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UNITED STATES OF AMERICA 5fb tY

BEFORE THE FEDERAL TRADE COMMISSION

In the Matter of )

)

)

)

)

)

Docket No. 9327

Polypore International, Inc.

a corporation PUBLIC DOCUMENT

RESPONDENT'S RESPONSE TO ENERSYS' MOTION TO

EXTEND TIME TO PRODUCE DOCUMENTS

Respondent Polypore International, Inc. ("Polypore") submits its memorandum in

response to EnerSys' ("EnerSys") Motion to Extend Time To Produce Documents. Respondent

states as follows:

1. On November 7, 2008, EnerSys was served by Respondent with a subpoena duces

tecum (the "Subpoena").

2. On December 16, 2008, EnerSys moved for an award of attorneys' fees and to

limit the Subpoena.

3. EnerSys' Motion for Award of Attorneys' Fees and Costs and to Limit Subpoena

Served on Non-Party was contrary to an abundance of existing Federal Trade Commission

. ("Commission" of "FTC") authority on the issues raised therein and was without basis.

4. On December 24, 2008, Respondent fied a Memorandum in Opposition to

EnerSys' Motion for Award of Attorneys' Fees and Costs and to Limit Subpoena Served on

Non-Pary ilustrating the deficiencies in EnerSys' argument to limit the Subpoena and recover

its costs.

PPAB 1525694vl
5. By Order dated January 15, 2009 ("January 15th Order"), this Court denied

EnerSys' motion for an award of attorneys' fees and to limit the Subpoena and ordered EnerSys

to produce all responsive documents within ten calendar days. The Court found that EnerSys

was not entitled to its costs or fees, and that Respondent's Subpoena sought relevant information

and was not overly broad or unduly burdensome.

6. Importantly, in the interim between December 16, 2008 when EnerSys moved for

an award of attorneys' fees and to limit the Subpoena and the January 15th Order, EnerSys did

not take any steps to review, or ready for production, the documents sought by Respondent's

Subpoena. (EnerSys' Motion to Extend Time to Produce Documents, ii 12).

7. Instead, on January 20, 2009, EnerSys filed a Motion to Extend Time to Produce

Documents in which it sought to extend, by ten days (through February 4,2009), the deadline by

which it must produce documents pursuant to Respondent's Subpoena.

8. Respondent canot afford any further delay from EnerSys, as important deadlines

are approaching.

9.

13,2009.

The current discovery deadline, including fact-witness depositions, is February

10. The deadline for Respondent's counsel to produce its expert reports is currently

February 20,2009.

11. The extension sought by EnerSys would be unfair and prejudicial to Respondent

absent the Cour granting Respondent's Motion to Amend the Scheduling Order which was filed

on Januar 16,2009.

2

PPAB 1525694vl
12. The information Respondent seeks from EnerSys is needed not only for the

deposition examinations of EnerSys' witnesses by Respondent's counsel, but is also needed so

that Respondent's economist can formulate his opinions and create an expert report.

13. In fairness to Respondent and Respondent's economist, Respondent must be

provided with EnerSys' documents in a timely manner. It would be manifestly unjust and

prejudicial to Respondent for Respondent's economist to have to prepare his report in piecemeal

fashion - without access to documents or deposition testimony from EnerSys - or to submit his

report only to be forced to later supplement the report after EnerSys has produced documents

and/or made its witnesses available for deposition. Respondent's economist should be permitted

to formulate his opinions based upon a complete production from third parties, not from

piecemeal productions provided after the deadline for submitting expert reports.

14. In light of the approaching discovery deadlines, it would also be unfair and

prejudicial to Respondent if it could not proceed timely with its discovery. Pursuant to Joint

Motion of Respondent and EnerSys for Leave of Court to Conduct Depositions of EnerSys and

EnerSys Employees After the Discovery Deadline, depositions of EnerSys' witnesses must be

completed within 14 days of the receipt by Respondent's counsel of the completed document

production by EnerSys.

15. The extension EnerSys seeks would not require EnerSys' document production to

be complete until the first week of February and would therefore further delay the depositions of

EnerSys' witnesses. Such a delay wil severally hinder Respondent's ability to comply with its

deadlines (including the February 20,2009 expert report deadline), wil have a detrimental effect

on the abilty of Respondent's economist to conduct his work in an efficient and proper maner,

3

PPAB 1525694vl
and wil adversely effect Respondent's preparation of its defense for the trial scheduled for April

14,2009.

WHEREFORE, Respondent respectfully requests that the Court deny EnerSys' Motion to

Extend Time To Produce Documents.

4

PPAB 1525694vl
Dated: January 23, 2009 Respectfully Submitted,

~--~

- -; - /L;: o.

Wiliam L. Rikard, Jr.

Eric D . Welsh

PARKR POE ADAMS & BERNSTEIN, LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 372-9000

Facsimile: (704) 335-9689

wiliamrikard~parkerpoe.com

ericwelsh~parkerpoe.com

John F. Graybeal

PARKR POE ADAMS & BERNSTEIN, LLP

150 Fayettevile Street

Raleigh, NC 27602

Telephone: (919) 835-4599

Facsimile: (919) 828-0564

i ohngraybeal~parkerpoe.com

Attorneys for Respondent

PPAB 1525694vl
CERTIFICATE OF SERVICE

I hereby certify that on January 23, 2009, I caused to be fied via hand delivery and

electronic mail delivery an original and two copies of the foregoing this Respondent's Response

to EnerSys' Motion to Extend Time To Produce Documents, and that the electronic copy is a

true and correct copy of the paper original and that a paper copy with an original signature is

being fied with:

Donald S. Clark, Secretary

Office of the Secretary

Federal Trade Commission

600 Pennsylvania Avenue, NW, Rm. H-135

Washington, DC 20580

secretarv~ftc. gov

I hereby certify that on January 22, 2009, I caused to be served one copy via electronic

mail delivery and two copies via overnight mail delivery of the foregoing Respondent's

Response to EnerSys' Motion to Extend Time To Produce Documents upon:

The Honorable D. Michael Chappell

Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

oali~ftc.gov

I hereby certify that on January 22, 2009, I caused to be served via first-class mail

delivery and electronic mail delivery a copy of the. foregoing Respondent's Response to

EnerSys'Motion to Extend Time To Produce Documents upon:

J. Robert Robertson, Esq.

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

rrobertson~ftc.gov

Steven Dah, Esq.

Federal Trade Commission

600 Pennsylvania A venue, NW

Washington, DC 20580

sdah~ftc. gov

Neil C. Schur, Esq.

Stevens & Lee, P. C.

1818 Market Street, 29th Floor

Philadelphia, P A 19103

NCSC~stevenslee.com

PPAB 1525694vl
Brian R. W eyhrich ~ 3~ ~j!

Parker Poe Adams & Bernstein LLP

Three Wachovia Center

401 South Tryon Street, Suite 3000

Charlotte, NC 28202

Telephone: (704) 335-9050

Facsimile: (704) 334-4706

PPAB 1525694vl
i PARR POE

Wilam L. Rird, Jr.

Parer

Telephone: 704,335,9011

Direct Fax; 704.335.9689

wilamkard(iparkerpoe.com

PAR POEADAMS & BERSTEI LLP

Attorneys and Counselors at Law

January 23, 2009

Three Wachovia Center

401 South Tryon Street

Suite 3000

Charlotte, NC 28202-1942

Telephone 704.372.9000

Fax 704,334.4706

ww.parkerpoe.com

VIA PERSONAL DELIVERY AND ELECTRONIC MAIL

Donald S. Clark, Esq.

Secretary

Office of the Secretary of the Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Room H-135

Washington, DC 20580

Re: In the Matter of Polyp ore International, Inc., Docket No. 9327

Dear Secretary Clark:

On behalf of Respondent Polypore International, Inc., I enclose for fiing a paper original

and two (2) copies of the following documents:

· Respondent's Response to EnerSys' Motion to Extend Time To Produce

Documents

Respectfully submitted, () d/ ~J

Wiliam L. Rikard, Jr.

WLR:psa

Enclosures

cc: 1. Robert Roberton, Esq. (w/encl)

Steven Dah, Esq. (w/encl)

Eric D. Welsh., Esq. (w/o encl)

John F. Graybeal, Esq. (w/o encl.)

Deborah L. Edney, Esq. (w/o encl)

Adam Shearer, Esq. (w/o encl)

CHAESTON, SC

COLUMIA, SC

MYRTLE BEACH, SC

RAEIGH, NC

SPARTANURG, SC

PPAB 1525813vl