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)

Exhibit A, Case No. 1:11-cv-01560
AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
District of KANSAS
UNITED STATES OF AMERICA, et al.
)
)
)
)
)
)

Plaintiff

v.
AT&T INC., et al.
Defendant

Civil Action No. Mi s c .
(If the action is pending in another district, state where:
District of Columbia, 1:11-cv-01560

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Sprint Nextel Corp., 6200 Sprint Parkway, Overland Park, KS 66251

..

00 Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material: See Attachment A for documents requested (which includes Exhibit 1
specifying the production format for electronically stored information). See
Attachment B for protective order.
Place:BDI Investigations, 5350 W. 94th
DateandTime:
Terrace, Overland Park, KS 66207

October 7, 2011 at 9:00 a.m.

D Inspection ofPremises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

I

Date and Timeo

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date: 9/2 6/2011
CLERK OF COURT

OR

Signature of Clerk or Deputy Clerk

Steven F.
The name, address, e-mail, and telephone number ofthe attorney representing(name ofparty) Defendant AT&T
Inc.

, who issues or requests this subpoena, are:

Steven F. Benz, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., 1615 M
Street, NW, Suite 400, Washington, DC 20036, [phone]
A0-88B

AO 888 (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of individual and title, if any)
was received by me on (date)

D I served the subpoena by delivering a copy to the named person as follows:
______________________________________________________ on

(dat~

__________________ ;or

D I returned the subpoena unexecuted because: ------------------------------------------------

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day's attendance, and the mileage allowed by law, in the amount of
$ __________________
My fees are$

for travel and $ ______________ for services, for a total of$

1 declare under penalty of perjury that this information is true.

Date: _______________
Server's signature

Printed name and title

Server's address

Additional information regarding attempted service, etc:

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1107)
(c) Protecting a Person Subject to a Subpoena.
(l)Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction - which may include lost
earnings and reasonable attorney's fees- on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises- or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii)These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party's
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party's officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person- except that,
subject to Rule 45(c )(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert's opinion or information that
does not describe specific occurrences in dispute and results from
the expert's study that was not requested by a party; or
(iii) a person who is neither a party nor a party's officer to incur
substantial expense to travel more than I 00 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45( c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under .
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b )(2)( C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) information Withheld A person Withholdmg subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty's failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

ATTACHMENT A

ATTACHMENT A
RULE 45 REQUESTS FOR PRODUCTION TO SPRINT
GENERAL INSTRUCTIONS
A.
These requests seek all responsive documents within your possession, custody, or
control, whether prepared by you or a third party.

B.
As used herein, the words "and" and "or" shall be construed both conjunctively
and disjunctively, and each shall include the other wherever such dual construction will serve to
bring within the scope of these requests any document which would otherwise not be brought
within its scope.
C.
As used herein, the singular forms shall include the plural and vice versa
wherever such dual construction will serve to bring within the scope of these requests any
document that would otherwise not be brought within its scope.
D.
As used herein, the words "any," "each," and "every" shall be construed to mean
individually and collectively wherever such dual construction will serve to bring within the
scope of these requests any document that would otherwise not be brought within its scope.
E.
Each request seeks production of all documents and things described, along with
any addenda, attachments, drafts, and non-identical copies, as found or located in your files,
tugdhe;r with a copy of the descriptive file folder or database category in its entirety.
F.
Electronically-stored information must be produced according to the parameters
set forth in the Electronically-Stored Information Protocol, attached hereto as Exhibit 1, with the
exception that any responsive ESI that has already been produced to United States Department of
Justice or the Federal Communications Commission may be produced in the same format in
which it was produced to these entities.
G.
If documents are withheld under claim of privilege or work product, you are
required to identify each such document and state the specific basis for the claim of privilege for
each document withheld by providing the following information: (1) the title, heading, or caption
ofthe document, if any; (2) the date appearing on the document, or, if no date appears thereon,
the date or approximate date on which the document was prepared; (3) a description of the
general nature of the document (e.g., whether it is a letter, memorandum, email, telephone log,
etc.) and the number of pages it entails; (4) the identity ofthe person who signed the document,
or, if it was not signed, the identity of the person who prepared it; (5) the identity of each person
to whom the document was addressed and the identity of each person to whom a copy was sent;
and (6) the identity of each person who has custody of a copy of each document.
H.
If any request cannot be responded to completely, respond to it to the extent
possible, specify the portion(s) that cannot be responded to, and explain why any such portion(s)
cannot be responded to.

1

I.
If you object to any request made herein as unduly broad, identify the categories
of documents within the scope of the request that you believe are properly discoverable, produce
all such documents, and state, with particularity, your reason for asserting that the remainder of
the request seeks documents that are beyond the scope of permissible discovery.

J.
Each request shall be construed independently and, therefore, no request shall be
construed to limit any other request.
K.

All documents produced should bear Bates labels.

L.
If any document requested has been lost, discarded, or destroyed, such documents
so lost, discarded, or destroyed shall be identified as completely as possible. Identification of
such documents shall include, without limitation, the information required above regarding
documents withheld under a claim of privilege, and date of disposal, manner of disposal, reason
for disposal, person authorizing disposal, persons having knowledge of the disposal, and the
persons disposing of the document.
M.
These requests are continuing in nature. If further information, evidence, or
documentation comes into your possession, custody, or control or is brought to the attention of
you or your attorneys or agents at any time subsequent to the service of any responses or
production of any documents, prompt and complete supplementation of the responses to these
requests and the corresponding production is required pursuant to the Federal Rules of Civil
Procedure.
N.
Unless otherwise stated, the relevant time period for all requests is from
September 1, 2009 to the present.

DEFINITIONS
A.
"This action" means the action filed by the United States of America against
AT&T, Inc., captioned United States v. AT&T, Inc., Case Number 1:11-cv-01560, pending in the
United States District Court for the District of Columbia.

B.
"Communication" means the transmittal of information or request for
information, including but not limited to any written contact between two or more people by
such means as letters, memoranda, facsimile transmissions, and e-mails and oral contact between
two or more people by such means as face-to-face meetings, telephone conversations, and voice
mail.
C.
"Company," "you," and "your" all mean Sprint Nextel Corporation and all
persons or entities acting or that have acted on its behalf, including, but not limited to divisions,
subsidiaries, holding companies, parents, successors, predecessors, and any other related entity
as well as its officers, directors, trustees, present and former employees, agents, affiliates, joint
ventures, partners, assigns, or any other representatives or other persons under their control,
expressly including, but not limited to, Boost Mobile and Virgin Mobile.
D.

"Complaint" means the Complaint filed in this action by the Plaintiffs.

2

E.
"Documents" shall include all information producible under Rule 34, including,
but not limited to, books, papers, records, letters, notes, schedules, tabulations, vouchers,
accounts, statements, financial statements, balance sheets, income or revenue statements, debt
summaries, profit-and-loss statements, spreadsheets, data bases, affidavits, memoranda, records,
communications, electronic mail ("email"), voicemail, facsimiles, "text" or SMS/MMS
messages, minutes, reports, abstracts, agreements, contracts, calendars, drafts, drawings,
photographs, blueprints, slides, sketches, video recordings, audio recordings, charts, graphs and
similar items, including originals, copies, or reproductions of any kind, and shall also include any
kind of transcript, transaction, or recording of any audio or visual presentation or communication
of any kind. The term "documents" shall further include other data compilations or
electronically-stored information of any kind, including data or information that can be obtained
or translated through detection devices or other means into any reasonably useable or readable
format. All documents stored or maintained in an electronic form should be produced in the same
electronic form in which they are stored or maintained in the regular course of business.
F.
"Electronically-Stored Information" or "ESI" means all documents that are stored
in any electronic medium from which information can be obtained.
G.
"Person" means any person and includes natural persons, corporations, firms,
partnerships, proprietorships, associations, joint ventures, firms and other enterprises or legal
entities.
H.
"Plaintiffs" means the Plaintiffs in this action: (a) the United States of America,
(b) the State ofNew York, (c) the State of Washington, (d) the State of California, (e) the State
of Illinois, (f) the Commonwealth of Massachusetts, (g) the State of Ohio, (h) the
Commonwealth of Pennsylvania, and all of their respective divisions, officers, directors, present
and former employees, agents and any other persons acting on their behalf.
I.
"Relating to" and "relate to" mean concerning, constituting, regarding, referring
to, describing, discussing, embodying, evidencing, memorializing, mentioning, recording,
studying, analyzing, reflecting, pertaining to, supporting, refuting, or with respect to.

J.
"AT&T" means AT&T, Inc. and all persons or entities acting or that have acted
on its behalf, including but not limited to divisions, subsidiaries, holding companies, parents,
successors, predecessors, and any other related entity as well as its officers, directors, trustees,
present and former employees, agents, affiliates, joint ventures, partners, assigns, or any other
representatives or other persons under their control.
K.
"T-Mobile" means T-Mobile USA, Inc., and all persons or entities acting or that
have acted on its behalf, including but not limited to divisions, subsidiaries, holding companies,
parents, successors, predecessors, and any other related entity as well as its officers, directors,
trustees, present and former employees, agents, affiliates, joint ventures, partners, assigns, or any
other representatives or other persons under their control.
L.
USA, Inc.

"Transaction" refers to the proposed merger between AT&T, Inc. and T -Mobile

3

M.
"Cell Site" refers to a site where antennas and other electronic communications
equipment are located to create a cell in a cellular network.
N.

"ARPU" means average revenue per user.

0.
"Brand Image" means customer perceptions, brand awareness, or "net promoter
score" for any mobile wireless service provider.
P.
"Chum" or "Chum Rate" means any measure of mobile wireless customers who
discontinue their use of a provider's mobile wireless services.
Q.

"CMA" means cellular marketing area.

R.

"CRU" means corporate responsibility user.

S.

"DAS" means distributed antenna system.

T.

"DMA" me~ns Designated Market Area.

U.
"Device" means any mobile devices used to access mobile wireless services,
including but not limited to cellular phones, smartphones, e-book readers, and tablet computers.
V.

"iDAS" means indoor distributed antenna system.

W.

"IRU" means individual responsibility user.

X.
"Mobile wireless service provider" or "provider" means any entity providing
mobile wireless services, including entities offering any mobile wireless service as a reseller of
such services.
Y.

"Mobile wireless services" or means mobile wireless voice, data, or text services.

Z.

"MSA" means metropolitan statistical area.

AA. "Network for mobile wireless services" refers to the network on which mobile
wireless voice, data, or text services are provided.
"Network Quality" refers to the measurement of voice accessibility, retainability,
BB.
voice quality, or reliability of a wireless network.
"Network Speed" refers to the measurement of download speed or upload speed
CC.
of a wireless network.
DD.

"oDAS" means outdoor distributed antenna system.

"Porting" means mobile wireless customers who discontinue their use of a
EE.
provider's mobile wireless services and transfer their telephone number to another provider.
FF.

"RSA" means rural service area.
4

GG. "Smartphone" refers to any mobile device that combines the functionality of a
mobile telephone with a handheld computer, including but not limited to devices utilizing RIM's
BlackBerry OS, Apple's iOS, Google's Android, Microsoft's Windows Phone, or Nokia's
Symbian.
HH. "Sub-national" refers to any area or region of the United States smaller than the
entirety of the United States, including, but not limited to, CMAs, RSAs, MSAs, DMAs,
counties, zip codes, and local, regional, state, or engineering markets.
REQUESTS FOR PRODUCTION TO SPRINT
1.
All requests, whether formal or informal, for information relating to the
Transaction, from: (a) the U.S. Department of Justice, (b) the Federal Communications
Commission, (c) the Office of the State Attorney General of any state, (d) the public utilities
commission of any state, or (e) any other federal, state or local government entity.
2.
All documents the Company produced to and any correspondence or
communication with: (a) the U.S. Department of Justice, (b) the Federal Communications
Commission, (c) the Office of the State Attorney General of any state, (d) the public utilities
commission of any state, or (e) any other federal, state or local government entity relating to the
Transaction.
3.

All documents analyzing the Transaction, including, but not limited to:
•

documents evaluating or analyzing the potential impact of the 'Transaction
on the Company or on consumers, other mobile wireless service providers,
or any other party;

•

financial, economic, engineering or technical models analyzing the effects
of the Transaction on price, quality, capacity, supply or demand
conditions, or any other economic variable, including any evaluations or
analyses of the efficiencies generated by the Transaction;

•

documents evaluating or analyzing the impact of the Transaction on
innovation in the mobile wireless business;

•

documents relating to the Company's plans to compete with AT&T and
other mobile wireless service providers post-Transaction;

•

documents evaluating or analyzing any actions the Company might take in
response to the Transaction;

•

documents relating to actions contemplated by the Company or any plans
it has formulated or considered, including any business combination with
T-Mobile, in the event the Transaction is not consummated.

5

4.
All documents relating to the Company's consideration of any merger,
acquisition, joint venture, or other business combination with T -Mobile, including, but not
limited to:
•

documents reflecting, referring or relating to the Company's reasons for
seeking such a transaction with T-Mobile, and any benefit or efficiency
contemplated from the transaction;

•

communications, discussions, or negotiations between the Company and
T-Mobile;

•

documents that reflect financial, economic, engineering or technical
models analyzing the effects of the proposed combination on price,
quality, capacity, supply or demand conditions, or any other economic
variable;

•

documents discussing the reasons that the transaction did not take place;
or

•

documents evaluating or analyzing the potential impact of such a business
combination on: (a) the Company, (b) its customers, subscribers or
consumers, (c) its investors, (d) its network for mobile wireless services,
(e) customers, subscribers or consumers of other mobile wireless service
providers, (f) other mobile wireless service providers, or (g) competition
and innovation in the mobile wireless ecosystem.

5.
All documents relating to transactions entered into from January 1, 2004 through
the present involving: (a) Nextel, (b) Virgin Mobile, (c) Clearwire, or (d) any other mobile
wireless provider, that: (i) the Company submitted to the U.S. Department of Justice in response
to Item 4(c) of the Notification and Report Form filed by the Company pursuant to the HartScott-Rodino Antitrust Improvement Act, or (ii) reflect any analysis of anticipated or achieved
efficiencies or synergies for such transaction.
6.
All documents analyzing, discussing, or assessing T-Mobile's competitive
position or significance.
7.
All documents regarding the Company's efforts, through each of its Sprint, Boost
Mobile or Virgin Mobile brands, to target or solicit T-Mobile customers, including documents
analyzing the actual or potential impact of such activities.
8.
All documents relating to any actual or proposed competitive response by the
Company (as a whole or through its Sprint, Boost Mobile, or Virgin Mobile brands) toTMobile's rate plans, pricing, advertising, service offering, device offering, or network offering
nationally or in any sub-national area.
9.
All documents relating to any actual or proposed competitive response by the
Company (as a whole or through its Sprint, Boost Mobile, or Virgin Mobile brands) to the rate

6

plan, pricing, advertising, service offering, device offering, or network offering ofMetroPCS,
Leap, US Cellular, Cellular South, or any other wireless provider nationally or in any subnational area.
10.
All business plans or other strategic plans relating to the Company's mobile
wireless services (for the Company as a whole or through its Sprint, Boost Mobile, or Virgin
Mobile brands) including, but not limited to, plans to enter or expand service into any geographic
area, plans to improve or increase market share (in total or in any segment), research and
development plans, marketing plans, plans to introduce new services, devices, or products, or
plans to improve existing services, products, or network capacity or quality.
11.
All documents relating to the Company's ability to compete (as a whole and
separately for its Sprint, Boost Mobile, or Virgin Mobile brands) with AT&T, T-Mobile,
Verizon, MetroPCS, Leap, or other mobile wireless service providers, including, but not limited
to, any competitive assessment or other description, analysis, or comparison with respect to
device offerings, network quality, features and functionality, pricing, chum, customer service, or
other dimension of competition.
12.
All studies, reports, or analyses that reflect the Company's, any other mobile
wireless service provider's, or wireless industry: (a) forecasts of usage demand for mobile
wireless services, (b) analyses or estimates of demand elasticities or other studies of such
demand, or (c) the determinants of demand for mobile wireless services.
13.
Documents sufficient to show any efforts by the Company to innovate or lead in
the adoption of any devices, network technology, pricing plans, or any other innovation.
14.
Documents sufficient to show all research and development activities in which the
Company has engaged in the past two years or plans to engage in the next 18 months either
independently or through joint ventures, partnerships, or other associations with other companies
or entities, including, but not limited to: (a) any manufacturer of devices, (b) any developer of
operating systems, (c) any developer of applications, or (d) any participant in the provision of
any type of network technology.
15.
Documents sufficient to identify the amount spent by the Company on: (a)
national advertising, and (b) local advertising (in any sub-national area, provided separately by
area) for any of the Company's mobile wireless services by month for the past three years.
16.
Documents sufficient to show all promotional or other advertising materials
created or used within the past two years that compare the Company's mobile wireless services
(through any of its Sprint, Boost Mobile, or Virgin Mobile brands) with services offered by any
other mobile wireless service provider on a national or sub-national level, including, but not
limited to, comparisons based on price, network quality, device portfolio, or customer service.
17.
All analyses, reports, studies or market research reports (including, but not limited
to, demographic and psychographic surveys) of consumers, subscribers, or customers relating to:
(a) consumer, subscriber or customer preferences or behavior in selecting mobile wireless
service providers; (b) the Company's brand image (including the Sprint, Boost Mobile, and
Virgin Mobile brands); (c) the mobile wireless services provided by the Company (including
7

through its Sprint, Boost Mobile, and Virgin Mobile brands), including, but not limited to,
network speed or quality, voice or data coverage, or customer service or; (d) the services of any
other mobile wireless service provider, including, but not limited to, network speed or quality,
voice or data coverage, or customer service; or (e) the brand image of any other mobile wireless
service provider.
18.
Documents sufficient to show: (a) all rate plans the Company has offered (through
each of its Sprint, Boost Mobile, and Virgin Mobile brands) at retail to consumers from January
1, 2008 to the present for any voice, text, and/or data service, including, but not limited to, the
rate plan price, type of service, the terms and conditions applicable to the rate plan, the types of
customers to whom the rate plan was available, geographic area in which the rate plan was
available, and the time period during which the rate plan was available; (b) the reasons for and
impact of any rate plan change by the Company, (c) the factors the Company uses to set its
pricing, and (d) any competitive responses to such rate plan change by any other mobile wireless
service provider.
19.
Documents sufficient to show all bids the Company has submitted for mobile
wireless services to business or government entities over the past three years, whether or not the
bid was successful, including, but not limited to, documents sufficient to show for each such bid:
(a) the name ofthe entity; (b) the date the Company submitted its bid; (c) the terms ofthe bid;
(d) the total contract value; (e) the number of lines; (f) the geographic scope; (g) the scope of
services requested; and (h) whether the Company was awarded the contract, and if not, the
identity of the winning bidder, ifknown.
20.
Documents sufficient to show for each of the Company's business and
government subscribers, by year for the past three years, the total lines, total revenue, geographic
locations, product or services purchased, price, and payment arrangements.
21.
Documents sufficient to show: (a) the identity of your business and government
customers; (b) the number ofthe Company's IRU and CRU subscribers, separately, by month for
the past three years, (c) the Company's ARPU for IRU and CRU subscribers, separately, by
month for the past three years, (d) the Company's chum rate for IRU and CRU customers,
separately, on a national basis and any sub-national basis tracked by the Company by month for
the past three years, and (e) the percentage of government or business contracts that include
Push-To-Talk service.
22.
All documents evidencing business or government wireless service RFPs or other
opportunities in which T-Mobile bid for the business or was a factor the Company considered or
responded to in its offering.
23.
Documents sufficient to show by year for each of the past five years both
nationally and in any sub-national area tracked by the Company: (a) the number of cell sites (i)
in service on the Company's network today, (ii) deployed in the last five years, or (iii) located on
third party structures and/or collocated with carriers or other third parties, (b) where the cell sites
are deployed, (c) the length oftime required to deploy the cell sites, (d) the number and location
of proposed cell sites that the Company has sought to deploy but has abandoned or not yet

8

completed deployment and the reasons for any such abandonment or lack of completion, and (e)
plans for deployment of cell sites in the next five years.
24.
Documents sufficient to show by year for each of the past five years: (a) the
number ofDAS deployments (i) in service on the Company's network today, (ii) deployed in the
last five years, (b) the location of the DAS deployments, (c) the length of time required for the
DAS deployments, (d) the number and location of proposed DAS deployments that the Company
has abandoned or not yet completed deployment and the reasons for any such abandonment or
lack of completion, and (e) plans for DAS deployment in the next five years.
25.
Documents sufficient to show by year for each of the past five years: (a) the
number ofWi-Fi hotspots (i) in service on the Company's network today, (ii) deployed in the
last five years, (b) where the Wi-Fi hotspots are deployed, (c) the length oftime required to
deploy the Wi-Fi hotspots, (d) the number and location of proposed Wi-Fi hotspots that the
Company has sought to deploy but has abandoned or not yet completed deployment and the
reasons for any such abandonment or lack of completion, and (e) plans for deployment ofWi-Fi
hotspots in the next five years.
26.
Documents sufficient to show by year for each of the past five years: (a) the
number offemtocells (i) in service on the Company's network today, (ii) deployed in the last
five years, (b) where the femtocells are deployed, (c) the length of time required to deploy the
femtocells, (d) the number and location of proposed femtocells that the Company has sought to
deploy but has abandoned or not yet completed deployment and the reasons for any such
abandonment or lack of completion, and (e) plans for deployment of femtocells in the next five
years.
27.
All documents relating to the Company's requirements for leasing or acquiring
cell sites, including, but not limited to, any analyses or plans to do so and the costs and timing
involved.
28.
All documents relating to the Company's analysis, use, or consideration of
"heterogeneous networks" as that term is used on pages 99 and 105 ofthe Company's Petition to
Deny the Transaction, filed with the FCC.
29.
Documents sufficient to show all actual or proposed plans for future upgrades or
expansions of the Company's mobile wireless voice or data network, including, but not limited
to, any future deployment of 4G network technology (through LTE technology, WiMAX, or
other 4G technology), allocation or acquisition of spectrum (directly or through affiliates,
subsidiaries, or other related companies), alternative backhaul arrangements, network
deployment cost projections, and network infrastructure build-out plans.
30.
Documents sufficient to show the Company's efforts to migrate subscribers across
network technology platforms (e.g., from 2G to 3G; from 3G to 4G), including, but not limited
to, any plans for such migration, any efforts undertaken to induce such a migration, any plans to
sunset 2G services, and any analyses of the impact of such efforts.
31.
All documents relating to any proposed or actual network capacity sharing or
leasing arrangements by the Company, including, but not limited to, any analyses of spectrum
9

leasing options, roaming or network sharing arrangements, and the costs and feasibility of such
options.
32.
Documents sufficient to show the Company's forecast or other analysis of
network capacity utilization at the national and sub-national level, including, but not limited to
projections of "spectrum exhaust" or the point in time at which the capacity utilization becomes
so high that the quality of service is significantly degraded.
33.
Documents sufficient to show in detail the Company's relationship with
Clearwire, including any governance rights or other legal rights with respect to Clearwire or
Clearwire's spectrum assets, and any commercial arrangements between the Company and
Clearwire including wholesale or resale agreements and spectrum leases.
34.
All documents relating to the Company's plans with respect to Clearwire,
including, but not limited to: (a) any plan or discussion of deploying or otherwise making use of
Clearwire' s spectrum assets in any geographic area, and the technology to be used in any such
deployment; or (b) plans with respect to any 4G L TE network deployment, including any role of
Clearwire or Clearwire's spectrum assets in any such plan.
35.
All contracts, agreements, or documents reflecting negotiations with device
manufacturers relating to exclusive or preferential rights for current or future device offerings,
including, but not limited to, offerings of devices that are under development.
36.
Documents sufficient to show smartphone sales and smartphone penetration, by
year tor the past three years, and projected sales and penetration in the next two years.
37.
Organization charts sufficient to identity all employees of the Company: (a) with
management-level responsibility for sales, marketing, pricing, network operations, (b)
performing merger and acquisition strategic planning functions relating to the mobile wireless
services offered by the Company, and (c) who are responsible for the negotiation of any
agreements relating to the procurement of devices to be sold by the Company at retail.
38.
Documents sufficient to show the Company's mobile wireless service demand
forecasts for the next five years for the Company as a whole and for each of its Sprint, Boost
Mobile, and Virgin Mobile brands, including forecasts of both subscriber growth and usage per
subscriber growth (separately for voice, data, and text) by network generation (e.g., 2G, 3G, 4G)
and type of subscriber (post-paid vs. pre-paid) nationally and for any sub-national areas tracked
by the Company.
39.
Documents sufficient to show the value of a customer to the Company (as a whole
and for each of its Sprint, Boost Mobile, and Virgin Mobile brands) over that customer's
lifecycle including the costs associated with acquiring a customer initially, the lifetime costs of
subscriber, and the lifetime revenue of a subscriber, separately by customer type (pre-paid, postpaid).
40.
Documents sufficient to show the number of subscribers and share of subscribers,
including the number of pre-paid, post-paid, wholesale and M2M/connected device subscribers,

10

for the Company and any other mobile wireless service providers, on a national basis and any
sub-national basis tracked by the Company by month for the past three years.
41.
Documents sufficient to show the number of gross additions, the number of net
additions, share of gross additions, and share of net additions for the Company and any other
mobile wireless service providers on a national basis and any sub-national basis tracked by the
Company by month for the past three years.
42.
Documents sufficient to show the Company's projections or forecasts for future
market share, share of gross adds, share of net adds, or chum rate for the Company and any other
mobile wireless service providers on a national basis and any sub-national basis tracked by the
Company
43.
Documents sufficient to show for the Company as a whole and separately for each
of(a) the Sprint brand, (b) the Boost Mobile brand, and (c) the Virgin Mobile brand, ARPU,
revenue per minute of use, revenue per bytes of data use, by category of plan and customer type
(e.g., consumer, government or business, and pre-paid), on a national basis and any sub-national
basis tracked by the Company by month for the past five years.
44.
Documents sufficient to show the ARPU for new subscribers by month for their
first two years of service for the Company as a whole and for each of its Sprint, Boost Mobile,
and Virgin Mobile brands.
45.
Documents sufficient to show the nature and amount of any discounts or
promotions, including, but not limited to, device subsidies and termination fee waivers, offered
by the Company on any mobile wireless service or device on a national basis and any subnational basis by month for the past three years, and their effect on customer acquisition or
retention for each of the Company's Sprint, Boost Mobile, and Virgin Mobile brands.
46.
Documents sufficient to show the rate of chum, rate of porting, number of
subscribers voluntarily terminating service (i.e. "disconnects"), and number of subscribers
porting to any other mobile wireless service providers (including any "port-in" or "port-out"
data) for the Company as a whole, and separately for the (a) Sprint brand, (b) the Boost Mobile
brand, and (c) the Virgin Mobile brand, on a national basis and any sub-national basis tracked by
the Company by month for the past three years.
47.
All analyses of substitution, chum or switching among mobile wireless service
providers for the Company, including, but not limited to: (a) analyses of the extent to which
chum or switching is correlated with or due to pricing, network quality, customer service, or
length of contract commitments, or the absence or availability of particular services or devices;
or (b) analyses of the extent to which particular marketing or promotional efforts by the
Company or any other mobile wireless service provider contributed to chum or subscribers
switching to or from the Company.

11

EXHIBIT 1
Electronically-Stored Information Protocol
I.

Definitions

A.

The definitions in Attachment A to the subpoena enclosed herewith are

incorporated as if set forth fully herein.
B.

"Control number" means the unique number permanently affixed to each page of

a document produced in TIFF-image format in litigation and means the unique number appearing
as the file name of a document produced in litigation where the document is produced in native
format.
C.

"Custodian" means a person who had custody of information or a document prior

to collection for production.
D.

"Electronic document" shall mean any document existing in electronic form,

including but not limited to word processing files (e.g., Microsoft Word), computer presentations
(e.g., PowerPoint slides), databases or spreadsheets (e.g., Excel), together with the metadata
associated with each such document.
E.

"Extracted text" is the equivalent of the typed content of a text-based electronic

document.
F.

"Load File" means a file or files issued with each production providing a map to

the images and metadata or objective coding contained within the production.
G.

"OCR" or "optical character recognition" refers to the result of the process by

which a hard copy document or an electronic document containing an image of text is analyzed
by a computer for the purpose of creating a plain text electronic document that contains the

textual content gleaned and recognized from the original hard copy document.
H.

"Metadata" shall include, but is not limited to, structured fields or information

stored with or associated with a given file. Non-limiting examples of specific fields of metadata
are set forth in the table at the end of this Exhibit 1.
I.

"Native file" shall mean the default format of a data file created by its associated

software program. For example, by default Microsoft Excel will produce' .xls' files, which is a
native format for Excel. Microsoft Word produces files with a' .doc' extension, which is a
native format of Word.

II.

General Format of Production

A.

Document Images. Documents that are produced, whether originally stored in

paper or electronic form, shall be produced in electronic image form in the manner as described
below. AT&T reserves the right to request that an alternative format or method of production be
used for certain documents, if such document is not susceptible to production in the format or
methods of production addressed herein. In that event, AT&T and the producing party shall
meet and confer to discuss alternative production requirements, formats, or methods.
B.

Control Numbering. Each production document shall consist of a unique

production prefix identifying the producing party and an 8-digit sequential number or range of
numbers, as appropriate. (Example: [Prefix]_OOOOOOOl). Where a document is produced in
image format, such control number and any confidentiality legend shall be "burned" onto each
document's image at a location that does not unreasonably obliterate or obscure any information
from the source document. Where a document is produced in native format, such control
number shall constitute the filename (along with the appropriate file extension).
C.

Production Volume. Each production shall be named using the production
2

prefix and a 3-digit sequential number. (Example: [Prefix]_001).
1.

The production volume should be the first directory volume on the root of

the production media.
2.

Production volume shall be defined by the production date, not the amount

of media that is contained in the production.
3.

The production volume description shall include the production volume

and the production date. (Example: [Prefix]_001-20110101).

D.

Production Media. The production media shall bear the production volume and

the following information on the label:
1.
2.

Volume

3.

Media count of production

4.

Media creation data

5.

Control number range

6.
E.

Case caption

Confidentiality designation

Production Directory. Each production directory should contain the following 4

sub-directories, which shall be saved on the root of each production media (CD/DVD or HD):
1.

Images Directory
a.

b.

Each image shall have the control number endorsed in the lower
right-hand comer of the document and any confidentiality
designation endorsed on the lower left comer of the document.

c.

2.

Shall contain single-page TYPE VI TIFF (Black and White) at 300
DPI or compressed .jpg format at 300 DPI (Color).

Each image file name shall correspond to the page's control
number on the image.

FullText Directory
3

a.

b.

Name each .txt file with the control number labeled on the first
page of each corresponding document (Example:
[Prefix]_00000000 1. txt).

c.

FullText is defined by the print setting and standard FullText
extraction tools.

d.

3.

Shall contain document-level FullText files and/or OCR (for
scanned images, documents that originated in hardcopy, or
redacted files).

FullText should be processed to contain page breaks that match the
corresponding image files.

LoadFiles Directory
a.

Shall contain the image load files for IPRO (.LFP), OPTICON
(.OPT or .LOG) and SUMMATION (.DII).
(1)
(2)

Modify the image load files to reflect the image location
information that is on the root of the production media.

(3)

b.

1 load file each per production volume.

Name the files the same as the production volume.
(EXAMPLE: [Prefix]_OOI.DII, [Prefix]_OOI.OPT,
[Prefix]_OOl.LFP).

Shall contain an extracted text control list file for summation (.1st).
(1)

c.

Format: DOC-ID, File Path\DOC-ID.txt. (Example:
[Prefix]_000000001, D: \Fulltext\[Prefix] 00000000 1. txt)

Shall contain a data file (.DAT) that contains metadata fields.
(1)

Use the following delimiters (standard Concordance
delimiters):
(a)
(b)

Text Qualifier: ASCII value (254) or [ p].

(c)
(2)

Field Separator: ASCII value (020) or [ ~].

Linebreak: ASCII value (174) or [ ® ].

Shall contain the metadata fields in the table at the end of
this Exhibit 1.

4

4.

DocLink Directory
a.

Shall contain native files for spreadsheets and presentation files
(Excel and Power Point documents).

b.

Each file should be named with the control number labeled on the
first image of each corresponding document (Example:
[Prefix]_ 00000000 l.XLS)

c.

In addition to producing native files for spreadsheets and
presentation files, a native file should be produced where the
producing party cannot convert the native file to a TIFF image for
production.

5

METADATA FIELDS
FIELDNAME

DESCRIPTION

PROD BEG

Beginning control number

PROD END

Ending control number

BEGATTACH

Beginning control number of family member

ENDATTACH

Ending control number of family member

CUSTODIAN

If applicable, provide custodian or source information for the document

PGCOUNT

Total p;:tge count per document

TYPE

Document file type

DOC EXT

File extension of original document

TITLE

Subject of e-mail or title of attachment or electronic loose file

DOCDATE

Document last modified date or document sent date

DOC TIME

Document last modified time or document sent time

FILE SIZE

Document file size in bytes

FILENAME

Attachment or electronic loose filename

AUTHOR

Author of document

RECIPIENT

Recipient of document

cc

Copies

BCC

Blind copies

6

FOLDERPATH Location of documents
FILELINK

Location of native file in volume, if provided

SHAIHASH

SHAl HASH of Electronic loose file or attachments

MESSAGEID

Internet message identifier

VOLUME

Production volume name

VOLDESC

Production volume description

7

ATTACHMENT B

Case 1: 11-cv-01560-ESH Document 24

Filed 09/15/11

Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FILED
SEP 15 2011
Clark, U.S. Distric-t & Bankruptcy
Courts for the District of Columtli;•

UNITED STATES OF AMERICA,

Plaintiff,
Civil No. 11-01560 (ESH)

v.
AT&T INC., T-MOBILE USA, INC., and
DEUTSCHE TELEKOM AG,

Defendants.

STIPULATED PROTECTIVE ORDER CONCERNING CONFIDENTIALITY
In the interests of (i) promoting an efficient and prompt resolution of this Action ; (ii)
facilitating discovery by the Parties litigating this Action; and (iii) protecting the Parties' and
non-parties' Confidential Information from improper disclosure or use, Plaintiff, the United
States, and Defendants, AT&T, Inc., T-Mobile USA, Inc., and Deutsche Telekom AG, have
stipulated to the provisions set forth below. Upon good cause shown, the Court, pursuant to Fed.
R. Civ. P. 26(c)(l)(G), ORDERS as follows:

A.

DEFINITIONS
As used in this Order:

1.
(a)

"Confidential Information" means the portions of any Investigation

Materials, documents, transcripts, or other material that contain any trade secret or other

Case 1: 11-cv-01560-ESH Document 24

Filed 09/15/11

Page 2 of 12

confidential research, development, or commercial information, as such terms are used in Fed. R.
Civ. P. 26(c)(l)(G).
(b)

"Defendants" means AT&T, Inc., Deutsche Telekom AG, and T-Mobile

USA, Inc., their divisions, subsidiaries, affiliates, partnerships and joint ventures, and all
directors, officers, employees, agents, and representatives ofthe foregoing.
(c)

"Disclosed" means shown, divulged, revealed, produced, described,

transmitted, or otherwise communicated, in whole or in part.
(d)

"Document" means documents or electronically stored information as

defined in Fed. R. Civ. P. 34(a).
(e)

"Investigation" means the Department of Justice's pre-Complaint inquiries

into the proposed acquisition ofT-Mobile USA, Inc. by AT&T, Inc.
(f)

"Investigation Materials" means documents or transcripts oftestimony

that (i) any non-party provided to any Party either voluntarily or under compulsory process
during the Investigation, (ii) any Party sent to any non-party during the Investigation, or (iii) that
Defendants have provided to Plaintiff during the Investigation.
(g)

"Parties" means collectively the plaintiff and defendants to this Action.

(h)

"Person" means any natural person, corporate entity, partnership,

association, joint venture, governmental entity, or trust.
(i)

"Plaintiff' means the United States of America, the Antitrust Division of

the United States Department of Justice, and representatives of the Antitrust Division ofthe
Department of Justice.

2

Case 1: 11-cv-01560-ESH Document 24

G)

Filed 09/15/11

Page 3 of 12

"Protected Person" means any person (including a Party) that has provided

Investigation Materials or that, voluntarily or under compulsory process, provides any
documents or testimony in this Action.
(k)

"This Action" means the above-captioned action pending in this Court,

including any pretrial, trial, post-trial, or appellate proceedings.

B.

DESIGNATION OF CONFIDENTIAL INFORMATION

2.

Within five business days after the Court's entry of this Order, Plaintiff shall send

by email, facsimile, or overnight delivery a copy of this Order to each non-party Protected
Person (or, ifrepresented by counsel, the Protected Person's counsel) that provided Investigation
Materials to Plaintiff.
If a non-party Protected Person determines that this Order does not adequately protect its
confidential Investigation Materials, it may, within ten days after receipt of a copy of this Order,
seek additional relief from the Court. If a non-party Protected Person seeks additional relief from
the Court, the Investigation Materials for which additional protection has been sought will not be
produced until the Court has ruled. No non-party Investigation Materials shall be produced to
Defendants by Plaintiffuntilll days after a non-party's receipt of a copy ofthis Order unless,
before then, the non-party Protected Person that produced the Investigation Materials indicates
that it is satisfied with the terms of this Order. In these circumstances, Plaintiff shall produce to
Defendants that non-party Protected Person's Investigation Materials as soon as feasible.
3.

A Protected Person may designate as "Confidential Information" any information

that it provides to any Party during this Action, to the extent such information constitutes
Confidential Information as defined in Paragraph 1(a) of this Order. Such designations constitute
a representation to the Court that such Protected Person believes, in good faith, that the
3

Case 1: 11-cv-01560-ESH Document 24

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Page 4 of 12

information so designated constitutes Confidential Information. Any production of documents or
testimony not designated as Confidential Information will not be deemed a waiver of any future
claim of confidentiality concerning such information if it is later designated Confidential
Information pursuant to Paragraph 6 of this Order. However, any such subsequent designation
will not retroactively prohibit the disclosure of any information for which disclosure was proper
when made.
4.

All transcripts of depositions and documents that Defendants provided to Plaintiff

during the Investigation will be treated as Confidential Information without the need for further
designation. Defendants may withdraw these designations at any time.
5.

Designation as Confidential Information of deposition transcripts and documents

produced during this Action is governed as follows:
(a)

Whenever discovery is sought by subpoena from a non-party in this

Action after entry of this Order, a copy of this Order shall accompany the subpoena.
(b)

All transcripts of depositions taken in this Action after entry of this Order

will be treated as Confidential Information in their entirety for l 0 days after the date a copy of
the final transcript has been made available to the deponent for review. Within three days of
receipt of the final transcript, the Party that noticed the deposition shall provide the final
transcript to the deponent. At any time during the I 0 days following receipt of the final
transcript, the deponent may designate testimony as Confidential Information, in compliance
with Paragraph 3 of this Order. Such designations (with reference to the page(s) and line(s) of
the final transcript) must be provided in writing by the person making such designations to
Plaintiff's and Defendants' counsel.

4

Case 1: 11-cv-01560-ESH Document 24

(c)

Filed 09/15/11

Page 5 of 12

A Protected Person that designates as Confidential Information any

document produced in this Action after entry of this Order must stamp or label each confidential
page of each document with the designation "CONFIDENTIAL." Ifthe entire document is not
Confidential Information, the Protected Person shall stamp or label only those pages that contain
Confidential Information. Where Confidential Information is produced in electronic format on a
disk or other medium that contains exclusively Confidential Information, the
"CONFIDENTIAL" designation may be placed on the disk.
6.

If a Party or Protected Person inadvertently fails to designate as Confidential

Information any documents or testimony, it may later so designate by notifying the Parties in
writing. After receiving such notice, the Parties shall thereafter treat the newly designated
information as Confidential Information. No prior disclosure of newly designated Confidential
Information shall violate this Order. However, in such circumstance, the disclosing Party will
cooperate with the Protected Person to retrieve copies distributed beyond as permitted by this
Order and otherwise take reasonable steps to mitigate the disclosure.
7.

If a Party receives a confidentiality waiver to allow a deponent that is not related

to the waiving Party to be questioned on information that would otherwise be Confidential
Information, that waiver (including identification of the specific Confidential Information to
which it pertains) must be disclosed to counsel for all other Parties as soon as practicable, but no
later than two business days prior to the deposition of the witness in question, unless good cause
for a later disclosure is shown.
8.

Any Party that objects to the designation as Confidential Information of any

documents or transcripts may notify the designating person in writing, copying all Parties. The
designating person shall then have 10 days from receipt of the notification to file a motion
5

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Page 6 of 12

seeking a Court order upholding the designation. The burden of proving that the designation is
proper under Rule 26(c)( 1)(G) shall be upon the person seeking to uphold the designation. lf a
motion is filed, the Parties shall continue to treat the designated Confidential Information at issue
as Confidential Information until the Court rules on the motion. If the designating person does
not seek an order within 10 days of receiving notice, or if the Court determines the designation of
Confidential Information to have been inappropriate, the challenged designation shall be
rescinded.

C.

SCOPE OF DISCLOSURE OF CONFIDENTIAL INFORMATION

9.

Except as authorized by this Order, information designated as Confidential

Information pursuant to this Order shall not be disclosed to any person other than the persons set
forth below, and may be disclosed to and used by the persons set forth below only in this Action:
(a)

the Court and all persons assisting the Court in this Action, including law

clerks, court reporters, and stenographic or clerical personnel;
(b)

United States Department of Justice attorneys and employees, and

independent contractors retained by the United States Department of Justice to assist in the
prosecution of this litigation or otherwise assist in its work;
(c)

outside counsel acting for Defendants in this Action, that counsel's

employees, and independent contractors assisting such outside counsel in the defense of this
Action;
(d)

authors, addressees, and recipients of particular information designated as

Confidential Information solely to the extent that they have previously had lawful access to the
particular information disclosed or to be disclosed;

6

Case 1: 11-cv-01560-ESH Document 24

(e)

Filed 09/15/11

Page 7 of 12

persons (and their counsel) Plaintiff or Defendants believes, in good faith,

to have had prior access to the Confidential Information, or who have been participants in a
communication that is the subject of the Confidential Information and from whom verification of
or other information about that access or participation is sought, solely to the extent of disclosing
such information to which they may have had access or that is the subject of the communication
in which they may have participated; provided that, unless and until the persons or their counsel
confirms that the persons had access or were participants, only as much of the information may
be disclosed as may be necessary to confirm the persons' access or participation; and
(g)

testifying or consulting experts retained by a Party to assist in the

prosecution or defense of this Action, including employees of the finn with which the expert or
consultant is associated or independent contractors to the extent necessary to assist the expert's
work in this Action.
Defendants wish to designate up to ten (total) in-house lawyers to have access to
Confidential Information. The Parties have not addressed this issue in this Order due to, among
other issues, the need to allow non-parties to be heard on the issues surrounding the production
of their confidential materials. Defendants reserve the right to move the Court to permit such
access. Non-parties, whose confidential materials have been produced to outside counsel for the
Defendants subject to the terms of this Order, do not waive the right to contest Defendants'
motion to permit in-house counsel to access these materials.
10.

Before any information designated as Confidential Information may be disclosed

to any person described in Paragraph 9(g) of this Order, he or she must first read this Order or
must have otherwise been instructed on his or her obligations under the Order by this Court or
counsel for a Party, and shall have executed the agreement included as Appendix A hereto.
7

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Counsel for the Party making the disclosure must retain the original of such executed agreement
for a period of at least one year following the final resolution of this Action. Each individual
described in Paragraph 9 of this Order to whom information designated as Confidential
Information is disclosed must not disclose that Confidential Information to any other individual,
except as provided in this Order.
11.

Nothing in this Order:
(a)

limits a person's use or disclosure of its own information designated as

Confidential Information;
(b)

prevents disclosure of Confidential Information by any Party to any

current employee of the person that designated the information as Confidential Information;
(c)

prevents disclosure of Confidential Information by any Party with the

consent of the person that designated the Confidential Information; or
(d)

prevents the Plaintiff, subject to taking appropriate steps to preserve the

further confidentiality of such information, from disclosing information designated as
Confidential Information (i) to duly authorized representatives of the Executive Branch of the
United States Government; (ii) in the course of any other legal proceedings in which the Plaintiff
is a party; (iii) to secure compliance with a Final Judgment that is entered in this Action; (iv) for
law enforcement purposes; or (v) as may be required by law.

D.

DISCLOSURE OF CONFIDENTIAL INFORMATION IN THIS ACTION

12.

If any documents or testimony designated under this Order as Confidential

Information is included in any pleading, motion, exhibit, or other paper to be filed with the
Cour:t, the Party seeking to file such material shall follow the procedures set forth in LCvR 5 .I 0)
of the Rules of the United States District Court for the District of Columbia. Nothing in this
8

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Order shall restrict any person, including any member of the public, from challenging the filing
of any Confidential Information material under seal.
13.

Disclosure at trial of documents and testimony designated as Confidential

Information is governed as follows:
(a)

Absent a ruling by the Court to the contrary, documents or deposition

testimony designated as Confidential Information by a Party or non-party that appear on an
exhibit list or in deposition designations, that are admitted into evidence at trial, will be disclosed
on the public record, and any examination relating to such information will likewise be disclosed
on the public record, after compliance with the following process:
(i)

Within seven days after the Parties file pretrial exhibit lists and

within seven days after the Parties file deposition designations, each Party shall ensure that each
non-party receives a written notice of any exhibits or designated deposition testimony listed by
that Party that the non-party designated as Confidential Information, including the documentproduction page numbers and/or page and line numbers of deposition testimony. The Party will
inform the non-party that, absent objection, that Confidential Information may be disclosed on
the public record.

(ii)

If a Party or non-party objects to potential public disclosure of all

or part of the information identified in the written notice, within seven days of the date on which
it received the notice, the Party or non-party shall identify to the notifying Party the information
designated as Confidential Information for which it seeks protection from public disclosure. The
Party or non-party objecting to public disclosure and the notifying Party shall attempt to resolve
their differences by, for example, redacting irrelevant Confidential Information. If no resolution
is reached and the Party or non-party continues to object to potential public disclosure of the
9

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information at trial, the Party or non-party must, within fourteen days after receipt of written
notice, file a motion for additional protection.
(b)

Absent a ruling by the Court to the contrary, documents or deposition

testimony designated as Confidential Information by a Party or non-party that do not appear on
an exhibit list or in deposition designations, that are admitted into evidence at trial, will be
disclosed on the public record, and any examination relating to such information will likewise be
disclosed on the public record, after compliance with the following process:
(i)

A Party must alert the Court before doing so that it intends to use

Confidential Information of a Party or non-party and that that Party or non-party is not on notice.
(ii)

At that time, the Court will determine whether to seal the

courtroom while such Confidential Information is being discussed.

(iii)

Within one day after the Party uses that Confidential Information,

that Party shall ensure that a non-party that designated the material receives a written notice of
same. The Party will inform the non-party that, absent objection, that Confidential Information
will be disclosed on the public record.
(ii)

If the Party or non-party continues to object to public disclosure of

the information at trial, the Party or non-party must, within seven days after receipt of written
notice, file a motion for additional protection
13.

All materials produced or exchanged in connection with this Action, inCluding but

not limited to Confidential Information, produced by a Party or non-party as part of this
proceeding shall be used solely for purposes ofthe conduct of this Action and shall not be used
for any business, commercial, competitive, personal, or other purpose.

10

Case 1: 11-cv-01560-ESH Document 24

14.

Filed 09/15/11

Page 11 of 12

Nothing in this Order shall prevent any person, including members of the public,

from petitioning the Court for reconsideration of a determination that any trial proceedings shall
not be on the public record.

E.

PROCEDURES UPON TERMINATION OF THIS ACTION

15.

Within 90 days after receiving notice of the entry of an order, judgment, or decree

terminating this Action, all persons having received information designated as Confidential
Information must either make a good-faith effort to return such material and all copies thereof to
the person that produced it, or destroy all such Confidential Information and certify that fact in
writing to that person. Counsel for the Parties will be entitled to retain court papers, deposition
and trial transcripts and exhibits, and work product, provided that Plaintiffs employees and
Defendant's counsel and such counsel's employees do not disclose the portions of court papers,
deposition transcripts, exhibits, or work product containing information designated as
Confidential Information to any person except pursuant to Court order or agreement with the
person that produced the information designated as Confidential Information. All Confidential
Information returned to the Parties or their counsel by the Court likewise must be disposed of in
accordance with this Paragraph. Nothing in this Paragraph restricts the rights of the Plaintiff,
under Paragraph 11 of this Order, to retain and use documents, information or other material
designated as Confidential Information for law enforcement purposes or as otherwise required by
law.

II

Case 1: 11-cv-01560-ESH Document 24

F.

Filed 09/15/11

RIGHT TO SEEK MODIFICATION
16.

see~ing

Nothing in this Order prevents any person, including members of the public, from

modification of this Order, upon motion made pursuant to the rules of this Court.

SO ORDERED:
this

Page 12 of 12

/o day or J.re(i0.w, 2011.
BY THE COURT:

Ellen S. Huvelle
U.S. District Judge

12