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

Filing 69

Memorandum in opposition to re 67 MOTION to Quash Subpoena filed by AT&T INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B (Declaration of Steven F. Benz), # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Notice Regarding Filing of Sealed Material, # 10 Text of Proposed Order)(Benz, Steven) (Additional attachment(s) added on 11/3/2011: # 11 Exhibit 4 (FILED UNDER SEAL), # 12 Exhibit 5 (FILED UNDER SEAL) , # 13 Exhibit 6 (FILED UNDER SEAL)) (jf, ).

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.

AT&T’S OPPOSITION TO SPRINT’S MOTION TO QUASH
Pursuant to Special Master Order No. 1 (Oct. 29, 2011) [Docket No. 68], attached as
Exhibit A is a table delineating AT&T’s modifications of its Rule 45 subpoena to limit the
subpoena’s burden on Sprint while ensuring that AT&T receives documents crucial to its
defense. Sprint has not satisfied the “heavy burden” it must meet to be relieved of its obligation
to comply with AT&T’s narrowed requests. Irons v. Karceski, 74 F.3d 1262, 1264 (D.C. Cir.
1995) (per curiam).
Most of AT&T’s requests simply seek a “refresh” of document categories already
provided to the Department of Justice (“DOJ”). Sprint claims that bringing its production up to
date would require the disclosure of an additional 440,000 pages of material. But Sprint makes
no showing that an updated production would impose on it any particularized hardship not
shared by the many other wireless service providers that have dutifully complied with AT&T and
DOJ subpoenas. See, e.g., Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332,
355 (D.D.C. 2011) (denying motion to quash where subpoenaed non-party claimed compliance
would “ ‘overwhelm’ its capacity and ‘completely absorb [its] resources for many months’ ”).

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To arrive at the figure of 440,000 pages, moreover, Sprint extrapolates from the size of its
production to DOJ, which it claims totaled 2.2 million pages. Sprint, however, produced only
141,098 documents comprising 792,029 pages, along with various databases containing data that
cannot meaningfully be measured in pages. Declaration of Steven F. Benz (“Benz Decl.”) ¶ 10,
attached hereto as Ex. B. Thus, even if one were to accept Sprint’s questionable method of
extrapolation, a refresh of Sprint’s entire production would require Sprint to produce only an
estimated 28,220 documents, or approximately 158,406 pages. AT&T, moreover, has limited its
request for a refresh to 26 requests. Any resulting “burden” is appropriate in light of the scope of
the case and the potential importance of the documents sought. See West Bay One, Inc. v. Does
1-1,653, 270 F.R.D. 13, 14 (D.D.C. 2010).
Sprint further claims that some documents generated since AT&T and T-Mobile
announced their merger are likely to be privileged. But AT&T is not challenging Sprint’s right
to exclude privileged documents, and modern technologies greatly facilitate such segregation.
AT&T is willing to discuss ways in which the burden of preparing a privilege log might be
minimized, and it will abide by the procedures regarding inadvertently produced privileged
documents provided in the federal rules. No precedent supports wholesale rejection of a
subpoena because some responsive documents may be privileged.
Balanced against any modest burden that Sprint might bear is the extreme relevance of
the information sought. Newly generated documents are among the materials most relevant and
important to the issues in this case. Sprint is a strong and vibrant competitor as evidenced by
events in the past six months – a fact that is critical to AT&T’s defense of DOJ’s claim that the
challenged merger would dampen competition in the mobile wireless industry. For example,
Sprint began selling the iPhone on October 14, 2011, and “reported its best ever day of sales”

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with this launch. Benz Decl. Ex. 1. On October 26, Sprint announced that, in the third quarter of
2011, it achieved the highest total company wireless net subscriber additions in more than five
years. Id., Ex. 2. And Sprint has made a number of announcements in October about the future
of its network, its path to LTE, and its relationship with Clearwire – all issues that bear directly
on the competitive landscape issues underlying DOJ’s claims. Id., Ex. 3.
Finally, Sprint’s argument that AT&T should be limited to documents that DOJ thought
were relevant to its case and that Sprint provided to support the DOJ case is unpersuasive.*
While DOJ served follow-up subpoenas on several other wireless service providers, it did not
serve one on Sprint. That is no doubt because Sprint fully cooperated with the government and
negotiated a production that would be beneficial to DOJ’s case and continues to work with DOJ
on its case. AT&T is entitled to obtain the information it needs to defend that case and to have
that information be timely. Its modified requests are reasonable and well within the bounds of
Rule 45 discovery.
AT&T respectfully requests that Sprint’s motion to quash be denied and that Sprint be
compelled to produce the documents requested in the attached table without further delay. A
Proposed Order is attached.

*

Sprint’s reliance on the CID to demonstrate what it previously produced ignores the
modifications that DOJ made in which it deferred significant portions of the CID. See Benz
Decl. Exs. 4-6.

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Dated: November 2, 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.

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CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2011, I caused the foregoing AT&T’s Opposition to
Sprint’s Motion To Quash 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]

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Non-Party Sprint Nextel Corp.

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]
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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