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

Filing 63

MOTION to Compel Responses by Sprint Nextel Corp. by AT&T INC. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Benz, Steven)

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.

Discovery Matter: Referred to
Special Master Levie

MOTION TO COMPEL RESPONSES BY SPRINT NEXTEL CORP.
TO DEFENDANT AT&T INC.’S RULE 45 SUBPOENA
AT&T Inc. hereby moves to compel responses by Sprint Nextel Corp. to AT&T Inc.’s
September 26, 2001 subpoena pursuant to Rule 45 of the Federal Rules of Civil Procedure. In
support of this Motion, AT&T Inc. submits a memorandum of points and authorities and a
proposed order.
Dated: October 21, 2011
Respectfully submitted,
/s/ Steven F. Benz____________________
Mark C. Hansen, D.C. Bar # 425930
Michael K. Kellogg, D.C. Bar # 372049
Steven F. Benz, D.C. Bar # 428026
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.
1615 M Street, NW, Suite 400
Washington, DC 20036
[phone]

Wm. Randolph Smith, D.C. Bar # 356402
Kathryn D. Kirmayer, D.C. Bar # 424699
Shari Ross Lahlou, D.C. Bar # 476630
Crowell & Moring, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
[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]
Counsel for AT&T Inc.

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.,
Discovery Matter: Referred to
Special Master Levie

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO COMPEL RESPONSES TO SUBPOENA
On September 26, 2011, AT&T issued a Rule 45 subpoena to Sprint seeking documents
highly relevant to the Department of Justice’s claims against AT&T. On October 12, 2011,
Sprint represented to Judge Huvelle that it was “willing to meet and confer” and “begin
producing documents as soon as possible” in response to AT&T’s subpoena. Nonetheless,
Sprint has refused to produce any responsive documents. Sprint claims that the subpoena
inappropriately seeks party discovery and that Sprint’s prior production to DOJ fully satisfies its
obligations regarding what it views as appropriate non-party discovery. Sprint is wrong.
AT&T’s subpoena to Sprint – like the similar subpoenas served on other carriers – seeks
appropriate non-party discovery. As the party resisting discovery, Sprint bears the burden of
showing that its compliance would be unduly burdensome, a burden it has wholly failed to meet.
The Court should compel Sprint to produce responsive documents without further delay.
SPRINT MUST PROMPTLY PRODUCE THE REQUESTED DOCUMENTS
Although it admits that AT&T’s subpoena seeks relevant documents, Sprint has not
produced a single document. See Declaration of Steven F. Benz (“Benz Decl.”) ¶ 2 & Ex. B.
Instead, Sprint contends that it is not required to comply with the subpoena because it is
duplicative of the production that Sprint made to DOJ during the merger review process. Id.,

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Ex. C. During meet-and-confers, Sprint claimed that AT&T must identify documents that are
responsive to its subpoena that Sprint did not produce to DOJ before Sprint is required to do
anything. And, notwithstanding an illusory offer to meet and confer on the scope, Sprint now
takes the position that its DOJ production “is more than [AT&T] ever would be entitled to under
the strictures of Rule 45.” Id. Sprint has no legitimate basis for failing to comply.
As an initial matter, Sprint’s claim that the subpoena represents “party discovery” is off
the mark. Sprint does not dispute the relevance of the material sought. And AT&T issued a
number of subpoenas to other non-party mobile wireless service providers, such as Verizon,
MetroPCS, and Leap Wireless, seeking similar categories of documents. See Benz Decl. ¶ 3.
Subpoenas – even those seeking broad document productions – are properly directed to nonparties to obtain relevant information in their possession. See Call of the Wild Movie, LLC v.
Does 1-1,062, 770 F. Supp. 2d 332, 354-55 (D.D.C. 2011) (denying motion to quash subpoena as
overbroad where information sought was central to plaintiff ’s case); Software Rights Archive,
LLC v. Google Inc., C.A. Nos. 2:07-CV-511 (CE) & CV08-03172RMW, 2009 WL 1438249, at
*2 (D. Del. May 21, 2009) (non-party witnesses are “ ‘subject to the same scope of discovery
under [Rule 45] as … a party to whom a request is addressed pursuant to Rule 34’ ”) (quoting
Fed. R. Civ. P. 45 advisory committee’s note (1991 Amendment)); United States v. IBM Corp.,
71 F.R.D. 88, 92 (S.D.N.Y. 1976) (denying motion to quash subpoena in antitrust case where
compliance would take “three to six months” and cost “tens of thousands of dollars”).
Further, as the party resisting discovery, Sprint bears the burden of establishing that
compliance with the subpoena would be unduly burdensome. See Irons v. Karceski, 74 F.3d
1262, 1264 (D.C. Cir. 1995) (“the party seeking to quash a subpoena bears a heavy burden” of
proving compliance would impose an undue burden); Northrop Corp. v. McDonnell Douglas
Corp., 751 F.2d 395 (D.C. Cir. 1984) (vacating order quashing subpoena based on failure to
establish that searching more than 900 cubic feet of hard copy documents would be unduly
burdensome); see also Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2459, at 446 (3d ed. 2008) (“[t]he burden of proving that a subpoena duces tecum imposes an
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undue burden is on the person who seeks to have it quashed”). Sprint has made no showing to
satisfy this burden.
Nor has Sprint demonstrated that its DOJ production in fact fully responds to AT&T’s
subpoena. AT&T has already identified a number of categories of responsive documents that
Sprint apparently did not produce to the DOJ, including documents created by employees of
Sprint’s Boost Mobile or Virgin Mobile brands, or by its “Enterprise” and “Wholesale” business
units. Neither Sprint nor the DOJ is entitled unilaterally to define the scope of discovery to
which AT&T is entitled. Having made no relevance objection and no showing of undue burden,
Sprint is required to comply.
CONCLUSION
Sprint received a proper non-party subpoena and is obligated to make a timely document
production in response. Discovery in this matter is proceeding rapidly and trial is fast
approaching. The Court should enforce AT&T’s subpoena and compel Sprint to begin
producing responsive documents immediately.

Dated: October 21, 2011

Respectfully submitted,

/s/ Steven F. Benz
Mark C. Hansen, D.C. Bar # 425930
Michael K. Kellogg, D.C. Bar # 372049
Steven F. Benz, D.C. Bar # 428026
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.
1615 M Street, NW, Suite 400
Washington, DC 20036
[phone]
Wm. Randolph Smith, D.C. Bar # 356402
Shari Ross Lahlou, D.C. Bar # 476630
Kathryn D. Kirmayer, D.C. Bar # 424699
Crowell & Moring, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
[phone]
3

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]
Counsel for AT&T Inc.

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7(m)
In telephone conferences and electronic mail exchanges, counsel for AT&T Inc. and
counsel for Sprint Nextel Corp. have met and conferred regarding AT&T Inc.’s Rule 45
subpoena. Sprint Nextel Corp. objects to the subpoena and refuses to comply. The parties are at
an impasse, and so AT&T Inc. filed this Motion. Sprint Nextel Corp. does not concur with the
relief sought. AT&T Inc. hereby represents that it has satisfied its obligation under LCvR 7(m)
to confer with opposing counsel on this Motion.

/s/ Steven F. Benz
Steven F. Benz

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CERTIFICATE OF SERVICE
I hereby certify that on October 21, 2011, I caused the foregoing Motion To Compel
Responses to Subpoena 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. A copy of the foregoing also shall be served via electronic
mail on:
Special Master

The Honorable Richard A. Levie
[e-mail]
[e-mail]
JAMS
555 13th Street, NW, Suite 400 West
Washington, DC 2004
Tel. [phone]
*With two hard copies by hand-delivery

United States of America

Claude F. Scott, Jr., [e-mail]
Hillary B. Burchuk, [e-mail]
Lawrence M. Frankel, [e-mail]
Matthew C. Hammond, [e-mail]
US Department of Justice
Antitrust Division
450 5th Street, NW, Suite 7000
Washington, DC 20001
Joseph F. Wayland, [e-mail]
US Department of Justice
950 Pennsylvania Avenue, NW, Suite 3121
Washington, DC 20530
Tel. [phone]

State of California

Quyen D. Toland, [e-mail]
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102

State of Illinois

Robert W. Pratt, [e-mail]
Illinois Office of the Attorney General
100 West Randolph Street
Chicago, IL 60601
Tel. [phone]
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State of Massachusetts

William T. Matlack, [e-mail]
Michael P. Franck, [e-mail]
Massachusetts Office of the Attorney General
1 Ashburton Place
18th Floor
Boston, MA 02108
Tel. [phone]

State of New York

Richard L. Schwartz, [e-mail]
Geralyn J. Trujillo, [e-mail]
Matthew D. Siegel, [e-mail]
New York Attorney General’s Office
Antitrust Bureau
120 Broadway
Suite 2601
New York, NY 10271
Tel. [phone]
Fax [phone]

State of Ohio

Jennifer L. Pratt, [e-mail]
Office of the Attorney General
Antitrust Division
150 E. Gay St
23rd Floor
Columbus, OH 43215

State of Washington

David M. Kerwin, [e-mail]
Washington State Attorney General
800 Fifth Avenue
Seattle, WA 98104
Tel. [phone]

Non-Party Sprint

Steven C. Sunshine, [e-mail]
Gregory B. Craig, [e-mail]
Tara L. Reinhart, [e-mail]
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, NW
Washington, DC 20005
Tel. [phone]

2

James A. Keyte (PHV), [e-mail]
Matthew P. Hendrickson (PHV),
[e-mail]
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
Tel. [phone]

/s/ Steven F. Benz
Steven F. Benz

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