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August 20, 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 August 13, 1981, the Court held a hearing to determine whether D-1-141, a Department of Defense document, is an admission of a party-opponent within the meaning of Rule 801(d)(2) of the Federal Rules of Evidence; if it is, what weight it should be accorded in view of the circumstances surrounding its creation and its presentation to the Court; and whether the Court's previous ruling-that the plaintiff comprises all departments and agencies of the United States for purposes of this action-should be modified.

 It is convenient to discuss the issues and the evidence adduced at the hearing under two headings-first, whether AT&T was the author or a co-author of the document *fn1" (and what would be the evidentiary consequence of any such authorship); and second, whether any improprieties occurred in either the preparation of the document or the circumstances under which it was turned over to AT&T for use in evidence here.


 D-1-141 analyzes the anticipated consequences of a divestiture of the Bell System from the point of view of the Defense Department's national defense and security responsibilities, and it states that the separation of local exchange from intercity telecommunications functions would cause substantial harm in that regard. Central to that conclusion is the finding that Defense's telecommunications needs require the continued operation of the Bell System as "a regulated ... monopoly" with nationwide network planning, design, operations, and management functions. The study goes on to state that the Department of Justice's divestiture "scenarios" are based upon a substantial lack of understanding of the "telecommunications network, the extent of that network, how it is planned, operated and maintained, and most importantly, how it responds to the Nation's needs in time of disaster or emergency," and it concludes that continuation of attempts to restructure the telecommunications industry would serve "neither the Nation's defense or security and emergency preparedness interests nor the economic interest of any user of Bell System communications service." *fn2"

 It is clear that AT&T personnel did not draft the study. It is equally clear, however, that they were afforded the opportunity for substantial input: at the request of the Defense Department, they made suggestions and proposed ideas in the course of at least three separate meetings, and they provided the Defense Department with a "box full of ... materials." *fn3" By and large these contributions related to technical details concerning the management of the telecommunications network, but AT&T employees were also asked to provide, and they did provide, opinions concerning the effect of various divestiture scenarios, that is, on the likely consequences if, at the conclusion of this lawsuit, the Court ordered some breakup of the Bell System. Portions of the completed Defense Department study bear a strong resemblance to the ideas contributed by AT&T, and when Bell System employees were given an opportunity to review the document, *fn4" they pronounced themselves well satisfied.

 A major part of the evidence at the August 13 hearing was devoted to the question whether the resemblance between the opinions of AT&T and those reflected in the Department of Defense document is indicative of a mere coincidental parallelism in views or whether the Department, in fact, simply adopted Bell System positions. *fn5"

 The evidence indicates that the Department of Defense relied almost entirely for the technical portions of its study upon AT&T. Without those technical details the document is not much more than a series of conclusory opinions which happen to be at odds with those advanced in this Court by the Department of Justice and its witnesses. Moreover, no one at the Defense Communications Agency seems to have had the necessary technical skills to verify the accuracy of the data, *fn6" and no one at higher levels in the Department made any substantial effort at such verification. *fn7" The document was simply forwarded to the Secretary of Defense and then to the President-and similarly it was submitted to the Court for introduction into evidence-on the basis of the data supplied by AT&T.

 If these were the sole facts concerning the production of the study, the Court would have little hesitancy in rejecting it as an "admission" of the government. A document can hardly be deemed to be an admission of a party when it is, in effect, produced by the opposing party. However, as indicated above, the technical portions constitute only one part of the study. The bulk of the document is devoted to Defense Department opinions to the effect that the divestiture of the Bell System would be harmful to national security. It is conceded by all that the Department has held that view for a long time, apparently at least since 1956, when an antitrust action against AT&T was concluded by a consent decree at least partly on the basis of Defense considerations similar to those contained in the present study.

 In short, it seems clear that the Department of Defense would have expressed these same views at this time, with or without the supporting material provided by AT&T. For that reason, and absent any taint by misconduct (see Part II infra), those views should not be kept out of the record herein. Throughout these proceedings, which are being conducted without a jury, the Court has resolved evidentiary doubts in favor of admissibility, on the theory that the facts which may assist in a just resolution of this important case should not be kept out unless this is clearly warranted. The document will accordingly be admitted into evidence.

 The persuasiveness of a given piece of documentary evidence depends, of course, upon the soundness of its origins. As indicated, the technical support for the Defense Department study was basically supplied by the defendants in this action. This does not mean, of course, that either that technical information or the conclusions which others drew therefrom are necessarily incorrect; but it does mean that the document-because of the obvious AT&T self-interest which was insinuated into its preparation-is entitled to less weight than would be a wholly independent, authoritative Defense Department study.


 Defendants have requested *fn8" that the Court make a finding that neither they nor the Department of Defense nor either party's employees *fn9" have been guilty of misconduct either with respect to the preparation of the document or in connection with its provision by Defense to AT&T.

 No culpability can be attached in that regard to AT&T or its personnel. The company received a request for assistance in the preparation of a Defense Department study on a technical subject with which AT&T's employees were intimately familiar and, quite properly, they complied. *fn10" Similarly, no blame can be attached to AT&T's effort to impart to Defense its views on the consequences of divestiture or to its use in ...

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