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

Filing 72

STATUS REPORT Plaintiffs' Statement Respecting Trial Witnesses by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order Proposed Order Re: Trial Witnesses)(Hill, Christine)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA et al.,
Plaintiffs,
v.

Civil Action No. 11-01560 (ESH)

AT&T INC. et al.,
Defendants.

PLAINTIFFS’ STATEMENT RESPECTING TRIAL WITNESSES
This Court’s 9/23/11 Scheduling and Case Management Order required the parties,
“on or before October 14, 2011 [to] negotiate the timing, method, manner and content of
the exchange of witness lists.” Scheduling Order (9/23/11) at 7. The parties have reached
agreement on some matters, but not others. Plaintiffs now seek Court guidance so that
they may conduct their discovery and pretrial work in a focused manner. Specifically,
Plaintiffs ask the following:


The Court should order a staggered schedule for disclosure of potential
trial witnesses.



The Court should impose a trial fact witness limit of 20 per side. A
witness should “count” against the 20 witness limit regardless of whether a
party calls the witness live, submits the testimony in writing, or presents the
witness by deposition.



The parties should make simultaneous disclosures of their final trial
witness lists on January 22, 2011.



The Court should confirm that both sides must submit written direct
testimony of all trial witnesses whose written testimony they reasonably
can obtain, regardless of whether the particular witness is to be called by
the other side.

Plaintiffs have attempted to reach resolution on each of these issues in a manner
consistent with the Court’s prior rulings. Defendants’ positions, by contrast, reflect
fundamental disagreements with the manner in which this Court has decided the case
should be tried.
I.

MATTERS ON WHICH THE PARTIES DISAGREE
A.

The Court Should Enter A Staggered Schedule For Disclosure Of
Potential Witnesses

Plaintiffs propose a staggered schedule for disclosing potential trial witnesses as set
forth in their [Proposed] Order as follows:
November 15: Plaintiffs disclose 15 potential witnesses.
November 29: Defendants disclose 15 potential witnesses.
December 9: Plaintiffs disclose 15 additional potential witnesses.
December 16: Defendants disclose 15 additional potential witnesses.
Defendants, by contrast, propose that Plaintiffs should disclose all their potential
witnesses on November 15, while holding back their own list until December 6. This
proposal makes no sense: substantial document production and most depositions will not
be completed until well after November 15. For example, AT&T recently sought an
extension of time to complete its document production; most nonparty document
production is in the earliest stages; and depositions for many witnesses cannot reasonably
be conducted until after the document productions are completed. There simply is no
logical or legal basis to require Plaintiffs to identify all of their trial witnesses long before
the completion of discovery and well before Defendants must do so. Even the staggered
schedule that Plaintiffs propose is problematic for this very reason. But given the

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compressed schedule, the staggered schedule is a reasonable compromise.
Nor is there a basis to think that Defendants need to know Plaintiffs’ potential
witnesses before disclosing their own. Defendants may once again repeat their refrain that
Plaintiffs already completed their discovery before they filed the Complaint and that
Defendants are at some substantial disadvantage because of the Plaintiffs’ alleged head
start. These claims are false. Long before they made their HSR filings, Defendants had
completed substantial analysis of the antitrust issues. They had retained experts, identified
fact witnesses, and begun preparing thousands of pages of submissions to the FCC and the
DOJ shortly after the transaction was announced.1 Indeed, when Defendants responded to
Plaintiffs’ interrogatories regarding the basis for the narrative responses set forth in their
Answer, Defendants simply pointed to the literally dozens of submissions, including the
statements of experts and fact witnesses, that they had made before the Complaint was
filed.2 Defendants reasonably can be expected to identify an initial set of witnesses at the
same time as Plaintiffs; they certainly do not need to have all Plaintiffs’ witnesses
identified by November 15 in order to provide a partial list.
Nor is it correct, as Defendants imply, that the filing of a complaint signals the end
of Plaintiffs’ factual investigation. The Complaint sets forth allegations sufficient to state

1

 See AT&T Inc., Notification & Report Form for Certain Mergers & Acquisitions,
No. HSR-2011-0714 (DOJ & FTC filed 3/31/2011) (attaching 12 documents analyzing the
transaction); Deutsche Telekom AG, Notification & Report Form for Certain Mergers &
Acquisitions, No. HSR-2011-0713 (DOJ & FTC filed 3/31/2011) (attaching 22
documents).

2

 See Defendants’ Joint Responses to Plaintiffs’ First Set of Interrogatories,

Response to Interrogatory 1, at 6-8 (10/17/2011) (citing 20 submissions to the FCC and
DOJ). 

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a claim for relief; having done so, Plaintiffs are entitled to take discovery to gather the
admissible evidence necessary to prove facts at trial, including document discovery and
depositions. It is only then that Plaintiffs can make reasonable decisions about trial
witnesses. November 15 is certainly too early for identification of all of Plaintiffs’
potential witnesses.
B.

The Court Should Impose A Limit On The Total Number Of Trial
Witnesses

This Court repeatedly has told the parties to limit the number of depositions and
trial witnesses. Tr. 9/21/11 at 10:14-15, 22-23 (“[I]f the parties are interested in having a
speedy disposition of this matter, it’s not in anybody’s interest to overwhelm me. . . . You
may want to depose sixty witnesses, but I don’t want to hear from sixty.”) (emphasis
added). Plaintiffs suggest a limit of 20 trial witnesses per side (plus experts). Defendants
reject the notion of any numeric limit at all, favoring a time clock allotting total trial time
to each side.
Courts frequently impose numeric witness limits. See, e.g., United States v. H&R
Block, Inc., No. 11-948 (BAH), slip op. ¶ 3 (D.D.C. July 6, 2011). The power to do so is
unquestioned. Rule 403, for example, permits courts to limit witnesses to avoid “undue
delay, waste of time, and needless presentation of cumulative evidence.” See Fed. R. Evid.
403. And it makes sense to do so here. Both sides should decide which witnesses are
crucial, and put them on. Advance notice of the number of witnesses will discipline the
parties in their discovery, and focus the written direct and other testimony to be presented
to the Court.

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Defendants’ proposal for a time clock but no numeric limit creates numerous
opportunities for mischief. The absence of a numeric limit undermines the Court’s stated
desire not to hear from sixty witnesses. Without a numeric limit, Defendants may submit
unlimited amounts of written testimony knowing that their submissions may not “count”
against the time clock.3 Moreover, the time clock suggestion is premature. The parties do
not now know which witnesses they will call, and whose testimony will come in live rather
than in writing. Until they do, it is difficult to determine how much live court time to
allow, and how to allocate it fairly. The Court should impose a numerical limit now, and
revisit the possibility of a time clock later.
C.

The Court Should Require Simultaneous Exchange Of Trial Witness
Lists

The Court also should set a deadline for a simultaneous exchange of final trial
witness lists. Plaintiffs propose January 22. Defendants claim they need to see Plaintiffs’
witness list before confirming their own. But that is not the way trials work. The Local
Rules, for example, provide that parties must simultaneously file Pretrial Statements no
less than two weeks before trial that contains “a schedule of witnesses to be called by the
party.” See LCvR 16.5(b)(1)(iv). Defendants can provide no reason to abandon this
default practice here.

3

For this reason, the Plaintiffs also recommend that the Court, at an appropriate
time, consider a page limit governing testimony submitted in writing.

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D.

The Court Should Confirm That All Direct Testimony From Witnesses
Controlled By A Party Must Be In Writing

Defendants also do not want to submit written testimony for AT&T and T-Mobile
witnesses that Plaintiffs call in their case. But this Court already has determined that all
direct testimony that can be submitted in writing must be. The Court made this ruling
explicitly at the September 21, 2011 Status Conference:
In terms of the trial of this matter, I would like to see us do direct testimony
by declaration/affidavit; that includes experts and fact witnesses.
Tr. 9/21/11 at 7:5-8. Defendants apparently do not want to follow the ruling.
This is the nub of the dispute: Plaintiffs currently intend to call at least some
AT&T and T-Mobile employees as adverse witnesses in our direct case. Defendants now
assert that they do not need to submit written statements for such witnesses, even if they
appear on Defendants’ witness list. Instead, Defendants seek a rule that would allow them
to elicit unlimited live testimony from their own witnesses on cross-examination following
an adverse direct. They claim, in short, that they are relieved of the responsibility to
submit witness statements for anyone called as an adverse witness and they seek to elicit
what is essentially live, direct testimony under this guise.
But the Court has already ruled that “the case will be tried as a matter of crossexamination” Tr. 9/21/11 at 7:8-9. There is no basis under this ruling for Defendants to
avoid filing a written statement of direct testimony, or to examine their own witnesses
beyond the scope of any of adverse questioning by Plaintiffs. Tr. 9/21/11 at 16:6-9
(reiterating that a party cannot put on live direct simply because it wants to). The fact that
this ruling may require Defendants to submit a greater number of witnesses through written
direct does not render the ruling “unfair” – as the Court already has concluded. At the

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September 21, 2011 status conference, counsel for Plaintiffs reminded the Court that the
Plaintiffs likely would call adverse witnesses live, as well as “third parties . . . that are not
in our control.” Tr. 9/21/11 at 8:9-16. In response, counsel for AT&T argued that it is
unfair for the Plaintiffs “to call a whole bunch of live witnesses and put in a live case and
limit us to a paper case.” Tr. 9/21/11 at 14:2-3. AT&T specifically suggested that, rather
than the rule the Court actually adopted, the Court should instead adopt a rule providing
“equal opportunities on both sides to present live evidence.” Tr. 9/21/11 at 15:21-22.
The Court rejected the suggestion outright, and adopted the rule requiring written
direct examinations: “I can assure you it will be fair and balanced. But I can assure you
we’re going with declarations wherever possible.” Tr. 9/21/11 at 16:4-5. Defendants offer
no basis – no new facts, no new law – for revisiting the ruling. The Court therefore should
confirm that both sides must, in advance of trial, submit direct testimony in writing
“wherever possible” – regardless of whether the witness shows up on the other side’s
witness list. If either side calls as an adverse witness a person who has submitted written
testimony, the calling party will “cross” the witness, and any “redirect” must be limited to
the subjects of the “cross.
Finally, Defendants’ proposed order also requires that all nonparty testimony be
submitted by the proponent in writing, unless the witness is unavailable. Such a
requirement is unworkable. The Court’s prior ruling recognized that written direct
testimony is required “wherever possible.” Tr. 9/21/11 at 10:6 (emphasis added). That
means that if Plaintiffs are cooperating with a nonparty – a regional carrier, or a cable
company, or an AT&T competitor, for example – and the Plaintiffs reasonably can submit

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that nonparty’s direct testimony in writing, Plaintiffs will do so. But Plaintiffs expect there
are nonparties that one side or the other may want to call, but who may choose not to
cooperate with either side in preparing written testimony. Defendants’ proposal requiring
written testimony from nonparties in all cases does not account for this likelihood, and
therefore has the effect of categorically preventing the introduction of testimony from truly
“neutral” nonparties.
II.

CONCLUSION
For all the foregoing reasons, Plaintiffs requests that the Court enter the [Proposed]

Order, submitted herewith.

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Dated: November 4, 2011

Richard L. Schwartz
Geralyn J. Trujillo
Mary Ellen Burns
Keith H. Gordon
Matthew D. Siegel
Counsel for the State of New York
David M. Kerwin
Jonathan A. Mark
Counsel for the State of Washington
Quyen D. Toland
Ben Labow
Counsel for the State of California
Robert W. Pratt
Chadwick O. Brooker
Counsel for the State of Illinois

Respectfully submitted,
/s/ Joseph F. Wayland
Joseph F. Wayland
Deputy Assistant Attorney General
/s/ Christine A. Hill
Christine A. Hill (D.C. Bar #461048)
Laury E. Bobbish
Claude F. Scott, Jr. (D.C. Bar #414906)
Kenneth M. Dintzer
Matthew C. Hammond
U.S. Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for the United States of America

William T. Matlack
Michael P. Franck
Counsel for the Commonwealth of Massachusetts
Jessica L. Brown
Counsel for the State of Ohio
James A. Donahue, III
Joseph S. Betsko
Counsel for the Commonwealth of Pennsylvania
José G. Díaz-Tejera
Nathalia Ramos-Martínez
Counsel for the Commonwealth of Puerto Rico

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CERTIFICATE OF SERVICE
I, Christine A. Hill, hereby certify that on November 4, 2011, I caused a true and correct
copy of the foregoing Plaintiffs’ Statement Respecting Trial Witnesses to be served via
electronic mail on:
For Defendant AT&T Inc.:
Steven F. Benz
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
Sumner Square
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Tel: [phone]
For Defendants T-Mobile USA, Inc. and Deutsche Telekom AG:
Patrick Bock
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Tel: [phone]

/s/ Christine A. Hill
Christine A. Hill
United States Department of Justice
Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, D.C. 20530