UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, et al.,
FIRST DATA & CONCORD EFS, INC.,
Civil Action No. 03-2169 (RMC)
SCHEDULING AND CASE MANAGEMENT ORDER
COUNSEL SHOULD CAREFULLY REVIEW THIS ORDER AND NOTE ADDITIONS
AND MODIFICATIONS MADE TO THE PROPOSED ORDER SUBMITTED BY THE
In accordance with FED. R. CIV. P. 16 , it is this 31st day of October, 2003, hereby
- Response to the Complaint. The United States having filed its Complaint on
October 23, 2003, Defendants shall file their answers to the Complaint no later than October 31,
- Discovery Period Excluding Expert Witness Discovery. The period for all
fact discovery shall begin upon entry of this order and shall be completed by December 5, 2003. All
discovery shall be served in a time frame that will permit timely responses, under this Order or
pursuant to the Federal Rules of Civil Procedure, by December 5, 2003.
- Expert Witness Reports and Depositions. Each party shall serve initial expert
report(s) in conformity with FED. R. CIV. P. 26(a)(2) no later than November 19, 2003. Initial expert
reports shall contain all opinions held by the expert as of November 19, 2003 but need be based only
on information in the possession of the respective party(ies) on or before October 23, 2003. Each
party shall serve supplemental and rebuttal expert report(s) on December 1, 2003. Supplemental
expert report(s) shall be limited to information disclosed to the submitting side after October 23,
2003 and prior to November 24, 2003 and may also contradict or rebut evidence in an opposing
side's previously disclosed expert report(s). Unless otherwise agreed, depositions of the parties'
experts shall be conducted after the exchange of the above-referenced reports and shall be completed
by December 11, 2003. The parties agree that communications with counsel, including draft expert
reports, are not subject to discovery.
- Exchange of Witness Lists. The parties shall exchange witness lists, compiled in
accordance with FED. R. CIV. P. 26(a)(3)(A), no later than November 10, 2003, limited to 15
witnesses per side, including experts. No more than 5 witnesses may be added or substituted for
witnesses previously listed, but in no event may the total number of witnesses included in the
November 21 witness list exceed 15. All substitutions shall be made by November 21, 2003, except
by agreement among the parties or by order of this Court upon good cause shown. The parties shall
exchange tentative trial witness lists containing the order of their witnesses and the estimated time
of direct examination on December 10, 2003. The parties shall exchange final trial witness lists
containing the order of their witnesses and the estimated time of direct examination and cross
examination on December 12, 2003. These witness lists and time estimates, on December 10 and
December 12, shall be submitted to the Court.
- Daubert Hearing. The Court will hold a hearing on Daubert and sufficiency of expert
disclosure issues on December 5, 2003, to start at 1:00 p.m and to terminate no later than 5:00 p.m..
To save trial time, this hearing shall be held for the benefit of the Court to explore the bases for
expert opinions even if there are no disputes that require a Daubet hearing.
- Pre-Trial Briefs. The parties shall submit pre-trial briefs to the Court on or before
December 10, 2003.
- Pre-Trial Conference. The Court will schedule a pre-trial conference as its calendar
- Trial. A trial shall be held, beginning on December 15, 2003, and proceeding for
seven business days through December 23, 2003. The estimated trial time is fifty (50) hours, to be
conducted with chess clocks and divided between Plaintiffs and Defendants. At the status
conference to be held on Wednesday, November 5, 2003, Plaintiffs are directed to inform the Court
of the expected division of trial time amongst Plaintiffs, and Defendants are directed to inform the
Court of the expected division of trial time amongst Defendants. Each side may also advance its
position as to the percentage of trial time it should receive.
II. CASE MANAGEMENT
- Initial Disclosure. The parties shall not be required to provide initial disclosures
pursuant to Rule 26(a).
- Limit on Number of Depositions. Each side may take no more than 25 fact witness
depositions, excluding any document custodian depositions that may be necessary to establish the
admissibility of documents.
- Limit on Duration of Depositions. In accordance with Rule 30(d)(2) of the Federal
Rules of Civil Procedure, all depositions are limited to one day 7 hours in length. To the extent
either side takes more than 3.5 hours of deposition testimony of a non-party deponent, the other side
shall be permitted to exceed 3.5 hours by an equal amount of time. If any party seeks to depose a
non-party witness for more than 3.5 hours, that party will provide all parties with 48 hours notice of
an intention to exceed the 3.5 hour limitation on deposition examination. The parties and nonparties,
if applicable, may stipulate to additional time for individual depositions. The deposition of
defendants' 30(b)(6) witness as concerning alleged efficiencies shall be limited to two days in length.
Absent agreement of the parties, the duration of depositions provided for in this Order may be
modified only by order of this Court for good cause shown.
- Use of the Government's Investigative Oral Examination Transcripts of Party
Witnesses. Defendants will not object on hearsay grounds to the admissibility of transcripts of oral
examinations of individuals who were their employees when examined, that were conducted by the
Plaintiffs during Plaintiffs' investigation of the transaction underlying this action. Proffered
testimony must be identified by line and page number at the same time and in the same manner as
deposition designations. If Plaintiffs offer investigative deposition testimony at trial, and the
Defendants were not permitted to defend the deposition, these witnesses may be called at trial for
purposes of cross-examination and re-direct.
- Limit on the Number of Rule 45 Document Subpoenas. Neither side shall serve
more than 25 document subpoenas on non-parties.
- Limits on Written and Document Discovery. All document requests to parties shall
be responded to and responsive documents produced within 10 calendar days after service. Parties will produce documents in either hard copy form, or, in the case of electronic documents, in the
native electronic format (or a mutually agreeable format). Defendants agree to maintain documents
previously produced to the Government through the Daticon website with at least the same level of
availability and functionality as has been provided over the past 10 days. Plaintiffs need not produce
either of the Defendant's documents to either of the Defendants. Each party need only produce two
copies of responsive documents to the other side. Each side shall be limited to propounding no more
than 10 Requests For Admissions and 10 Interrogatories.
- Exchange of Deposition Designations. The parties shall exchange (page and line
number) designations of deposition testimony to be offered at trial no later than December 8, 2003.
Each party must provide objections and counter designations to designated deposition testimony no
later than December 11, 2003. Fairness designations applicable solely to counter designations and
objections to any counter designations shall be exchanged no later than December 12, 2003. Full
copies of any depositions or investigative oral examinations that the parties may rely upon at trial
or in brief shall be submitted to the Court no later than December 8, 2003. If either party offers
deposition testimony in lieu of live trial testimony, such witness(es) may be called at trial for
purposed of cross-examination and re-direct.
- Exchange of Exhibits and Exhibit Lists. No later than December 8, 2003, the
parties will exchange numbered sets of all exhibits that the parties anticipate introducing at trial,
limited to 200 document exhibits per side (excluding demonstrative exhibits, which do not need to
be included on exhibit lists, but, unless otherwise agreed or ordered, need to be served on all counsel
of record at least 48 hours before any such exhibit may be introduced, or otherwise used, at trial),
compiled in numerical order in notebooks and with lists of the exhibits itemizing each exhibit by date and Bates number (if applicable) and a brief description. Such lists will be compiled in an
agreed upon electronic format capable of being sorted by exhibit number, chronological order, and
Bates-stamp alphabetical and numerical order. All documents contained on a party's exhibit list
must have been previously produced during the investigation underlying this action or during
discovery in this case. The parties will exchange any objections to the exhibits to be offered by the
other side no later than December 11, 2003. Exhibit lists need not include exhibits used solely for
purposes of cross examination or rebuttal. Exhibit lists properly itemized shall be submitted to the
Court no later than December 8, 2003.
- Service of Pleadings and Discovery on Other Parties. Plaintiff and Defendants
shall serve all pleadings and discovery requests, including Rule 45 subpoenas for documents, on
the other parties (to person(s) designated by that party) by either e-mail or facsimile (on the day of
service or filing). Any party served by e-mail will promptly confirm receipt. Plaintiff and
Defendants shall serve the Washington D.C. office of counsel representing the other parties, on the
day of filing, if attachments are not transmitted by e-mail or facsimile. Electronic delivery (with
confirming receipt) shall constitute hand delivery for purposes of calculating discovery response
times under the Federal Rules. To minimize burdens on non-parties, any documents produced to a
party by a non-party, pursuant to a Rule 45 subpoena for documents, shall be copied by the party that
issued the subpoena and served by overnight delivery by that party on the other side within one
business day after receipt of the documents.
- Nationwide Service of Subpoenas. Good cause having been shown in view of the
geographic dispersion of potential witnesses in this action, the parties are permitted, pursuant to
15 U.S.C. §23, to issue trial subpoenas that may run into any other district requiring witnesses to attend this Court. The availability of nationwide service of process, however, does not make a
witness that is otherwise "unavailable" for purposes of FED. R. CIV. P. 32, and FED. R. EVID. 804,
available under those rules.
- Consummation of the Transaction. The Defendants shall not consummate the
proposed transaction for at least five business days following a final order by this Court.
- Evidentiary Presumptions. Documents produced by non-parties or a party from its
own files shall be presumed to be authentic and business records within the meaning of FED. R.
EVID. 901 and 803(6) provided that the party intending to introduce such a document gives 5 days
written notice (specifying production numbers or the equivalent) of its intent to the other parties.
If the opposing side serves a specific good faith written objection to the document's authenticity or
its status as a business record within 5 days of receiving the notice, the above presumption will no
longer apply to that document and the parties will promptly meet and confer to attempt to resolve
any objections. Any objections that are not resolved through this means or the discovery process will
be resolved by the Court.
- Discovery Dispute Resolution: Counsel are expected to conduct themselves in a civil,
polite, and professional manner at all times, particularly during discovery. Counsel are referred to
Local Rule LCvR 26.2 and expected to fully conform with its directives. Moreover, counsel are
required, under both Federal Rule of Civil Procedure 26(f) and Local Rule LCvR 7.1(m), to confer
in good faith in an effort to resolve any discovery dispute before bringing it to the Court's attention.
If, in what should be the unusual case, counsel are unable to resolve their dispute, counsel shall
contact chambers in order to arrange for a telephone conference with the Court. Counsel shall not
file discovery motions without a prior conference with the Court and opposing counsel.
- Weekly Status Conference: A weekly telephonic status conference is scheduled for
each Wednesday at 4:45 p.m.
- Modification of this Order. This Order shall control the subsequent course
of this action, unless modified by agreement of the parties and approved by the Court or modified
by the Court for good cause shown.
ROSEMARY M. COLLYER
United States District Judge