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U.S. v. UPM-KYMMENE OYJ

United States District Court, Northern District of Illinois


May 16, 2003

UNITED STATES
v.
UPM-KYMMENE OYJ

The opinion of the court was delivered by: Zagel, Judge.

OPINION

Before me are defendants' Motion for a Protective Order to Vacate the Government's Rule 30(b)(6) Deposition Notices of UPM and Bemis and the Deposition Notice of Jeffrey Curler and defendants' Motion to Consolidate the Preliminary Injunction Hearing with the Trial on the Merits. I will address both of these pending*fn1 motions below.

With respect to defendants' protective order motion, I am vacating the 30(b)(6) deposition notice of Jeffrey Curler. As for the remaining 30(b)(6) deposition notices, I will allow the government a limited number of depositions per expert offered by defendants. The expert opinions offered by defendants will no doubt have a factual basis arising from company practices, and therefore, I will allow the government to take the deposition of one individual from the acquiring corporation and the deposition of one individual from the acquiree corporation, thus amounting to no more than two depositions per expert, if such depositions are necessary. I am basing this ruling on the assumption that discovery relating to what has been referred to as "converters" will be accomplished by means other than depositions. I expect counsel to notify the court immediately if this assumption is incorrect.

I am denying defendants' consolidation motion for four reasons. First, if the preliminary injunction hearing were consolidated with the trial on the merits, it is likely that too little time would be available to prepare for a final ruling on the merits. Second, as a practical matter, a ruling on the preliminary injunction either way, whether for the government or defendants, might effectively end this litigation and thus, end the need for a trial on the merits. Third, if the preliminary injunction is granted, defendants, who have proceeded under great time pressure, might well wish that they had a second bite at the apple, and a hearing on a final injunction could probably be held before the autumnal solstice. Finally, if the preliminary injunction is denied, the government, in seeking post-merger remedies, deserves the right to examine post-merger events. While such remedies could not likely be determined by mid-September, a decision could be reached well before the end of this year.

Therefore, defendants' protective order motion is granted in part and denied in part, and defendants' consolidation motion is denied for the reasons stated above.


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