Hepting et al v. AT&T Corp. et al

Filing 208

MOTION to Related Case Administrative Motion of Defendant AT&T Corp. to Consider Whether Cases Should Be Related (Nos. C-06-0672-VRW and C-06-3596-VRW) filed by AT&T Corp.. (Ericson, Bruce) (Filed on 6/13/2006)

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PILLSBURY WINTHROP SHAW PITTMAN LLP BRUCE A. ERICSON #76342 DAVID L. ANDERSON #149604 JACOB R. SORENSEN #209134 MARC H. AXELBAUM #209855 DANIEL J. RICHERT #232208 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 Telephone: [phone] Facsimile: [phone] SIDLEY AUSTIN LLP DAVID W. CARPENTER (admitted pro hac vice) BRADFORD A. BERENSON (admitted pro hac vice) DAVID L. LAWSON (admitted pro hac vice) EDWARD R. McNICHOLAS (admitted pro hac vice) 1501 K Street, N.W. Washington, D.C. 20005 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

TASH HEPTING, et al., Plaintiffs, vs. AT&T CORP., et al., Defendants. TOM CAMPBELL, et al., vs. Plaintiffs,

No. C-06-0672-VRW ADMINISTRATIVE MOTION OF DEFENDANT AT&T CORP. TO CONSIDER WHETHER CASES SHOULD BE RELATED [N.D. Cal. Civ. L.R. 3-12, 7-11]

No. C-06-3596-VRW

AT&T COMMUNICATIONS OF CALIFORNIA, et al, Defendants.

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: Pursuant to N. D. Cal. Civil Local Rules 3-12 and 7-11, Defendant AT&T CORP. ("AT&T") hereby files this Administrative Motion to Consider Whether Cases Should Be Related to consider whether the subsequently filed case of Campbell, et al. v. AT&T Communications of California, et al., No. C-06-3596-VRW, removed on June 6, 2006 (the "Campbell case") should be related to this case (the "Hepting case"). I. ACTION REQUESTED. An order pursuant to Civil Local Rule 3-12 relating Campbell to Hepting. II. REASONS SUPPORTING THE REQUEST. Civil Local Rule 3-12 provides the applicable standard: "An action is related to another when: (1) The actions concern substantially the same parties, property, transaction or event; and (2) It appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Both criteria are met here. Campbell is related to Hepting because they involve substantially the same parties, transactions and events. See Civ. L.R. 3-12(a)(1). If the cases are conducted before different judges, there will likely be a burdensome duplication of labor and expense, as well as the potential for conflicting results. See Civ. L.R. 3-12(a)(2). A. 1. · . Campbell and Hepting involve substantially the same parties and events. Titles and case numbers. TASH HEPTING, GREGORY HICKS, CAROLYN JEWEL and ERIK KNUTZEN on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, vs. AT&T CORP., AT&T INC. and DOES 1-20, inclusive, Defendants, No. C-06-0672-VRW. TOM CAMPBELL; GEORGE MAIN; DENNIS P. RIORDAN; MARGARET RUSSELL; ROBERT SCHEER; PETER SUSSMAN; RICHARD BELZER; MARC COOPER; STEPHEN J. MATHER; SANDRA RICHARDS; CURREN WARF; AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, a nonprofit corporation; ACLU OF SOUTHERN CALIFORNIA, a nonprofit corporation; AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO/IMPERIAL COUNTIES, a nonprofit corporation, Plaintiffs, vs. AT&T COMMUNICATIONS OF CALIFORNIA, a corporation; AT&T CORP., a corporation; AT&T, INC., a corporation; and DOES 1 through 20, Defendants, No. C-06-3596-VRW.
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2.

Campbell and Hepting involve the same parties.
Plaintiffs: The named plaintiffs in the Campbell case purport to be subscribers of

services provided under the AT&T brand. See Campbell Dkt. 1, Ex. A (Complaint) ¶¶ 516. The named plaintiffs in the Hepting case also purport to be subscribers of services provided under the AT&T brand. See Hepting Dkt. 8 (First Amended Complaint) ¶¶ 13-16. The Hepting case is brought on behalf of a purported national class (and a California subclass) of subscribers of AT&T services. Hepting Dkt. 8 at ¶¶ 65, 67. While Campbell is not brought as a purported class action, it seeks relief on behalf of all AT&T customers. See Campbell Dkt. 1, Ex. A at 11:14 ("Enjoining AT&T from providing any customer calling records . . . ."). Defendants: Both Hepting and Campbell name AT&T Corp. and AT&T Inc. as defendants. While Campbell names one additional defendant (AT&T Communications of California), that entity is an affiliate of AT&T Corp. and a subsidiary of AT&T Inc. In short, these cases involve substantially the same parties. See L.R. 3-12(a)(1). In addition, counsel for plaintiffs in Campbell has appeared as an amicus supporting plaintiffs in Hepting. Hepting Dkt. 76-78. 3.

Campbell and Hepting involve the same transactions and events.
Both cases involve allegations of wrongdoing based on the alleged complicity of

defendants in surveillance allegedly conducted by the National Security Agency ("NSA"). See Hepting Dkt. 8 ¶¶ 2-8, Campbell Dkt. 1, Ex. A ¶¶ 1-4. Both cases implicate federal questions including, inter alia, federal statutory and common law immunities and the constitutionally based military and state secrets privilege. See Campbell Dkt. 1 (Notice of Removal). Both cases seek a declaratory judgment that defendants have violated plaintiffs' rights, and an injunction barring defendants from assisting the alleged NSA surveillance program. See Hepting Dkt. 8 at 28-29, Campbell Dkt. 1, Ex. A at 11. In short, both cases involve substantially the same alleged transactions and events. See L.R. 3-12(a)(2). Both cases also seek substantially the same equitable relief (Hepting also seeks damages).
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B.

Relating Campbell to Hepting will conserve judicial resources and avoid inconsistent results; relating Campbell to another case involving different defendants and a different judge makes no sense. Chief Judge Walker is already overseeing three actions in the District involving

similar allegations: Hepting, Campbell and Roe, et al. v. AT&T Corp., et al., No. C-063467-VRW ("Roe"). The Court has already determined that Roe meets the criteria of Civ. L.R. 3-12(a), having related Roe to Hepting on June 9, 2006. See Hepting Dkt. 189. The Court has presided over Hepting since it was filed on January 31, 2006 (see Dkt. 1). Hepting has been actively litigated: the parties, amici and proposed intervenors have made over 200 filings in the Court's docket. In less than two weeks, the Court will hear the motions to dismiss of defendants AT&T Corp. and AT&T Inc. (Dkts. 79, 86) and of the United States of America (Dkt. 124). Given his extensive familiarity with the facts and complex legal issues presented in Hepting, Chief Judge Walker is best situated to preside over Campbell as well to avoid the "unduly burdensome duplication of labor and expense" and the prospect of "conflicting results." L.R. 3-12(a)(2). On June 12, 2006, plaintiffs in the Campbell case and another case--DeBonis, et al. v. Verizon Communications, Inc., No. C-06-3574-EDL, removed on June 5, 2006 (the "DeBonis" case)--filed an Administrative Motion to Consider Whether Campbell should be related to DeBonis (DeBonis Dkt. 3). DeBonis does not name as defendant any AT&T entity; instead, it is brought against Verizon, a competitor of AT&T. Under the approach of the Campbell and DeBonis plaintiffs, their cases would proceed before Magistrate Judge Laporte, while Hepting and Roe would proceed before Chief Judge Walker. Splitting the cases against the AT&T defendants between two judges will neither conserve resources nor prevent inconsistent results. It would make no sense. In their Administrative Motion, the Campbell and DeBonis plaintiffs emphasize the fact that they have not pled any federal causes of action. This is irrelevant in the context of a motion to relate cases because similar causes of action is not a factor in determining whether cases are related. See Civil L.R. 3-12(a). The important point is that Campbell and
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Hepting concern substantially the same parties, transactions and events, and relating them to Hepting (and therefore to Roe) will avoid the waste of resources and prevent inconsistent results. In any event, these cases all implicate questions of federal law, as defendants in Campbell explained in greater detail in their notice of removal. See Campbell Dkt. 1. III. CONCLUSION. For the foregoing reasons, AT&T requests that Campbell be related to Hepting pursuant to Civil L.R. 3-12. Dated: June 13, 2006. PILLSBURY WINTHROP SHAW PITTMAN LLP BRUCE A. ERICSON DAVID L. ANDERSON JACOB R. SORENSEN MARC H. AXELBAUM DANIEL J. RICHERT 50 Fremont Street Post Office Box 7880 San Francisco, CA 94120-7880 SIDLEY AUSTIN LLP DAVID W. CARPENTER BRADFORD A. BERENSON DAVID L. LAWSON EDWARD R. McNICHOLAS 1501 K Street, N.W. Washington, D.C. 20005 By /s/ Bruce A. Ericson Bruce A. Ericson Attorneys for Defendants AT&T CORP. and AT&T INC.

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DECLARATION PURSUANT TO CIVIL L.R. 7-11(a) I, BRUCE A. ERICSON, declare: 1. I am a member of the bar of this Court and a member of the law firm of

Pillsbury Winthrop Shaw Pittman LLP. I am attorney of record for the named defendants in both Hepting et al. v. AT&T Corp. et al., No. C-06-0672-VRW and in Campbell et al. v. AT&T Communications of California, et al., No. C-06-3596-VRW ("Campbell"). I make this declaration in support of AT&T's Administrative Motion to Consider Whether Cases Should Be Related ("Administrative Motion"). I have personal knowledge of the facts stated herein and, if called as a witness, I could and would competently testify thereto. 2. As described in the foregoing Administrative Motion, counsel for plaintiffs

in the Campbell action recently filed their own administrative motion to have the Campbell action related to DeBonis, et al. v. Verizon Communications, Inc., No. C-06-3574-EDL, and have both cases proceed before Magistrate Judge Laporte. In light of this fact, I do not believe that a stipulation could be reached with plaintiffs in Campbell that would obviate this Administrative Motion. I declare under penalty of perjury that the foregoing is true and correct. Executed this 13th day of June, 2006, at San Francisco, California.

/s/ Bruce A. Ericson Bruce A. Ericson

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