ORIGINAL
 . UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the Matter of 

POLYPORE INTERNATIONAL, INC., 

Respondent. 

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Docket No. 9327 

ORDER ON RESPONDENT'S MOTION FOR PROTECTIVE ORDER
 

AND COMPLAINT COUNSEL'S CROSS-MOTION TO COMPEL
 

I. 

On November 3, 2008, Respondent Polypore International, Inc. ("Polypore," "Daramic" 

or "Respondent"), filed a Motion for a Protective Order Regarding Discovery ("Motion"). On 

November 6,2008, Complaint Counsel filed its Response to Respondent's Motion and CrossMotion to Compel Respondent to Comply with Federal Trade Commission Rules ofPractice 

Section 3.33 Seeking Discovery Through Deposition. On November 13,2008, Respondent filed 

its Response to Complaint Counsel's Cross-Motion. 

Respondent's motion seeks to: limit the scope of Complaint Counsel's First Set of 

Interrogatories and First Set of Document Requests; quash or limit the depositions sought of 

individuals previously questioned by Complaint Counsel as part of its pre-complaint 

investigation; and postpone depositions sought by Complaint Counsel until Complaint Counsel 

produces third party documents. 

Complaint Counsel's cross-motion seeks to compel Respondent to make available seven 

previously identified and noticed employees andone former employee for deposition. 

Respondent's response to the cross-motion states that Respondent has been working with 

Complaint Counsel to resolve their objections and to agree upon a mutually acceptable 

deposition schedule. 

For the reasons set forth below, Respondent's motion is GRANTED in part and DENIED 

in part. Complaint Counsel's cross-motion is GRANTED. 

II. 

Parties may obtain discovery to the extent that it may be reasonably expected to yield 

information relevant to the allegations ofthe complaint. 16 C.F.R..§ 3.31 (c)(1). An 
Administrative Law Judge may limit discovery ifthe discovery sought is unreasonably 

cumulative or duplicative, or is obtainable from some other source that is more convenient, less 

burdensome, or less expensive; or ifthe burden and expense ofthe proposed discovery outweigh 

its likely benefit. 16 C.F.R. § 3.31(c). In addition, an Administrative Law Judge may enter a 

protective order to protect a party from undue burden or expense. 16 C.F.R. § 3.31(d). 

A. Interrogatories 

Under the Commission's Rules of Practice, parties may serve upon each other written 

interrogatories, not exceeding 25 in number, including all discrete subparts. 16 C.F.R. § 3.35(a). 

The Scheduling Order entered in this case increased the number of interrogatories to 50. 

Respondent states that the number ofinterrogatories served on it by Complaint Counsel is well 

in excess ofthe 50 interrogatory limitation, ifthe subparts are counted as separate requests. For 

instance, Interrogatory No.5 asks that Polypore, Daramic and Microporous identify all sales by 

relevant product, in each relevant area, with 16 subparts requiring specific information. 

Complaint Counsel's definition ofrelevant product includes four product markets. Complaint 

Counsel's definition of the four relevant areas as North America, Asia, Europe and the World, 

further broadens the scope of discovery sought, urges Respondent. 

Complaint Counsel responds that its First Set of Interrogatories consists of37 separate 

requests and that the related subparts should not be counted as separate requests. Complaint 

Counsel further asserts that each of its interrogatories relates to a unified theme and topic from 

which the subparts naturally flow. 

Both the Commission and the Federal Rules count subparts individually only ifthey are 

"discrete" subparts. Commission Rule 3.35(a); Fed. R. Civ. P. 33(a). Courts have found that a 

subpart is discreet when it is logically or factually independent ofthe question posed by the basic 

interrogatory. Power & Tel. Supply Co. v. Suntrust Banks, Inc., 2004 U.S. Dist. LEXIS 6326, at 

*4 (W.D. Tenn. 2004); Sec. Ins. Co. ofHartfordv. TrustmarkIns. Co., 2003 U.S. Dist. LEXIS 

18196, at *2 (D. Conn. 2003). "Genuine subparts should not be counted as separate 

interrogatories." Kendall v. GES Exposition Serv., Inc., 174 F.R.D. 684, 685 (D. Nev. 1997); 

Banks v. Office ofthe Senate Sergeant-at-Arms, 222 F.R.D. 7, 10 (D.D.C. 2004) (subparts 

related to a single topic are considered part ofthe same interrogatory). Simply asking for data 

elements for the same topic, as Complaint Counsel has done here, does not multiply each data 

element into a separate interrogatory. The interrogatories seeking various data elements for each 

relevant market and in each relevant area are logically or factually subsumed within and 

necessarily related to the primary question. Accordingly, Complaint Counsel has not exceeded 

the allowed number of interrogatories and, on this issue, Respondent's motion for a protective 

order is denied. 

Respondent also charges that Complaint Counsel failed to ensure that it did not seek 

duplicative information previously obtained during the investigatory phase. Respondent asserts 

that Interrogatory No.5, which asks that Polypore, Daramic and Microporous identify all sales 

by relevant product, is substantially duplicative ofthe CID request No.2, but admits that 

Interrogatory No.5 is different in that it seeks Respondent to identify the line from which the 

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sales came, the product code and the customer's parent. Complaint Counsel states that the 

interrogatories ask for nothing more than data elements and that it appears that most are data 

elements from databases uniquely under Respondent's control. 

Pursuant to Rule 3.35(c) ofthe Commission's Rules of Practice: 

Where the answer to an interrogatory may be derived or ascertained from 

the records ofthe party upon whom the interrogatory has been served or 

from an examination, audit or inspection of such records, or from a 

compilation, abstract or summary based thereon, and the burden of 

deriving or ascertaining the answer is substantially the same for the party 

serving the interrogatory as for the party served, it is a sufficient answer to 

such interrogatory to specify the records from which the answer may be 

derived or ascertained and to afford to the party serving the interrogatory 

reasonable opportunity to examine, audit or inspect such records and to 

make copies, compilations, abstracts or summaries. The specification shall 

include sufficient detail to permit the interrogating party to identify 

readily the individual documents from which the answer may be 

ascertained. 

16 C.F.R. § 3.35(c). 

Respondent has not demonstrated that the burden of deriving or ascertaining the answers 

from the documents produced is substantially the same for Complaint Counsel as it is for 

Respondent, with respect to Interrogatory No.5. Absent that showing, Respondent's motion for 

a protective order with regard to that objection to Interrogatory No.5 is denied. 

B.	 Entities to Whom Complaint Counsel's Written Discovery Has Been 

Propounded 

Respondent charges that, in its written discovery, Complaint Counsel's definitions of 

Polypore and Microporous - which extend to foreign parents, predecessors, divisions, 

subsidiaries, affiliates, partnerships, and joint ventures - are extremely broad. Respondent 

further charges that to require Respondent to respond to discovery using Complaint Counsel's 

definitions would be extremely onerous and would require production ofinformation in no way 

related to this proceeding. 

With respect toPolypore's objection that it must search all over the world for discovery 

from its owners or affiliates, Complaint Counsel represents that Polypore's counsel has never 

discussed this issue with Complaint Counsel. Nothing in Respondent's motion or response 

contradicts Complaint Counsel's representation. 

The Scheduling Order in this case requires that each discovery dispute be accompanied 

by a signed statement representing that counsel for the moving party has conferred with 

opposing counsel in an effort in good faith to resolve by agreement the issues raised by the 

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motion and has been unable to reach such an agreement. Scheduling Order at 5. The 

Scheduling Order further directs the parties that motions that fail to include such statement may 

be denied on that ground. 

Complaint Counsel has represented that it would be willing to discuss this issue with 

Respondent. The parties are ordered to confer on this issue before raising it before the 

Administrative Law Judge. In this regard, Respondent's request that the written discovery 

requests be limited to Polypore International, Inc., Daramic LLC and Microporous, L.P., is 

denied without prejudice. 

c.	 Depositions of Individuals Who Have Provided Testimony in Investigational 

Hearings 

Complaint Counsel states that it gave Respondent eight deposition notices on October 22, 

2008. Of the eight individuals noticed, five had previously given testimony at investigational 

hearings involving this matter. Respondent argues that Complaint Counsel should not be 

allowed to engage in duplicative discovery. Respondent urges that, to the extent such 

depositions are permitted, they should be limited to topics not previously covered and to new 

information or new questions related to topics that have previously been covered. 

Complaint Counsel responds that Respondent's position is wrong and fails to 

acknowledge this Administrative Law Judge's ruling in Hoechst Marion Rousell and the 

precedent cited therein. Complaint Counsel states that simply because it has interviewed 

individuals in the investigatory phase ofthis matter does not preclude Complaint Counsel from 

taking depositions in the adjudicative phase ofthis proceeding. Complaint Counsel further 

argues that Respondent's request to limit the scope ofthe questioning ofthese individuals is 

unfounded. 

Whether Complaint Counsel may properly seek to take the depositions ofwitnesses with 

relevant information during the discovery phase of a Part III adjudication where Complaint 

Counsel has previously conducted investigational hearings ofthose witnesses prior to the filing 

of a complaint was previously decided in Hoechst Marion Roussel, Inc., 2000 WL 33596436 

(F.T.C. Oct. 12,2000). 

Simply because the agents of Respondents were examined during the precomplaint investigation does not preclude Complaint Counsel from taking the 

depositions ofthese individuals in accordance with Part III ofthe Commission's 

Rules of Practice. Although the Administrative Law Judge retains the discretion 

to limit discovery if it is unreasonably cumulative or duplicative, and may enter a 

protective order to deny discovery to protect a party from annoyance, oppression 

or undue burden, or to prevent undue delay in the proceeding, 16 C.F.R. § § 

3.31(c), 3.31 (d), those circumstances are not present here. Id. 

This holding is based on Supreme Court and Commission precedent. In United States v. 

Morton Salt Co., 338 U.S. 632,642 (1950), the Supreme Court distinguished the Commission's 

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investigatory power to get information and the judicial power to summon evidence in the course 

oflitigation. See also Hannah et al. v. Larche et al., 363 U.S. 420, 446 (1960) (there is a clear 

distinction between Part II, where the Commission seeks to gain information through 

investigation, and Part III, where the Commission seeks to gain evidence through discovery); 

Linde Thomson Langworthy Kohn & Van Dyke v. Resolution Trust Corp., 5 F.3d 1508, 1513 

(D.C. Cir. 1993) ("Unlike a discovery procedure, an administrative investigation is a proceeding 

distinct from any litigation that may eventually flow from it."). 

The Commission, in explaining differences between the scope of discovery under Part III 

ofthe Commission's Rules ofPractice and an investigation under Part II, has stated: 

. .. [I]t should be manifest that the Commission's rules of practice are intended 

to and do provide for comprehensive pre-complaint investigation. The rules for 

adjudicatory proceedings are intended to embody the Commission's conviction 

that, to the fullest extent practicable, the strategy of surprise and the art of 

concealment will have no place in a Commission proceeding. Hence, we have 

also provided for thorough post complaint discovery procedures.... 

A subpoena, deposition, or order requiring access aimed at obtaining information 

not ordinarily obtainable before issuance ofthe complaint, additional details, or 

an extension ofinformation as to disclosed transactions or events for which 

evidence is to be adduced in support ofthe complaint is manifestly within the' 

bounds of proper pretrial discovery.... There is no provision in the 

Commission's·rules, nor is there any precedent which would, in effect, require 

complaint counsel to have all evidence that he will need prior to the issuance of 

the complaint. ... 

The general rule still remains that an onerous burden would be placed not only on 

the investigator but upon the party or parties investigated ifthe preliminary 

investigation must encompass the gathering of all ofthe details for each and 

every transaction which may eventually become an evidentiary item in a 

subsequent complaint. Many Federal Trade Commission proceedings present 

factual and conceptual complexities. In such cases, complaint counsel may 

properly find, particularly after the issues are refined in a prehearing conference, 

that some additional documentation may be required to round out, extend, or 

supplyfurther details for the particular transactions to be pursued. 

All-State Indus., et al., 72 F.T.C. 1020, 1023-24, 1967 FTC LEXIS 159, *6-10 (Nov. 13, 1967) 

(emphasis in original). 

Respondent's request, that Complaint Counsel be precluded from deposing these five 

individuals, is denied. Complaint Counsel is entitled to depose these witnesses, notwithstanding 

their previous investigational testimony. 

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Respondent's request to limit these depositions to topics not previously covered and to 

new information or new questions related to topics that have previously not been covered is also 

denied. Under the Part III Rules of Practice, discovery may be limited ifit is unreasonably 

cumulative or duplicative, and the Administrative Law Judge may enter a protective order to 

deny discovery to protect a party from annoyance, oppression or undue burden, or to prevent 

undue delay in the proceeding, 16 C.F.R. §§ 3.31(c), 3.31(d). See also In re Chain Pharmacy 

Ass 'n, Inc., et al., 1990 FTC LEXIS 193, *2, 4 (June 20,1990) (ordering respondent to submit to 

depositions and answer questions he claimed had been asked of him during an investigational 

hearing). Respondent has not demonstrated that those circumstances are present here. 

D. Depositions Before Disclosure of Third Party Documents 

Respondent asserts that Complaint Counsel has received numerous documents from third 

parties during the pre-complaint investigation that it has not yet provided to Respondent. Under 

the Protective Order Governing Discovery Material, entered in this case, Complaint Counsel is 

required to provide notice to the third parties of their rights under the Protective Order and that 

their documents will be produced to Respondent. Respondent states that Complaint Counsel has 

scheduled several depositions for dates prior to the date by which Respondent will receive these 

third party documents. Respondent asserts that Respondent's counsel should be entitled to see 

these documents before Complaint Counsel is permitted to engage in these depositions. 

Respondent seeks a protective order postponing the depositions until at least seven business days 

after the third party documents have been produced, or in the alternative, an order preventing 

Complaint Counsel from using such documents in any deposition until at least seven business 

days after the documents to be used have been produced. 

Complaint Counsel states that the only third party material that Complaint Counsel has 

not produced are limited documents from Respondent's owner and from third parties who have 

moved for a protective order. Complaint Counsel further states that none ofthese documents 

can be used in any ofthese depositions pursuant to the Protective Order Governing Discovery 

Material entered in this case. Thus, Complaint Counsel argues, Respondent's argument that it 

needs access to these documents in order to defend the depositions oftheir own employees, who 

cannot see the documents, makes no sense. 

There is no provision in the Commission's rules that requires parties to produce all 

documents prior to depositions. Instead, Rule 3.31 sets forth, "[t]he parties shall, to the greatest 

extent practicable, conduct discovery simultaneously; the fact that a party is conducting 

discovery shall not operate to delay any other party's discovery." 16 C.F.R. § 3.31(a). 

Respondent's motion on this point is granted in part and denied in part. Respondent shall 

produce its employees for deposition regardless of whether these documents have been 

produced. However, to the extent Complaint Counsel wishes to use documents in Complaint 

Counsel's possession to question a deponent, those documents must be produced to Respondent 

at least five business days prior to the deposition. 

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III. 

Complaint Counsel's cross-motion seeks to compel Respondent to make available seven, 

previously identified and noticed employees and one former employee for deposition. 

Complaint Counsel asserts that Respondent only recently agreed to produce two ofthe eight 

witnesses for deposition and has refused to schedule the remainder, including the deposition of 

the corporation or its CEO, Robert Toth, who Complaint Counsel characterizes as a central 

witness in this case. 

Complaint Counsel asserts that it hand-delivered deposition notices and a subpoena ad 

testificandum to Respondent pursuant to Rule 3.33(a) on October 22,2008. According to 

Complaint Counsel, Respondent's counsel indicated to Complaint Counsel that Mr. Toth went 

on a business trip to China after Respondent received notice of his deposition, and that 

Respondent's counsel could not communicate with Mr. Toth until he returned. 

In its response to the cross-motion, Respondent states that it set out its objections to 

Complaint Counsel's notices and has engaged in conversations with Complaint Counsel 

regarding the scheduling ofthe noticed depositions. Respondent asserts that it has not refused to 

produce Mr. Toth for a deposition and has since proposed a specific date for his deposition. 

Parties resisting discovery ofrelevant information carry a heavy burden of showing why 

discovery should be denied. "When the motives behind corporate action are at issue, an 

opposing party usually has to depose those officers and employees who in fact approved and 

administered the particular action." Travelers Rental Co., Inc. v. Ford Motor Co., 116 F.R.D. 

140, 142 (D. Mass. 1987) (allowing depositions of four corporate officials who implemented 

and/or administered plan challenged by plaintiff as anticompetitive on grounds that plaintiffwas 

exploring defendant's motive). Respondent has not met this burden, therefore, Complaint 

Counsel's motion is granted. Accordingly, Respondent shall make Mr. Toth and the remaining 

disputed witnesses available for deposition as soon as practicable. 

ORDERED: ~~c~--- Administrative Law Judge 

Date: November 14, 2008 

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