UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

In the Matter of

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

CHICAGO BRIDGE & IRON COMPANY,
a corporation, and

DOCKET NO. 9300

PITT-DES MOINES, INC.,
a corporation.

Vee ee SHS HH YS

ORDER GRANTING RESPONDENTS’ MOTION TO MODIFY WITNESS LIST

L

On October 4, 2002, Respondents (Chicago Bridge and Iron (“CB&I”) and Pitt-Des
Moines (“PDM”)) filed a Motion for Leave to Modify Their Witness List. On October 7, 2002,
Complaint Counsel filed its opposition. For the reasons set forth below, the motion is
GRANTED.

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Respondents’ motion seeks an order allowing Respondents to add one expert witness to
their witness list, to allow Respondents to submit an additional expert report, and to allow
Complaint Counsel to take the deposition of this expert outside the close of discovery.
Respondents assert that the expert’s testimony would be limited to the sole purpose of analyzing
and testifying about the analysis provided by one particular witness designated by Complaint
Counsel. The identity of this witness was designated as confidential information by the parties in
the confidential versions of their pleadings and need not be revealed in this Order for purposes of
ruling on Respondents’ motion.

Complaint Counsel asserts that Respondents have failed to demonstrate good cause for
adding an expert witness past the deadlines established for witness lists and expert reports.
Complaint Counsel asserts that Respondents already have documents in their possession that
should be sufficient either to confirm or to refute the testimony of this one witness.



mm.

Commission Rule 3.21 requires Administrative Law Judges to enter a scheduling order
that “establishes a scheduling of proceedings, including a plan of discovery... .” 16 C.F.R.
§3.21(c)(1). Pursuant to 16 C.F.R. § 3.21(c)(1), Additional Provision Number Four of the first
Scheduling Order, entered on February 20, 2002, states that “[tJhe final proposed witness list may
not include additional witnesses not listed in the preliminary or revised preliminary witness lists
previously exchanged unless by order of the Administrative Law Judge upon a showing of good
cause.” All subsequent revised scheduling orders state that the “Additional Provisions” of the
February 20, 2002 Scheduling Order remain in effect.

Under the Third Revised Scheduling Order, entered on September 10, 2002, Respondents
were required to provide their final proposed witness list by September 19, 2002, and were
required to provide expert witness reports by September 23, 2002. Pursuant to Commission Rule
3.21(c)(2), the Administrative Law Judge may grant a motion to extend any deadline or time
specified in the prehearing scheduling order “only upon a showing of good cause.” 16 C.F.R.

§ 3.21(¢)(2).

Respondents assert that the following circumstances, taken together, demonstrate good
cause:

. Complaint Counsel did not designate this employee of a particular non-party
customer of CB&I as a new witness until July 25, 2002. Prior to July 25, 2002,
this individual had not appeared on Complaint Counsel’s preliminary witness list
(served on April 23, 2002) or on Complaint Counsel’s revised witness list (served
on May 28, 2002.)

. By agreement of all parties, this witness’ deposition was not conducted until
August 21, 2002. During his deposition, the witness testified to his belief that the
merger between CB&I and PDM had caused prices for certain tanks to increase.

. During his deposition on August 21, 2002, counsel for Respondents asked counsel
for this witness’ company to provide any written analysis, backup information or
calculations supporting the witness’ opinion. The non-party did not produce the
requested documents until September 23, 2002.

. Citing concerns regarding confidentiality, the non-party designated the documents
as “Attorney’s Eyes Only.” This designation prevented Respondents’ counsel
from showing the documents to CB&I employees who might have been able to
assist Respondents’ counsel in analyzing the documents.



Iv.

Good cause is demonstrated if a party seeking to extend a deadline demonstrates that a
deadline cannot reasonably be met despite the diligence of the party seeking the extension.
Bradford v. Dana Corp., 249 F.3d 807, 809 (8" Cir. 2001); Sosa v. Airprint Systems, Inc., 133
F.3d 1417, 1418 (11" Cir. 1998); Fed. R. Civ. P. 16 Advisory Committee Notes (1983
amendment). For an unexplained reason, Complaint Counsel designated this individual as a
witness three months past the deadline for serving its preliminary witness list and two months past
the deadline for serving its revised witness list. Since Respondents did not receive the documents
supporting the expert opinion of this late designated witness until September 23, 2002, and the
pleadings demonstrate that the delay is not attributable to Respondents, Respondents have
demonstrated that they could not have listed their witness or provided an expert report analyzing
the opinion offered by Complaint Counsel’s witness by the deadlines established in the Scheduling
Order. Accordingly, Respondents have demonstrated good cause and their motion is
GRANTED.

Respondents may name an expert witness for the sole purpose of analyzing and testifying
about the opinion of the particular witness identified in the confidential pleadings. Respondents
have until October 17, 2002 to identify an appropriate expert. The expert shall serve his expert
report on Complaint Counsel no later than October 23, 2002. Any deposition of this expert shall
take place on or before October 31, 2002.

ORDERED: DM Ainro,A
D. Michael Chappell “7 ~ \
Administrative Law Judge

Date: October 16, 2002