PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

RAG-Stiftung, ) 

) 

Evonik Industries AG, ) 

) 

Evonik Corporation, ) 

) 

Evonik International Holding B.V., ) 

) 

One Equity Partners Secondary Fund L.P., ) Docket No. 9384 

) 

One Equity Partners V, L.P., ) 

) 

Lexington Capital Partners VII (AIVI), L.P., ) 

) 

PeroxyChem Holding Company LLC, ) 

) 

PeroxyChem Holdings, L.P., ) 

) 

PeroxyChem Holdings LLC, ) 

) 

PeroxyChem LLC, ) 

) 

PeroxyChem Cooperatief U .A., ) 

) 

Respondents. ) 

SCHEDULING ORDER 

August 9, 2019 Complaint Counsel and Respondents' Counsel will make a goodfaith effort to produce the following Investigative Materials: (a) all 

documents or data in their possession, custody, or control that (i) 

any non-party provided to any party either voluntarily or under 

compulsory process preceding the filing of this action in the course 

of the parties' assessment of or inquiries into the competitive 
August 19, 2019 

September 10, 2019 -

September 13, 2019 -

September 1 7, 2019 -

September 17, 2019 -

September 27, 2019 -

effects of the proposed merger or (ii) any party, including that 

party's counsel, provided to any non-party ( exclusive of agents or 

consultants of that party retained for the purposes of the 

investigation but inclusive of agents or consultants of that party 

retained for business purposes), preceding the filing of this action 

in the course of the parties' assessment of or inquiries into the 

competitive effects of the proposed merger; (b) all draft and final 

witness statements, including transcripts of testimony, affidavits, 

declarations, or letters, whether in hard-copy or electronic form, 

. sent or received by any party, including that party's counsel, to or 

from any non-party, including that non-party's counsel, preceding 

the filing of this action in the course of the parties' assessment of 

or inquiries into the competitive effects of the proposed merger; 

and ( c) all transcripts of investigative hearings conducted in the 

course of the investigation of the acquisition of PeroxyChem by 

Evonik, FTC File No. 191-0029, along with the exhibits used 

during those investigative hearings. 

Deadline for Complaint Counsel and Respondents' Counsel to 

provide preliminary witness lists (including experts) with a brief 

summary of the proposed testimony. 

Deadline for issuing document requests, interrogatories and 

subpoenas duces tecum to the parties to this proceeding, except for 

discovery for purposes of authenticity and admissibility of 

exhibits. 

Deadline for supplementing preliminary witness lists. 

Deadline for Complaint Counsel and Respondents' Counsel to 

serve document requests to non-parties. 

Deadline for Complaint Counsel and Respondents' Counsel to 

notice a deposition of a fact witness. If a non-party deposition is 

properly noticed pursuant to the above, but the non-party's 

schedule does not reasonably accommodate a deposition before the 

end of fact discovery, a later deposition may occur. 

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, except that, to the extent 

a non-party deposition is properly noticed, but the non-party's 

schedule does not reasonably accommodate a deposition before the 

end of fact discovery, a later deposition may occur. 

2 
September 27, 2019 -

October 15, 2019 

October 18, 2019 

October 22, 2019 

October 24, 2019 

October 28, 2019 

Deadline for Complaint Counsel to provide expert witness 

reports. 

Deadline for Respondents' Counsel to provide expert witness 

reports. 

Final party and non-party witness lists shall be exchanged on or 

before 6:00 p.m. Eastern time. Only a witness who appears on a 

party's preliminary or supplemental witness list may be included 

on a party's final witness list. The number of fact witnesses who 

may be included on the final witness list shall not exceed 12, 

which shall include any witnesses one side may call live or present 

via deposition. 

Final witness lists shall include for each witness: (a) an indication 

of whether the witness is designated as an expert witness; (b) a 

summary of the general topics of each witness's anticipated 

testimony; and (c) an indication of whether the witness will testify 

live or by deposition. 

Parties shall provide courtesy copies to the ALJ of their final 

witness lists and a brief summary of the testimony of each witness, 

including expert witnesses. 

Deadline for requests for admission related to the authenticity of a 

document or the admissibility of documents, data, or other 

evidence. 

Deadline for Complaint Counsel to 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 surrebuttal expert 

reports on behalf of Respondents). 

Deadline for the parties to exchange final proposed exhibit lists, 

including depositions, copies of all exhibits ( except for 

demonstrative, illustrative or summary exhibits and expert related 

exhibits), and the party's basis of admissibility for each proposed 

exhibit. 

Parties shall provide courtesy copies to the ALJ of their final 

exhibit lists and the party's basis of admissibility for each proposed 

exhibit. 

3 
October 29, 2019 

November 1, 2019 

January 7, 2020 

January 7, 2020 

January 14, 2020 

January 14, 2020 

January 14, 2020 

January 14, 2020 

January 15, 2020 

January 15, 2020 

January 17, 2020 

Deadline for parties that intend to offer confidential materials of an 

opposing party or non-party as evidence at the hearing to provide 

notice to the opposing party or non-party, pursuant to 16 C.F.R. 

§ 3.45(b).1 

Close of expert discovery. 

Deadline for filing motions in limine to preclude admission 

of evidence. See Additional Provision 13. 

Deadline for filing motions for in camera treatment of proposed 

trial exhibits. See Additional Provision 12. 

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 files pretrial brief supported by legal authority. 

Deadline for Complaint Counsel and Respondents' Counsel to 

exchange and provide a courtesy copy to the ALJ of their 

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. 

Respondents' Counsel files pretrial brief supported by legal 

authority. 

Deadline for Complaint Counsel and Respondents' Counsel to 

exchange proposed stipulations oflaw, facts, and authenticity. 

Final prehearing conference to begin at 1 :00 p.m. in the FTC 

Courtroom, Room 532, Federal Trade Commission 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 of 

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 1 O days' notice of the proposed use of such material. To resolve this apparent conflict, the Scheduling 

Order requires that the parties provide IO days' notice to the opposing party or third parties to allow for the filing of 

motions for in camera treatment. 

4 
law, 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. All 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. 

January 22, 2020 Commencement of Hearing, to begin at 10:00 a.m. in the 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 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 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 9384" 

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

5 
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 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. There shall be no limit on the number of document requests. Each party is limited 

to 10 interrogatories, including all discrete subparts. There shall be no requests for admissions, 

except that there shall be no limit on the number of requests for admission for authentication and 

admissibility of exhibits. 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. If any 

federal court proceeding related to this administrative proceeding is initiated, any discovery 

6 
obtained in this proceeding before the close of fact discovery in the federal court proceeding may 

be used in the related federal court litigation. All discovery taken in the federal court litigation 

can be used in this administrative proceeding. 

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 3 0 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 testificandum. 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 non-party 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 nonparties 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 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 non-party 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 

7 
FTC LEXIS 55 (April 4, 2017); 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. 

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. 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. 

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 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 form 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. 

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 .31 A 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: 

8 
(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, 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 19(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, 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 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: 

(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 3.3 lA, 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; 

9 
(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 expert 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 party shall prepare two versions of its expert 

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

20. An expert witness's 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 counsels' 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 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 PX and Respondents' 

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

Counsel's demonstrative exhibits shall bear the designation PXD and Respondents 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, 

10 
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 PXlO0 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. Michael Chappell 

Chief Administrative Law Judge 

Date: August 29, 2019 

11