STIPULATION AND ORDER REGARDING EXPERT DISCOVERY, Plaintiff United States of… — United States v. Visa Inc. (Dkt. 88)

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A Stipulation and [Proposed] Order Regarding Expert Discovery, Doc. 88, filed June 14, 2025 in United States v. Visa Inc., Civil Action No. 1:24-cv-07214 (JGK), in the U.S. District Court for the Southern District of New York. Plaintiff United States of America and Defendant Visa Inc. agree on the scope of expert discovery, including the disclosures each party must make under Federal Rule of Civil Procedure 26(a)(2) and the materials an expert must list and produce after serving a report. Paragraph 7 bars discovery of draft reports and certain communications with experts, and paragraph 10 lists matters on which experts may be examined. It also provides that no subpoenas need be served on an expert who provides a report.

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Case 1:24-cv-07214-JGK Document 88 Filed 06/14/25 Page 1of9
Case 1:24-cv-07214-JGK Document 87-1 Filed 06/13/25 Page 2 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, Civil Action No. 1:24-cv-07214 (JGK)
Plaintiff, STIPULATION AND {PROPOSED]
ORDER REGARDING EXPERT
v. DISCOVERY
VISA INC.
Defendant.

Plaintiff United States of America and Defendant Visa Inc. (each a “Party” and collectively
the “Parties”) in the above-captioned Action! hereby agree as follows regarding the scope of any
expert discovery in this Action:

1. To the extent this Stipulation and Order Regarding Expert Discovery
(“Stipulation”) imposes limitations on the discovery otherwise available under the Federal Rules
of Civil Procedure or this Court’s standing orders, the Parties have agreed to those limitations to
increase efficiency of their dealings with experts and to minimize discovery disputes regarding
experts. Neither the terms of this Stipulation nor the Parties’ agreementto them shall be considered
an admission by any Party that any of the information restricted from discovery by this Stipulation
would otherwise be discoverable or admissible. Except as otherwise provided for herein, nothing
in this Stipulation shall preclude a Party from making any claim or withholding information on the

basis of attorney-client privilege, the work-product doctrine, or any other applicable rule or

privilege.

1 The term “Action” for purposes of this Stipulation is defined as United States v. Visa Inc.,
1:24-cv-07214 (JGK), including the pre-complaint investigation by the Plaintiff in this case.

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2. The term “expert” as used herein, unless otherwise specified, refers to a witness a
Party may use to present evidence under Federal Rule of Evidence 702, 703, and/or 705, including
testifying experts and any experts offering evidence at trial through means other than live
testimony (i.e., declaration, affidavit, study, or any work papers).

3. The Parties agree that there shall be no discovery or disclosures with respect to
experts and/or consultants who will not present evidence attrial through testimony or other means.
Each Party that intends to offer the testimony of one or more experts must make all of the expert
disclosures required by Federal Rule of Civil Procedure 26(a)(2); provided, however, that the term
“considered” as used in Federal Rule of Civil Procedure 26(a)(2)(B)(ii) and 26(b)(4)(C)(ii) shall
be modified or limited to “relied upon” for purposes of this Action.

4. At the time of serving any expert report and/or expert declaration (collectively,
“expert report”) in this Action, the Party offering the expert witness shall provide, consistent with
Federal Rule of Civil Procedure 26(a)(2)(B)(iv)-(vi): (i) the expert witness’s qualifications,
including a list of all publications authored, in whole or in part, in the previous ten (10) years; (ii)
a list of all other cases and hearings in which, during the previous ten (10) years, the expert witness
has testified as an expert at trial or by deposition, which shall identify the case caption and the
court in which the case was or is pending; and (iii) a statement of the hourly rate or compensation
to be paid for the expert witness’s time, study, and testimony in this Action. At a time mutually
agreeable to both Parties, but no later than the time at which each Party’s pretrial disclosures are
due, each Party will supplement, consistent with Federal Rule of Civil Procedure 26(e)(2),
disclosures previously made under subparts (i) through (iii) above.

5. At a time mutually agreeable to both Parties, but no later than five (5) days after a

Party serves any expert report in this Action, the Party offering the expert witness shall produce:
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(i) a list of all materials referred to therein or otherwise relied upon by the expert in generating the
statements, analyses, opinions, and assertions contained in the expert report, identifying the Bates
labels of all applicable materials produced in this Action; (ii) a list of all data used in forming any
part of the analysis reflected in the expert report or otherwise relied upon by the expert, identifying
the Bates labels of all applicable data produced in this Action; and (iii) a copy of all materials
responsive to subparagraphs 5(i) and 5(ii), except for copies of any documents or data that have
been produced previously in the Action. Public documents and data shall be produced in PDF or
Excel format, when feasible. Documents produced from a Party’s files not previously produced
in this matter shall be produced in compliance with the Order Governing ESI Discovery (“ESI
Protocol”), Dkt. #66, where feasible. For avoidance of doubt, the production required by
subparagraph 5(iii) includes copies of publicly available documents or data, with the exception of
documents or data produced with Bates labels previously in this Action. Additionally, transcripts
of and exhibits from depositions taken in this Action or produced in this Action, even if taken in
another proceeding, need not be produced if the Party identifies in writing the deponent name,
date, and the exhibit numbers of any exhibits cited from such deposition.

6. To the extent the disclosures in an expert report include, reference, rely upon, or
describe exhibits, information, or data processed or modeled by or with the assistance of a
computer, the Party offering the expert’s opinions must produce, at a time mutually agreeable to
both Parties, but no later than five (5) days after serving the expert reports, copies in Native Format
(as defined in the ESI Protocol) of the exhibits, information, estimations, calculations, tables,
graphics, and/or data, as well as the instructions, codes, input files, intermediate files or working
data, output files, and any other information necessary to reconstruct and verify the expert

witness’s work, calculations, and/or analyses. If an expert relies upon or otherwise uses data that
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was previously produced in this Action, the Party offering the expert’s opinions need not include
a copy of that data in the form in which it was previously produced, pursuant to paragraph 5 (iii);
however, the Party must produce input files, intermediate files, or other information pursuant to
this paragraph that is derived from that previously produced data as well as any coding (including
identification of the software version of the program coding used), instructions, and similar
material that is necessary for the other Party to reconstruct and verify the expert witness’s work,
calculations, and/or analyses. The Parties are not expected to provide software or a software
license as part of their disclosures. If the expert uses proprietary software applications to prepare
the expert’s opinions, the Party offering the expert’s opinions shall produce such software upon
request. No Party need produce databases, programs, or software that are: (i) used in the ordinary
course of that Party’s business; (ii) commercially available at a reasonable cost; or (iii) not
practicable to copy; provided however, that the Party offering the expert’s opinion must provide
all datasets relied upon by the Party’s expert for the expert’s disclosed opinions and timely and
reasonable access to the databases, programs, or software for purposes of replication or analysis
of disclosed results. The Parties agree to respond promptly to informal technical inquiries
regarding data produced pursuant to this paragraph.

7. The provisions of Federal Rule of Civil Procedure 26(b)(4), as modified or limited
herein, will apply to expert discovery in this Action. In addition to the protections set forth in
Federal Rule of Civil Procedure 26(b)(4)(C), unless the communications and/or materials in
subparagraphs (a)-(g) below were relied upon by the testifying expert in reaching the expert’s
opinions, or, in the case of data, were used in forming any part of the analysis reflected in the

expert report (in which case such communications and/or material shall be produced and are
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subject to discovery), the Parties will not seek to discover by any method, and may not discover
the following documents, communications, and materials, except as agreed to in Paragraph 10:

a. drafts of any expert report, affidavit, declaration, opinion, exhibit, study, workpaper,
computation, calculation (including preliminary and intermediate calculations), model,
data run, compilation, written testimony, disclosure, or any other material prepared in
connection with this Action by, for, or at the direction of a testifying or non-testifying
expert, regardless of the form in which the draft is recorded;

b. any comments (whether oral or written) related to the drafts that are the subject of
subparagraph (a) above;

c. any communication (whether oral or written) with a non-testifying expert (including
the expert’s assistants, staff, vendors, or agents);

d. any communication (whether oral or written) between a testifying or non-testifymg
expert and the expert’s staff, assistants, vendors, or agents;

e. any communication (whether oral or written) between a testifying or non-testifying
expert, including the expert’s staff, assistants, vendors, or agents, and any other expert
or consultant retained by the Party, including the expert’s staff, assistants, vendors, or
agents;

f. any notes, analyses, comments, or other writings prepared by, for, or at the direction of
a testifying or non-testifying expert in connection with this Action; and

g. budgets, invoices, bills, and related billing records, receipts, or time records of or
concerning a testifying or non-testify ing expert, including the expert’s staff, assistants,
or agents and the expert’s company or organization, except that a testifying expert may
be asked questions about: (i) the hourly rates of the expert and the expert’s staff in
connection with this Action; (ii) the amount of time an expert or the expert’s staffhas
expended in preparing the expert’s report, testimony, and associated work; (iii) the
amount of money billed for the expert’s report, testimony, and associated work; and
(iv) any other consideration that the testifying expert and/or the testifying expert’s
employer received in connection with the expert’s report, testimony, and associated
work.

Nothing in this paragraph relieves an expert or Party from the duty to identify the facts, data, and
assumptions that the expert relied upon in forming the expert’s opinions expressed in the expert’s
final report, declaration, or testimony, as provided for under Federal Rule of Civil Procedure

26(a)(2)(B)(ii) and 26(b)(4)(C), as modified or limited herein. Moreover, subjectto the limitations
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set forth in Paragraph 4, supra, nothing in this paragraph shall be construed to prevent substantive
deposition questions regarding (i) alternative theories, analyses, methodologies, data, documents,
assumptions, or approaches that the expert may have considered in preparing the expert report,
including any reasons or explanations for not including or relying upon any of these alternative
theories, analyses, methodologies, data, documents, assumptions, or approaches; or (ii) the
frequency or duration of meetings with counsel.

8. No Party is required to disclose and/or describe on any privilege log the materials
addressed in Paragraph 7 subparagraphs (a)-(g). It is further stipulated that the Parties and experts
do not have any obligation to retain materials that are not required to be disclosed under Paragraph
7 subparagraphs (a)-(g).

9. No subpoenas (for depositions or documents) need be served on any expert from
whom an expert report is provided. Instead, the Party offering such expert will: (i) be responsible
for producing all materials and information relied on by the expert as outlined above or to the
extentnotaddressed herein, under the Federal Rules of Civil Procedure and the Court’s scheduling
orders; and (ii) make the expert available for deposition at a time mutually agreed to by the Parties
and consistent with the Court’s scheduling orders and any deposition protocols.

10. | Experts may be examined, at deposition, hearing, or trial, on any matter subject to
disclosure under the terms of this Stipulation. Examination shall also be permitted on: (i)
alternative theories, analyses, methodologies, data, documents, assumptions, or approaches to
issues on which the expert is testifying, regardless of whether the expert considered them in
forming the expert’s opinions, including any reasons or explanations for not including or relying
upon any of these alternatives, theories, analyses, methodologies, data, documents, assumptions,

or approaches; (ii) the authorship of draft or final expert reports, expert opinions, expert written
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testimony, or expert work papers and the identity of any persons assisting the expert; (iii)
communications a testifying expert had with any fact witness? that were considered, regardless of
whether they were relied upon in forming his or her opinions; and (iv) any other matter not
foreclosed by this Stipulation and permitted under the Federal Rules of Civil Procedure.

11. The Parties have agreed to comply with this Stipulation and Order.

12. This Stipulation and Order shall apply retrospectively and prospectively.

13. | Nothing herein shall preclude any Party from seeking to modify this Stipulation
and Order for good cause; prior to doing so, however, counsel of record shall meet and confer
among themselves in a good-faith effort to reach agreement as to the appropriate scope of any

modifications or revisions to this Stipulation and Order.

2 For clarity, “fact witness” for purposes of Para. 10 of this Stipulation is defined as any actual
or potential fact witness, regardless of whether the person or entity appears on any Party’s witness
list or disclosures required under the Federal Rules of Civil Procedure, and does not include (a)
counsel employed by the Department of Justice, including any attorneys, paralegals, and other
professional personnel employed by the Department of Justice (including support and IT staff),
and any agents or independent contractors retained by the Department of Justice whose functions
require access to information related to the case; (b) outside counsel of record for Visa, including
any attorneys, paralegals, and other professional personnel (including support and IT staff) whose
functions require access to information related to this case, and agents or independent contractors
retained by Defendantto assist in this Action whose functions require access to information related
to this case; and (c) in-house attorneys for Visa, paralegals, and other professional personnel
employed in the Visa legal department.

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Case 1:24-cv-07214-JGK Document 88
Case 1:24-cv-07214-JGK Document 87-1

Dated June 13, 2025

/s/ Criag W. Conrath

Filed 06/14/25

| Page 8 of 9
Filed 06/13/25

Page 9 of 10

Agreed By:

/s/ Beth Wilkinson

Craig W. Conrath

Bennett J. Matelson

Michele Trichler

United States Department of Justice
Antitrust Division

450 Fifth Street, N.W., Suite 4000
Telephone: (202) 532-4560
Facsimile: (202) 514-7308
Craig.Conrath@usdoj.gov

Bennett. Matelson@usdoj. gov
Michele. Trichler@usdo}j.gov

Counsel for Plaintiff, the United States

Beth A. Wilkinson (SBN NY 2181592)
Brian Stekloff (admitted pro hac vice)
Kieran Gostin (SBN NY 4847653)
Roxana Guidero (admitted pro hac vice)
Quinton A. Weinstein (admitted pro hac vice)
Kellen M. McCoy (admitted pro hac vice)
Jasper S. Primack (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
qweinstein@wilkinsonstekloff.com
kmcecoy@wilkinsonstekloff.com
jprimack@wilkinsonstekloff.com

Anthony P. Ferrara (SBN NY 5656905)
WILKINSON STEKLOFF LLP

130 W 42nd Street, Floor 24

New York, NY 10036

Telephone: (212) 294-8910

Facsimile: (202) 847-4005
aferrara@wilkinsonstekloff.com

Anne P. Davis
ARNOLD & PORTER

KAYE SCHOLER LLP
601 Massachusetts Avenue, NW
Washington, DC 20001-3743
Tel. (202) 942-6197
Fax. (202) 942-5999
Anne.Davis@arnoldporter.com

Counsel for Defendant Visa Inc.
Case 1:24-cv-07214-JGK | Document 88 Filed 06/14/25 Page 9 of 9
Case 1:24-cv-07214-JGK Document 87-1 Filed 06/13/25 Page 10 of 10

SO ORDERED this /“]_ day of pods,

“rh bbebe

. JOHN G. KOELTL
UNITED STATES DISTRICT JUDGE

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