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

Filing 78

MEMORANDUM by AT&T INC., DEUTSCHE TELEKOM AG, T-MOBILE USA, INC.. (Attachments: # 1 Text of Proposed Order)(Hansen, Mark)

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.,
Defendants.

Discovery Matter: Referred to
Special Master Levie

MEMORANDUM IN SUPPORT OF DEFENDANTS’
PROPOSED ORDER GOVERNING TRIAL WITNESSES
Defendants respectfully request that the Special Master enter Defendants’ Proposed
Order Governing Trial Witnesses.
As discussed at yesterday’s conference, three principles should govern the disclosure of
potential fact witnesses. First, time is of the essence to ensure that each side has an opportunity
to depose witnesses on the other side’s list prior to the close of fact discovery on January 10,
2011. Second, Plaintiffs bear the burden of proof and should provide their list first, so that
Defendants can determine what witnesses they will need to call in response. Third, it is
premature, prior to discovery, to set a limit on the number of fact witnesses each side may
ultimately call at trial. A better approach to ensuring a manageable trial is to give each side a
certain number of hours to present its case at trial, including direct examination, crossexamination, and rebuttal, but exclusive of attorney argument. The number of fact witnesses
may also be reduced by the judicious use of deposition designations.
1.

The Court’s initial scheduling order directed that “[p]reliminary witness lists” be

exchanged “at the earliest possible time.” 9/23/11 Order at 7. Despite that injunction, Plaintiffs
have repeatedly delayed and resisted disclosing their witnesses. More than six weeks after the

Court’s order, Defendants are still no closer to receiving a witness list. Yet Plaintiffs seek to
push the date back still further, and even then they want to parse out their list in two portions.
Such delays are inappropriate and inconsistent with the expedited nature of this case.
Under Defendants’ proposal, Plaintiffs, which have the burden of proof, would provide
their preliminary list of fact witnesses on November 15, and Defendants would respond with
their list three weeks later, on December 6.1 This will ensure that each side has adequate time to
depose the other side’s witnesses before the January 10 discovery cut-off. On January 12, each
side will provide a revised witness list and can both subtract witnesses and add up to five new
witnesses. Any added witnesses will be subject to discovery and deposition. If either side elects
not to call a witness on its January 12 list, the other side may elect to do so.
2.

Plaintiffs’ proposal to limit each side to an initial designation of 30 fact witnesses

is both premature and misguided. It is premature because, until Defendants see Plaintiffs’ list of
potential witnesses (along with “a brief description of the subjects about which each potential
witness is expected to testify,” Defs.’ Proposed Order ¶ 1), Defendants do not know how many
(or which) witnesses they will need to counter Plaintiffs’ case. Plaintiffs’ proposal is misguided
because, as explained in Defendants’ earlier memorandum, a better, more equitable approach to
manage trial time is to give each side a certain number of hours to present its case, including
direct examination, cross-examination, and rebuttal, but exclusive of attorney argument. Such an
arrangement ensures that equal trial time is available to each side, whether one side has few
witnesses who spend a long time on the stand or many witnesses each of whom is on the stand
for a shorter period.

1

Expert witness disclosures are already separately established in the Court’s order.

2

Plaintiffs’ case is likely to focus on the few competitors that Plaintiffs claim matter in the
market. Defendants’ case will broaden that focus to show the much broader array of market
participants competing fiercely for customers. As a result, Defendants will need to call witnesses
from a number of different competitors, even if each witness is presented only for a short
period.2
The government’s estimates of total time in this case have ranged from 4 weeks to 6
weeks. Assuming 5.5 hours of trial time per day, 4 days a week, a 6-week trial would allow
approximately 66 hours per side. A chess clock approach, rather than arbitrary limits on the
number of witnesses, is a better way to control overall trial time, while allowing each side to
present its case and to plan its witnesses as it believes best within the limits set by the Court.
Plaintiffs have objected that the absence of limits will encourage over-designation of
witnesses. But each side would have a good-faith obligation to list those witnesses, and only
those witnesses, that it believes it may want to call at trial. More importantly, it will be
impossible to settle on a more final list until after depositions have been taken. Defendants have
no objection to “final trial witness lists” being submitted before trial. Defendants also favor
procedures for advance notice of the order in which witnesses will appear at trial. But
Defendants object to any effort to limit their choice of witnesses before they have even taken
discovery. A chess clock approach will better and more fairly ensure that each side presents its
case efficiently and compactly.

2

Remarkably, Plaintiffs have reneged on the parties’ earlier agreement that, if either side elects
not to call a witness on its list, the other side may do so. This about-face – which would force
Defendants protectively to duplicate names already on Plaintiffs’ list – makes clear that
Plaintiffs’ real motive is to limit Defendants’ ability to present their case.

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3.

Despite the provision for nationwide service of process, there are likely to be

some witnesses from remote locations who have only limited testimony to offer. For the
convenience of those witnesses and the efficient conduct of the trial, Defendants propose that
each side may present up to 10 witnesses by means of brief deposition designations in lieu of live
testimony. The other side may counter-designate a comparable amount. An alternative approach
for such witnesses might be to have an agreed upon summary of their testimony. Either
approach would help streamline the trial while ensuring that the Court has a complete picture of
the competitive landscape.
CONCLUSION
Defendants respectfully request that the Special Master enter the Proposed Order
Governing Trial Witnesses submitted by Defendants and specify the amount of total trial hours
available to each side for direct examination, cross-examination, and rebuttal.

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Dated: November 9, 2011

Respectfully submitted,

s/ Mark C. Hansen
Mark C. Hansen, D.C. Bar # 425930
Michael K. Kellogg, D.C. Bar # 372049
Kellogg, Huber, Hansen, Todd,
Evans & Figel, P.L.L.C.
1615 M Street, NW, Suite 400
Washington, DC 20036
[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]
Wm. Randolph Smith, D.C. Bar # 356402
Kathryn D. Kirmayer, D.C. Bar # 424699
Crowell & Moring, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
[phone]
Counsel for AT&T Inc.

George S. Cary, D.C. Bar # 285411
Mark W. Nelson, D.C. Bar # 442461
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
[phone]
Richard G. Parker, D.C. Bar # 327544
O’Melveny & Myers LLP
1625 Eye Street, NW
Washington, DC 20006
[phone]
Counsel for T-Mobile USA, Inc. and
Deutsche Telekom AG

CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2011, I caused the foregoing Memorandum in
Support of Defendants’ Proposed Order Governing Trial Witnesses 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]

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]

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State of Washington

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

/s/ Mark C. Hansen
Mark C. Hansen

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