ORlGINAL 

UNITED STATES OF AMERICA
 

FEDERAL TRADE COMMISSION
 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

)
 In the Matter of
 ) 

)
 UNIVERSAL COMPUTERS and
 ) ELECTRONICS, INC., )
 d/b/a Appliancebestbuys.com, and DOCKET NO. 9347
 )
 d/b/a universallcdtv.com,
 )


Respondent.
 ) 

) 

) 

SCHEDULING ORDER 

June 8, 2011	 Complaint Counsel provides preliminary witness list (not 

including experts) with a brief summary of 
 the proposed 

testimony. 

June 22,2011	 Respondent's Counsel provides preliminary witness lists 

(not including experts) with a brief summary of 
 the

proposed testimony. 

July 15,2011	 Deadline for issuing document requests, requests for 

admission, interrogatories and subpoenas duces tecum, 

except for discovery for purposes of authenticity and 

admissibility of exhibits. 

July 26,2011	 Complaint Counsel provides expert witness list. 

August 9, 2011	 Respondent's Counsel provides expert witness list. 

August 23,2011	 Close of discovery, other than discovery permitted under 

Rule 3.24(a)(4), depositions of experts, and discovery for 

purposes of authenticity and admissibility of exhibits. 

August 23, 2011	 Deadline for filing "( m Jotions to dismiss filed before the 

evidentiary hearing, motions to strike, and motions for 

summary decision" pursuant to Rule 3.22(a). 

September 2, 2011	 Deadline for Complaint Counsel to provide expert witness 

reports. 
. September 16, 2011 

September 28,2011 

September 30,2011 

October 13, 2011
 

October 14, 2011
 

Deadline for Respondent's Counsel to provide expert 

witness reports. Respondent's expert report shall include 

(without limitation) rebuttal, if any, to Complaint Counsel's 

expert witness report(s). 

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 Respondent's 

expert reports. If material outside the scope of fair rebuttal 

is presented, Respondents wil have the right to seek 

appropriate relief (such as strking Complaint Counsel's 

rebuttal expert reports or seeking leave to submit surrebuttal expert reports on behalf of Respondents). 

Complaint Counsel provides to Respondent's Counsel its 

final proposed witness and exhibit lists, including 

designated testimony to be presented by deposition, copies 

of all exhibits (except fór demonstrative, ilustrative or 

summar exhibits and expert related exhibits), Complaint 

Counsel's basis of admissibility for each proposed exhibit, 

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, its basis of 

admissibility for each proposed exhibit, and a brief 

summary of the testimony of each witness, including its 

expert witness(es).
 

Respondent's 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, ilustrative 

or summary exhibits and expert related exhibits), 

Respondent's basis of admissibility for each proposed 

exhibit, and a brief summary of the testimony of each 

witness. 

Respondent's Counsel serves courtesy copies on ALJ its 

final proposed witness and exhibit lists, its basis of 

admissibility for each proposed exhibit, and a brief 

summary of the testimony of each witness including its 

expert witness( es). 

Parties that intend to offer confidential materials of an 

opposing pary or non-party as evidence at the hearing must 

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October 19,2011 

October 26,2011 

October 26,2011 

November 2, 2011 

November 2,2011 

November 8, 2011
 

November 14,2011
 

November 15,2011
 

November 17,2011
 

November 22, 2011
 

November 29, 2011 

provide notice to the opposing party or non-party, pursuant 

to 16 C.F.R. § 3.45(b). 

Deadline for depositions of experts (including rebuttal 

experts) and exchange of expert related exhibits. 

Deadline for fiing motions in limine to preclude admission 

of evidence. 

Deadline for filing motions for in camera treatment of 

proposed trial exhibits. 

Deadline for filing responses to motions in limine to 

preclude admission of evidence. 

Deadline for filing responses to motions for in camera 

treatment of proposed trial exhibits. 

Complaint Counsel fies pretrial brief supported by legal 

authority. 

Exchange and serve courtesy copy on ALJ objections to 

final proposed witness lists and exhibit lists. 

Respondent's Counsel files pretrial brief supported by legal 

authority. 

Exchange proposed stipulations oflaw, facts, and 

authenticity. 

File final stipulations oflaw, facts, and authenticity. Any 

subsequent stipulations may be offered as agreed by the 

parties. 

Final prehearing conference to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission 

Building, 600 Pennsylvania Avenue, NW, Washington, DC 

20580. 

The paries are to meet and confer prior to the conference 

regarding trial 
 logistics and proposed stipulations oflaw, 

facts, and authenticity of exhibits. To the extent the parties 

stipulate to certain issues, the parties shall prepare a Joint 

Exhibit which lists the agreed stipulations. 

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Counsel may present any objections to the final proposed 

witness lists and ex.hibits. Trial exhibits wil be admitted or 

excluded to the extent practicable. To the extent the paries 

agree to the admission of each other's exhibits, the parties 

shall prepare a Joint Exhibit which lists the exhibits to 

which neither side objects. Any Joint Exhibit wil be 

signed by each party with no signature for the judge 

required. 

December 1, 2011 Commencement of Hearing, to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission 

Building, 600 Pennsylvania Avenue, NW, Washington, DC 

20580. 

ADDITIONAL PROVISIONS
 

1. For all papers that are required to be filed with the Office of 
 the Secretary, the
 

parties shall serve a courtesy copy on the Administrative Law Judge by electronic mail to 

the following email address: oalj@ftc.gov. The courtesy copy should be transmitted at or 

shortly after the time of any electronic filing with the Office of the Sécretar. The 

oalj@ftc.gov email account is to be used only for courtesy copies of 
 pleadings filed with the Office of the Secretary and for documents specifically requested of 
 the parties by the 

Office of Administrative Law Judges. The subject line of all submissions to oalj@ftc.gov 

shall set forth only the Docket Number and the title of the submission. Service by email 

shall be followed promptly by delivery of one hard copy by the next business day. In any 

instance in which a courtesy copy of a pleading for the Administrative Law Judge cannot 

be effectuated by electronic mail, counsel shall hand deliver a hard copy to the Office of 

Administrative Law Judges. Discovery requests and discovery responses shall not be 

submitted to the Office of Administrative Law Judges. The parties are reminded that all 

filings with the Office of the Secretary, including electronic filings, are governed by the 

provisions of 
 Commission Rule 4.3(d), which states: "Documents must be received in the 

Office ofthe Secretary of 
 the Commission by 5:00 p.m. Eastern time to be deemed filed 

that day. Any documents received by the agency after 5:00 p.m. wil be deemed filed the 

following business day." 

2. The parties shall serve each other by electronic mail and shall 

include "Docket 9347" in the re line and all attached documents in .pdfformat. 

Complaint Counsel and Respondent's Counsel agree to waive their rights to Service 

under 16 C.F.R. § 4.4(a)-(b). 

3. Each pleading that cites to unpublished opinions or opinions not available on 

LEXIS or WESTLA W shall include such copies as exhibits. 

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4. Each motion (other than a motion to dismiss or a motion for summary 

decision) shall be accompanied bya separate signed statement representing that counsel 

for the moving party has conferred with opposing counsel in an effort in good faith to 

resolve by agreement the issues raised by the motion and has been unable to reach such 

an agreement. In addition, pursuant to Rule 3.22(g), for each motion to quash fied 

pursuant to § 3 .34( c), each motion to compel or determine sufficiency pursuant to 

§ 3.38(a), each motion for sanctions pursuant to § 3.38(b), the required signed statement 

must also "recite the date, time, and place of each . . . conference between counsel, and 

the names of all parties participating in each such conference." Motions that fail to 

include such separate statement may be denied on that ground. 

5. Rule 3.22(c) states: 

All written motions shall state the particular order, ruling, or action 

desired and the grounds therefor. Memoranda in support of, or in 

opposition to, any dispositive motion shall not exceed 10,000 words. 

Memoranda in support of, or in opposition to, any other motion shall 

not exceed 2,500 words. Any reply in support of a dispositive motion 

shall not exceed 5,000 words and any reply in support of any other 

motion authorized by the Administrative Law Judge or the 

Commission shall not exceed 1,250 words. 

If a party chooses to submit a motion without a separate memorandum, the word count 

limits of3.22(c) apply to the motion. If a party chooses to submit a motion with a 

separate memorandum, absent prior approval of the ALJ, the motion shall be limited to 

750 words, and the word count limits of3.22(c) apply to the memorandum in support of 

the motion. This provision applies to all motions filed with the Administrative Law 

Judge, including those filed under Rule 3.38. 

6. Ifpapers filed with the Office of 
 the Secretary contain in camera or 

confidential material, the filing party shall mark any such material in the complete 

version of their submission with fbold font and bracesl. 16 C.F.R. § 3.45(e). Parties
 

shall be aware of the rules for filings containing such information, including 16 C.F.R. 

§ 4.2. 

7. Motions for in camera treatment for evidence to be introduced at trial must 

meet the strict standards set forth in 16 C.F .R. § 3.45 and explained in In re Dura Lube 

Corp., 1999 FTC LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc., 2000 

FTC LEXIS 157 (Nov. 22, 2000) and 2000 FTC LEXIS 138 (Sept. 19,2000); In re Basic 

Research, Inc., 2006 FTC LEXIS 14 (Jan. 25, 2006). Motions also must be supported by 

a declaration or affidavit by a person qualified to explain the confidential nature of the 

documents. In re North Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23, 

2004). Each party or non-pary that files a motion for in camera treatment shall provide 

one copy of the documents for which in camera treatment is sought to the Administrative 

Law Judge. 

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8. Motions in limine are allowed. However, the filing of motions in limine is not 

encouraged. Motion in limine refers "to any motion, whether made before or during trial, 

to exclude anticipated prejudicial evidence before the evidence is actually offered." In re 

Daniel Chapter One, 2009 FTC LEXIS 85, * 18-20 (April 20, 2009) (citing Luce v. 

United States, 469 U.S. 38,40 n.2 (1984)). Evidence should be excluded in advance of 

trial on a motion in limine only when the evidence is clearly inadmissible on all potential 

Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, grounds. !d. (citing 


1400 (N.D. IlL. 1993); Sec. Exch. Comm'n v. U.S. Environmental, Inc., 2002 U.S. Dist. 

LEXIS 19701, at *5-6 (S.D.N.Y. Oct. 16,2002)). Moreover, the risk of 
 prejudice from 

giving undue weight to marginally relevant evidence is minimal in a bench trial such as 

this where the judge is capable of assigning appropriate weight to evidence. 

9. Compliance with the scheduled end of discovery requires that the parties serve 

subpoenas and discovery requests sufficiently in advance ofthe discovery cut-off and that 

all responses and objections wil be due on or before that date, unless otherWise noted. 

Any motion to compel responses to discovery requests shall be filed within 30 days of 

service ofthe responses and/or objections to the discovery requests or within 20 days 

after the close of discovery, whichever first occurs. 

10. Each party is limited to 50 document requests, including all discrete subparts; 

25 interrogatories, including all discrete subparts; and 50 requests for admissions 

including all discrete subparts except that there shall be no limit on the number of 

requests for admission for authentication and admissibility of exhibits. Any single 

interrogatory inquiring as to a request for admissions response may address only a single 

such response. There is no limit to the number of sets of discovery requests the parties 

may issue, so long as the total number of each type of discovery request, including all 

subparts, does not exceed these limits. 

11. The deposition of any person may be recorded by videotape, provided that the 

deposing party notifies the deponent and all parties of its intention to record the 

deposition by videotape at least five days in advance ofthe deposition. No deposition, 

whether recorded by videotape or otherwise, may exceed a single, seven-hour day, unless 

otherwise agreed to by the paries or ordered by the Administrative Law Judge. 

12. The paries shall serve upon one another, at the time of issuance, copies of all 

subpoenas duces tecum and subpoenas ad testifcandum. For subpoenas ad
 

testifcandum, the party seeking the deposition shall consult with the other parties before 

the deposition date is scheduled. 

13. Non-parties shall provide copies or make available for inspection and 

copying of documents requested by subpoena to the party issuing the subpoena. The 

party that has requested documents from non-parties shall provide copies of the 

documents received from non-paries to the opposing party within three business days of 

receiving the documents. No deposition of a non-pary shall be scheduled between the 

6
 
time a non-party provides documents in response to a subpoena duces tecum to a party, 

and 3 days after the party provides those documents to the other party, unless a shorter 

time is required by unforeseen logistical issues in scheduling the deposition, or a nonpary produces those documents at the time of the deposition as agreed to by all parties 

involved. 

14. The final witness lists shall represent counsels' good faith designation of all 

potential witnesses who counsel reasonably expect may be called in their case-in-chief. 

Parties shall notify the 
 opposing party promptly of changes in witness lists to facilitate 

completion of discovery within the dates of the scheduling order. The final proposed 

witness list may not include additional witnesses not listed in the preliminary witness lists 

previously exchanged unless by consent of all paries, or, ifthe parties do not consent, by 

an order of 
 the Administrative Law Judge upon a showing of good cause. 

15. The final exhibit lists shall represent counsels' good faith designation of all
 

trial exhibits other than demonstrative, ilustrative, or summary exhibits. Additional
 

exhibits may be added after the submission of the final 
 lists only by consent of all parties, 

or, ifthe parties do not consent, by an order of 
 the Administrative Law Judge upon a
 

showing of good cause.
 

16. Witnesses shall not testify to a matter unless evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. F.R.E. 602. 

17. Witnesses not properly designated as expert witnesses shall not provide
 

opinions beyond what is allowed in F.R.E. 701.
 

18. The parties are required to comply with Rule 3.31A and with the following: 

(a) At the time an expert is first listed as a witness by a party, that party shall 

provide to the other party: 

(i) materials fully describing or identifying the background and 

qualifications of the expert, all publications authored by thc cxpcrt within the preceding 

ten years, and all prior cases in which the expert has testified or has been deposed within 

the preceding four years; and 

(ii) transcripts of such testimony in the possession, custody, or control of 

the producing party or the expert. 

(b) At the time an expert report is produced, the producing party shall provide to 

the other party all documents and other written materials relied upon by the expert in 

formulating an opinion in this case. Unless otherwise agreed by the parties, the experts' 

notes and drafts of expert reports need not be produced. Likewise, communications 

between experts and with counselor consultants need not be produced unless relied upon 

by the expert in formulating an opinion in this case. 

7 
( c) It shall be the responsibility of a partydesigrating an expert witness to ensure 

that the expert witness is reasonably available for deposition in keeping with this 

Scheduling Order. Unless otherwise agreed to by the paries or ordered 
 by the 

Administrative Law Judge, expert witnesses shall be deposed only once and each expert 

deposition shall be limited to one day for seven hours. 

19. Properly admitted deposition testimony and properly admitted investigational 

hearing transcripts are part of the record and need not be read in open court. Videotape 

deposition excerpts that have been admitted in evidence may be presented in open court 

only upon prior approval by the Administrative Law Judge. 

20. The parties shall provide one another, and the Administrative Law Judge, no 

later than 48 hours in advance, not including weekends and holidays, a list of all 

witnesses to be called on each day of 
 hearing, subject to possible delays or other 

unforeseen circumstances. 

21. The parties shall provide one another with copies of any demonstrative, 

ilustrative or summary exhibits (other than those prepared for cross-examination) 24 

hours before they are used with a witness. 

22. Complaint Counsel's exhibits shall bear the designation PX and 

Respondent's exhibits shall bear the designation RX or some other appropriate 

designation. Both sides shall number the first page of each exhibit with a single series of 

consecutive numbers. When an exhibit consists of more than one piece of paper, each 

page of the exhibit must bear a consecutive control number or some other consecutive 

page number. Additionally, paries must account for all their respective exhibit numbers. 

Any number not actually used at the hearing shall be designated "intentionally not used." 

23. At the final prehearing conference, counsel wil be required to introduce all 

exhibits they intend to introduce at triaL. Additional exhibits may be added after the final 

prehearing conference only by order of the Administrative Law Judge upon a showing of 

good cause. Counsel shall contact the court reporter regarding submission of exhibits. 

ORDERED: DW\~i¿

D. Michael Chappell 

Chief Administrative Law Judge 

Date: May 12,2011 

8