UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x CITY OF PROVIDENCE, RHODE ISLAND, : Civil Action No. 1:14-cv-02811-JMF-OTW Individually and on Behalf of All Others : (Consolidated) Similarly Situated, : : CLASS ACTION Plaintiff, : : [PROPOSED] ORDER RE: MARCH 16, 2021 vs. : HEARING : BATS GLOBAL MARKETS, INC., et al., : : Defendants. : x Upon review of the parties’ submissions as described below and after hearing oral argument on March 16, 2021, and for the reasons stated on the record, the Court orders, as to the below-described matters, as follows: 1. Regarding Defendant Nasdaq’s letter-motion for a discovery conference regarding Nasdaq’s contention interrogatories (see ECF Nos. 540, 557, 566), Plaintiffs shall serve any
objections to Nasdaq’s contention interrogatories by Thursday, March 18, 2021. Plaintiffs shall serve substantive responses to Nasdaq’s contention interrogatories by Friday, April 2, 2021. The parties shall meet and confer on Plaintiffs’ objections in an attempt to resolve or narrow any disputes and, if there are outstanding issues after meeting and conferring, shall promptly raise these issues with the Court. 2. Regarding Plaintiffs’ letter-motion for a discovery conference challenging NYSE’s privilege log (see ECF Nos. 545, 564), NYSE shall re-review the remaining 234 documents challenged by Plaintiffs, see ECF No. 518 & Ex. 1, and, as necessary, de-designate or revise the redactions to these documents and provide an updated privilege log. NYSE shall complete its re-
review and de-designation or revised redaction of these documents and provide a revised privilege log, if necessary, by Tuesday, March 23, 2021 (including the production of any de-designated documents or documents with revised redactions). Following this process, and consistent with the Court’s prior Order at ECF No. 528, Plaintiffs will then have an opportunity to review and raise challenges to up to 10 documents, then meet and confer with NYSE to resolve the challenges, and if not resolved, promptly raise any outstanding challenges with the Court. Plaintiffs shall raise any challenges to the 234 documents (selecting up to 10 documents to challenge) with NYSE by Friday, March 26, 2021, with meet and confers between the parties to follow. 3. Regarding Plaintiffs’ letter-motion for a discovery conference challenging Nasdaq’s privilege log (see ECF Nos. 549, 560), the parties shall meet and confer by Friday, March 19, 2021 to attempt to agree upon a subset of the approximately 4,000 Nasdaq privilege log entries challenged by Plaintiffs, see ECF No. 549 & Ex. 1, for Nasdaq to re-review, and to discuss rescheduled dates for the depositions of Mr. Hathaway and Ms. Swanstrom. Following Nasdaq’s
re-review of the subset of the approximately 4,000 Nasdaq privilege log entries challenged by Plaintiffs, the parties will then follow a process along the lines of the one ordered above in connection with Plaintiffs’ challenge to NYSE’s privilege log. 4. Regarding Defendant NYSE’s letter-motion for a discovery conference seeking to quash Plaintiffs’ notice of Rule 30(b)(6) deposition testimony (see ECF Nos. 551, 567), the Court denies Defendants’ letter-motion to the extent it seeks to quash the notice as to any or all topics listed in Plaintiffs’ Second Amended Notice without prejudice to renewal following the meet and confer addressed in the next sentence of this paragraph. The parties have advised the Court that they began meeting and conferring about the issues raised by NYSE’s letter-motion, have resolved
some of those issues, and are continuing to meet and confer about the remaining issues; the parties shall complete those discussions and advise the Court promptly thereafter in the event any such The parties shall also meet and confer regarding the scheduling of this issues are unresolved. deposition no later than March 19, 2021. 5. Regarding Plaintiffs’ letter-motion for a discovery conference to compel production of transcripts of NYSE testimony to the U.S. Securities & Exchange Commission and motion to show cause why NYSE had not produced a signed interrogatory verification (see ECF Nos. 552, 565), NYSE shall promptly produce the transcript of Vincent Lanzillo’s testimony. The parties shall confer on the three transcripts of testimony by Joseph Mecane which were referenced by Plaintiffs during the hearing, after which NYSE shall promptly produce the transcripts to the For avoidance of doubt, the Court will not entertain extent they are relevant to issues in this case. requests for production of any transcripts of SEC testimony beyond the four referenced in this paragraph. The Court denies the letter-motion to show cause as moot in light of Defendant NYSE’s To the extent this production prompts production of the interrogatory verification on March 15, 2021. f urther discovery requests, the parties shall meet and confer by March 19, 2021. 6. Regarding Plaintiffs’ letter to the Court concerning the claw back of, and instruction not to testify as to, purportedly privileged documents at the deposition of BATS/Direct Edge employee Robert Books (see ECF Nos. 558, 563), BATS/Direct Edge shall produce a privilege log regarding those documents and the parties shall meet and confer by Friday, March 19, 2021 to address any issues that remain after the production of the privilege log regarding those documents. If any outstanding issues remain after meeting and conferring, the aggrieved party shall promptly submit the issues by letter-motion to the Court. 7. Regarding Plaintiffs’ letter-motion for a limited extension of the deadlines related to class certification and preclusion (see ECF Nos. 553, 559), the deadlines set forth in the August 16, 2019 Case Management Plan (ECF No. 329), as amended on March 4, 2020 (ECF No. 408), May 6, 2020 (ECF No. 422), and September 18, 2020 (ECF No. 455), are hereby extended by 45 days. The extended deadline for the completion of discovery related to class certification and preclusion is limited to completing or resolving only the following matters: 1) work ordered by the Court in connection with the above-referenced matters, and 2) any other matters specifically identified to and discussed with the Court during the March 16, 2021 hearing. As the Court stated on the record during the March 16, 2021 hearing, while perhaps somewhat ambitious, this is the final extension of discovery relating to class certification and preclusion that it will grant. The remedy for failure to comply with discovery obligations by the extended deadlines will be sanctions, not any further extensions of time. The Court further orders the parties to submit their next bi-monthly status letter, see ECF No. 329 ¶16, on Tuesday, April 6, 2021. Unless otherwise ordered by the Court, bi-monthly status letters will be submitted every two months thereafter from that date. Specifically, the following deadlines shall be in effect:
Event Current Deadline New Deadline Deadline for the service of any new third- August 28, 2020 (no change) party document discovery relevant to class certification or preclusion motion practice. Deadline for production of documents November 30, 2020 (no change) (including by third parties) that may be used by the parties in connection with Plaintiffs’ motion for class certification and Defendants’ motion for summary judgment on grounds of preclusion, see Lanier v. BATS Exch., Inc., 838 F.3d 139, 155 (2d Cir. 2016), to be substantially completed. Deadline for all fact discovery relating to March 12, 2021 April 26, 2021 class certification and preclusion to be completed.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x CITY OF PROVIDENCE, RHODE ISLAND, : Civil Action No. 1:14-cv-02811-JMF-OTW Individually and on Behalf of All Others : (Consolidated) Similarly Situated, : : CLASS ACTION Plaintiff, : : [PROPOSED] ORDER RE: MARCH 16, 2021 vs. : HEARING : BATS GLOBAL MARKETS, INC., et al., : : Defendants. : x Upon review of the parties’ submissions as described below and after hearing oral argument on March 16, 2021, and for the reasons stated on the record, the Court orders, as to the below-described matters, as follows: 1. Regarding Defendant Nasdaq’s letter-motion for a discovery conference regarding Nasdaq’s contention interrogatories (see ECF Nos. 540, 557, 566), Plaintiffs shall serve any
objections to Nasdaq’s contention interrogatories by Thursday, March 18, 2021. Plaintiffs shall serve substantive responses to Nasdaq’s contention interrogatories by Friday, April 2, 2021. The parties shall meet and confer on Plaintiffs’ objections in an attempt to resolve or narrow any disputes and, if there are outstanding issues after meeting and conferring, shall promptly raise these issues with the Court. 2. Regarding Plaintiffs’ letter-motion for a discovery conference challenging NYSE’s privilege log (see ECF Nos. 545, 564), NYSE shall re-review the remaining 234 documents challenged by Plaintiffs, see ECF No. 518 & Ex. 1, and, as necessary, de-designate or revise the redactions to these documents and provide an updated privilege log. NYSE shall complete its re-
review and de-designation or revised redaction of these documents and provide a revised privilege log, if necessary, by Tuesday, March 23, 2021 (including the production of any de-designated documents or documents with revised redactions). Following this process, and consistent with the Court’s prior Order at ECF No. 528, Plaintiffs will then have an opportunity to review and raise challenges to up to 10 documents, then meet and confer with NYSE to resolve the challenges, and if not resolved, promptly raise any outstanding challenges with the Court. Plaintiffs shall raise any challenges to the 234 documents (selecting up to 10 documents to challenge) with NYSE by Friday, March 26, 2021, with meet and confers between the parties to follow. 3. Regarding Plaintiffs’ letter-motion for a discovery conference challenging Nasdaq’s privilege log (see ECF Nos. 549, 560), the parties shall meet and confer by Friday, March 19, 2021 to attempt to agree upon a subset of the approximately 4,000 Nasdaq privilege log entries challenged by Plaintiffs, see ECF No. 549 & Ex. 1, for Nasdaq to re-review, and to discuss rescheduled dates for the depositions of Mr. Hathaway and Ms. Swanstrom. Following Nasdaq’s
re-review of the subset of the approximately 4,000 Nasdaq privilege log entries challenged by Plaintiffs, the parties will then follow a process along the lines of the one ordered above in connection with Plaintiffs’ challenge to NYSE’s privilege log. 4. Regarding Defendant NYSE’s letter-motion for a discovery conference seeking to quash Plaintiffs’ notice of Rule 30(b)(6) deposition testimony (see ECF Nos. 551, 567), the Court denies Defendants’ letter-motion to the extent it seeks to quash the notice as to any or all topics listed in Plaintiffs’ Second Amended Notice without prejudice to renewal following the meet and confer addressed in the next sentence of this paragraph. The parties have advised the Court that they began meeting and conferring about the issues raised by NYSE’s letter-motion, have resolved
some of those issues, and are continuing to meet and confer about the remaining issues; the parties shall complete those discussions and advise the Court promptly thereafter in the event any such The parties shall also meet and confer regarding the scheduling of this issues are unresolved. deposition no later than March 19, 2021. 5. Regarding Plaintiffs’ letter-motion for a discovery conference to compel production of transcripts of NYSE testimony to the U.S. Securities & Exchange Commission and motion to show cause why NYSE had not produced a signed interrogatory verification (see ECF Nos. 552, 565), NYSE shall promptly produce the transcript of Vincent Lanzillo’s testimony. The parties shall confer on the three transcripts of testimony by Joseph Mecane which were referenced by Plaintiffs during the hearing, after which NYSE shall promptly produce the transcripts to the For avoidance of doubt, the Court will not entertain extent they are relevant to issues in this case. requests for production of any transcripts of SEC testimony beyond the four referenced in this paragraph. The Court denies the letter-motion to show cause as moot in light of Defendant NYSE’s To the extent this production prompts production of the interrogatory verification on March 15, 2021. f urther discovery requests, the parties shall meet and confer by March 19, 2021. 6. Regarding Plaintiffs’ letter to the Court concerning the claw back of, and instruction not to testify as to, purportedly privileged documents at the deposition of BATS/Direct Edge employee Robert Books (see ECF Nos. 558, 563), BATS/Direct Edge shall produce a privilege log regarding those documents and the parties shall meet and confer by Friday, March 19, 2021 to address any issues that remain after the production of the privilege log regarding those documents. If any outstanding issues remain after meeting and conferring, the aggrieved party shall promptly submit the issues by letter-motion to the Court. 7. Regarding Plaintiffs’ letter-motion for a limited extension of the deadlines related to class certification and preclusion (see ECF Nos. 553, 559), the deadlines set forth in the August 16, 2019 Case Management Plan (ECF No. 329), as amended on March 4, 2020 (ECF No. 408), May 6, 2020 (ECF No. 422), and September 18, 2020 (ECF No. 455), are hereby extended by 45 days. The extended deadline for the completion of discovery related to class certification and preclusion is limited to completing or resolving only the following matters: 1) work ordered by the Court in connection with the above-referenced matters, and 2) any other matters specifically identified to and discussed with the Court during the March 16, 2021 hearing. As the Court stated on the record during the March 16, 2021 hearing, while perhaps somewhat ambitious, this is the final extension of discovery relating to class certification and preclusion that it will grant. The remedy for failure to comply with discovery obligations by the extended deadlines will be sanctions, not any further extensions of time. The Court further orders the parties to submit their next bi-monthly status letter, see ECF No. 329 ¶16, on Tuesday, April 6, 2021. Unless otherwise ordered by the Court, bi-monthly status letters will be submitted every two months thereafter from that date. Specifically, the following deadlines shall be in effect:
Event Current Deadline New Deadline Deadline for the service of any new third- August 28, 2020 (no change) party document discovery relevant to class certification or preclusion motion practice. Deadline for production of documents November 30, 2020 (no change) (including by third parties) that may be used by the parties in connection with Plaintiffs’ motion for class certification and Defendants’ motion for summary judgment on grounds of preclusion, see Lanier v. BATS Exch., Inc., 838 F.3d 139, 155 (2d Cir. 2016), to be substantially completed. Deadline for all fact discovery relating to March 12, 2021 April 26, 2021 class certification and preclusion to be completed. Deadline to submit joint letter advising Within one Week of (no change) the Court of the parties’ views on how Court’s Ruling on much time is needed to complete any Plaintiff’s class additional discovery in light of the Court’s certification motion and ruling(s) on Plaintiff’s class certification Defendants’ motion for motion and Defendants’ motion for summary judgment on summary judgment on grounds of grounds of preclusion preclusion and the discovery completed prior to those motions being filed. Deadline for remaining fact discovery to Within 90 days of the (no change) be completed. Court’s ruling on Plaintiff’s class certification motion and Defendants’ motion for summary judgment on grounds of preclusion Deadline for all expert discovery on Within 60 days of the (no change) subjects other than class certification and deadline for the preclusion, including expert reports, production of underlying documents, and | completion of fact depositions, to be completed. discovery Deadline to serve interrogatories pursuant | November 30, 2020 (no change) to Rule 33.3(a) of the Local Civil Rules of the Southern District of New York (no Rule 33.3(a) interrogatories need to be served with respect to disclosures automatically required by Fed. R. Civ, P. 26(a)). Deadline to serve contention 30 days before the close | (no change) interrogatories pursuant to Rule 33.3(c) of | of discovery, unless the Local Civil Rules of the Southern otherwise ordered by the District of New York. Court Deadline to take depositions of fact Close of fact discovery, (no change) witnesses. unless otherwise ordered by the Court Deadline to serve requests to admit. 30 days before the close | (no change) of discovery, unless otherwise ordered by the Court Deadline for the parties to meet and 30 days prior to the (no change) confer on a schedule for expert deadline for completion disclosures on subjects other than class of all fact discovery certification and preclusion, including reports, production of underlying documents, and depositions, provided that (1) expert reports of the party with the burden of proof shall be due before those of the opposing party’s experts; and (11) all expert discovery shall be completed by the deadline for completion of expert discovery (that is, the date set forth in paragraph 3(d)). Deadline for Plaintiffs to file any motion | April 13, 2021 May 28, 2021 for class certification, and Defendants to file any motion for summary judgment on grounds of preclusion. By the same date, the moving side shall serve expert reports relating to its motion(s). side’s experts for class certification and
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motion for summary judgment on grounds of preclusion. Deadline to file briefs in opposition to June 10, 2021 July 26, 2021 class certification and motion for summary judgment on grounds of preclusion. By the same date, the opposing parties shall serve expert reports relating to the motion(s) being opposed. Deadline to take depositions of opposing =| July 12, 2021 August 26, 2021 side’s experts proffered in opposition to class certification and motion for summary judgment on grounds of preclusion. Deadline to file reply memoranda of law | August 3, 2021 September 17, 2021 in support of motions for class certification and summary judgment on grounds of preclusion. Deadline to meet in person for at least one | 14 days following the (no change) hour to discuss settlement. close of fact discovery Deadline to file summary judgment 45 days after the close of | (no change) motions, if applicable, and any motion to | fact or expert discovery exclude the testimony of experts pursuant | (whichever is later) to Rules 702-705 of the Federal Rules of Evidence and the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), line of cases. Deadline to file oppositions to summary 45 days after opening (no change) Judgment motions, if applicable, and any _| motion(s) are served motion to exclude the testimony of experts pursuant to Rules 702-705 of the Federal Rules of Evidence and the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), line of cases. Deadline to file replies in support of 21 days after service of (no change) summary judgment motions, if applicable, | any opposition and any motion to exclude the testimony of experts pursuant to Rules 702-705 of the Federal Rules of Evidence and the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), line of cases.
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Deadline for the parties to submit to the 45 days after the close of | (no change) Court for its approval a Joint Pretrial all discovery, or, if a Order prepared in accordance with the dispositive motion has Court’s Individual Rules and Practices been filed, within 45 and Fed. R. Civ. P. 26(a)(3). days of a decision on such motion Deadline to submit joint requests to On or before the deadline | (no change) charge, joint proposed verdict forms, and | to file the Joint Pretrial joint proposed voir dire questions. Order Deadline to submit proposed findings of — | On or before the deadline | (no change) fact and conclusions of law. to file the Joint Pretrial Order Deadline to be ready for trial. One month after the Joint | (no change) Pretrial Order is filed IT IS SO ORDERED. DATED: March 22, 2021 THE HON@RABL SSE M. FURMAN UNITEDATATES DISTRICT JUDGE
The Clerk of Court is directed to terminate ECF Nos. 540, 545, 546, 548, 549, 551, 552, 553.
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