City of Providence, Rhode Island v. Bats Global Markets, Inc. et al

Filing 572

ORDER RE: MARCH 16, 2021 HEARING: 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 f ollows: The parties have advised the Court that they began meeting and conferring about the issues raised by NYSE's letter-motion, have resolvedsome of those issues, and are continuing to meet and confer about the remaining issues; the parties s hall complete those discussions and advise the Court promptly thereafter in the event any suchissues are unresolved. The parties shall also meet and confer regarding the scheduling of this deposition no later than March 19, 2021. For avoidance of do ubt, the Court will not entertain requests for production of any transcripts of SEC testimony beyond the four referenced in this paragraph. To the extent this production prompts further discovery requests, the parties shall meet and confer by March 19, 2021. The remedy for failure to comply with discovery obligations by the extended deadlines will be sanctions, not any further extensions of time. The Clerk of Court is directed to terminate ECF Nos. 540, 545, 546, 548, 549, 551, 552, 553. IT IS SO ORDERED. (Deposition due by 8/26/2021., Fact Discovery due by 4/26/2021., Motions due by 5/28/2021, Responses due by 7/26/2021, Replies due by 9/17/2021.) (Signed by Judge Jesse M. Furman on 3/22/2021) (jca)

Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

x
CITY OF PROVIDENCE, RHODE ISLAND, :
:
Individually and on Behalf of All Others
Similarly Situated,
:
:
Plaintiff,
:
:
vs.
:
:
BATS GLOBAL MARKETS, INC., et al.,
:
:
Defendants.
:
x

Civil Action No. 1:14-cv-02811-JMF-OTW
(Consolidated)
CLASS ACTION
[PROPOSED] ORDER RE: MARCH 16, 2021
HEARING

Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 2 of 8

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 rereview 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.

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 3 of 8

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

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 4 of 8

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. further 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.

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 5 of 8

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
party document discovery relevant to class
certification or preclusion motion practice.

(no change)

Deadline for production of documents
(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.

November 30, 2020

(no change)

Deadline for all fact discovery relating to
class certification and preclusion to be
completed.

March 12, 2021

April 26, 2021

Deadline to submit joint letter advising
the Court of the parties’ views on how
much time is needed to complete any
additional discovery in light of the Court’s
ruling(s) on Plaintiff’s class certification
motion and Defendants’ motion for
summary judgment on grounds of
preclusion and the discovery completed
prior to those motions being filed.

Within one Week of
Court’s Ruling on
Plaintiff’s class
certification motion and
Defendants’ motion for
summary judgment on
grounds of preclusion

(no change)

Deadline for remaining fact discovery to
be completed.

Within 90 days of the
Court’s ruling on
Plaintiff’s class
certification motion and
Defendants’ motion for
summary judgment on
grounds of preclusion

(no change)

Deadline for all expert discovery on
subjects other than class certification and
preclusion, including expert reports,

Within 60 days of the
deadline for the

(no change)

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 6 of 8

Event

Current Deadline

New Deadline

production of underlying documents, and
depositions, to be completed.

completion of fact
discovery

Deadline to serve interrogatories pursuant
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)).

November 30, 2020

(no change)

Deadline to serve contention
interrogatories pursuant to Rule 33.3(c) of
the Local Civil Rules of the Southern
District of New York.

30 days before the close
of discovery, unless
otherwise ordered by the
Court

(no change)

Deadline to take depositions of fact
witnesses.

Close of fact discovery,
unless otherwise ordered
by the Court

(no change)

Deadline to serve requests to admit.

30 days before the close
of discovery, unless
otherwise ordered by the
Court

(no change)

Deadline for the parties to meet and
30 days prior to the
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
(i) expert reports of the party with the
burden of proof shall be due before those
of the opposing party’s experts; and (ii) all
expert discovery shall be completed by
the deadline for completion of expert
discovery (that is, the date set forth in
paragraph 3(d)).

(no change)

Deadline for Plaintiffs to file any motion
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).

April 13, 2021

May 28, 2021

Deadline to take depositions of moving
side’s experts for class certification and

May 10, 2021

June 24, 2021

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 7 of 8

Event

Current Deadline

New Deadline

motion for summary judgment on grounds
of preclusion.
Deadline to file briefs in opposition to
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.

June 10, 2021

July 26, 2021

Deadline to take depositions of opposing
side’s experts proffered in opposition to
class certification and motion for
summary judgment on grounds of
preclusion.

July 12, 2021

August 26, 2021

Deadline to file reply memoranda of law
in support of motions for class
certification and summary judgment on
grounds of preclusion.

August 3, 2021

September 17, 2021

Deadline to meet in person for at least one
hour to discuss settlement.

14 days following the
close of fact discovery

(no change)

Deadline to file summary judgment
motions, if applicable, 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.

45 days after the close of
fact or expert discovery
(whichever is later)

(no change)

Deadline to file oppositions to summary
45 days after opening
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.

(no change)

Deadline to file replies in support of
21 days after service of
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.

(no change)

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Case 1:14-cv-02811-JMF Document 572 Filed 03/22/21 Page 8 of 8

Event

Current Deadline

New Deadline

Deadline for the parties to submit to the
Court for its approval a Joint Pretrial
Order prepared in accordance with the
Court’s Individual Rules and Practices
and Fed. R. Civ. P. 26(a)(3).

45 days after the close of
all discovery, or, if a
dispositive motion has
been filed, within 45
days of a decision on
such motion

(no change)

Deadline to submit joint requests to
charge, joint proposed verdict forms, and
joint proposed voir dire questions.

On or before the deadline
to file the Joint Pretrial
Order

(no change)

Deadline to submit proposed findings of
fact and conclusions of law.

On or before the deadline
to file the Joint Pretrial
Order

(no change)

Deadline to be ready for trial.

One month after the Joint
Pretrial Order is filed

(no change)

IT IS SO ORDERED.
March 22, 2021
DATED: _________________________

____________________________________
THE HONORABLE JESSE M. FURMAN
UNITED STATES DISTRICT JUDGE

The Clerk of Court is directed to terminate ECF Nos. 540, 545, 546, 548, 549, 551, 552, 553.

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