UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Raging Wire Data Centers, Inc. ) Docket No. 9386 

a corporation, ) 

) 

Respondent. ) 

SCHEDULING ORDER 

December 20, 2019 - Complaint Counsel provides preliminary witness list (not 

including expetts) with a brief summary of the proposed 

testimony. 

January 7, 2020 Respondent's counsel provides preliminary witness list (not 

including experts) with a brief summary of the proposed 

testimony. 

March 13, 2020 Deadline for issuing document requests, interrogatories and 

subpoenas duces tecum, except for discovery for purposes 

of authenticity and admissibility of exhibits. 

March 20, 2020 Complaint Counsel provides expert witness list. 

April 3, 2020 Deadline for issuing requests for admissions, except for 

requests for admissions for purposes of authenticity and 

admissibility of exhibits. 

April 9, 2020 Respondent's counsel provides expert witness list. 

Ap1il 28, 2020 Close of discovery, other than discovery pennitted under 

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

purposes of authenticity and admissibility of exhibits. 
May 12, 2020 Deadline for Complaint Counsel to provide expert witness 

reports. 

May 26, 2020 Deadline for Respondent's counsel to provide expert 

witness repotis (to be provided by 4 p.m. ET). 

Respondent's expert report shall include (without 

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

witness report(s). 

May 29, 2020 Complaint Counsel provides to Respondent's counsel its 

final proposed witness and exhibit lists, including 

depositions, copies of all exhibits ( except for 

demonstrative, illustrative or summary 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 provides courtesy copies to 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. 

June 8, 2020 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, Respondent will 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 Respondent). 

June 11, 2020 Respondent's counsel provides to Complaint Counsel its 

final proposed witness and exhibit lists, including 

depositions, copies of all exhibits ( except for 

demonstrative, illustrative 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 provides courtesy copies to 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. 

2 
June 12, 2020 Parties that intend to offer confidential materials of an 

opposing party or non-party as evidence at the heating must 

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

to 16 C.F.R. § 3.45(b ). 1 See Additional Provision 12. 

June 17, 2020 Deadline for depositions of experts (including rebuttal 

experts) and exchange of expert related exhibits. 

June 19, 2020 Deadline for filing motions in limine to preclude admission 

of evidence. See Additional Provision 13. 

June 19, 2020 Exchange and provide courtesy copy to ALJ of objections 

to final proposed witness lists and exhibit lists. The Parties 

are directed to review the Commission's Rules on 

admissibility of evidence before filing objections to 

exhibits. 

June 23, 2020 Deadline for filing motions for in camera treatment of 

proposed trial exhibits. 

June 23, 2020 Complaint Counsel files pretrial brief supported by legal 

authority. 

June 24, 2020 Deadline for filing responses to motions in limine to 

preclude admissions of evidence. 

June 25, 2020 Exchange proposed stipulations of law, facts, and 

authenticity. 

June 26, 2020 Deadline for filing responses to motions for in camera 

treatment of proposed trial exhibits. 

June 30, 2020 Respondent's counsel files pretrial brief supported by legal 

authority. 

July 2, 2020 Final prehearing conference to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission 

1 Appendix A to Commission Rule 3.31 , the Standard Protective Order, states that if a party or third party 

wishes in camera treatment for a document or transcript that a party intends to introduce into evidence, that 

party or third party shall file an appropriate motion with the Administrative Law Judge within 5 days after 

it receives notice of a party's intent to introduce such material. Commission Rule 3.45(b) states that parties 

who seek to use material obtained from a third party subject to confidentiality restrictions must demonstrate 

that the third party has been given at least 10 days' notice of the proposed use of such material. To resolve 

this apparent conflict, the Scheduling Order requires that the parties provide 10 days' notice to the opposing 

party or third parties to allow for the filing of motions for in camera treatment. 

3 
Building, 600 Pennsylvania Avenue, NW, Washington, DC 

20580. 

The parties shall meet and confer prior to the prehearing 

conference regarding trial logistics and proposed 

stipulations oflaw, facts, and authenticity of exhibits. 

To the extent the parties have agreed to stipulate to any 

issues of law, facts, and/or authenticity of exhibits, the 

parties shall prepare a list of such stipulations and submit a 

copy of the stipulations to the ALJ one business day prior 

to the conference. At the conference, the parties' list of 

stipulations shall be marked as "JXl" and signed by each 

party, and the list shall be offered into evidence as a joint 

exhibit. No signature by the ALJ is required. Any 

subsequent stipulations may be offered as agreed by the 

parties. 

Counsel may present any objections to the final proposed 

witness lists and exhibits. 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 list identifying each exhibit to which 

admissibility is agreed, marked as "JX2" and signed by 

each party, which list shall be offered into evidence as a 

joint exhibit. No signature by the ALJ is required. 

July 7, 2020 Commencement of Hearing, to begin at 10:00 a.m. in FTC 

Courtroom, Room 532, Federal Trade Commission 

Building, 600 Pennsylvania A venue, 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 provide a courtesy copy to 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 Secretary. 

Courtesy copies must be transmitted to Office of the Administrative Law Judge directly, 

and the FTC E-filing system shall not be used for this purpose. 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. Certificates of service for any pleading shall not include the 

OALJ email address, or the email address of any OALJ personnel, including the Chief 

4 
ALJ, but rather shall designate only 600 Pennsylvania Ave., NW, Rm. H-110 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. The parties are not 

required to provide a courtesy copy to the OALJ in hard copy, except upon request. 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. 

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

9386" in the re: line and all attached documents in .pdf format. In the event that service 

through electronic mail is not possible, the parties may serve each other through any 

method authorized under the Commission's Rules of Practice. 

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, motion for summary decision, or 

a motion for in camera treatment) 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 5,000 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 patty 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 

5 
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. 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. Within seven days of service of a document 

request, the parties shall confer about the format for the production of electronically 

stored information. 

8. 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 responses and/or objections to the discovery requests or within 20 days 

after the close of discovery, whichever first occurs; except that, where the parties have 

been engaging in negotiations over a discovery dispute, the deadline for the motion to 

compel shall be within 5 days of reaching an impasse. 

9. 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. 

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

subpoenas duces tecum and subpoenas ad test(ficandum. For subpoenas ad 

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

the time and place of the deposition is scheduled. The parties need not separately notice 

the deposition of a non-party noticed by an opposing party. If both sides notice any nonparty fact deposition, the time and allocation for the deposition shall be divided evenly 

between them. For any non-party deposition noticed by only one side, the non-noticing 

side shall be allocated one and a half hours of deposition time for cross or re-cross 

testimony. Unused time in any side's allocation of deposition time may be used by the 

other side. 

11. 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 non6 
party provides documents in response to a subpoena duces tecum to a party, and 3 

business 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 nonparty produces those documents at the time of the deposition, as agreed to by all parties 

involved. 

12. If a party intends to offer confidential materials of an opposing party or nonparty as evidence at the hearing, in providing notice to such non-party, the parties are 

required to inform each non-party of the strict standards for motions for in camera 

treatment for evidence to be introduced at trial set forth in 16 C.F.R. § 3 .45, explained In 

re Otto Bock Healthcare N. Am., 2018 WL 3491602 at *1 (July 2, 2018); and In re 1-800 

Contacts, Inc., 2017 FTC LEXIS 55 (April 4, 2017). Motions also must be supported by 

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

documents. In re 1-800 Contacts, Inc., 2017 FTC LEXIS 55 (April 4, 2017); In re North 

Texas Specialty Physicians, 2004 FTC LEXIS 66 (April 23, 2004). Each party or nonparty 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. 

13. Motions in limine are strongly 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 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. 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. 

14. The final witness lists shall represent counsel's 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 or 

supplemental 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. If any party wishes to offer a rebuttal witness other than a rebuttal expert, the 

party shall file a request in writing in the fom1 of a motion to request a rebuttal witness. 

That motion shall be filed as soon as possible after the testimony sought to be rebutted is 

known and shall include: (a) the name of any witness being proposed (b) a detailed 

description of the rebuttal evidence being offered; ( c) citations to the record, by page and 

line number, to the evidence that the party intends to rebut; and shall demonstrate that the 

witness the party seeks to call has previously been designated on its witness list or 

adequately explain why the requested witness was not designated on its witness list. 

7 
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 3.3 lA 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 expe1i 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, except that transcript sections that are under seal in a 

separate proceeding need not be produced. 

(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, subject to the provisions of l 9(g), except that 

documents and materials already produced in the case need only be listed by Bates 

number. 

(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, expe1i 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 therefor; the data or other information relied on 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 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 this litigation or 

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

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

counsel: 

8 
(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. 

(g) Experts' disclosures and reports shall comply in all respects with Rule 3.31A, 

except that neither side must preserve or disclose: 

(i) any form of communication or work product shared between any of the 

parties' counsel and their expert(s), or between any of the experts themselves; 

(ii) any form of communication or work product shared between an expert(s) 

and persons assisting the expert(s); 

(iii) expert's notes, unless they constitute the only record of a fact or an 

assumption relied upon by the expert in formulating an opinion in this case; 

(iv) drafts of expert reports, analyses, or other work product; or 

(v) data formulations, data runs, data analyses, or any database-related 

operations not relied upon by the expe1i in the opinions contained in his or her final 

report. 

19. If the expert reports prepared for either party contain confidential information 

that has been granted in camera treatment, the paiiy shall prepare two versions of its 

expert report(s) in accordance with 16 C.F.R. § 3.45(e). 

20. An expert witness' testimony is limited to opinions contained in the expert 

report that has been previously and properly provided to the opposing party. In addition, 

no opinion will be considered, even if included in an expert report, if the underlying and 

supporting documents and information have not been properly provided to the opposing 

party. Unless an expert witness is qualified as a fact witness, an expert witness is only 

allowed to provide opinion testimony; expert testimony is not considered for the purpose 

of establishing the underlying facts of the case. 

21. The final exhibit lists shall represent counsel's good faith designation of all 

trial exhibits other than demonstrative, illustrative, or summary 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. 

22. Properly admitted deposition testimony and properly admitted investigational 

hearing transcripts are part of the record and shall not be read in open court to provide 

that testimony, but may be used in the examination of live witnesses. Videotape 

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

only upon prior approval by the Administrative Law Judge. 

23. The parties shall provide to one another, and to the Administrative Law Judge 

and the court reporter, no later than 48 hours in advance, not including weekends and 

9 
holidays, a list of all witnesses to be called on each day of hearing, subject to possible 

delays or unforeseen circumstances. 

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

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

hours before they are used with a witness. 

25. Complaint Counsel's exhibits shall bear the designation CX and Respondent's 

exhibits shall bear the designation RX or some other appropriate designation. Complaint 

Counsel's demonstrative exhibits shall bear the designation CXD and Respondent's 

demonstrative exhibits shall bear the designation RXD or some other appropriate 

designation. If demonstrative exhibits are used with a witness, the exhibit will be marked 

and referred to for identification only. Any demonstrative exhibits referred to by any 

witness may be included in the trial record, but they are not part of the evidentiary record 

and may not be cited to support any disputed fact. 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." · 

26. At the final prehearing conference, counsel will be required to introduce all 

exhibits they intend to introduce at trial and to provide the exhibits to the court reporter. 

The parties shall confer and shall eliminate duplicative exhibits in advance of the final 

prehearing conference and, if necessary, during trial. For example, if CXI 00 and RX200 

are different copies of the same document, only one of those documents shall be offered 

into evidence. The parties shall agree in advance as to which exhibit number they intend 

to use. Counsel shall contact the court reporter regarding submission of exhibits. 

ORDERED: 

D. M1caelC ;ppell 

Chief Administrative Law Judge 

Date: December 5, 2019 

10 
Notice of Electronic Service 

I hereby certify that on December 05, 2019, I filed an electronic copy of the foregoing 120519 Scheduling 

Order, with: 

D. Michael Chappell 

Chief Administrative Law Judge 

600 Pennsylvania Ave., NW 

Suite 110 

Washington, DC, 20580 

Donald Clark 

600 Pennsylvania Ave., NW 

Suite 172 

Washington, DC, 20580 

I hereby certify that on December 05, 2019, I served via E-Service an electronic copy of the foregoing 120519 

Scheduling Order, upon: 

Linda Kopp 

Federal Trade Commission 

lkopp@ftc.gov 

Complaint 

Robin Wetherill 

Federal Trade Commission 

rwetherill@ftc.gov 

Complaint 

Corey Roush 

Partner 

Akin Gump Strauss Hauer & Feld LLP 

croush@akingump.com 

Respondent 

C. Fairley Spillman 

Partner 

Akin Gump Strauss Hauer & Feld LLP 

fspillman@akingump.com 

Respondent 

Diana Schaffner 

Akin Gump Strauss Hauer & Feld LLP 

dschaffner@akingump.com 

Respondent 

Lynnette Pelzer 

Attorney