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September 11, 1978

United States of America, Plaintiff,
American Telephone & Telegraph Company; Western Electric Co., Inc.; Bell Telephone Laboratories, Inc., Defendants.

Harold H. Greene, United States District Judge

The opinion of the court was delivered by: GREENE


The motions before the Court address the Court's jurisdiction and they raise fundamental issues concerning the discovery that should govern the future path of this antitrust litigation. A recapitulation of the history of this case will be helpful to an understanding of these issues.

 The complaint was filed on November 20, 1974. It alleges violations of Section 2 of the Sherman Act, 15 U.S.C. § 2, by the American Telephone and Telegraph Company (AT&T), *fn1" Western Electric Company, Inc. (Western Electric), *fn2" and Bell Telephone Laboratories, Inc. (Bell Labs). *fn3" In sweeping language the complaint alleges that an unlawful combination and conspiracy exists and has existed for many years among the defendants and certain co-conspirators (primarily the Bell Operating Companies), *fn4" designed to permit AT&T to maintain control over Western Electric, Bell Labs, and the Bell Operating Companies; to restrict competition from other telecommunications *fn5" systems and carriers and from other manufacturers and suppliers of telecommunications equipment; and to cause Western Electric to supply substantially all the telecommunications requirements of the Bell System.

 The complaint explains that the defendants are violating the antitrust laws by various monopolistic practices, including the refusal to sell terminal equipment to subscribers of Bell System telecommunications service, the creation of obstructions to the interconnection of various carriers with the Bell System, and the maintenance of a monopolistic manufacturing and purchasing relationship between Western Electric and the Bell System. It is further alleged that, as a consequence of these practices (1) defendants have achieved and are maintaining a monopoly of telecommunications service and equipment; (2) competition in these areas has been restrained; and (3) purchasers of telecommunications service and equipment have been denied the benefits of a free and competitive market. Among other relief, the action seeks the divestiture by AT&T of all Western Electric stock; the separation of some or all of the Long Lines Department of AT&T from the Bell Operating Companies; the divestiture by Western Electric of its manufacturing and other assets sufficient to insure competition in the manufacture and sales of telecommunications equipment; and such relief against Bell Labs as the Court may find appropriate.

 Defendants' Answer, and the Court sua sponte, raised two threshold defenses: (1) that a decree entered in 1956 by the U.S. District Court for the District of New Jersey (United States v. Western Electric Co., Civil Action No. 17-49 (D.N.J. 1956)) is res judicata, and (2) that the matters complained of by the government are within the exclusive jurisdiction of the Federal Communications Commission and therefore immune from scrutiny under the antitrust laws. On October 1, 1976, the Court rejected the claim of res judicata, and on November 24, 1976, it ruled that defendants do not possess blanket immunity from antitrust liability by virtue of the Communications Act of 1934 or their regulation by the Federal Communications Commission. In rejecting the plea that the FCC has exclusive jurisdiction over the subject matter of this litigation, the Court further stated, however, that it might in the future refer particular issues to the Commission under the so-called doctrine of primary jurisdiction. United States v. Am. Tel. & Tel. Co., 427 F. Supp. 57 (D.D.C. 1976, Waddy, J.), cert. denied, 429 U.S. 1071 (1977), cert. denied, No. 77-1009 (D.C. Cir. May 27, 1977), cert. denied, 434 U.S. 977 (1977).

  Shortly after the filing of the complaint, in November of 1974, and while these legal issues were being litigated, the parties began to engage in discovery. *fn6" Defendants served a request for production of documents upon the government, as well as a comprehensive set of interrogatories. The government, for its part, filed numerous discovery requests upon defendants and each of the operating telephone companies in which AT&T holds a majority interest, and it began fairly extensive third party discovery. Disputes arose almost immediately, however, with each side accusing the other of making unduly broad requests and of engaging in obstructive conduct in relation to opposing requests.

 These controversies became moot in relatively short order, as the course of discovery was stayed pending resolution of the jurisdictional issues. *fn7" Eventually, and contemporaneously with its ruling on these issues, the Court issued an order vacating the stay that had been in effect for almost 22 months, *fn8" andshortly thereafter, pursuant to stipulation of the parties, it issued a number of other pretrial orders, which established machinery for the recommencement of discovery. *fn9" Almost immediately upon the entry of these orders, defendants sought review of the Court's ruling on the jurisdictional issues by petitioning both the U.S. Court of Appeals and the U.S. Supreme Court for writs of certiorari, *fn10" and during the pendency of these petitions in the appellate courts, all proceedings in this Court, including discovery, were again stayed, this time, with one brief interruption, from January 25, 1977, to November 28, 1977. *fn11"

 When the last certiorari petition was denied, and the stays were dissolved, the parties filed a number of proposed orders concerning pretrial discovery, *fn12" and the Court, by its order of February 7, 1978, referred the case to Magistrate Lawrence S. Margolis to direct the preparation of a discovery schedule (see p. 55, infra). At the same time, it denied two pretrial orders (Nos. 9 and 12) submitted by defendants which again raised the issue of the Court's jurisdiction; denied proposals for pretrial orders (Nos. 10 and 11) which would have dealt "in various ways with documents generated in private antitrust proceedings in which AT&T is a defendant; and referred to the Magistrate defendants' proposed Pretrial Order No. 13 whichwould have established that all agencies and departments of the United States government are party plaintiffs in this suit for purposes of discovery. All of these matters, which are still pending, are discussed in detail below.

 Pursuant to the authority vested in him by the Court, Magistrate Margolis on April 27, 1978, issued two discovery orders. *fn13" Defendants objected to the second of these orders, and appealed it to the Court (28 U.S.C. § 636(b) (1) (A)) which approved a provision establishing a mechanism for the voluntary production of documents from government agencies, but otherwise stayed the effect of the order. *fn14" Since that time, there has been little activity, *fn15" and such discovery as has been attempted has been the subject of intense controversy.

 The case was assigned to this Court on June 22, 1978. On July 6, 1978, the parties were directed to file status memoranda on all outstanding issues, and on August 21, 1978, argument was heard on these matters. *fn16" While these issues arose in varying procedural contexts, they may conveniently be discussed under four headings: (1) jurisdiction, (2) the nature of the plaintiff, (3) the government's effort to secure access to documents collected in several private antitrust suits brought against defendants in other districts, and (4) the future course of this action, including the scheduling of proceedings and the authority of the Magistrate and the Special Masters.


 In all of their submissions to this Court, defendants have vigorously and consistently raised the jurisdictional issue. They insist that an irreconcilable conflict exists between the antitrust laws and the regulatory scheme established by the relevant statutes, *fn17" that when there is such a conflict the antitrust laws must give way, and that therefore the Court lacks jurisdiction over this action. While in many respects defendants' contentions constitute rearguments of matters rejected by Judge Waddy in his order of November 24, 1976, in view of the importance of this issue, and since a claim of lack of jurisdiction may be raised and entertained at any time (Rule 12(h) (3), F.R.Civ.P.), I have independently considered the jurisdictional issues. Upon such reconsideration, I concur with Judge Waddy's conclusion that regulation by the Federal Communications Commission and state regulatory bodies does not immunize defendants from this antitrust action.

 Telecommunications carriers clearly do not enjoy an express statutory immunity from antitrust enforcement with respect to the activities here involved. While Congress has not hesitated in so many words to exempt the practices of other industries from the antitrust laws, *fn18" and while it has statutorily exempted some activities of telephone companies from those laws, *fn19" it has not done so with respect to the conduct which is the subject matter of this complaint. Likewise, defendants have cited nothing in the legislative history of the statutes regulating the telecommunications industry which would lead to the conclusion that an antitrust immunity was contemplated when those statutes were enacted. Thus, if the Court lacks jurisdiction, it could only be because defendants enjoy an immunity by implication, resulting from an incompatibility between the antitrust laws and the statutes which regulate the telecommunications industry.

 The problem created by the tension between the antitrust laws and economic regulation has been long recognized. See, e.g., United States v. Trans-Missouri Freight Association, 166 U.S. 290, 41 L. Ed. 1007, 17 S. Ct. 540 (1879); 2 A. Kahn, The Economics of Regulation: Principles and Institutions 1, 4-5 (1971). Broadly speaking the antitrust laws are rooted in the proposition that the public interest is best protected by competition, free from artificial restraints such as price-fixing and monopoly. *fn20" The theory of regulation, on the other hand, presupposes that with respect to certain areas of economic activity the judgment of expert agencies may produce results superior to those of the marketplace, *fn21" and that for this reason competition in a particular industry will not necessarily serve the public interest. *fn22" Because of these divergent objectives, it could be, and has been, argued that whenever the Congress has established a scheme of regulation through an independent commission, it must be deemed to have determined that the antitrust laws should not apply to the industry thus being regulated. That, however, is not the law.

 The Supreme Court has repeatedly noted that "repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions." Otter Tail Power Co. v. United States, 410 U.S. 366, 373, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973), quoting United States v. Philadelphia National Bank, 374 U.S. 321, 10 L. Ed. 2d 915, 83 S. Ct. 1715 (1963). Accord, Federal Maritime Commission v. Seatrain Lines, Inc., 411 U.S. 726, 733, 36 L. Ed. 2d 620, 93 S. Ct. 1773 (1973); Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 126, 38 L. Ed. 2d 348, 94 S. Ct. 383 (1973); Carnation Co. v. Pacific Westbound Conference, et al., 383 U.S. 213, 217-8, 15 L. Ed. 2d 709, 86 S. Ct. 781 (1966); Silver v. New York Stock Exchange, 373 U.S. 341, 357-8, 10 L. Ed. 2d 389, 83 S. Ct. 1246 (1963); United States v. Borden Co., 308 U.S. 188, 198-9, 84 L. Ed. 181, 60 S. Ct. 182 (1939).

 Regulated industries "are not per se exempt from the Sherman Act" ( Georgia v. Pennsylvania R. R. Co., 324 U.S. 439, 456, 89 L. Ed. 1051, 65 S. Ct. 716 (1945)), *fn23" and they are not necessarily exempt even if the conduct complained of in an antitrust context has been expressly approved by the agency charged with regulating the particular industry.

 In United States v. Radio Corporation of America, 358 U.S. 334, 3 L. Ed. 2d 354, 79 S. Ct. 457 (1959), a decision by the Federal Communications Commission specifically approving an exchange of television stations was asserted as a defense to an antitrust divestiture action. The Supreme Court rejected that contention, holding, as Mr. Justice Harlan expressed it in his concurring summary of the Court's decision (358 U.S. at 353), "a Commission determination of 'public interest, convenience, and necessity' cannot either constitute a binding adjudication upon any antitrust issues that may be involved in the Commission's proceeding or serve to exempt a licensee pro tanto from the antitrust laws. . . ." *fn24" See also California v. Federal Power Commission, 369 U.S. 482, 8 L. Ed. 2d 54, 82 S. Ct. 901 (1962); United States v. Philadelphia National Bank, supra ; Otter Tail Power Co. v. United States, supra. *fn25"

 These principles have been applied to the area of jurisdiction of the Federal Communications Commission ( United States v. Radio Corporation of America, supra) and to telephone companies specifically. E.g., Industrial Communications Systems, Inc. v. Pacific Tel. & Tel., 505 F.2d 152, 156 (9th Cir. 1974); International Tel. & Tel. v. General Telephone & Electronics Corp., 351 F. Supp. 1153, 1182 (D. Hawaii, 1972), aff'd. in part and rev'd. in part, 518 F.2d 913, 918-20 (9th Cir. 1975); Macom Products Corp. v. Am. Tel. & Tel. Co., 359 F. Supp. 973 (C.D. Cal. 1973).

 Regulated conduct is, however, deemed to be immune by implication from the antitrust laws in two *fn26" relatively narrow instances: (1) when a regulatory agency has, with congressional approval, exercised explicit authority over the challenged practice itself (as distinguished from the general subject matter) in such a way that antitrust enforcement would interfere with regulation ( Pan American World Airways v. United States, 371 U.S. 296, 9 L. Ed. 2d 325, 83 S. Ct. 476 (1963); Gordon v. New York Stock Exchange, 422 U.S. 659, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975); United States v. National Association of Security Dealers, 422 U.S. 694, 45 L. Ed. 2d 486, 95 S. Ct. 2427 (1975)), and (2) when regulation by an agency over an industry or some of its components or practices is so pervasive that Congress is assumed to have determined competition to be an inadequate means of vindicating the public interest. Otter Tail Power Co. v. United States, supra, 410 U.S. at 373-78; United States v. National Association of Security Dealers, supra ; Silver v. New York Stock Exchange, supra.

 Gordon v. New York Stock Exchange, supra, upon which defendants heavily rely, and United States v. National Association of Security Dealers (NASD) , supra, decided the same day, are the most recent Supreme Court expressions on the kind of analysis that must be applied in determining when an antitrust suit will lie against a member of a regulated industry.

 Gordon was an action brought by small investors who challenged a system of fixed stock exchange commission rates sanctioned by the SEC. In its decision, the Court reaffirmed what it had held many times before: that repeal of the antitrust laws is not favored; that repeal will be implied only where there is a plain repugnancy between antitrust and regulatory provisions and then only to the minimum extent necessary; that in the absence of regulatory supervision there can be no conflict; and that both the presence of a pervasive regulatory scheme and the existence of regulatory action under a specific regulatory provision are factors in finding a repeal of the antitrust laws by implication (422 U.S. at 682-689). The Court then went on to find regulation by the SEC to be such regulatory action, and section 19(b)(9) of the Securities Exchange Act of 1934, 15 U.S.C. § 785(b), which grants to the Commission review power over the fixing of commission rates, to be such a specific regulatory provision.

 The Court indicated that in making that determination it was heavily influenced by two factors: (1) by granting to the SEC permission to approve the fixing of commission rates after the Court's decision in United States v. Trenton Potteries Co., 273 U.S. 392, 71 L. Ed. 700, 47 S. Ct. 377 (1927) (which had held this kind of rate fixing to be a per se violation of the Sherman Act), the Congress had made a deliberate choice to give the agency the authority to supervise self-regulation with respect to commission rate fixing (422 U.S. at 681, 685), and (2) the Commission had "taken an active role in review of proposed rate changes during the last 15 years" (422 U.S. at 685). Thus it concluded (422 U.S. at 681),


The statutory provision authorizing regulation, § 19(b)(9), the long regulatory practice, and the continued congressional approval illustrated by the new legislation, point to one, and only one, conclusion. The Securities Exchange Act was intended by Congress to leave the supervision of the fixing of reasonable rates of commission to the SEC. Interposition of the antitrust laws, which would bar fixed commission rates as per se violations of the Sherman Act, in the face of positive SEC action, would preclude and prevent the operation of the Exchange Act as intended by Congress and as effectuated through SEC regulatory activity. Implied repeal of the antitrust laws is, in fact, necessary to make the Exchange Act work as it was intended; failure to imply repeal would render nugatory the legislative provision for regulatory agency supervision of exchange comission rates.

 Similarly, in NASD, supra, the Court held that vertical restrictions in secondary market activities designed to maintain prices in brokerage transactions of specified mutual fund shares were precisely among the kinds of restrictions on competition that Congress might have thought were "necessitated by the unique problems of the mutual fund industry . . .' (422 U.S. at 729) when it enacted section 22(f) of the Investment Company Act of 1940, 15 U.S.C. § 80a-1 et seq. With respect to the alleged horizontal combination and conspiracy to prevent the growth of a secondary dealer market in the purchase and sale of mutual fund shares, the Court found the SEC's exercise of regulatory authority to be so pervasive as to confer an implied immunity. The Court held "fatal" to the government's complaint that the SEC had consistently and for nearly 35 years approved the restrictive agreements to which the activities the antitrust action sought to curb were ancillary (422 U.S. 733-4), and it found significant the SEC's urging that its authority would be seriously compromised if the agreements were deemed actionable under the Sherman Act (422 U.S. at 729). *fn27"

 Thus, the inquiry in this case must focus upon (1) whether the activities which are the subject of this complaint were required or approved by the Federal Communications Commission, pursuant to explicit statutory authority, in a way that is incompatible with antitrust enforcement, and (2) whether these activities are being so "pervasively" regulated that an immunity from antitrust action must be assumed. In my judgment, these questions must be answered in the negative.

 We do not start with a clean slate, neatly balancing whether there should or should not be antitrust jurisdiction. The complaint alleges serious violations of the Sherman Act, and if the government is able to prove these allegations, it follows that a substantial violation of that fundamental charter of American economic life has occurred. The burden is on defendants to demonstrate that they or their practices were intended to be exempt or immune from the broad mandate of the Act. To carry that burden, defendants rely on the Supreme Court decisions discussed above which found certain companies to be immune from the antitrust laws based upon a degree of regulation by government agencies which, as a practical matter, left them no choice but to follow the regulatory schemes and orders. But such regulation is not present in this case.

 At the outset, it must be noted that two of the defendants in the instant action, Western Electric and Bell Labs, are not subject to direct regulation by the Federal Communications Commission at all. Defendants' assertion that "each of the general charges of alleged conduct . . . relates to matters which are within the jurisdiction of the regulatory agencies" (Status Memorandum, p. 5), is contradicted by the more precise and more accurate statement of the Federal Communications Commission (Memorandum as amicus curiae, filed December 30, 1975, pp. 21-25) that it "has no direct regulatory responsibility for . . . Western Electric and Bell Laboratories," although it may indirectly affect them through its determinations of the reasonableness of expense and rate base items claimed by AT&T. See Smith v. Illinois Bell Telephone Co., 282 U.S. 133, 75 L. Ed. 255, 51 S. Ct. 65 (1930). Legislative history over the years shows that congressional concern over AT&T's intra-corporate structure never matured beyond directing the Federal Communications Commission to conduct a study. Once that study was completed (Federal Communications Commission, Report on the Investigation of the Telephone Industry in the United States, H.R. Doc. No. 340, 76th Cong., 1st Sess. (1939)), Congress took no further action, nor was the Commission given authority to take further action.

  Consequently, it has been the Federal Communications Commission's consistent position that it has no authority to alter, regulate, or otherwise to interfere with AT&T's internal structure, including its relationships with Western Electric and Bell Labs. See Federal Communications Commission, Report on the Investigation of the Telephone Industry in the United States, supra, at 487-589; Consent Decree Program of the Department of Justice, Hearings before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 2d Sess. Part II-Vol. II (1958); *fn28" Consent Decree Program of the Department of Justice, Hearings before the Antitrust Subcommittee of the House Committee of the Judiciary, 85th Cong., 2d Sess. Part II-Vol. III (1958); *fn29" Antitrust Problems of the Space Satellite Communications System, Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 87th Cong., 2d Sess. 281 (1962); *fn30" AT&T Charges for Interstate Telephone Service (Phase II) 64 F.C.C.2d 1 (1977), pp. 15, 18, 20, 27; and see International Tel. & Tel. Co. v. General Telephone & Electronics Corp., 518 F.2d 913 (9th Cir. 1975). Beyond broad general statements, defendants have cited nothing to the contrary. In view of this history, it is difficult to see on what basis Western Electric, Bell Labs, or the relationships involving them, could be considered immune from the antitrust laws on any theory.

 AT&T's Long Lines Department and the Bell Operating Companies are in a somewhat different posture, for they are subject to FCC regulation in a variety of ways, and the Commission has to a substantial extent exercised this authority. See, e.g., Specialized Common Carrier Services, 29 F.C.C.2d 870, 31 FCC.2d 1106 (1971), aff'd. sub nom., Washington Utilities and Transportation Commission v. Federal Communications Commission, 513 F.2d 1142 (9th Cir. 1975), cert. denied sub nom., National Association of Regulatory Utility Commissioners v. Federal Communications Commission, 423 U.S. 836, 46 L. Ed. 2d 54, 96 S. Ct. 62 (1975); MCI Communications Corp. v. Am. Tel. & Tel. Co., 496 F.2d 214 (3rd Cir. 1974). But there is nothing in either the Communications Act or the related statutes to suggest that, with respect to the activities and relationships *fn31" which are significant to this case, Congress intended to vest in the Federal Communications Commission such pervasive regulatory authority as to override antitrust considerations, nor is there anything to indicate that the antitrust laws are incompatible with the operation of these regulatory statutes as intended by the Congress.

 The situation here is thus considerably different from that presented in Gordon v. New York Stock Exchange, supra. *fn32" In Gordon the Supreme Court said that the antitrust laws could not be applied where the Congress had given the Securities and Exchange Commission exclusive jurisdiction to supervise the fixing of rates of commission for transactions on the stock exchanges and where the Securities and Exchange Commission had in fact exercised that jurisdiction. By contrast, the Federal Communications Commission has not been granted exclusive jurisdiction over what may be called the interconnection areas, *fn33" but by statute shares that jurisdiction with the courts. 47 U.S.C. § 406. *fn34"

 More importantly, the regulatory charter of the Commission itself, while broad in many respects, is at the same time relatively weak. For example, telephone tariffs--a primary regulatory tool--become effective upon filing by the carrier after 90 days notice without the necessity for Commission scrutiny or approval (47 U.S.C. f 203(b) (1)); a carrier may file a new or revised tariff at any time (47 U.S.C. § 204); and the power of the Commission to suspend a tariff is limited to a five-month maximum (47 U.S.C. S 204). The weakness of the regulatory scheme is reinforced by a volume of tariff filings beyond the capacity of the Commission to handle. During the 12-month period from September 1974 through August 1975, the Commission received 1,371 tariff filings totaling 11,491 pages, and because of this volume, it was able to investigate only a small percentage of the tariffs. Thus, it is not surprising that the Commission has concluded that "rate filings generally proceed from the carrier's independent judgment. . . ." Memorandum of FCC, filed December 30, 1975, pp. 19-20.

 The statutory weaknesses, the general inability of the Commission to scrutinize all the tariffs submitted to it, and perhaps other factors (e.g., the lack of adequate resources effectively to regulate AT&T, a corporate giant), *fn35" have produced the result of a far less than pervasive or specific regulation of the areas that are critical to this case. In any event, whatever the reasons, it is clear that regulation of defendants' conduct has not been such that this antitrust action would disturb or interfere with it. *fn36"

 The FCC--unlike, for example, the SEC in the stock exchange cases--has consistently taken the position that antitrust enforcement through court action is not precluded in this area. *fn37" In the Matter of Amendment of Subpart F of Part 1 of the Commission's Rules, 42 F.C.C. 905, 906, 910-912 (1959); In the Matter of the Applications of the Connecticut Water Co. & Woolridge Bros., Inc., 25 F.C.C. 1367, 1378 (1958). In its memorandum filed with the Court in this case on December 30, 1975, the Commission noted (p. 27):


To the Commission's knowledge, no court has ruled that the regulatory jurisdiction of the FCC and/or state agencies has ousted entirely the antitrust jurisdiction of the district courts. Several courts have expressly rejected that argument, and have held that primary jurisdiction referral is the appropriate accommodation . . . The Commission has accepted primary jurisdiction referrals in many cases, has resolved the issues referred for its consideration, and has certified back the results for the courts' ultimate determination . . . This procedure has satisfactorily accommodated the regulatory requirements, and the Commission believes it to be preferable to total ouster of the antitrust courts.

 Among the considerations it cited in support of its position, the Commission stressed, inter alia, that, while under section 214 of the Communications Act, 47 U.S.C. § 214, it has exclusive market entry authority, antitrust actions not only do not necessarily conflict with that authority, but might even complement it in appropriate circumstances; the courts and the Commission have concurrent responsibilities, but when there is a conflict, the doctrine of primary jurisdiction *fn38" is adequate to resolve the matter; the Commission has never considered its authority over equipment interconnection to displace the antitrust laws; and even with respect to tariffs, since, as noted supra, they often become effective without Commission scrutiny or approval, the courts appropriately exercise antitrust jurisdiction. *fn39"

 An examination of the complaint in this proceeding against the implied immunity doctrine and its philosophic underpinnings verifies the Commission's conclusion. *fn40" The allegations of the complaint describe conduct that quite obviously was not stimulated by regulatory supervision or coercion; it is of a character that reflects defendants' business judgment that its profits might be maximized if potential competitors were discouraged from entering the various markets AT&T controls. See Federal Maritime Commission v. Seatrain Lines, Inc., supra, 411 U.S. at 733; Otter Tail Power Co. v. United States, supra, 410 U.S. at 374; Silver v. New York Stock Exchange, supra.

 According to the complaint, *fn41" defendants have chosen to engage in a variety of predatory activities designed to shut out potential competitors from the telecommunications markets, including the denial to competing entities of interconnection privileges with AT&T's monopoly facilities; unlawful rate adjustments in response to competition; refusal to permit telephone customers to provide their own terminal equipment and to interconnect it to AT&T's network; and perpetuation of various production and marketing practices designed to curb competition. There is absolutely nothing to suggest that Congress expected the Commission to require or approve, or that the Commission did require or approve any of these practices. These activities not only violate the antitrust laws but they are also inconsistent with the purpose of the regulation, or at the very least they are not required or encouraged either by regulatory theory or by regulatory action.

 In such a posture, the abstract philosophical differences between regulation and competition will hardly serve to oust the antitrust laws from their normal function and effect. The purpose of the implied immunity rule is to eliminate adherence to antitrust standards when there are irreconcilable differences between the antitrust laws and federal regulatory statutes. *fn42" But the antitrust laws cannot be held hostage to a supposed irreconcilability between antitrust and regulatory enforcement when no such irreconcilability exists in fact, nor can the alleged unlawful actions of defendants be deemed protected from the Sherman Act by the cloak of generalized regulation of AT&T by the Commission.

 In short, it would be a gross misconception of the realities to equate the instant statutory scheme, the relatively weak regulatory controls which have implemented that scheme, and defendants' alleged activities which offend both the antitrust laws and the regulatory purposes, with the kind of explicit regulation endorsing industry conduct which the Supreme Court has held in relatively few instances to be inconsistent with antitrust enforcement. *fn43"

 There is another, alternative basis for reaching the same conclusion. This complaint alleges a broad conspiracy to monopolize various aspects of the telecommunications industry through a symbiotic relationship among AT&T, Western Electric, Bell Labs, and the Bell Operating Companies (see p. 2, supra). Even if it be assumed, arguendo, that the Commission exercised explicit regulatory authority over only some segments of the activities challenged in the complaint, it does not follow that defendants are immune from antitrust liability even with respect to them. Defendants' purpose is alleged to be the monopolization of the telecommunications service and equipment market, and the bulk of their conduct, including that revolving around Western Electric and Bell Labs, cannot under any reasonable view be regarded as immune from antitrust enforcement by virtue of regulation. In that circumstance, the remainder of the challenged conduct is likewise subject to antitrust consideration, both because it constitutes a means for achieving an unlawful end ( California Motor Transport v. Trucking Unlimited, 404 U.S. 508, 515, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972)), and because it represents one facet of a larger monopolistic scheme. See Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 222, 15 L. Ed. 2d 709, 86 S. Ct. 781 (1966); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 316, 34 L. Ed. 2d 525, 93 S. Ct. 573 (1973) (Marshall, J., dissenting).

 According to the government (Brief in Am. Tel. & Tel. Co. v. United States, No. 77-1109 (D.C. Dir.), pp. 5-6), defendants dominate three markets--long distance transmission, equipment manufacturing, and local franchise monopolies--and they use the leverage from their control of each to defend and support their monopoly position in the other two. It is precisely in this kind of situation, that the doctrine of primary jurisdiction is most useful, *fn44" and this Court is fully prepared to refer appropriate issues to the FCC under that doctrine (see note 45, infra). But it would subvert the purposes of the antitrust laws totally to sever from the case and to refer to the Commission some of the issues on the theory that it has exclusive jurisdiction when the consequence of such a referral would be that a significant portion of what is alleged to be one comprehensive, integrated, and mutually supporting conspiracy could never be considered by the courts. See Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 89 L. Ed. 1051, 65 S. Ct. 716 (1945). This would then leave the courts with a truncated antitrust action--a result that would stand the principle of careful non-interference between legitimate regulatory and antitrust enforcement on its head.

 While it is not necessary here to rely directly upon these "comprehensive monopoly" principles in adjudicating the jurisdictional issue, they provide additional and alternative support for the conclusion that antitrust jurisdiction has not been ousted by the regulatory scheme.

 For these reasons, the Court rejects defendants' contention that the Court lacks antitrust jurisdiction over the matters alleged in the complaint. However, in the event that it should subsequently appear after the issues have been crystallized--e.g., after discovery has been completed--that with respect to some of defendants' conduct the Commission has special expertise or there may be a conflict between antitrust enforcement and regulation, the issues relating to such conduct will be referred to the Commission under the doctrine of primary jurisdiction. *fn45" But there is no basis for defendants' continued insistence that the jurisdictional issue *fn46" is not settled *fn47" or that, until it is settled in their favor, it is not possible to proceed with this case in a way that is fair to both parties. The issue was decided against defendants by Judge Waddy, and his decision was not disturbed either by the U.S. Court of Appeals or the U.S. Supreme Court. Upon careful reconsideration, this Court again reaches the conclusion that it has jurisdiction of this action and that no part of this case is within the exclusive jurisdiction of the Federal Communications Commission. *fn48"


 Defendants have submitted a proposed order providing that "the plaintiff in this case is the government of the United States of America including all of the departments, agencies, bureaus, and other subdivisions thereof from which defendants have sought recovery." The effect of this order, if adopted by the Court, would be to subject all agencies and departments of the government to discovery under Rule 34 of the Federal Rules of Civil Procedure. The Department of Justice argues that only it is a party, and that discovery from other government agencies and departments must proceed under the more restrictive provisions of Rule 45, F.R.Civ.P. The question that is raised by these opposing positions is "who is the plaintiff?"

 It should be noted at the outset that some discovery has been and is being secured to a limited extent from government agencies other than the Department of Justice. On April 27, 1978, Magistrate Margolis, with the consent of the parties, entered Discovery Order No. 2, paragraph 4 of which requires some forty government agencies to respond to the following questions: (i) whether they will produce the documents designated in their entirety for inspection and copying; (ii) whether they object in whole or in part to defendants' designation and the reasons therefor; (iii) whether they will submit disputes over production of documents to the Magistrate for resolution without formal service of a subpoena; and (iv) whether they will submit claims of privilege to the Special Master or the Court for resolution. Generally, the agencies responded by stating that (i) they would not produce the documents in their entirety; (ii) they had objections to various aspects of the discovery sought; (iii) they would submit disputes over production to the Magistrate without formal service of a subpoena; and (iv) they would submit claims of privilege to the Special Master or the Court. *fn49"

  Plaintiff contends that the present arrangement, together with whatever discovery defendants may be able to secure under Rule 45, adequately protects defendants' interests, and that therefore it is not necessary to decide the issue posed by defendants' proposed pretrial order. This position is not well taken, for a number of reasons.

 First. The Department of Justice suggests that the voluntary system is working and will continue to work well. Yet it is apparent that problems already exist in the operation of that system, and these are likely to become magnified in the future. One difficulty is that the present procedure is cumbersome in view of the numerous agencies involved, the sheer size of the discovery requests addressed to them, and the fact that defendants are forced, more or less, to depend upon the good offices of the Department of Justice to secure this discovery.

 Another, perhaps potentially even more serious, drawback is that the voluntary system permits each agency to continue to view itself as a distinct entity with individual interests which do not necessarily parallel those of the government as a whole in the prosecution of this suit. Not only does this place practical burdens on defendants, but it adds an awkward tension to discovery. AT&T requires each agency's full cooperation to obtain the discovery it needs, and if the agencies were to be considered part of the plaintiff in this action, it would be entitled to that cooperation as a matter of right. But if the agencies are not included in the concept of "plaintiff," there is no such entitlement, and since the agencies (other than the Department of Justice) may have little to gain by their cooperation, whether by discovery or otherwise, they would be likely to limit the level of their participation in voluntary discovery to the minimum dictated by their own parochial interests.

 Second. When dealing with the government, effective sanctions are not available for noncompliance with requests under Rule 45. The only real sanction contemplated by that Rule is contempt of court, *fn50" and it is normally available only against the head of an agency rather than a subordinate. United States ex. rel. Touhy v. Ragen, 340 U.S. 462, 95 L. Ed. 417, 71 S. Ct. 416 (1951); Boske v. Comingore, 177 U.S. 459, 44 L. Ed. 846, 20 S. Ct. 701 (1900); Appeal of United States Securities & Exchange Commission, 226 F.2d 501 (6th Cir. 1955). Thus, should government departments be or become reluctant to produce records at any stage during this litigation, the Court's only remedy, if it intended to protect defendants' rights, would be to hold high officials in wholesale contempt. Whatever might be the theoretical amenability of heads of government departments to the Court's contempt power, in the context of its possible application to many officials in a great number of potential discovery disputes that power would undoubtedly prove to be an extremely blunt and unwieldy, and hence impractical, instrument. *fn51"

 Third. Rule 34 is a more manageable discovery mechanism than Rule 45 in a number of different respects. In the first place, under Rule 34, the parties proceed by request, without leave of the Court; discovery is limited only by the relevancy requirements of Rule 26(b) (1), F.R.Civ.P.; and the Court becomes involved only when production is objected to or there is non-compliance. See Rule 37, F.R.Civ.P. While Rule 45 discovery is likewise initiated by request of a party, a subpoena will issue only through the Clerk under seal of the Court. Moreover, the person to whom the subpoena is directed may move to quash it on grounds that it is unreasonable or oppressive, even if the material is otherwise relevant within the meaning of Rule 26. See Collins and Aikman Corp. v. J. P. Stevens & Co., 51 F.R.D. 219, 221 (D.S.C. 1971); Wright and Miller, supra, Civil § 2457, pp. 433-4. When a department is considered a party, the scope of governmental privileges it may claim is narrower than when it is not. Cf. Moore's Federal Practice, supra, paras. 26.60 [ 6 ], 26.61 [ 6.-1 ] ; Fleming v. Bernardi, 1 F.R.D. 624 (N.D. Ohio 1941); United States v. General Motors Corp., 2 F.R.D. 528 (N.D. Ill. 1942). Rule 45 could also be more expensive, since the Court may condition denial of a motion to quash upon an advancement of costs by the party on whose behalf the subpoena is issued. Rule 45(b) (2); United States v. International Business Machines Corp., 62 F.R.D. 526, 528-9 (S.D.N.Y. 1974); Blank v. Talley Industries, Inc., 54 F.R.D. 627 (S.D.N.Y. 1972). In this litigation, where defendants will have to undergo the expense of producing millions of their own documents, Rule 45 discovery might saddle them in addition with the expenses connected with the production of millions of documents from various government agencies. *fn52" Finally, the logistics of proceeding by subpoena against forty or more government agencies may be expected to be cumbersome. See, e.g., Freeman v. Seligson, 132 U.S. App. D.C. 56, 405 F.2d 1326, 1352 (1968).

 Fourth. This litigation and its discovery phase are likely to be protracted, and there is no assurance that the voluntary commitments of the several agencies and departments, such as they are, will stand the test of time. Discovery will take many months at a minimum (pp. 49-51, infra), and it is not unlikely that demands will be made which some agencies and departments will find uncomfortable. The temptation to renege on or further to condition the present voluntary arrangement will then be great, and endless, multifaceted disputes and concomitant delays are likely to ensue.

 For those reasons, defendants are entitled to a decision on their request for Rule 34 discovery, and hence the issue of who is the plaintiff in this case cannot be avoided. *fn53"

 There is surprisingly little law on the question of whether, for discovery purposes in an action instituted in the name of the United States the plaintiff is the Department of Justice or some broader entity. There are a few scattered decisions in the criminal area, involving the discovery mechanisms recognized by the Jencks Act (18 U.S.C. § 3500) and by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which, while not dispositive, *fn54" are certainly instructive. *fn55" Typical of these criminal cases is United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642, 650 (1971), where the Court of Appeals for this Circuit, in a case involving possession of evidence by the Bureau of Narcotics and Dangerous Drugs, held that this evidence was producible under the Jencks Act because "the duty of disclosure affects not only the prosecutor, but the government as a whole, including its investigative agencies." See also United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973); United States v. Erlichman, 376 F. Supp. 29, 36, 389 F. Supp. 95, 97 (D.D.C. 1974); Christoffel v. United States, 91 U.S. App. D.C. 241, 200 F.2d 734 (1952); cf. United States v. Burr, 25 F. Cas. 187, 191 (D. Va. 1807).

 The Department of Justice relies to the contrary *fn56" on such decisions as United States v. Dansker, 537 F.2d 40 (3rd Cir. 1976), and United States v. Trevino, 556 F.2d 1265 (5th Cir. 1977). However, it is apparent upon closer examination that these decisions do not support its argument. The documents involved in those cases were in the custody of probation officers, that is, agents of the court, rather than in that of officers of the Executive Branch. The most these cases can be said to stand for is that documents in the possession of the Judiciary or the Congress may sometimes be beyond the reach of criminal defendants (but see note 60, infra). However, the Department of Justice has produced nothing to suggest that, in criminal cases, the prosecuting entity can be anything less than the Executive Branch as a whole.

 There is a paucity of authority on this issue in the area of civil litigation, and there certainly has been no instance of discovery being sought or required on as broad a scale, involving as many departments of government, as in this case. However, again, the few decisions more or less in point lend at least some support to defendants' position. See, e.g., Harvey Aluminum v. National Labor Relations Board, 335 F.2d 749 (9th Cir. 1964); United States v. IBM, 60 F.R.D. 658 (S.D.N.Y. 1973), appeal dismissed, 493 F.2d 112 (2d Cir. 1974) cert. denied, 416 U.S. 995 (1974); and United States v. National Broadcasting Company, 65 F.R.D. 415, 419 (C.D. Cal. 1974), appeal dismissed, 421 U.S. 940, 95 S. Ct. 1668, 44 L. Ed. 2d 97 (1975); cf. United States v. ICC, 221 F. Supp. 584, 589 (D.D.C. 1963); Equal Employment Opportunity Commission v. Los Alamos Constructors, Inc., 382 F. Supp. 1373, 1383 (D.N.M. 1974).

 Even aside from precedent, however, it is clear that the limited theory of the nature of the "plaintiff" advanced by the Department of Justice is unacceptable. This action, as its caption indicates, was brought not on behalf of the Department of Justice but on behalf of the United States of America. Civil enforcement proceedings pursuant to section 4 of the Sherman Act have traditionally been so instituted, presumably because the antitrust laws are of quasi-constitutional breadth and significance, and constitute a means for protecting the economic interests of the citizens of this country, not infrequently on a national scale. In the vindication of broad economic policy, it simply makes no sense to hold that the Department of Justice, which essentially is a law office, alone comprises the United States. An ambassador negotiating with a foreign government, the Secretary of the Treasury who authorizes the floating of a bond issue, a military contingent taking action on foreign soil--they all do so not on behalf of their respective departments but on behalf of this nation as represented by its government. *fn57"

 The Attorney General, as the government's attorney and chief law enforcement officer is, to be sure, the official responsible for instituting and conducting the criminal and civil litigation of the United States. But neither he, nor the department he heads (much less the Antitrust Division), is the United States. Indeed, the basic charter of the Department of Justice (28 U.S.C. § 519) carefully distinguishes between the Attorney General and the government by providing that ". . . the Attorney General shall supervise all litigation to which the United States . . . is a party. . . ." See also, 28 U.S.C. §§ 501, 516-518.

 Insofar as this case is concerned, it takes little speculation to conclude that it would not have been brought without consultation with government executives involved in economic policy and possibly with the White House itself, or without prior inquiry into the relationship between defendants and various government departments. Where that is true, it hardly seems reasonable to insulate the entire government, other than the Attorney General's Office, from the direct discovery process of Rule 34.

 The theory of the government's case and the relief requested are national in scope and they are likely to involve the documents and the activities of a great number of government departments. Defendants have explained (Defendants' Status Memorandum, pp. 7-8) that "The principal purposes of defendants' document request were to show the extent to which the Bell System's structure and many of its practices are the result of the Government's own policies, the extent to which the Government, as the largest user of defendants' services, has benefited and continues to benefit from the Bell System's structure and practices, the extent to which the Government itself has recognized that the Bell System's horizontally and vertically integrated structure is vital to the nation's economy and to the national defense, the nature and extent of the regulation to which defendants are subject, the regulatory policies that have led to new entry into segments of the telecommunications industry. . . ." While the Court, of course, has not ruled on the relevance of specific requests or categories of requests for documents, it is apparent that defendants will need access to the records of many government agencies, and that fairness to them requires that such access be as unencumbered as the Federal Rules will allow. *fn58"

 Plaintiff has expressed the fear that a precedent against its position here might encourage other litigants in other cases to rummage through the files of the entire government, and so paralyze both the work of numerous agencies and that of the courts. The short answer is that in the various respects described above, the instant case is relatively unique. The Court today holds only that on these peculiar facts, which involve massive and wide-ranging allegations, and in this peculiar action, which involves many departments and their evidence, the United States, having filed the action, *fn59" cannot claim to be merely the Department of Justice.

 That conclusion does not end the inquiry, however, for not all of the agencies from which documents are being sought are directly a part of the Executive Branch. As noted, supra, at p. 27, and in such cases as Dansker and Trevino, even in criminal cases discovery does not always *fn60" reach the courts (and, for the same reasons, presumably not the Legislative Department). A fortiori civil discovery may be regarded as similarly limited. But a more difficult problem is raised by plaintiff's request under Rule 34 for documents in the possession of the Federal Communications Commission and other independent regulatory agencies. That request must be denied, for a number of reasons.

 First. There is no basis for holding that a quasi-legislative agency, which the law necessarily regards as an independent body created to execute impartial regulatory responsibilities, becomes a "plaintiff" when the Department of Justice chooses to file a lawsuit on behalf of the United States. *fn61"

 Humphrey's Executor v. United States, 295 U.S. 602, 79 L. Ed. 1611, 55 S. Ct. 869 (1935), settled once and for all the character of such agencies. The Court's holding in that case may be summarized by its simple statement that "the Federal Trade Commission . . . cannot in any proper sense be characterized as an arm or an eye of the executive . . . and . . . [ it ] must be free from executive control" (295 U.S. at 628). This principle is firmly rooted in our laws, and has been continually reaffirmed to the present day. See, e.g., Buckley v. Valeo, 424 U.S. 1, 132-6, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976); Planning Research Corp. v. Federal Power Commission, 181 U.S. App. D.C. 33, 555 F.2d 970 (1977). As a study of regulatory agencies conducted last year by the Committee on Governmental Affairs of the U.S. Senate found:


Critical to an understanding of the independent form is a recognition that the agencies were intentionally created to be somewhat apart from the rest of the government, in general, and from the White House in particular. It was no accident: Congress wanted regulatory agencies that in fact were not capable of being fully integrated into the executive branch.

 Study on Federal Regulation (Committee Print), prepared pursuant to S. Res. 71, Senate Committee on Governmental Affairs, 95th Cong., 1st Sess., Vol. 5, pp. 25, 30n.17 (1977). *fn62"

 The independence of the Federal Communications Commission from executive control is underscored by the fact that its Commissioners are appointed for fixed terms of seven years; that the terms do not all lapse at the same time; and that Commission members do not serve at the pleasure of the President. Study on Federal Regulation, supra, pp. 32-39. It is presumably also because of its independent status that the Commission's records are by law placed within the sole "custody" of the Secretary of the Commission. See 47 U.S.C. § 412.

 Second. The plain fact is that a party cannot produce that which it does not have. Cf. LaChemise LaCoste v. The Alligator Company, Inc., 60 F.R.D. 164, 172 (D. Del. 1974). In a very real, practical sense, the FCC's records are not in the control of either the Department of Justice or the Executive Branch. If, for example, the head of an Executive Department refused to produce documents required to assist the Department of Justice to prosecute this litigation to its conclusion, the Attorney General could then enlist the aid of the President, who, presumably, would direct their release. Yet, in view of the independent status of a regulatory agency such as the Federal Communications Commission, and the fact that its Commissioners are not subject to removal and therefore not to discipline by the President, the agency is essentially immune from executive direction. *fn63"

 In short, both as a conceptual and as a practical matter, the Federal Communications Commission is free from executive control and not answerable to instructions from the President or the Attorney General. *fn64" To hold it to be a part of the "plaintiff" herein would not only contradict over forty years of legal history, but would effectively leave the conduct of this lawsuit, and perhaps of other actions brought by the government, vulnerable to a virtual veto by one or more independent regulatory agencies. See Rule 37, F.R.Civ.P. *fn65"

 Third. There remains a definite possibility, as noted supra, at p. 21, that one or more issues will be referred by the Court to the Commission under the doctrine of primary jurisdiction. *fn66" Treatment of the Commission as a party plaintiff might well be incompatible with its role as a decision-maker under that doctrine. Moreover, the Commission's responsibilities as the ongoing regulator of AT&T and its competitors cannot be ignored. The treatment of documents generated in the exercise of those responsibilities will require the utmost sensitivity--a treatment for which Rule 45 discovery is particularly well suited.

 In memoranda submitted to the Court, the Federal Communications Commission indicated that it had "not closed the door on voluntary production" should defendants pare down their discovery requests to "reasonable levels, so that the FCC will not be unduly burdened and will not be asked to turn over obviously privileged material." FCC Memorandum of January 23, 1978, p. 17. In the context of one or a few independent regulatory agencies, without the distractions of forty other government agencies with their babel of differing views and interests on the production question, such voluntary cooperation is likely to prove practical and meet all the legitimate requirements of defendants. Should it ultimately prove that the Commission's response to requests from defendants is too niggardly, the defendants may always seek the assistance of the Court under Rule 45. The Court, on its own or through the Magistrate (see infra, p. 56), stands ready to assist them to the full extent of its authority with respect to any legitimate requests.


 Discovery Order No. 2, entered by Magistrate Margolis on April 27, 1978, requires inter alia that defendants produce for inspection and copying all microfilm copies of documents, transcripts, and exhibits produced in connection with a number of antitrust actions brought by private parties against AT&T in other districts. Defendants have appealed this order to the Court, contending that, for a number of different reasons, such a requirement is inconsistent with the spirit, if not the letter, of the Federal Rules of Civil Procedure.

 It is appropriate initially to articulate precisely what is currently at issue between the parties with respect to Discovery Order No. 2. The order may be read to include three types of documents generated in seven other court proceedings: *fn67" (1) documents (or microfilm copies of documents) produced by AT&T to the private plaintiffs, and selected for use by the private plaintiffs, (2) documents produced by the private plaintiffs to AT&T, and (3) documents produced by third parties to AT&T, to the private plaintiffs, or to both. According to the United States, however, it seeks only those documents in the first of these three categories. Report for the United States concerning Magistrate's Order No. 2, filed June 7, 1978. *fn68" Moreover, it has actively pursued its request for production with respect to documents produced in only two of the other court proceedings. See note 91, infra. Thus, the question before the Court is whether defendants should be required in this proceeding to produce to plaintiff here copies of documents previously produced and selected for use in the lawsuits brought against defendants by Litton Systems, Inc. and MCI Communications Corp. in the Southern District of New York and the Northern District of Illinois, respectively. *fn69"

 Defendants initially contend that the order constitutes an abuse of the discovery process, relying principally on GAF Corporation v. Eastman Kodak Company, 415 F. Supp. 129 (S.D.N.Y. 1976). *fn70" In the course of that antitrust case Eastman Kodak produced a great many documents, several thousand of which were produced under a seal of confidentiality, and all of which--by agreement of the parties--were to be used "solely for the purposes of [that] litigation." Approximately three years after the lawsuit was begun, the Antitrust Division of the Department of Justice requested from GAF certain documents that GAF had received from Eastman Kodak by means of this discovery procedure. GAF then requested permission from the court to deliver the documents. Judge Marvin Frankel denied that request and entered a protective order prohibiting the transfer. He noted that although there was little precedent on the issue, the circumstances of the case, including, inter alia, the understanding between the parties, and the lack of assurances that the Department of Justice was not seeking the documents for the purpose of bringing a criminal action against Eastman Kodak, warranted the prohibition. *fn71"

 While such a result maywell have been appropriate in the context of the GAF circumstances, it is by no means dictated here. In GAF, the government was not engaging in the discovery process as a party to that or any other litigation involving either GAF or Eastman Kodak. Quite the contrary, it sought the materials for investigatory purposes, presumably in anticipation of initiating a proceeding against Eastman Kodak. *fn72" Here, on the other hand, the government seeks the documents as a plaintiff in this litigation under the mechanism of Rule 34, F.R.Civ.P. As a defendant in this litigation, AT&T's duty to produce is squarely resolved by Rules 26 and 34, F.R.Civ.P., which provide for the production of relevant documents within a party's possession, custody, and control. The documents here sought are, and always have been within defendants' possession, since they are defendants' own documents. *fn73" Conceptually it makes no difference under the Rules whether as such they represent the product of some process of selection worked out between the parties in the other actions or whether that process never took place.

 Defendants here do not and cannot dispute that in the normal course of discovery in this litigation the government would be entitled to production of the same 12 million pages of documents (subject to claims of relevancy and privilege) they produced in the Litton and MCI lawsuits. *fn74" What plaintiff is seeking to do is to obtain some lesser number of documents, perhaps some 2.5 million, *fn75" by eliminating for purposes of production in this case all those which the attorneys for Litton and MCI have already determined to be irrelevant. The only effect of the procedure requested by plaintiff, then, is to exclude the bulk of the records from even being considered for production here. The Court can find no basis for concluding that AT&T is suffering legal injury as a result of such a narrowing of the volume of the documents to be produced.

 If anyone would have a legitimate complaint concerning this procedure, it would be the plaintiffs in the private lawsuits, who could conceivably assert a work product privilege. See generally, 8 Wright and Miller, Federal Practice and Procedure, Civil, § 2021 (1974). *fn76" Yet, not only have these plaintiffs not asserted that privilege, but they have affirmatively agreed with the procedure proposed by the government. Defendants have cited no authority for what would appear to be a startling proposition: that they may assert a work product privilege claim on behalf of their opponents in other lawsuits.

 To be sure, to the extent that the government will not need to review the millions of documents generated by AT&T at the request of the private plaintiffs and may confine itself to the more limited number of records which those plaintiffs found useful, it will ease the government's discovery burden and speed this litigation along. But defendants have no legal interest in making the government's accumulation of proof more difficult or in delaying a trial on the merits. The intricacies of common law pleading and procedure, whereby a party could, through artifice, prolong litigation or avoid adjudications on the merits, have long given way to more sensible, merit-oriented processes. As one court has noted, "one of the purposes of the Federal Rules of Civil Procedure was to take the sporting element out of litigation, partly by affording each party full access to evidence in the control of his opponent." Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961). See also Dienstag v. Bronsen, 49 F.R.D. 327, 328 (S.D.N.Y. 1969); Hawes v. C.E. Cook & Co., 64 F.R.D. 22, 28-29, n. 3 (W.D. Mich. 1974). It would not advance but defeat the purpose of the Rules to require plaintiff in this case to proceed laboriously, and possibly at the cost of several years' delay, to duplicate the document selection process conducted by the plaintiffs in Litton and MCI when the fruits of that process are readily available and in the possession of a party to this very litigation, and when those who conducted the search do not object. *fn77"

 Defendants next argue that unspecified portions of the requested documents might be irrelevant to this litigation, or privileged, and that therefore the Court may not order their production until (1) the government has made specific designations of classes of documents in terms of their relevancy to this action, and (2) the defendants have screened the documents to eliminate privileged materials. These contentions will be considered seriatim.

 As regard specificity, defendants are of course correct in their assertion that Rule 34, F.R.Civ.P., requires that a party seeking discovery frame its request in terms of specifically designated relevant documents. But it is well settled that under the Rule "even a generalized description should be sufficient when . . . the party from whom discovery is sought will have no difficulty in understanding what is wanted." Wright and Miller, supra, Civil, sec. 2211, p. 634; Roebling v. Anderson, 103 U.S. App. D.C. 237, 257 F.2d 615, 620 (1958); Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348 (S.D.N.Y. 1973). Since defendants have expressly acknowledged that they do know in fact what documents they produced in MCI and Litton (see note 74, supra), they have no basis for their claim that the government's designation of documents is inadequately specific.

 As regards relevancy, the government's request complies in substance, if not in form, with the requirements of the Federal Rules. *fn78"

 In support of its discovery requests, the government asserts, and defendants do not deny, that the subject matter of this case virtually embraces the subject matter of Litton and MCI. A comparison of the complaint in this case (as amplified by the government's Preliminary Designation of Issues filed June 9, 1978) with the complaints filed in Litton79 and MCI80 reveals that none of the claims and issues involved in those cases is either foreign to or broader than the claims and issues raised in this case. If the government's request--instead of being couched in terms of a general request for the Litton and MCI documents--had been stated expressly in terms of the precise issues, claims, and transactions in those cases, defendants could hardly be heard to complain that the designation of documents was insufficient in terms of relevancy.

 The only substantial difference between the claims and issues involved in the government's case here on the one hand, and those involved in the Litton and MCI cases on the other hand, is that the former subsume the latter. In effect, Litton and MCI each represent a separate and identifiable segment of the government's case here. Thus, a fortiori, the documents relevant to those actions would be relevant here; their relevancy is further assured by their having been thoroughly screened for relevancy in the private actions.

 To be sure, neither the confluence of issues in the private lawsuit with those in this lawsuit, nor the findings of relevancy made in those private actions, are determinative, and some of the documents produced by AT&T in Litton and MCI may ultimately be found to be outside the range of relevancy within the meaning of this action. But the discovery rules do not require absolute precision, and no order of production can serve as a guarantee that every document produced will be relevant. *fn81" If the purposes of the Rules, and of pretrial discovery generally are to be effectuated, actual discovery must be expected to be somewhat of a "fishing expedition," *fn82" particularly in antitrust and similarly complex litigation. *fn83"

 It is difficult to envision what prejudice could ensue from the production of documents, a small number of which might turn out not to be relevant to this lawsuit. To the extent that any irrelevant documents are produced, defendants will be amply protected by this Court's protective order, which will maintain the confidentiality of all documents produced, and order the return of any irrelevant documents to the defendants. *fn84"

  This Court is not required to compel plaintiff to engage in a time-consuming reenactment of the discovery process engaged in by the Litton and MCI plaintiffs, with the result that eventually, that is, several years later, essentially the same documents will be produced. The Court clearly has the authority under the Federal Rules to order production of documents which are--on any reasonable interpretation of that concept--relevant, and through a process which fully protects the legitimate interests of defendants. *fn85" There is no basis in the law or common sense to prescribe the more cumbersome procedure. *fn86"

 This, then, leaves only defendants' claims as to privilege. In this regard, defendants are entitled to a mechanism (1) for honoring appropriate claims of privilege and (2) for insuring, by means of an appropriate protective order, that any privileged documents produced to plaintiff will not be used improperly. On December 16, 1976, the parties stipulated to and the Court approved such a mechanism in this proceeding in Pretrial Order No. 7. This order is presently in full force and effect, and provides, inter alia, that:


WHEREAS, the need for prompt and orderly discovery is not inconsistent with the ability of parties to make some examination to determine whether documents and other discovery materials are protected, privileged, or work product, but may make it impossible for them to conduct such examination on a sufficiently thorough basis to ensure that their rights are fully protected with respect to such documents and other discovery materials. . . .


* * *




* * *


3. All documents and other discovery materials encompassed within any document request or interrogatories as to which a claim of privilege or work product is asserted by any party shall be regularly referred at reasonable intervals to the Special Master during the production of documents for a decision as to whether or not said documents or materials must be produced and under what conditions.


4. The production of any document or other discovery material by plaintiff or defendants under this Order shall be without prejudice to any subsequent claim that such material is immune from discovery by reason of law or statute, privileged under Rule 26 of the Federal Rules of Civil Procedure, or protected from discovery as work product within the meaning of Rule 26 of the Federal Rules of Civil Procedure; and no party shall be held to have waived any such rights by such production. Any document or other discovery material produced to an opposing party with respect to which a claim of privilege or work product is subsequently made shall be returned forthwith to the Special Master for determination of the legitimacy of the claim and all copies thereof shall be returned to the party producing the same.

  The order expressly contemplates that "because of a need for prompt and orderly discovery" not all claims of privilege will be asserted prior to or at the time documents are produced, and it therefore reserves to the parties the right to assert claims of privilege in appropriate instances subsequent to production. It further provides a comprehensive scheme for treatment of privileged documents that fully protects against their improper use or disclosure by either party. Inasmuch as there is presently a clear need for prompt and orderly discovery, this stipulation and order would seem to have been tailored for precisely the situation in which the parties find themselves now.

  Accordingly, the Court has this day entered Pretrial Order No. 11 which requires defendants to produce by November 1, 1978, all of the approximately 2.5 million documents produced by them in Litton and MCI and selected for use by those private plaintiffs. Documents as to which defendants wish to assert a claim of privilege are to be segregated *fn87" and delivered to the Special Masters by that date. *fn88" To the extent that defendants are unable to determine by that date all claims of privilege they wish to assert, they shall, in the manner prescribed in Pretrial Order No. 7, deliver the documents to plaintiff and assert appropriate claims of privilege subsequently. *fn89" Pretrial Order No. 11 further directs plaintiff to bring this Order to the attention of the U.S. District Court for the Southern District of New York and the U.S. District Court for the Northern District of Illinois, and to request leave *fn90" from those courts for the production of such documents notwithstanding any protective orders that may have been entered therein. *fn91"


  The complaint herein was filed in November of 1974, and the answer in February of 1975. During the three and one-half years since then, all proceedings were effectively halted for a total of 31 months, first by a stay issued by this Court on February 27, 1975, which expired on December 16, 1976, and then by two stays issued by the U.S. Court of Appeals (while defendants were proceeding by way of writ of certiorari from the Court's order of November 24, 1976)--from January 25, 1977, to May 27, 1977, and from August 11, 1977, to November 28, 1977. During the infrequent periods--lasting no more than a few months at a time--when the proceedings were not under a stay order, relatively little discovery was being carried on. Thus, in spite of its age, this case has not come close to going to trial.

  The delays until now, while certainly regrettable, cannot be regarded as either purposeful or unnecessary. In view of the importance of the issues involved, the defendants had the right to seek review of the rulings of this Court from appellate tribunals; the stays ordered by this Court and the U.S. Court of Appeals were appropriate to preserve the status quo; and the slowdown of discovery activities cannot be regarded as unexpected while significant issues having a potentially decisive bearing upon the proceedings in this case were under consideration. Thus, while the parties in their respective memoranda submitted to this Court in anticipation of the status hearing on August 21, 1978, have repeatedly, and with perhaps unnecessary acerbity, blamed each other for intentional delaying tactics, the Court has neither desire nor cause to cast blame upon either party for the delays that have occurred until the present.

  However, in view of the Court's decision today on all major outstanding issues, the time is ripe for sketching out a procedural plan to move this litigation expeditiously along toward its disposition without doing violence to the legitimate rights of the parties. Defendants point out in their reply to the government's status memorandum that delay in this case "is an incredible burden to the Bell System involving as it does a cloud over its entire future existence and the need to divert vast resources, both in the form of financial expenditures and in the diversion of personnel critically needed in the provision of service to the public." *fn92" Likewise, if the government's charges of a vast and unlawful monopoly in the telephone and telecommunications area are correct, it, and the public, have an interest in seeing to it that appropriate remedial action is taken at the earliest opportunity.

  The complaint, as defendants have pointed out, is sweeping, broad, and vague. This has not only had the effect of making it difficult for defendants to formulate their defenses, *fn93" but it has also been an obstacle to discovery. Absent greater precision and specificity with respect to the government's claims, discovery is likely to remain so unfocused as to be both unduly expensive and unmanageable. Moreover, it is generally agreed that one key to the swift disposition and firm management of cases such as this is a narrowing of the issues. *fn94" Thus, it is essential that this relatively amorphous complaint be shaped as quickly as possible into specific allegations, and that a continuing mechanism be established for identifying and narrowing the issues and specifying the evidence to be relied upon by both plaintiff and defendants.

  After considering defendants' request for greater specificity, *fn95" plaintiff's offer to submit a preliminary order of proof, *fn96" and the need for expeditious processing of this litigation and an appropriate limitation on discovery, an order to govern pretrial proceedings (Pretrial Order No. 12) *fn97" is being entered this date. *fn98"

  In essence, that order provides that the parties shall file four successive Statements of Contentions and Proof over the next eighteen months, each to become progressively more specific than the last, and each to be followed by a special pretrial conference. The filing of the final statements shall signal the close of discovery.

  Thus, by November 1, 1978, plaintiff shall file a Statement of Contentions and Proof, in which it shall describe, with specificity, each of the government's legal and factual contentions, including the activities of the defendants it expects to rely upon to prove its charges of violation of Section 2 of the Sherman Act. Under the heading of each factual contention, the statement shall list the witnesses and the documentary and other evidence *fn99" which will be used to support theclaim that such activity was carried on to effect unlawful combinations in violation of the antitrust laws, or which will otherwise support the allegations of the complaint. The statement shall describe the extent to which such evidence is presently in the possession of the plaintiff, or where, in the government's view, it may be found.

  Defendants shall then have until January 1, 1979, to file their first Statement of Contentions and Proof in which they shall state their factual and legal contentions in response to plaintiff's claims, the factual and legal basis for their affirmative defenses, if any, and the documentary or other proof they expect to rely upon in support of each factual contention. Defendants' statement shall be organized in a manner similar to that of plaintiff and it shall be similarly detailed.

  Within thirty days thereafter, a special pretrial conference *fn100" shall be held before the Magistrate *fn101" in accordance with Rule 16 F.R.Civ.P. and 28 U.S.C. § 636, for the principal purposes of narrowing and simplifying the issues, *fn102" arriving at stipulations of uncontroverted facts, and reducing further unnecessary discovery. *fn103"

   Each of the parties shall file three additional Statements of Contentions and Proof, and three additional special pretrial conferences shall be held successively thereafter, as follows. The government shall file its second, third, and fourth statements by April 1, 1979, October 1, 1979, and April 1, 1980; defendants shall file their second, third, and fourth statements by May 1, 1979, November 1, 1979, and April 1, 1980; *fn104" and special pretrial conferences shall be held on or about June 1, 1979, December 1, 1979, and May 1, 1980. *fn105" Some of these pretrial conferences, particularly the later ones, may be conducted by the Court rather than the Magistrate. On April 1, 1980, contemporaneously with the submission of the final statements, all discovery shall be closed.

  If the issues are to be narrowed and this case is to be brought to trial within a reasonable period of time, it is essential that the parties be bound by their Statements of Contentions and Proof. Accordingly, after a party has filed a statement, it will be restricted to discovery within the limitations of the issues identified by that statement and the contemporaneous opposing statement. Likewise, with the exceptions noted below, subsequent statements may not enlarge upon or add to contentions previously made, and they will have as their purpose not the inclusion of matters neglected or overlooked in earlier statements, but the further narrowing and tightening of matters in dispute between the parties.

  Discovery will also be restricted to data relevant to proof of propositions which are material, as distinguished from merely generally relevant conduct, periods of time, or areas (see Carlson Companies, Inc. v. Sperry & Hutchinson Co., 374 F. Supp. 1080, 1101 (D. Minn. 1974); Professional Adjusting Systems of America, Inc. v. General Adjustment Bureau, Inc., 373 F. Supp. 1225, 1229 (S.D.N.Y. 1974); Dolgow v. Anderson, supra), and proof at trial will be limited to the issues framed by the final statements and the last pretrial order. *fn106"

  To be sure, in the early stages of this process the parties may not be able to be fully definitive as to either the evidence or the specific contentions that will be based on that evidence. *fn107" Accordingly, upon leave of the Magistrate, which will be freely granted with respect to a request based upon new discovery, the second statement may enlarge upon the first, either by broadening existing contentions or by adding new contentions. Cf. Rule 15, F.R.Civ.P. *fn108" Thereafter, however, the burden to justify a departure from previous statements shall become progressively heavier. After the parties file their second statements, an enlargement will be allowed only upon good cause shown, and after the third statements are filed, any amendment, other than by way of limitation, will be granted only to prevent "manifest injustice. Shuber v.S.S. Kresge Co., 458 F.2d 1058 (3rd Cir. 1972); Solar Fuel Co. v. United Mine Workers, 346 F. Supp. 789 (W.D. Pa. 1972); 3 Moore's Federal Practice, supra, p. 1620; and see generally, J. Withrow and R. Larm, The "Big" Antitrust Case: 25 Years of Sisyphean Labor, supra, 62 Cornell L. Rev. at 26. These procedures will be enforced and administered to achieve a narrowing of the issues, *fn109" to apprise opponents and the Court of the status of the case, and to effect appropriate limitations on discovery.

  To a substantial extent, the development of discovery and the definition and clarification of issues present a classic "chicken and egg problem," i.e., "to be manageable, discovery ought to be confined to framed issues, but to be framed carefully, issues must be based on concrete knowledge." Antitrust Commission, Briefing Paper on Expediting Complex Antitrust Cases, p. 15; 62 Cornell L. Rev., supra, at 27. The authorities differ on how this dilemma should be resolved, that is, in what sequence and by what methods discovery and issue definition should take place. Some writers advocate that, in order to avoid the unnecessary production of documents and the taking of depositions which ultimately may not prove to be helpful, all discovery should be stayed until the issues have been clearly specified. See, e.g., 21 F.R.D. 395, et seq., Handbook of Protracted Cases (1958); R. McLaren, Procedure in Private Antitrust Cases, 21 F.R.D. 440, 446-47 (1957); and see generally, R. Savage, Limiting Discovery and Definition of Issues, 23 F.R.D. 456, 457-60 (1958). The highly respected Manual for Complex Litigation, on the other hand, takes the position that the issues cannot be defined until all discovery has more or less been completed; 1 Moore's Federal Practice, supra, para. 1.20; 1.70.

  In my judgment, in a suit of this magnitude it would be self-defeating either to let discovery continue on an almost unlimited basis, until the parties are prepared fully to define the issues, or to freeze discovery indefinitely in the illusory hope that the parties--without the benefit of discovery--will somehow acquire the capability to give concrete shape to the generalized issues raised by the complaint and the answer. Either course can lead only to procrastination. The short of the matter is that "the need to settle every conceivable dispute and to have every conceivable theory and fact presented must be balanced by the need for final resolution." 62 Cornell L. Rev., supra, at 24. *fn110" The procedures specified herein are designed to move the case along while seeking to escape the adverse consequences inherent in the several contending methods of handling the pretrial process. Discovery and issue definition will go hand in hand. Initially this will entail a certain amount of discovery thatwill have to be disregarded later--but as the issues are narrowed further, less and less irrelevant discovery should take place. Concomitantly the ongoing discovery process should provide the information necessary to narrow the issues.

  If mutually fair, appropriately complete, and expeditious discovery is to be effected, and if the real issues are to emerge at an early date, it is essential that the parties cooperate in good faith with each other, the Magistrate, the Special Masters, and the Court. Counsel will be expected to meet informally with each other whenever appropriate to attempt to iron out discovery disputes, and only when controversies are so genuine and substantial that they cannot be resolved informally shall they be submitted to the Court. *fn111"

  The parties are in agreement that the details of discovery must be closely supervised by a judicial officer if this case is to move expeditiously to a disposition on the merits. There is some difference of opinion as to whether these supervisory functions would best be exercised by the Court, the Magistrate, or the Special Masters and, indeed, to what extent some of these functions have previously been delegated to the Magistrate and the Special Masters.

  An order issued by the Court on February 7, 1978, provides in part that "the Court . . . will assign the case to Magistrate Margolis to direct the preparation of the pretrial discovery schedule and to perform such additional duties with respect to discovery and other matters as the Court may direct pursuant to 28 U.S.C. § 636(b) and Local Rules 3-8 and 3-9."

  The government has construed this order to mean that all discovery matters in this case were referred to the Magistrate for ongoing supervision and review, and Magistrate Margolis, as his Discovery Order No. 2 bears out, shares this view. Defendants, on the other hand, understand the February 7, 1978, order to mean that, except for the preparation of a discovery schedule, the Magistrate has no authority with respect to discovery or any other pretrial matters. Defendants recommend instead that the Special Masters, appointed pursuant to Pretrial Order No. 7, be utilized for resolving discovery disputes likely to arise in this case.

  This Court concurred with Judge Waddy when he designated Professors Rice and Hazard to serve as Special Masters. Under the order of reference, they have the responsibility for ruling on all claims of work product and other privilege asserted during the course of discovery. The Court is fortunate that these distinguished scholars have agreed to undertake this task, and it is fully committed to support them in the exercise of their duties. *fn112"

  At the same time, it appears that broadening the responsibilities of the Special Masters to include ruling on all discovery disputes, as suggested by defendants, would be inappropriate. The Special Masters will have an enormous responsibility, with respect to both volume and sensitivity, in passing upon claims of privilege advanced by defendants and many government departments. Moreover, each of the Special Masters is carrying a full teaching load, while the Magistrate has no additional responsibilities other than those arising out of litigation in this Court. The Magistrate, unlike the Masters, has his office in this courthouse where he may be deemed to be available both to the parties and to this Court at all times. *fn113" Further, the legislation creating the post of Magistrate contemplated that persons occupying the position would undertake precisely such responsibilities. *fn114"

   For these reasons, the Magistrate is hereby designated to supervise pretrial discovery and to consider and deal with all discovery disputes, other than those matters which by Pretrial Order No. 7 have been delegated by the Court to the Special Masters, and except as may hereafter be ordered otherwise by the Court. In order to clarify the Magistrate's duties, responsibilities, and authority, the Court is contemporaneously herewith issuing Pretrial Order No. 13, which more precisely than the order of February 7, 1978, delineates the Magistrate's powers with respect to this litigation.

  Discovery should proceed expeditiously in accordance with the schedule established herein and in conformity with the Statements of Contentions and Proof and the pretrial conferences to be held at six-month intervals. In the meantime, disputes concerning privilege will be resolved by the Special Masters, and all other discovery disputes by the Magistrate. This Court will be available to meet with and to assist the Magistrate, the Special Masters, and the attorneys for the parties during the pretrial period.

  Important substantive issues are raised in this action, and the parties are entitled to a judicial process which will fairly, impartially, and expeditiously resolve these issues. It is the Court's purpose to provide them with such a process.

  Harold H. Greene

  United States District Judge

  September 11, 1978


  Upon consideration of defendants' requests to obtain discovery under Rule 34, F.R.Civ. P., from various government departments and agencies, and the legal arguments of the parties with respect thereto, and in accordance with this Court's opinion of today, it is this 11th day of September, 1978,

  ORDERED That for purposes of discovery under the Federal Rules of Civil Procedure the plaintiff in this case shall consist of the United States Department of Justice and all other agencies, departments, and subdivisions of the Executive Branch of the United States government, but shall not include the Federal Communications Commission and other independent regulatory agencies, or the United States Postal Service, and it is further

  ORDERED That the Attorney General or his agents in the United States Department of Justice, as counsel for plaintiff, shall bring this order to the attention of all agencies, departments, and other subdivisions of the Executive Branch of the United States government from which defendants have heretofore sought discovery, and shall assist them with the discharge of their obligation to comply with appropriate discovery requests heretofore or hereafter made by defendants.

  Harold H. Greene

  United States District Judge


  Upon consideration of defendants' appeal from paragraph 3 of the Magistrate's Discovery Order No. 2, and of plaintiff's and defendants' proposed Pretrial Orders No. 10, the Court having considered the memoranda and the oral arguments of the parties, it is this 11th day of September, 1978, in accordance with the Court's opinion of today, ORDERED:

  1. By November 1, 1978, defendants shall produce to plaintiff for inspection and copying in their entirety, all microfilm or microfiche copies of documents (or, if the documents are not on microfilm or microfiche, other copies of the documents) which were heretofore produced by the defendants and selected for use by the plaintiffs in Litton Systems, Inc. v. American Telephone and Telegraph Co., CA No. 76 Civ. 2512 (S.D.N.Y. 1976), and MCI Communications Corp. v. American Telephone and Telegraph Co., Civil No. 74 C 633 (N.D. Ill. 1974)

  2. In the event that defendants wish to assert claims of privilege concerning any of the above-described documents, and they are capable of segregating such documents from those required to be produced pursuant to paragraph 1 above, they may withhold production of documents so segregated to plaintiff by delivering them to the Special Masters on or prior to November 1, 1978, for determinations as to such claims of privilege. All other documents shall be produced to plaintiff by November 1, 1978, but defendants shall retain the right subsequently to assert appropriate claims of privilege with respect to such documents in the manner prescribed in paragraph 4 of Pretrial Order No. 7.

  3. Defendants mayalso segregate any documents which have heretofore been ruled to be privileged in the actions referred to in paragraph 1 above, and deliver them to the Special Masters by November 1, 1978. Such documents will be deemed provisionally privileged and their production held in abeyance, except as the parties may agree otherwise, until such time as the Special Masters rule on their status in accordance with the standards established in this case.

  4. Plaintiff shall bring this order to the attention of the courts in which Litton Systems, Inc. v. Am. Tel. & Tel. Co. and MCI Communications Corp. v. Am. Tel. & Tel. Co. are pending, and request leave of those courts to effect such production notwithstanding any protective orders which may have been entered therein.

  5. In accordance with the representations of plaintiff, any additional documents heretofore produced by the defendants but not selected by the plaintiffs in the actions referenced in paragraph 1 above, shall be subject to production in this action only by special leave of the Magistrate upon good cause shown.

  6. The provisions of Pretrial Order No. 7 shall be fully effective with respect to documents produced pursuant to this order, provided, however, that upon a showing of reasonable cause, a party may seek from the Court such additional protective orders as may be appropriate to insure confidentiality of the documents produced pursuant to this order.

  Harold H. Greene

  United States District Judge


  Upon consideration of defendants' appeal from the Magistrate's Discovery Order No. 2, the Court having heard oral argument and considered the memoranda submitted by the parties, and it appearing that procedures must be established which will assure the progress of discovery in a fair, mutual, and expeditious manner, it is this 11th day of September, 1978, in accordance with this Court's opinion of today,

  ORDERED That pretrial proceedings and discovery shall hereafter proceed as follows:

  1. Each party shall file four successive Statements of Contentions and Proof, in accordance with the following schedule: the plaintiff shall file its statements on or before November 1, 1978, April 1, 1979, October 1, 1979, and April 1, 1980; and the defendants shall file their statements on or before January 1, 1979, May 1, 1979, November 1, 1979, and April 1, 1980.

  2. Each of plaintiff's statements shall list and describe with particularity (a) each legal argument upon which plaintiff intends to rely at trial, together with appropriate statutory references, case law, and other citations, (b) each factual contention it intends to advance at trial, (c) under each factual heading, a list of the witnesses and the documentary and other evidence which plaintiff will use to support that contention, (d) whether such evidence is presently in plaintiff's possession, and if not, where in its view it may be found, and (e) the relief plaintiff expects the Court to grant with respect to each defendant in the event it proves its case against that defendant.

  3. Each of defendants' statements shall list and describe with particularity (a) each legal argument upon which defendants intend to rely at trial, together with appropriate statutory references, case law, and other citations, (b) each factual contention defendants intend to advance at trial, whether made affirmatively or in response to plaintiff's contentions, (c) under each factual heading, a list of witnesses and the documentary or other evidence which defendants will use to support that contention, (d) whether such evidence is presently in defendants' possession, and if not, where in their view it may be found, and (e) why, in defendants' view, all or part of the relief sought by plaintiff would be inappropriate assuming the relevant violation is proven.

  4. Except as leave may otherwise be granted by the Magistrate, no Statement of Contentions and Proof may enlarge upon the contentions set forth in the preceding statement, as amended by any applicable pretrial order, whether by broadening an existing contention or by adding a new contention. If leave to enlarge the contentions is sought based upon evidence discovered since the filing of the preceding statement, it will be freely granted with respect to the second statement, granted only for good cause shown with respect to the third statement, and granted only to prevent manifest injustice with respect to the fourth statement. Consistent with the authority vested in him by Pretrial Order No. 13, the Magistrate shall have the authority to determine whether a particular statement would narrow or enlarge upon contentions made in previous statements, whether an enlargement is based upon evidence discovered since the filing of the preceding statement, and whether the applicable standard for the granting of leave has been met.

  5. Each party's discovery shall be limited to documents and other evidence which will support the contentions specified in its most recent Statement of Contentions and Proof or which will directly, rebut contentions made in the most recent statement of the opposing party; except that after the filing of its first statement but prior to the filing of its second statement a party may, with leave of the Magistrate, engage also in discovery regarding matters which are generally material to issues raised by the complaint and answer.

  6. Each party's evidence at trial shall be limited to those items of proof listed in its final Statement of Contentions and Proof, as modified by the pretrial conference of May 1, 1980.

  7. Special pretrial conferences shall be held on or about June 1, 1979, December 1, 1979, and May 1, 1980, in accordance with Rule 16, F.R.Civ. P. The agenda for each conference shall include, but shall not be limited to, the definition, simplification, and narrowing contentions and issues; the restriction of unnecessary discovery; the stipulation of fact; and the resolution of any disputes arising from the parties' Statements of Contentions and Proof A pretrial order shall be issued at the conclusion of each pretrial conference.

  8. On April 1, 1980, all discovery shall be closed

  9. By agreement of the parties, any subpoenas for the taking of testimony or the production of documents under Rule 45, F.R.Civ. P., shall be issued through the Clerk of this Court.

  10. Magistrate's Discovery Order No. 2, including its restrictions on the taking of substantive depositions, is hereby vacated.

  Harold H. Greene

  United States District Judge


  Upon consideration of the contentions raised with respect to the authority of Magistrate Lawrence S. Margolis under the order of February 7, 1978, and it appearing that the authority of the Magistrate should be clarified, it is this 11th day of September, 1978, in accordance with this Court's opinion of today,

  ORDERED That, except as may hereafter be directed by the Court, Magistrate Lawrence S. Margolis shall supervise all pretrial discovery and adjudicate all discovery disputes, other than those which have been or may hereafter be delegated to the Special Masters, and he shall perform such additional duties with respect to discovery or other matters as the Court may direct pursuant to 28 U.S.C. § 636(b) and Local Rules 3-8 and 3-9, and it is further

  ORDERED That the order entered on February 7, 1978, is hereby vacated effective this date.

  Harold H. Greene

  United States District Judge

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