RULE 26(f) DISCOVERY PLAN REPORT.Document filed by United States Of America — United States v. Visa Inc. (Dkt. 35)

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A Joint Rule 26(f) Report and proposed case management plan in United States of America, et al. v. Visa Inc., Case No. 1:24-cv-07214-JGK, in the U.S. District Court for the Southern District of New York, filed December 13, 2024 as Doc. 35. The United States states that Visa has monopolized and attempted to monopolize general purpose debit network services markets under Section 1 and Section 2 of the Sherman Act; Visa denies the allegations and states that it intends to file a motion to dismiss on December 16, 2024. The parties agree to exchange initial disclosures no later than January 13, 2025 and to conduct discovery in two phases. They give competing positions on interrogatories (50 for the United States, 25 for Visa) and on deposition hours. The signature lines show /s/ Edward Duffy and /s/ Brian Stekloff.

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UNITED STATES DISTRICT COURT  
SOUTHERN DISTRICT OF NEW YORK 
 
 
 
UNITED STATES OF AMERICA, et al., 
 
                                          Plaintiffs,  
 
                              v. 
 
VISA INC., 
 
                                          Defendant. 
 
 
 
 
 
 
Case No. 1:24-cv-07214-JGK 
 
JOINT RULE 26(f) REPORT AND [PROPOSED] CASE MANAGEMENT PLAN  
 
Pursuant to Federal Rule of Civil Procedure (“FRCP”) 26(f) and this Court’s Order of 
November 12, 2024, ECF No. 32, on December 4, 9, 11, and 12, 2024, counsel for the parties to 
this action met and conferred on the topics outlined in this report and proposed case management 
plan and scheduling order. 
1. 
Nature of Claims and Defenses 
Plaintiff’s Statement 
The United States brings this action against Visa pursuant to Section 1 and Section 2 of the 
Sherman Act. Visa has monopolized and attempted to monopolize general purpose debit network 
services markets in the United States, and Visa’s agreements with counterparties and potential 
competitors constitute unreasonable restraints of trade.   
Visa has entered agreements with merchants, issuers, and acquirers, which include 
incentives that discourage the use of other debit networks, foreclosing those networks’ ability to 
compete for a large number of debit transactions.  This harms consumers and competition in debit 
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markets, including by discouraging innovation, depriving rivals of the scale they need to compete 
effectively, and insulating Visa from the need to compete on price and quality.   
Visa has also entered into agreements with potential competitors, including Apple, PayPal, 
and fintech companies.  In these agreements, Visa provides its potential competitors with incentive 
payments and exemptions from additional fees, but only if those potential competitors refrain from 
developing products that would compete with Visa.  In other words, Visa pays its potential 
competitors in exchange for not competing with Visa. 
Defendant’s Statement 
As the Court is aware, Visa intends to file a motion to dismiss on December 16, 2024, and 
therefore will keep this statement short.  The Government alleges that Visa is an illegal monopolist 
that has violated the antitrust laws by providing volume-based discounts and reserving its right to 
terminate agreements with partners if they become competitors.  Visa denies the Government’s 
allegations.  The Government ignores the competitive nature of the debit industry and seeks to 
hold Visa liable for the precise type of procompetitive conduct that the antitrust laws are intended 
to promote. 
2. 
Initial Disclosures. The parties agree to exchange the initial disclosures required 
under FRCP 26(a)(1) no later than January 13, 2025. 
3. 
Consent to Proceed before a Magistrate Judge. The parties do not consent to 
trial being conducted by a Magistrate Judge. 
4. 
Settlement Discussions.  The parties do not believe that referral to a Magistrate 
Judge for a settlement conference would be helpful. 
5. 
Protective Order.  The parties have agreed on the terms of a proposed protective 
order, which they will submit to the Court as soon as possible. 
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6. 
Preservation and Production of Electronically Stored Information (“ESI”). 
The Parties cooperated on ESI discovery matters during the pre-Complaint investigation and are 
committing to continuing to cooperate on this matter.  The parties are in the process of negotiating 
a proposed order governing the disclosure, discovery, and presentation of ESI, which they will file 
with the Court as soon as possible. 
7. 
Phases of Discovery.  The Parties agree to conduct discovery in this case in two 
phases, so that the case can be trial-ready more efficiently.  The first phase will focus primarily on 
third-party discovery and begin when briefing on Visa’s motion to dismiss is completed (February 
7, 2025) and will continue until the Court rules on that motion.  The parties have also agreed to 
engage in limited party discovery during this time, the scope of which will be limited as follows. 
Visa agrees to produce: 
a. agreements between Visa and merchants, acquirers, certain issuers, and certain 
other Visa counterparties (as defined and agreed to during the pre-Complaint 
investigation) that were not previously produced in the pre-Complaint investigation 
and are dated up through the date of the Complaint in this case (September 24, 
2024); 
b. certain Visa Board of Directors and senior management presentations (as defined 
and agreed to during the pre-Complaint investigation) that were not previously 
produced in the pre-Complaint investigation and dated after June 11, 2018, up 
through the date of the Complaint in this case (September 24, 2024); 
The government also agrees to produce the United States’ pre-Complaint investigative 
materials for this matter in this first phase of discovery.  
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The parties have also been discussing a refresh of the data that Visa produced in the pre-
Complaint investigation and other productions of Visa data (including from its Global Business 
Intelligence tool).  These discussions are ongoing and the parties will update the Court on the issue 
at the January 6, 2025 conference. 
The second phase of discovery, should it be necessary, will begin immediately following 
the Court’s decision on Visa’s motion to dismiss and will encompass any remaining third-party 
discovery, as well as additional party discovery. 
Furthermore, it is Visa’s position that the parties should continue to discuss the potential 
need for coordination of discovery with the private follow-on actions (should this case and any of 
those cases proceed past the motion to dismiss phase).1  Given that the private plaintiffs have not 
yet filed an amended consolidated complaint, Visa has not yet discussed with them or the 
Government the specifics of coordination across cases.  If warranted, the parties will update the 
Court based on those future discussions. 
8. 
Interrogatories.  The parties have been unable to agree on a limit for 
interrogatories in this case and present their respective positions below. 
a. The United States’ Position: The United States proposes that each side be limited 
to 50 interrogatories, including interrogatories governed by Local Rules 33.3(a), 
(b), and (c).  Given the complexity of the case and the number of Visa agreements 
and data at issue, an additional 25 interrogatories will assist the parties in 
 
1 At this point, there have been nine related follow-on actions filed in federal court.  Seven of those 
actions were filed in this Court or the parties in those cases have agreed to transfer here.  Two other 
cases pending in the Northern District of California are the subject of contested transfer motions. 
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completing discovery more efficiently and utilizing interrogatories, rather than 
deposition time, for inquiries better posed through written, rather than oral 
questions.  
b. Visa’s Position: Visa proposes that each side be limited to 25 interrogatories, 
consistent with the standard limitation in Rule 33(a).  Along with the 20 written 
responses that Visa provided the Government in the pre-Complaint investigation, 
this will give the Government a total of 45 interrogatories.  Under Rule 33(a), if 
good cause arises, the Government is entitled to seek leave to serve additional 
interrogatories, but it has not provided any justification for enlarging the limit at 
the outset. 
9. 
Depositions. The parties have been unable to agree on a limit for depositions, 
including 30(b)(6) depositions, in this case and present their respective positions below. 
a. The United States’ Position:  
i. General Deposition Limits: The United States proposes that each side is 
limited to a total of 350 hours of deposition time on the record of fact 
witnesses.  The United States proposes that each side may use a maximum 
of 225 hours of deposition time on the record in deposing adverse party 
witnesses.  Visa’s proposed limit of 91 hours of deposition time for adverse 
party witnesses is inadequate and inconsistent with similar government 
antitrust enforcement actions.  For example, in the United States v. Live 
Nation Entertainment, Inc. case, also pending in this District before Judge 
Subramanian, the parties are permitted 300 total hours of deposition time, 
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with no additional limit whatsoever on adverse party depositions.  No. 1:24-
cv-03973, ECF 169 (S.D.N.Y. June 27, 2024) 
ii. 30(b)(6) Depositions: The United States also proposes that each side be 
permitted to serve up to three Rule 30(b)(6) deposition notices on the 
adverse side listing topics on which the other side must identify and prepare 
a representative or representatives to testify on those topics and that the time 
on the record during the 30(b)(6) deposition shall not exceed seven hours 
for each designee, with all time counted against the total time limit on 
adverse party depositions.  Allowing for multiple 30(b)(6) notices will 
foster more efficient discovery for two reasons.  First, it will allow parties 
to serve an additional 30(b)(6) notice based on information learned later in 
discovery.  Second, it will enable parties to be more judicious in the initial 
30(b)(6) notice and avoid noticing topics that are later determined to be 
unnecessary topics for deposition.   Allowing a party to serve multiple 
30(b)(6) notices on adverse parties in complex antitrust cases is not unusual.  
See, e.g., United States v. Live Nation Entertainment, Inc., No. 1:24-cv-
03973, ECF 303 (S.D.N.Y.  Oct. 15, 2024) (allowing each side to serve two 
30(b)(6) notices) 
b. Visa’s Position:  
i. General Deposition Limits: Visa is willing to agree to 350 total deposition 
hours, but Visa proposes that each side may use a maximum of 91 hours of 
deposition time for adverse party witnesses.  In the pre-Complaint 
investigation, the Government took 7 depositions of Visa witnesses, 
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including one deposition that lasted two days.  The additional 91 hours 
would allow for at least 20 total depositions of Visa witnesses, which is 10 
more than the standard limitation in Rule 30(a).  Under Rule 30(a), if good 
cause arises, the Government is entitled to seek leave to take additional 
depositions, but it has not currently provided any justification for the 225 
hours it seeks to depose Visa witnesses.   
ii. 30(b)(6) Depositions: Visa also proposes that each side be permitted to 
serve no more than one Rule 30(b)(6) notice on the adverse party. Under 
Rule 30(a)(2), the weight of authority requires the Government to seek leave 
to serve multiple 30(b)(6) depositions, consistent with the balancing 
requirements of Rule 26(b)(1) and (2). See State Farm Mut. Auto Ins. Co. v. 
New Horizont, Inc., 254 F.R.D. 227, 233-235 (E.D. Penn. 2008); In re 
Sulfuric Acid Antitrust Litigation, 2005 WL 1994105, *2 (N.D. Ill. 2005); 
Groupion, LLC v. Groupon, Inc., 2012 WL 359699, *5-6 (N.D. Cal. 2012). 
The Government has made no attempt to address this requirement, and Visa 
respectfully suggests that it is premature for the Court to consider any 
request for multiple 30(b)(6) depositions at this early stage.  The 
Government suggests that allowing multiple 30(b)(6) depositions would be 
more efficient, but it is difficult to understand how allowing more 
depositions increases efficiency, particularly where it would likely require 
the same corporate representatives to appear for multiple depositions. 
Having multiple 30(b)(6) depositions may be a good litigation “strategy” 
for the Government, but as another court has explained, that is not a factor 
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that can justify permitting multiple 30(b)(6) depositions. In re Tether & 
Bitfinex Crypto Asset Litig., 2023 WL 5110159, at *1 (S.D.N.Y. July 7, 
2023) (Failla, J.).  Furthermore, the Live Nation case that the government 
cites involved a situation where the parties agreed—as part of a much larger 
stipulation concerning a fulsome deposition protocol—to two 30(b)(6) 
deposition notices, subject to a further agreement that plaintiffs be limited 
to 20 total 30(b)(6) topics.  See United States v. Live Nation Entertainment, 
Inc., No. 1:24-cv-03973, ECF 303 (S.D.N.Y.  Oct. 15, 2024). 
The parties also agree to the following: 
i. 
Calculation of Time. Reasonable breaks will be excluded from calculation of 
deposition time under Rule 30(d)(1) of the Federal Rules of Civil Procedure.  Only 
a reasonable amount of time for a deponent to review a document tendered for the 
examination will count against the Rule 30(d)(1) limits.   
ii. 
Corporate Representative Depositions: The parties will cooperate to determine 
whether a corporate representative or representatives will also be deposed in their 
individual capacities and make arrangements for the corporate representative and 
individual portions of the deposition for each representative to take place on the 
same day or on consecutive days. 
iii. 
Additional Time. The parties reserve the right to seek from the Court additional 
deposition time with particular witnesses or a different allocation of time than the 
allocations that are set forth within this Section.  
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10. 
Cross-Noticed Depositions. In the case of a deposition noticed by both sides, each 
side may examine the witness for a maximum of five hours, over the course of one day or two 
consecutive days, at the witness’s election.  A party must serve a cross-notice of deposition on a 
non-party, if any, within 7 days of service of the original notice of deposition.  In the case of a 
deposition noticed by one side, the non-noticing party may examine the witness for a maximum 
of 1.5 hours on the record. 
11. 
Exclusions from Deposition Limits. The parties agree that the following 
depositions do not count against the proposed deposition limits: (a) depositions of the parties’ 
designated expert witnesses; and (b) pre-Complaint depositions taken in response to Civil 
Investigative Demands.  The parties do not agree, however, on the treatment of depositions taken 
for the sole purpose of establishing the location, authenticity, or admissibility of documents 
produced by any Party or non-party, and lay out their respective positions below. 
a. The United States’ Position:  The United States proposes that depositions taken 
for the sole purpose of establishing the location, authenticity, or admissibility of 
documents produced by any Party or non-party be excluded from the deposition 
limits, provided that such depositions must be designated at the time they are 
noticed as being taken for the sole purpose of establishing the location, authenticity, 
or admissibility of documents.  The United States has found similar provisions 
useful to avoid admissibility disputes and deter meritless authenticity and/or 
admissibility objections, making litigation more efficient. 
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b. Visa’s Position: Establishing the location, authenticity, or admissibility of 
documents can and should be handled as part of the individual or 30(b)(6) 
depositions and deducted from the deposition time limits. And, given that the 
parties have agreed to 350 deposition hours, there is sufficient time to allow for 
this. 
12. 
Case Schedule.  
a. The United States’ Position: On December 4, 2024, the United States proposed 
that the parties exchange competing proposals for the length of the fact discovery 
period so that the parties could meet and confer regarding scheduling matters.  Visa 
proposed deferring discussion of case deadlines, confirming on December 6, 2024 
that the parties should defer any discussion of case schedules until after the Court 
resolved Visa’s motion to dismiss, and declining to put forward a proposed 
schedule.  The United States proposes a schedule now to facilitate entry of a 
schedule “as soon as practicable” following the status conference on January 6, 
2025, see Fed. R. Civ. P. 16(b)(2), and to further Congress’s directive to “proceed, 
as soon as may be, to the hearing and determination of” the United States’ antitrust 
claims, see 15 U.S.C. § 4. 
Completion of Fact Discovery                                 March 17, 2026 
Initial Expert Reports                                               May 1, 2026 
Rebuttal Expert Reports                                           June 17, 2026 
Reply Expert Reports                                               July 17, 2026 
Completion of Expert Discovery                             August 7, 2026 
Summary Judgment/Daubert Motions                    September 4, 2026 
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Summary Judgment/Daubert Oppositions              October 5, 2026 
Summary Judgment/Daubert Replies                     October 19, 2026 
Joint Pretrial Order Deadline                                  30 days after ruling on summary 
        judgment 
 
b. Visa’s Position: The Government did not provide its proposed schedule to Visa 
until 2:00pm on December 13, 2024, the day the parties were required to submit 
this Report. There are a variety of issues raised by this schedule, but Visa does not 
think the Court likely needs to be burdened with these potential disputes, which 
Visa is hopeful the parties can resolve themselves. Accordingly, Visa asks that the 
Court allow the parties to continue to meet and confer on these issues and provide 
an updated proposal after those discussions. Given that the parties have already 
agreed to the contours of Phase I discovery during the pendency of the motion to 
dismiss, Visa thinks there is more than sufficient time to resolve any disputes before 
Phase II fact discovery commences. 
13. 
Supplementation.  The parties intend to confer again after the Court’s ruling on 
Visa’s motion to dismiss to propose a more fulsome case schedule and additional provisions 
(including those pertaining to witness lists, expert discovery, pretrial matters, and trial).  The 
parties propose to file a supplemental Rule 26(f) report within 30 days of the Court’s order on the 
motion to dismiss. 
 
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DATED: December 13, 2024 
By:      /s/ Edward Duffy 
Edward Duffy 
Bennett J. Matelson 
Michele Trichler 
United States Department of Justice 
Antitrust Division 
450 Fifth Street, N.W., Suite 4000 
Telephone: (202) 812-4723 
Facsimile: (202) 514-7308 
Edward.duffy@usdoj.gov 
Bennett.Matelson@usdoj.gov 
Michele.Trichler@usdoj.gov 
Counsel for Plaintiff, the United States 
Respectfully submitted, 
By:       /s/ Brian Stekloff 
Beth Wilkinson (SBN NY 2181592) 
Brian Stekloff (admitted pro hac vice) 
Kieran Gostin (SBN NY 4847653) 
Roxana Guidero (admitted pro hac vice) 
WILKINSON STEKLOFF LLP 
2001 M Street NW, 10th Floor 
Washington, DC 20036 
Telephone: (202) 847-4000 
Facsimile: (202) 847-4005 
bwilkinson@wilkinsonstekloff.com 
bstekloff@wilkinsonstekloff.com 
kgostin@wilkinsonstekloff.com 
rguidero@wilkinsonstekloff.com 
Counsel for Defendant Visa Inc. 
 
 
  
 
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