UNITED STATES OF AMERICA v. AT&T INC. et al

Filing 26

MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Stipulated Scheduling and Case-Management Order)(Hammond, Matthew)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
STATE OF NEW YORK, STATE OF
WASHINGTON, STATE OF
CALIFORNIA, STATE of ILLINOIS,
COMMONWEALTH OF
MASSACHUSETTS, STATE OF OHIO,
and COMMONWEALTH OF
PENNSYLVANIA,

Civil No. 11-01560 (ESH)

Plaintiffs,
v.
AT&T INC., T-MOBILE USA, INC., and
DEUTSCHE TELEKOM AG,
Defendants.

STIPULATED SCHEDULING AND CASE-MANAGEMENT ORDER
In accordance with Fed. R. Civ. P. 16(b) and LCvR 16.4 and upon agreement of the
parties, the Court hereby ORDERS as follows:
1.

Service of and Response to the Complaint. In this action, counsel for the

Defendants, acting on behalf of Defendants, have accepted service of the Complaint and have
waived service of a summons. Defendants have already filed their answer to the Complaint.
2.

Joinder and Amendments to the Pleadings. Without leave of Court, the parties

may join additional parties within 7 days of entry of this Order, and amendments to the
Complaint shall occur by 10 days after entry of this Order. Any answer to an amended
complaint shall occur within 10 days of its filing.

3.

Discovery Conference. The parties’ prior consultations and submission of this

stipulated Order relieve the parties of their duty under Fed. R. Civ. P. 26(f) to confer about
scheduling and a discovery plan.
4.

Initial Disclosures. Initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1)

shall be limited as follows:
A. Plaintiffs’ initial disclosures: Under the terms and conditions set forth below,
Plaintiffs shall
1.

produce to Defendants within 10 days of the entry of this Order a list of

all non-parties that received a Civil Investigative Demand or otherwise provided materials
to the Plaintiffs in their investigation that preceded this lawsuit; Defendants reserve the
right to seek a list of all persons interviewed or otherwise contacted by the Plaintiffs in
the course of their investigation of the Proposed Acquisition; and
2.

produce to Defendants, as soon as reasonably practicable and consistent

with the timing for producing confidential information set forth in Paragraph 9 below, all
documents, data, oral examination transcripts, depositions, statements, declarations, and
affidavits, whether in hard-copy or electronic form, exchanged between Plaintiffs
(including Plaintiffs’ counsel) and any non-party (including the non-party’s counsel) in
the course of Plaintiffs’ Investigation of the Proposed Acquisition (collectively,
Plaintiffs’ “Investigation Materials”). Plaintiffs shall produce these Investigation
Materials regardless of whether those materials were received informally or through
compulsory process, such as a subpoena or Civil Investigative Demand. Plaintiffs are not
required to produce back to Defendants documents or other written materials originally
received from Defendants. This Paragraph shall not be construed as requiring the

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production of Plaintiffs’ attorney work product, confidential attorney-client
communications, communications with or information provided to any potentially or
actually retained expert, communications subject to a common interest privilege, or
materials subject to the deliberative process or any other governmental privilege.
B. Defendants’ initial disclosures: Under the terms and conditions set forth
below, Defendants shall produce to Plaintiffs, consistent with the timing for producing
confidential information set forth in Paragraph 9 below, copies of all documents, data,
oral examination transcripts, depositions, statements, declarations, and affidavits,
whether in hard-copy or electronic form, exchanged between any Defendant (including
Defendants’ counsel) and any non-party (including the non-party’s counsel) in the
course of responding to Plaintiffs’ Investigation of, or otherwise relating to, the
Proposed Acquisition, including statements of support provided to Plaintiffs and/or the
Federal Communications Commission (collectively Defendants’ “Investigation
Materials”). Notwithstanding the above, Defendants shall not at this time be required to
produce emails or correspondence, including any attachments, soliciting support for the
merger or other lobbying materials discussing or promoting the benefits of the merger,
although Plaintiffs reserve the right to seek such materials in discovery. The Defendants
are not required to produce back to the Plaintiffs documents or other written materials
originally received from Plaintiffs. This Paragraph shall not be construed as requiring
the production of Defendants’ attorney work product, communications with or
information provided to any potentially or actually retained expert, communications
subject to a common interest privilege, or confidential attorney-client communications.

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5.

Discovery Period. The period for fact discovery shall begin on the date of the

entry of this Order and shall be completed by [December 30, 2011/January 10, 2012].
6.

Written Discovery. All written discovery shall be served to permit timely

responses to be served within the discovery period. Interrogatories shall be limited to 20 per
side, including sub-parts. There will not be a limit on the number of requests for the
production of documents that may be served by the parties. Requests for admission shall be
limited to 50 per side, except for requests relating solely to the authentication or admissibility
of documents, data, or other evidence. Parties shall respond to written discovery requests 20
days after service of the request. To the extent it is reasonably possible, parties shall produce
documents within 20 days after service of the request but in no event, except for good cause
shown, more than 30 days after service of the request. Notwithstanding the foregoing, to the
extent that any discovery request relates to any office or agency of the U.S. Government other
than the Antitrust Division or any office or agency of any Plaintiff State, it is understood that
the Plaintiffs cannot guarantee that such agency or office will produce requested materials
within 30 days, and that Plaintiffs will have no obligation other than making good-faith efforts
with respect to such other agency or office. The Plaintiffs, further, reserve all rights to object
to any such discovery, pursuant to the Federal Rules of Civil Procedure.
7.

Depositions of Fact Witnesses. Absent good cause shown, depositions shall be

limited to no more than 30 per side (excluding experts), plus depositions of the parties’
designated witnesses as set forth in Paragraph 10 of this Order. A deposition of a party or nonparty, taken pursuant to Fed. R. Civ. P. 30(b)(6), shall count as one deposition regardless of the
number of witnesses produced to testify. Depositions taken for the sole purpose of establishing

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the authenticity and admissibility of documents produced by any party or non-party do not
count toward the limit of depositions.
Depositions of fact witnesses shall be no more than one (7 hour) day in length; however
deposition of five fact witnesses employed by or otherwise affiliated with a party may extend to
two days in length at the discretion of the noticing party. Party witnesses residing outside the
United States shall be produced in Washington, D.C. for deposition. Employees of party
witnesses will be made available for deposition upon five days’ notice if reasonably possible,
though the deposing party will make a good-faith effort to provide at least seven business days’
notice. The parties and affected non-parties may stipulate to additional time for individual
depositions. Absent agreement of the parties, the length of depositions provided for in this
Scheduling Order may be modified only by order of this Court for good cause shown.
All depositions, including the depositions of Defendants’ employees taken by Plaintiffs
during Plaintiffs’ investigation of the Proposed Acquisition, may be used for all purposes under
Fed. R. Civ. P. 32 or Fed. R. Evid. 801(d)(2)(D). Depositions taken during the investigation of
the Proposed Acquisition do not count toward the limit of depositions.
8.

Nationwide Service of Trial Subpoenas. To assist the parties in planning

discovery and in view of the geographic dispersion of potential witnesses in this action outside
this District, the parties will be permitted, pursuant to 15 U.S.C. § 23, to issue trial subpoenas
that may run into any other federal district requiring witnesses to attend this Court. The
availability of nationwide service of process, however, does not make a witness who is
otherwise “unavailable” for purposes of Fed. R. Civ. P. 32 and Fed. R. Evid. 804, available
under those rules.

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9.

Discovery of Confidential Information. Discovery and production of

confidential information shall be governed by the Protective Order that the parties are
concurrently filing with the Court, after entry by the Court, and a copy of the Order shall be
included with any discovery requests, notices, or subpoenas directed to non-parties.
Once entered by the Court, the Protective Order shall be provided by Plaintiffs to all nonparties that produced Investigation Materials during Plaintiffs’ investigation of the Proposed
Acquisition. The non-parties shall have 15 days after receipt of a copy of the Protective Order in
which to review the Protective Order and designate Investigation Materials as confidential under
the Protective Order. If any non-party determines that the Protective Order does not adequately
protect its confidential Investigation Materials, it may, within 10 days after receipt of a copy of
the Protective Order, seek additional relief from the Court. If a non-party seeks additional relief
from the Court, the Investigation Materials for which additional protection has been sought will
not be produced until the Court has ruled. Otherwise, no non-party Investigation Materials shall
be produced to Defendants by Plaintiffs until 11 days after a non-party’s receipt of a copy of the
Protective Order unless, before then, the non-party that produced the Investigation Materials
indicates that it is satisfied with the terms of the proposed Protective Order. In these
circumstances, Plaintiffs shall produce to Defendants that non-party’s Investigation Materials as
soon as feasible. All materials so produced shall be treated as confidential under the Protective
Order until the non-party has had an opportunity to designate its materials as confidential or the
15-day period noted above has elapsed.
Investigation Materials in possession of the Defendants shall be produced no later than
fifteen days after entry of this Order.

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10.

Witness Lists. On or before October 14, 2011, the parties shall negotiate the

timing, method, manner, and content of the exchange of witness lists. Preliminary witness lists
shall be exchanged at the earliest possible time to ensure adequate opportunity for each side to
depose any witness on the opposing side’s witness list if that witness has not already been
deposed in this case. Despite the limitation on the number of depositions that each side may
take, each side shall have the right to depose any witness on the opposing side’s witness list if
that witness has not already been deposed in this case, even if the limitation on depositions is
exceeded.
11.

Expert Witness Disclosures and Depositions. Expert-related discovery will be

governed by Fed. R. Civ. P. 26, except as modified by this Order. Each side shall identify all
experts that it will call in its respective case-in-chief and defense case by [October 21, 2011/
December 9, 2011]. Each side shall identify all rebuttal experts by [November 11,
2011/December 28, 2011].
Plaintiffs’ case-in-chief expert reports will be delivered to Defendants by [November 1,
2011/January 11, 2012]. Defendants’ expert reports on efficiencies of the merger will be
delivered to Plaintiffs by [November 1, 2011/January 11, 2012]. Both sides will deliver
responsive expert reports to the other side by [November 15, 2011 /February 8, 2012]. Rebuttal
reports permitted by Fed. R. Civ. P. 26(a)(2)(D)(ii) will be delivered by [December 1,
2011/February 22, 2012]. Expert discovery, including each party’s expert reports, shall comply
with the requirements of Fed. R. Civ. P. 26(a)(2), except that neither side must preserve or
produce in discovery the following documents or materials:
a.

Any form of oral or written communication or correspondence between
any of Defendant’s counsel and its expert(s) or the Plaintiffs and their
expert(s), between testifying and non-testifying experts, or between
testifying experts.

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b.

Written communication or correspondence between an expert(s) and
the expert’s staff

c.

Expert’s notes, except to the extent that the notes reflect facts or
assumptions relied upon by the expert in the opinions contained in his or
her final report.

d.

Drafts of expert reports.

e.

Data formulations, data runs, or any database-related operations not
relied upon by the experts in the opinions contained in his or her final
report.

Depositions of each side’s experts will be conducted only after exchange of all of the
above-referenced reports and must be completed by [December 30, 2011/March 7, 2012].
Depositions of each expert witness may extend to two days in length.
12.

Service of Pleadings and Discovery on Other Parties. Service of all pleadings,

discovery requests, including Rule 45 subpoenas for testimony or documents, and delivery of
all correspondence in this matter will be made by email to the following individuals designated
by the parties (including principal designees for each side, noted with an asterisk (‘*’)) below:

For Plaintiff United States of America:
Matthew C. Hammond*
Tel: [phone]
[e-mail]
Katherine Celeste
Tel: [phone]
[e-mail]
U.S. Department of Justice, Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, DC 20001
Fax: [phone]

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For Plaintiff States:
Geralyn J. Trujillo*
STATE OF NEW YORK
Office of the Attorney General
Antitrust Bureau
120 Broadway, 26th Floor
New York, NY 10271
Tel: [phone]
Fax: [phone]
[e-mail]
David M. Kerwin*
STATE OF WASHINGTON
Office of Attorney General
Antitrust Division
800 Fifth Avenue, S. 2000
Seattle, WA 98104
Tel: [phone]]
Fax: [phone]
[e-mail]
For Defendant AT&T Inc.:
Steven F. Benz
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
Sumner Square
1615 M Street, NW, Suite 400
Washington, DC 20036
Tel: [phone]
Fax: (202) 326 - 7999
[e-mail]
For Defendants T-Mobile USA, Inc., and Deutsche Telekom AG:
Patrick Bock
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Tel: [phone]
Fax: [phone]
[e-mail]

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The serving party will telephone the other side’s principal designees when the materials
are sent to alert them that the materials are being served. Any party’s principal designee served
by email shall promptly confirm receipt. Electronic delivery with confirming receipt shall be
treated in the same manner as hand delivery for purposes of calculating discovery response
times under the Federal Rules. However, email service that is delivered after 6:00 pm EST,
shall be treated as if it was received the following business day.
Each side shall copy and produce materials obtained in discovery from any non-party
to the other side, including, as applicable, each Defendant and Plaintiff United States, within
three business days after receipt by the party initiating the discovery request.
13.

Privilege Issues. By separate order, the Court may designate a magistrate or

appoint a special master to review and rule on disputes pertaining to the Defendants claims of
privilege for documents listed in logs that they produced during the Investigation.
14.

Exhibit Lists. On or before December 2, 2011, the parties shall negotiate the

timing, method, and manner of the exchange of exhibit lists, as well as a process for
stipulating to the authenticity and admissibility of proposed exhibits.
15.

Demonstrative exhibits, other than those to be used by experts, do not need to

be included on exhibit lists, but unless otherwise agreed or ordered, need to be served on all
counsel of record at least 48 hours before any such exhibit may be introduced, or otherwise
used, at trial. (1) Text-only powerpoint slides and (2) demonstratives created in court, need not
be pre-disclosed to the opposing party.

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16.

Trial Date. Date for the Pretrial conference and trial shall be set by the Court.

Pretrial proceedings shall be governed by this Court’s standing pretrial order and applicable
local court rules. The parties shall be prepared to begin trial on [January 16, 2012/March
19, 2012].
IT IS SO ORDERED.
DATED: September _____, 2011
________________________________
Ellen S. Huvelle
UNITED STATES DISTRICT JUDGE

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