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

Filing 77

STATUS REPORT Supplemental 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,
Civil Action No. 11-01560 (ESH)

v.
AT&T INC. et al.,
Defendants.

PLAINTIFFS’ SUPPLEMENTAL STATEMENT
RESPECTING TRIAL WITNESSES
Plaintiffs propose a schedule that provides for staggered disclosure of a fixed
number of likely trial witnesses, by name or entity, with the opportunity to add a limited
number of additional trial witnesses for good cause shown by early February. This
schedule is realistic and rests on two indisputable facts: (1) discovery is ongoing (and for
most nonparties only just beginning) and the parties should not be locked prematurely into
particular witnesses before having a chance to review documents and take depositions; and
(2) if trial is to commence on February 13, there must be limits on the number of witnesses
who can be deposed before then, and it would be unrealistic to pretend that the parties have
the ability to reasonably conduct all the discovery they might otherwise desire.
Specifically, Plaintiffs propose the following schedule:
November 18:

Plaintiffs provide initial list of up to 15 witnesses, either
individuals or entities.

November 25: Defendants provide an initial list of up to 15 witnesses, either
individuals or entities.

December 9:

Plaintiffs provide supplemental list of up to 15 witnesses.

December 16: Defendants provide supplemental list of up to 15 witnesses.
January 12:

Parties provide supplemental lists of up to 5 witnesses.

January 23:

Parties identify trial witnesses from list of previously identified
witnesses, with right to add limited number of additional witnesses
for good cause shown before February 3.1

In contrast to this staggered schedule, Defendants’ proposal seeks to require
Plaintiffs to identify all Plaintiffs’ potential fact witnesses, by name, next week. This is
impossible. Party depositions are ongoing and will not be complete for some time. There
are substantial disputes about the parties’ productions. Nonparty depositions have not yet
begun. Indeed, AT&T recognized that critical discovery has not yet been produced when
they recently told the Court, when seeking documents from Sprint, that “[n]ewly generated
documents are among the materials most relevant and important to the issues in this case.”
(AT&T 11/2/11 Opp. at 2.)
Defendants’ proposal fails to set any limit on the number of discovery and trial
witnesses, creating the likelihood of a deposition schedule that, in the short time before the
January 10 end of discovery, would be unmanageable. Indeed, Defendants have yet to
notice any of the 30 depositions they are permitted under the Case Management Order,
while seeking the right to name an unlimited number of additional witnesses and asserting
that they are likely to notice depositions under Fed. R. Civ. P. 30(b)(6), under which
multiple individuals may have to be deposed. Even assuming a good-faith effort to

1

Respecting the identification of a final witness schedule, Plaintiffs’ proposal
follows Local Civil Rule 16.5, requiring simultaneous disclosure.

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identify only likely trial witnesses, Defendants’ proposal presages well over 100
depositions in December and early January. That is unreasonable, and Court intervention
now is necessary to avoid it. Having persuaded the Court to set an early trial, Defendants
cannot now insist on no limitations whatsoever on the number of potential trial witnesses.2
Plaintiffs’ proposal implicitly places a de facto cap of 70 on the number of potential
trial witnesses, with the opportunity for each side to make a good-cause addition, which
makes sense in light of the compressed discovery schedule. Even this number is likely to
be excessive under any sensible conception of an orderly four to six week February trial,
particularly because it excludes expert witnesses. Indeed, the Court has already said that
60 fact witnesses would be too many. A much lower cap would be reasonable and
consistent with customary practice in merger litigation.3
Plaintiffs have struck a provision permitting each side to call witnesses from the
other side’s list because Plaintiffs are concerned that such a provision, combined with any
schedule under which Plaintiffs identify potential witnesses first, would permit Defendants

2

When urging an early trial date, AT&T asserted that, under its existing terms, the
transaction would terminate on March 20 with potential extensions through
September 20. (9/21/11/ Tr. at 21-22.) Defendants already have extended to June.
See Greg Bensinger, AT&T Sees Later Closing for T-Mobile Deal, WALL ST. J.,
Nov. 4, 2011; AT&T Inc., Quarterly Report at 17 (Form 10-Q) (Nov. 3, 2011).

3

In a majority of recent merger cases, courts have limited the number of witnesses,
and Plaintiffs are aware of none involving as many as 70 fact witnesses. See, e.g.,
United States v. H&R Block, Inc., No. 11-00946 (BAH) (D.D.C. July 6, 2001);
United States v. Dean Foods Co., No. 10-59 (E.D. Wis. June 3, 2010); United
States v. JBS S.A., No. 08-5992 (E.D. Ill. Jan. 30, 2009); United States v. First Data
& Concord EFS, Inc., No. 03-2169 (RMC) (D.D.C. Oct. 31, 2003); FTC v. H.J.
Heinz Co., No. 00-1688 (JR) (D.D.C. July 19, 2000); see also United States v.
Microsoft Corp., No. 98-1232 (TPJ) (D.D.C. Aug. 6, 1998).

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to avoid providing timely notice of whom they expect will be their principal witnesses.
For example, if Plaintiffs include several AT&T executives on an initial list, Defendants
may choose not to include those executives on their list and then claim the right to call
those witnesses at trial. Defendants have insisted that they need to know the nature of
Plaintiffs’ case—this is a two-way obligation. In addition, Plaintiffs believe that it is
premature to set a trial clock time limit at this point, as Defendants propose. Moreover,
Defendants’ proposal for the introduction of the testimony of up to 10 more witnesses
(including their own employees) through deposition designations is premature and should
be determined on a case-by-case basis closer to trial and in light of other witness
identifications.
Finally, Plaintiffs note that while Plaintiffs’ proposed schedule attempts to balance
the competing demands for a speedy trial and a fair opportunity for discovery and trial
preparation, some further adjustment may be necessary depending upon (1) the resolution
of a dispute regarding a massive privilege claim; (2) the pace of nonparty discovery; and
(3) the uncertainty inherent in trying to compress so much discovery into such a short
schedule.

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Dated: November 9, 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 9, 2011, I caused a true and correct
copy of the foregoing Plaintiffs’ Supplemental 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 8700
Washington, D.C. 20530