computers, workstations, minicomputers, mainframes, servers, backup disks and tapes, archive 

disks and tapes, and other forms of offine storage, whether on or off company premises. 

N. "Plans" means tentative and preliminar proposals, recommendations, or considerations,
 

whether or not finalized or authorized, as well as those that have been adopted. 

O. "Relating to" means in whole or in par constituting, containing, concerning, discussing, 

describing, analyzing, identifYing, or stating. 

P. "Data" means numeric information or infonnation expressed numerically. 

Q. "PE" means polyethylene.
 

R. .'UPS" means uninterrptible power supply.
 

S. "FTC," and "Commission" mean the Federal Trade Commission.
 

3 
T. "State the factual basis" and/or "state all facts" means to state all facts known to
 

Polypore from whatever source that supports the contention asserted by Polypore in 

the Respondenfs Second Motion to Reopen the Hearing Record and to the extent the facts were 

learned from a Third Part, to identifY the Third Party from whom such information was obtained 

and to the extent the facts were leared from documents, to identify the document from which the 

facts were obtained. 

INSTRUCTIONS 

A. These Interrogatories cal for all information (including any information contained in or on 

any document or writing) that is known or available to you, including all information in the 

possession of, or available to, your attorneys, agents, or representatives, or any other person 

acting on your behalf or under your direction or control. 

..~ 

B. Each Interrogatory, including subpars, is to be answered by you separately, completely and 

fully, under oath. If you object to any part of an Interrogatory, set fort the basis for your
 

objection and respond to all pars of 
 the Interrogatory to which you do not object. Any ground 

not stated in an objection within the time provided by the Federal Trade Commission's Rules of 

Practice, or any extensions thereof, shall be waived. All objections must be made with 

particularity and must set forth all the information upon which you intend to rely in response to 

any motion to compeL.
 

C. All objections must state with paricularty whether, and in what maner, the objection is
 

being relied upon as a basis for limiting the response. Jfyou are withholding responsive 

information pursuant to any general objection, you should so expressly indicate. If, in 

responding to any interrogatory~ you claim any ambigilty in interpreting either the Interrogatory 

4 

___________.___u________,_ 
or a definition or instruction applicable thereto, you shall set forth as part of your response the
 

language deemed to be ambiguous and the interpretation used in responding to the Interrogatory, 

and shall respond to the Interrogatory as you interpret it. 

D. If 
 you cannot answer all or par of any Interrogatory after exercising due diligence to secure 

the full information to do so, so state and answer to the fullest extent possible, specifYing your 

inability to answer the remainder; stating whatever information or knowledge you have 

concerning the unanswered portion; and detailing what you did in attempting to secure the 

unown information. 

E. If any privilege is claimed as a ground for not responding to an Interrogatory, provide a
 

privilege log describing the basis for the claim of privilege and all information necessary for the 

Court to assess the claim of privilege, in accordance with Rule 3.3 1 the FTC Rules of (c)(2) of 


Practice. The privilege log shall include the following: (i) specific grounds for the claim of 

privilege; (ii) the date of the privileged communication; (iii) the persons involved in the 

privileged communication; (iv) a description of the subject matter of 
 the privileged 

communication in sufficient detail to assess the claim of privilege; and (v) the Interrogatory to 

which the privileged information is responsive. 

F. Whenever necessary to bring within the scope of an Interrogatory a response that might 

otherwise be construed to be outside Its scope, the followig constructions should be applied: 

1. Construing the terms "and" and "or" in the disjunctive or conjunctive, as necessar, to 

make the Interrogatory more inclusive; 

2. Constring the singular form of any word to include the plural and the plural form to 

include the singular;
 

5 
3. Constniing the past tense of the verb to include the present tense and the present tense to 

include the past tense; 

4. Construing the masculine fonn to include the feminine form; 

5. Construing the term "Date" to mean the exact day, month, and year if ascertainable; if not. 

the closest approximation that can be made by means of relationship to other events, 

locations, or matters; and 

6. Constniíng negative terms to include the positive and vice versa. 

G. Provide data, where requested, in electronic spreadsheet format, formatted in Excel (.xls). 

H. All sales data should be provided in monthly increments. 

i. For all responses provide file layouts and data dictionaries, including, but not limited to, 

definitions of all fields as well as explanations for any codes or abbreviations within data 

sets, and definitions for all product specification codes. 

J. If you have any questions, please contact Stephen Antonio at 202-326-2536. 

INTERROGATORIES 

your contention that "Exide 

decided to move t its P E separator purchases for L to 

42. For each relevant product, state all facts forming the baSis of 


another supplier."
 

43. Identify all efforts by Exíde since June 12,2009 to request excess orders of flooded leadacid battery separators from Daramic. For each such request, identify with specificity the 

orders associated with each relevant product.
 

44. State all facts forming the basis of 
 your contention that "Exide's placed orders f_

_J ofPE separators, amounts to approximately (_1 worth ofPE
 

6
 
separator( s J." 

45. State all facts forming the basis of your contention that "Douglas Gillespie of Exide has 

admitted to Respondent that Exide's recent purchase orders equate to f_J worth 

ofPE separator purchases from Daramic." 

46. With respect to proffer #2, state all facts forming the basis of the proposed offered 

testimony that "(w)ith Exide's purchase orders for more than ) ofPE 

separators from Daramc, Exide does not intend to and will not purchase any additional PE 

separators from Daramic in either f 

47. State all facts regarding conversations, meetings, or emails between DaramIc and Exide
 

from June 12, 2009 to the present related to any requested excess orders of flooded leadacid battery separators and identify: a) who was present; b) each topic of discussion; c) all 

exchanges of information. 

48. With respect to proffer #3, state all facts forming the basis ofthe proposed offered 

testimony that "ri)n light of Exide's apparent decision not to purchase PE separators from 

Daramic in ~_), Daramic will likely have to 

49. Identify by name each individual that was involved in discussions, planing, and/or
 

conducted analysis regarding Daramic's closure of either the Corydon plant or the 

Owensboro plant. For each named person, provide title and type of work or matters 

discussed that he or she engaged in. 

50. State all cost savings expected to be achieved by closing Corydon or Owensboro.
 

51. What is the current capacity utilization rate, net income, and EBITDA year to date for the 

7 
Corydon plant and the Owensboro plant. What percentage of 
 the capacity utilization rate

does Exide's purchases account for at this plant. 

52. With respect to proffer #4, state all facts forming the basis of 
 the proposed offered

testimony that "(i)fDaramic is able to retain any small amount of business from Exide in 

(.), or thereafter, which appears unlikely, Daramic wil only be able to obtain such
 

sales through a f )." 

53. State all facts regarding conversations, meetings, or emails between DaramIc and Exide 

from June 12, 2009 to the present, related to any negotiations relating to Daramic supplying 

Exide with flooded lead-acid battery separators in 2010 and beyond and identify: a) who 

was present; b) each topic of discussion; c) all exchanges of information. 

54. ldentify each and every increase in prices by Polypore to customers in North America in
 

any relevant product since June 12,2009. For each such request to increase price state: 

a. the relevant product;
 

b. the customer; 

c. the current price;
 

d. the proposed change in price; 

e. the reason for the price change; and
 

f the amount of change in price achieved if any.
 

55. State all facts forming the basis of your contention in paragraph 14 of 
 the October 6, 2009

affidavit of Harry D. Seibert and identifY all documents supporting the contention that 

8 
Dated: October 16, 2009 Respectfully submitted, 

~. 

Steven A. Dah 

Complaint Counsel 

Bureau of Competition 

Federal Trade Conuission 

600 Pennylvania Ave, NW (H-374) 

Washington, DC 20580
 

Telephone: (202) 326-2008
 

Facsimile: (202) 326-2214
 

rrobertson~c.gov
 

9
 
CERTIFICATE OF SERVICE 

I hereby certifY that on October 16,2009, I served via electronic mail delivery and first class 

mail two copies of 
 the foregoing Complaint Counsel's Third Set ofInterrogatories to Respondent 

Polypore International, Inc. to: 

Willam L. Rikard, Jr., Esq.
 

Eric D. Welsh, Esq.
 

Parker, Poe, Adams & Bernstein, LLP
 

401 South Tryon Street, Suite 3000
 

Charlotte, Nort Carolina 28202
 

wiliamrikard(êparkerpoe.com
 

ericwelsh~parkerpoe.com
 

//V-z?

Steven A. Dahm 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave. N.W. 

Washington, DC 20580 

Telephone: (202) 326-2192 

Facsimile: (202) 326-2071 

10
 
ATTACHMENT C
 

TO 

COMPLAINT COUNSEL'S MOTION TO COMPEL
 

PRODUCTION OF DISCOVERY RESPONSES
 

OCTOBER 20, 2009 

POL YPORE, D.9327
 
UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

In the Matter 01
 ) 

) Docket No. 9327 

P()lypore International, Inc.,
 )
 a corporation.
 ) 

COMPLAINT COUNSEL'S FIRST REQUEST FOR 
 ADMISSIONS TO 

RESPONDENT POL ¥PORE INTERNATIONAL. INC. 

Pursuat to Rules 3.32 of the Rules of 
 Procedure of 
 the Federal Trade Commssion 

("FTC Rules ofPractice~), Respondent, Polypre Interational, Inc., is hereby requested to 

respond to the following request on Friday, October 23, 2009. Objections to any request must be 

made at that time. 

DEFINITIONS 

A. "Polypore," "'the company," "'you," "your;' and like terms mean Respondent, its domestic
 

and foreIgn parents, predecessors, divisions, subsidiaries, affiliates, partnerships, and 

joint ventures, and all directors, officers, employees, agents and representatives of the 

foregoing. "Subsidiar," "affliate," and 'Soìnt venture" refer for ths purose to any 

person in which there is paral (25 percent or more) or total ownership or control
 

between the company 
 and any other person. Unless otherwise specified, "Daric'~ 

means Daramic, LLC and shall be synonymous with "Polypore." 

B. "Microporous" means Microporous Products L.P., its domestic and foreign parnts, 

predecessors divisions, subsidiares. at1liates, parerships, and joint ventues, and all 

directors, officers, employees, agents and representatives of the foregoing. "Subsidiar, H 

"afliate," and ''joint venture" refer for this purpse to any person in which there is 
partial (25 percent or more) or total ownership or control between the company and any 

other person. 

C. Document,u subject to definition C below~ shall have the broadest meaning that would be 

applicable under the Federal Rules of Civil Procedure, and includes without limitation 

and shall include, without limitation: writings, work papers, drawings~ .graphs, chars, 

'photographs, photo records, and other data compilations from which infonnation can be 

obtained, translated, if necessar, by you though detection devices into reasonably usable 

form; any informaton or materIal of any kind or natue existing on any media, including 

digital, analog, electronic, mechaical, optical, video or tape recording; -d also means 

information or files contained or retaned on any electronic device, including handheld, 

laptop, desktop and home computer systems, floppy disks, CD-ROMs, Zip disks/di:ves, 

USB and/or any other computerized storage devices, whether or not those fies have 

previously been converted to had-copy format or not, and the original and all drafs. 

outlines, proposals, and copies of any such matter (whether or not actually used)of all 

kinds and descriptions, however, produced or reproduced, whether sent or received or 

neither. regardless of whether designated "confdental:' "privileged," or otherwse to 

which you have access or knowledge including, without limitation, all oUhe following: 

hard-copy documents, voice 
 mail messages, back-up voice mails, e-mai messages and 

ties, back-up e-mail files, deleted e-mails, data fies, program fies, computer data bases, 

back-up and archival tapes, system history files, cache files, cookies, legacy data sets 

frm previous computer environments, correspondence, papers, books, computer discs, 

electronically stored data in any form, accounts. photogrphs, agreements, contrcts, 

memoranda, advertisìng materials, letters, telegras, objects. reports, records, transcripts, 
studies, notes, notations~ working papers, intra-offce comniunications, chars, minutes, 

index sheets, computer software and printouts, checks, cheek stubs, delivery tickets, bils 

of lading, invoices, recordings of telephone or other conversations, communications, 

occurrences, intervews and conferences, sotUid or video recording, and any other 

materl upon which Unless otherwise specified, "docinent' excludes (1) bils of lading, 

invoices. purchase orders, customs declarations, and other sImílar documents of a purely 

trsactional nature, (2) architeCtural plans and engineering blueprints; and (3) documents
 

solely relating to tax, human resources, workplace safety, or pension plan issues. 

ilÛormation can be stored and retrieved, including all wrtten, recorded, electronically 

stored, transcribed, punched, taped, fimed and grphic maUer. 

D. "And" and "or" have both conjunctive and disjwictive meanings. 

E. ;'Complaint" mea the Complaint issued by the Federa Trade Commission to Polypore
 

Internationa) Inc. in Docket No. 9327. 

F. "Investigation1' means any FTC investigation, whether formal or infonnal, public or
 

nonpublic involving Polypore or Microporous. 

G. "Polypre mattrll means the investigation conducted by the FTc under Rule No.
 

08 i 0 i 3 i and this Administrative Proceeding, Docket No. 9321. 

H. "Separators" means lead acid battery separators made with polyethylene or polyethylene
 

and rubber. 

i. If 
 you have any questions, please contact Steven A. Dahm at (202) 326-2 i 92. 
REQUESTS FOR ADMISSION
 

1. Admit that Respondent ha no evidence that Exide actualy intends to seek SLI . 

separator supply from any supplier other than Daric or Bntek.; 

2. Admit that Respondent ha no evidence that any PE separator supplier other than 

Bntek and Daramic has made an actual sale in North America; 

3. Admit that Respondent has no plans to file any claim for damages for breach of 

contract by Exide before Januai ), 20) 0; 

4. Admit that Respondent has not passed though to Exide cost decreases, productivity 

improvements or effciency improvements during the time period from Janua 1, 

2000 to the present; 

5. Admit that during the time period from April 1, 2009 to the present, Respondent has 

communicate to Exíde that it could expect 

6_ Admit that during the time period from April 1, 2009 to the present, Respondent has 

communicate to Exide that it could expect 

,

. 

7. Admit that during the tie period from Aprill, 2009 to the present. Respondent has
 

communicated to Exide that it could 

8. Admit that Respondent strctured its response to Exide's RFP in
 
9. Admit that since the record closed Respondent's Daramic division's sales of 

separtors _have been above the average variable cost to produce such 

separators; 

10. Admitthat	 by 

Daramic~ would still be above Daramic~s average variable cost to produce such 

separators; 

11. Admit that Daramic' s supply of all sepaators urdered _ since the record 

closed in trus proceeding are above Daramic's averge varable cost; 

J 2. Admit that Daramic does not know the future demd for separators in Nurth 

America; 

13. Admit that DaramIc does not know when the recession will end; 

14. Admit that the recession wil end; 

15. Admit that Daramic does not know whether the Nort American supply of separtors
 

will exceed the North American demand for separtors in the futur;
 

16. Admit that Daramic 

_ because it wants to eliminate the excess supply of separators in Nort
 

America; 

17. Aòmit that the excess supply of separors in Nort America will cause Nort 

American separator prices to fal; 

18. Admit that a closed separator facilty ca be restarted; 

19. Admit that the machinery to produce separtors frm a closed facilty can be 

relocated to another facilty for the manufacture of separtors. 
Dated: October 16.2009 Respetfully submitted,
 

~-­

/ 

Steven A. Dah 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave. N.W. 

Washington. DC 20580 

Telephone: (202) 326-2192 

FacsImile: (202) 326-2071 
CERTIFICATE OF SERVICE
 

I hereby cerify tht on Octobe 19, 2009, I sered via electronic mail deliver and first 

class mail two copies of 
 the foregoing Complaint Counsel's Request for Admissions to 

Respondent Polypore Intertional, Inc. to; 

Wiliam L. Rikad, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adam & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, Nort Carlina 28202 

wiliamrikard~Darkeivoe. com 

ercwelsh~arkeroe.com 

4;( - ï 'i~t¡ìd~ Lida D. .cuningham~ 

Bureau of Cornpeti1io 

Federal Trade Commi 'on 

601 New Jer~ey Ave. N.W. 

Washington, DC 20580 

Telephone: (202) 326-2638 

Facsimile: (202) 326-2071 

lcunningbamrgc. gOY
 
UNITED STATES OF AMERICA
 

BEFORE THE FEDERAL TRADE COMMISSION
 

)
 In the Matter of
 ) 

) Docket No. 9327 

Polypore International, Inc. )


a corporation.
 ) 

) 

PROPOSED ORDER 

Upon consideration of Complaint Counsel's Motion to Compel Production of 
 Discovery 

Responses, any opposition thereto, and the Court bing fully informed, 

IT is HEREBY ORDERED, that Complaint Counsel's Motion is GRANTED. 

IT is FURTHER ORDERED, that Respondent shall immediately take all necessary steps 

toward producing the requested documents and information by 5:00 pm on Friday, October 23, 

2009. 

D. Michael Chappell 

Administrative Law Judge 

Dated: 
CERTIFICATE OF SERVICE 

I hereby certify that on October 21,2009, I filed via hand and electronic mail delivery an 

original and two copies of the foregoing public version of Complaint Counsel's Motion To 

Compel Production of 
 Discovery Responses with: 

Donald S. Clark, Secretary 

Office of the Secretary 

Federal Trade Commission 

600 Pennsylvania Avenue, NW, Rm. H-159 

Washington, DC 20580 

I hereby certify that on October 21,2009, I filed via hand and electronic mail delivery 

two copies of the foregoing to public version of 
 Complaint Counsel's Motion To Compel 

Production of 
 Discovery Responses with: 

The Honorable D. Michael Chappell
 

Administrative Law Judge 

Federal Trade Commission 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

oali~ftc.goV 

I hereby certify that on October 21, 2008, I filed via electronic and first class mail 

delivery a copy of the foregoing to public version of 
 Complaint Counsel's Motion To Compel 

Production of Discovery Responses with: 

Wiliam L. Rikard, Jr., Esq. 

Eric D. Welsh, Esq. 

Parker, Poe, Adams & Bernstein, LLP 

401 South Tryon Street, Suite 3000 

Charlotte, North Carolina 28202 

wiliamrikard~parkerpoe.com 

ericwelsh~parkerpoe.com 

Linda D. Cunnngh . 

Federal Trade Commission 

600 Pennsylvana Avenue, NW 

Washington, DC 20580 

Telephone: (202) 326-2638 

Icunningham(áftc.goV