__________________________________________ 

 

 

 

 

 

09 05 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC

 ) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent. ) 

__________________________________________) 

COMPLAINT COUNSEL’S RESPONSE IN OPPOSITION TO MOTION 

OF NON-PARTY SIGMA CORPORATION TO QUASH SUBPOENA 

Sigma Corporation’s Motion to Quash Complaint Counsel’s Subpoena (“Motion”) should 

be denied. Complaint Counsel has been meeting and conferring with counsel for Sigma since 

July 17, 2012, when Complaint Counsel provided Sigma with a list of all Sigma documents, 

identified by Bates and CX number, that Complaint Counsel intends to offer as evidence in this 

matter. In that letter, Complaint Counsel notified Sigma that it would accept a declaration 

conforming with Rule 3.43(c) in lieu of a deposition to establish admissibility of those 

documents. Sigma has flatly refused to provide such a declaration for any documents. Similarly, 

McWane has refused to narrow the scope of its objections. 

Sigma and McWane’s intransigence should be viewed in the context of the treble 

damages price-fixing litigation facing McWane, Sigma and Star Pipe Products Ltd. (“Star”), in 

which McWane and Sigma have a joint defense agreement. See In Re Ductile Iron Pipe Fittings 

Direct Purchaser Antitrust Litigation, Civ. No. 12-711 (D. N.J); Declaration of Edward Hassi 

(“Hassi-Dec”) ¶3. In a call with Complaint Counsel on August 29, 2012, Sigma’s counsel stated 

his concern that a document admitted in this proceeding as a business record may be treated as a 

business record in the private action. Hassi-Dec ¶3. With their interests aligned, Sigma and 

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McWane leave Complaint Counsel with the only option of seeking a deposition regarding the 

admissibility of Sigma documents. 

In accord with the Scheduling Order and pursuant to Rules 3.33(a) and (c)(1), on August 

27, 2012, Complaint Counsel issued a subpoena seeking a deposition on the authenticity and 

admissibility of the Sigma documents that Complaint Counsel intends to introduce at trial 

(“Subpoena”).1 The Subpoena is timely because the Scheduling Order explicitly permits 

discovery regarding authentication and admissibility after the close of fact discovery. Because 

the Subpoena is not unduly burdensome, Sigma has failed to meet its burden to quash a subpoena 

under Rule 3.31(c)(2), i.e., by showing that the subpoena is vague, requires an unreasonable 

response date, is unreasonably cumulative, or that the burden to Sigma outweighs its likely 

benefit. 

I.	 SIGMA HAS NOT MET ITS BURDEN OF SHOWING THAT COMPLAINT 

COUNSEL’S SUBPOENA IS UNDULY BURDENSOME. 

“A party seeking to quash a subpoena has the burden of demonstrating that the request is 

unduly burdensome” or that the burden of the proposed discovery outweighs its likely benefit. 

In re Laboratory Corporation of America, Docket No. 9345, at 3 (F.T.C. Feb. 28, 2011) (citing 

16 C.F.R. §3.31(c)(2) and several cases). Sigma’s Motion fails to meet this standard. 

1

 Complaint Counsel’s Subpoena identifies 422 Sigma documents on Complaint Counsel’s 

proposed exhibit list. Sigma has not offered a 3.43(c) declaration for a single document. 

Complaint Counsel remains willing to narrow the list of documents for which a deposition is 

necessary by eliminating those to which Respondent has not objected, or has withdrawn its 

objection, and those to which Sigma can provide a declaration that satisfies 3.43(c). Declaration 

of Alexander Ansaldo (“Ansaldo-Dec”), ¶¶14-15. 

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A.	 Evidence of Admissibility of Sigma Documents Are Highly Relevant to the 

Hearing To This Proceeding. 

This Court requires compliance with subpoenas that will adduce evidence relevant to the 

hearing. See id. As shown by their extensive citation in Complaint Counsel’s pre-trial briefs, 

Sigma’s documents are crucial. For example, one of the Sigma documents that is not yet 

admitted is an internal Sigma email from a Sigma employee to Larry Rybacki, Sigma’s then 

National Sales Manager, that Rick Tatman, Vice President and General Manager of McWane’s 

fitting division, had complained about Sigma’s prices and hoped that Sigma would “do [their] 

part.” See CX 1124. Other examples include foundational documents, such as Sigma 

employees’ transmission of Sigma pricing letters or receipt of competitors’ letters (e.g. CX 0893; 

CX 1396; CX 1401; CX 1751; CX 2252; CX 2445) and Sigma presentations to financial 

institutions and its Board of Directors. Complaint Counsel seeks a deposition to establish 

admissibility of these and other key Sigma documents under Commission Rules 3.43(b), which 

provides for broad admissibility of documents, or alternatively, under Rule 3.43(c). Hassi-Dec, 

¶5. 

Sigma claims that “the deposition will not likely lead to establishing any of the 

documents as an admissible business record.” Motion at 8. The examples provided by Sigma, 

however, show why a document deposition is necessary. At a deposition, Complaint Counsel 

will seek discovery regarding the circumstances the documents’ creation, the activity that Sigma 

was engaged in when preparing the documents, and Sigma’s practices with respect to such 

documents in order to establish admissibility under Commission Rule 3.43.2 

2

 Sigma cites Versata Software for the proposition that a document created days after the events 

described cannot be a business record, but that case excluded a document because it did not meet 

other prongs of the business record exception, not because it was created days later. Versata 

Software, Inc. v. Internet Brands, Inc., 2012 WL 2595275, at *9 (E.D. Tex. July 5, 2012). 

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B.	 Complaint Counsel’s Subpoena is Not Vague and Provides a Reasonable 

Response Date. 

The Subpoena identifies the topic of deposition as “[t]he authenticity and admissibility 

under the provisions of Rule 3.43 of the Rules of Practice for Adjudicative Proceedings of the 

Federal Trade Commission, 16 C.F.R. §3.43, of the documents listed in Attachment A.” 

Declaration of Alexander Ansaldo (“Ansaldo-Dec”), ¶14. The Subpoena provides Sigma notice 

that the deposition will seek facts required by these rules to establish the admissibility of Sigma’s 

documents under Rules 3.43(b) and (c). Ansaldo-Dec, ¶14. Sigma’s own motion shows that 

Sigma is not confused as to the topic of the deposition. As Sigma explains, Complaint Counsel 

seeks evidence “regarding the evidentiary foundations” of Sigma documents, and to demonstrate 

that Sigma’s documents are admissible under Rule 3.43(c). See Motion, at 4; Motion, at 8 

(arguing that Complaint Counsel cannot meet these prongs for any of Sigma’s documents). 

Complaint Counsel provided Sigma over six weeks notice which documents Complaint 

Counsel intends to use, and that Complaint Counsel seeks to establish admissibility of those 

documents either through a declaration compliant with Rule 3.43(c) or a deposition establishing 

admissibility under 3.43(b). See Ansaldo-Dec, ¶4. Over those six weeks, Complaint Counsel 

and Sigma Counsel have had numerous communications discussing the nature of the discovery 

sought. 

Sigma has repeatedly represented that it knows the identity of the documents at issue and 

has reviewed them. See Unopposed Motion for Extension of Time for Non-Party Sigma 

Corporation to File Motion for In Camera Treatment of Certain Designated Hearing Exhibits, 

Docket No. 9351 (July 25, 2012) (stating that “Sigma and its counsel are in the process of 

reviewing the [documents, data, and depositions identified in the July 17, 2012 letter] and 

identifying those for which Sigma will seek in camera treatment. Sigma and its counsel require 

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additional time ... .”); Unopposed Motion of Non-Party Sigma Corporation for In Camera 

Treatment of Certain Designated Hearing Exhibits, Docket No. 9351, at 2 (July 31, 2012); 

Ansaldo-Dec, ¶7. Despite knowing that Complaint Counsel sought a declaration or deposition as 

to the admissibility of these same documents, Sigma apparently reviewed the documents only to 

determine whether they required in camera treatment, but not with respect to admissibility. 

Sigma had the opportunity to kill two birds with one stone, but chose not to reduce its own 

burden. 

While Complaint Counsel will continue to engage Sigma in good faith discussions 

regarding authenticity and admissibility of its documents so that fewer need to be addressed 

during the depositions, Complaint Counsel will be prejudiced at trial if there are any further 

delays in establishing the admissibility of the Sigma documents.3

 Complaint Counsel is also 

willing to engage in discussions to schedule a reasonable date for the deposition, and proposes 

September 10, 2012, given that Sigma has had more than six weeks notice of the need to 

establish the admissibility of the relevant documents.4 

3

 Complaint Counsel believes that the number of documents at issue can be reduced to the 350 

documents to which Respondent has objected. See Ansaldo-Dec, ¶15. 

4

 Sigma appears to argue that it could not review the documents because they were not in its 

possession. Motion at 4. The documents, however, were listed in Complaint Counsel’s July 17, 

2012 notice by both exhibit number and Bates number. Ansaldo-Dec, ¶5. Sigma knew which 

documents were at issue and accepted Complaint Counsel’s representations that the CX numbers 

in the list sent on July 17, 2012, contained the listed Bates numbers. See Ansaldo-Dec, ¶¶7-8. 

Indeed, Sigma was able to retrieve, review, and identify the documents requiring in camera 

treatment from Complaint Counsel’s list. See Sigma Motion for In Camera Treatment. From the 

July 17, 2012 letter, Sigma knew the same documents were at issue for the admissibility 

declaration. Moreover, the Scheduling Order, logically, does not require Complaint Counsel to 

provide copies back to Sigma of the very documents Sigma produced and of which Sigma 

maintains the original documents. Ansaldo-Dec, ¶5. 

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C. The Benefits of Discovery Outweigh the Burdens Set Forth By Sigma. 

The benefits of document discovery far outweigh the burdens on Sigma here. Sigma 

claims that it must retrieve and review each document that Complaint Counsel seeks to 

introduce. Sigma has already reviewed those documents for in camera treatment, which it 

conducted in two weeks. Had Sigma simply reviewed those documents for their admissibility as 

well, Sigma could have saved itself this burden altogether. Even now, many of the documents 

fall into broad categories that Sigma can review in batches. 

Although any discovery must result in some burden to a third party, the burden here is far 

outweighed by the benefit of the discovery. This is a price fixing case. The documents of coconspirator Sigma are critical to showing coordination between Respondent and Sigma. See, 

e.g., Complaint Counsel’s Pre-trial Brief, at 24, n. 109 and 111 (citing Sigma documents to show 

that DIFRA facilitated collusion). 

D.	 Complaint Counsel Was Not Required to Qualify All Sigma Documents 

During Fact Discovery 

The Scheduling Order permits discovery for purposes of authenticity and admissibility of 

exhibits after the close of fact discovery. See Scheduling Order (Feb. 15, 2012), at 1 (providing 

that the parties could conduct “discovery for purposes of authenticity and admissibility of 

exhibits” after June 1, 2012, the close of fact discovery). The Court acknowledged as much 

during the Final Prehearing Conference. See Final Prehearing Conference Trans. at 139-142. 

The documents used during fact discovery did not include all of the Sigma documents that 

Complaint Counsel intends to introduce. Moreover, Complaint Counsel only had 3.5 to 4.5 

hours to question Sigma’s fact witnesses, and were not intended as depositions regarding 

authenticity of all of Sigma’s relevant documents. As the Scheduling Order provides, after the 

6 
 

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conclusion of fact discovery, the parties determined the documents necessary for trial, and then 

tried to conduct efficient and targeted discovery on admissibility. 

Although Sigma argues that Complaint Counsel seeks depositions from witnesses it has 

previously deposed, Sigma need not present those same witnesses in response to the Subpoena. 

Depositions for purpose of establishing admissibility may be of any witness with knowledge of 

the record keeping practices of the business. See Rule 3.43(c) (permitting a written declaration 

from a document’s “custodian or other qualified person”); United States CFTC v. Dizona, 594 

F.3d 408, 415 (5th Cir. 2010) (“There is no requirement that the witness who lays the foundation 

be the author of the record or be able to personally attest to its accuracy.”). 

E.	 Sigma Chose to Bypass the Less Burdensome Route of Providing a 

Declaration Which Met the Provisions of Rule 3.43(c), Thus Requiring a 

Deposition, as Contemplated By the Commission. 

Finally, Sigma had the opportunity to resolve or narrow the issues by providing a 

declaration consistent with Rule 3.43(c), but has refused to do so. Ansaldo-Dec, ¶10. It is 

Sigma’s refusal to provide a declaration regarding any of its documents that now requires the 

taking of a deposition. In proposing Rule 3.43(c) in October 2008, the Commission determined 

that a declaration provides third parties with a less burdensome method to have their documents 

authenticated, rather than providing a witness. See Fed. Reg. Vol. 73, No. 195 (Oct. 7, 2008) 

(“Proposed new paragraph (c), which is analogous to Fed. R. of Evid. 902(11), is intended to 

facilitate the admissibility of third party documents by self-authentication through a written 

declaration of a third party document custodian.”). Sigma cannot complain that it is being 

subject to a burdensome process after making no effort to use the less burdensome procedure in 

Rule 3.43, even as to some subset of documents, see Motion, at 8 (asserting that no Sigma 

document proposed for introduction by Complaint Counsel can be qualified as a business 

record). 

7 
 

 

CONCLUSION 

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Sigma has not shown that it will be subject to undue prejudice or burden by Complaint 

Counsel’s deposition regarding admissibility. Therefore, Complaint Counsel respectfully 

requests that this Court deny Sigma’s motion and permit Complaint Counsel to move forward 

with depositions of Sigma personnel regarding admissibility, as explicitly provided in this 

Court’s Scheduling Order. 

Date: September 5, 2012 By: s/ J. Alexander Ansaldo 

Edward D. Hassi, Esq. 

Linda M. Holleran, Esq. 

Michael J. Bloom, Esq. 

J. Alexander Ansaldo, Esq. 

Jeanine K. Balbach, Esq. 

Michael J. Bloom, Esq. 

Thomas H. Brock, Esq. 

Monica Castillo, Esq. 

Andrew K. Mann, Esq 

Counsel Supporting the Complaint 

Bureau of Competition 

Federal Trade Commission 

Washington, DC 2058 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic mail: ehassi@ftc.gov 

8 
In the Matter of 

MeW ANE, INC., 

Respondent. 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

) 

) 

) 

) 

) 

) 

PUBLIC 

DOCKET NO. 9351 

----------------------------------) 

I, Edward Hassi, pursuant to 28 U.S.C. § 1746, make the following statement: 

1. I am over 18 years of age and have personal knowledge of the facts set forth below. 

2. I am employed by the Federal Trade Commission Bureau of Competition as Chief 

Litigation Counsel and serve as Complaint Counsel in this matter. 

3. On August 29, 2012, I had a phone call with Mr. Matthew White, counsel for Sigma 

Corporation ("Sigma"). During the call, Mr. White agreed that Sigma would be willing 

to provide a declaration as to the authenticity under Federal Rule of Evidence 901 of all 

documents produced by Sigma that Complaint Counsel seeks to admit in this matter. But 

Mr. White also stated that he was concerned that if the declaration extended beyond 

authenticating the documents and qualified them as meeting the elements of the business 

records exception, the documents might then be automatically admitted as business 

records in the treble damage class action litigation pending against Sigma in New Jersey. 

Consequently, Sigma would not agre to sign a declaration that meets all of the necessary 

elements of 3.43(c). Respondent, in an interrogatory answer, has stated that McWane 

and Sigma have a joint defense agreement covering the New Jersey litigation. 
4. Complaint Counsel and Sigma agreed that Sigma would provide a declaration that each 

of the documents that Complaint Counsel sought to introduce is "( 1) an accurate 

duplicate, produced from Sigma's files, of original records that were kept as a regular 

practice in the ordinary course of Sigma's business and (2) in the same, or substantially 

the same, condition as when it was sent, received, or produced by Sigma (as the case may 

be)." 

5. Through the date of this filing, Complaint Counsel continues to seek stipulations from 

Respondent, which it is unwilling to provid~, regarding Sigma documents. Complaint 

Counsel also continues to seek a suitable declaration from Sigma regarding some subset 

of its documents, in order to minimize the number of documents at issue in any 

depositions. 

6. For those documents for which Complaint Counsel cannot reach an agreement, 

Complaint Counsel believes that the scheduling order in this matter provides the 

opportunity through one or more depositions to develop evidence as to the foundation of 

the Sigma documents. Through the depositions, Complaint Counsel will show that the 

documents are relevant, material, and reliable, and therefore should be admitted in this 

proceeding. 

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, 

Executed on: September 5,2012 

PUBLIC
__________________________________________ 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION
 

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

Respondent. )

 ) 

__________________________________________) 

I, J. Alexander Ansaldo, pursuant to 28 U.S.C. § 1746, make the following statement: 

1.	 I am over 18 years of age and have personal knowledge of the facts set forth below. 

2.	 I am employed by the Federal Trade Commission and represent Complaint Counsel in 

this matter. 

3.	 Sigma Corporation (“Sigma”) produced over 63,000 documents during the Part 2 

investigation and Part 3 litigation of this matter, including nearly 120,000 pages in Part 3. 

4.	 On July 17, 2012, I sent counsel for Sigma a letter identifying the Sigma documents that 

Complaint Counsel intends to offer into evidence in the administrative hearing in this 

matter. A copy of that letter is attached to this declaration as Exhibit 1. The list of Sigma 

documents Complaint Counsel intends to offer into evidence is attached to that letter as 

Attachment 1. The letter informed Sigma that it could file a motion to seek in camera 

treatment for any of the documents listed in the Attachment by July 27, 2012. The letter 

also asked that Sigma sign a declaration regarding the admissibility of the documents in 

Attachment A to the letter, and attached a proposed declaration. The proposed 

declaration tracked the language for authenticity as laid out in Rule 3.43(c) of the 

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Commission’s Rules of Practice. The letter also informed Sigma that Complaint Counsel 

was seeking a declaration in lieu of a deposition on the admissibility of the documents. 

The letter requested that Sigma return a signed declaration by July 29, 2012. 

5.	 Attachment A to the July 17, 2012 letter was 27 pages and listed 445 documents and 11 

reserved CX numbers for deposition designations. With the exception of three 

documents erroneously listed in the letter,1 the 442 other documents were produced by 

Sigma. Each of the 442 documents bears a Sigma Bates number (either beginning with 

SIG or SIGTP). The Sigma Bates numbers were placed on the documents by Sigma or 

its counsel, and appeared on the documents when they were produced. Sigma maintains 

custody and control of the originals of each of the 442 documents, having produced only 

electronic copies during discovery. 

6.	 In an email dated July 19, 2012, counsel for Sigma asked that Complaint Counsel not 

oppose Sigma’s motion for an extension of time for filing of Sigma’s in camera motion. 

A copy of that email is attached as Exhibit 2 to this declaration. Sigma indicated that it 

required the additional time “[i]n light of the volume of information to review – over 500 

exhibits and thousands of pages of deposition testimony.” Based on those 

representations, Complaint Counsel did not oppose Sigma’s request for an extension 

through July 31, 2012. At no time during the discussion of Sigma’s motion for extension 

of time did counsel for Sigma ask me to further identify the documents that Complaint 

Counsel sought to introduce, or for Complaint Counsel to provide copies of those 

documents. On July 25, 2012, Sigma Corporation filed an Unopposed Motion for 

Extension of Time for Non-Party Sigma Corporation to File Motion for In Camera 

Treatment of Certain Designated Hearing Exhibits. 

1 CX2429, CX2434, and CX2435

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7. On July 31, 2012, Sigma filed its Unopposed Motion of Non-Party Sigma Corporation 

For In Camera Treatment of Certain Designated Hearing Exhibits. Prior to filing this 

motion, Sigma did not ask me to further identify the documents that Complaint Counsel 

sought to introduce, or for Complaint Counsel to provide copies of those documents. 

8.	 On August 14, 2012, I sent an email to Sigma’s counsel again asking whether Sigma 

could provide a declaration regarding the admissibility of Sigma’s documents. I included 

a copy of the entire July 17, 2012 letter as an attachment to my email. A copy of my 

email to Sigma is included in Exhibit 3 to this declaration, at pages 2-3. In the email, I 

again stated that the declaration was in lieu of a deposition on the admissibility of the 

documents. I also notified Sigma’s Counsel that, “If you do not intend to provide a 

declaration, please let me know so that we can schedule a deposition on the admissibility 

of those documents.” 

9.	 In an email I received from Sigma’s counsel on August 14, 2012, Mr. White asked if 

Complaint Counsel and Respondent could stipulate to the authenticity of most of the 

documents so that Sigma could merely authenticate a small portion of the documents. 

This email is included in Exhibit 3 to this declaration, at page 2. 

10. On August 16, 2012, Linda Holleran informed Sigma’s Counsel that Respondent is 

unwilling to stipulate to the admissibility of any Sigma documents. Ms. Holleran 

reiterated that Sigma could provide a declaration in lieu of a document custodian 

deposition. A copy of this email is attached as Exhibit 3 to this declaration, at page 1. 

On that date, Respondent also filed its Objections to Complaint Counsel’s Final Proposed 

Exhibit List with the Court. In its objections, Respondent indicated that it objected to 

admissibility of Sigma’s documents on authenticity grounds pursuant to Federal Rule of 

3
 
Evidence 901. Despite efforts of Complaint Counsel to negotiate in good faith, 

PUBLIC

Respondent refused to stipulate that any of Sigma’s documents are authentic. 

Respondent still refuses to enter into such a stipulation. 

11. On August 17, 2012, a month after sending my initial letter to Sigma, I received a letter 

from Sigma’s counsel informing me for the first time that Sigma had not reviewed the 

documents I had identified in my July 17, 2012 letter, and asking for copies of those 

documents to “facilitate this review.” A copy of this letter is attached as Exhibit 4 to this 

declaration. Sigma’s letter of August 17, 2012 recognized that the declaration on 

admissibility sought by Complaint Counsel tracked the language of Commission Rule 

3.43(c). Sigma’s letter also requested that the parties narrow the issues by stipulating to 

admission of some of the Sigma documents in order to reduce the burden on Sigma. 

Sigma’s letter also, for the first time, notified Complaint Counsel that Sigma believed 

that it could not truthfully authenticate its documents under Commission Rule 3.43(c) 

because Sigma could not attest that many of the documents were created as a part of a 

“regularly conducted activity as a regular practice.” 

12. Since receipt of Sigma’s letter on August 17, 2012, Complaint Counsel has negotiated in 

good faith with Respondent to limit the number of Sigma documents for which 

Respondent maintains objections. Respondent continues to refuse to lift its objections as 

to authenticity with respect to 350 Sigma documents. 

13. Since receipt of Sigma’s letter on August 17, 2012, Complaint Counsel has also 

negotiated with Sigma to obtain a declaration which will overcome Respondent’s 

authenticity objection. The discussions involved declarations and depositions regarding 

the authenticity of all Sigma documents identified in the July 17, 2012 letter. During 

4
 
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discussions, Complaint Counsel also discussed 24 documents for which additional 

declarations or deposition might be required to overcome objections from Respondent on 

grounds other than authenticity. 

14. After failing to reach agreement on any declaration with Sigma, Complaint Counsel 

issued a deposition subpoena on August 27, 2012 under Commission Rule 3.33(c). A 

copy of the subpoena is attached as Exhibit 5 to this declaration. The topic identified for 

the deposition is, “The authenticity and admissibility under the provisions of Rule 3.43 of 

the Rules of Practice for Adjudicative Proceedings of the Federal Trade Commission, 16 

C.F.R. § 3.43, of the documents listed in Attachment A.” Attachment A to the subpoena 

included the same list of 442 Sigma exhibits identified on July 17, 2012. 

5
 
15. The current status of the objections is as follows. Complaint Counsel has identified 442 

Sigma documents for admission at the hearing. Respondent has continuing objections to 

the authenticity of approximately 350 of those documents. Complaint Counsel continues 

to attempt negotiations with Sigma and Respondent to limit the number of documents at 

issue in the Sigma subpoena. 

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. Executed this 5th day of 

September, 2012, at Washington, D.C. 

6 

Respectfully submitted, 

. lexander Ansaldo 

ounsel Supporting the Complaint 

Bureau of Competition 

Federal Trade Commission 

600 Pennsylvania Ave., N.W. 

Washington, DC 20580 

(202) 326-3695 

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EXHIBIT 1 
J. Alexander Ansaldo, Esq. 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave., N.W. 

Washington, D.C. 20580 

(202) 326-3695 

jansaldo@FTC.gov 

Via Federal Express 

Sigma Corporation 

c/o Matthew A. White, Esq. 

Ballard Spahr LLP 

1735 Market Street, 51 st Floor 

Philadelphia, PA 19\03-7599 

United States of America 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

July 17,2012 

RE: In the Matter of McWane, Inc. and Star Pipe 

Products, Ltd., Federal Trade Commission Docket No. 

9351 

Dear Mr. White: 

By this letter we are providing fonnal notice, pursuant to Rule 3.45(b) of the 

Commission's Rules of Practice, 16 C.F.R. §3.45(b), that Complaint Counsel intend to offer the 

documents and testimony referenced in the enclosed Attachments A and B into evidence in the 

administrative trial in the above-captioned matter. Please note that the list of deposition 

designations in Exhibit B does not include any of Respondent's designations or Complaint 

Counsel's counter-designations, if any, which are not due until July 24,2012. 

The administrative trial is scheduled to begin on September 4,2012. All exhibits 

admitted into evidence become part of the public record unless in camera status is granted by 

Administrative Law Judge D. Michael Chappell. 

For documents or testimony that include sensitive or confidential information that you do 

not want on the public record, you must file a motion seeking in camera status or other 

confidentiality protections pursuant to 16 C.F.R §§ 3.45, 4.1O(g). Judge Chappell may order that 

materials, whether admitted or rejected as evidence, be placed in camera only after finding that 

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EXHIBIT 2 
 

Ansaldo, Alexander 

PUBLIC

From: White, Matthew A. (Phila) [mailto:WhiteMA@ballardspahr.com]
 

Sent: Thursday, July 19, 2012 10:48 AM 

To: Ansaldo, Alexander; joseph.ostoyich@bakerbotts.com; william.lavery@bakerbotts.com; 

'tthagard@maynardcooper.com'
 

Cc: Leckerman, Jason (Phila); 'djasinski@washdc.whitecase.com'; Hassi, Edward; John, Leslie E. (Phila)
 

Subject: In Matter of McWane and Star Pipe, FTC Docket No. 9351 

Dear Counsel, 

I received yesterday by Federal Express documents and testimony that both the FTC and McWane 

have indicated may be introduced in the administrative hearing. 

In light of the volume of information to review—over 500 exhibits and thousands of pages of 

deposition testimony—my client will file a motion with Judge Chappell requesting a 10 day extension 

of the July 27 deadline for filing any motion re: in camera treatment of the materials. 

I note that my client has not decided actually to file a motion on the merits of in camera protection, 

and, I suspect, that any motion so filed will be for a limited category of documents. 

All we are requesting now, however, is that both FTC and McWane interpose no objection to a 

request for an extension of the July 27 deadline. 

We would appreciate your prompt response. 

Regards, 

Matthew A. White 

Ballard Spahr LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

Direct 215.864.8849 

Fax 215.864.8999 

email: whitema@ballardspahr.com 

1 
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EXHIBIT 3 
                                              

 

 

                                          

                                          

                                 

                                         

         

 

 

Ansaldo, Alexander 

PUBLIC

From: White, Matthew A. (Phila) <WhiteMA@ballardspahr.com> 

Sent: Thursday, August 16, 2012 8:09 PM 

To: Holleran, Linda; Ansaldo, Alexander; 'william.lavery@bakerbotts.com' 

Subject: Re: 9351: SIGMA document admissibility declaration 

Please send us all of the documents you'd like us to review, preferably with exhibit tabs, and we'll run it by our client.

Thanks.

From: Holleran, Linda [mailto:lholleran@ftc.gov] 

Sent: Thursday, August 16, 2012 07:50 PM 

To: Ansaldo, Alexander <jansaldo@ftc.gov>; White, Matthew A. (Phila); william.lavery@bakerbotts.com 

<william.lavery@bakerbotts.com> 

Subject: RE: 9351: SIGMA document admissibility declaration 

Matt – I spoke to Will Lavery this afternoon, and he informed me that McWane is unwilling to stipulate to the

admissibility of any Sigma documents. Thus, we are in the position of needing your client to fill out the declaration Alex

sent to you, unless of course, you would prefer a document custodian deposition on their admissibility.

Consistent with our litigation needs, we’d be happy to do what we can to make filling out the declaration easier (e.g.,

sending you electronic copy, etc)...

Sorry,

Linda

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

From: Ansaldo, Alexander 

Sent: Tuesday, August 14, 2012 6:20 PM 

To: Holleran, Linda; Hassi, Edward 

Subject: FW: 9351: SIGMA document admissibility declaration 

From: White, Matthew A. (Phila) [mailto:WhiteMA@ballardspahr.com] 

Sent: Tuesday, August 14, 2012 12:43 PM 

To: Ansaldo, Alexander 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com 

Subject: RE: 9351: SIGMA document admissibility declaration 

1 
 

                                 

   

 

 

       

                                       

                                   

                                          

                                  

                                       

                                       

                                         

   

PUBLIC

Alex: 

You're missing my point—you gave us a list of hundreds of documents. You would need to print them 

all out, send them to us, and have them placed in front of a witness for authentication purposes. 

Why kill all the trees? 

If you and McWane's counsel have one or two upon which there is some disagreement (and, 

candidly, I suspect that you have no disagreements at all, if you'd just pick up the phone and talk to 

one another), then we'll look at the documents you want authenticated. 

From: Ansaldo, Alexander [mailto:jansaldo@ftc.gov]
 

Sent: Tuesday, August 14, 2012 12:35 PM 

To: White, Matthew A. (Phila) 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com
 

Subject: RE: 9351: SIGMA document admissibility declaration
 

Complaint Counsel would have no objection if you combined the two declarations into one declaration that addressed

all documents.

From: White, Matthew A. (Phila) [mailto:WhiteMA@ballardspahr.com] 

Sent: Tuesday, August 14, 2012 12:29 PM 

To: Ansaldo, Alexander 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com 

Subject: RE: 9351: SIGMA document admissibility declaration 

Alex, 

We have a similar request from McWane—can't you deal with this be seeking a stipulation from the 

other side as to authenticity? 

Put another way, if there are any disputes, can't you and McWane figure out disputed documents are 

so we can have a narrower declaration? 

From: Ansaldo, Alexander [mailto:jansaldo@ftc.gov]
 

Sent: Tuesday, August 14, 2012 12:23 PM 

To: White, Matthew A. (Phila); Joseph, Keith B. (Phila); Leckerman, Jason (Phila) 

Subject: 9351: SIGMA document admissibility declaration
 

Matt, Jason & Keith:

In my July 17 letter, a copy of which is attached, I requested that SIGMA provide a declaration regarding the admissibility

of documents Complaint Counsel intends to offer into evidence at the administrative trial In the Matter of McWane, Inc.,

FTC Docket No. 9351. My request was that, in lieu of a deposition on the admissibility of the referenced documents, you

provide the declaration by July 29, 2012. Complaint Counsel has not received a declaration from you.

If you intend to submit a declaration, please let me know as soon as possible and provide the declaration by Monday,

August 20. The declaration is on the last two pages of the correspondence, following Attachment B. If you do not

intend to provide a declaration, please let me know so that we can schedule a deposition on the admissibility of those

documents.

2 
 

Regards,

‐ Alex

PUBLIC

==================================== 

J. Alexander Ansaldo 

Attorney, Division of Anticompetitive Practices 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington, DC. 20580 

Tel: 202-326-3695 

jansaldo@ftc.gov 

3 
PUBLIC

EXHIBIT 4 
                                          

                                          

                                 

                                         

         

Ansaldo, Alexander 

PUBLIC

From: White, Matthew A. (Phila) <WhiteMA@ballardspahr.com> 

Sent: Friday, August 17, 2012 12:13 PM 

To: Holleran, Linda; Ansaldo, Alexander; william.lavery@bakerbotts.com; 

'joseph.ostoyich@bakerbotts.com' 

Cc: John, Leslie E. (Phila); Leckerman, Jason (Phila); Grugan, Terence M. (Phila); Joseph, 

Keith B. (Phila) 

Subject: RE: 9351: SIGMA document admissibility declaration 

Attachments: 15533381_1.pdf 

Dear Counsel, 

I attach a document addressing several issues pertaining to the requested declarations. 

Bottom line: after you've had a chance to review, I'd like to set up a call to discuss. 

I'm available most of Monday. 

Regards, 

Matthew A. White 

Ballard Spahr LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

Direct 215.864.8849 

Fax 215.864.8999 

email: whitema@ballardspahr.com 

From: Holleran, Linda [mailto:lholleran@ftc.gov] 

Sent: Thursday, August 16, 2012 7:51 PM 

To: Ansaldo, Alexander; White, Matthew A. (Phila); william.lavery@bakerbotts.com 

Subject: RE: 9351: SIGMA document admissibility declaration 

Matt – I spoke to Will Lavery this afternoon, and he informed me that McWane is unwilling to stipulate to the

admissibility of any Sigma documents. Thus, we are in the position of needing your client to fill out the declaration Alex

sent to you, unless of course, you would prefer a document custodian deposition on their admissibility.

Consistent with our litigation needs, we’d be happy to do what we can to make filling out the declaration easier (e.g.,

sending you electronic copy, etc)...

Sorry,

Linda

*************************** 

Linda M. Holleran, Esq. 

Anticompetitive Practices Division 

1 
 

 

 

                                 

   

 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington D.C. 20580 

Ph: (202) 326-2267 

Fax: (202) 326-3496 

**************************** 

PUBLIC

From: Ansaldo, Alexander 

Sent: Tuesday, August 14, 2012 6:20 PM 

To: Holleran, Linda; Hassi, Edward 

Subject: FW: 9351: SIGMA document admissibility declaration 

From: White, Matthew A. (Phila) [mailto:WhiteMA@ballardspahr.com] 

Sent: Tuesday, August 14, 2012 12:43 PM 

To: Ansaldo, Alexander 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com 

Subject: RE: 9351: SIGMA document admissibility declaration 

Alex: 

You're missing my point—you gave us a list of hundreds of documents. You would need to print them 

all out, send them to us, and have them placed in front of a witness for authentication purposes. 

Why kill all the trees? 

If you and McWane's counsel have one or two upon which there is some disagreement (and, 

candidly, I suspect that you have no disagreements at all, if you'd just pick up the phone and talk to 

one another), then we'll look at the documents you want authenticated. 

From: Ansaldo, Alexander [mailto:jansaldo@ftc.gov]
 

Sent: Tuesday, August 14, 2012 12:35 PM 

To: White, Matthew A. (Phila) 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com
 

Subject: RE: 9351: SIGMA document admissibility declaration
 

Complaint Counsel would have no objection if you combined the two declarations into one declaration that addressed

all documents.

From: White, Matthew A. (Phila) [mailto:WhiteMA@ballardspahr.com] 

Sent: Tuesday, August 14, 2012 12:29 PM 

To: Ansaldo, Alexander 

Cc: Joseph, Keith B. (Phila); Leckerman, Jason (Phila); TThagard@maynardcooper.com; 

'joseph.ostoyich@bakerbotts.com'; william.lavery@bakerbotts.com 

Subject: RE: 9351: SIGMA document admissibility declaration 

Alex, 

2 
 

       

                                       

                                   

                                          

                                  

                                       

                                       

                                         

   

 

PUBLIC

We have a similar request from McWane—can't you deal with this be seeking a stipulation from the 

other side as to authenticity? 

Put another way, if there are any disputes, can't you and McWane figure out disputed documents are 

so we can have a narrower declaration? 

From: Ansaldo, Alexander [mailto:jansaldo@ftc.gov]
 

Sent: Tuesday, August 14, 2012 12:23 PM 

To: White, Matthew A. (Phila); Joseph, Keith B. (Phila); Leckerman, Jason (Phila) 

Subject: 9351: SIGMA document admissibility declaration
 

Matt, Jason & Keith:

In my July 17 letter, a copy of which is attached, I requested that SIGMA provide a declaration regarding the admissibility

of documents Complaint Counsel intends to offer into evidence at the administrative trial In the Matter of McWane, Inc.,

FTC Docket No. 9351. My request was that, in lieu of a deposition on the admissibility of the referenced documents, you

provide the declaration by July 29, 2012. Complaint Counsel has not received a declaration from you.

If you intend to submit a declaration, please let me know as soon as possible and provide the declaration by Monday,

August 20. The declaration is on the last two pages of the correspondence, following Attachment B. If you do not

intend to provide a declaration, please let me know so that we can schedule a deposition on the admissibility of those

documents.

Regards,

‐ Alex

==================================== 

J. Alexander Ansaldo 

Attorney, Division of Anticompetitive Practices 

Bureau of Competition 

Federal Trade Commission 

601 New Jersey Ave, NW 

Washington, DC. 20580 

Tel: 202-326-3695 

jansaldo@ftc.gov 

3 
 

 

 

 

 

 

 

PUBLIC

Dear Counsel, 

We suggest that a “meet and confer” call is advisable with respect to the request 

that both Complaint Counsel and Respondent's Counsel (also identified as “McWane's Counsel”) 

have put to SIGMA: providing an affidavit attesting to several facts about hundreds of proposed 

exhibits that both parties seem to want to introduce in the forthcoming Administrative Hearing. I 

outline SIGMA's concerns below. 

(As an aside, I also wish to apologize for the strident tone of some of the emails 

below. It was born of frustration with my belief, at the time, that Complaint Counsel was being 

overly aggressive and cavalier with the impact and burden this entire proceeding has placed upon 

my client. Upon further reflection, I believe that the Complaint Counsel’s tone is likely simply 

the result of the press of time as Complaint Counsel is preparing for a Hearing and a reaction to 

my own tone, which, I concede could be characterized as “flip” and, at a minimum, unhelpful. 

That being said, in the spirit of compromise, I am prepared to move forward to reach an 

accommodation. If one cannot be reached, then, from my end, I shall endeavor to at least keep 

the tone more civil.) 

I. Actions Requested of SIGMA. 

On July 17, 2012, Complaint Counsel sent to SIGMA’s undersigned counsel, 

among other items, a 27-page list of exhibits (containing approximately 500 exhibits) that it 

states it “intend[s] to offer...into evidence in the administrative trial. . .” At the conclusion of the 

letter, Complaint Counsel requested: “. . .we ask that you sign and return the attached declaration 

regarding the admissibility of these documents. . . “ (SIGMA, Complaint Counsel, and Counsel 

for McWane reached agreement on the in camera treatment of certain documents. That issue is 

still pending before the Administrative Judge. ). While the list itself identifies documents by 

identification numbers ("Bates" numbers and exhibit numbers), the submission does not include 

the actual documents that Complaint Counsel seeks to have verified. 

The requested form of affidavit proffered by Complaint Counsel requests a 

SIGMA witness (or, presumably, witnesses) to verify, under penalty of perjury, that every single 

one of the several hundred exhibits has been personally reviewed; that each document (a) “was 

made at or near the time of the occurrence of the matters set forth by, or from information 

transmitted by, a person with knowledge of those matters,” (b) “was kept in the ordinary course 

of regularly conducted activity,” and (c) “was made by the regularly conducted activity as a 

regular practice.” 

This largely tracks 16 C.F.R.§ 3.43: 

Relevant, material, and reliable evidence shall be admitted. . . .Evidence that constitutes hearsay may be 

admitted if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair. . . . 

Extrinsic evidence of authenticity as a condition precedent to admissibility of documents received from 

third parties is not required with respect to the original or a duplicate of a domestic record of regularly 

conducted activity by that third party that otherwise meets the standards of admissibility described in 

paragraph (b) if accompanied by a written declaration of its custodian or other qualified person, in a 

DMEAST #15533381 v1 
 

 

 

 

 

PUBLIC

manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to 

statutory authority, certifying that the record: 

(1) Was made at or near the time of the occurrence of the matters set forth by, or from information 

transmitted by, a person with knowledge of those matters; 

(2) Was kept in the course of the regularly conducted activity; and 

(3) Was made by the regularly conducted activity as a regular practice. 

(emphasis added). 

On July 25, 2012, Respondent's Counsel sent to Counsel for SIGMA’s 

undersigned counsel, a 3-page list containing approximately 60 exhibits. As with the document 

proffered by Complaint Counsel, the list itself identifies documents by identification numbers 

(“Bates” numbers and exhibit numbers), and it too fails to include the actual documents that 

Respondent’s Counsel seeks to have verified. 

The proposed affidavit proffered is substantially similar to the affidavit proposed 

by Complaint Counsel. 

II. Applicable Obligations of Complaint Counsel and Respondent’s Counsel 

Pursuant to the February 15, 2012 Scheduling Order, on or before July 6, 2012, 

Complaint Counsel was to provide Respondent’s Counsel “its final proposed witness and exhibit 

list....copies of all exhibits...Complaint Counsel’s basis of admissibility for each proposed 

exhibit.” (2/15/2012 Scheduling Order, p.2). Respondent’s Counsel had the same obligations to 

Complaint Counsel, with a compliance deadline of July 16, 2012. (Id.). Neither Complaint 

Counsel nor Respondent’s Counsel has provided Counsel for SIGMA with either the “final” 

exhibit list as they pertain to SIGMA, or the required copies of all such exhibits that were 

required to have been made. 

By August 16, 2012, Complaint Counsel and Respondent’s Counsel were to have 

provided the ALJ with the “final” exhibit list. 

By August 21, 2012, Complaint Counsel and Respondent’s Counsel are to 

exchange stipulations pertaining to authenticity of all exhibits. By August 28, Complaint 

Counsel and Respondent’s Counsel are to file stipulations of authenticity of exhibits. The 

Scheduling Order also requires Complaint Counsel and Respondent’s Counsel to “meet and 

confer” concerning the authenticity of exhibits. The Scheduling Order plainly invites the parties 

to agree upon admissibility—“Any Joint Exhibit will be signed by each party with no signature 

for the judge required.” 

To date, it does not appear that Complaint Counsel and Respondent’s Counsel 

have met or even conferred as to: a) which SIGMA documents they both seek to introduce and b) 

what objections, if any, they have. Thus, because no effort has been made to focus the issue, 

SIGMA is faced with having to have a witness or, really several witnesses, review all of the 

approximately 560 exhibits to confirm the information requested. Neither Counsel has even 

DMEAST #15533381 v1 2 
 

PUBLIC

provided SIGMA’s Counsel with a set of copies of documents to facilitate this review, even 

though both counsel were required to copy and to deliver such documents to each other in the 

Scheduling Order. 

III. Burden Upon SIGMA 

The burden placed upon non-party SIGMA for the requested exercise is 

substantial. First, because the parties have not met and conferred as to (a) which exhibits that 

they actual intend to introduce and (b) whether they actually have any disagreement that would 

require the certification, SIGMA is faced with having to organize this data, find appropriate 

witnesses to review each of the documents, work with each witness to make sure that he or she 

understands the obligation being asked of them and faithfully exercises the review, and generally 

shepherd through this process. 

This process is not straightforward, nor is it inexpensive in terms of out-of-pocket 

costs to SIGMA and burdens placed upon it and its employees. While a burden exists no matter 

how many documents would be at issue, it is self-evident that the burden will be less if there are 

50 documents (more reasonable) rather than 550. 

To illustrate the burden a bit more, we want to explain some of the work entailed 

with compliance. 

First, because the actual documents that are the subject of the proposed affidavits 

have not been delivered, SIGMA’s counsel will be required to have a paralegal retrieve each 

document, print it out and deliver it to one of SIGMA’s outside lawyers. This will take an 

estimated 25 hours of paralegal time. 

Second, once those documents are printed out, a SIGMA lawyer will have to 

review those documents to assess which SIGMA witness is a likely person to provide the 

requested information. Quite clearly, not every one of the 560 or so exhibits is capable of being 

authenticated or attested to by a single witness. To make this process proceed with a modicum 

of efficiency, the lawyer will need to direct a paralegal to organize the documents and assess 

who should be the appropriate affiant. 

Third, the documents will have to be delivered to the appropriate witness, and 

each witness will have to be instructed in what to do, and assess whether, in fact, the requisite 

information can be provided. A lawyer will be required to field the inevitable questions and 

provide assistance so that each witness understands what is actually being asked of him or her. If 

past practice (derived from our work on the previous document productions) is any indication, 

this will require at least 25 hours of lawyer’s time. 

Fourth, a lawyer will be required to gather such responses and communicate with 

Complaint Counsel and Respondent’s Counsel as to issues that might arise during this process. 

This will be an additional 15 hours of time (it has already been almost 10). 

One side issue bears mention. Complaint Counsel has indicated that the 

documents need not be printed out, and that SIGMA should be able to have its witness review 

documents in .pdf or .tif format from a CD-ROM that Complaint Counsel will prepare. Given 

DMEAST #15533381 v1 3 
 

 

 

 

PUBLIC

the number of documents and pages involved, it is a very cumbersome process to have a nonlawyer fact witness (who is not in the business of document review) to review .pdf or .tif files. It 

is also not fair to the witnesses: the affidavit requires a verification that all of the documents 

were thoroughly reviewed. Such review is made much more burdensome when one has to 

review it on a screen rather than in hard copy. Thus, for instance, it seems likely that the parties 

in this hearing will present hard copy evidence to the ALJ—this is because the parties will want 

the ALJ to actually review the evidence. Or, if there were to be a records’ custodian deposition, 

undoubtedly each exhibit would be marked as an exhibit and shown to the witness—indeed, this 

was done for scores, if not hundreds, of exhibits already during the depositions of SIGMA’s 

witnesses. At bottom, however, it is difficult for witnesses to review a CD-ROM with .pdf or .tif 

files, and that difficulty makes compliance with the facts to be verified very burdensome. 

The burdens above are real. They would easily exceed $20,000 in outside legal 

fees and costs, not to mention the time required of non-party witnesses to review the information 

requested. This burden is ameliorated to the extent fewer documents are to be considered. 

III. The Proposed Affidavits Are Substantively Flawed. 

Both Complaint Counsel’s and Respondent’s Counsel’s affidavit seek to 

authenticate the documents under 16 C.F.R.§ 3.43. SIGMA is certainly willing to stipulate that 

any document it provided in response to any subpoena in this proceeding: (a) came from its files; 

(b) is a true and correct copy of such document; and (c) and were stored in SIGMA’s files in the 

ordinary course of SIGMA’s record keeping. There should be little doubt about “reliability” of 

the source of this information. There are likely similar facts that Complaint Counsel or 

Respondent’s Counsel could request that will not be difficult to establish. We are prepared to 

work with you to reach agreement on as much as possible. 

But it is unlikely that an affiant could satisfy the statements actually requested for 

many of the documents on the list. For example, whatever the phrase: “was made by the 

regularly conducted activity as a regular practice” is intended to mean, it is clear that many of the 

exhibits were not “regularly conducted activity” at all. One brief example is illustrative. The 

MDA was not a “regular conducted activity.” It was a unique business solution to a set of 

unique problems. Most of the emails associated with it would not be considered “regularly 

conducted” because they pertain to a somewhat unique event. In fact, while not on point, under 

FRE 803(6) “business records” typically do not include emails, as contrasted with periodic 

financial records or reports that do typically satisfy the “business records” exception to the 

hearsay rules. 

IV. Proposed Resolution 

First, we are more than willing to provide a verification to address the provenance 

(i.e. “reliability”) of the documents that came from SIGMA’s files. This is only partially 

addressed in the current draft affidavits we have. 

Second, we request that Complaint Counsel and Respondent’s Counsel meet and 

confer as to what SIGMA exhibits they intend to use and whether they have objections that can 

be addressed by SIGMA’s witnesses Presumably, both counsel are in a position to state whether 

DMEAST #15533381 v1 4 
 

PUBLIC

they have objections and, if so, then to identify them. We then request that those documents be 

forwarded to us. 

Once that is done, we will expeditiously work with both counsel to provide 

whatever verification we can to a more limited set of documents. 

We thank you for your consideration. 

DMEAST #15533381 v1 5 
PUBLIC

EXHIBIT 5 
PUBLIC
PUBLIC
__________________________________________ 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

PUBLIC

) 

In the Matter of ) 

) DOCKET NO. 9351 

McWANE, INC. )

 Respondent. ) 

_________________________________________ ) 

COMPLAINT COUNSEL’S NOTICE OF DEPOSITION 

OF SIGMA CORPORATION 

PLEASE TAKE NOTICE, that pursuant to Rules 3.33(a) and (c)(1) of the Federal Trade 

Commission’s Rules of Practice for Adjudicative Proceedings (16 C.F.R. §§ 3.33(a) and (c)(l)), 

Complaint Counsel will take the deposition of Sigma Corporation (“SIGMA”) or its designee(s), 

who shall testify on SIGMA’s behalf, about matters known or reasonably available to SIGMA. 

DEPOSITION TOPICS 

1.	 The authenticity and admissibility under the provisions of Rule 3.43 of the Rules of 

Practice for Adjudicative Proceedings of the Federal Trade Commission, 16 C.F.R. 

§3.43, of the documents listed in Attachment A. 
PUBLIC

CX 0893 
From: 

Sent: 

To: 

Subject: 

Star Pipe Products [marketing@starpipeproducts.com] 

Thursday, February 07,200801:34:25 A!V! 

CS1 (Craig Schapiro - CRM) 

New Multipliers - Star Pipe Products 

FenrualY 6, 2008 

RE: Multiplier Change., - Effective Februarv 18. 2008 

To Our Valued Customers: 

The joliowing i ..... ' a hreakdolvn (~f our current price li.\'t.\' and the new multiplier ..... ' that wiil 

take effect Monday. rehrumy 18. 21)(18. 

Product Descriotion 

» Utility Fittings ClIO & C153 

» Accessories 

)) Joint Restraint Products 

}) A FVrVA Grooved Products 

» Ceramic ~jJOxy Lined Fittings 

Price List 

UPL0702 (Mile) 

UPL. 07. 02 (blue) 

JRPL.06.03 (gra)~ 

GRj/PL. 07. 02 (yellow) 

UPL. 07. 02 (Mile) 

(* please contact your local Star representative fiJr pricing) 

Multiolier 

31 

.31 

lio Change 

(-:ALL * 

CALL * 

The nnv multiplier.,;' will a['ply to all order.';' received Oll or qfter Jlt~1()nday, Fehruary 18, 

2008. Any order received prior to that date 'vrill be price protected provided no shippiilR 

restrictiolls apply. 

Please provide your focal J erritory Manager with documentation regarding any 

municipal bid," before Februwy 18. 20118. MUllicipal cOlltracts will he hOllored through 

the term oj the contract. provided the documentation includes quantities and defivCl)l 

dates. 

rVe remain cOiJuuitted to earning your business. 

Regards. 

SIG - 0061257 

Confidential 

FO!A Exempt 

PUBLIC CX 0893-001
Matt MinanJycr 

l'latiunal Sale ... ; lt4anager 

<vh-' ,- '.",~,_ :>~,-~"_", ""',~"> 4 ~"'" - . _ ~-g"" 

_~"f,~L-'" ~--~-p ,; i:: ,,« '-i£.7f",'O.,..., ,:;; 

This message was sent from Star Pipe Products to cs1@sigmaco.com. It was sent from: 

Star 4018 Westhoiiow Pkwy, Houston, TX 77082. You can modify/update 

SIG - 0061258 

Confidential 

FO!A Exempt 

PUBLIC CX 0893-002
PUBLIC

CX 1124 
From: 

Sent: 

To: 

Cc: 

Mitchell Rona 

Tuesday, March 11, 2008 08:16:03 AM 

5B1 (5iddharth Bhattacharji-CRM); VP (Victor Pais - CRM) 

lGRi (Gopi Ramanathan-CRivif; lSSil; CSi (Craig Schapiro - CRivi); SB2 

(Stuart Box - CRM) 

Subject: RE: sbl to mrl+ssl:: 31t_81t DIWF from Tyler/Union 

Siddharth, 

let's put fogether our 200 S-I mix and Ulen I will work wifh thcm to mtJke HIe plan. 

As long we do 'what we say I think they will begin the process 'with us, 

From: 5Bl (5iddharth Bhattacharji-CRM) 

Sent: Tuesday, March 11,200812:32 AM 

To: Mitchell Rona; VP (Victor Pais - CRM) 

Cc: 'GRl (Go pi Ramanathan-CRM),; '551'; C51 (Craig Schapiro - CRM); 5B2 (Stuart Box - CRM) 

Subject: sbl to mrl+ssl: : 3;;-8;; DIWF from Tyler/Union 

wii! not be m!Jking al1y distinction bebN'?en ftgs IT:ade in Tylet!Ul1ion !Jnd el:;ewhete. Since the 

SSl -- please see VJ'h3t is our tata! !J5:3ge of these is items. i dQubt \ve can r:13Ke 200!\~T 'with just 

lS items since we have to still give some tonnage t.o our eXisting <;uppliet"s. 

Can \"j'2; if \ve can reach this tonnage inciuding sorne rrC'f€ Le'2;s !lk'2; 3;.;6, 8,,;;8,890, etc:? 

Rgds/ 

From: ~·1itchell Rona 

Sent: Monday, March 10, 2008 10: 55 PM 

To: VP (Victor Pais - CRM) 

Cc: 5Bl (5iddharth Bhattacharji-CRM); GRl (Gopi Ramanathan-CRM); 551; C51 (Craig 

Schapiro - CRM); 5B2 (Stuart Box - CRM) 

Subject: FW: 3"-8" DIWF from Tyler/Union 

Guys, 

SIG - 0054525 

Confidential 

FOIA Exempt 

From: 

Sent: 

To: 

Cc: 

Mitchell Rona 

Tuesday, March 11, 2008 08:16:03 AM 

5B1 (5iddharth Bhattacharji-CRM); VP (Victor Pais - CRM) 

lGRi (Gopi Ramanathan-CRivif; lSSil; CSi (Craig Schapiro - CRivi); SB2 

(Stuart Box - CRM) 

Subject: RE: sbl to mrl+ssl:: 31t_81t DIWF from Tyler/Union 

Siddharth, 

let's put fogether our 200 S-I mix and Ulen I will work wifh thcm to mtJke HIe plan. 

As long we do 'what we say I think they will begin the process 'with us, 

From: 5Bl (5iddharth Bhattacharji-CRM) 

Sent: Tuesday, March 11,200812:32 AM 

To: Mitchell Rona; VP (Victor Pais - CRM) 

Cc: 'GRl (Go pi Ramanathan-CRM),; '551'; C51 (Craig Schapiro - CRM); 5B2 (Stuart Box - CRM) 

Subject: sbl to mrl+ssl: : 3;;-8;; DIWF from Tyler/Union 

wii! not be m!Jking al1y distinction bebN'?en ftgs IT:ade in Tylet!Ul1ion !Jnd el:;ewhete. Since the 

SSl -- please see VJ'h3t is our tata! !J5:3ge of these is items. i dQubt \ve can r:13Ke 200!\~T 'with just 

lS items since we have to still give some tonnage t.o our eXisting <;uppliet"s. 

Can \"j'2; if \ve can reach this tonnage inciuding sorne rrC'f€ Le'2;s !lk'2; 3;.;6, 8,,;;8,890, etc:? 

Rgds/ 

From: ~·1itchell Rona 

Sent: Monday, March 10, 2008 10: 55 PM 

To: VP (Victor Pais - CRM) 

Cc: 5Bl (5iddharth Bhattacharji-CRM); GRl (Gopi Ramanathan-CRM); 551; C51 (Craig 

Schapiro - CRM); 5B2 (Stuart Box - CRM) 

Subject: FW: 3"-8" DIWF from Tyler/Union 

Guys, 

SIG - 0054525 

Confidential 

FOIA Exempt 

PUBLIC CX 1124-001
Please; red\j be!ow from Rick. 

He had in\jicated that he wanted to limit the # of iterns they supply us in his first email. 

He has now provided a list (below) but says it is nDt firm, 

He cie.Jriv stated tfl~)Y llon't want us to fl.Jve .J complete dOm~)5tic ran;~e so we could 

quote dmnestit: jobs. 

! wid him we have no interest at this time 10 seii against Tvier in the domestic market 

said I'm sure ·1<'./8 could aSSUI'E) Tyler nf tilat fBCt. 

He-): .said if they found different they would stop .selling LIS. 

He Bi1id 11e hears tllat some of the new prices in fhe mariwt am being compromised witll 

deals. He hopes the market ·will irnprove and hopes do our part. 

! gave him the SO,55 max number tor glands, He said he would re-vie."" and try and give 

us $0.54 to $0.50. 

He felt tile expolt incentive wuuiLl not be i-edLiceu cun~hjeriijg the steep incl-e8~e:5 in li;i'i'</ 

matf:ria.is arld currency appreciAtion. 

He said A-1 should he very cOnCernf)cj about not he environmentally compliant ancj that 

after this OlympiGs this Gould quickly beGOmf) an,j issue. 

Let me knml'.J if Hlis range or the limited range can generate the 200 tons and that i5 fhe 

road we ·want to go. 

He aiso said ihat scrap is up and ii"mi he wuuiu quaiify his fiUings and giand quoie. 

Thanks. 

Milchell 

From: Rick Tatman [mailto:rtatman@tylerunlon.com] 

Sent: Monday, March 10, 2008 2:47 PM 

To: Mitchell Rona 

Subject: FW: 3"-8" DIWF from Tyler/Union 

Mitchell, 

Looks like I never 3Gtually provided the item list. Below is what we were Gonsidering 

internally. 

On fittings we'd need at least 200 tons per month of volume in order for this to make 

sense logistically. 

SIG - 0054526 

Confidential 

FOIA Exempt 

Please; red\j be!ow from Rick. 

He had in\jicated that he wanted to limit the # of iterns they supply us in his first email. 

He has now provided a list (below) but says it is nDt firm, 

He cie.Jriv stated tfl~)Y llon't want us to fl.Jve .J complete dOm~)5tic ran;~e so we could 

quote dmnestit: jobs. 

! wid him we have no interest at this time 10 seii against Tvier in the domestic market 

said I'm sure ·1<'./8 could aSSUI'E) Tyler nf tilat fBCt. 

He-): .said if they found different they would stop .selling LIS. 

He Bi1id 11e hears tllat some of the new prices in fhe mariwt am being compromised witll 

deals. He hopes the market ·will irnprove and hopes do our part. 

! gave him the SO,55 max number tor glands, He said he would re-vie."" and try and give 

us $0.54 to $0.50. 

He felt tile expolt incentive wuuiLl not be i-edLiceu cun~hjeriijg the steep incl-e8~e:5 in li;i'i'</ 

matf:ria.is arld currency appreciAtion. 

He said A-1 should he very cOnCernf)cj about not he environmentally compliant ancj that 

after this OlympiGs this Gould quickly beGOmf) an,j issue. 

Let me knml'.J if Hlis range or the limited range can generate the 200 tons and that i5 fhe 

road we ·want to go. 

He aiso said ihat scrap is up and ii"mi he wuuiu quaiify his fiUings and giand quoie. 

Thanks. 

Milchell 

From: Rick Tatman [mailto:rtatman@tylerunlon.com] 

Sent: Monday, March 10, 2008 2:47 PM 

To: Mitchell Rona 

Subject: FW: 3"-8" DIWF from Tyler/Union 

Mitchell, 

Looks like I never 3Gtually provided the item list. Below is what we were Gonsidering 

internally. 

On fittings we'd need at least 200 tons per month of volume in order for this to make 

sense logistically. 

SIG - 0054526 

Confidential 

FOIA Exempt 

PUBLIC CX 1124-002
Glands are a some'v'ihat easier change aver process to run yaur Brand sa the monthly 

volume hurdle on Glands would 100 tons. 

8" Pattern Combinations 

~"4oMJCpt 

8".22J/2.MJ.Cpt 

8"11Y4MJCpt 

:6" MJ Pattern Combinations 

__ ,_?_': __ ~_LI_~_~_ ~r_t __ _ . l5'j..1JxSwlJ:eeCRt .... 

'4" MJ Pattern Combinations 

:4" MJ I ee Cpt 

···.·.4".MJ114.BdCpt .. 

·6x4" MJ Tee Cpt ;4" MJ 45 Bd Cpt 

'5'j..1J90BdCpt 

'5" MJ 45 Bd Cpt 

. ... .. . .4"M)221I2BdCpt 

4"MJ111!4BdCpt 

5" MJ 22 1 (2" Bd Cpt 

'5" MJ 11 .1/4 ,Bd Cpt 

'R~ ('Rick) 7~ 

VP&GM Tyler/Union 

McWane Waterworks Fittings Division 

(903) 882-240 

rtatma!1@tylerunio!1.Gorn 

From: Rick Tatman [mailto:RTatman@TylerPipe,com] 

Sent: Friday, February 01, 2008 8:06 AM 

To: 'vp@sigmaco.com' 

Cc: ' (rpage@mcwane.com)'; 'Leon McCullough (Imcculiough@clowvalve.com)'; 'Thomas 

Walton (twalton@MH-Valve.com)' 

Subject: 3"-8" DIWF from Tyler/Union 

Victor, 

For your consideration I'd like to propose providing Sigma with 3" - 8" 

Ductiie iron Waterworks fittings @ $'j ,220 per ton FOB Anniston, AL. 

Terms would be 30 days net With no discounts allowed. 

As some tooling modifications are required to incorporate the Sigma 

branding, we'd iimii ihe avaiiabiiiiy io ihe iop 'i2-20 items and require a 

substantial minimum volume commitment. 

There are probably other commercial or legal issues I'd need to check on 

prior io being abie to make a firm commitment. Before going through that 

exercise, I'd like to receive your feedback on the conditions above as well 

as the voiume commitment Sigma wouid be comfortabie committing to. 

Regards, 

~ (~) '7ar-u. 

VP & GM Tyler/Union 

McWane Waterworks Fittings Division 

(903) 882-2440 

SIG - 0054527 

Confidential 

FOIA Exempt 

Glands are a some'v'ihat easier change aver process to run yaur Brand sa the monthly 

volume hurdle on Glands would 100 tons. 

8" Pattern Combinations 

~"4oMJCpt 

8".22J/2.MJ.Cpt 

8"11Y4MJCpt 

:6" MJ Pattern Combinations 

__ ,_?_': __ ~_LI_~_~_ ~r_t __ _ . l5'j..1JxSwlJ:eeCRt .... 

'4" MJ Pattern Combinations 

:4" MJ I ee Cpt 

···.·.4".MJ114.BdCpt .. 

·6x4" MJ Tee Cpt ;4" MJ 45 Bd Cpt 

'5'j..1J90BdCpt 

'5" MJ 45 Bd Cpt 

. ... .. . .4"M)221I2BdCpt 

4"MJ111!4BdCpt 

5" MJ 22 1 (2" Bd Cpt 

'5" MJ 11 .1/4 ,Bd Cpt 

'R~ ('Rick) 7~ 

VP&GM Tyler/Union 

McWane Waterworks Fittings Division 

(903) 882-240 

rtatma!1@tylerunio!1.Gorn 

From: Rick Tatman [mailto:RTatman@TylerPipe,com] 

Sent: Friday, February 01, 2008 8:06 AM 

To: 'vp@sigmaco.com' 

Cc: ' (rpage@mcwane.com)'; 'Leon McCullough (Imcculiough@clowvalve.com)'; 'Thomas 

Walton (twalton@MH-Valve.com)' 

Subject: 3"-8" DIWF from Tyler/Union 

Victor, 

For your consideration I'd like to propose providing Sigma with 3" - 8" 

Ductiie iron Waterworks fittings @ $'j ,220 per ton FOB Anniston, AL. 

Terms would be 30 days net With no discounts allowed. 

As some tooling modifications are required to incorporate the Sigma 

branding, we'd iimii ihe avaiiabiiiiy io ihe iop 'i2-20 items and require a 

substantial minimum volume commitment. 

There are probably other commercial or legal issues I'd need to check on 

prior io being abie to make a firm commitment. Before going through that 

exercise, I'd like to receive your feedback on the conditions above as well 

as the voiume commitment Sigma wouid be comfortabie committing to. 

Regards, 

~ (~) '7ar-u. 

VP & GM Tyler/Union 

McWane Waterworks Fittings Division 

(903) 882-2440 

SIG - 0054527 

Confidential 

FOIA Exempt 

PUBLIC CX 1124-003
No vims found in tilis outgoing mcssagc. 

Checked by A VG Free Edition. 

Version: 7.5.516! Virus Database: 269.19.1711253 - Release Date: 1/31/20089:09 AM 

SIG - 0054528 

Confidential 

FOIA Exempt 

No vims found in tilis outgoing mcssagc. 

Checked by A VG Free Edition. 

Version: 7.5.516! Virus Database: 269.19.1711253 - Release Date: 1/31/20089:09 AM 

SIG - 0054528 

Confidential 

FOIA Exempt 

PUBLIC CX 1124-004
PUBLIC

CX 1396 
CX 1396-001 PUBLIC
CX 1396-002 PUBLIC
PUBLIC

CX 1401 
CX 1401-001 PUBLIC
CX 1401-002 PUBLIC
PUBLIC

CX 1751 
CX 1751-001 PUBLIC
PUBLIC

CX 2252 
CX 2252-001 PUBLIC
CX 2252-002 PUBLIC
PUBLIC

CX 2445 
From: 

Sent: 

To: 

Subject: 

Attachments: 

DAVE PIETRYGA [davepie@msn.com] 

Tuesday, Decembei' 22, 2009 09:~2:0~ AM 

M20 

FW: Tyler Import Price Increase 

20091222095059283.pdf 

> From: scanner@sigma chi2k 

> Subject: 

> To: dp2@sigmaco.com 

> Date: Tue, 22 Dec 2009 09:50:59 +0000 

> 

> This E-mail was sent from "ricoh" (Aficio 2018D). 

> 

> Scan Date: 12.22.200909:50:59 (+0000) 

> Queries to: scanner@sigma_chi2k 

SIG ·0002008 

Confidential 

FOIA Exempt 

PUBLIC CX 2445-001
Dec. n 2009 9: 16AM --"Ferg"on W.terworks 527" ··"'No.8360"'''P. I'· ti, • 

December:2 i. 2009 

To: Tyler Union Customers In Ihe following States: 

ME, VT, NH, MA, fil, CT, NY, NJ, DE, MD, VA, WV, NC, SC, GA, Flo PR, AI., M~.;, TN, 

KY, OH, IN, IL, MI, WI, MN, lA, MO, Afi, LA, TX, OK, KS, NE, SO, NO, Wf, CO, NM 

Effecti"" Friday, January 22, 2010, Tyler Union will be implementing a price ,incre"se on .11 

ductile iron watervvorks fittings, gland and accessory products. This increa5e wm 00 

accomplished by an increa:Je in our pubJi5hed muUipliers for thosa products again5t our current 

LIst Prlos, LP 5091. as follows; 

Non Dcrn~§;ie -lmjJurt Product Group 

27 Utility Fittings C110 and C153 (3"- 411") 

.27 Accessories (3"-48'1 

Non Domestrc Vaive and Service B~Xe$ ,- Call for Pricing 

All annual ml,.lnieiDai 'bid cont~et§; \lYi1l be hcmored per the terms lOr tt .. ~ contrai~. JrJbs quoted 

prior to todays a;mouncemehl will bo honored through January 22, 2010. 

-' ii, :~ 

If you have any qu..~lion\' reQarciin~ 'h~ announcemen~ pi"" ... contact your local Tyler Un;"n 

lerritory manager, We look forward to continuing to work together to provide you and the 

waterworks indusfryqu.lily products and s.,Nice. 

We thank you for your business and support. 

Jeny Jansen 

National Sales Manager 

SIG - 0002009 

Confidential 

FOIA Exempt 

PUBLIC CX 2445-002
 

 

 

 

CERTIFICATE OF SERVICE
 

PUBLIC

I hereby certify that on September 5, 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 

 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 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 
 

 

 

PUBLIC

Matthew A. White 

Ballard Spahr LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103-7599 

(215) 864-8849 

whitema@ballardspahr.com 

Counsel for Sigma Corporation 

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. 

September 5, 2012 By: s/ Thomas H. Brock 

Attorney