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

Filing 92

MEMORANDUM by AT&T INC., DEUTSCHE TELEKOM AG, T-MOBILE USA, INC.. (Attachments: # 1 Text of Proposed Order Governing Trial Preparation)(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’ MEMORANDUM IN SUPPORT OF PROPOSED ORDER
GOVERNING TRIAL PREPARATION
The parties have reached an impasse on four issues regarding trial preparation. As to
each, Plaintiffs are insisting on unreasonable limits that would unduly restrict Defendants’ ability
to prepare and present their full case, incorporating all of the facts and arguments about the
wireless market and wireless technology that refute Plaintiffs’ claims. Defendants by contrast
offer reasonable proposals, consistent with prior decisions in this case, designed to enable the full
development of the facts by both sides and giving a tactical advantage to neither.
First, Plaintiffs seek to reserve to themselves up to 2 hours of the 7 hours available for
non-party depositions that Defendants have noticed. Plaintiffs should not be permitted
artificially to limit Defendants’ ability to develop their case through discovery. Although
Defendants will use substantially less than the 7 hours available for non-party depositions in
many cases — or non-parties will agree to extend the length of the deposition to ensure that it
can be completed in a single day — the full 7 hours may be required in some cases, particularly
from non-party witnesses friendly to Plaintiffs.
Second, Plaintiffs seek to require simultaneous disclosure of exhibits, despite the Special
Master’s prior determination, in the context of witnesses, that sequential disclosure — with

Plaintiffs proceeding first — is appropriate. Plaintiffs also propose that the first simultaneous
disclosure of exhibits occur immediately after the close of fact discovery, which is premature and
will require an over-designation of exhibits that have not been fully sifted.
Third, Judge Huvelle requested a neutral tutorial on wireless technology and the wireless
industry, and “allot[ted] one day for each” side’s experts. 10/24/11 Tr. 113-14. Defendants’
proposal accords with Judge Huvelle’s request. Plaintiffs, however, propose a single-day, joint
session by both sides’ experts, with coordination — or litigation — in advance of the tutorial.
Moreover, Plaintiffs propose to hold the tutorial in the midst of expert discovery, which will
likely complicate the scheduling of expert depositions.
Fourth, Plaintiffs propose arbitrary limits on the length and content of pre-trial briefs.
Although both sides have a strong incentive to limit the length of their pre-trial briefs for the
benefit of the Court, there is no need to set arbitrary limits now. Indeed, Plaintiffs themselves
recognize that any limits on the number of trial exhibits can be set in the future. Furthermore,
Plaintiffs propose to have opening briefs filed before the close of expert discovery, even though
such briefs are to address legal and factual issues.
I.

DEFENDANTS SHOULD HAVE THE ABILITY TO USE THE FULL 7 HOURS
AVAILABLE FOR NON-PARTY DEPOSITIONS
The Stipulated Scheduling and Case-Management Order (“CMO”) provides that

depositions of non-parties — including Rule 30(b)(6) depositions, even if a non-party produces
multiple witnesses — “shall be no more than one (7 hour) day in length.” CMO ¶ 7 [ECF No.
33]. Defendants have begun subpoenaing non-parties for depositions. Although Defendants do
not anticipate requiring the full 7 hours for each non-party deposition, they expect that some
depositions — particularly of unfriendly non-party witnesses, who may be inclined to filibuster
— will require the full 7 hours. Indeed, when Plaintiffs have taken depositions of Defendants’
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employees, they have routinely used the full 7 hours — or, in some cases, the full 14 hours —
available.
Plaintiffs, however, seek to reserve up to 2 hours of the time available to Defendants
when deposing a non-party, even if Plaintiffs have not served their own subpoena to depose that
non-party. Plaintiffs’ proposal would severely prejudice Defendants’ ability to develop their
case, by denying them nearly 30 percent of the time available for those depositions. Plaintiffs’
attempt to limit Defendants’ ability to depose many of the relevant competitors and interested
parties in the market for wireless services is consistent with Plaintiffs’ strategy of presenting the
Court with a narrow, cropped view of that market. Defendants’ ability to present their desired
defense depends on the introduction of extensive non-party testimony about the true nature of
competition in the market for wireless services. In a case of this magnitude and importance, it
makes no sense to rewrite the Federal Rules of Civil Procedure to deny Defendants the
customary 7 hours of deposition granted to any federal litigant.
The Federal Rules authorize courts “to allow additional time . . . if needed for a fair
examination of the deponent,” such as when a “need for each party to examine the witness may
warrant additional time.” Fed. R. Civ. P. 30 advisory committee’s note (2000). Moreover, the
Rules contemplate that “the parties and the witness will make reasonable accommodations,” id.,
such as by agreeing to extend the time limit to avoid the need for a multi-day deposition.
Consistent with the Rules, the CMO provides that “parties and affected non-parties may stipulate
to additional time for individual depositions.” CMO ¶ 7. Therefore, the appropriate way to
accommodate Plaintiffs’ interests in questioning a non-party who Defendants depose is to
enlarge the time for the deposition, not artificially to limit Defendants’ ability to obtain evidence
by reserving a significant portion of the 7 hours for Plaintiffs’ questions.

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Moreover, even if an accommodation is unavailable and Plaintiffs must notice a second
day of deposition, Plaintiffs cannot claim that they will be prejudiced by having to use one of
their fact depositions on that non-party.1 Indeed, when negotiating limits on fact depositions,
Plaintiffs never raised this concern about reserving a fixed amount of time for the non-noticing
party to ask questions during non-party depositions. In all events, under the CMO, Plaintiffs are
entitled to depose every individual employee of a non-party listed as a witness for Defendants
who has not previously been deposed, without those depositions counting against the 30
available to Plaintiffs for discovery.
II.

THE PARTIES SHOULD DESIGNATE EXHIBITS, LIKE WITNESSES,
SEQUENTIALLY, NOT SIMULTANEOUSLY
As the Special Master has already recognized, because “Plaintiffs have the burden of

proof,” it is “appropriate to require Plaintiffs to proceed with the first identification of
witnesses.” Special Master Order No. 3, at 9 (“Order No. 3”) [ECF No. 82]. That same
principle should apply to the disclosure of exhibits, with Plaintiffs presenting their exhibit list
before Defendants present their list. Indeed, as with witnesses, if exhibits are “identified in a
progressive manner, the likelihood is greater that the [exhibits] identified will more accurately
reflect the [exhibits] needed to support or rebut the parties’ respective cases.” Id. at 8.2 While
Defendants propose sequential disclosure of exhibits by the parties, Plaintiffs propose two
rounds of simultaneous exhibit disclosures: first of non-party documents, then of party

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Defendants, of course, will face these same issues with respect to any non-parties that
Plaintiffs subpoena for a deposition.
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By requiring Plaintiffs to disclose exhibits first, Defendants will be better able to narrow
their own list of exhibits, likely obviating the need for limits on the number of exhibits.
Plaintiffs do not propose to set such limits now, but to do so on December 20. Defendants agree
that it would be premature to set exhibit limits now; it will be equally premature on December
20, more than a month before the close of discovery.
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documents. That proposal is inconsistent with the treatment of witness identification and should
be rejected.
Furthermore, Plaintiffs propose that the simultaneous disclosure of non-party document
exhibits occur on January 12, only two days after the close of discovery and one month before
the start of trial. As Defendants have explained, and Plaintiffs are aware, such non-party
documents will be essential to Defendants’ efforts to present the Court with a full view of the
marketplace. Plaintiffs’ proposal forces Defendants to disclose those documents first, giving
Plaintiffs a preview of Defendants’ arguments before Plaintiffs are required to disclose the party
document exhibits that will form the bulk of their case. Plaintiffs’ proposal thus inverts the
disclosure order that should follow from the fact that Plaintiffs bear the burden of proof.
Finally, Plaintiffs propose to require disclosure of exhibits on January 12 (non-party) and
January 21 (party). Although those dates — if applied to Plaintiffs’ (January 12) and
Defendants’ (January 21) exhibit disclosures — would comport with the principles set forth
above, Defendants’ proposed dates of January 29 (Plaintiffs) and February 1 (Defendants) would
provide the parties with additional time to narrow their exhibit lists.3
III.

EACH PARTY SHOULD BE PERMITTED TO PRESENT ITS OWN NEUTRAL
EXPERT TUTORIAL ON WIRELESS TECHNOLOGY AND THE WIRELESS
INUDSTRY
Judge Huvelle requested a neutral tutorial on wireless technology and the wireless

industry, and “allot[ted] one day for each” side’s experts. 10/24/11 Tr. 113-14. Defendants’
proposed order abides by that request and calls for one side to present its tutorial on February 1,
2012, with the other side presenting its tutorial the following day. When Plaintiffs expressed

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Both sides propose similar procedures for prompt resolution of confidentiality and
admissibility disputes, though Plaintiffs’ proposal includes extra time for reply briefs, which
should not be necessary given the opportunity for a live hearing on those disputes.
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concern that, by going second, Defendants would have an advantage because their experts could
tailor their tutorial in response to points that Plaintiffs’ experts made, Defendants offered to go
first — or second — at Plaintiffs’ option.
Plaintiffs instead propose to have the experts for both sides appear before Judge Huvelle
simultaneously, on a single day, before the conclusion of expert discovery. Moreover, Plaintiffs
propose to require the parties to agree in advance on the topics to be addressed, or to litigate that
question in advance of the tutorial. Plaintiffs’ proposal would interfere with both expert
depositions and trial preparation, while likely resulting in dueling presentations from experts that
devolve into a debate, which is not what Judge Huvelle requested. Each side’s experts should be
permitted to provide Judge Huvelle with neutral information on the topics that they deem most
important to understanding the technology and industry at issue, and to do so in separate
presentations, as Judge Huvelle contemplated.
IV.

LIMITS ON PRE-TRIAL BRIEFS SHOULD NOT BE ADOPTED AT THIS TIME
Despite the fact that discovery is still ongoing, Plaintiffs propose word limits for the

pre-trial “briefs on legal and factual issues” that will assist Judge Huvelle in preparing for trial.
Order No. 3, at 4. Although both sides have strong incentives not to overwhelm the Court with
overly long pre-trial briefs, any limits adopted now would necessarily be arbitrary. Indeed, as
noted above, Plaintiffs do not seek to impose limits on the number of trial exhibits now,
recognizing that it would be premature to do so. See supra note 2. It is equally premature — if
not more so — to set word limits on pre-trial briefs.
Even if it were appropriate to adopt word limits now for the briefs, Plaintiffs’ additional
proposal to prohibit the parties from attaching exhibits to their pre-trial briefs should be rejected.
The pre-trial briefs will quote key exhibits. Judge Huvelle’s trial preparation will be assisted by
the ability to review the exhibits containing those quotations while reading the pre-trial briefs,
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whether to provide context to those quotations or to answer questions that may arise. There is no
reason to deny Judge Huvelle that option.
As for the timing of pre-trial briefs, Defendants believe it would be more efficient to have
sequential briefing, with each side filing its pre-trial brief when it submits the pre-filed testimony
of its experts. But Defendants do not object to two rounds of simultaneous briefing, as Plaintiffs
propose. However, Plaintiffs’ proposed dates for those briefs — which call for opening briefs on
relevant legal and factual issues on January 20, before the close of expert discovery — are too
early. Defendants’ proposed dates, which coincide with the dates for filing expert testimony,
should be adopted.
CONCLUSION
Defendants’ proposals should be adopted on each of the issues in dispute.

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Dated: November 23, 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 23, 2011, I caused the foregoing Defendants’
Memorandum in Support of Proposed Order Governing 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]

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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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