Transcript of Proceedings re: Confernece held on 1/6/2025 — United States v. Visa Inc. (Dkt. 46, S.D.N.Y. No. 1:24-cv-07214)

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U.S. District Court for the Southern District of New York · No. 1:24-cv-07214-JGK · Doc. 46 · 2025-01-06 · Docket on CourtListener

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
------------------------------x 
 
UNITED STATES OF AMERICA, 
 
               Plaintiff,    
 
 
           v.                           24 Civ. 7214 (JGK) 
                                        Remote Proceeding  
VISA INC., 
 
               Defendant. 
 
------------------------------x 
                                        New York, N.Y.       
                                        January 6, 2025 
                                        12:15 p.m. 
 
Before: 
 
HON. JOHN G. KOELTL, 
 
                                        U.S. District Judge 
 
APPEARANCES 
 
U.S. DEPARTMENT OF JUSTICE 
BY:  EDWARD DUFFY 
     AARON TEITELBAUM 
     MICHELE TRICHLER 
     BEN MATELSON 
 
 
WILKINSON STEKLOFF 
     Attorneys for Defendant  
BY:  ROXANA GUIDERO 
     BETH WILKINSON 
     BRIAN STEKLOFF 
     KIERAN GOSTIN 
 
 
 
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 1 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
(The Court and all parties appearing telephonically) 
THE COURT:  Who is on the line for the government,
please?
MR. DUFFY:  Edward Duffy on the line for the
government, your Honor.
THE COURT:  Good morning.
Who is on the line for the defendant?
MS. GUIDERO:  Good morning, your Honor.  This is
Roxana Guidero on behalf of Visa.  I am joined on the line by
Beth Wilkinson, Brian Stekloff and Kieran Gostin as well.
THE COURT:  Could you spell your last name for me,
please?
MS. GUIDERO:  Of course, your Honor.  It is
G-U-I-D-E-R-O.
THE COURT:  Good morning, all.
I have reviewed your joint Rule 26(f) report.  I know
that the time for the government to respond to the pending
motion to dismiss is January 21, 2025, and for Visa to reply
February 7, 2025.  The Rule 26(f) report was very constructive.
The proposal to conduct various kinds of documentary discovery
while the motion to dismiss is pending is fine and you save, so
far as I can tell, having to brief a motion to stay discovery
while the motion to dismiss is pending.  On page 4 there is a
comment that you intend to discuss coordination of discovery
with the private party plaintiffs.  That's also very
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 2 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
constructive.  I have a conference with the private -- an
initial conference with the private party plaintiffs later in
January, January 28, I think.
The first dispute between the parties is with respect
to the number of interrogatories.  On the bottom of page 4
going over to page 5, the government seeks 50; Visa seeks 25.
Visa is right, 25 is more than sufficient.  There was a time
when at least one judge of this court prohibited
interrogatories.  And, with the notion that interrogatories are
written by lawyers, responded by lawyers, to provide as little
information as possible but they are allowed.  So, the rules
say 25 and our local rules set out the various limits and what
the interrogatories are supposed to be asking for at the
beginning of the case and contention interrogatories toward the
end of the case.  So, you should follow the local rule and 25
is sufficient.  Of course, the rules recognize that if you can
make a showing to me that additional interrogatories are in
fact worthwhile, you can always make that application.  So, I
would accept Visa's position, page 5, no. B.
The next dispute then is over the number of
depositions.  The parties agree, ultimately, on 350 hours total
for depositions for each side.  Each wants a limit of 91 hours
for the depositions of the Visa witnesses.  I couldn't limit
depositions that way at the outset.  If it turns out that the
government is wasting their time with unnecessary Visa
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 3 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
witnesses rather than third-party witnesses, the parties can
bring that to my attention but, plainly, it wouldn't be in the
government's interest to do that, and I certainly couldn't
decide before the fact that only 91 hours of the 350 hours
should be used up by the government's examination of the
witnesses.  So, I would accept the government's position with
respect to the hours of deposition.
That leaves the dispute between the parties with
respect to the number of 30(b)(6) witnesses.  The government
wants to have three 30(b)(6) witnesses.  Visa says one 30(b)(6)
designation should be sufficient rather than seriatim 30(b)(6)
depositions.  There is no explicit provision for more than one
30(b)(6) witness and, at the outset, Visa appears to be
correct, so one 30(b)(6) designation.  Obviously, the
designation can include all of the appropriate subjects for a
30(b)(6) deposition and more than one witness can be the
appropriately designated witness for the 30(b)(6) deposition.
If, for some reason, this 30(b)(6) process is abused and it is
necessary to have a subsequent 30(b)(6) designation, again, the
parties can bring that to my attention.  But, I should add that
the parties have been acting constructively so far so I'm not
sure that would ever occur.  But, if it does, I am here.
That leads us then to page 8 where the parties have
agreed on various housekeeping matters with respect to the
conduct of depositions, calculation of time, corporate
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 4 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
representative, additional time, all of which seem fine.
Cross-noticed depositions on page 9 seems fine.  Paragraph 11,
what doesn't count, exclusions from the deposition limits for a
sentence is fine.  The second sentence on paragraph 11, the
parties don't agree with respect to the treatment of
depositions taken with respect to establishing the location,
authenticity or admissibility of documents.  With respect to
that, I agree with Visa that that should be included with the
regular time coming out of the parties' allotment of 350 hours.
Those are, plainly, constructive depositions trying to
authenticate documents so that they can be eventually
admissible at trial and should count towards the 350 hours.
350 hours is certainly sufficient and I would think that the
parties would cooperate in doing that.
As an aside, I'm pleased that the parties are thinking
about the trial of the case, and certainly there is going to be
a lot of discovery in the case but you should certainly conduct
the discovery in a way that is geared toward the eventual trial
of the case.  So, depositions should be taken with a view
toward their admissibility at trial.  When you use documents,
they should be used in such a way with an eye towards their
admissibility at trial.  And, I would expect that you employ
your experts early so that you don't get to the point where the
experts are finally employed and they say here is what we need
for our expert opinions and they're relying on discovery that
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 5 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
has never been taken.  So, imagine, just from the structure of
the 26(f) report, that you are doing that so the notion of
depositions to authenticate documents is good and should come
out of the 350 hours.
That leads us to no. 12 on page 10.  Visa has proposed
a schedule, proposes to talk to the parties about an
appropriate schedule.  I looked over the government's schedule
and I thought it was a good schedule, a generous schedule, and
I would be prepared to adopt it but I haven't heard from Visa
on that schedule.
MS. GUIDERO:  Your Honor, if I can provide just a
brief update there?
THE COURT:  Yes.  Sure.
MS. GUIDERO:  This is Roxana Guidero on behalf of
Visa.
Since we failed the 26(f) report, again, in the spirit
of the cooperation and continuing to work with the government,
we sent a Visa proposed schedule to the government on
December 17.  We haven't heard back substantively from the
government on that.  Broadly speaking, I think there are some
elements with the government's schedule that we can agree to,
that the two items that we really wanted to alter the dates a
little bit for is to give a little bit more time for the
expert.  As you noted, experts are going to be a core part of
this case and we thought there was a little bit more time
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 6 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
needed for those extra reports as well as the time in between
the completion of expert discovery and the Daubert motions in
order to react to those expert reports in the Daubert, and we
also added a date for the disclosure of the expert witnesses,
just their names and the topics to the initial expert reports.
That is all to say that I think as the parties have 
cooperated already we can continue to discuss the schedule.  We 
haven't had a chance to substantively discuss Visa's proposed 
schedule with the government, given the holidays but we would 
ask for an opportunity to do that and we can update the Court 
on any progress we make.  
MR. DUFFY:  Your Honor, if I may?
THE COURT:  Mr. Duffy, hold on.  Mr. Duffy, before I
listen to you, the government's schedule says summary judgment
replies October 19, 2026, so that is almost two years from now
which means that the trial wouldn't take place, if there is
going to be a trial, until more than two years.  That seems
generous.  The notion about a date for the disclosure of
experts or the identity of experts seems reasonable to me.  I
have already said that I thought it would be really important
for the parties to engage their experts sooner rather than
later so that they don't run into the situation of experts
saying they need further discovery that has never been taken.
But, I am not enthusiastic about having the case be drawn out
in some ways.  
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 7 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
So, those are a couple of observations.  I certainly 
applaud the parties working together and trying to come up with 
an agreed upon schedule but not an overly long schedule. 
So, Mr. Duffy?
MR. DUFFY:  Yes, your Honor.  We had a question, given
that we are proposing a trial date in early 2027, possibly the
end of 2026, we did want to check in with the Court to see if
there are any scheduling constraints or so forth that we should
be aware of with respect to the trial date itself.
THE COURT:  I don't have another trial scheduled for
late 2026 or early 2027, so that is not a problem.
MR. DUFFY:  OK.  Great.
And then the other point --
THE COURT:  Go ahead.
MR. DUFFY:  -- we would not object to including a
deadline for the disclosure of expert witnesses of roughly
along the same time as the close of fact discovery, but we
informed Visa that our position is that our schedule should be
entered, your Honor.
THE COURT:  OK.  I will certainly allow the parties to
talk.  If there is something else that should be changed, a
date for the disclosure of experts, perhaps March 17, 2026 is
fine.
MS. GUIDERO:  I think that would be fine with us, your
Honor, on behalf of Visa.
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 8 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
THE COURT:  OK.  So would Visa be looking for any
other change in the schedule other than that?
MS. GUIDERO:  Your Honor, like I mentioned, all we
were talking about is just a period of just a few months of
extension.  We hear you loud and clear about not postponing the
case unnecessarily.  We do think that a little bit more wiggle
room in the expert reports and the time before the Daubert
motions would be warranted.  Our proposed schedule had us going
out to Daubert and summary judgment replies to February 2027,
which is about four or so months after the government's
schedule.  So, understanding that that was going to be your
reaction, I am sure we can land somewhere earlier.  So, we can
work with the government on that.
THE COURT:  Well, again, this is a long schedule as it
is and I don't foreclose the possibility that there might be a
need to change the schedule but I don't want the parties to
rely on that.  This is a reasonable schedule.  Building in
another four months or even another two months out of the gate
doesn't make any sense to me.  So, I'll keep the schedule as it
is.  You can add disclosure of the identity of experts
March 17, 2026 although, again, I urge you to get your experts
sooner rather than later.  And, you probably have them already.
So, that's it, I think, for the Rule 26(f) report.  There is
supplementation which is fine and I would ask the parties to
just take my ruling today and incorporate them into an amended
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 9 of 10

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          SOUTHERN DISTRICT REPORTERS, P.C.
            (212) 805-0300
P165visC                 phone conference
Rule 26(f) report and case management plan and I can then enter
that.  So, you all can do that promptly.
Is there anything else?  You can do it by next Friday,
just so that you have a date.  Is there anything else for me
today?  One at a time.  Mr. Duffy?
MR. DUFFY:  Yes.  I did want to inform the Court that
Aaron Teitelbaum, who is on the line, will be taking over as
lead for the case in the next few weeks.  I am going to be
leaving the division and he will be taking over as lead
counsel.
THE COURT:  OK.
MR. TEITELBAUM:  Good afternoon, your Honor.  This is
Aaron Teitelbaum.
THE COURT:  OK.
Ms. Guidero, was there something else that you wanted
to tell me?
MS. GUIDERO:  No.  Nothing from Visa.  Thank you, your
Honor.
THE COURT:  All right.  Thank you, all.  I appreciate
the cooperation.  I look forward to getting to the motion to
dismiss after it is fully briefed.  Great.
OK.  Bye now. 
o0o  
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Case 1:24-cv-07214-JGK     Document 46     Filed 01/14/25     Page 10 of 10

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