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

Filing 58

Memorandum in opposition to re 52 MOTION to Intervene filed by AT&T INC., DEUTSCHE TELEKOM AG, T-MOBILE USA, INC.. (Hansen, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, et al.,
Plaintiffs,
v.

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

AT&T INC., et al.,
Defendants.

MEMORANDUM OF DEFENDANTS IN OPPOSITION TO
JOINT MOTION OF NON-PARTIES SPRINT NEXTEL CORPORATION,
CELLULAR SOUTH, INC., AND CORR WIRELESS COMMUNICATIONS, L.L.C.
TO AMEND THE PROTECTIVE ORDER
At the September 21, 2011 Status Hearing, this Court expressly rejected the request by
Sprint, Cellular South, and Corr Wireless (collectively, “Petitioners”) that they receive copies
of all discovery materials exchanged between Defendants and the United States. Undeterred,
Petitioners repeat that request and seek to amend the Protective Order to allow them to receive
those same discovery materials. This Court’s prior decision was correct, and nothing has
changed since the Status Hearing that would warrant reconsideration of that decision.
In particular, Petitioners are wrong to assert that Defendants are flouting this Court’s
decision to defer discovery in their separate cases against Defendants. Both the United States
and Defendants have followed the standard practice of serving subpoenas on non-parties,
including on wireless carriers. At the Status Hearing, this Court recognized that Petitioners
would likely be receiving such subpoenas. Moreover, Defendants have served subpoenas on
more than a dozen non-party wireless carriers, including Petitioners, all of which seek similar
categories of information.

The United States now supports Petitioners’ request, but for reasons that have nothing to
do with Petitioners’ separate complaints against Defendants. Instead, the United States claims
that it would benefit if it could augment its litigation efforts with lawyers paid for by Defendants’
competitors. The United States’ preference for this litigation advantage provides no reason to
grant special privileges under the Protective Order to three of the more than 100 non-parties that
are producing confidential information relevant to this case.
BACKGROUND
On March 20, 2011, AT&T Inc. (“AT&T”) entered into a stock purchase agreement to
acquire T-Mobile USA, Inc. (“T-Mobile”) from its parent company, Deutsche Telekom AG
(“DT”), and to merge the two companies’ mobile wireless telecommunications services
businesses. On August 31, 2011, the United States filed an action under § 7 of the Clayton Act,
15 U.S.C. § 18, seeking permanently to enjoin the transaction.
On September 6 and September 19, 2011, Petitioners filed their own complaints against
Defendants. At the September 21, 2011 Status Hearing, Petitioners asked to “obtain copies of ”
“any discovery materials that are exchanged between DOJ and AT&T.” Tr. 62:15-17.
Petitioners claimed that they would suffer “prejudice” to their separate complaints without the
same access to the discovery material as Defendants and asserted that there is “absolutely no
burden” to allowing them access to the confidential discovery materials. Tr. 63:18-20.
Petitioners also recognized that an amendment to the Protective Order the Court had entered on
September 15, 2011, would be required to permit them to receive Defendants’ and other nonparties’ confidential information. See Tr. 62:21-63:1. The Court denied that request, stating that
it was “certainly not ordering them to give you the documents.” Tr. 65:3-4; see Tr. 63:8 (“[I]t’s
gonna gum up the works.”).

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On September 30, 2011, Defendants moved to dismiss Petitioners’ complaints, pursuant
to the schedule set at the Status Hearing. As Petitioners have acknowledged, see Tr. 63:16-18,
their motion to amend the Protective Order will be moot if the Court grants Defendants’ motions
to dismiss.
ARGUMENT
I.

At the Status Hearing, the Court denied Petitioners’ request to have access to

discovery materials in this case, stating clearly that it was “certainly not ordering them” – that is,
the United States and Defendants – “to give you the documents” exchanged in discovery. Tr.
65:3-5. As the Court recognized, Petitioners’ proposal would “gum up the works,” Tr. 63:8, and
allowing Petitioners access to the discovery materials in this case “does make a difference on
how fast we go here,” Tr. 65:8-9.
Yet, even though the Court squarely rejected the relief that Petitioners seek through their
motion,* Petitioners never once acknowledge the Court’s ruling. Instead, Petitioners repeat the
same arguments that this Court rejected at the Status Hearing. Petitioners complain that, unless
they have access to all of the discovery material exchanged in this case, Defendants will “have
an insurmountable head start” for purposes of their own complaints. Mem. at 4; see id. at 6-7.
At the Status Hearing, Petitioners also claimed that “there is great risk [of ] prejudice here to our
private right of action” if they are denied access to the discovery materials in this case, so that
Petitioners “can begin work” on their own cases. Tr. 62:14-20; see Tr. 63:18-19.
*

Although Petitioners variously describe the relief they seek – as “access to materials
produced by the defendants to the DOJ” (at 2), “access to the same discovery record already in
Defendants’ possession” (at 4), and “access to documents covered by the Protective Order” (at 8)
– it is clear that Petitioners seek access to all of the confidential material produced in this case.
See id. at 10-11 (proposing specific amendments to the Protective Order that would grant outside
counsel for Petitioners access to all confidential information in this case).

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Petitioners assert that allowing them access to that material will impose no burdens,
because “[t]he DOJ would simply provide Petitioners with discovery materials produced” in this
case. Mem. at 7. At the Status Hearing, Petitioners also asserted that there would be “absolutely
no burden” in sharing discovery materials with Petitioners, because the documents in question
“are going to be turned over” in this case. Tr. 63:19-25.
Although the Court may reconsider interlocutory decisions “as justice requires,”
“[m]otions for reconsideration are not simply an opportunity to reargue facts and theories upon
which a court has already ruled.” Dalal v. Goldman Sachs & Co., 541 F. Supp. 2d 72, 75
(D.D.C. 2008) (internal quotation marks omitted), aff ’d, 575 F.3d 725 (D.C. Cir. 2009) (per
curiam). Petitioners’ repeated arguments therefore provide no basis for reconsideration.
II.

The one supposedly new fact on which Petitioners rely are the non-party

subpoenas that Defendants served on them. Petitioners claim that Defendants are
“circumvent[ing] the Court’s decision to defer discovery in the Petitioners’ cases” by serving
non-party subpoenas that, they assert, “seek what amounts to wholesale party discovery.”
Mem. at 1, 4.
But this Court recognized at the Status Hearing that Petitioners would face “subpoena[s]”
for “all your confidential information.” Tr. 40:20-22. Such subpoenas are commonplace in
cases like this. The fact that Defendants served subpoenas on Petitioners, therefore, does not
provide a basis for revisiting the Court’s decision at the Status Hearing. The United States has
already served subpoenas on approximately 70 non-parties; Defendants have already served
subpoenas on approximately 50 non-parties. Furthermore, both the United States and
Defendants have served subpoenas on multiple non-party providers of wireless service.

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Nor is there any merit to Petitioners’ claim that Defendants are using their subpoenas to
pursue the equivalent of party discovery. Defendants have served subpoenas on 13 non-party
wireless providers other than Petitioners. Those subpoenas are similar in breadth and scope to
the ones served on Petitioners. Petitioners complain (at 5-6) that Defendants’ subpoena to Sprint
includes 47 topics and its subpoena to Cellular South (which includes Corr Wireless) includes 24
topics. But Defendants’ subpoenas to other wireless providers contain a comparable number of
topics. For example, Defendants’ subpoena to Verizon Wireless contains 39 topics, to U.S.
Cellular contains 28 topics, and to Leap Wireless contains 27 topics. In addition, all of
Defendants’ subpoenas to the different non-party wireless providers contain topics in common.
Petitioners have not identified any respect in which Defendants’ subpoenas seek information that
is irrelevant to the claims and defenses in this case.
In short, as this Court anticipated at the Status Hearing, both the United States and
Defendants are using non-party subpoenas – including to wireless providers like Petitioners – to
prepare to prosecute and defend in the United States’ case. As the United States recently
explained, this is a “large and complex” case that “will involve developing and presenting at trial
a significant amount of nonparty evidence.” Plaintiffs’ Mem. in Opp. to Google Mot. at 1 (“U.S.
Google Opp.”) (ECF No. 51). As a result, the Protective Order already “governs more than 100
nonparties, which must be treated evenly and consistently,” and modifications to the Protective
Order are “appropriate only in unusual circumstances where the asserted concerns outweigh the
burdens.” Id. The routine non-party subpoenas that are the purported justification for
Petitioners’ renewal of their request to amend the Protective Order do not come close to
satisfying that appropriately demanding standard.

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III.

The United States supports Petitioners’ motion because it would like to augment

its litigation efforts with the work of privately funded counsel. See Plaintiffs’ Statement in
Support of Sprint et al. Mot. at 2 (ECF No. 54). The United States’ arguments – about how it
would be “efficient” and “useful” if Petitioners’ counsel could work in conjunction with the
Government’s lawyers, id. – have nothing to do with Petitioners’ status as plaintiffs in their own
cases, which is the ostensible basis for Petitioners’ motion. Indeed, the United States could have
made the same claims if Sprint and Cellular South had never filed their own suits. As the United
States recognized in opposing Google’s motion to amend the Protective Order, the “more than
100” non-parties to this case must be “treated evenly and consistently,” U.S. Google Opp. at 1;
that principle remains applicable even when it is the United States that would benefit if select
non-parties obtained special privileges under the Protective Order.
Moreover, like Petitioners, the United States neither acknowledges that this Court has
already rejected Petitioners’ request nor offers any reason why the Court should revisit the issue.
Notably, the United States had the opportunity to support Petitioners’ request at the Status
Hearing, but elected not to do so. See Tr. 62:13-65:9. It also remains the case that allowing
Petitioners access to all discovery in this case would “gum up the works,” Tr. 63:8, and “make[s]
a difference on how fast we go here,” Tr. 65:8-9. Those harms to the efficient administration of
this case clearly outweigh the United States’ desire to add additional counsel to its litigation
team, paid for by Defendants’ competitors.
CONCLUSION
The Court should deny Petitioners’ motion.

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Dated: October 17, 2011
Respectfully submitted,

/s/ Mark C. Hansen
Mark C. Hansen, D.C. Bar # 425930
Michael K. Kellogg, D.C. Bar # 372049
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.
1615 M Street, NW, Suite 400
Washington, DC 20036
[phone]
Richard L. Rosen, D.C. Bar # 307231
Donna E. Patterson, D.C. Bar # 358701
Arnold & Porter LLP
555 Twelfth Street, NW
Washington, DC 20004-1206
[phone]
Wm. Randolph Smith, D.C. Bar # 356402
Kathryn D. Kirmayer, D.C. Bar # 424699
Crowell & Moring, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
[phone]
Counsel for AT&T Inc.

George S. Cary, D.C. Bar # 285411
Mark W. Nelson, D.C. Bar # 442461
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Richard G. Parker, D.C. Bar # 327544
O’Melveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006
[phone]
Counsel for T-Mobile USA, Inc. and
Deutsche Telekom AG

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CERTIFICATE OF SERVICE
I hereby certify that, on October 17, 2011, I caused the foregoing Memorandum of
Defendants in Opposition to Joint Motion of Non-Parties Sprint Nextel Corporation, Cellular
South, Inc., and Corr Wireless Communications, L.L.C. To Amend the Protective Order to be
filed using the Court’s CM/ECF system, which will send e-mail notification of such filings to
counsel of record. This document is available for viewing and downloading on the CM/ECF
system.

/s/ Mark C. Hansen
Mark C. Hansen