In the Matter of 

GRACOINC., 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

ORIGINAL 

a corporation, and 

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DOCKET NO. 9350 

ILLINOIS TOOL WORKS INC., 

a corporation, and 

ITW FINISHING LLC, 

a limited liability company, 

-- 

Respondents. 

January 26, 2012 

February 9, 2012 

February 9, 2012 

February 14, 2012 

February 21, 2012 

March 16, 2012 

March 23, 2012 

April 3, 2012 

SCHEDULING ORDER 

Complaint Counsel provides preliminary witness list (not including 

experts) with a brief summary of the proposed testimony. 

Deadline for issuing document requests, requests for admission, 

interrogatories and subpoenas duces tecum, except for discovery 

for purposes of authenticity and admissibility of exhibits. 

Respondents' Counsel provides preliminary witness lists (not 

including experts) with a brief sumary of the proposed testimony. 

Complaint Counsel provides expert witness list. 

Respondents' Counsel provides expert witness list. 

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. 

Deadline for Complaint Counsel to provide expert witness reports. 

Complaint Counsel provides to Respondents' Counsel its final 

proposed witness and exhibit lists, including depositions or 

designated portions thereof, copies of all exhibits (except for 
April 6, 2012 

April 10, 2012 

April 10, 2012 

April 13, 2012 

April 16, 2012 

April 17, 2012 

demonstrative, illustrative or summary exhibits and expert related 

exhibits), Complaint Counsel's basis of admissibility for each 

proposed exhibit, and a brief sumary 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 witnesses. 

Deadline for Respondents' Counsel to provide expert witness 

reports. Respondents' expert report shall include (without 

limitation) rebuttal, if any, to Complaint Counsel's expert witness 

report(s). 

Respondents' Counsel provides to Complaint Counsel its final 

proposed witness and exhibit lists, including depositions or 

designated portions thereof, copies of all exhibits (except for 

demonstrative, illustrative or sumary exhibits and expert related 

exhibits), Respondents' basis of admissibility for each proposed 

exhibit, and a brief summary of the testimony of each witness. 

Respondents' Counsel serves cQurtesy 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 witnesses. 

Parties that intend to offer confidential materials of an opposing 

party or non-party as evidence at the hearing must provide notice 

to the opposing party or non-party, pursuant to 16 C.P.R. § 3.45(b). 

Deadline for filing "[ m ]otions to dismiss filed before the 

evidentiary hearing, motions to strike, and motions for 

summary decision" pursuant to Rule 3.22(a). 

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). 

Deadline for filing motions for in camera treatment of proposed 

trial exhibits. 

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April 20, 2012 

April 20, 2012 

April 24, 2012 

April 25, 2012 

April 30, 2012 

April 30, 2012 

May 1, 2012 

May 2, 2012 

May 4, 2012 

May 8, 2012 

May 9, 2012 

May 10, 2012 

Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related exhibits. 

Exchange deposition transcript counter-designations. 

Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

Deadline for filing motions in limine to preclude admission of 

evidence. 

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. 

Complaint Counsel files pretrial brief supported by legal authority. 

Deadline for filing responses to motions in limine to preclude 

admissions of evidence. 

Exchange proposed stipulations oflaw, facts, and authenticity. 

Respondents' Counsel files pretrial brief supported by legal 

authority. 

File final stipulations of law, 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 parties are to meet and confer prior to the conference 

regarding trial logistics and proposed stipulations of law, facts, and 

authenticity of exhibits and any designated deposition testimony. 

To the extent the parties stipulate to certain issues, the parties shall 

prepare a Joint Exhibit which lists the agreed stipulations. 

Counsel may present any objections to the final proposed witness 

lists and exhibits, including to any designated deposition 

testimony. Trial exhibits will be admitted or excluded to the extent 

practicable. To the extent the parties 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 

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May 15, 2012 

Exhibit will be signed by each party with no signature for the judge 

required. 

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: oali@ftc.gov. The courtesy copy should be transmitted at or shortly 

after the time of any electronic filing with the Office of the Secretary. 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 of the 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. will be deemed 

filed the following business day." 

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

9350" in the re line and all attached documents in .pdf format. Complaint Counsel and 

Respondents' 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. 

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

ary 

decision) shall be accompanied by a 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 filed pursuant to § 3.34(c), each 

motion to compel or determine sufficiency pursuant to § 3.38(a), or 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. 

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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 of 

3 .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 of 3.22(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. If papers 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 {bold font and braces}. 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-party 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. 

8. Motions in limine are discouraged. Motion in limine refers "to any motion, whether 

made before or during trial, to exclude anticipated prejudicial evidenc� 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 grounds. Id. (citing Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 

1398, 1400 (N.D. Ill. 1993); Sec. Exch. Comm 'n v. Us. 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 of the discovery cut-off and that all 

responses and objections will 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 of the 

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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. 

Complaint Counsel and Respondents agree not to serve interrogatories. Requests for admission 

shall be limited to the authenticity of documents or admissibility of exhibits. The parties shall 

serve responses to requests for admission no later than 10 calendar days after the date of service. 

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. Complaint Counsel will not be required to produce to Respondents in its initial 

disclosures or in response to any discovery request any documents produced by Respondents to 

Complaint Counsel in the course of the investigation of the acquisition of ITW Finishing LLC by 

Graco Inc., FTC File No. 111-0169. 

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 of the deposition. No deposition, whether recorded by 

videotape or otherwise, may exceed a single, seven-hour day, unless otherwise agreed to by the 

parties or ordered by the Administrative Law Judge. A party need not separately notice the 

deposition of a third party noticed by an opposing party. The parties will in good faith attempt to 

coordinate date, time, and place of deposition with each other and with the witness. At the 

request of either Complaint Counsel or Respondents, Complaint Counsel and Respondents 

combined will divide the time for a seven-hour deposition between them, noticing side to receive 

four hours and non-noticing side to receive three hours. If Complaint Counsel or Respondents 

do not make such a request prior to the deposition, cross-examination of the witness will be 

limited to one hour. 

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

subpoenas duces tecum and subpoenas ad testificandum. For subpoenas ad testificandum, 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-parties to the opposing party within three business days of receiving the documents. No 

deposition of a non-party shall be scheduled between the 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 non-party produces those documents at the time of the deposition 

as agreed to by all parties involved. No more than two depositions may occur on the same day, 

absent agreement by all parties. 

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 

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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 parties, or, if the 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, illustrative, or sumary exhibits. Additional exhibits 

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

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 .�.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 the expert 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 

counsel or consultants need not be produced unless relied upon by the expert in formulating an 

opinion in this case. 

( c) It shall be the responsibility of a party designating 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 parties 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. 

(d) Each expert report shall include a complete statement of all opinions to be expressed 

and the basis and reasons therefore; the data or other information considered by the expert in 

forming the opinions; any exhibits to be used as a summary of or support for the opinions; the 

qualifications of the expert; and the compensation to be paid for the study and testimony. 

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':-, . �<:A<. �'.� •. " � '�, . ... ; .. 

( e) A party may not discover facts known or opinions held by an expert who has been 

retained or specially employed by another party in anticipation of tBis litigaiorl.�or�.r�pai-idion 

for hearing and who is not designated by a party as a testifying witness . 

. :<�.J ... ·i';i�. : , it �' •. ". I: •• .i 

(f) At the time of service of the expert reports, a party shall provide opposing counsel (i) 

a list of all commercially-available computer programs used by the expert in the preparation of 

the report; (ii) a copy of all data sets used by the expert, in native file format and processed data 

file format; and (iii) all customized computer programs used by the expert in the preparation of 

the report or necessary to replicate the findings on which the expert report is based. 

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, 

illustrative or sumary 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 CX and 

Respondents' 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, 

parties 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 will 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: 

D. Michael Cliap 11 

Chief Administrative Law Judge 

Date: January 12, 2012 

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