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West Virginia Dear Judge Copenhaver: The United States respectfully submits this letter brief in response to the Court's direction to the parties to brief the sequence of expert witness disclosures in the above-referenced litigation. This responds to the letter brief filed on behalf of defendants Daily Gazette Co.
Summary of Argument Defendants concede that they bear the burden of establishing any procompetitive justifications that support Daily Gazette's acquisition of the Daily Mail from MediaNews. As a result, if defendants choose to file an expert report on that issue, the Federal Rules of Civil Procedure and Local Rules of this Court require them to file that report on the date that this Court sets for initial expert reports, and not, as they argue, on the date for expert reports of the party not bearing the burden of proof.
Defendants' argument that the sequence of the burden-shifting analysis dictates the sequence of the Rule 26 expert disclosure obligations is without merit.
It mistakenly conflates the Federal Rule 26 sequential expert disclosure process with the burden-shifting evidentiary framework courts use to resolve antitrust claims on the merits.
The United States does not dispute that in performing the evidentiary analysis under the Rule of Reason, a court typically considers a plaintiff's evidence of the effect a restraint or transaction has on competition before it turns to a defendant's evidence of its procompetitive justifications.
But Rule 26 contains no such evidentiary requirement, framework, or sequence, and defendants have cited no case that imposes one. Rule 26 simply does not speak to the framework of evidentiary burdens that may occur at summary judgment or trial. Rather, Rule 26 is concerned solely with discovery.
And, with respect to the subject of expert discovery, Rule 26 a 2 Cas well as Local Rule This sequence is designed to provide all parties with adequate opportunities to prepare for cross-examination, summary judgment and trial, and to engage rebuttal experts and present testimony refuting the initial expert's opinions.
Therefore, if a party bears the burden of proof on an issue, like defendants do with regard to the issue of procompetitive justifications, that party must file any expert reports on that issue on the date that this Court sets for initial expert reports. Initial reports are filed first: Rule 26 a 2 B requires the parties to disclose their expert witnesses and provide to the opponent a written report that contains a complete statement of all opinions that the expert intends to express at trial and the basis and reasons for those opinions.
Importantly, Rule 26 applies equally to plaintiffs and defendants. July 7, holding that because defendant elected only to disclose its experts on the rebuttal expert witness disclosure date, "defendant's expert witnesses will not be permitted to testify to any expert opinion regarding an issue on which defendant has the burden of proof".
Reports responsive to the initial reports are filed 30 days later: Rule 26 a 2 C states "if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph 2 Bthe disclosure must be made within 30 days after the disclosure made by the other party.
Argument Defendants argue that they are not required to make expert disclosures on the issue of procompetitive justifications for the May transaction at the initial disclosure deadline because such evidence will be considered by the Court only after the United States "presents prima facie proof that the May transactions had anticompetitive effects.
To support their argument, defendants cite various cases that set out the evidentiary burden shifting framework that courts use in deciding antitrust cases. See Defendants' Letter Brief at Defendants concede that they have the burden of establishing any procompetitive justifications.
The very cases they cite expressly state that this burden rests with the defendant. Microsoft for proposition that under Rule of Reason analysis "the burden shifts to the defendant to proffer a procompetitive justification for its conduct" ; P.
It makes sense to place this burden on the defendant because, as Areeda suggests, "we look to the defendant, with its knowledge of its own situation, to identify possible justifications for its conduct.
Accordingly, because the burden rests with the defendants here, the discovery rules require them to disclose any expert opinions with respect to procompetitive justifications simultaneously with the United States' initial expert disclosures.
They argue that because the court will, after trial, consider whether the United States has made out a prima facie case before turning to the defendants' evidence on possible justifications, this should relieve them of their obligation during the discovery phase of the case to make expert disclosures until after the United States has made all of its disclosures.
However, Rule 26 and Local Rule This obligation under Rule 26 is in no way dependent on the order in which courts ultimately consider the evidence when deciding liability.
The expert disclosure obligation exists under the Federal Rules even if the court never actually considers the evidence when resolving the case on the merits. For example, a court could grant a motion for directed verdict before a defendant puts on any evidence.
That possibility, however, would not relieve the defendant of its Rule 26 obligations during the discovery phase of the case. None of the cases that defendants cite — not one — discusses or even addresses Rule 26 expert disclosure requirements, let alone holds that the sequence of the liability analysis should dictate the sequence of the expert reports.
Nor does the plain language of Rule 26 support such a reading because it is concerned solely with discovery, not with whether any party has evidence sufficient to support a claim, or will ultimately prevail on summary judgment or at trial. In short, the sequential Rule 26 discovery process is separate and apart from the evidentiary burden- shifting process that courts typically use to decide antitrust cases on the merits.
As a purely practical matter, there is no reason why defendants should not have to make disclosures at the initial deadline, as their rationale for why the instant transaction was beneficial to consumers is uniquely within their knowledge, and is in no way contingent upon any opinions of the United States' expert.The Writing Center Thesis Statements What this handout is about This handout describes what a thesis statement is, how thesis statements work in your writing.
Having read the opinions provided by the legal advisors to the Council, Cooper Rapley, I am satisfied that these opinions were, in part, provided by the Council’s legal advisors for the purpose of giving confidential advice on the issues raised by Ms Rankin. All-in-One PDF Editor: create, convert, ocr, fill & secure PDFSign & Secure · Collabrate & Review · Create & Combine · Markup & Comment7,+ followers on Twitter.
sion reflects the opinion of the judge or justice hearing the case.
Decisions by appellate courts are frequently phrased in reference to the lower court’s decision. The written word is one of the most important tools of the legal initiativeblog.com are used to advocate, inform, persuade, and instruct.
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Whether writing a demand letter to a contract breacher, an advice letter to a client, or a cover letter to a court clerk, the letter fails if the person receiving it cannot understand what it says. All of these letters have one thing in common: They are not great literature.