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

Filing 56

Order regarding Motion for Additional Relief under the Protective Order filed by Google, Inc. 34 , and the letters filed by Google 53 and by AT&T et al. 55 . Signed by Judge Ellen S. Huvelle on 10/13/2011.(AG)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
UNITED STATES OF AMERICA, et al.,
)
)
Plaintiffs,
)
)
v.
) Civil Action No. 11-1560 (ESH)
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AT&T INC., et al.,
)
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Defendants.
)
__________________________________________)
ORDER
Upon review of Google’s Motion for Additional Relief under the Protective Order, Sept.
26, 2011 [Dkt. No. 34-2] (“Google’s Motion”), and the letters filed by Google and by AT&T et
al. [Dkt. Nos. 53 and 55, respectively], the Court concludes:
1. Google’s Motion was timely filed prior to the entry of the Order of Referral, Oct. 7,
2011 [Dkt. No. 46].1 As such, in this particular instance with respect to this Motion only, it is
ORDERED that the parties are not bound by the timing and word limitations of the Order of
Referral.
2. Based on Google’s Motion, the Court has concerns regarding the effectiveness of the
Amended Stipulated Protective Order that is now in effect in terms of facilitating the expeditious
resolution of this case. These appear particularly acute when considered in the context of trial.
1

No one contests that Google’s Motion is timely. Google alleges that it received notice of the
first Stipulated Protective Order Concerning Confidentiality, which was entered on September
15, 2011 [Dkt. No. 24] (the “Original Stipulated Protective Order”), on September 16. (Google’s
Motion at 2.) Google’s Motion was filed on September 26, or “within ten days after receipt.”
(Original Stipulated Protective Order at ¶ 2). Although an Amended Stipulated Protective Order
Concerning Confidentiality was subsequently entered on October 4 [Dkt. No. 42] (the “Amended
Stipulated Protective Order”), it specified that for those nonparties that received notice of the
Original Stipulated Protective Order, such as Google, the Original Stipulated Protective Order’s
time periods control. (Id. at ¶ 2.)

For example, provisions in Paragraph 13(a) of the Amended Stipulated Protective Order allow
for as many as twenty-one days to pass between the filing of exhibit lists and deposition
designations and the filing of a motion seeking to prevent the public disclosure of allegedly
confidential information related to those lists and designations. This timetable appears
incompatible with the tight pretrial and trial schedules agreed upon by the parties.
In addition, Google’s Motion reveals possible ambiguities in the Amended Stipulated
Protective Order as between materials gathered by the government during its investigation and
discovery materials, and as to the treatment of these and other materials in pretrial and trial
proceedings.
Accordingly, it is ORDERED that the parties and Google meet with the Special Master
forthwith in order to devise a more practicable and comprehensive protective order. For this
limited purpose, the Special Master will assist the parties and Google in a non-adjudicative role.
In so ordering, the Court does not mean to suggest that any of Google’s proposed
modifications should be adopted. In particular, Google’s proposals regarding disclosure to
experts could interfere with defendants’ ability to prepare their case, violate Federal Rule of
Civil Procure 26(b)(4)(D), and provide for unnecessary litigation over objections to possible
experts. See Medtronic, Inc. v. Guidant Corp., Nos. Civ. 00-1473(MJD/JGL) &
Civ. 00-2503(MJD/JGL), 2001 WL 34784493, at *3 (D. Minn. Dec. 20, 2001), aff ’d, 2002 WL
171711 (D. Minn. Jan. 29, 2002). In addition, many of the notice provisions and timelines
suggested by Google appear to be unnecessary or overly cumbersome. The Court directs the
parties and Google to work with the Special Master to craft new procedures that will provide
simple and workable mechanisms for addressing the concerns of both parties and nonparties.

3. If the parties and Google are unable to reach an agreement on further modifications to
the Amended Stipulated Protective Order, it is ORDERED that Google shall file any reply on or
before Wednesday, October 19, 2011, in compliance with Local Rules 7(d) – (e), and the Court
will consider Google’s Motion at the status conference set for Monday, October 24, 2011, at 3:30
p.m.
SO ORDERED.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: October 13, 2011