UNITED STATES OF AMERICA AUG Z 2013

FEDERAL TRADE COMMISSION	 5~C,3Ó7 OFFICE OF ADMINISTRATIVE LAW JUDGES	 SECRETARY 

)
 

In the Matter of
 ) 

) 

Ardagh Group S.A., )
 

a public limited liability company, and ) DOCKET NO. 9356
 

)


Saint-Gobain Containers, Inc.,
 )
 

a corporation, and
 ) 

) 

Compagnie de Saint-Gobain, )
 

a corporation,
 )
 

Respondents.
 ) 

) 

SCHEDULING ORDER 

August 9, 2013	 Complaint Counsel provides preliminary witness list (not including 

experts) with a brief summary of the proposed testimony. 

August 16,2013	 Respondents' Counsel provides preliminary witness lists (not 

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

August 20, 20 i 3	 Complaint Counsel provides expert witness list. 

August 23, 2013	 Deadline for issuing document requests, interrogatories and 

subpoenas duces tecum, except for discovery for purposes of 

authenticity and admissibility of exhibits. 

August 30, 2013	 Respondents' Counsel provides expert witness list. 

September 6, 2013	 Deadline for issuing requests for admissions, except for requests 

for admissions for purposes of authenticity and admissibility of 

exhibits. 

September 23,2013 - 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. 

September 23,2013 -	 Deadline for filing "(m)otions to dismiss fied before the 
evidentiary hearng, motions to strke, and motions for 

summary decision" pursuant to Rule 3.22(a). 

October 4, 2013 Deadline for Complaint Counsel to provide expert witness reports. 

October 7,2013 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 

demonstrative, ilustrative or summary exhibits and expert related 

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

proposed exhibit, and a brief summar of the testimony of each 

witness. 

Complaint Counsel serves courtesy copies on ALI 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. 

October 21,2013 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). 

October 23,2013 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, ilustrative or summar exhibits and expert related 

exhibits), Respondents' basis of admissibilty for each proposed 

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

Respondents' Counsel serves couresy copies on ALI 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. 

October 24,2013 Parties that intend to offer confidential materials of an opposing 

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

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

See Additional Provision 7. 

October 28, 2013 Exchange deposition transcript counter-designations. 

October 31,2013 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, 

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October 31,2013 

November 6, 2013 

November 7,2013 

November 7,2013 

November 8, 2013
 

November 14,2013
 

November 14, 2013
 

November 14,2013
 

November 15, 2013
 

November 15,2013
 

November 15,2013
 

November 19,2013
 

November 20,2013
 

November 21,2013
 

Respondents wil have the right to seek appropriate relief (such as 

striking Complaint Counsel's rebuttal expert reports or seeking 

leave to submit surrebuttal expert reports on behalf of 

Respondents) . 

Deadline for fiing motions for in camera treatment of proposed 

trial exhibits. 

Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related exhibits. 

Deadline for filing motions in limine to preclude admission of 

evidence. See Additional Provision 9. 

Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

Deadline for filing motions for in camera treatment of proposed 

expert related exhibits. 

Deadline for filing responses to motions in limine to preclude 

admissions of evidence. 

Exchange and serve courtesy copy on ALI 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 filing responses to motions for in camera treatment of 

proposed expert related exhibits. 

Complaint Counsel fies pretrial brief supported by legal authority. 

Exchange proposed stipulations oflaw, facts, and authenticity. 

Respondents' Counsel files pretrial brief supported by legal 

authority. 

Pile final stipulations of 
 law, facts, and authenticity. Any 

subsequent stipulations may be offered as agreed by the parties. 

Pinal prehearing conference to begin at 10:00 a.m. in PTC 

Courtroom, Room 532, Pederal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

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The paries are to meet and confer prior to the conference 

regarding tral logistics and proposed stipulations oflaw, facts, and 

authenticity of exhibits and any designated deposition testimony. 

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

prepare a loint 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 wil 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 loint Exhibit 

which lists the exhibits to which neither side objects. Any loint 

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

required. 

December 2,2013	 Commencement of Hearing, to begin at 10:00 a.m. in PTC 

Courtroom, Room 532, Pederal Trade Commission Building, 600 

Pennsylvania Avenue, NW, Washington, DC 20580. 

ADDITIONAL PROVISIONS 

1. P or 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 ludge 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 ofthe Secretary. The oali@ftc.gov email account is to be 

used only for courtesy copies of pleadings filed with 	 the Office of the Secretar and for 

documents specifically requested of the parties by the Office of Administrative Law ludges. 

Certificates of service for any pleading shall not include the OALI email address, or the email 

address of any OALI personneL, including the Chief ALl, but rather shall designate only 600 

Pennsylvania Ave., NW, RI. H-IlO as the place of 
 service. The subject line of all electronic 

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 ludge cannot be effectuated by electronic mail, counsel shall hand deliver a hard copy to the 

Office of Administrative Law ludges. Discovery requests and discovery responses shall not be 

submitted to the Office of Administrative Law ludges. 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. wil be deemed filed the following business 

day." 

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

9356" in the re line and all attached documents in .pdfformat. Complaint Counsel and 

Respondents' Counsel agree to waive their rights to Service under 16 C.P.R. § 4.4(a)-(b). 

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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 summar 

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. 

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 5,000words and any reply in 

support of any other motion authorized by the Administrative Law ludge 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 pary chooses to submit a motion with a separate memorandum, 

absent prior approval of 
 the ALl, the motion shall be limited to 750 words, and the word count 

limits of3.22(c) apply to the memorandum in support ofthe motion. This provision applies to 

all motions filed with the Administrative Law ludge, including those fied 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 tbold font and bracesJ. 16 C.F.R. § 3.45(e). Paries shall be aware ofthe 

rules for filings containing such information, including 16 c.p .R. § 4.2. 

7. If a party intends to offer confidential materials of an opposing pary or non-party as 

evidence at the hearing, in providing notice to such non-party, the parties are required to inform 

each non-party ofthe strict standards for motions for in camera treatment for evidence to be 

introduced at trial set forth in 16 C.P.R. § 3.45, explained in In re Dura Lube Corp., 1999 PTC 

LEXIS 255 (Dec. 23, 1999); In re Hoechst Marion Roussel, Inc., 2000 PTC LEXIS 157 (Nov. 

22,2000) and 2000 PTC LEXIS 138 (Sept. 19,2000); In re Basic Research, Inc., 2006 PTC 

LEXIS 14 (Ian. 25, 2006), and summarzed herein. 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 PTC LEXIS 66 (April 23,2004). Each party or 

non-party that files a motion for in camera treatment shall provide one copy ofthe documents for 

which in camera treatment is sought to the Administrative Law ludge. 

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8. If 
 the expert reports prepared for either pary contain confidential information that has 

been granted in camera treatment, the party shall prepare two versions of 
 its expert report(s) in 

accordance with Provision 6 ofthis Scheduling Order and 16 C.P.R. § 3.45(e). 

9. Motions in limine are discouraged. 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 PTC 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 
 tral on a motion in limine only when the evidence is clearly inadmissible on all
 

potential grounds. !d. (citing Hawthorne Partners v. AT&T Technologies, Inc., 831 P. 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.
 

1 O. 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 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 of the 

responses and/or objections to the discovery requests or within 20 days after the close of 

discovery, whichever first occurs. 

11. Each party is limited to 50 document requests, including all discrete subpars; 

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. Within seven 

days of service of a document request, the parties shall confer about the format for the 

production of electronically stored information. All discovery taken in connection with FTC v. 

Ardagh Group, s.A., Case No. 13-CV-I021 (RMC) (D.D.C.) (the "Pederal Action") can be used 

in this action and vice versa. However, document requests, interrogatories and requests for 

admissions served by the parties in connection with the Pederal Action wil count not against the 

limits noted above. 

12. No fact witness that has been deposed in the Pederal Action may be deposed again in 

this action. 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 

parties or ordered by the Administrative Law ludge. 

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

subpoenas duces tecum and subpoenas ad testifcandum. Por subpoenas ad testifcandum, the
 

party seeking the deposition shall consult with the other parties before the deposition date is 

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scheduled. The paries need not separately notice the deposition of a third party noticed by an 

opposing party. At the request of any party, the time and allocation for a third party deposition 

shall be divided evenly between them, but the noticing party may use any additional time not 

used by the opposing party. If no pary makes such a request, cross-examination of the witness 

wil be limited to one hour.
 

14. Non-paries shall provide copies or make available for inspection and 

copying of documents requested by subpoena to the pary 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 time a non-party provides documents in 

response to a subpoena duces tecum to a pary, and 3 days after the pary 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. 

15. 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. Paries 

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 preliminar witness lists previously exchanged 

unless by consent of all parties, or, if the parties do not consent, by an order of the 

Administrative Law ludge upon a showing of good cause. 

16. 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 paries, or, if the 

paries do not consent, by an order of the Administrative Law ludge upon a showing of good 

cause. 

17. 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. P.R.E.602. 

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

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

19. 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 

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

producing party or the expert. Notwithstanding the foregoing, transcripts subject to protective 

orders preventing their disclosure in this action need not be produced if the governing protective 

orders are produced to the other parties, unless, upon motion of any party and for good cause
 

shown, the court that issued the protective order orders their production.
 

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

other pary all documents and other wrtten 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 ludge, expert 

witnesses shall be deposed only once and each expert deposition shall be limited to one day for 

seven hours. Experts who have been deposed in the Pederal Action wil not be deposed again in 

this action. Notwithstanding the foregoing, in the event an expert submits in this action an expert 

report that is different from the expert report that expert has submitted in the Pederal Action, that 

expert may be deposed a second time regarding such differences between the two reports. 

(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. 

( e) A pary may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of 
 this litigation or preparation 

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

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. 

(t) At the time of service of 


20. Properly admitted deposition testimony and properly admitted investigational 

hearng 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 ludge. 

21. The parties shall provide one another, and the Administrative Law ludge, 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. 

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22. The paries shall provide one another with copies 
 of any demonstrative;' 

ilustrative or summary exhibits (other than those preparedfor~~oss'.examination)_24 hours 

before they are used with a witness. ". .
 

23. Complaint Counsel's exhibits shall bear the designation CX and Respondents' i
 

i
 exhibits shall bear the designation RX or some other appropriate designation. Complaint cl	 Counsel's demonstrative exhibits shall bear the designation CXD and Respondents' 

demonstrative exhibits shall bear the designation RXD 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." 

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

exhibits they intend to introduce at triaL. The parties shall confer and shall eliminate duplicative 

exhibits in, advance ofthe final prehearing conference and, if 	 necessary, during tral. Por
 

example, if RX 100 and CX 200 are different copies of the same document, only one of those 

documents shall be offered into evidence. In addition, the parties shall confer in advance of 	 the 

final prehearing conference to prepare a loint Stipulation that lists the proposed exhibits to which 

neither party has an objection to admissibilty. Additional exhibits may be added after the final 

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

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

ORDERED:	 ))M ~l'r'" 

D. Michael Chappell 

Chief Administrative Law ludge 

Date: August 2, 2013 

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