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

DOCKET NO. 9300

PITT-DES MOINES, INC.,
a corporation.

errr rere HHH HL

ORDER DENYING MOTION TO COMPEL
IL

On September 26, 2002, Complaint Counsel filed a Motion to Compel. On October 1,
2002, Respondents filed their opposition. For the reason set forth below, the motion is DENIED.

I.

On June 7, 2002, Complaint Counsel served its Second Request for Production of
Documents. Complaint Counsel’s motion seeks to compel Respondents to produce electronic
documents that are responsive to Complaint Counsel’s Second Request for Production of
Documents. In the alternative, Complaint Counsel seeks an order precluding Respondents from
presenting testimony at trial from any witness now employed by Respondents, or employed by
Respondents since September 2000, whose e-mail documents responsive to the Second Request
for Production of Documents have not been provided to Complaint Counsel. Complaint Counsel
asserts that the Second Request for Production of Documents was timely served, seeks relevant
documents, and does not impose an undue burden on Respondents.

Respondents do not contest the relevancy of the requested documents. Instead,
Respondents assert that the Second Request for Production of Documents imposes an undue
burden on Respondents because it asks Respondents to undertake a review of many of the same
documents and electronic documents that Respondents reviewed in response to Complaint
Counsel’s First Request for Production of Documents, Respondents further assert that Complaint
Counsel’s motion to compel was not filed in a timely manner.


OL.

The First Revised Scheduling Order, entered on May 6, 2002, set June 7, 2002 as the last
day for serving requests for production of documents. Complaint Counsel’s Second Request for
Production of Documents was served on June 7, 2002. Respondents filed their responses and
objections on July 19, 2002. The parties held several telephone conversations and exchanged
several letters on the disputed issues between June 14, 2002 and August 28, 2002. Declaration of
Jeffrey A. Leon at §{] 3, 5; Statement of Eric M. Sprague at 3, 4, 5. Complaint Counsel states
that the parties agreed that they were at an impasse on the issue on August 23, 2002. Statement
of Eric M. Sprague at 9] 5. Discovery closed on September 6, 2002 under the Second Revised
Scheduling Order, entered on June 18, 2002.

Commission Rule § 3.38(a)(2) states that “[i]f a party fails to respond to or comply as
requested with a request for production . . . , the discovering party may move for an order to
compel production. ..” 16 C.F.R. § 3.38(a)(2). Commission Rule 3.21 requires Administrative
Law Judges to enter a scheduling order that “establishes a scheduling of proceedings, including a
plan of discovery [and] dates for the submission and hearing of motions... .” 16 C.F.R.

§ 3.21(c)(1). Pursuant to 16 C.F.R. § 3.21(c)(1), Additional Provision Number Two of the first
Scheduling Order, entered on February 20, 2002, states that “[a]ny motion to compel responses
to discovery requests shall be filed within 5 days of impasse if the parties are negotiating in good
faith and are not able to resolve their dispute.” All subsequent revised scheduling orders state that
the “Additional Provisions” of the February 20, 2002 Scheduling Order remain in effect.

Complaint Counsel expressly states that the parties agreed that they were at an impasse on
this issue on August 23, 2002. Complaint Counsel’s motion to compel, filed on September 26,
2002, was filed nearly a month past the deadline established by the Scheduling Order.
Accordingly, it is DENIED.

ORDERED: AM Aha pe J
D. Michael Chappell ”
Administrative Law Judge

Date: October 15, 2002