the Matter of 

McWANE, INC., 

a corporation, and 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

DOCKETNO. 9351 

STAR PIPE PRODUCTS, LTD., 

a limited partnership, 

Chief Administrative Law Judge 

D. Michael Chappell 

Respondents. 

MOTION OF NON-PARTY GRIFFIN PIPE PRODUCTS 

FOR IN CAMERA TREATMENT OF PROPOSED EVIDENCE 

Griffin Pipe Products ("GPP") respectfully requests that this Court grant in camera 

treatment of documents and testimony that Complaint Counsel and Respondent McWane, Inc's 

Counsel have designated for possible introduction in the administrative trial in this matter. GPP, 

which is not a party to the above-captioned action, produced the documents at issue in response 

to a subpoena served on it by Complaint Counsel. The deposition testimony sought to be 

introduced was subpoenaed by Respondent McWane, Inc. 

By letter dated July 17, 2012, Complaint Counsel notified GPP that it intends to introduce 

into evidence two documents produced by GPP in response to the subpoena and portions of the 

transcript oftestimony given by Douglas Kuhrts, GPP's National Customer Service Manager, in 

a deposition (the "Kuhrts deposition"). By letter dated July 17, 2012, counsel for Respondent 

McWane, Inc. likewise advised GPP that Respondent McWane, Inc. intends to introduce into 

evidence one of the two documents designated by Complaint Counsel and the Kuhrts deposition 

transcript in its entirety. 

09 24 2012 
The documents designated by the Parties and the Kuhrts deposition transcript have been 

designated as confidential by GPP. As demonstrated below, this evidence meets the standard 

required to justify indefinite in camera treatment in this proceeding. Information contained in 

these documents and in the Kuhrts deposition transcript is competitively sensitive and is held in 

confidence by GPP. Public disclosure of this evidence is likely to cause direct, serious harm to 

GPP's competitive position. Therefore, pursuant to 16 C.F.R. § 3.45(b), GPP respectfully moves 

for indefinite in camera treatment of the documents and testimony in question. GPP submits the 

Declaration of Mark Ayres, its Controller, attached hereto as Exhibit A, in further support of 

this Motion. 

The GPP documents designated for introduction into evidence by Complaint Counsel 

have been marked as Exhibit Numbers CX 2258 and CX 2259. The Kuhrts deposition transcript 

has been marked as CX 2508. Respondent McWane, Inc.'s Counsel has designated a single 

document by bates-number and the Kuhrts deposition transcript by name and date. The batesnumber of the document designated by Respondent McWane Inc.'s Counsel corresponds to CX 

2258. Respondent McWane Inc.'s designated evidence for which GPP seeks in camera 

treatment is listed on Exhibit B to this Motion. Copies of all of these documents are attached 

hereto as Exhibit C. 

I. APPLICABLE LEGAL STANDARD 

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 demonstrate 

that public disclosure of the evidence at issue "will result in a clearly defined, serious injury to 

the person or corporation whose records are involved." HP. 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 information in question is "sufficiently secret and sufficiently material to the applicant's 

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

95 F.T.C. 352, 355 (1980). In this context, "the courts have generally attempted to protect 

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

The secrecy and materiality of the documents in questions are evaluated according to the 

following standards articulated by the Commission in In re Bristol-Meyers Co., 90 F.T.C. 455, 

456 (1977): 

(I) 	 the extent to which the information is known outside the applicant's 

business; 

(2) 	 the extent to which the information is known by employees and others 

involved in the applicant's business; 

(3) 	 the extent of measures taken by the applicant to guard the secrecy of the 

information; 

(4) 	 the value of the information to the applicant and its competitors; 

(5) 	 the amount of effort or money expended by the party in developing the 

information; and 

(6) 	 the ease of difficulty with which the information could be properly 

acquired or duplicated by others. (Id.) 

A non-party requesting in camera treatment deserves "special solicitude" for its confidential 

business information. In the Matter of Kaiser Aluminum & Chemical Corp., 103 F.T.C. 500 

(1984) (order directing in camera treatment for sales statistics over five years old); In the Matter 

o.fGeneral Foods Corp., 96 F.T.C. 168, 169 n.4 (1980) (order noting that "[r]ecent sales and 

profit data generally suggest themselves as being both secret and material to the firm 

concerned"). Indefinite in camera treatment may be granted where the competitive sensitivity or 

other proprietary value of the information will not diminish with the passage of time. In re Coca 

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

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II. 	 GPP'S CONFIDENTIAL DOCUMENTS AND TESTIMONY WARRANT IN 

CAMERA TREATMENT UNDER THE FEDERAL TRADE COMMISSION'S 

RULES OF PRACTICE. 

A. 	 Description of Documents and Testimony and Nature of Confidential 

Information Designated By Complaint Counsel 

ex 2258 

ex 2258 is a spreadsheet 

As a result, public disclosure of this information would result in significant 

damage to GPP's commercial interests. 

ex 2259 

ex 2259 is a spreadsheet 

As 

a result, public disclosure of this document would cause substantial damage to GPP's 

commercial interests. 

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Excerpts from CX 2508 

CX 2508 is the complete transcript ofthe deposition testimony of Douglas Kuhrts, which 

was taken on May 24, 2012. Ayres Declaration at ~ 5. Complaint Counsel has designated 

specific page/line portions of the Kuhrts deposition transcript. If the transcript is not offered or 

admitted in its entirety, GPP requests in camera treatment of the following specifically 

designated sections of the transcript, all of which reflect competitively sensitive and non-public 

information: 

f 

B. 	 Description of Documents and Testimony and Nature of Confidential 

Information Designated By Respondent McWane, Inc. 

GPP-FTGS0002384 

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The bates-number of this document is identical to the bates-number of the document 

designated by Complaint Counsel as CX 2258. Ayres Declaration at~ 4. As noted above, public 

disclosure ofCX 2258 would result in significant damage to GPP's commercial interests. (!d.) 

ex 2508 

GPP understands that Respondent McWane, Inc. has designated the entirety ofthe Kuhrts 

deposition transcript, which is eighty-nine pages long. The transcript as a whole should be 

afforded in camera treatment because numerous and extensive portions of the transcript include 

highly sensitive and confidential information. Ayres Declaration at~~ 5. If the Kuhrts deposition 

transcript is not offered or admitted in its entirety, in addition to its above-described request for 

in camera treatment of the excerpts designated by Complaint Counsel, GPP requests in camera 

treatment of the following sections of the transcript, all of which reflect competitively sensitive 

and non-public information: 

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C. 	 GPP Has Preserved the Secrecy and Confidentiality of the Information in the 

Documents and Testimony. 

The information contained in the documents and testimony described above is maintained 

as confidential by GPP. Ayres Declaration at ~ 6. In a letter accompanying the document 

production including documents designated by Complaint Counsel as CX 2258 and CX 2259, 

GPP explicitly stated that these documents were highly confidential and proprietary to GPP. 

Further, GPP stated that any disclosure of these documents would be of serious concern to GPP, 

and requested confidential treatment of the documents. 

Thus, the information contained in the documents and testimony for which GPP 

seeks in camera treatment is not known outside GPP and could not be easily acquired by others. 

D. 	 The Public Interest in Disclosure is Outweighed by the Likelihood of Serious 

Competitive Harm to GPP. 

As a non-party requesting in camera treatment for its confidential business information, 

GPP justifiably requires and merits receiving "special solicitude." In the Matter of Kaiser 

Aluminum & Chemical Corp., 103 F.T.C. 500 (1984) (order directing in camera treatment for 

sales statistics over five years old). In camera treatment encourages non-parties to cooperate 

with future discovery requests in adjudicative proceedings. Id. GPP has cooperated with the 

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discovery demands in this case. Disclosing documents and testimony containing GPP's highly 

confidential information will not materially promote the resolution ofthis matter, nor will these 

documents and testimony lend measureable public understanding of these proceedings. The 

balance of interests clearly favors in camera protection for the documents and testimony at issue 

in this Motion. 

E. Protection Should be Extended Indefinitely 

The highly confidential information in the designated documents and testimony warrants 

indefinite in camera treatment. Indefinite in camera treatment may be granted where the 

competitive sensitivity or the proprietary value of the information will not diminish with the 

passage oftime. In re Coca Cola Co., 1990 F.T.C. LEXIS 364 (Oct. 17, 1990). Unlike ordinary 

business records, which often receive in camera treatment for shortened periods of time, 

are extremely sensitive and are of 

such enduring and significant proprietary value to GPP's competitive position that their value 

will not diminish with the passage oftime. 

III. CONCLUSION 

Under the Federal Trade Commission's Rules of Practice and relevant FTC precedent, 

indefinite in camera treatment of documents designated as Exhibit No. CX 2258 and Exhibit No. 

CX 2259 and testimony designated as Exhibit No. CX 2508 (alternate designations in Exhibit B) 

is warranted. GPP respectfully requests in camera treatment of these documents and testimony 

indefinitely. 

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Dated: July 27,2012 Respectfully submitted, 

James H. Mutchnik, P.C. 

Elizabeth R. Sheyn 

KIRKLAND & ELLIS LLP 

300 N. LaSalle Street 


Chicago, IL 60654 


Telephone: (312) 862-2000 


Facsimile: (312) 862-2200 


Attorney for Griffin Pipe Products 

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