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
that the Court make a finding that neither they nor the Department of Defense nor either party's employees
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.
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 court of a study so obviously favorable to its own case.
The Defense Department employees involved in this matter cannot be exculpated so easily. The General Counsel of the Defense Communications Agency and some of his subordinates engaged in the following course of conduct. First, upon being requested to prepare a study which was to deal, at least in part, with issues in this lawsuit, they promptly called upon the Bell System, the government's opponent in that lawsuit, for assistance. The only other private entity so contacted was the United States Independent Telephone Association, which appears to be largely allied with AT&T on the divestiture issues. No private telecommunications company holding the view that divestiture would be beneficial to the Nation was called upon. Second, after the study was finished in draft, the Bell System was the only entity to be given an opportunity to comment upon it and to submit revisions. Third, when the study was completed, all but one of the forty-four copies were distributed to various government agencies, the sole non-government recipient being, once again, the Bell System.
William H. Taft, IV, General Counsel of the Department of Defense, when called as a witness in this Court, was unable to defend this practice, and he testified that he "didn't think it should have been done." Fourth, as noted above, the technical aspects of the study incorporated Bell System's input without any significant review; yet that fact was apparently not drawn to the attention of the recipients of the document. Fifth, when AT&T's counsel requested permission to use the study for introduction into evidence in this litigation, that permission was promptly granted,
although the General Counsel of the DCA well knew that the government was being represented in this lawsuit by attorneys from the Department of Justice.
Without making a determination whether any one of these acts, standing alone, would have been improper, it is difficult to escape the conclusion that in the aggregate they amount to direct cooperation with a defendant in a lawsuit in which the government is the plaintiff, on the very subject of that lawsuit, and that on this basis they are not within the bounds of propriety.
If such activities were duplicated in government on a large scale, they would call into serious question the Court's earlier ruling that for evidentiary purposes the plaintiff in this lawsuit is the entire government of the United States, not merely the Department of Justice.
But the Court believes the conduct revealed by the evidence here to constitute an aberration, and for that reason it will, at this time, let the previous ruling stand.