NEW YORK (
) -- In the lead-up to Friday, Aug. 30, morning's court hearing over setting a trial date for the government's challenge to the proposed merger of
, the opposing sides are proposing drastically different totals for the number of depositions each side should be permitted.
How U.S. District Judge Colleen Kollar-Kotelly views the deposition proposals will be a major factor in whether she leans toward the airlines' request for a quick trial in November, or a later one in March as the Department of Justice wants. The government said it needs the later date to effectively build a record on how the $11 billion deal will harm consumers.
Kollar-Kotelly could set a trial start date on Friday or could wait until Tuesday to announce her decision.
The DOJ is proposing that each side be allowed up to 50 depositions, in addition to the deposition of any person who appears on the parties' witness list who has not previously been deposed. The government also proposed that up to two executives from each airline be deposed for a maximum of two days.
In contrast, the airlines want each parties' depositions limited to 10, although they agree additional depositions should be allowed for persons on a party's final witness list who have not been deposed. However, they said all depositions should be limited to seven hours.
In an order issued Thursday, Kollar-Kotelly appeared to be favoring a trial date on the earlier side. She called on the parties to "immediately begin serving written discovery to the extent possible." She added that the DOJ and the seven state attorneys general suing to block the merger would be permitted to propose up to 10 interrogatory questions to each of the two airlines. The airlines are allowed to propose up to 15 interrogatory questions to the plaintiffs DOJ and states collectively.
She also directed the parties to be prepared to address a number of issues, all indicating a desire to speed the proceeding along, if possible. For instance, they are expected to be prepared to address the scope of documents the Department of Justice has already obtained from the airlines and third parties prior to filing suit as well as the identities of individuals the DOJ already has deposed.
As for written discovery, the DOJ and the airlines will have to address the scope of additional information they intend to seek from the other side and third parties and the volume of documents likely to be produced.
They also must estimate the number of experts each party anticipates designating and the subject matter of each expert's report.
The parties must also say to what extent testimony will be introduced via affidavit or deposition and how many live witnesses each intends to introduce along with the scope of that testimony.
"The kinds of things she is asking -- how much information has already been collected, how much can be done in writing -- is all geared toward making the proceeding go faster," one antitrust source said. "She recognizes that giving the government the schedule it wants would put the deal in jeopardy but she's also concerned about letting the government get the information it needs."
The DOJ, joined by attorneys general from six states and the District of Columbia, have urged Judge Kollar-Kotelly to begin the trial on March 3, 2014, rather than Nov. 12 as the airlines requested. Kollar-Kotelly is likely to have no choice but to begin the trial in either November or December or delay the case until March. She has warned the parties that a criminal trial is set to begin Jan. 14 and last eight weeks. A March start would make it difficult to hold the bankruptcy reorganization plan for American's parent AMR Corp., however. The acquisition by US Airways is central to AMR's current reorganization plan. DOJ has said the bankruptcy proceeding should not be a factor in scheduling the merger trial.
Written by Bill McConnell In Washington