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June 25, 1981

UNITED STATES of America, Plaintiff,
AMERICAN TELEPHONE AND TELEGRAPH COMPANY; Western Electric Company, Inc.; and Bell Telephone Laboratories, Inc., Defendants

The opinion of the court was delivered by: GREENE


On May 11, 1981, defendants raised the issue of the admissibility of certain so-called "third party" documents, that is, documents which either were authored by employees or agents of companies that are in competition with defendants or purport to recount statements made by such employees or agents. The statements contained in these documents would, of course, be admissible in evidence as "admissions" under Rule 801(d)(2) of the Federal Rules of Evidence were these companies themselves parties to this action, and the question examined in this Memorandum is whether they should be admitted here even though the companies are not parties herein.

 In response to the Court's request to the parties to brief this issue, defendants have proposed two possible routes for the admissibility of these statements: first, that the documents be received in evidence as admissions of a party opponent under Rule 801(d)(2); and second, that they be received under the residual exceptions to the hearsay rule, Rules 803(24) and 804(b)(5).

 After having considered the memoranda filed by both parties, the Court has determined that it has sufficient authority to admit most of these documents pursuant to the residual exceptions to the hearsay rule. However, an additional procedure is being established for the admission of these documents, in order to avoid any possibility of unfairness to the government or to nonparties, and to ensure that all documents will be presented to the Court in their most useful and meaningful context.


 Defendants argue that the government has adopted, and purports to believe in, the statements made by companies such as MCI, Litton, and others upon whose active assistance it appears to have relied in presenting its case, and that these statements should therefore be admitted as "adoptive admissions" by the government under Rule 801(d)(2)(B).

 In order to demonstrate that the government has "adopted" the statement of a third party, defendants must show that it somehow "has manifested (its) adoption or belief in (the statement's) truth." See 4 Weinstein's Evidence, P 801(d)(2)(B)(01). To meet this burden, defendants have primarily pointed to statements by the government to the effect that these third parties and the government are "aligned in interest" with regard to this case.

 It is no doubt true that the government shares many common interests with the competitors of AT&T in this suit. This circumstance alone does not, however, entail the automatic adoption by the government of every relevant document originating in the files of these competitors. As stated by the Court of Appeals of this Circuit:

 This congressional policy would similarly be thwarted were the Court to allow the alleged antitrust offender to introduce statements by private parties as admissions against the government merely because these parties have cooperated with the government's lawyers in the preparations for this suit. The government cannot be held to have adopted the contents of documents in the files of others, no matter how aligned in interest they might be, without specific proof of such adoption proof that, as the Court understands it, is not present here.


 Defendants have also proposed the admission of these third party documents under Rule 803(24) or 804(b)(5). *fn1" These rules provide in different contexts for the admissibility notwithstanding the hearsay rule of

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

 At the Court's request, defendants have submitted a sampling of third party documents for consideration under these rules. These documents are organized into seven broad categories: (1) contemporaneous memoranda reflecting discussions in meetings or telephone conversations with or by adverse third parties; *fn2" (2) internal memoranda of adverse third parties; (3) diaries and calendars of adverse third parties; (4) correspondence (letters from adverse third parties); (5) public ...

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