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

Filing 51

Memorandum in opposition to re 34 MOTION to Intervene filed by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order Proposed Order Denying Google Inc.'s Motion for Additional Relief Under the Protective Order)(Hill, Christine)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.
AT&T INC., T-MOBILE USA, INC.,
and DEUTSCHE TELEKOM AG,

Civil Action No. 11-01560 (ESH)
(Referred to Special Master Levie)

Defendants.

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO GOOGLE’S
MOTION FOR ADDITIONAL RELIEF UNDER THE PROTECTIVE ORDER
This case is large and complex: it will involve developing and presenting at trial a
significant amount of nonparty evidence. The Protective Order governs more than 100
nonparties, which must be treated evenly and consistently. Modifications to the Protective
Order are thus appropriate only in unusual circumstances where the asserted concerns
outweigh the burdens.
The three modifications Google seeks do not meet that standard. The Protective
Order already affords a high degree of protection for confidential information, and the
requested modifications would impede the parties’ ability to prepare expeditiously for, and
present this matter at, trial. Accordingly, the United States, Plaintiff States, and Plaintiff
Commonwealths (collectively, “Plaintiffs”) oppose Google’s Motion for Additional Relief
under the Protective Order.
Two modifications Google requests concern confidential information in court
filings and hearings. Specifically, Google asks the Court to order the parties to provide

nonparties: (1) three days’ notice before confidential information is filed or discussed
during a pretrial proceeding; and (2) one day’s notice before confidential information not
included on an exhibit list or a deposition designation is discussed at trial.
Both modifications are unnecessary since confidential information to be filed or
discussed at a court hearing is already provided significant protection. First, parties are
required to file confidential information under seal. (Amended Stipulated Protective Order
Concerning Confidentiality (“Protective Order”) ¶ 12 (Oct. 4, 2011).) Thus, providing
advance notice of a filing does not provide additional protection. Second, before
confidential information is discussed at a pretrial hearing, parties can ask the Court to seal
the courtroom or the Court can seal it. Third, parties must alert the Court before discussing
confidential information at trial and, at that time, the Court will determine whether to seal
the courtroom. (Id. ¶ 13(b)(i), (ii).) Fourth, after the use of confidential information at
trial, a nonparty can object to the inclusion of that information on the record. (Id. ¶ 13(b).)
Moreover, Plaintiffs told Google during the meet-and-confer process that Plaintiffs
will endeavor to provide Google the notice it seeks. That can be accomplished, for
instance, by informing Google if its documents become the subject of pretrial motion
practice. No modification of the Protective Order is necessary to obtain this protection.
In light of the expedited schedule, however, it is impractical to require by Court
Order that the parties provide advance notice of every instance where a confidential
document (which is otherwise receiving all protections afforded under the Protective
Order) might be used. For example, responses to discovery motions are due 48 hours after
the filing of a motion, and replies are due 24 hours after responses. (Referral Order ¶ 3

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(Oct. 7, 2011).) Moreover, oral argument may be held on short notice. Three days’ notice
is thus inconsistent with the expedited procedures already ordered. Further, it is
impossible to anticipate the ways a party may use documents or deposition testimony at a
hearing or trial. For example, the parties may need to make quick decisions regarding
information to use at trial for impeachment or at hearings in response to the Court’s
questions. And, even if the parties could anticipate such use, requiring them to identify
each document that could be used, notify nonparties, and undergo motion practice to
defend the use of those documents in the brief amount of time before trial or a hearing
imposes an impractical burden.
The third modification Google requests is a Court Order requiring the parties to
provide nonparties with five days’ notice before disclosing confidential information to
experts because Google is concerned that the experts might also be engaged by Google’s
competitors on other matters. This proposal is also unnecessary. Before receiving
confidential information, experts must agree, subject to contempt, to use that information
“only for the purpose of this litigation.” (Protective Order ¶ 9; App. A ¶¶ 2, 3.) Moreover,
the proposal would require the parties to reveal litigation strategies by disclosing nontestifying experts, and it would also require disclosing testifying experts before the dates
ordered for that disclosure. (Stipulated Scheduling and Case Management Order ¶ 11
(Sept. 23, 2011).)
Finally, Google has moved to intervene for the limited purpose of seeking relief
under the Protective Order. Plaintiffs do not oppose intervention for that limited purpose
but note that it is unnecessary because the Court has ordered that, “[i]f a non-party

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Protected Person determines that this Order does not adequately protect its confidential
Investigation Materials, it may . . . seek additional relief from the Court.” (Protective
Order ¶ 2.)
Dated: October 11, 2011

Richard L. Schwartz
Geralyn J. Trujillo
Mary Ellen Burns
Keith H. Gordon
Matthew D. Siegel
Counsel for the State of New York
David M. Kerwin
Jonathan A. Mark
Counsel for the State of Washington
Quyen D. Toland
Ben Labow
Counsel for the State of California
Robert W. Pratt
Chadwick O. Brooker
Counsel for the State of Illinois

Respectfully submitted,
/s/ Joseph F. Wayland
Joseph F. Wayland
Deputy Assistant Attorney General
/s/ Christine A. Hill
Christine A. Hill (D.C. Bar #461048)
Laury E. Bobbish
Claude F. Scott, Jr. (D.C. Bar #414906)
Kenneth M. Dintzer
Matthew C. Hammond
U.S. Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for the United States of America

William T. Matlack
Michael P. Franck
Counsel for the Commonwealth of Massachusetts
Jessica L. Brown
Counsel for the State of Ohio
James A. Donahue, III
Joseph S. Betsko
Counsel for the Commonwealth of Pennsylvania
José G. Díaz-Tejera
Nathalia Ramos-Martínez
Counsel for the Commonwealth of Puerto Rico

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CERTIFICATE OF SERVICE
I, Christine A. Hill, hereby certify that on October 11, 2011, I caused a true and
correct copy of the foregoing Plaintiffs’ Memorandum in Opposition to Google’s Motion
for Additional Relief under the Protective Order to be served via electronic mail on:
For Special Master Richard A. Levie:
Hon. Richard A. Levie (Ret.)
JAMS
555 13th Street, N.W.
Suite 400 West
Washington, D.C. 20004
Tel: [phone]
For Defendant AT&T Inc.:
Steven F. Benz
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
Sumner Square
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Tel: [phone]
For Defendants T-Mobile USA, Inc. and Deutsche Telekom AG:
Patrick Bock
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Tel: [phone]
For Nonparty Google Inc.:
Michael L. Keeley
Axinn, Veltrop & Harkrider LLP
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
Tel: [phone]

John D. Harkrider
Daniel Bitton
Axinn, Veltrop & Harkrider LLP
114 West 47th Street, 22nd Floor
New York, N.Y. 10036
Tel: [phone]
/s/ Christine A. Hill
Christine A. Hill
United States Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 8700
Washington, D.C. 20530