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

Filing 52

MOTION to Intervene by SPRINT NEXTEL CORPORATION, CELLULAR SOUTH, INC., CORR WIRELESS COMMUNICATIONS, L.L.C. (Attachments: # 1 Text of Proposed Order to Motion to Intervene, # 2 Exhibit Joint Motion to Amend Protective Order, # 3 Text of Proposed Order to Joint Motion to Amend Protective Order, # 4 Exhibit to Joint Motion to Expedite, # 5 Text of Proposed Order to Joint Motion to Expedite, # 6 Declaration of Tara L. Reinhart, # 7 Exhibit 1-4 to Declaration of Tara L. Reinhart)(jf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

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Case No. 1:11-cv-01560-ESH

JOINT MOTION TO INTERVENE
Pursuant to Rule 24 of the Federal Rules of Civil Procedure, nonparties Sprint
Nextel Corporation, Cellular South, Inc., and Corr Wireless Communications, L.L.C. (hereinafter
“Petitioners”), jointly move to intervene as of right, or in the alternative, to permissively
intervene, for the limited purpose of seeking relief pursuant to Fed. R. Civ. P. 26(c) in the form
of an amendment to the Amended Stipulated Protective Order Concerning Confidentiality
(“Protective Order”) (Dkt. No. 42) entered in the above-captioned case. Petitioners, who are
plaintiffs in Sprint Nextel Corporation v. AT&T Inc., et al., Case No. 1:11-cv-01600-ESH, and
Cellular South, Inc., et al. v. AT&T Inc., et al., Case No. 1:11-cv-01690-ESH, seek to intervene
for the limited purpose of preventing the fundamental unfairness that would result from the
defendants’ sweeping discovery requests, and so that the U.S. Department of Justice may share
confidential information with Petitioners to efficiently prepare for expedited trial. Petitioners do
not seek intervention for any other purpose at this time.

WHEREFORE, Petitioners move for an Order permitting Petitioners to intervene
in this matter pursuant to Fed. R. Civ. P. 24 for the limited purpose of relief pursuant to Fed. R.
Civ. P. 26(c) in the form of an amendment to the Protective Order.

Dated: October 11, 2011

Respectfully submitted,

/s/ Chong S. Park
Chong S. Park (D.C. Bar No. 463050)
Kenneth P. Ewing (D.C. Bar No. 439685)
Matthew Kepniss (D.C. Bar No. 490856)
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, DC 20036-1795
Tel: [phone]
[e-mail]

/s/ Tara L. Reinhart
Steven C. Sunshine (D.C. Bar No. 450078)
Gregory B. Craig (D.C. Bar No. 164640)
Tara L. Reinhart (D.C. Bar No. 462106)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]

Alan W. Perry (pro hac vice)
Daniel J. Mulholland (pro hac vice)
Walter H. Boone (pro hac vice)
FORMAN PERRY WATKINS KRUTZ &
TARDY LLP
City Centre, Suite 100
200 South Lamar Street
Jackson, Mississippi 39201-4099
Tel: [phone]
[e-mail]

James A. Keyte (pro hac vice)
Matthew P. Hendrickson (pro hac vice)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036-6522
Tel: [phone]
[e-mail]
[e-mail]

Charles L. McBride, Jr. (pro hac vice)
Joseph A. Sclafani (pro hac vice)
Brian C. Kimball (pro hac vice)
BRUNINI, GRANTHAM, GROWER &
HEWES, PLLC
The Pinnacle Building, Suite 100
190 East Capitol Street
Jackson, Mississippi 39201
Tel: [phone]
[e-mail]

Counsel for Sprint Nextel Corporation

Counsel for Plaintiffs Cellular South, Inc. and
Corr Wireless Communications, L.L.C.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

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Case No. 1:11-cv-01560-ESH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
JOINT MOTION TO INTERVENE
Pursuant to Rule 24 of the Federal Rules of Civil Procedure, Sprint Nextel
Corporation, Cellular South, Inc., and Corr Wireless Communications, L.L.C. (hereinafter
“Petitioners”), hereby submit this Memorandum in Support of Petitioners’ Joint Motion to
Intervene. Petitioners, who are plaintiffs in Sprint Nextel Corporation v. AT&T Inc., et al., Case
No. 1:11-cv-01600-ESH; and Cellular South, Inc., et al. v. AT&T Inc., et al., Case No. 1:11-cv01690-ESH, submit this motion for the limited purpose of seeking relief pursuant to Rule 26(c)
in the form of an amendment to the Amended Stipulated Protective Order Concerning
Confidentiality (“Protective Order”) (Dkt. No. 42) entered in the above-captioned case (“DOJ
Case”). Because Petitioners wish to intervene only for the limited purpose of modifying the
Protective Order, this motion should be granted.
BACKGROUND
On August 31, 2011, the U.S. Department of Justice (“DOJ”) commenced the
above-captioned action against AT&T Inc., T-Mobile USA, Inc., and Deutsche Telekom AG

(hereinafter “Defendants”), challenging AT&T’s proposed acquisition of T-Mobile. On
September 6, Sprint filed its own private action challenging the acquisition, and, on September
19, Cellular South and Corr Wireless filed a related case also challenging the acquisition. On
September 21, this Court held a scheduling conference in the DOJ Case, and the nonparty
Petitioners participated. In the conference, the Court made decisions regarding the pretrial
schedule in the DOJ Case and also set a briefing schedule for motions to dismiss in the
Petitioners’ cases. The Court decided from the bench that discovery in the Petitioners’ cases
would be deferred pending the outcome of the motions to dismiss.
Despite the decision to defer discovery, AT&T served comprehensive Rule 45
subpoenas for documents on Petitioners in the DOJ Case. Although styled as third-party
discovery, the subpoenas are effectively party discovery that seek information relevant to all of
the claims in all three cases. Yet, because discovery is deferred in their cases, Petitioners may
not serve discovery on Defendants nor have access to the stores of documents produced in the
DOJ Case. Under these circumstances, AT&T now enjoys a significant advantage over
Petitioners in preparation for trial that may become insurmountable. For this reason, Petitioners
move to intervene to seek relief pursuant to Fed. R. Civ. P. 26(c).
Petitioners are mindful and respectful of the Court’s decision to defer discovery in
the Petitioners’ cases, and therefore they are not asking the Court to permit Petitioners to take
reciprocal discovery at this time. Instead, Petitioners’ motion asks only that the Protective Order
be amended to permit disclosure of Defendants’ confidential information to Petitioners’ outside
counsel and experts. Access to materials produced by Defendants to the DOJ will allow
Petitioners to prepare for trial on a roughly parallel track to that of Defendants, while also
allowing AT&T to take its requested discovery of Petitioners and causing no burden to the

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Defendants. Finally, the requested relief would allow the DOJ and Petitioners to share
information in fact development and expert preparation, which would greatly assist the parties in
meeting the expedited pretrial schedule.1
In telephonic conferences on October 6-7, 2011, Sprint and Cellular South
counsel sought a compromise with the Defendants, expressing a willingness to substantially
comply with AT&T’s de facto party request for production if the Defendants would allow
Petitioners to have access to materials provided to the DOJ. Reinhart Decl. ¶¶ 7-8. Despite the
fact that this proposal puts no burden on them, Defendants refused. Id. The parties are at an
impasse, and so Petitioners filed this motion to intervene.2
ARGUMENT
I.

PETITIONERS MAY INTERVENE AS OF RIGHT TO SEEK MODIFICATION
OF THE DOJ PROTECTIVE ORDER.
Petitioners may intervene as of right for the limited purpose of seeking

modification of the Protective Order because they “claim[ ] an interest relating to the property or
transaction that is the subject of the action” as provided by Fed. R. Civ. P. 24(a)(2). The
requirements for granting a motion for intervention are to be applied with flexibility. See United
States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1291 (D.C. Cir. 1980) (overturning the denial of a
motion to intervene of right to challenge a discovery order and explaining that Rule 24 was
designed to liberalize the right to intervene). Parties may intervene as of right if they satisfy the

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Petitioners understand that the DOJ supports Petitioners’ motion seeking access to materials provided by
Defendants to the DOJ through amendment of the Protective Order.

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Petitioners hereby represent to the Court that they have satisfied their obligation under LCvR 7(m) to confer
with opposing counsel on this motion as it pertains to this Joint Motion to Intervene, the Joint Motion to Amend
the Protective Order Pursuant to Rule 26(c) and the Joint Motion to Expedite, all being filed concurrently.
Defendants oppose those motions. Reinhart Decl. ¶ 8.

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following factors: (1) timeliness, (2) interest, (3) impairment of interest, and (4) inadequacy of
representation. Wildearth Guardians v. Salazar, 272 F.R.D. 4, 12-13 (D.D.C. 2010).
Petitioners’ motion to intervene satisfies these requirements. First, it is timely
brought. AT&T’s sweeping discovery requests are pending, and Petitioners are being harmed by
their lack of access to discovery in the DOJ Case. Second, Petitioners have an interest in the
litigation that is being impaired and is not adequately represented. Specifically, Defendants have
circumvented this Court’s decision to defer discovery in Petitioners’ cases by serving Rule 45
subpoenas on Petitioners in the DOJ Case. Petitioners have no access to discovery and, therefore,
cannot prepare for their trials at all. Yet, Petitioners cannot prevent Defendants from using the
DOJ Case discovery record, including documents responsive to the Rule 45 subpoenas, to
prepare for trials in Petitioners’ case. Thus, Petitioners satisfy the requirements of Fed. R. Civ. P.
24(a) to intervene as of right.
II.

PETITIONERS MAY PERMISSIVELY INTERVENE TO SEEK
MODIFICATION OF THE DOJ PROTECTIVE ORDER.
Federal Rule of Civil Procedure 24(b) provides that “[o]n timely motion, the court

may permit anyone to intervene who . . . has a claim or defense that shares with the main action a
common question of law or fact.” Courts in the D.C. Circuit have deemed a motion to intervene
permissively to be an appropriate vehicle for third parties seeking to modify a protective order.
In re Vitamins Antitrust Litig., Misc. No. 99-197-TFH, MDL No. 1285, 2001 U.S. Dist. LEXIS
25068 at *35 (D.D.C. Mar. 19, 2001) (“[L]ike every other circuit to consider the issue, this
Circuit has held that permissive intervention is the proper procedure for a non-party to seek
modification of a protective order”) (citation omitted).
Courts recognize three criteria in determining permissive intervention under Fed.
R. Civ. P. 24(b): (1) an independent basis for jurisdiction, (2) timeliness of the motion, and (3)
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commonality of questions of law or fact. Id. at *29-34. The Court should construe the
requirements for permissive intervention liberally and resolve all doubts in favor of permitting
intervention. See id. at *29 (citing Fed. R. Civ. P. 24); see also E.E.O.C. v. National Children’s
Ctr., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (holding that the requirements for granting
permissive intervention are to be interpreted with flexibility where a nonparty seeks to intervene
for the limited purpose of modifying a protective order).
The first factor, independent basis for jurisdiction, is satisfied where the party
seeking intervention wishes to modify a court’s previous order. See Nat’l Children’s Ctr., 146
F.3d at 1046; Am. Tel. & Tel., 642 F.2d at 1295. Petitioners meet this requirement because they
seek to intervene for the limited purpose of modifying the Protective Order entered by this Court.
Second, Petitioners have filed this motion to intervene in a timely manner. Timeliness is judged
in consideration of all circumstances, including the status of the case, the purpose of intervention,
the need for intervention to preserve the applicant’s rights, and prejudice to existing parties. In
re Vitamins Antitrust Litig., 2001 U.S. Dist. LEXIS 25068 at *31-32. Petitioners’ motion is
timely, as AT&T’s sweeping “party” discovery request is pending, even as Petitioners are
excluded from all discovery.
Finally, Petitioners’ complaints were filed as related cases under LCvR 40.5(a)(3)
because they involve common issues of fact and grow out of the same transaction. Moreover,
the Joint Motion to Amend the Protective Order Pursuant to Rule 26(c) “presents a common
question that links the [Petitioners’] challenge with the main action.” Id. at *32-33 (quoting
Nat’l Children’s Ctr, 146 F.3d at 1047) (explaining that courts take a liberal approach in
determining whether parties seeking intervention meet the common question requirement). As is
evident from AT&T’s broad discovery requests to Petitioners, as well as from Petitioners’ Joint

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Opposition to Defendants’ Motions to Dismiss the Complaints of Sprint and Cellular South filed
on October 7, 2011, the DOJ Case and Petitioners’ cases overlap significantly. See Joint
Opposition to Defendants’ Motions to Dismiss the Complaints of Sprint and Cellular South,
Sprint, Case No. 1:11-cv-01600-ESH (D.D.C. Oct. 7, 2011), ECF No. 26; Joint Opposition to
Defendants’ Motions to Dismiss the Complaints of Sprint and Cellular South, Cellular South,
Case No. 1:11-cv-01690-ESH (D.D.C. Oct. 7, 2011), ECF No. 26. AT&T’s subpoenas and,
indeed, the entire discovery record in the DOJ Case, are relevant to all three related cases.

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CONCLUSION
For the foregoing reasons, Petitioners respectfully request that the Court grant
Petitioners’ Motion to Intervene as of right, or to intervene permissively, for the limited purpose
of seeking modification to the Protective Order so that Petitioners’ counsel and experts may have
access to materials produced by Defendants to the DOJ.
Dated: October 11, 2011

Respectfully submitted,

/s/ Chong S. Park
Chong S. Park (D.C. Bar No. 463050)
Kenneth P. Ewing (D.C. Bar No. 439685)
Matthew Kepniss (D.C. Bar No. 490856)
STEPTOE & JOHNSON LLP
1330 Connecticut Avenue, N.W.
Washington, DC 20036-1795
Tel: [phone]
[e-mail]

/s/ Tara L. Reinhart
Steven C. Sunshine (D.C. Bar No. 450078)
Gregory B. Craig (D.C. Bar No. 164640)
Tara L. Reinhart (D.C. Bar No. 462106)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]

Alan W. Perry (pro hac vice)
Daniel J. Mulholland (pro hac vice)
Walter H. Boone (pro hac vice)
FORMAN PERRY WATKINS KRUTZ &
TARDY LLP
City Centre, Suite 100
200 South Lamar Street
Jackson, Mississippi 39201-4099
Tel: [phone]
[e-mail]

James A. Keyte (pro hac vice)
Matthew P. Hendrickson (pro hac vice)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036-6522
Tel: [phone]
[e-mail]
[e-mail]

Charles L. McBride, Jr. (pro hac vice)
Joseph A. Sclafani (pro hac vice)
Brian C. Kimball (pro hac vice)
BRUNINI, GRANTHAM, GROWER &
HEWES, PLLC
The Pinnacle Building, Suite 100
190 East Capitol Street
Jackson, Mississippi 39201
Tel: [phone]
[e-mail]

Counsel for Sprint Nextel Corporation

Counsel for Plaintiffs Cellular South, Inc. and
Corr Wireless Communications, L.L.C.
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CERTIFICATE OF SERVICE
I hereby certify that, on October 11, 2011, I caused the foregoing (1) Joint Motion to
Intervene and Memorandum of Points and Authorities in Support; (2) Joint Motion to Amend the
Protective Order Pursuant to Rule 26(c) and Memorandum of Points and Authorities in Support;
and (3) Motion to Expedite and Points and Authorities in Support to be filed via electronic mail
with the Clerk of Court. I also caused the foregoing documents or papers to be mailed via
electronic mail to counsel for the parties listed below:
Matthew C. Hammond
202-305-8541
[e-mail]
Katherine Celeste
U.S. Department of Justice, Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, DC 20001
202-532-4713
202-514-5381 (fax)
[e-mail]
Counsel for the United 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]
Representative Counsel for the Plaintiff States

Michael K. Kellogg
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, DC 20036
202-326-7902
[e-mail]
Counsel for AT&T Inc. and AT&T Mobility LLC

Mark W. Nelson
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, NW
Washington DC 20006
202-974-1622
[e-mail]
Counsel for Defendants T-Mobile USA, Inc., and Deutsche Telekom AG

/s/ Tara L. Reinhart
Tara L. Reinhart (D.C. Bar No. 462106)
Counsel for Sprint Nextel Corporation

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