PUBLIC

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

__________________________________________

) 

In the Matter of ) 

) 

Microsoft Corp., ) 

 a corporation, and ) 

) Docket No. 9412 

Activision Blizzard, Inc., ) 

 a corporation, ) 

) 

Respondents. ) 

__________________________________________)

SCHEDULING ORDER

January 17, 2023 - Complaint Counsel provides preliminary witness list (not including

experts), which will include no more than 35 persons (including no

more than 10 non-party witnesses), with a brief summary of the

proposed testimony.

January 24, 2023 - Respondents’ Counsel provides preliminary witness list (not

including experts), which will include no more than 35 persons

(including no more than 10 non-party witnesses), with a brief

summary of the proposed testimony.

February 24, 2023 - Complaint Counsel provides expert witness list.

March 3, 2023 - Deadline for issuing document requests, interrogatories and

subpoenas, except for discovery directed to witnesses who did not

appear on either side’s preliminary lists and discovery for purposes

of authenticity and admissibility of exhibits.

March 10, 2023 - Respondents’ Counsel provides expert witness list.

March 17, 2023 - Complaint Counsel and Respondents to provide updated fact

witness lists, which will include no more than 30 persons total with

no more than 5 witnesses (including no more than 3 non-party

witnesses) who did not appear on that side’s preliminary list, with

a brief summary of the proposed testimony.

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March 28, 2023 - Deadline for issuing requests for admissions, except for requests 

for admissions for purposes of authenticity of documents. 

April 7, 2023 - 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.

May 5, 2023 - Deadline for Complaint Counsel to provide expert witness reports

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

May 12, 2023 - Complaint Counsel provides to Respondents’ Counsel final 

proposed witness and exhibit lists. The final proposed witness list 

will include no more than 20 fact witnesses total, with no more 

than 3 witnesses who did not appear on Complaint Counsel’s 

updated witness list, and a brief summary of the testimony of each 

witness. No witness may be added to the final witness list who did 

not appear on that party’s updated witness list unless such 

witnesses have been deposed in this litigation. The final proposed 

exhibit list shall include depositions, copies of all exhibits (except 

for demonstrative, illustrative or summary exhibits and expert 

related exhibits), and Complaint Counsel’s basis of admissibility 

for each proposed exhibit. 

Complaint Counsel serves courtesy copies on the Administrative 

Law Judge (“ALJ”) of final proposed witness and exhibit lists, the 

basis of admissibility for each proposed exhibit, and a brief 

summary of the testimony of each witness, including expert 

witnesses.

May 26, 2023 - Deadline for Respondents’ Counsel to provide expert witness 

reports (to be provided by 4 p.m. ET). Respondents’ expert report 

shall include (without limitation) rebuttal, if any, to Complaint 

Counsel’s expert witness report(s). 

May 30, 2023 - Respondents’ Counsel provides to Complaint Counsel final 

proposed witness and exhibit lists. The final proposed witness list 

will include no more than 20 fact witnesses total, with no more 

than 3 witnesses who did not appear on Respondents’ updated 

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

No witness may be added to the final witness list who did not 

appear on that party’s updated witness list unless such witnesses 

have been deposed in this litigation. The final proposed exhibit list 

shall include depositions, copies of all exhibits (except for 

demonstrative, illustrative or summary exhibits and expert related 

exhibits), Respondents’ basis of admissibility for each proposed 

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

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Respondents’ Counsel serves courtesy copies on the ALJ of final 

proposed witness and exhibit lists, the basis of admissibility for 

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

each witness, including expert witnesses. 

June 2, 2023 - Complaint Counsel identifies any rebuttal experts not previously 

identified.

June 9, 2023 - Complaint Counsel provides 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).

June 23, 2023 - Deadline for depositions of experts (including rebuttal experts) and 

exchange of expert related exhibits. 

June 29, 2023 - 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.F.R. 

§ 3.45(b).0F

1 See Additional Provision 17. 

July 10, 2023 - Deadline for filing motions for in camera treatment of proposed 

trial exhibits.

July 12, 2023 - Deadline for filing motions in limine to preclude admission 

 of evidence. See Additional Provision 18. 

July 14, 2023 - Exchange and serve courtesy copy on ALJ 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 and raise only objections that 

are necessary and valid. 

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. 

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July 14, 2023 - Complaint Counsel files pretrial brief supported by legal authority. 

July 17, 2023 - Deadline for filing responses to motions for in camera treatment of 

proposed trial exhibits. 

July 19, 2023 - Deadline for filing responses to motions in limine to preclude 

admission of evidence.

July 26, 2023 - Exchange proposed stipulations of law, facts, and authenticity. 

July 28, 2023 - Respondents’ Counsel files pretrial brief supported by legal 

authority. 

August 1, 2023 - Final prehearing conference to begin at 1:00 p.m. ET.

The parties shall meet and confer prior to the prehearing 

conference regarding trial logistics and proposed stipulations of 

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 final prehearing conference. At the 

conference, the parties’ list of stipulations shall be marked as 

“JX1” 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. 

August 2, 2023 - Commencement of Hearing, to begin at 10:00 a.m. ET. 

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: 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 

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

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 9412” 

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 WESTLAW 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. 

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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. Each party is limited to 50 requests for production to parties, including all discrete 

subparts; 25 interrogatories, including all discrete subparts; and 10 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. 

8. If any federal court proceeding related to this administrative proceeding is initiated, 

any discovery obtained in this proceeding is deemed to have been taken in the related federal 

court litigation, and vice versa. Document requests, interrogatories, and requests for admission 

served by the parties in connection with any federal action will count against the discovery 

request limits noted above and vice versa. No individual or entity deposed in one action may be 

re-deposed in the other. The parties preserve all rights to object to the admissibility of evidence. 

9. The parties agree to serve any objections to document requests within 5 business days 

of service of the request, to meet and confer to attempt to resolve any disputes, and to discuss 

timing of production within 3 business days of the objections being served. The party responding 

to document requests will make a good-faith effort to produce responsive documents as 

expeditiously as possible, including by making productions on a rolling basis, and must complete 

production within 21 days of the resolution of any objections relating to those requests. The party 

responding to interrogatories, other than interrogatories subject to Rule 3.35(b)(2), will serve 

responses and objections, if any, within 21 days after the service of the interrogatories. 

10. 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, or to seek certification of a request for court 

enforcement of a non-party subpoena, 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, including negotiations with any non-party with regard to a subpoena, the 

deadline for the motion to compel shall be within 5 days of reaching an impasse. 

11. Each side may depose any witness who (i) is listed on either side’s preliminary 

witness list; (ii) is listed on the other side’s updated witness list; or (iii) provides a declaration or 

affidavit offered by the other side. Depositions are limited to a single day of 7 hours on the 

record, unless otherwise agreed by the parties or ordered by the ALJ. The parties agree to meet 

and confer regarding a remote deposition protocol. 

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12. All party depositions, including depositions of fact and expert witnesses, shall last 

no more than seven hours on the record, exclusive of reasonable time for redirect and recross. If 

both Complaint Counsel and Respondents notice any subpoena/seek to take a non-party fact 

deposition, the seven hours of record time will be divided equally between the sides. If only one 

side subpoenas a non-party fact deposition, then the maximum time shall be allocated 5.5 hours 

to the side that subpoenaed the deposition, and 1.5 hours for the side that did not. For purposes of 

allocating deposition time under this Scheduling Order, former employees, consultants, agents, 

contractors, or representatives of the parties are considered party witnesses if they are 

represented by Respondents’ counsel or if any Respondent is paying for the witness’ counsel, 

and Respondents may not subpoena depositions of their own witnesses. Unused time in any 

side’s allocation of deposition time shall not transfer to the other side. 

13. 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. 

14. 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. 

15. 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 promptly 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 three 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. 

16. A party that obtains a declaration from a non-party will promptly produce it to the 

other side, and in any event not later than (1) seven days before the non-party is scheduled to be 

deposed, or (2) March 3, 2023, whichever is earlier, absent a showing of good cause. Each side is 

limited to 10 declarations by non-parties, except for declarations regarding authenticity and 

admissibility of exhibits. The parties reserve all rights and objections with respect to the use 

and/or admissibility of any declaration, and no declaration will be admitted unless a fair 

opportunity was available to depose the declarant. 

17. 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; in In re Otto Bock Healthcare North 

American, 2018 WL 3491602 at *1 (July 2, 2018); and In re 1-800 Contacts, Inc., 2017 FTC 

LEXIS 55 (Apr. 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., 

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2017 FTC LEXIS 55 (Apr. 4, 2017); In re North Texas Specialty Physicians, 2004 FTC LEXIS 

66 (Apr. 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.

18. 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 (Apr. 

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 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. 

19. 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. A 

general designation that a party reserves the right to call anyone on the opposing party’s witness 

list is not sufficient. 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 updated witness list previously 

exchanged except as provided above. 

20. 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.

21. 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. 

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

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

23. The parties stipulate that each side is limited to identifying no more than four expert 

witnesses in the litigation of this matter. 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: 

 

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 (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 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 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 3.31A, except 

that neither side must preserve or disclose, including in expert deposition testimony, the 

following documents or materials: 

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

counsel and their expert(s) or persons assisting the expert(s), or between any of the experts or 

persons assisting the expert(s) themselves;

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

and persons assisting the expert(s); 

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 (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 expert in the opinions contained in his or her final report. 

24. 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 Additional Provision 6 of this Scheduling Order and 16 C.F.R. 

§ 3.45(e). 

25. Due to ongoing public health concerns related to COVID-19, it is possible that the 

evidentiary hearing in this matter will be conducted remotely by video conference. The parties 

are encouraged, in advance of the hearing, to take expert depositions for the purpose of 

perpetuating trial testimony (i.e., a trial deposition) and to submit such trial testimony as an 

exhibit in lieu of presenting the expert’s testimony via live video at trial. This trial deposition 

may be conducted in addition to any deposition of an expert witness for purposes of discovery 

(discovery deposition). Although the parties are encouraged to submit trial depositions in lieu of 

live video testimony at trial for all expert witnesses in the case, you may choose to do trial 

depositions for all or fewer than all experts. 

26. Due to ongoing public health concerns related to COVID-19, it is possible that the

evidentiary hearing in this matter will be conducted remotely by video conference. To 

accommodate safety or other concerns of witnesses and attorneys and staff, the parties may, in 

advance of the hearing, take trial depositions of fact witnesses who had been deposed before the 

close of discovery and to submit such trial deposition testimony (as video and/or transcript of 

trial deposition testimony) as an exhibit in lieu of presenting the fact witness’ testimony via live 

video at trial. Although the parties may submit trial depositions in lieu of live video testimony at 

trial for all fact witnesses in the case, you may choose to do trial depositions for fewer than all 

fact witnesses. 

27. 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. 

28. 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. 

29. Properly admitted deposition testimony and properly admitted investigational 

hearing transcripts are part of the record and need not be read in open court. Videotape 

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

upon prior approval by the Administrative Law Judge. 

 

30. The parties shall provide to one another, 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 the hearing, subject to possible delays or unforeseen 

circumstances. 

31. 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. 

32. Complaint Counsel’s exhibits shall bear the designation CX and Respondents’ 

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

Counsel’s demonstrative exhibits shall bear the designation CXD 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. 

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

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

exhibits in advance of the final prehearing conference and, if necessary, during trial. For 

example, if CX100 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. 

34. Pretrial briefs shall not exceed 75 pages per side unless otherwise agreed to by the 

parties or ordered by the Administrative Law Judge. The parties will agree on page limits for the 

post-trial briefs and proposed findings of fact and conclusions of law prior to the final prehearing 

conference.

ORDERED: 

 D. Michael Chappell

 Chief Administrative Law Judge 

Date: January 4, 2023 

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