The opinion of the court was delivered by: GREENE
Defendants have moved for reconsideration of portions of the Court's rulings of September 11, 1978. As defendants readily concede, notwithstanding its length, the memorandum in support of the motion goes "over much the same ground" as previous submissions (memorandum, p. 201). Except for elaborations of points previously made and the citation of additional case authority, it advances few contentions not previously considered by the Court. For that reason, while the Court has carefully reviewed every aspect of the motion, the government's reply, defendants' response, and all the accompanying papers, only a limited number of points bear further discussion.
Defendants again contend that the Federal Communications Commission has exclusive jurisdiction over defendants and all or many of their activities, and that the Court therefore lacks jurisdiction over this antitrust suit. Not only was this contention rejected in the September 11 opinion following full briefing and argument, but it had likewise been exhaustively briefed, argued, considered, and found to lack merit by Judge Waddy in 1976. United States v. Am. Tel. & Tel., 427 F. Supp. 57 (D.D.C.), 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). This issue has thus been considered independently three different times by three different tribunals,
and no purpose would be served by plowing over the same ground yet once more.
It might be worth noting on the jurisdictional question only that it is not correct--as defendants keep emphasizing--that unless the Court finds exclusive jurisdiction in the Federal Communications Commission, there will be no mechanism for reconciling such conflicts between regulatory and antitrust standards imposed on defendants as might be found to exist with respect to particular conduct. The Court has previously stated that, if and when conflicts of this nature should become apparent after the issues have been crystallized, matters relating to them will be referred to the Commission under the doctrine of primary jurisdiction (slip opinion, p. 21). But for the reasons fully stated in the September 11 opinion, there is no basis for dismissing this antitrust action on FCC-exclusive-jurisdiction grounds. Indeed, in a thoughtful and exhaustive opinion issued within the past two weeks, Judge John F. Grady reached precisely the same conclusion, rejecting arguments very similar to those advanced here. MCI Communications Corp. v. Am. Tel. & Tel., No. 74 C 633 (N.D. Ill., Oct. 6, 1978).
Defendants next contend that the Court should have included the Federal Communications Commission, other independent regulatory bodies, and the United States Postal Service in the concept of the "United States" as plaintiff in this action for purposes of Rule 34 discovery. Inasmuch as defendants expressly disavow seeking reconsideration of the Court's pretrial order in this respect, there is nothing upon which the Court might rule.
Nevertheless, in view of the circumstances related in note 4, supra, and in order to afford defendants the benefit of every consideration of their claims, the Court has reviewed the arguments made, but has found nothing that would in any way impair the September 11 rulings contained in Part II of the opinion.
One new contention not previously considered is that the Department of Justice might secure from the Federal Communications Commission whatever documents defendants might seek for discovery purposes by causing the President to remove from office any member of that Commission who fails to vote to release such records for this purpose (memorandum, p. 144). However, as Wiener v. United States, 357 U.S. 349, 2 L. Ed. 2d 1377, 78 S. Ct. 1275 (1958), makes clear, with respect to members of independent regulatory commissions "a power of removal exists only if Congress may fairly be said to have conferred it." In the absence of other legislative direction this means that removal can be effected only "for cause involving the rectitude of a member" (357 U.S. at 356). It goes without saying that failure to cooperate in Rule 34 discovery in a civil action brought by the Department of Justice on behalf of the Executive Branch is not "cause involving rectitude."
It is next argued once again that defendants should not be required to produce documents which were previously turned over to two private antitrust plaintiffs in actions in other districts (Litton Systems, Inc. v. Am. Tel. & Tel. Co., No. 76 Civ. 2512 (S.D.N.Y. 1976); MCI Communications Corp. v. Am. Tel. & Tel. Co., Civil No. 74 C 633 (N.D. Ill. 1974)) irrespective of the nexus of the documents to this case. In addition to contentions previously made, defendants state that the Court failed to address, or to address adequately, their reliance upon protective orders in those cases and upon alleged representations by government counsel in MCI that those documents would not be sought by the government. That aspect of the matter is dealt with by Judge Grady, the judge in control of the MCI litigation, who explained at pp. 3-6 of his October 9, 1978, memorandum decision:
. . . We do not believe that defendants were justified in regarding either the pretrial order or the discussion with the Department of Justice attorneys as constituting a guaranty that material produced to MCI would be protected from discovery by other parties. As far as the protective order is concerned, it is in terms subject to change by further order of court. (Par. 5). It does not purport to furnish a lifetime guaranty; and even if it did, it would be difficult for a sophisticated litigant to take such a grandiose assurance literally. Where the ends of justice require disclosure, as we believe they do here, it would be irresponsible for a court to enforce perpetual secrecy where the sole ground for doing so is simply that one party wants it. There is no indication that Judge Lynch did or said anything which defendants could reasonably have interpreted as the absolute guaranty they now seek to enforce.
[As concerns the] alleged promise by Mr. Verveer, the Department of Justice attorney, that the Government would not seek to obtain documents produced for MCI in this litigation, . . . it does not make sense to us that so significant an undertaking would have occurred so casually and under the circumstances alleged. There was no reason for Mr. Verveer to make such a commitment. There was no negotiation for it and nothing was conceded in return for it . . . Had there really been an understanding of the kind alleged, there was every reason to reduce it to writing. . . .
Under all of the circumstances, this court simply does not believe that Mr. Verveer made the commitment attributed to him by defendants. Furthermore, the defendants own conduct at the time is inconsistent with the hypothesis that they thought he had made it.
Moreover, defendants' arguments concerning the protective orders prove too much. They contend in this Court that because the MCI and Litton documents are under protective orders, they are beyond the reach of discovery here. At the same time, they are arguing in the U.S. Court of Appeals for the Seventh Circuit (Appendix B to defendants' response to the government's reply to motion for reconsideration) that the MCI court is without authority to lift a protective order once entered. If these contentions are correct, defendants would be immunized, as a practical matter, from ever having to provide adequate discovery in this action. A great many private lawsuits are pending against AT&T throughout the country, a number of them involving protective orders. It could hardly be that meaningful discovery from defendants in this case must await the day when all of those actions are finally concluded, ending only at that time the claimed document immunity provided by the protective orders.
Records may of course be relevant to one, two, or ten different lawsuits, and there is no basis for concluding that the court in which they happen to have been produced first has the power, by virtue of that fact, to preclude their production when a litigant in another action
legitimately requires them for the preparation of his case.
Defendants also argue that this Court assumed that relevancy of the MCI and Litton documents for purposes of this case would be "assured by their having been thoroughly screened for relevancy in the private actions" (memorandum, pp. 173-4). The quoted statement and the text surrounding it simply omit entirely any reference to the relatively lengthy discussion in the Court's opinion (pp. 40-42) which concluded that relevancy was guaranteed primarily by the circumstance that the subject matter in the instant case virtually embraces the subject matter in MCI and Litton, and that what was relevant there is therefore almost a fortiori relevant here.
Defendants contend that under the pretrial and discovery plan set forth in the September 11 orders they, and the government, will be restricted to the discovery of evidence admissible at trial, and that they will be precluded from discovery relevant to the "subject matter" of the action. That contention misconceives the Court's ruling. Under the pretrial order, the parties may at all times during the pretrial stages specified in the order engage in "discovery regarding any matter . . . which is relevant to the subject matter involved in the pending action," that is, which relates to the claims or defenses of the parties. Rule 26(b) (1), F.R.Civ. P. As explained in the Rule, this includes not only items which would be admissible at trial, but also "items reasonably calculated to lead to the discovery of admissible evidence." What Pretrial Order No. 12 provides is that prior to the filing of the Statements of Contentions and Proof, the "subject matter" of this action is determined by the claims and defenses raised in the Complaint and Answer, while thereafter it is defined by the pretrial orders entered following the filing of each set of Statements.
Under Rule 16, F.R.Civ. P., the pretrial orders will successively narrow the subject matter in accordance with the material issues (as defined in the Statements and at the special pretrial conferences). Thus, as the issues in the somewhat amorphous Complaint and Answer achieve greater precision, the scope of discovery under Rule 26(b) (1) will appropriately narrow in conjunction with them.
Finally, it is argued that the pretrial and discovery plan embodied in the pretrial orders was adopted without consultation with the parties. Even if this claim were correct, it would not impair the validity of the procedures, for the Court is responsible for setting the timing of the pretrial phases of the litigation, and its decision obviously is not inappropriate or invalid merely because specific provisions were not proposed by the parties. In any event, not only did the Court have before it the government's proposals, Magistrate's Discovery Order No. 2, and defendants' appeal from that order (all of which deal with the subject of pretrial and discovery scheduling), but it specifically set down for the August 21, 1978, status hearing the issue of "whether present orders . . . establishing responsibilities and schedules for further proceedings, including further discovery and orders of proof are adequate, and if not, how ...