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

Filing 73

SURREPLY to Sprint's 67 Motion to Quash filed by AT&T INC.. (Attachments: # 1 Declaration)(Benz, Steven)

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 SUR-REPLY IN RESPONSE TO SPRINT’S MOTION TO QUASH
AT&T submits this sur-reply to answer the three questions posed by the Special Master’s
request dated November 3, 2011.
1.

AT&T has completed a thorough review of all of the documents Sprint produced.
Before it filed its opposition to Sprint’s motion to quash, AT&T completed a diligent

review of the entire Sprint production to the Department of Justice (“DOJ”). See Declaration of
Steven F. Benz ¶ 2 (“Benz Decl.”). Based on that review, AT&T tailored its requests to seek
only those categories of documents that (a) Sprint had not produced and (b) were critical to
AT&T’s efforts to prepare its case for trial.*
2.

Sprint did not produce documents from key custodians at Boost and Virgin Mobile.
AT&T does not dispute Sprint’s contention that documents in its production contain the

words “Boost Mobile,” “Virgin Mobile,” or “VMU.” But none of those documents was
produced from the executives in charge of Boost Mobile (Andre Smith) and Virgin Mobile
(David Trimble). See Benz Decl. ¶ 4. Mr. Smith and Mr. Trimble are likely to have highly
relevant documents reflecting Boost Mobile’s and Virgin Mobile’s specific business plans and
marketing strategies, and AT&T may want to depose those executives (something it cannot do
*

Sprint contends that it produced research and development documents from its top network
executives despite DOJ’s deferral of that information. See 11/2/11 Benz Decl. ¶ 18. Based on
Sprint’s representation, AT&T will consider Sprint’s obligation to produce documents in
response to RFP 14 satisfied. Sprint, however, produced only one year of subscriber data, not
the three years AT&T requested. AT&T as a compromise proposal requests that Sprint provide
one additional year of subscriber data, going back to mid-2009.

1

without access to their documents). Those documents and related testimony are critical to
AT&T’s efforts to show that the competitive marketplace is significantly different from the way
it is portrayed by DOJ. See id. ¶ 5.
3.

The “refresh” documents sought from Sprint are critical to AT&T’s defense.
AT&T seeks a supplemental or updated production of 28 requests. See Dkt. No. 69-1. In

its reply, Sprint asserts that it spent 8,000 hours to respond to DOJ’s Civil Investigative Demand
(“CID”) and claims that its “refresh” would take at least 20% of that time. Even crediting
Sprint’s estimate, it fails to take into account the facts that AT&T’s requests are substantially
narrower than DOJ’s CID and that Sprint’s prior experience would likely make the updated
review process more efficient.
In any event, whatever burden Sprint might incur is outweighed by AT&T’s need for the
information sought. Sprint’s recent documents are among the materials most relevant and
important to the issues in this case because of the extraordinarily dynamic nature of the industry,
Sprint’s key role in that industry, and Sprint’s recent developments. See 11/2/11 Benz Decl. Exs.
1-3. Without the updates, Sprint’s document production will not accurately reflect the current
(or future) state of competition. The high relevance of the most recent documents is further
supported by the fact that DOJ too has sought updated productions from non-parties that
produced in response to CIDs. Sprint has not met its heavy burden to demonstrate that the
subpoena should be quashed.
AT&T respectfully requests that Sprint’s motion to quash be denied and that Sprint be
compelled to produce the documents identified in the table filed as Docket No. 69-1 without
further delay. Cooperation from non-parties is absolutely essential to the preparation of AT&T’s
defense in the limited time available before trial. If Sprint is allowed simply to refuse to produce
documents in response to a proper and reasonable subpoena (and to refuse even to negotiate over
the scope of the subpoena), other non-parties will follow suit and AT&T will be deprived of its
right to defend against DOJ’s allegations.

2

Dated: November 4, 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.

3

CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2011, I caused the foregoing AT&T’s Sur-Reply in
Response 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]
Elizabeth M. Gerber, [e-mail]
JAMS
555 13th Street, NW, Suite 400 West
Washington, DC 20004
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]
U.S. Department of Justice
Antitrust Division
450 5th Street, NW, Suite 7000
Washington, DC 20001
Tel. [phone]
Joseph F. Wayland, [e-mail]
U.S. 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
Antitrust Section
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Tel. [phone]

1

State of Illinois

Robert W. Pratt, [e-mail]
Office of the Attorney General
100 West Randolph Street
Chicago, IL 60601
Tel. [phone]

Commonwealth of Massachusetts

William T. Matlack, [e-mail]
Michael P. Franck, [e-mail]
Office of the Attorney General
Antitrust Division
One 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]
Office of the Attorney General
Antitrust Bureau
120 Broadway, Suite 2601
New York, NY 10271
Tel. [phone]

State of Ohio

Jennifer L. Pratt, [e-mail]
Jessica L. Brown, [e-mail]
Office of the Attorney General
Antitrust Division
150 E. Gay St – 23rd Floor
Columbus, OH 43215
Tel. [phone]

Commonwealth of Pennsylvania

James A. Donahue , III, [e-mail]
Joseph S. Betsko, [e-mail]
Office of the Attorney General
Antitrust Section
14th Floor, Strawberry Square
Harrisburg, PA 17120
Tel. [phone]

Commonwealth of Puerto Rico

José G. Diaz-Tejera, [e-mail]
Nathalia Ramos-Martínez, [e-mail]
Department of Justice
Office of Monopolistic Affairs
P.O. Box 190192
San Juan, PR 00901-0192
Tel. [phone]

2

State of Washington

David M. Kerwin, [e-mail]
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
Tel. [phone]

Non-Party Sprint

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

3