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

Filing 88

ORDER granting 84 Motion Seeking Relief to Facilitate Efficient Trial Preparation. Signed by Judge Richard Levie (Ret.) on 11/21/11. (Levie, Richard)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
)
UNITED STATES OF AMERICA, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
AT&T INC., et al.,
)
)
Defendants.
)
)
__________________________________________)

Case No. 1:11-cv-01560 (ESH)
Referred to Special Master Levie

SPECIAL MASTER ORDER NO. 4
Before the Special Master are the Plaintiffs’ Motion Seeking Relief to Facilitate Efficient
Trial Preparation, Defendants’ Opposition to Plaintiffs’ Motion Seeking Relief to Facilitate
Efficient Trial Preparation, and Plaintiffs’ Reply Memorandum in Support of Plaintiffs’ Motion
Seeking Relief to Facilitate Efficient Trial Preparation. The Special Master has considered the
written submissions as well as oral argument presented on November 21, 2011. For the reasons
that follow, Plaintiffs’ Motion is granted.
I.

Background
On October 11, 2011, Sprint Nextel Corporation, Cellular South, Inc., and Corr Wireless

Communications, L.L.C. moved to intervene in this case for the purpose of modifying the
Protective Order. [Joint Mtn. to Intervene (“Sprint Motion”) (Doc. 52); Second Am. Prot. Order
(Doc. 79)]. These would-be interveners are plaintiffs in the related cases of Sprint Nextel
Corporation v. AT&T, Inc., 1:11-cv-1600, and Cellular South, Inc. v. AT&T, Inc., 1:11-cv-1690,
and sought access to the confidential documents produced by the Defendants to the Plaintiffs.

(Sprint Motion at 2). The Plaintiffs in this case supported the Sprint Motion. [Pls.’ Stmt. in Supp.
(Doc. 54)]. At a hearing on October 24, the Court orally denied the Sprint Motion because it was
an inappropriate “wholesale request to be a party.” (Tr. of 10/24/11 at 116:16–17; see also
Minute Order of 10/24/11). The Court nevertheless ruled that the Plaintiffs could move later to
share confidential documents with third parties if the Plaintiffs had “a specific need . . . for
specific documents.” (Tr. of 10/24/11 at 117:7–8).
Plaintiffs filed such a motion with the Special Master on November 16, 2011. [Mtn.
(Doc. 84)]. Plaintiffs seek a modification of the Second Amended Stipulated Protective Order in
this case (Doc. 79) to allow them to discuss discovery involving “economic or engineering
models” with “outside lawyers and consultants who represent potential witnesses in this action
and who have the right to access them in the Federal Communication Commission’s
proceeding.”1 [Proposed Order at A-1, 1 (Doc. 84-2)]. Defendants’ submissions in the FCC case
overlap with their submissions to Plaintiffs through discovery in this action, including documents
and data concerning economic and engineering models (“Efficiencies Materials”) central to
Defendants’ efficiencies defense. [Mem. in Supp. at 1–2 (Doc. 84-1)].
Certain third parties are permitted access to the same Efficiencies Materials through the
FCC case as Plaintiffs have through this case. (Id. at 2). Nevertheless, because of the FCC
Protective Order and the Protective Order in this case, Plaintiffs and these third parties may not
discuss the Efficiencies Materials with each other. (Id.).
Plaintiffs argue that dismantling the “wall” erected by the protective orders will facilitate
efficient trial preparation by allowing Plaintiffs to benefit from the expertise of the interested
parties. (Id. at 2–3). Plaintiffs assert that their requested relief will not increase the universe of
people with access to the confidential information and will only involve disclosure to outside

1
2

That proceeding is In re AT&T Inc., 26 F.C.C.R. 8801.
(See Tr. of 10/24/11 at 102:2–9; Pls.’ Stmt. in Supp. at 2; Mem. in Supp. at 2–3; Reply at 2).

2

counsel and consultants, not the Defendants’ competitors. (Id. at 3). In their Reply, Plaintiffs
limited the relief requested here only to outside counsel and consultants for Sprint. [Reply at 2
(Doc. 86)].
Defendants object principally on the ground that the Plaintiffs have not shown a “specific
need” to share the confidential materials with outside counsel. [Opp. at 1 (Doc. 85)]. They argue
that Plaintiffs’ request is not nearly specific enough and contend that Plaintiffs’ request will
result in the sharing of 1.5 million pages and over 300 gigabytes of data. (Id. at 2). Defendants
point out that Plaintiffs have not specified with whom they wish to share the materials. (Id.).
Defendants are particularly concerned with Plaintiffs’ intent to share the materials with counsel
representing potential non-party fact witnesses. If, as Plaintiffs acknowledge, those witnesses are
precluded from viewing the confidential documents, Defendants question what legitimate
purpose would be served by sharing them with those witnesses’ counsel. (Id. at 3).
Plaintiffs respond that they have identified a “specific need” to share and discuss the
materials—“[d]iscussing those [economic or engineering] models with outside counsel and
consultants will facilitate identification of the most knowledgeable witnesses to address
[Defendants’] assumptions.” (Reply at 1). Plaintiffs also contest Defendants’ estimation of the
scope of the request, stating that Defendants’ calculation includes all documents in the
enumerated productions rather than the specified subset. (Id.). Plaintiffs offer to provide twentyfour hours notice to Defendants of the names of any other persons with whom they desire to
discuss the materials, in order that Defendants may object. (Id.).
II.

Discussion
The Court set the standard for requests to share confidential information with third parties

at the hearing on October 24: A party making such a motion must show “a specific need . . . for

3

specific documents.” (Tr. of 10/24/11 at 117:7–8). Not permitted are attempts to “change the
rules of the game.” (Id. at 111:15).
Plaintiffs’ rationale for its request is indeed similar to the one they offered in support of
Sprint’s Motion. (Compare Mem. in Supp. with Tr. of 10/24/11 at 108:16–110:24). In this
Motion, however, Plaintiffs seek leave to share a defined and limited set of documents with
outside consultants or counsel for a single company—Sprint. The current request is thus
dramatically more narrow in scope than the one for wholesale sharing of discovery that the Court
previously denied.2 Rather than seeking all of AT&T’s documents, Plaintiffs are now seeking a
more limited subset of documents related to a defined subject and for the limited purpose of
identifying which of Sprint’s employees are the logical choices to be named as witnesses on
behalf of Plaintiffs.
More importantly, both parties agree that the instant Motion will not expand the pool of
people entitled to view the Efficiencies Materials under the Protective Order. Denying Plaintiffs’
Motion will not enhance the protections for Defendants’ confidential material, and granting it
will not reduce them. The Sprint Motion, in contrast, would have given a third party access to
documents to which it was not otherwise entitled at that juncture—a major, substantive reduction
of the protections afforded the Defendants under the Protective Order.
Defendants argue that Plaintiffs have failed to identify a specific, limited set of people
who would view the Efficiencies Materials. They point out that 82 people from Sprint have
access to the Efficiencies Materials in the FCC proceedings. That number, Defendants contend,
is too high to constitute a narrow request. The reality, of course, is that Plaintiffs, given the time
constraints in needing to name witnesses and proceed with discovery, are unlikely to consult
with all or even a substantial fraction of those 82 people. In any event, the more relevant focus is

2

(See Tr. of 10/24/11 at 102:2–9; Pls.’ Stmt. in Supp. at 2; Mem. in Supp. at 2–3; Reply at 2).

4

not on how many people may discuss the Efficiencies Materials but on the fact that this Motion
does not involve people who do not already have access to the materials identified in the Motion.
Because Plaintiffs seek only to discuss the Efficiencies Materials with individuals who
already have access to those materials, modifying the Protective Order as Plaintiffs request will
merely remove an obstacle to the efficient pre-trial preparation of this case. As Plaintiffs noted at
oral argument, Plaintiffs and Sprint’s counsel are in ongoing discussions about potential
witnesses and will continue these discussions regardless of the outcome of the Motion. Without
the modification, though, Plaintiffs and Sprint’s counsel are in the awkward position of having
mutual knowledge that they must mutually avoid acknowledging for fear of violating a provision
of the Protective Order. To be sure, there is nothing about the instant Motion that undermines the
purpose of the Protective Order inasmuch as the confidentiality of the protected materials will
not be shared with persons not already authorized for access.
The parties face a challengingly short pre-trial period, as well as strict limitations on the
number of witnesses they may depose and identify. [See Stip. Sched. & Case-Mgmt. Order (Doc.
33); Special Master Order No. 3 (Doc. 82)]. Plaintiffs’ request will enhance their ability to focus
on the pertinent witnesses and to target their pre-trial preparations, thereby facilitating the just
and efficient resolution of this matter at trial.
Although Defendants accurately have argued that Sprint’s assistance is not strictly
necessary for Plaintiffs’ analysis of the Efficiencies Materials or identification of Sprint
witnesses, the Special Master finds that the wall the Protective Order currently erects is not an
aid to advancing trial preparation in the current circumstances. Granting the instant Motion will
advance efficient trial preparation at no cost to Defendants.

5

III.

Conclusion
For the reasons stated, the Special Master GRANTS Plaintiffs’ Motion Seeking Relief to

Facilitate Efficient Trial Preparation, and it is
ORDERED that the Second Amended Stipulated Protective Order is modified to the
extent that documents described in Annex A hereto may be disclosed to and used by, only in this
action, outside lawyers and consultants of Sprint who have the right to access them in the Federal
Communications Commission’s proceeding, WT Docket 11-65; and it is
FURTHER ORDERED that before Plaintiffs may disclose documents described in
Annex A to outside lawyers and consultants who have the right to access them in the Federal
Communication Commission’s proceeding, WT Docket 11-65, other than those working for
Sprint, Plaintiffs must provide Defendants the identify of the person(s) to whom the disclosure is
proposed to be made twenty-four (24) hours before such disclosure.

Date: November 21, 2011
/s/ Richard A. Levie________
Hon. Richard A. Levie (Ret.)
Special Master

6

ANNEX A
1.

Documents and information provided to the Department by Defendants that constitute
any materials submitted by AT&T Inc., T-Mobile USA, Inc., or Deutsche Telekom AG to
the Federal Communications Commission (“FCC”), WT Docket 11-65, constituting,
discussing, or in support of any economic or engineering models. These materials
include, but are not limited to:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

2.

Materials produced by AT&T in response to Civil Investigative Demand No.
26614 issued on July 19, 2011
Materials under cover of July 20, 2011 Letter from Richard Rosen, counsel for
AT&T (white paper and back-up on network sharing)
Materials under cover of July 25, 2011 Letter from Richard Rosen, counsel for
AT&T (the original engineering model)
Materials under cover of July 26, 2011 Letter from Richard Rosen, counsel for
AT&T (white paper and back-up on network integration)
Materials under cover of July 26, 2011 E-mail from Richard Rosen, counsel for
AT&T (white paper and back-up on customer migration)
Presentation and related materials made to the Department on August 3, 2011
Materials under cover of August 9, 2011 Letter from Michael G. Van Arsdall,
counsel for AT&T (data used for engineering model)
Materials under cover of August 1, 2011 Letter from Michael Van Arsdall,
counsel for AT&T (Dennis Carlton data and communications)
Materials under cover of August 10, 2011 Letter from Michael G. Van Arsdall,
counsel for AT&T (Reed-Tripathi white paper supporting documents)
Materials under cover of August 11, 2011 Letter from Richard Rosen, counsel for
AT&T (revised engineering model)
Materials under cover of August 15, 2011 Letter from Richard Rosen, counsel for
AT&T (AT&T updated economic analysis)
Materials under cover of August 23, 2011 Letter from Michael Van Arsdall,
counsel for AT&T (keep site locations)
Materials under cover of August 25, 2011 Letter from Richard Rosen, counsel for
AT&T
Materials under cover of August 26, 2011 Letter from Richard Rosen, counsel for
AT&T (white paper and back-up on the engineering model)
Materials under cover of August 29, 2011 Letter from Michael Van Arsdall,
counsel for AT&T (Alain Ohana’s files relating to the engineering analysis)
Materials under cover of October 11, 2011 Letter from Mark A. Klapow, counsel
for AT&T (includes FCC econ workshop transcript, and public interest statement,
and joint opposition)

Documents and information provided to the Department in the future by Defendants that
constitute any materials submitted by AT&T Inc., T-Mobile USA, Inc., or Deutsche
Telekom AG to the Federal Communications Commission (“FCC”), WT Docket 11-65,
constituting, discussing, or in support of any economic or engineering models.
7