This Order does not constitute a ruling on the admissibility of exhibits referred to in
Respondents’ motion or Complaint Counsel’s opposition.

ORDERED: ] > TMM cha p (eA
D. Michael Chappel

Administrative Law Judge

Date: October 23, 2002



close of discovery was extended by two additional months, to September 6, 2002. The Third
Revised Scheduling Order, entered on September 10, 2002, did not change dates for witness lists
or the close of discovery.

The parties, in moving for the first revision of the scheduling order, requested an extension
for the close of discovery, but did not seek extensions of time for providing preliminary and
revised witness lists. Complaint Counsel, in opposing Respondents’ motion for the second
revision, did not argue that discovery should not be extended because Complaint Counsel had
already served its revised witness list. Thus, although the close of discovery was extended, the
deadlines for providing preliminary and revised witness lists remained unchanged.

According to Respondents, Complaint Counsel has been investigating this matter for
nearly two years. The Complaint was filed nearly one year ago. Discovery should have been
pursued expeditiously soon thereafter, as the parties were forewarned. Chicago Bridge & Iron
Co., Docket 9300 (January 4, 2002) (“In the event the parties are not able to settle this matter,
the discovery and trial schedule issued will meet the October 28, 2002 deadline.”). Simply
claiming that the importance of these individuals was learned late in the discovery process does
not satisfy the “good cause” standard since diligence is required in pursuing discovery. However,
if Complaint Counsel’s delay in learning about the information that may be provided by these
individuals is attributable to Respondents, Complaint Counsel may have demonstrated good
cause.

As to the first witness, Complaint Counsel asserts that it was delayed in learning of the
information he may provide due to Respondents’ delayed response to Complaint Counsel’s
Second Request for Production of Documents. Based on that representation, Complaint Counsel
has demonstrated that Complaint Counsel’s delay in learning about the information that the first
witness may provide is attributable to Respondents. Accordingly, Complaint Counsel has
demonstrated diligence sufficient to show good cause for including the first witness on Complaint
Counsel’s final witness list.

As to the second and third witnesses, Complaint Counsel makes no claim that its delay in
learning of these individuals is attributable in any way to Respondents. Complaint Counsel has
not demonstrated sufficient diligence to show good cause for including the second and third
witnesses on Complaint Counsel’s final witness list.

Vv.

For the reasons set forth above, Respondents’ motion is GRANTED in part and DENIED
in part. Complaint Counsel has demonstrated good cause for adding the first witness described in
Respondents’ motion, the author of the e-mail communications that were produced by
Respondents on August 27, 2002, to Complaint Counsel’s final witness list. The deposition of
this witness may be taken beyond the discovery deadline.

-4-


<A IRADE COMA
KS Feceweovocuments

MBE 2 3 2002
SECRETARL

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

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

CHICAGO BRIDGE & IRON COMPANY, DOCKET NO. 9300

a corporation, and

PITT-DES MOINES, INC.,
a corporation.

Ve SS SSH HH HOH DL

ORDER ON RESPONDENTS’ MOTION TO STRIKE WITNESSES

L

On September 26, 2002, Respondents (Chicago Bridge and Iron (“CB&I”) and Pitt-Des
Moines (“PDM”)) filed a Motion to Strike. On October 3, 2002, Complaint Counsel filed its
opposition. Complaint Counsel subsequently filed an addendum to its opposition on October 4,
2002. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

I.

Respondents’ motion seeks an order preventing Complaint Counsel from calling as
witnesses at trial or otherwise presenting testimony from three fact witnesses on the grounds that
the three proposed witnesses were not timely disclosed in accordance with the scheduling orders
entered in this matter. The identities of these three witnesses were designated as confidential
information by the parties in the confidential versions of their pleadings and need not be revealed
in this Order for purposes of ruling on Respondents’ motion. They are referred to throughout this
Order as the first, second, and third witnesses, in alphabetical sequence, which is also the
sequence in which they were first disclosed to Respondents and the sequence in which they are
described in Respondents’ motion.


Complaint Counsel asserts that there is good cause for permitting Complaint Counsel to
present the testimony of these three CB&I customer witnesses who, only through discovery,
Complaint Counsel learned may be able to provide relevant information.

Il.

Commission Rule 3.21 requires Administrative Law Judges to enter a scheduling order
that “establishes a scheduling of proceedings, including a plan of discovery... .” 16 CFR.
§ 3.21(c)(1). Pursuant to 16 C.F.R. § 3.21(c)(1), Additional Provision Number Four of the
Scheduling Order, entered on February 20, 2002, states that “[t]he final proposed witness list may
not include additional witnesses not listed in the preliminary or revised preliminary witness lists
previously exchanged unless by order of the Administrative Law Judge upon a showing of good
cause.” All subsequent revised scheduling orders state that the “Additional Provisions” of the
February 20, 2002 Scheduling Order remain in effect. Under the Commission’s Rules of Practice,
the Administrative Law Judge may grant a motion to extend any deadline or time specified in the
prehearing scheduling order “only upon a showing of good cause.” 16 C.F.R. § 3.21(c)(2).

Pursuant to the Third Revised Scheduling Order, entered on September 10, 2002,
Complaint Counsel provided its final proposed witness list by September 16, 2002. Complaint
Counsel’s final proposed witness list included three additional witnesses who were not designated
on Complaint Counsel’s preliminary or revised witness lists. Complaint Counsel was required to
provide its preliminary witness list on April 23, 2002 and its revised witness list on May 28, 2002.
Complaint Counsel informed Respondents of its intent to add one of these three additional
witnesses on September 5, 2002, and of its intent to add the other two witnesses on September
13, 2002. Discovery closed in this case on September 6, 2002.

Complaint Counsel did not file a motion to add witnesses, demonstrating good cause, as
required by the Scheduling Order. Rather, in response to Respondents’ motion to strike,
Complaint Counsel argues that it has good cause for adding these witnesses. Specifically,
Complaint Counsel asserts that the following circumstances, taken together, demonstrate good
cause:

. Complaint Counsel became aware of the important potential information from
these individuals only recently through discovery and identified these individuals to
Respondents as soon as Complaint Counsel reached an opinion that it would likely
include these witnesses in its final witness list.

° Complaint Counsel could not have known the importance of the first witness until
August 27, 2002, because Respondents delayed production of certain e-mail files,
responsive to Complaint Counsel’s Second Request for Production of Documents,
served on June 7, 2002, until August 27, 2002. Complaint Counsel promptly
reviewed the August 27, 2002 document production and discovered two e-mail

-2-


communications, dated July 17, 2002, from the first proposed witness to CB&I.
These e-mail communications alerted Complaint Counsel that the first witness is
knowledgeable concerning current competitive conditions in the LNG tank market.

° Complaint Counsel could not have known the importance of the second witness
until recently. The second witness is a consultant who is advising a U.S. firm on
the purchase of a LNG tank for construction in the United States. Complaint
Counsel became aware of him at the end of July 2002, based on a telephone
conversation with a third party. Complaint Counsel first interviewed the second
witness on July 26, 2002. Through a declaration, this witness states that in April
2002, he requested bids for the project. Complaint Counsel states that the
subsequent responses to these bids could not have been known to Complaint
Counsel when Complaint Counsel submitted its Preliminary Witness List (April 22,
2002) or its Revised Witness List (May 28, 2002).

. Complaint Counsel did not know about the third witness until Complaint Counsel
had a conversation in early September 2002 with a third-party witness who
informed Complaint Counsel that during a 1998 bid contest for a LNG tank peak-
shaving plant, two foreign LNG tank constructors submitted bids that were higher
than the bids submitted by CB&I and PDM. The third witness works for a
company that received bids from CB&I and PDM.

Iv.

Good cause is demonstrated if a party seeking to extend a deadline demonstrates that a
deadline cannot reasonably be met despite the diligence of the party seeking the extension.
Bradford v. Dana Corp., 249 F.3d 807, 809 (8" Cir. 2001); Sosa v. Airprint Systems, Inc., 133
F.3d 1417, 1418 (11TM Cir. 1998); Fed. R. Civ. P. 16 Advisory Committee Notes (1983
amendment). For each of these three witnesses, Complaint Counsel’s only argument is that it
didn’t know about this person or his importance until recently.

Since the original Scheduling Order was entered on February 20, 2002, the scheduling
order has been revised three times. In the February 20, 2002 Scheduling Order, Complaint
Counsel was required to provide its preliminary witness list on April 23, 2002, and its revised
witness list on May 25, 2002. Discovery was scheduled to close on June 7, 2002. In the First
Revised Scheduling Order, entered May 6, 2002 upon a motion filed jointly by both parties, the
dates for preliminary and revised witness lists remained substantially the same, but the close of
discovery was extended by one month. The First Revised Scheduling Order required Complaint
Counsel to provide its preliminary witness list on April 23, 2002 and its revised witness list on
May 28, 2002. Discovery was scheduled to close on July 8, 2002. In the Second Revised
Scheduling Order, entered on June 18, 2002 upon Respondents’ motion, which was opposed by
Complaint Counsel, the dates for preliminary and revised witness lists remained the same, but the

-3-