EDELSTEIN, District Judge.
Just over two years ago this case was assigned to me for all purposes pursuant to Rule 2(b) of the General Rules of this court. Since that time twenty-three pre-trial conferences have been conducted resulting in a transcript in excess of 1100 pages. The hopes expressed by court and counsel for an early trial of this matter have dimmed considerably. The present impasse over definition of the issues necessitates this progress memorandum. I propose to deal with the literature relating to defining issues, to review the proceedings had herein on that aspect of the case and to deal with the proposals made by the parties for a definition of the issues.
IMPORTANCE OF ISSUE DEFINITION
Trials of antitrust cases, consisting of complex legal and economic issues with voluminous records are generally protracted and expensive. The problems which these long involved cases pose for the courts in terms of manpower and time have led to extensive investigation of the subject by judges and commentators. See generally, Prettyman, Six Suggestions for Improvement, CCH ANTITRUST SYMPOSIUM, 1951 New York State Bar Assn. Report 34, (hereinafter cited as 1951 SYMPOSIUM); Procedure in Antitrust and other Protracted Cases, a report adopted by the Judicial Conference of the United States, September 26, 1951, reprinted at 13 F.R.D. 62 (hereinafter cited as PRET-TYMAN REPORT); Report of the Committee on Practice and Procedure in the Trial of Antitrust Cases, American Bar Association Section of Antitrust Law, May 1, 1954, (otherwise known as the MeALLISTER REPORT); Proceedings of the Seminar on Protracted Cases for United States Judges, held at New York University Law Center, August 1957, reprinted at 21 F.R.D. 395 (hereinafter cited as N.Y.U. SEMINAR) ; Proceedings of the Seminar on Protracted Cases for United States Judges, held at the School of Law, Stanford University, August 1958, reprinted at 23 F.R.D. 319 (hereinafter cited as STANFORD SEMINAR); Streamlining the Big Case—Report of the Special Committee of the Section of Antitrust Law, American Bar Association, September 15, 1958, (hereinafter cited as McLaren REPORT); Handbook of Recommended Procedures for the Trial of Protracted Cases, Report of the Judicial Conference Study Group on Procedure in Protracted Litigation, adopted by the Judicial Conference of the United States, March 1960, reprinted at 25 F. R.D. 351 (hereinafter cited as HANDBOOK) ; see also Selected Bibliography, Trial of Protracted Litigation, 21 F.R.D. 533.
These studies and their attendant reports culminated in the Handbook of Recommended Procedures for the Trial of Protracted Cases which was adopted by the Judicial Conference of the United States in March 1960.
After stating the problem of the big case, the Handbook suggests that the solution lies, in part, in five basic steps.
“1. Early identification of the big case.
“2. Its assignment to one judge for all purposes, and his prompt assumption of control.
“3. Definition of the issues, which, it is increasingly recognized, should be accomplished through pre-trial conferences.
[5] “4. Confining discovery within the boundaries set by the defined issues and the discovery rules.
***«■**
“5. Careful planning of the procedure to be followed at the trial, and full utilization of tested trial techniques.” 25 F.R.D. 851, 373-374 (1960).
The immediate concern at this time is with the third of these steps, definition of the issues through pre-trial conferences. Before proceeding to an exploration of this problem some mention should be made of steps 1 and 2.
The complaint herein was originally filed on January 12, 1956. Not until October 16, 1959, almost four years later, was this case assigned to me for all purposes. Unfortunately, an early identification of this case was not made, resulting in a summary judgment proceeding, in various discovery motions and in other diverse problems prior to the court’s assumption of control and supervision. Whether an earlier identification and assignment would have prevented the present difficulties over definition of the issues is conjectural. But it most certainly would have avoided some of these problems which have occurred heretofore and which may very well follow the definition of the issues at this time. The Handbook and the literature upon which it is based are in general agreement that defining the issues should precede discovery. The reason for this desirable order of precedence is more than formalistic, as I shall later illustrate. Thus, the usual problems encountered in any protracted case have been compounded due to the inability of the court to assume control at an early stage of the proceedings. The entanglement in which this court finds itself is eloquent testimony for the need of early identification and prompt assumption of judicial control in the protracted case.
The importance of defining the issues cannot be overemphasized. It is truly the key to a coherent, efficient, expeditious and manageable trial, and essential in order that the court effectively control the progress of the case. It is vital in order to keep extensive discovery within reasonable bounds and in order that discovery may be directed to the real issues in the ease. Of the principal factors causing unnecessary delay, volume and expense, the Prettyman Report finds that vagueness of the issues is a prime factor. PRETTYMAN REPORT, 13 F.R.D. at 66. The pleadings cannot be relied upon to frame the issues with sufficient particularity to make the protracted case triable, figuratively speaking, especially where the trial is to be before a jury. See Walder v. Paramount Publix Corp., 155 F.Supp. 26 (S.D.N.Y.1957).
“Whatever may be the objections and difficulties to the specification of issues in ordinary actions, the necessity for such specification in the cases with which this report is concerned is so great as to require that it be done no matter what the objection or difficulty. Unless it is done, the hearing cannot be confined to its proper limits, counsel are at a loss as to their positions, and the judge is unable to relate the evidence to issues which are in dispute or to limit it to that which is relevant.” PRETTYMAN REPORT, 13 F.R.D. at 66-67. “The fact is that controversies of the scope and complexity of these trials cannot be resolved unless issues are framed and evidence directed to them, and them alone. This is not merely a philosophical fact; it is also a physical fact. * * * [A] trial is for the determination of issues; issues are disputes; a dispute must concern a known subject; to be justiciable, the positions of the parties upon the subject must be known; to be persuasive, evidence must be understandable and definitive.” 1951 SYMPOSIUM at 37.
Notwithstanding the obvious need for an early definition of the issues, counsel are generally reluctant to commit themselves at an early stage of the litigation. [6] See . HANDBOOK, 25 F.R.D. at 388; STANFORD SEMINAR, 23 F.R.D. at 414. And, in some cases, a failure to prepare adequately prior to trial is an obstacle to an early specification of the issues. See PRETTYMAN REPORT, 13 F.R.D. at 67. “Neither of these conditions should prevent the court from insisting upon a specification of the issues which are in actual dispute and upon the elimination from the trial of all propositions not actually disputed.” Ibid.
Absent a definition of the issues, extensive discovery can hardly be kept (within manageable limits. Control of discovery and the definition of the issues are inextricably interwoven. That this is axiomatic is clear. See, e. g., HANDBOOK, 25 F.R.D. at 388; McLAREN REPORT at 9-11. Ideally definition should precede discovery. But see N.Y.U. SEMINAR, 21 F.R.D. at 446-47. Regrettably the id.eal has not been entirely realized here, for some discovery has preceded the definition of the issues in the case at bar. However, discovery now will proceed only in conformity with the issues as defined and under the control of the court.. It should not, of course, need to be repeated that the definition of the issues is merely tentative. The initial issue formulation is open to modification if justice so requires.
The proposed method for formulating the issues involves the use of pre-trial conferences. Initially, written proposals from each side are required, to be followed by conferences at which areas of agreement can be worked out. See HANDBOOK, 25 F.R.D. at 388. This approach has thus far been followed here, resulting in scant agreement and in an impasse. Although the literature on protracted cases is replete with procedures and suggestions based upon the hypothesis thát agreement will be obtained, nowhere have I found any discussion of the eventuality which now faces this court except for some mention by ¿judge William F. Smith of the Third Circuit that agreement as to what are the triable issues may not be always forthcoming. N.Y.U. SEMINAR, 21 F.R.D. at 458. The suggested approach there was to incorporate the areas of agreement into a preliminary pre-trial order and hope that subsequent pre-trial conferences will be more productive. “The course of the litigation in advance of trial may be established and the permissible limits of discovery defined with some degree of certainty notwithstanding the absence of complete agreement on one or more, but not all, of the triable issues.” Ibid. This alternative is, of course, less satisfying than a complete definition of the issues, and is in effect a compromise with the goal of pre-trial in protracted cases. Still another alternative, absent agreement, is to proceed without any issue definition at all, trying the case on the pleadings alone. Needless to say, this approach commends itself not at all. It runs counter to all the learning on the subject. The third alternative, and the one I adopt here, is to insist that the triable issues be defined and to enter a pre-trial order specifying the definition of the issues.
I have no doubt that the court has the power and the authority to define the issues where counsel have failed to agree as to what are the triable issues. Although the literature on protracted cases may be helpful in outlining in detail the procedures to be followed, the ultimate source of authority for pretrial procedure is found in Rule 16, F.R.Civ.P. 28 U.S.C.A. That rule provides :
“In any action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider
“(1) The simplification of the issues ;
******
“The court shall make an order * * * which limits the issues for trial to those not disposed of by admissions or agreements of counsel ; and such order when. entered [7] controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.”
Thus, in Brinn v. Bull Insular Lines, Inc., 28 F.R.D. 578 (E.D.Pa.1961) the court entered a pre-trial order narrowing the issues without the agreement of counsel. “If the pre-trial procedure is to have any meaningful purpose whatever, it is encumbent on the Court to narrow the issues reasonably and with discretion.” 28 F.R.D. at 579. In Package Machinery Co. v. Hayssen Mfg. Co., 164 F.Supp. 904 (E.D.Wis.1958) aff’d, 266 F.2d 56 (7th Cir. 1959), a case involving trade secrets and unfair competition, the court held extensive pre-trial sessions where it attempted to get plaintiff to-particularize and define the trade secrets which it claimed were stolen. Plaintiff repeatedly retreated to the position that it need only state so much as to enable defendant to plead. “This direction by the court was not only within the court’s power under Rule 16 of the F.R.C.P., 28 U.S.C.A., but it was the duty of the court to narrow the issues. * * * The court was not required to stand by and permit plaintiff to rest on its general statements of claimed trade secrets and await the outcome of a long expensive trial to see what the alleged trade secrets were.” 164 F.Supp. at 910; see also Holcomb v. Aetna Life Ins. Co., 255 F.2d 577, 580 (10th Cir. 1958). Accordingly, the complaint was dismissed.
Our own Court of Appeals has had occasion recently to consider pre-trial problems in the “big” case. In Syracuse Broadcasting Corp. v. Newhouse, 295 F.2d 269 (2d Cir. 1961), the question before the Court involved evidentiary problems and preclusion orders. Although the case does not deal with the problem at hand, it is useful for our purposes in that it demonstrates the emphasis to be placed on the value of cooperation and agreement in the big case and the pitfalls encountered in the absence thereof; 295 F.2d at 274. In an earlier appeal in the same ease, 271 F.2d 910 (2d Cir. 1959), the Court reversed a dismissal made at pre-trial for failure to comply with a court order. The Court found that the preclusion order entered below was too strict. But the Court of Appeals recognized the need for special administrative treatment of the “big” case, especially with respect to the definition of the issues. Consequently, it approved generally of the need for “taking vigorous measures to see that the issues were clearly defined so that the whole case might be kept within manageable proportions.” 271 F.2d at 915.
. Neither of the two Newhouse opinions,nor Padovani v. Bruchhausen, 293 F.2d, 546 (2d Cir. 1961), discussed in detail infra, forbid or prohibit the definition- and particularization of the issues by-the court where counsel have failed to, agree. Indeed, the only contrary view appears 'to be a statement by Professor Moore in his treatise, without citation’ to any case. “The court should not impose on the parties its own views of what the issues are.” 3 Moore, Federal Practice 1116 (2d ed. 1948). It should be noted that Professor Moore’s discussion concerns pre-trial in general, without any special emphasis on the protracted case. “Interested persons have long been aware that the ‘big’ case, such as is often encountered in antitrust and patent litigation, requires special * * * treatment. (citations omitted.) Especially is this true with respect to * * * the formulization of the issues to be tried.” Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 914 (2d Cir. 1959). And in any event, as will be seen from the remainder of this memorandum, the definition of the issues adopted here is far from an imposition of the court’s views on the parties. If, nevertheless,Professor Moore is read as denying the authority of the court to adopt the course which I follow here, I must disagree with that conclusion.
Streamlining the big case by defining and simplifying the issues is the sine qua non without which proper- judicial [8] supervision of the protracted case is barely possible. To deny existence of the court’s authority to define the issues where counsel fail to agree would make a mockery of all the extensive pre-trial procedures which courts have devised in an effort to reduee, as far as possible, the danger of chaos inherent in every protracted and complicated case. Moreover, denial of the power could very well mean the end of pre-trial itself and a return to the dark days of special pleading and trial by ordeal. I have hesitated in the exercise of this power in order to afford counsel every opportunity to arrive at a definition which would be mutually acceptable. Since this course has proven less than fruitful the court is now faced with the need for eliminating the impediments to defining the issues and progressing toward trial.
Having chosen the third of the alternatives discussed above, two approaches are available. On the one hand, the court can proceed to formulate the issues itself, based on the submissions of counsel and the court’s familiarity with the case gained through extensive pretrial conferences. The court should be more than an umpire between contending views. See Syracuse Broadcasting Corp. v. Newhouse, 295 F.2d 269, 277 (2d Cir. 1961). On the other hand, the court can accept without change the proposal of one side over that of the other. This litigation is, after all, an adversary proceeding in which counsel should be expected to present the best possible arguments in support of their respective contentions. I was originally disposed to adopt the former approach. After studying the most recent submissions of the parties, however, I find that there is a substantial identity in some portions of their respective proposals, although they hesitate to characterize it as an agreement. So much effort has been expended in an endeavor to obtain agreement that I propose, in resolving the definition of the issues, to build upon whatever accord has been reached. Before setting forth the court’s rulings on the formulation of the issues, I shall review the efforts made in the pre-trial conferences to obtain agreement of counsel.
REVIEW OF PRE-TRIAL CONFERENCES ON THE DEFINITION OF THE ISSUES
In reviewing the efforts thus far made to define the issues, I have chosen to commence from that point in the proceedings when Mr. Raftery of O’Brien, Driscoll and Raftery was substituted as counsel for plaintiff. This was accomplished by stipulation and order filed on December 1, 1960. Although definition of the issues was mentioned in earlier pre-trial conferences, nothing substantive was discussed and it was not until present counsel entered the case that the issues became the focus of attention which they are now.
The first pre-trial conference attended by present counsel for plaintiff took place on January 5, 1961. Chronologically, it was the fifteenth pre-trial conference held herein. Tentative issues were submitted by counsel for plaintiff. Plaintiff’s tender is dated January 4, 1960. (This should read 1961) and has been marked as Exhibit 12A for identification. For purposes of this memorandum, it will be referred to hereafter as P-I. See Appendix.
At this conference, the question of amending the complaint was also raised. It was agreed that plaintiff would serve an amended and supplemental complaint. Counsel would then confer in an attempt to resolve any objections, and would bring to the court those problems remaining open. Resolution of the tentative issues was therefore held in abeyance until after rulings had been made on the amended and supplemental complaint which counsel was to submit. Thus, in terms of narrowing the issues, this first conference was inconclusive, although a fresher atmosphere had been introduced into the proceedings.
[9] Various letters subsequently were exchanged between counsel relating to the amended and supplemental complaint.
The next conference took place on February 14, 1961. However, the definition of the issues was not discussed. The conference concerned itself with certain allegations made by Mr. Young in an affidavit filed in another action in this court. See Parker v. Broadcast Music, Inc., Docket No. Civ. 122-350, Southern District of New York.
The conference of February 16, 1961, disposed of the issues raised in the Young affidavit. The discussion turned to the amended complaint and it was agreed that jf it were filed, it would be done nunc pro tunc as of January 30, 1961. Defendants’ objections to the amended and supplemental complaint were put over to the next conference.
At the conference of February 20,1961, objections to the amended complaint were heard. Plaintiff asserted that the amended complaint did not contain new matter. Defendants, by Mr. Eno, objected to the amended complaint on the general ground that it changed the claim. In a lengthy presentation, counsel compared the original and proposed amended complaints, and specified the respects in which it was claimed that the amended complaint changed the nature of the action. Although consideration of the tendered issues was to await resolution of the problems concerning the complaint, counsel referred to plaintiff’s tender (P-I) to illustrate his argument that the nature of the action had been altered by the amended complaint. In concluding, counsel stated the issues arising out of the original complaint which defendants were prepared to meet (SM 807-08). The conference adjourned with plaintiff’s counsel indicating his readiness to respond to the objections at the next meeting.
The next pre-trial conference was held on February 23, 1961. Plaintiff’s counsel restated his desire not to change the issues as put forth in the original complaint. Accordingly, he requested leave to withdraw the proposed amended complaint. He proposed to proceed on the original complaint but asked leave to submit a retyped complaint with technical corrections reflecting the fact that ASCAP and SESAC were no longer parties, but remained as co-conspirators. Leave to file a supplemental complaint bringing matters down to date was also requested. Leave to withdraw the proposed amended complaint was granted. Although there was no objection in principle to counsel’s other requests, defendants reserved comment until such time as the retyped complaint would be served upon them for examination.
On February 28, 1961, the twentieth pre-trial conference was held. Counsel for plaintiff submitted another proposed amended and supplemental complaint. Defendants were given an opportunity to study same. Counsel for Life Music then defended the issues previously tendered, (P-I). He asserted that no issues had been changed and that every issue that was in the case from its inception and every issue asserted in the brief supporting plaintiff’s motion for summary judgment were included in P-I. Counsel for defendant BMI then addressed himself to plaintiff’s tender (P-I). After setting forth the purpose of a definition of issues he properly noted that the issues must have their basis and origin in the charges of the complaint. Examining plaintiff’s issues with particularity, counsel urged that they were improper in that they bore no relation to the complaint. Had the first proposed amended complaint been allowed, these issues would have had some bearing. I think it is clear that plaintiff’s first proposed amended complaint would have changed the nature of this action. Having withdrawn that proposed amendment, plaintiff attempted to accomplish the same end through his definition of the issues. Hé tried to do by indirection what he had failed to achieve directly. Notwithstanding plaintiff’s argument that P-I applied to the original complaint, to the first [10] proposed amendment, and to the second amended complaint as well, the court observed that certainly more could be accomplished on issue defining. Again, I expressed my desire to conduct these conferences on an informal basis in the hope that full discussion would encourage counsel to agree. Plaintiff’s counsel, in response to a query, was of the opinion that P-I .could be improved upon. He stated that the discussion had helped him to see the issues more clearly and agreed that they “have been clearly and succinctly stated.” (SM 898). The conference adjourned on an optimistic note. Defendants were to tender their issues and meet with plaintiff to explore possible areas of agreement.
On or about March 7, 1961, differences again arose concerning plaintiff’s second amended complaint resulting in an exchange of correspondence between counsel.
. By letter dated March 17,1961, defendants transmitted to the court a copy of their Proposed Tentative Definition of the Issues, dated March 6, 1961. This document was marked Exhibit D for identification on April 3, 1961. For purposes of this memorandum it will hereafter be referred to as D-I. See Appendix. By letter dated March 20, 1961, plaintiff transmitted to the court a copy .of Tentative Issues Tendered by Plaintiff, dated March 17, 1961, and marked as Exhibit 13 for identification on April 3, 1961. For purposes of this memorandum it will hereafter be referred to as P-II. See Appendix.
By letter dated March 24, 1961, plaintiff transmitted to the court an amended and supplemental complaint. Copies were sent to defendants on the same day.
' The next pre-trial conference was held on April 3, 1961. Plaintiff formally moved for leave to serve and file an amended and supplemental complaint. The motion was granted, no opposition, and the complaint was filed.
, Although some discussion was had concerning the issues, counsel for plaintiff suggested that any further discussion await the service of amended answers and joining of issue. Some preliminary discussion also was held on the possibility of holding a separate trial on the issue of plaintiff’s ability to enter the performance rights licensing business. The court indicated that an application for a separate trial was premature at this time. Counsel also indicated that another attempt would be made to reach agreement. The court adjourned the conference on the hopeful note that the spirit of cooperation then evident would prevail.
From copies of correspondence between counsel, it appears that plaintiff transmitted a set of tentative issues to defendants on or about April 19, 1961. A copy of that tender, dated April 19,1961, was received by the court on May 22, 1961. For purposes of this memorandum it will be hereafter referred to as P-III. See Appendix.
On April 25, 1961, counsel conferred without the presence of the court. Pursuant to a telephone inquiry, the court consented to counsels’ suggestions that memoranda be exchanged on the unresolved issues, with a pre-trial conference to follow.
On April 26, 27 and 28, 1961, the answers of defendants to the amended and supplemental complaint were filed.
On or about May 1, 1961, a dispute arose concerning the time within which defendant BMI would have to answer a set of interrogatories propounded by plaintiff. This led to an exchange of correspondence between counsel culminating in a request to the court that the time of defendant BMI to answer or otherwise address itself to the interrogatories be extended to such time as the court may fix after the issues have been determined. Defendant BMI’s application was rendered moot by Mr. Raftery’s letter of May 5, 1961, to Mr. Eno, wherein counsel stated that plaintiff would not expect an answer to its interrogatories until after [11] the court had fixed a time for such an? swers.
Memoranda from counsel were then submitted to the court. By letter dated May 12, 1961, plaintiff submitted its memorandum in support of its tender. By letter dated May 15, 1961, defendants submitted their memorandum on the definition of the issues. By letter dated May 19, 1961, plaintiff submitted its reply brief on the definition of the issues. By letter of May 22, 1961, defendants submitted their answering memorandum on the definition of the issues.
After studying the various memoranda submitted by the parties, a conference was held on May 25, 1961. This was, in fact, the first time that all parties came to grips with the issues with any degree of specificity. The discussion concerned P-III and D-I. To recapitulate with particularity all the arguments made at that time would be repetitious, since the transcript is available. I will note, however, some of the highlights so that the mosaic of our past efforts will be complete.
After making some general observations about certain themes which appear to run throughout this dispute over issues the court proceeded to hear argument. Defendants, by Mr. Rosenman, urged the importance of keeping in mind the nature of the industry and the temporal limits of the action. The distinction between ultimate and evidentiary facts was discussed both generally and in relation to the question of conspiracy. The question as to whether this case involves both § 1 and § 2 of the Sherman Act was also raised. The phrasing of various issues was next attempted and in the prevailing spirit of cooperation some concessions were made by each side and compromises were reached. As the discussion progressed, agreement appeared to be very close indeed. The conference ended with the understanding that counsel would meet in an attempt to draft some language to compromise the minor outstanding differences on one issue.
The expectations and Hopes which' the May 25th conference had raised were quickley shattered. By letter of June 2, 1961, Mr. Raftery informed then court that he was unable to come to any agreement with counsel for defendants and was submitting a new set of issues. These issues are dated June 2, 1961, and .will hereafter be referred to as P-IV. Seé Appendix. Defendants then correspond? ed with the court by letter of June'7j 1961. They expressed their shock at plaintiff’s submission of a new fender of issues. Defendants set forth a summary of the conference held between counsel on June 1, 1961. It was stated that agreement had been reached on some issues, and these issues were include'd as Annex A to the letter. The two items which were left open for consideration were included as Annex B. Defendants’ letter evoked a response from Mr* Raftery on June 8, 1961,: wherein counsel stated his belief that the conferences between counsel" were based on a position that unless there was agreement in toto on tentative issues, there was to be no agreement at all.' Counsel also indicated that plaintiff would be prepared to' defénd P-IV at the next conference scheduled for June 14, 1961. By letter of June 9, 1961, Mr. Rosenman responded on behalf of the defendants. They vigorously disputed the contention that the conferences between counsel were on.an all or nothing basis. It was their position that-the conferences were held to reach agreement to the extent possible and that unresolved issues were to be brought to the court for rulings.
By the time of the pre-trial conference of June 14, 1961, the earlier spirit of cooperation had almost completely disappeared. Nevertheless, the court made further efforts to secure an agreement on the issues by requiring discussion as to the specifics. It became apparent that plaintiff was fearful of having its discovery limited, while defendants were fearful of the possibilities of unbounded discovery. Although the order of trial was not yet before the court for decision, [12] plaintiff expressed its opposition to separate trials on some issues. Mr. Raftery defended his submission and furnished a memorandum indicating which paragraphs of the complaint provided the bases for his tender. Further efforts were made at agreement by rephrasing and renumbering the issues in the parties’ respective tenders, but to no avail. After extensive discussion, the crux of the disagreement was clearly over the conspiracy issue. ('# 1 of P-IV and # 2 of D-I). The conference concluded with Mr. Raftery requesting leave to present supplemental issues based upon the complaint. The court granted plaintiff’s request and set the next conference for June 28, 1961.
On June 16, 1961, Mr. Raftery submitted additional sub-paragraphs to the conspiracy issue. He reiterated his fear of being limited in discovery if he were to accept only the four subdivisions proposed in Issue # 2 of D-I. Defendants responded by letter of June 21, 1961. They reviewed what they alleged were Mr. Raftery’s repudiations of prior agreements. They concluded that it would be futile to seek further agreement and stated their belief that the issues should now be framed by the court. Defendants requested, and were granted, leave to submit a memorandum supporting their views.
On September 1, 1961, defendants submitted a memorandum in opposition to plaintiff’s “Draft of Amendment to Tentative Issues.” On October 4,1961, plaintiff submitted a memorandum supporting its definition of the • issues. Plaintiff also submitted a complete copy of its definition of the issues which included the June 16th amendments. That document will hereafter be referred to as P-V. See Appendix. Defendants then submitted a reply memorandum on October 16,1961.
The final communications from counsel are a letter of November 14, 1961, from Mr. Raftery calling the court’s attention to Padovani v. Bruchhausen, 293 F.2d 546 (2d Cir. 1961), and a prompt November 15, 1961, reply from Mr. Rosenman in rebuttal. The case will be discussed infra.
DEFINING THE ISSUES
Presently before the court is P-V, consisting of five major divisions. Of these, issue number 1 contains twenty-six subdivisions. P-V has been tendered by plaintiff as its most recent version of what the issues are in this case. Defendants have made but one formal tender, D-I. Based upon the pre-trial proceedings, however, D-I is no longer the accurate reflection of the position of defendants. In Defendants’ Memorandum in Opposition to Plaintiff’s “Draft of Amendment to Tentative Issues” Submitted Under Date of June 16, 1961, (hereinafter referred to as Defendants' Opposing Memorandum), defendants have set forth a version of the issues which they are willing to accept (pp. 3-4). The court will deal with that version as defendants’ tender (D-II). See Appendix. To the extent that the respective tenders of issues, D-II and P-V are identical and correctly set forth the issue, the court will accept this concurrence as to that particular issue. However, where the respective tenders are not in accord, the court will explore the differing versions and rule accordingly.
Issue No. 1
The following issue is contained in both P-V and D-II in identical language. It was agreed upon originally at the pretrial conference of April 25, 1961, and is accepted by the court.
“Was the plaintiff, in and after February 1954, equipped to, and did it make a legitimate bona fide effort to enter the performance rights licensing business?”
A disagreement still persists, however, concerning whether this issue shall be stated as No. 1 or No. 2. Plaintiff urges that the issue be stated as No. 2, following the issue of conspiracy. De[13] fendants, although originally contending that the issue is properly first in sequence, now are amenable to stating it as No. 2 “on the understanding that the new sequence is not controlling for trial purposes” (Defendants’ Opposing Memorandum, p. 5). Based upon prior statements I take it that defendants intend to move for a separate trial of this issue. That question is not now before the court and its resolution can await the time when defendants make their motion. I do believe, however, that the question of sequence of the issues should be determined at this stage of the proceedings.
The Handbook recommends that the sequence in which the issues will be tried should be established in advance of trial. Wherever possible, it is advisable to present the evidence relating to each issue as a separate unit. HANDBOOK, 25 F.R.D. at 404-05. Thus, time of trial will be shortened and the possibility of confusing the jury lessened. Although the sequence in which the issues are defined at this stage of the proceedings need not necessarily conform to the order of proof at trial, it would seem to be a more orderly procedure to require it. Just as the order of proof should be logical and sequential, so too should the definition of the issues progress in logical sequence. And there seems little point to setting the issues forth in one sequence and then changing that order for purposes of trial.
Since the parties have not addressed their arguments to this question, they .shall be provided with an opportunity to do so. The foregoing issue as framed shall be tentatively set down as No. 1. At the next pre-trial conference the court shall expect counsel to be prepared to argue the proper sequence to be adopted and shall expect these arguments to be supported by relevant authority.
Issue No. 2
The core of the controversy now as well as throughout these proceedings has been Issue No. 2, the issue of conspiracy and monopolization. As presently before the court, D-II sets forth a general statement of the alleged conspiracy pleaded in the complaint, together with four subdivisions, a-d, which delineate the means whereby the alleged conspiracy was effectuated. P-V sets forth the same general paragraph, (numbered, however, as issue No. 1) as well as the identical four subdivisions a-d which are contained in D-II. P-V then goes on to set forth twenty-two additional subdivisions, commencing with the letter “e” and conveniently terminating with the letter “z”.
At least in so far as the general paragraph and subdivisions a-d are concerned, the identity of language employed by the parties would make it appear that they concur as to the validity of these items as issues. I, too, am persuaded as to the correctness of these items as issues. Before reaching the twenty-two subdivisions of P-V, some general discussion of the accepted issues is warranted. It should be also noted here that defendants have furnished the court with extensive memoranda which have been of material assistance in studying these problems. Plaintiff’s memoranda have been vague and insubstantial. They have consistently failed to come to grips with the problems before the court. The mere listing of numbered paragraphs of the complaint following each subdivision tendered has been a bare compliance with the directions of this court. Plaintiff’s memoranda have not served to advance the resolution of the issues in any appreciable degree.
As stated in D-II, Issue No. 2 reads as follows:
“Did the defendants and ASCAP and Sesac, in and after February 1954, conspire to restrain trade and commerce in, or conspire to monopolize, and monopolize (all of which, if it existed at all, may have originated prior to February 1954), the [14] business of licensing performance rights in musical compositions by:
“(a) Agreeing to issue only blanket licenses