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 aI.,
Plaintiffs,

v.

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

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

DECLARATION OF STEVEN F. BENZ IN SUPPORT OF
AT&T'S MOTION TO COMPEL AND
AT&T'S OPPOSITION TO SPRINT'S MOTION TO QUASH SUBPOENA
Pursuant to 28 U.S.C. § 1746, I, Steven F. Benz, declare as follows:
1.

I am an attorney with the law firm of Kellogg, Huber, Hansen, Todd, Evans &

Figel, P.L.L.C., counsel for AT&T Inc., which is a defendant in the matter of United States v.
AT&T Inc., et al., Case No.1 :11-cv-01S60 (ESH). I have personal knowledge of the matters set

forth herein. I make this declaration in support of AT&T's motion to compel and its opposition
to Sprint's motion to quash the subpoena that AT&T served.
2.

Pursuant to the Special Master's email of October 26,2011, on October 27, I

along with co-counsel for AT&T met and conferred further with counsel for Sprint regarding
AT&T's subpoena that was served on Sprint on September 26,2011.
3.

During the meet and confer, we discussed each request of the subpoena. In the

interest of compromise and timely getting the documents that AT&T most needs to defend the
government's lawsuit, we indicated that, with respect to many requests, we would be willing to

accept Sprint's production to DOJ as fully responsive if Sprint would update that production to
the present.
4.

In other cases, we explained what we are looking for that was not included in

Sprint's production to DOJ and why we believe that we need it. We explained that we were
willing to focus our requests and that, in some instances when a request called for "all
documents," we would be willing to accept reasonably representative documents.
5.

At the end of the meet and confer, we outlined those requests that we considered

to be priorities for an updated production. We also indicated that we would be open to
discussing whether AT&T would be willing to accept an updated production as to those requests
alone.
6.

Counsel for Sprint agreed to consider our proposals but indicated that it is Sprint's

belief that AT&T already has more than it would normally be entitled to from a non-party by
virtue of Sprint's DOJ production.
7.

On October 28,2011, counsel for Sprint informed us that Sprint is not willing to

produce anything more in response to AT&T's subpoena, notwithstanding AT&T's narrowed
requests. Counsel also informed us that they would be filing a motion to quash AT&T's
subpoena later that day and would argue that complying even with AT&T's request to update
Sprint's production would be unduly burdensome.
8.

Sprint attempts to support its burden argument in part by relying on the size of its

production to DOJ as a predictor of the size of what its updated production to AT&T would be.
9.

AT&T's e-discovery vendor provided AT&T with an analysis of the composition

ofthe production Sprint made to DOJ in response to DOl's CID and subsequent modification
letters. That analysis provides additional information about the "more than 2.2 million pages" of

Sprint material referenced in Tara Reinhart's October 28,2011 declaration in support of Sprint's
motion to quash.
10.

Of the more than 2.2 million pages of Sprint material that DO] produced to

AT&T on September 27,2011, only 792,029 pages constitute copies of ordinary business
documents, such as Microsoft Outlook emails, Microsoft Word documents, Microsoft Excel
workbooks, and Microsoft PowerPoint presentations. These 792,029 pages account for only
141,098 documents. The remaining production - approximately 1.4 million pages - constitutes
raw data extracted from databases.
11.

Ofthe 792,029 pages of Sprint business documents that DO] produced on

September 27, a mere 700 documents account for more than 100,000 pages. Another
approximately 21,000 pages are attributable to approximately 7,500 Excel workbooks.
12.

Further, an initial review of Sprint's business documents indicates that Sprint's

production protocol to DO] was to produce two copies of each responsive PowerPoint
presentation - a version showing speaker notes and a version not showing speaker notes. More
than 356,000 pages ofDOJ's September 27 production of Sprint material represent PowerPoint
presentations. Assuming Sprint in fact produced two copies of every responsive PowerPoint
presentation, more than 178,000 pages represent mere duplicates, and thus present no additional
review burden.
13.

Attached hereto as Exhibit 1 is a true and correct copy of "Sprint Statement on

Launch Day Sales ofiPhone 4S and iPhone 4," a press release issued by Sprint dated October 14,
2011.
14.

Attached hereto as Exhibit 2 is a true and correct copy of "Sprint Nextel Reports

Third Quarter 2011 Results," a press release issued by Sprint dated October 26, 2011.

15.

Attached hereto as Exhibit 3 are true and correct copies of two articles from

FierceWireless: "Clearwire Back in Sprint's Good Graces," dated October 27,2011; and "Sprint
Close to Extending Clearwire Wholesale Deal," dated October 28,2011.
16.

Attached hereto as Exhibit 4 is a true and correct copy of a letter dated May 11,

2011, from counsel for the Department of Justice, Claude F. Scott, Jr., to counsel for Sprint,
Steven S. Sunshine, which identifies certain portions ofDOJ's requests to Sprint in its CID as
"priorities. "
17.

Attached hereto as Exhibit 5 is a true and correct copy of a letter dated May 19,

2011, from counsel for the Department of Justice, Kathleen S. O'Neill, to counsel for Sprint,
Tara S. Emory, which requests data from four types of databases that: (1) track performance
metrics, capacity, or financial metrics; (2) track current and future cell site data; (3) track
customer survey data; and (4) serve as the source of record for subscriber, billing, and product
information.
18.

Attached hereto as Exhibit 6 is a true and correct copy of a letter dated June 2,

2011, from counsel for the Department of Justice, Kathleen S. O'Neill, to counsel for Sprint,
Tara S. Emory, which defers any production from Sprint aside from the priorities identified in
the May 11, 2011 letter and the databases described in the May 19, 2011 letter.
EXECUTED on October 31, 2011.

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Steven F. Benz