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05 07 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) 

) PUBLIC 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. ) 

__________________________________________) 

COMPLAINT COUNSEL’S OPPOSITION TO MCWANE, INC.’S 

MOTION TO COMPEL COMPLAINT COUNSEL’S ANSWERS TO 

INTERROGATORY NOS. 16-23 

Introduction 

McWane, Inc.’s Motion to Compel Complaint Counsel’s Answers to Interrogatory 

Nos. 16-23 (“Respondent’s Motion”) is based on a flawed application of the standard for 

counting discrete subparts of interrogatories, and should be denied. While an overly rigid 

approach to counting subparts is not recommended, the rules purposefully count discrete 

subparts as separate interrogatories in order to prevent parties from evading the numerical limits 

on interrogatories. 

Both parties agree that a subpart is “discrete when it is logically or factually independent 

of the question posed by the basic interrogatory.” See Order Granting Complaint Counsel’s 

Motion to Compel Respondent’s Answers to Interrogatories, at * 1-2 (Apr. 16, 2012) (“April 

Order”) (citing In re Dynamic Health of Florida, 2004 FTC LEXIS 254 (Dec 9, 2004)); Kendall 

v. GES Exposition Svcs., Inc., 174 FRD 684, 685 (D. Nev. 1997) (explaining that a subpart is 

discrete if the subsequent question can “stand alone” and be answered independently of the 

primary question). When this standard is properly applied, McWane’s First Set of 
 

                                                            

 

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Interrogatories (“Respondent’s Interrogatories”) exceeds the 25 interrogatory limit imposed by 

Paragraph 10 of this Court’s February 15, 2012 Scheduling Order. Accordingly, Complaint 

Counsel should not be required to answer any additional interrogatories.1 See Holleran 

Declaration at paragraph 3. 

Analysis 

On the first day of discovery, Respondent served contention interrogatories -- formally 

numbered 1 through 23 -- that asked Complaint Counsel to identify “all facts” supporting, 

refuting, or otherwise relating to allegations in the Complaint. Importantly, this type of 

interrogatory is universally condemned by courts as overly broad and unduly burdensome.

2 As 

discussed further below with respect to Interrogatory Nos. 2, 3, 5 and 10, these interrogatories 

also contain numerous subparts in that they seek information about separate elements of the 

claims in the Complaint, distinct allegations of alleged misconduct, and otherwise separate and 

independent inquiries that “stand alone” from the primary question in the interrogatory. 

Interrogatory No. 2 

Interrogatory No. 2 contains three discrete subparts that seek “all facts” that support, 

refute or otherwise relate to Complaint Counsel’s contentions relating to: 1) a relevant product 

market for domestically-produced ductile iron fittings; 2) a relevant geographic market; and 

1

 Notably, Complaint Counsel offered Respondent the opportunity to withdraw and re-submit their 

discovery requests and/or to prioritize which requests Complaint Counsel would answer first. Counsel for 

Respondent rejected this offer and stated that it wanted Complaint Counsel to answer the requests as 

written, and in the order in which they were presented. Complaint Counsel’s answers followed 

Respondent’s desired approach. 

2 See, e.g., In re Dynamic Health of Florida, 2004 FTC LEXIS 254, at *3 (Dec. 9, 2004) (striking similar 

interrogatory as overly broad); Lucero v. Valdez, 240 F.R.D. 591, 594 (D. N.M. 2007) (“Contention 

interrogatories that systematically track all of the allegations in an opposing party’s pleadings, and that 

ask for ‘each and every fact’ and application of law to fact that supports the parties allegations, are an 

abuse of the discovery process because they are overly broad and unduly burdensome.”); Lawrence v. 

First Kansas Bank & Trust Co., 169 F.R.D. 657, 662-63 (D. Kan. 1996) (finding similar interrogatory to 

place “an unreasonable burden upon the party who must answer them”). In an effort to promote the 

interests of discovery, Complaint Counsel nevertheless agreed to answer these interrogatories as 

appropriate. 

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3) an ARRA-specific submarket. See Exh. A to Respondent’s Motion (Complaint Counsel’s 

Objections and Responses to McWane, Inc.’s First Set of Interrogatories) (“CC’s Interrogatory 

Answers”).3 See Holleran Declaration at paragraph 4. This conservative count combines 

Respondent’s requests for information that support, that refute, or that otherwise relate to the 

above inquiries, and also combines the specific types of information Respondent requested 

regarding an ARRA-specific submarket. Respondent does not dispute that this interrogatory 

seeks all of the above information, but nevertheless insists that it should count as a single 

interrogatory because it seeks information related to a “common theme,” i.e., a relevant market. 

See Motion at 5-6. Courts have uniformly rejected this approach. 

For example, in Security Ins. Co. of Hartford v. Trustmark Ins. Co., the district court 

ruled that an interrogatory seeking the basis for the plaintiff’s claim for common law fraud had 

three discrete subparts, one for each element of the fraud claim that was in dispute. 2003 U.S 

Dist. LEXIS 18196, at *4-5 (D. Conn. 2003). The court rejected the party’s argument that the 

“common theme” of fraud could define the scope of a single interrogatory, reasoning that such 

an “expansive” interpretation of the permissible scope of an interrogatory would allow a party to 

pose “interrogatories requiring that the opposing party describe in detail all evidence supporting 

the allegations in Count X. Under no theory would such an interrogatory be appropriate.” Id. 

at *5 (emphasis added). 

Likewise here, it is well-settled law that a relevant market is comprised of two distinct 

elements: i) a relevant product market; and ii) a relevant geographic market. See, e.g., Brown 

3 During meet and confer discussions, Respondent asserted that this interrogatory contained two subparts: 

one seeking information related to the relevant product market and one seeking information related to the 

relevant geographic market. See Exh. E to Respondent’s Motion (L. Holleran Letter. to W. Lavery, dated 

Apr. 25, 2012) (“Holleran Letter”). In a good faith effort to minimize the discovery dispute, Complaint 

Counsel had been willing to adopt this approach. Respondent’s motion papers, however, reject this 

agreement by now contending that this interrogatory represents a single interrogatory; therefore 

Complaint Counsel retains its original (and proper) count of three subparts. 

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Shoe Co. v. United States, 370 U.S. 294, 324 (1962). Put differently, defining a relevant 

geographic market is an inquiry that is factually and legally independent from defining a relevant 

product market. Id.; see also Antitrust Law Developments at 571 et seq. (7th ed. 2012) 

(discussing factual and legal standards for establishing relevant product markets); and id. at 613 

et seq. (discussing different factual and legal standards for establishing relevant geographic 

markets). Likewise, submarkets are considered to be a separate and distinct from any larger 

market in which they may be contained, and therefore also represent a factually and legally 

independent inquiry. See Brown Shoe, 370 U.S. at 325; FTC v. Staples, Inc., 970 F. Supp. 1066 

(D.D.C. 1997) (office supply superstores is a submarket within larger market for sale of office 

products); see also Collaboration Properties, Inc. v. Polycom, Inc., 224 F.R.D. 473, 475 (N.D. 

Cal. 2004) (ruling that a single interrogatory seeking the same information for multiple products 

contained discrete subparts for each product). Accordingly, Interrogatory No. 2 is properly 

counted as containing three distinct subparts. 

Interrogatory No. 3 

Interrogatory No. 3 contains three discrete subparts that seek “all facts” establishing, 

refuting, or otherwise relating to Complaint Counsel’s contentions that Respondent: i) possesses 

market power or monopoly power; ii) unlawfully exercised this power through its exclusive 

dealing policy; and iii) unlawfully exercised this power by entering into a Master Distribution 

Agreement (“MDA”) with its competitor, Sigma, Inc. See Exh. E of Respondent’s Motion 

(Holleran Ltr). The interrogatory specifically calls for information related to Complaint 

Counsel’s contention that Respondent unlawfully exercised its monopoly power, which is set 

forth in Paragraphs 46 through 61 of the Complaint. These Paragraphs specifically allege that 

Respondent unlawfully exercised monopoly power through two distinct courses of conduct: 

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i) implementing an exclusive dealing policy, which had multiple components; and ii) entering 

into a Master Distributor Agreement (“MDA”) with its competitor, Sigma, Inc. See Complaint 

¶¶ 46-61. Respondent does not contest that this interrogatory seeks all of the above information, 

but instead asserts that the possession and exercise of monopoly power are “inherently 

intertwined,” and that they therefore relate to a common theme and a single interrogatory. See 

Motion at 4. 

In fact, the possession of monopoly power and the exercise of monopoly power are 

separate elements of a monopolization claim, and should therefore be counted as two discrete 

subparts. See United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966) (holding that the 

elements of a monopolization claim are: i) the possession of monopoly power; and ii) the 

unlawful exercise of monopoly power); see also Trustmark, 2003 U.S Dist. LEXIS 18196, at *4­

5 (counting each element of a claim as a discrete subpart). 

Moreover, courts are clear that an interrogatory that asks the same question across 

multiple, distinct subjects or allegations constitutes multiple discrete subparts. For example, in 

New Colt Holding Corp. v. RIG Holdings of Fla., Inc., the plaintiff argued that it had issued a 

single interrogatory that sought information about the defendant’s trade dress infringement 

contention. 2003 U.S. Dist LEXIS 17930, at *4-5 (D. Conn. Feb. 6, 2003). The district court 

rejected this argument because the interrogatory asked about the trade dress infringement 

contention as it applied to multiple, distinct products. Id. (ruling that contention interrogatory 

asking for comparisons of multiple distinct revolvers to the subject revolver “cannot be read as a 

single question”). The court reasoned that characterizing such a question as a single 

interrogatory “would sanction unlimited subparts tied only by a legal theory. It would 

effectively eliminate any presumptive limitation on interrogatories by the use of subparts and 

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will not be permitted.” Id. (emphasis added); see also Bujnicki v. Am. Paving & Excavating, 

Inc., 2004 U.S. Dist. LEXIS 8869, at *24 (W.D.N.Y. 2004) (counting discrete subparts for each 

affirmative defense in an interrogatory that sought factual basis for each of the defendant’s 

affirmative defense); Polycom, 224 F.R.D. at 475 (same). 

Because Interrogatory No. 3 seeks information relating to Complaint Counsel’s 

contentions that i) Respondent possesses monopoly power; ii) that Respondent unlawfully 

exercised this monopoly power through its exclusive dealing policy, and iii) that Respondent 

unlawfully exercised this monopoly power through the Sigma MDA agreement, it is properly 

counted as containing three discrete subparts. 

Interrogatory No. 5 

Interrogatory No. 5 is a wide-ranging interrogatory that propounds four distinct inquiries 

concerning consumer harm across each of the seven causes of action alleged in the Complaint. 

As discussed above, seeking the same information across multiple allegations represents a 

discrete subpart for each allegation. See New Colt Holding Corp., 2003 U.S. Dist LEXIS 17930, 

at *4-5; Bujnicki, 2004 U.S. Dist. LEXIS 8869, at *24; Polycom, 224 F.R.D. at 475. 

Moreover, this interrogatory contains four distinct inquiries, representing four discrete 

subparts, into “all facts” establishing, refuting, or otherwise relating to Complaint Counsel’s 

contentions regarding: i) consumer injury from McWane’s anticompetitive conduct; ii) the 

ability of consumers to reasonably avoid the harm; iii) any alleged countervailing benefits to 

consumers from McWane’s anticompetitive conduct; and iv) the likelihood of the alleged 

anticompetitive conduct or any resulting harm to recur in the future. Complaint Counsel’s 

Interrogatory Answers conservatively counted this interrogatory as comprising four discrete 

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subparts. However, a more accurate count would yield 28 discrete subparts -- these four discrete 

subparts multiplied across each of the Complaint’s seven counts. 

Respondent does not dispute that this interrogatory seeks all of the above information, 

but simply states that this should count as a single interrogatory because it deals with the primary 

question of consumer injury. In so arguing, Respondent fails to take into account that the 

interrogatory seeks the same information across the seven distinct counts of the Complaint, 

thereby automatically representing seven discrete subparts. It also fails to distinguish between 

interrogatories that merely ask for bits of information about the same topic -- such as the date, 

time and place of a communication, whose subparts would be meaningless without reference to 

the primary question regarding communications – and discrete inquiries that can stand alone and 

be understood without reference to the prior question. See Kendall, 174 FRD at 685; see also 2­

15 Moore’s Federal Practice & Procedure §15.25(3)(b) (2011) (“if a question “can be answered 

independently from the primary question, that subpart must be counted as a separate 

interrogatory”). 

For example, in In re Dynamic Healthcare, the ALJ counted two discrete subparts for an 

interrogatory that 1) asked to identify individuals involved in the dietary supplement business 

and their role; and 2) requested information about their compensation. 2004 FTC LEXIS 254, at 

*2-3. Likewise here, the questions of Complaint Counsel’s contentions regarding whether 

consumers were injured (by each and every allegation of misconduct), whether consumers could 

have avoided being injured (from each and every allegation of misconduct), whether consumers 

received any countervailing benefits (from each and every allegation of misconduct), and 

whether Complaint Counsel contends that the harm (from each and every allegation of 

misconduct) is ongoing or likely to recur, can all stand alone and be understood without 

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reference to any other inquiry in the interrogatory. As such, these inquiries are properly counted 

as discrete subparts. 

Interrogatory No. 10 

Interrogatory No. 10 contains three discrete subparts that seek “all facts” supporting, 

refuting or otherwise relating to Complaint Counsel’s contentions regarding: i) the balance of 

harm and any alleged efficiencies related to McWane’s Domestic Rebate Policy; ii) the balance 

of harm and any alleged efficiencies related to McWane’s participation in DIFRA; and iii) the 

balance of harm and any alleged efficiencies related to the Sigma MDA. Respondent’s argument 

that the interrogatory represents a single question – whether McWane’s Domestic Rebate Policy, 

participation in DIFRA, and Sigma MDA agreement harmed consumers on balance – is without 

merit. As already discussed, an interrogatory that seeks the same information across distinct 

allegations or subjects – here, McWane’s Domestic Rebate Policy (i.e., exclusive dealing 

policy), McWane’s participation in DIFRA, and the MDA agreement between McWane and 

Sigma – should be counted as three discrete subparts. See, e.g., See New Colt Holding Corp., 

2003 U.S. Dist. LEXIS 17930, at *4-5; Bujnicki, 2004 U.S. Dist. LEXIS 8869, at *24; Polycom, 

224 F.R.D. at 475. 

Interrogatory Nos. 16-23 

Finally, it should be noted that Respondent’s Motion assumes that Interrogatory Nos. 16­

23 should each count as a single interrogatory. This simply is not the case. For example, 

Interrogatory No. 16 asks for Complaint Counsel’s contentions regarding whether the alleged 

misconduct is ongoing or likely to recur across all of the counts of the Complaint. Accordingly, 

should this Court determine that any additional interrogatories need to be answered, Complaint 

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Counsel respectfully requests the Court to take into account the discrete subparts contained in 

any such additional interrogatories. 

Conclusion 

Because the true count of discrete subparts in Respondent’s Interrogatories is greater than 

the conservative count used by Complaint Counsel in its Interrogatory Answers, and because 

Complaint Counsel has already answered at least 25 interrogatories, Complaint Counsel 

respectfully requests that this Court deny Respondent’s Motion. 

Dated: May 7, 2012 Respectfully submitted, 

 s/ Thomas H. Brock 

Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael J. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq.

 Monica M. Castillo, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

 Telephone: (202) 326-2470 

 Facsimile: (202) 326-3496 

 Electronic Mail: ehassi@ftc.gov 

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__________________________________________ 

 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) PUBLIC 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and )
 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. )
 

__________________________________________) 

DECLARATION OF LINDA M. HOLLERAN 

Pursuant to 28 U.S.C. § 1746, I make the following statement: 

1.	 My name is Linda M. Holleran. I am making this statement in In the Matter of McWane, 

Inc. and Star Pipe Products, LTD, FTC Docket No. 9351. All statements in this 

Declaration are based on my personal knowledge as Attorney for the U.S. Federal Trade 

Commission, Bureau of Competition, or, if so-indicated, on information and belief. 

2.	 This Declaration responds to claims made in Respondent, McWane’s Motion to Compel 

Complaint Counsel’s Answers to Interrogatory Nos. 16-23 that was filed on April 30, 

2012 (“Motion to Compel”). 

3.	 Complaint Counsel participated in several meet and confer discussions to discuss 

discovery-related issues with Respondent. During one call that occurred shortly after 

Respondent served its discovery requests upon Complaint Counsel, Complaint Counsel 

offered Respondent the opportunity to withdraw and re-submit their discovery requests, 

or, in the alternative, to prioritize which requests Complaint Counsel would answer first. 

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Counsel for Respondent rejected this offer and stated that it wanted Complaint Counsel to 

answer the requests as written, and in the order in which they were presented. Complaint 

Counsel’s answers followed Respondent’s desired approach. 

4.	 During meet and confer discussions immediately preceding Respondent’s filing of the 

instant motion, Respondent asserted that Interrogatory No. 2 contained two subparts: one 

seeking information related to the relevant product market and one seeking information 

related to the relevant geographic market. See Exh. E to Respondent’s Motion (L. 

Holleran Letter. to W. Lavery, dated Apr. 25, 2012). In a good faith effort to minimize 

the discovery dispute, Complaint Counsel had been willing to adopt Respondent’s 

approach as a compromise. Respondent’s motion papers, however, reject this 

compromise proposal by now contending that this interrogatory represents a single 

interrogatory; therefore Complaint Counsel retains its original (and proper) count of three 

subparts: 1) a relevant product market for domestically-produced ductile iron fittings; 

2) a relevant geographic market; and 3) an ARRA-specific sub-market. 

Pursuant to 28 U.S.C. § 1746, I declare, under the penalty of perjury, that the foregoing is 

true and correct to the best of my knowledge, information, and belief. 

 Respectfully submitted, 

 s/ Linda M. Holleran 

 Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

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CERTIFICATE OF SERVICE 

I hereby certify that on May 7, 2012, I filed the foregoing document electronically using 

the FTC’s E-Filing System, which will send notification of such filing to: 

Donald S. Clark 

Secretary 

 Federal Trade Commission 

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

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

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

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

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tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

Gregory S.C. Huffman 

William Katz 

Nicole Williams 

Brian Stoltz 

Thompson and Knight LLP 

One Arts Plaza 

1722 Routh Street, Suite 1500 

Dallas, TX 75201 

(214) 969-1700 

Gregory.Huffman@tklaw.com 

William.Katz@tklaw.com 

Nicole.Williams@tklaw.com 

Brian.Stoltz@tklaw.com 

Counsel for Respondent Star Pipe Products, Ltd. 

CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true and 

correct copy of the paper original and that I possess a paper original of the signed document that 

is available for review by the parties and the adjudicator. 

May 7, 2012 By: s/ Thomas H. Brock 

Attorney 

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