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

Filing 96

ORDER denying 95 Motion to Quash. Signed by Special Master Richard Levie on 12/06/2011. (Levie, Richard)

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

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

SPECIAL MASTER ORDER NO. 6
This matter is before the Special Master on Non-Party LightSquared GP, Inc.’s Motion to
Quash. The Special Master has considered the written materials as well as the arguments
submitted telephonically on December 6, 2011. For the reasons that follow, the Motion is denied.
I.

Background
Defendant AT&T, Inc. issued a Fed. R. Civ. P. 30(b)(6) subpoena on LightSquared on

November 14, 2011, for a deposition to take place on December 7, 2011. [Motion at 1 (Doc.
95)]. On December 6, 2011, non-party LightSquared GP, Inc. hand-filed the Motion to Quash
that deposition based on the uncertainty generated by AT&T’s recent withdrawal of its
application before the Federal Communications Commission. (Id. at 1–3). Because AT&T does
not currently have an application pending before the FCC, and because FCC approval is a
prerequisite to completing the proposed merger, LightSquared argues that it is unduly
burdensome to force it to undertake the inconvenience and expense of a deposition while the
future of the deal is uncertain. (Id. at 4). During the argument, LightSquared also raised a

concern that circumstances relating to the litigation or a re-filing with the FCC, based upon any
changes in the previously agreed-upon merger agreement, could lead to a request for a second
deposition of LightSquared.
AT&T responds that the recent events with the FCC proceeding have not altered the
posture or timelines in the instant case. [Motion, Ex. D (12/5/11 Letter from Scott Angstreich to
Jennifer Giordano) (Doc. 95-5)]. AT&T notes that the agreement between it and LightSquared,
memorialized in the November 29 letter between AT&T, T-Mobile, DOJ and LightSquared
contemplates the possibility of a second deposition. [See Motion, Exhibit B at 3 (11/29/11 Letter)
(Doc. 95-3)]. Thus, in AT&T’s view, there is no reason to postpone or cancel the scheduled
deposition of LightSquared’s representatives.
Plaintiff United States, as represented by the Department of Justice, also participated in
the oral argument. DOJ took no position on LightSquared’s Motion, but articulated several
concerns. DOJ asserted that it was reserving its right to take further action in the future, noting
that AT&T has publicly stated that its withdrawal of its FCC application either represents an
intent to “abandon the transaction altogether” or an intent to “submit a new application reflecting
changes to the transaction or materially changed circumstances.” [Motion at 3 (citing Jim
Cicconi, Withdrawal by Right (Nov. 29, 2011), AT&T Public Policy Blog, available at
http://attpublicpolicy.com/wireless/withdrawal-by-right/)]. DOJ interprets these comments to
mean that the current litigation may, in fact, not present a live case or controversy.
II.

Discussion
The Special Master is sensitive to LightSquared’s concerns and takes note of the issues

DOJ has raised. The recent activity before the FCC raises the spectre of an alteration of the
course of the proposed merger. The FCC-related activities have not, however, altered the status

of this litigation. Although FCC approval is necessary for the proposed merger, so, too, is a
favorable ruling from the federal court in this case. As there is no requirement of which the
Special Master is aware that one approval must come before the other, the federal court case
remains on track with a scheduled trial date of February 13, 2012.
LightSquared’s reluctance to expend resources on depositions in a case to which it is not
a party and which it believes may not reach trial is understandable. Nevertheless, the potential
for an out-of-court resolution is too uncertain to rise to the level of undue burden under Rule 45.
Unless or until the status of this case changes, the parties and non-parties subject to otherwise
valid subpoenas have an obligation to proceed.
III.

Conclusion
For the reasons stated, Non-Party LightSquared GP, Inc.’s Motion to Quash is DENIED.

Date: December 6, 2011
/s/ Richard A. Levie________
Hon. Richard A. Levie (Ret.)
Special Master