UNITED STATES OF AMERICA 


FEDERAL TRADE COMMISSION 


OFFICE OF ADMINISTRATIVE LAW JUDGES 


) 

In the Matter of ) 

) 

McWANE, INC., ) 

a corporation, and ) DOCKET NO. 9351 

) 

STAR PIPE PRODUCTS, LTD., ) 

a limited partnership, ) 

Respondents. ) 

) 

ORDER DENYING MOTION TO QUASH SUBPOENAS OR 

FOR PROTECTIVE ORDERFILED BY MR. TOMMY E. BRAKEFIELD 

I. 

On September 4,2012, non-party Mr. Tommy E. Brakefield ("Mr. Brakefield") filed a 

motion for a protective order or an order quashing subpoenas ad testificandum served on him in 

this matter ("Motion"). Complaint Counsel filed an Opposition to the Motion on September 4, 

2012 ("Opposition"). Respondent McWane, Inc. ("Respondent") represented at the trial in this 

matter that it does not intend to file a response to the Motion. For the reasons set forth below, 

the Motion is DENIED. 

II. 

Mr. Brakefield, a retired former employee of Sigma Corporation ("Sigma"), who also 

held the title ofPresident ofthe Ductile Iron Fittings Research Association ("DIFRA") during 

the efforts to organize that association, filed a motion to quash subpoenas ad testificandum 

compelling Mr. Brakefield's testimony at trial. Mr. Brakefield asserts that he was previously 

called as a witness by Complaint Counsel to give deposition testimony on May 4,2012, and that 

he has given one declaration to Complaint Counsel and one at the request ofRespondent on the 

authenticity ofdocuments. Mr. Brakefield asserts that he resides in Alabama, that he has been 

called to be a witness at trial in Washington, D.C., and that he has not been advised ofthe 

specific date on which he will be called to testify. Mr. Brakefield argues that it is both 

burdensome and unnecessary for Mr. Brakefield to be required to be available for multiple days 

and to travel to Washington, D.C., when his testimony is fully known and available to counsel 

and the Court. 

Complaint Counsel asserts that Mr. Brakefield was the National Sales Manager of alleged 

co-conspirator Sigma and the President ofDIFRA, the trade association that the Complaint 

alleges implemented an unlawful information exchange among the three primary suppliers of 

ductile iron fittings, Sigma, Star Pipe Products Ltd. ("Star"), and Respondent. Complaint 

Counsel charges that due to Mr. Brakefield's participation in, and proximity to, the alleged 
wrongdoing at issue in this case, his presence at trial is vital to the resolution ofthe claims. 

Specifically, Complaint Counsel asserts that Mr. Brakefield's testimony at trial will be directly 

relevant to whether DIFRA facilitated collusion between Sigma, Star, and Respondent, which 

Complaint Counsel contends is one ofthe issues at the heart ofthe Complaint. 

III. 

Mr. Brakefield provides no grounds for seeking to quash the subpoenas ad testificandum 

other than he has previously provided deposition testimony and declarations in this matter and 

that he does not wish to travel from Alabama to Washington, D.C. A party is "entitled to require 

[a non-party's] attendance at the trial despite his previous deposition since the purpose of 

depositions is to prepare for trial, not to serve as a substitute for live testimony in court." In re 

Coca-Cola Co., 1990 FTC LEXIS 204, *1 (June 12, 1990). Accordingly, the fact that Mr. 

Brakefield has previously provided deposition testimony does not provide a basis to quash the 

subpoenas for trial testimony. 

Further, Mr. Brakefield's claim that attending trial would be burdensome does not 

overcome Complaint Counsel's right to present Mr. Brakefield's live trial testimony. Complaint 

Counsel states that it has informed Mr. Brakefield that he need not bear the cost ofhis travel or 

his lodging in connection with his testimony at trial. The fact that appearance at trial presents 

some burden on an individual does not protect him from providing testimony. See In re 

Schering-Plough, FTC Docket 9297 (ALJ Chappell, Nov. 72001) (Order Denying AHP's 

Motion to Quash) (compelling executives to provide deposition testimony although they had 

previously provided testimony at an investigational hearing). 1 Accordingly, Mr. Brakefield's 

claim that the subpoenas ad testificandum impose a burden on him does not provide a sufficient 

basis to quash the subpoenas for trial testimony. 

IV. 

For the above stated reasons, Mr. Brakefield's Motion is DENIED. Complaint Counsel 

shall provide to Mr. Brakefield notice ofthe specific date it intends to call Mr. Brakefield at trial, 

and an estimate ofthe length ofhis testimony in hours. 

ORDERED: 


Date: September 5,2012 

I Complaint Counsel cites In re Schering-Plough Co., 2001 FTC LEXIS 176 (2001) for the proposition, inter alia, 

"this Court reiterated that depositions are taken in anticipation of, and not in lieu of, live trial testimony." 

Opposition at 2. However, the document cited by Complaint Counsel is titled "Complaint Counsel's Opposition to 

AHP's Motion to Quash Two Subpoenas Ad Testificandum Served On AHP After AHP's Withdrawal From 

Adjudication and, In The Alternative, For Protective Order." Complaint Counsel's brief, although posted on Lexis, 

is not "this Court's" reiteration, nor does it constitute any legal authority. 

2