1957, the resolution was adopted that 'In determining whether cut-off dates will be established the particular facts of each case must be considered. Varying dates may be adopted for different issues.' Similar conclusions were alluded to at Palo Alto. Further, in the 1954 Report of the American Bar Association Committee on Practice and Procedure in the Trial of Antitrust Cases, that study concluded as follows:
'In civil as well as criminal cases, for example, it would seem entirely appropriate for the court to require the plaintiff to present evidence that tends to show a case of present violation of law before permitting any evidence as to the origin of the conspiracy or the background of the industry. Such period could be rather strictly limited to perhaps five or six years.'
Thus, the first trial stage in this cause will be confined to evidence as to the postwar period down to the time of the filing of the complaint, December 11, 1952. In connection with such trial, the Court will consider the written representations of all counsel, pro and con, as to the relationship between, and the intent of, the defendants prewar, as above, as perchance continuing and coloring the postwar evidence in that regard. Should these representations appear material and substantial, such representations will then become the issues to be tried at the second trial stage. See Chaps. VII. Separation of Issues, and VIII. Period of Inquiry, Procedure in Anti-Trust and Other Protracted Cases, A Report Adopted by the Judicial Conference of the United States, September 26, 1951 (Prettyman Report).
Finally, due to the exceptional factors of delay in this case occurring before this Court took control of the situation, it may be necessary, if the plaintiff has established a postwar violation of the Sherman Act, to give further opportunity to the parties to establish by evidence, as to the years succeeding the filing of the complaint in 1952, the extent of the present danger to the public as bearing upon appropriate relief. But no attempt should be made to cross that bridge before it is reached.
An order may be entered accordingly.
Shortly following the filing of the cutoff opinion herein, dated January 27, 1959, the Court advised all counsel at pretrial that, in the light of the Government's previous written representations as to the nature of its prewar proof, it had real doubt as to whether it would not be obliged to give the Government the right to introduce such proof ultimately. Further that, in order not to do injustice by comparing stale evidence with fresh evidence as to related issues, the Court must insist that months on end not be permitted to intervene between the first stage and the second stage of trial, in order to permit the defendants then to carry through their lengthy prewar discovery. Accordingly, the Court insisted that, before any trial, all parties would be required to complete both their prewar and postwar discovery. Therefore, the Court overruled the request of the defendants to delay their prewar discovery until after the first stage of trial. Thereupon the defendants indicated generally, with the exception of Colgate-Palmolive, and that of the Association which, though requested, did not state its viewpoint, that they did not want a two-stage trial, if they had to complete their discovery before any trial. Since the Government had never wanted a two-stage trial, the Court, particularly because of its doubt that a second stage trial could be avoided, determined to abandon the two-stage trial in favor of the usual single trial.
In the interest of accuracy, the Court would call attention to the following in its cut-off opinion:
'The Government admits that it does not desire to give evidence as to the intermediate war period from, presumably, 1941 to 1946, when the Government's wartime regulations of business were in effect.'
This does not mean that the Government admits that such are accurate dates, or that no violations by the defendants occurred between such dates. Nor does the Government admit the defendants' claim that it may use almost a million documents in its proof. However, it is clear that the Government will use documents literally in the thousands, so the exact number of documents to be used is theoretically, though not practically, immaterial.
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