September 23, 2002

September 24, 2002

September 26, 2002

October 1, 2002

October 1, 2002

October 3, 2002

October 7, 2002

October 11, 2002

October 10, 2002

October 17, 2002

October 21, 2002

Respondents’ Counsel provides expert witness reports.

Deadline for filing motions for in camera treatment of proposed
trial exhibits.

Deadline for filing motions in limine and motions to strike (except
as to experts).

Deadline for filing responses to motions for in camera treatment of
proposed trial exhibits.

Deadline for motions for summary decision.

Deadline for filing responses to motions in limine and motions to
strike.

Complaint Counsel to identify rebuttal expert(s) and provide
rebuttal expert report(s). Any such reports are to be limited to
rebuttal of matters set forth in Respondents’ expert reports. If
material outside the scope of fair rebuttal is presented, Respondents
will have the right to seek appropriate relief (such as striking
Complaint Counsel’s rebuttal expert reports or seeking leave to
submit sur-rebuttal expert reports on behalf of Respondents).

Exchange and serve courtesy copy on ALJ objections to final
proposed witness lists and exhibit lists. Exchange objections to the
designated testimony to be presented by deposition and counter
designations.

Deadline for depositions of experts (including rebuttal experts),
except that any depositions scheduled and confirmed prior to the
entry of this order to be taken between October 11 and October 24
may be taken as scheduled.

Deadline for filing motions in limine and motions to strike as to
experts, except as to motions relating to experts’ whose depositions
were taken between October 11 and October 24, in which case, any
such motion shall be filed within 7 days of the deposition.

Complaint Counsel shall file pretrial brief identifying all factual
issues and legal issues to be decided in this case. Legal issues shall
be supported by legal authority. In addition, the pretrial brief shall
expressly set forth Complaint Counsel's position as to each and

2.


following should be observed. First, for the reasons stated herein, there is justification for adding
this expert. was disclosed relatively late in discovery by Complaint Counsel, and
Respondents have used deliberate diligence in following up with the matters raised in

deposition. This is unlike Complaint Counsel's late-disclosed witnesses, two of which
Complaint Counsel knew of for over a year and did nothing in pursuit, and the third of which
they knew of since this July but did not disclose to Respondents until after discovery closed. In
contrast, Respondents notified Complaint Counsel immediately when it became apparent this
new expert would be required. Second, Respondents have followed proper procedure and have
asked leave of this Court to add the new witness, while Complaint Counsel added its late
disclosed witnesses without first seeking leave. Finally, Complaint Counsel bears the burden of
proof. It ought not be able to stymie CB&I's defense with late witness disclosures that CB&I has
no chance to respond to. If had been disclosed before the end of July, this all would
have been worked out before the discovery deadline. Complaint Counsel ought not be able to
profit from the timing of its disclosure of , or the use by employer of the

protective order to designate the material attorneys’ eyes only.

Dated: Washington, D.C. Respectfully submitted,
October 8, 2002 Y/); ch.
Péane M. Kelley

Peane A. Leon

Greg J. Miarecki
Winston & Strawn

35 W. Wacker Drive
Chicago, IL 60601-9703
(312) 558-5600 (voice)
(312) 558-5700 (fax)
dkelley@winston.com
jleon@winston.com
gmiareck@winston.com


Redacted Pursuant to
Protective Order

EXHIBIT



UNITED STATES OF AMERICA
BEFORE FEDERAL TRADE COMMISSION

)
In the Matter of )
)
CHICAGO BRIDGE & IRON COMPANY N.V.,  )
)
a foreign corporation, )
)
CHICAGO BRIDGE & IRON COMPANY, )
)

a corporation, ) Docket No. 9300
)
and )
)
PITT-DES-MOINES, INC., )
)
a corporation. )
)
ORDER

Upon consideration of Respondents’ Motion for Leave to Modify Their Witness
List, and for good cause shown,

It is ORDERED that Respondents may name an expert witness for the sole
purpose of analyzing and testifying about the analysis of Respondents shall
have until October 9, 2002 to identify an appropriate expert. The expert shall serve his expert
report on Complaint Counsel no later than October 22, 2002. Any deposition of this expert shall

take place on or before October 29, 2002.

ORDERED D. Michael Chappell
October , 2002 Administrative Law Judge


Nada Sulaiman

Winston & Strawn

1400 L Street, N.W.
Washington, D.C. 20005
(202) 371-5700 (voice)
(202) 216-8600 (fax)
nsulaima@winston.com

Counsel for Respondents
Chicago Bridge & Iron Company N.V.
and Pitt Des-Moines, Inc.


Redacted Pursuant to
Protective Order

EXHIBIT

A

—___



UNITED STATES OF AMERICA.
BEFORE FEDERAL TRADE COMMISSION

In the Matter of
PUBLIC VERSION

CHICAGO BRIDGE & IRON COMPANY N.V.,
a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY,

a corporation, Docket No. 9300
and

PITT-DES-MOINES, INC.,

a corporation.

SH SS SS HS SH HH HH HSE

To: The Honorable D. Michael Chappell
Administrative Law Judge

RESPONDENTS' MOTION FOR LEAVE TO MODIFY THEIR WITNESS LIST

Pursuant to Rule 3.22 of the Federal Trade Commission's Rules of Practice ("FTC
Rules"), Respondents Chicago Bridge & Iron Company N.V., Chicago Bridge & Iron Company
(collectively known as "CB&I"), and Pitt-Des Moines, Inc. ("PDM") hereby submit this Motion
for Leave to Modify Their Witness List. In support of their motion, Respondents state as

follows:

1. On July 25, 2002, Complaint Counsel informed counsel for Respondents

that they planned to add a new witness to its witness list --


Redacteg Pursuant to
Protective Order

f EXHIBIT )

TE LEGALe)


Redacted Pursuant to
Protective Order



CERTIFICATE OF SERVICE
I, Nada S. Sulaiman, hereby certify that on this 8th day of October, 2002, I served

a true and correct copy of: Respondents' Motion for Leave to Modify Their Witness List, by

hand delivery upon:

The Honorable D. Michael Chappell
Administrative Law Judge

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580

(two copies)

And by fax and hand delivery upon:

Rhett R. Krulla, Esq.

Acting Assistant Director
Bureau of Competition

Federal Trade Commission

600 Pennsylvania Avenue, N.W.
Room S-3602

Washington, D.C. 20580

Steven L. Wilensky, Esq.
Federal Trade Commission

601 Pennsylvania Avenue, N.W.
Room S-3618

Washington, D.C. 20580

Lidl

Nad Sulaiman

2787151


Exhibit D). There is no way that lawyers can check the accuracy of assumptions
without working with experienced tank engineers and estimators who have immediate access to
During the days
that Respondents’ counsel had analysis, they tried consulting with
Respondents' own estimator employees to obtain the information and analysis necessary to
prepare for trial cross-examination. However, because of the limited amount of
information Respondents’ counsel can disclose to these employees because of the attorneys' eyes
only confidentiality designation, these efforts have been completely stymied. Respondents'
counsel need to work with an expert witness to analyze opinion and backup
inaterials. This witness may ultimately testify regarding that analysis at trial.
8. The Third Revised Scheduling Order states that Respondents’ final witness
list was due on September 19, 2002, and that their expert reports were due on September 23,
2002. (See Third Revised Scheduling Order at 2) (attached as Exhibit E). In light of the
circumstances set forth above (e.g. that Respondents did not even receive the document until
September 23), Respondents request that this Court grant them leave to add one expert estimator
to their witness list, with sufficient time to retain the expert and prepare an expert report.
Specifically, Respondents propose the following schedule:
© On or before October 9 -- Respondents identify an appropriate estimating expert witness.
© On or before October 22 -- Respondents provide an expert witness report.
© Onor before October 29 -- Complaint Counsel to take the expert's deposition.
In the alternative, Respondents request that this Court strike the testimony of
9. Lest Respondents be accused of hypocrisy for moving to add a late witness while

Respondents had previously moved to strike Complaint Counsel's late-disclosed witnesses, the



October 24, 2002

October 24, 2002

October 28, 2002

October 28, 2002

October 30, 2002

November 6, 2002

November 12, 2002

every element required to prove the violations alleged in the
Complaint and to support any defense asserted in the Answer,
including the legal and factual bases in support thereof.

Deadline for filing responses to motions in imine and motions to
strike as to experts, except as to motions in limine or to strike
experts which were filed after the October 17 deadline, in which
case, any response to such motion shall be filed within 7 days of the
filing of such motion.

Exchange proposed stipulations of law, facts, and authenticity.

Respondents’ Counsel shall file pretrial brief identifying all factual
issues and legal issues to be decided in this case. Legal issues shall
be supported by legal authority. In addition, the pretrial brief shall
expressly set forth Respondents’ position as to each and every
element required to prove the violations alleged in the Complaint
and to support any defense asserted in the Answer, including the
legal and factual bases in support thereof.

File final stipulations of law, facts, and authenticity. Any
subsequent stipulations may be filed as agreed by the parties.

Deadline for responses to motions for summary decision.

Final prehearing conference to be held at 10:00 a.m. in room 532,
Federal Trade Commission Building, 600 Pennsylvania Avenue,
N.W., Washington, D.C.

The parties are to meet and confer prior to the conference
regarding trial logistics and proposed stipulations of law, facts, and
authenticity and any designated deposition testimony. Counsel may
present any objections to the final proposed witness lists and
exhibits, including the designated testimony to be presented by
deposition. Trial exhibits will be admitted or excluded to the extent
practicable.

Commencement of Hearing, to begin at 10:00 a.m. in room 532,
Federal Trade Commission Building, 600 Pennsylvania Avenue,
N.W., Washington, D.C.



Redacted Pursuant to
Protective Order



opinion. Initially, counsel for Respondents asked to provide this information without a
confidentiality designation under the protective order. Counsel for Respondents explained to
counsel for that it was necessary to provide analysis to CB&I estimators, so
that those estimators could assist Respondents’ counsel in evaluating all of the line-items in
analysis.

6. Counsel for indicated that his client was unwilling to provide

analysis under these terms because considered the analysis to be sensitive

business information. (See August 23, 2002 Letter from to Jeffrey Leon and

Greg Miarecki at 1) (attached as Confidential Exhibit C). Over the next few weeks, counsel for

Respondents and counsel for conferred regarding this issue. In an attempt to
accommodate concems regarding confidentiality, Respondents agreed to accept the
backup for analysis under an Attorneys' Eyes Only designation. Counsel for

eventually produced this material to Complaint Counsel and counsel for Respondents on

September 23, 2002.

7. Since this time, counsel for Respondents have attempted to analyze these
materials without involving a professional estimator from CB&I. However, the materials
provided by are extremely complex, dense, and require knowledge of estimating
processes that Respondents’ counsel -- who are merely lawyers and not engineers or tank

builders -- simply do not have. compared

(See Analysis) (attached as Confidential


Complaint Counsel advised Respondents that would "provide
information on LIN/LOX tanks, including recent pricing of these tanks." (See July 25, 2002
Letter from Cecelia Waldeck to Jeffrey Leon at 1) (attached as Confidential Exhibit A). Prior to
July 25, 2002, had not appeared on Complaint Counsel's preliminary witness list

(served on April 23, 2002) or its revised witness list (served on May 28, 2002.)

2. is a resident of Tulsa, Oklahoma. Because of the many
depositions already scheduled at the time was disclosed as a witness, the parties were
not able to conduct deposition in Tulsa until August 21. The date was selected because

it coincided with three other depositions that were planned in Tulsa during August 20-21.
3. Dunng deposition, he testified to his belief that the merger
between CB&I and PDM had
(See, e.g., Deposition at 9-11) (attached as Confidential Exhibit
B).

4. As support for his view, claimed to have conducted

5. During the deposition, counsel for Respondents asked counsel for

to provide any written analysis, backup information, or calculations supporting

? To be fair, many witnesses were disclosed by both parties after the revised witnesses lists were due.
Most of these witnesses were deposed without incident or need for further follow-up. The particulars
regarding are a unique situation that has arisen and is not intended as a critique or
complaint over the timing of the disclosure of on July 25. The chronology is simply intended
to give the Court a sense of how we have gotten to this point on October 4, 2002.


UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

CHICAGO BRIDGE & IRON COMPANY N.V.

a foreign corporation,

CHICAGO BRIDGE & IRON COMPANY,

a corporation, and

PITT-DES MOINES, INC.,
a corporation.

Docket No. 9300

Yee HY HL

THIRD REVISED SCHEDULING ORDER

September 13, 2002 -

September 16,2002 -

September 19,2002 -

Parties that intend to offer into evidence at the hearing confidential
materials of an opposing party or non-party must provide notice to
the opposing party or non-party, pursuant to 16 C.F.R. § 3.45(b).

Complaint Counsel provides to Respondents’ counsel its final
proposed witness and exhibit lists, including designated testimony
to be presented by deposition, copies of all exhibits (except for
demonstrative, illustrative or summary exhibits), and a brief
summary of the testimony of each witness.

Complaint Counsel serves courtesy copies on ALJ of its final
proposed witness and exhibit lists and a brief summary of the
testimony of each witness.

Respondents’ Counsel provides to Complaint Counsel its final
proposed witness and exhibit lists, including designated testimony
to be presented by deposition and copies of all exhibits (except for
demonstrative, illustrative or summary exhibits), and a brief
summary of the testimony of each witness.

Respondents’ Counsel serves courtesy copies on ALJ of its final
proposed witness and exhibit lists and a brief summary of the
testimony of each witness.



All “Additional Provisions” of the February 20, 2002 Scheduling Order remain in effect.

ORDERED: D> mM hare
D. Michael Chappell 7
Administrative Law Judge

Date: September 10, 2002