The opinion of the court was delivered by: SWEET
This opinion sets out the reasoning underlying this Court's Joint Pretrial Order Number 3 (the "Pretrial Order"), dated March 18, 1996, which ordered, inter alia, that the plaintiffs in this consolidated proposed class action be given access to certain materials related to Civil Investigative Demands ("CIDs") made of the defendants by the Antitrust Division of the United States Department of Justice (the "DOJ", the "Department", or the "Justice Department").
The background of this matter is set out in detail in this Court's previous opinions in this action, In re NASDAQ Market-Makers Antitrust Litig., 1996 U.S. Dist. LEXIS 4969, 1996 WL 187409, 94 Civ. 3996 (RWS) (S.D.N.Y. Apr. 18, 1996); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346 (S.D.N.Y. 1996); In re NASDAQ Market-Makers Antitrust Litig., 894 F. Supp. 703 (S.D.N.Y. 1995), familiarity with which is assumed.
In May 1994, Plaintiffs filed their complaint in this action, alleging the price fixing of spreads of stocks traded on the NASDAQ exchange. The Judicial Panel on Multidistrict Litigation consolidated the litigation before this Court, and Plaintiffs thereafter served consolidated document requests and interrogatories on all Defendants.
In October 1994, the Justice Department announced its own investigation of the NASD, in the course of which it served CIDs requesting the production of documents, answers to interrogatories, and deposition testimony.
On December 6, 1995, Plaintiffs moved for an order, pursuant to Federal Rule of Civil Procedure 37(a) to compel Defendants to produce, to the extent responsive by subject matter to their consolidated discovery requests, CID interrogatories, documents reflecting agreements modifying the CIDs, answers to the CID interrogatories, CID deposition transcripts, and CID financial discovery; and to modify the Stipulated Order Regarding Confidential Documents (the "Confidentiality Order") to permit Plaintiffs to confer with the DOJ regarding Defendants' compliance with Court orders regarding CID discovery.
On December 20, 1995, Defendants filed their Notice of Motion pursuant to Rule 37 to compel discovery and for a scheduling order. Oral arguments on both Plaintiffs' and Defendants' motions were heard on January 17, 1996.
Plaintiffs' and Defendants' motions were resolved by Joint Proposed Pretrial Order No. 3 (the "Pretrial Order"), prepared jointly by the parties and ordered by this Court on March 7, 1996. The Pretrial Order reflected, in part, statements issued by the Court at a pretrial conference held on February 7, 1996 (the "Pretrial Conference"). It read in part:
6. On February 28, 1996, each defendant will identify those of its current employees or former employees who were deposed by the DOJ in connection with the Nasdaq investigation, to the extent known to that defendant.
10. By March 20, 1996, defendants shall produce copies of all interrogatory answers that were given to the Department of Justice, Antitrust Division, pursuant to Civil Investigative Demands as described in the Stipulated Order, to the extent such answers related to the operation and structure of the Nasdaq Stock Market. Defendants shall also ...