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

Filing 85

Memorandum in opposition to re 84 MOTION Seeking Relief to Facilitate Efficient Trial Preparation filed by AT&T INC., DEUTSCHE TELEKOM AG, T-MOBILE USA, INC.. (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

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION SEEKING RELIEF
TO FACILITATE EFFICIENT TRIAL PREPARATION
Judge Huvelle has twice refused to amend the Protective Order to permit non-parties to
have access to confidential materials produced in this case. See 9/21/11 Tr. 65; 10/24/11 Tr. 116.
Specifically, Judge Huvelle refused Plaintiffs’ request to “change the rules of the game” to “help
[them] in [the] case which [they] brought” — in which they “ordinarily would be standing on”
their own — by authorizing the “wholesale” sharing of confidential material with counsel and
experts for non-parties. 10/24/11 Tr. 111-12. Although Judge Huvelle did not “preclude”
Plaintiffs from seeking permission from the Special Master to share “specific documents” with
specific non-parties based on a showing of a “specific need,” id. at 116-17, Plaintiffs’ current
motion does not satisfy that standard.* Instead, they seek wholesale access by an unlimited
group to a vast amount of information. Moreover, the government makes no showing of

*

Plaintiffs try to suggest, with a cropped quotation, that Judge Huvelle said that their
proposal for “ ‘a relevant set of documents that we narrowed down’ ” was “ ‘[a]ll right.’ ”
Pls.’ Mem. at 3 (quoting 10/24/11 Tr. 112). But Judge Huvelle held only that she would not
“preclude” them from making such a motion. 10/24/11 Tr. 116.

“specific need,” but merely repeats arguments in support of its motion that were already properly
rejected by Judge Huvelle.
1.

Far from being a “narrow[ ]” request, Plaintiffs seek to share with unnamed

outside counsel and experts for unnamed non-parties material produced by defendants to the
Federal Communications Commission (“FCC”) that are contained in 16 different filings. Those
16 filings contain, in total, approximately 1.5 million pages and more than 300 gigabytes of data.
Plaintiffs do not identify with specificity the documents or data within that massive set that
constitute the “Efficiencies Materials” they seek to share. Pls.’ Mem. at 1. Indeed, the materials
Plaintiffs seek to discuss with counsel and experts for non-parties are “not limited” to those 16
filings; they include all materials “constituting, discussing, or in support of any economic or
engineering models” submitted to the FCC, no matter when filed with the FCC. Pls.’ Proposed
Order Annex A. Plaintiffs, therefore, have not identified “specific documents” produced as
confidential in this case that they seek to discuss with unspecified counsel and experts for
unspecified non-parties. 10/24/11 Tr. 116-17.
2.

Plaintiffs also have not made any showing of “specific need.” Plaintiffs propose

to amend the Protective Order to allow them to discuss the (unspecified) documents with any or
all of the nearly 200 outside counsel and experts for entities other than Defendants who have
signed the FCC’s protective order; additional counsel or experts could sign in the future, and
likely would if the Protective Order in this case were amended as Plaintiffs’ propose. Although
Plaintiffs claim generically that they wish to discuss these voluminous materials with
“knowledgeable outside lawyers and consultants,” Pls.’ Mem. at 2, Plaintiffs do not identify a
specific need to speak with any particular individuals within that broad and varied group.

2

Plaintiffs’ desire to share Defendants’ confidential documents with “outside lawyers and
consultants representing potential witnesses,” id. at 1, who Plaintiffs “will call on [their] behalf
at trial,” 10/24/11 Tr. 110, is particularly disturbing because, as Plaintiffs acknowledge (at 3),
those non-party fact witnesses are themselves precluded from looking at Defendants’
documents. Nor are such documents relevant to their factual testimony, which should be limited
to matters within their own knowledge. Certainly, outside counsel for such witnesses should not
be recommending ways to tailor their testimony in light of Defendants’ confidential documents.
3.

Finally, Plaintiffs make here exactly the same arguments they previously made,

unsuccessfully, with the Court. Plaintiffs contend (at 2) that they have a particular need for help
in analyzing Defendants’ “Efficiencies Materials” and that it will be helpful to give those
materials to experts and outside counsel for non-parties. Before Judge Huvelle, counsel for the
United States likewise stressed that the Department of Justice wanted to share with non-parties
Defendants’ documents “about efficiencies.” 10/24/11 Tr. 110. He explained that they wanted
help with those documents “to find out [whether] what they say about efficiencies is accurate and
whether the other player has something different to say.” Id. The Court was unconvinced,
telling the Department that sorting through and understanding Defendants’ documents was “your
problem. That’s exactly what happens all the time.” Id. at 111. The Court accordingly refused
to “change the rules of the game,” which leaves Plaintiffs “standing on” their own in the “case
which [they] brought.” Id. at 111-12.
Plaintiffs’ motion should be denied.

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Dated: November 18, 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

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CERTIFICATE OF SERVICE
I hereby certify that on November 18, 2011, I caused the foregoing Defendants’
Opposition to Plaintiffs’ Motion Seeking Relief To Facilitate Efficient Trial Preparation 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]

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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]

/s/ Mark C. Hansen
Mark C. Hansen

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