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ORIGINAL· 

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. 

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PUBLIC DOCUMENT 

DOCKET NO. 9356 

MOTION OF NON-PARTY MILLERCOORS LLC 

FOR IN CAMERA TREATMENT OF PROPOSED EVIDENCE 

MillerCoors LLC ("MillerCoors") respectfully requests, pursuant to 16 C.F.R. § 3.45(b), 

an order granting in camera treatment of certain documents and testimony that Complaint 

Counsel and Respondents Ardagh Group S.A., Compagnie de Saint-GQbain, and Saint-Gobain 

Containers ("Respondents") have designated for possible introduction in the administrative trial 

in this matter. MillerCoors, which is not a party to the above-captioned matter, produced the 

docwnents at issue in response to subpoenas served on it by Complaint Counsel and Respondents. 

The deposition testimony introduced was subpoenaed by Respondents. 

By Jetter dated November 19,2013, Complaint Counsel notified MillerCoors that it 

intends to introduce into evidence certain documents produced by MillerCoors in response to the 

subpoena; the declaration of Jim Sheehy, MillerCoors' Vice President of Procurement; and 

portions oft~e deposition testimony transcri~,given by MillerCoors employees Jim Sheehy and 

David Kroll (the "Sheehy deposition" -and the 'Kroll deposition"). By letter dated November 19, 

2013, counsel for Respondents likewise advised MillerCoors that Respondents intend to 
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introduce into evidence certain documents and portions of the Sheehy and Kroll deposition 

transcripts. 

The documents identified by the parties and the deposition transcripts have been 

designated as confidential by MillerCoors. With this motion, MillerCoors requests in camera 

treatment of certain of these materials. As demonstrated below, ~e materials that are the subject 

of this motion meet the standard required to justify in camera treatment in this proceeding. 

Information contained in these documents and in the Sheehy deposition transcript is 

competitively sensitive and is held in confidence by MillerCoors. Public disclosure of this 

evidence is likely to cause direct, serious harm to MillerCoors' competitive position. Therefore, 

pursuant to 16 C.F.R. § 3.45(b), MillerCoors respectfully moves for in camera treatment of the 

documents and testimony in question. MillerCoors submits the Declaration of Jim Sheehy, its 

Vice President of Procurement, attached as Exhibit A, in further support of this motion. 

A description of each document identified by Complaint Counsel and counsel for 

Respondents as potential trial exhibits for which MillerCoors·seeks in camera treatment is 

attached Exhibit B. The documents are submitted for in camera review only to the Office of 

Administrative Law Judges, and are identified by exhibit designation both in this motion and in 

the Declaration of Jim Sheehy. Each of the subject documents was treated as "Confidential" 

under the terms of the Protective Order Governing Discovery Material entered in this matter on 

July 1, 2013 ("Protective Order"). Copies of all of the documents, as well as the Sheehy 

deposition transcript, are attached as Exhibit D. 

I. STANDARD FOR IN CAMERA TREATMENT 

The evidence described in this motion warrants in camera treatment as provided by 16 

C.F.R. § 3.45(b). Under 16 C.F.R. § 3.45(b), requests for in camera treatment must show that 

public disclosure of the document in question ''will result in a clearly defined, serious injury to 

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the person or corporation whose records are involved." H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 

1188 (1961 ). That showing of a clearly defined, serious injury can be made by establishing that 

the document in question is "sufficiently secret and sufficiently material to the applicant's 

business that disclosure would result in serious competitive injury." In re General Foods Corp., 

95 F.T.C. 352,355 (1980). 

The following factors should be weighed in considering both secrecy and materiality: (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 (a greater burden is placed on applicant when the information is old); (5) the amount 

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

with which the information could be properly acquired or duplicated by others. See In re BristolMyers Co., 90 F.T.C. 455, 456-57 (1977). In this context, ''the courts have generally attempted to 

protect confidential business information from unnecessary airing." Hood, 58 F.T.C. at 1188. 

A showing of injury may consist of extrinsic evidence or, in certain instances, 

may be inferred from the nature of the documents themselves. In re E./. Dupont de Nemours & 

Co., 97 F.T.C. 116 (1981). Administrative law judges have broad discretion in applying these 

factors to determine whether information warrants in camera treatment. See In re General Foods 

Corp., 95 F.T.C. at 352. Moreover, the Commission has stated that a request for in camera 

treatment by a non-party company to an FTC proceeding (such as MillerCoors) should be given 

"special solicitude." In re Crown Cork & Seal Co., 71 F. T. C. 1 714 ( 1967) (''Petitioner's plea 

warrants special solicitude coming as it does from a third-party bystander in no way involved in 

the proceedings whose records, if in camera treatment is denied, will be open to the scrutiny of 

its competitors."); see also In re Kaiser Aluminum & Chemical Corp., 103 F.T.C. 500 (1984) 

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(requests for in camera treatment by third parties should be given special solicitude because, as a 

policy matter, such treatment encourages the third party to cooperate with future adjudicative 

discovery requests). 

The Commission has also recognized that it may be appropriate to provide in camera 

treatment for certain business records. In re Champion Spark Plug Co., 1982 FTC LEXIS 85, at 

*2 (AprilS, 1982); Hood, 58 F.T.C. at 1188-89; In re Kaiser Aluminum, 103 F.T.C. at 500. 

Where in camera treatment is granted for business records, such as business strategies, 

marketing plans, pricing policies, or sales documents, it is typically provided for two to five 

years. See, e.g., In reUnion Oil Col. ofCal., 2004 FTC LEXIS 223, at *2 (Nov. 22, 2004); In re 

Int'!Ass'n ofConference Interpreters, 1996 FTC LEXIS 298, at *13-14 (June 26, 19?6). 

Indefinite in camera treatment may be granted where the competitive sensitivity or other 

proprietary value of the information will not diminish with the passage oftime. In re Coca Cola 

Co., 1900 F.T.C. LEXIS 364 (Oct. 17, 1990). 

II. THE MILLERCOORS DOCUMENTS AND EXCERPTS OF JIM SHEEHY'S 

DEPOSITION MEET THE STANDARD FOR IN CAMERA TREATMENT 

A. The MilJerCoors Documents Identified in Exhibit B Meet the Standard for In 

Camera Treatment. 

The information contained in each of the documents described in Exhibit B is 

confidential, and disclosure of such information would cause serious competitive it:tjury to 

MillerCoors, thereby meeting the standard set forth by the Commission for in camera treatment. 

In re General Foods Corp., 95 F.T.C. at 355. As detailed in the accompanying Declaration of 

Jim Sheehy, attached as Exhibit A, MillerCoors takes substantial measures to protect the secrecy 

of the information contained in these documents and expends a considerable amount of money 

and effort in creating the information contained in many of these documents. Sheehy Decl., ,, 2, 

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9. Additionally, it would be extremely difficult for MillerCoors' competitors or customers to 

obtain the information contained in the subject documents. Jd at '11 2. 

Each of the documents identified in Exhibit B contains highly sensitive information 

related either to MillerCoors' strategic planning or MillerCoors' source supply contracts for 

packaging materials. Jd at~ 4. Documents containing information relevant to MillerCoors' 

strategic planning initiatives and consumer insights ascertained through research are important to 

MillerCoors' business, competitiveness, and profitability. Were a competitor to know this 

sensitive information, this competitor would gain a significant business advantage at the expense 

of MillerCoors. Moreover, existing or potential packaging suppliers armed with such sensitive 

information regarding MillerCoors' current costs and strategy could use it to their advantage in 

future negotiations with MillerCoors. The disclosure·ofthis critically sensitive information 

would be highly detrimental to MillerCoors as it would provide both the suppliers with whom 

MillerCoors does or may contract and MillerCoors' competitors with sensitive financial and 

strategic information, causing serious and irreparable harm to MillerCoors. Jd at,, 3, 4, 11. 

MillerCoors has taken significant steps to protect the confidential nature of the subject 

documents, all of which were produced under a compulsory subpoena process. MillerCoors 

submitted the subject documents under the protection of the Protective Order issued in this 

matter, designating all such documents as "confidential" either by stamping confidential on all 

such documents or by designating the documents as "confidential" in accompanying 

correspondence, and fully expected that these documents would not be exposed to its customers, 

competitors, or suppliers. Id at '11 2. Furthermore, MillerCoors keeps the information contained in 

the subject documents confidential, and the information is not publicly available. Id. at~ 2, 10. It 

also has taken reasonable measures to protect the confidentiality of the information contained in 

the documents. Jd 

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The documents for which MillerCoors seeks in camera treatment can be separated into 

two categories: (a) strategic planning and consumer insights documents~ and (b) documents 

relating to MillerCoors' costs an? strategy regarding source supply contracts for packaging 

materials. /d. at , 4. 

Strategic Planning and Consumer Insights Documents 

The first category of documents includes DX080, DXI59, DX331, DX454, DX496, 

DX522, PX4041, PX4088, PX4096, PX4097, PX4105, PX4106, PX4107, PX4112, PX4114, 

PX4 I 15, and PX4157. /d. at, 6. The information contained in these documents is highly 

confidential and contains sensitive business analyses. The disclosure ofthis information would 

reveal to MillerCoors' competitors, as well as to its existing and potential suppliers, its future 

plans for strategic growth and new products, as well MillerCoors' perception of the market. /d. 

Further, not all of the products discussed in the strategic planning and consumer insights 

documents have not been launched yet. For example, the ongoing initiative to move from glass 

to PET bottles in singles for certain brands- discussed at length in DX080, DX454, DX496, 

DX522, and PX4041 -will not launch until 2014.Jd. at~ 6. These materials contain competitive 

information that shows MillerCoors' thinlcing for moving forward with the PET bottle initiative. 

While it is public knowledge that MillerCoors is launching the PET bottle in 2014, the reasons 

for and strategy behind the launch should not be public. ld. 

Additionally, the consumer insight reports1 ascertained through proprietary and 

confidential research projects are important to MillerCoors' business and competitive position. 

Ongoing projects, such as work with packaging certain brands in aluminum pints, continue to 

represent a true market advantage for MillerCoors over competing packages. /d. MillerCoors has 

spent a considerable amount of money and effort developing this information, and its 

1 DXI59, DX33 I, PX4088, PX4096, PX4097, PX4105, PX4106, PX4107. PX4112, PX41 14, PX41 15, and PX4157. 

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competitors should not be provided insight into MillerCoors' business strategies and consumer 

research, which are highly confidential and unavailable to the public. See In re Bristol-Meyers 

Co., 90 F.T.C. at 456. 

Documents Relating to MillerCoors' Costs and Strategy Regarding Source Supply 

Contracts for Packaging Materials 

The second category of documents includes DX319, DX327, DX336, DX570, DX660, 

DX722, DX723, DX724, PX4037, PX4057, PX4063, PX4065, PX4614, PX4648, and PX5028. 

Sheehy Dec I., ~ 7. The information contained in these documents is highly confidential and 

sensitive to MillerCoors. The materials include details regarding MillerCoors' current contracts 

with 0-1 for glass bottles and Ball Corporation for metal containers, along with MillerCoors' 

negotiating strategies and views of the market/d. at~ 7. MillerCoors will negotiate new 

contracts with suppliers in the near future, and disclosure of these materials would put it at a 

severe competitive disadvantage during negotiations. Disclosure would give existing and 

potential suppliers an unfair "insider's" perspective ofMillerCoors' financial strengths and 

weaknesses, views of the market for packaging materials and its participants, and its short and 

long term strategy for purchasing packaging materials. /d. 

This category also includes a number of documents MillerCoors created specifically in 

respons_e to this litigation and the preceding FTC investigation. For example, PX5028 is the 

declaration Jim Sheehy provided on June 21, 2013, and reflects MillerCoors' negotiating strategy 

during the most recent bidding process for a glass source supply contract. /d. at~ 7. Additionally, 

DX570 is MillerCoors' response to Specification 1 of the Subpoena it received from the Federal 

Trade Commission. This report was specially prepared in response to the Subpoena, and contains 

proprietary cost information for almost all ofMillerCoors' products. /d. Packaging costs are a 

substantial input cost and are extremely sensitive to MillerCoors. /d. Disclosure of this 

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information to competitors would be highly detrimental to MillerCoors' operations and result in 

a significant loss of business advantage for MillerCoors. !d. 

Based on the above facts, and the support demonstrated in Exhibit A by the Declaration 

of Jim Sheehy, MillerCoors has adequately demonstrated the secrecy and materiality set forth in 

Bristol-Myers, 90 F.T.C. at 456-57, and the documents listed and described in Exhibit B should 

be afforded in camera status. 

B.. Portions of Jim Sh eehy's Deposition Should Be Afforded In Camera 

Tr eatment. 

Complaint Counsel and counsel for Respondents have proposed to introduce into 

evidence specific excerpts from Jim Sheehy's August 29,2013 deposition during the 

administrative law trial. MillerCoors seeks to have certain portions of Mr. Sheehy's deposition, 

itemized in Exhibit C, afforded in camera treatment. The excerpts listed in Exhibit C detail the 

same kinds of information as the documents described above, including MillerCoors' negotiating 

strategies and views of the source supply markets. Sheehy Dec!., at ~ 8. 

Much of the testimony Mr. Sheehy provided concerns PX5028, the declaration he 

provided on June 21, 2013, and details MillerCoors' negotiating strategy during the most recent 

bidding process for a glass source supply contract. !d. As discussed above, MillerCoors will 

negotiate new contracts with suppliers in the near future, and disclosure of this testimony would 

put it at a severe competitive disadvantage during these negotiations. !d. 

Based on the above facts, and the support demonstrated in Exhibit A by the Declaration 

of Jim Sheehy, MillerCoors has adequately demonstrated the secrecy and materiality set forth in 

Bristol-Myers, 90\F.T.C. at 456-57, and the excerpts listed Exhibit C should be afforded in 

camera status. 

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Ill. IN CAMERA TREATMENT SHOULD EXTEND FOR A FIVE YEAR PERIOD 

MillerCoors seeks in camera treatment for the documents identified in Exhibit B and for 

the testimony identified in Exhibit C for a period of five (5) years. As a non-party seeking in 

camera treatment for its confidential business information, MillerCoors' request should be 

treated with "special solicitude." In re Kaiser Aluminum & Chemical Corp., 103 F.T.C. at 500. 

Additionally, reasonable periods of in camera treatment encourage non-parties to cooperate with 

future discovery requests in adjudicative proceedings. !d. At great expense, MillerCoors has 

cooperated with the discovery demands of both parties to this matter, producing two witnesses 

for depositions and thousands of pages of documents over the course of three separate 

productions. 

The documents and testimony for which MillerCoors seeks in camera treatment have 

been made available for use by Complaint Counsel and counsel for Respondents in accordance 

with the terms of the Protective Order. Disclosing documents or testimony containing 

MillerCoors' highly confidential business information will not materially promote the resolution 

of this matter. Instead, disclosure will materially hann MillerCoors and create a loss ofbusiness 

advantage. Thus, the balance of interests weighs in favor of in camera treatment for the 

documents and testimony. See In re Bristol-Myers, 90 F.T.C. at 456-57. 

Further, MillerCoors' request that in camera treatment for the documents be maintained 

for five years is reasonable in light of the fact that the documents qualify as the types of business 

records - business strategies, marketing plans, financial information and costs - for which the 

Commission regularly has granted in camera treatment. Hood, 58 F.T.C. at 1188-89; In re 

Kaiser Aluminum, 103 F.T.C. at 500. Moreover, five years is MillerCoors' reasonable estimate 

of the minimum length of time for the information at issue to potentially become outdated and 

irrelevant, considering that many of the innovations discussed in the documents have not been 

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commercially released, and that the contract terms included are still in effect and up for 

renegotiation soon. Disclosure of this information will create an unreasonable and unnecessary 

risk of competitive harm to MillerCoors such that in camera treatment is necessary for a period 

offive (5) years. 

IV. CONCLUSION 

Accordingly, for the reasons set forth above and in the Declaration of Jim" Sheehy 

submitted in support of this motion, MillerCoors respectfully requests that this Court grant its 

motion directing in camera treatment for the documents listed in and described in Exhibit Band 

for the excerpts from the deposition of Jim Sheehy listed in Exhibit C. 

Dated: December 9, 2013 Respectfully submitted, 

Peter J. Love 

Garrett M. Liskey 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: 202-879-3939 

Fax:202-626-1700 

E-mail: pjlove@jonesday.com 

gmliskey@jonesday .com 

Attorneys for MillerCoors LLC 

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CERTIFICATE OF SERVICE 

I hereby certify that on this 9th day of December, 2013, the foregoing motion was served 

on the following: 

Donald S. Clark 

Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Rm. H-113 

Washington, DC 20580 

Edward Hassi 

James Abell 

(via FTC E-Filing System and hand delivery) 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

ehassi@ftc.gov 

jabell@ftc.gov 

The Honorable D. Michael Chappell 

Administrative Law Judge 

Federal Trade Commission 

600 Permsylvania Ave., NW, Rm. H-110 

Washington, DC 20580 

(via hand delivery) 

(via electronic mail) 

Mark Lanpher 

Jason Swergold 

Shearman & Sterling LLP 

599 Lexington Avenue 

New York, NW 10022 

mark.lanpher@shearman.com 

jason.swergold@shearman.com 

(via electronic mail) 

Peter 

Garrett 

~Itt\ J. 

M. 

Love 

Liskey 

~ ~ 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Tel: 202-879-3939 

Fax: 202-626-1700 

E-mail: pjlove@jonesday.com 

gmliskey@jonesday.com 

Attorneys for MillerCoors LLC 

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EXHIBIT A 

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Documents For Which MillerCoors LLC Seeks In Camera Treatment 

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Excerpts From Jim Sheehy's Deposition For Which 

MillerCoors LLC Seeks In Camera Treatment 

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