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

Filing 67

MOTION to Quash Subpoena by SPRINT NEXTEL CORPORATION (Attachments: # 1 Statement of Compliance with Rule 7(m), # 2 Certificate of Service, # 3 Declaration of Tara L. Reinhart with Exhibits, # 4 Text of Proposed Order)(Reinhart, Tara)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:11-cv-01560-ESH
Discovery Matter: Referred to
Special Master Levie

MOTION TO QUASH SUBPOENA
After the close of briefing on AT&T’s motion to compel, the Special Master
requested the parties to meet and confer to try to resolve the dispute. Sprint’s and AT&T’s
counsel conferred via teleconference on October 27, 2011, reviewed Sprint’s specific objections
to each request, and failed to reach agreement. Specifically, AT&T still insists on obtaining
broad discovery from Sprint, despite the fact it already has a robust production that responds to
its requests. AT&T now asks that, at a minimum, Sprint “refresh” its existing production with
documents created during the past six months. Declaration of Tara L. Reinhart (“Reinhart Decl.”)
¶ 12. Given the breadth of AT&T's request and the privilege issues implicated by that request,
this new proposal would put an impermissible burden on Sprint. For that reason, the subpoena
should be quashed. The attached declaration describes the burdens that Sprint would face in
responding to AT&T’s subpoena. Sprint’s motion is timely; Sprint served objections on AT&T
on October 21, 2011. Id. ¶ 9.

ARGUMENT
In the most recent meet and confer, Sprint’s counsel described how the AT&T
subpoena overlaps with the U.S. Department of Justice (“DOJ”) Civil Investigative Demand
(“CID”) requests that resulted in a 2.2-million-page production to DOJ. AT&T has now had this
production for a month. Id. ¶ 6, Exs. 1 and 2. A side-by-side comparison of the AT&T
subpoena with the DOJ's CID categories confirms the overlap, and it demonstrates that AT&T’s
concern that some categories are not covered by the production is unfounded. Id., Ex. 3.
As in earlier discussions, AT&T was unable to state with any specificity what
additional information it needs. AT&T nonetheless continues to insist that it is Sprint’s burden
to identify responsive materials that may exist at the company but have not already been
produced. Id. ¶ 8. Sprint's position is the oppositive. Sprint believes that AT&T bears the
burden of reducing the scope of, or eliminating altogether, requests that are duplicative. Because
AT&T already has such a significant production on the same topics as its requests, it is
incumbent upon AT&T to identify what more it believes it needs so that Sprint can assess the
burden of collecting those additional materials. See In re Motion to Compel Compliance with
Subpoena Direct to DVA, 257 F.R.D. 12, 19 (D.D.C. 2009); Alexander v. FBI, 186 F.R.D. 12, 20
(D.D.C. 1998) (“The [nonparty] should not be forced to speculate as to the [ ] type or class of
documents plaintiffs are seeking”). Asking Sprint to do a “refresh” production does nothing to
alleviate these unjustifiable burdens on Sprint.
With its “refresh” request, AT&T’s counsel demands that Sprint search for and
produce an additional six months (from May 2011 to the present) of documents across many
diverse topics. To respond to such a request and to provide such an update would be extremely
burdensome. First, in terms of sheer volume, it would produce a significant review set. Reinhart

2

Decl. ¶¶ 13-14. Second, it would implicate serious and significant privilege issues. Many of the
topics included in the "refresh" relate directly to the subject of the DOJ and FCC regulatory
investigations. Predictably, a "refresh" request such as the one now proposed by AT&T would
generate numerous claims of privilege and work product protection. Id. ¶¶ 13, 15. Seeking such
a burdensome and problematic production from a nonparty is not only inefficient, it is wholly
inconsistent with AT&T’s pursuit of an expedited trial. As Judge Huvelle noted at the October
24, 2011, hearing, AT&T “ought to think twice about how greedy they are being, frankly, if they
want to go to trial.” Oct. 24 Hr’g Tr. 98:18-19.
The Special Master must weigh several factors, including “relevance, the need for
the documents, the breadth of the document request, the time period covered by such request, the
particularity with which the documents are described, and the burden imposed.” Wyoming v.
USDA, 208 F.R.D. 449, 453 (D.D.C. 2002). Based on the overlap between Sprint's production in
response to the CID and the requests of the AT&T subpoena, AT&T has already received more
in discovery from this nonparty than it would ever be entitled to under a Rule 45 subpoena. The
requested "refresh" imposes additional indefensible burdens on Sprint and does nothing to
alleviate AT&T's duplicative demands on this nonparty. For those reasons, the motion to quash
should be granted.

3

CONCLUSION
For the foregoing reasons, Sprint respectfully requests the Special Master to quash
the AT&T subpoena.

Dated: October 28, 2011

Respectfully submitted,
/s/ Tara L. Reinhart
Steven C. Sunshine (D.C. Bar No. 450078)
Gregory B. Craig (D.C. Bar No. 164640)
Tara L. Reinhart (D.C. Bar No. 462106)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
James A. Keyte (pro hac vice)
Matthew P. Hendrickson (pro hac vice)
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036-6522
Tel: [phone]
[e-mail]
[e-mail]
Counsel for Sprint Nextel Corporation

4