and tenuous, and they are utterly inadequate to support the present request.
Originally defendants indicated that they wanted to inquire of the Department of Justice witnesses regarding the reasons for the withdrawal by the Antitrust Division of its opposition to the post-Carterfone tariffs. But those reasons are fully articulated in the Department's briefs. In the exercise of its discretion under Rule 403, the Court will not allow defendants, on this tangential issue, to call the lawyers who wrote that brief to provide their additional views and impressions, especially since the proposed testimony would implicate both the deliberative process and the work product privilege,
without any persuasive countervailing considerations.
In another proffer defendants made regarding the Department of Justice employees they stated that they wished to establish through these individuals what the Department of Justice knew, thought, or believed with regard to possible harms to the network from the direct interconnection of equipment, and the impact of interconnection on the telecommunications industry. The individuals involved are, of course, lawyers, not engineers or economists; their "expert" opinions as to what interconnection would do to the network, either from a technical or from an economic perspective, would therefore be of little benefit to the Court. Furthermore, again, both work-product and deliberative process privileges would directly be implicated by their testimony,
and the public interest in upholding these privileges far outweighs the minimal probative value of their testimony. See United States v. Leggett & Platt, supra; SEC v. National Student Marketing Corp., supra.
No constructive purpose whatever would be served by requiring these Department of Justice attorneys to relate what the Department of Justice "believed," "knew," "had sufficient experience with,"
and in the absence of the citation of precedent for this extraordinary request, the Court will deny it.
Defendants will be permitted to elicit the following testimony, either because it does not involve a privilege or because the applicable privilege is overridden by other considerations.
1. An exception to the general thought-process rule is made where there are allegations of misconduct or misbehavior, and evidence to that effect is not privileged.
Such evidence would also be relevant. If it could be shown that various FCC decisions were the product of staff manipulations, these decisions, and the findings they embody, would on that basis at a minimum be entitled to less weight than would be true otherwise.
Accordingly, when defendants have intimated at various times that improper or undue influence may have been exerted upon the Commission through some staff members, the Court has always taken the position that defendants may confront such members with these allegations during their case in chief. The Court will now permit these staff members to be called and questioned by defendants on the issue of whether their influence on the Commission exceeded the bounds set by the rules or the customary practices of that agency. If examination of these staff members reveals impropriety on the part of Commissioners,
the Court will entertain a motion to call them as well for further examination.
2. Defendants will also be permitted to question FCC witnesses, both Commissioners and others, on various aspects of the terminal equipment certification program. In their several proffers, defendants have made three contentions they wish to prove in this regard through the examination of the FCC witnesses: (1) that the members of the Commission were not prepared in 1968 to have the FCC undertake the task of formulating and administering such a program; (2) that the FCC's experience with registration or certification was such that safe standards were not likely to be available in the late 1960s or early 1970s; and (3) that intra-FCC rivalries were responsible for the delays in the program's development.
Testimony by FCC witnesses on each of these three topics clearly or arguably raises questions of privilege. However, the government has consistently contended that AT&T unreasonably either failed to implement its own certification program after the Carterfone decision was handed down or to petition the FCC to do so, and that implementation of the program was delayed because of AT&T's obstructionism. Defendants are clearly entitled to refute these contentions, and it appears that, in important respects, the FCC witnesses are the only-or a very significant-source of the necessary evidence.
After balancing the interest in non-disclosure
with defendants' need for the evidence (see note 14, supra), the Court has concluded that defendants will be permitted to examine these FCC officials with respect to these topics.
3. The Court will likewise allow questions directed to the Commissioners (or other FCC employees) on the effectiveness of that agency in regulating the conduct of the Bell System. The government has squarely put in issue through various FCC employees (including the former chief of its Common Carrier Bureau) the question whether the Commission is capable of regulating effectively an entity of the scope, complexity, and power of AT&T.
Defendants are entitled, and they will be permitted, to rebut that charge. Moreover, since the individuals most expert about the functioning of the Commission are the former Commissioners themselves as well as other high-level Commission employees, their testimony would be highly relevant, material, and in a sense necessary to defendants' case. The acute need of defendants to put on such testimony, in view of the government's proof and the unique expertise of the former FCC Commissioners in these matters, clearly outweighs any privilege problem
-especially since questions with regard to the general ability of the FCC to regulate can be crafted so as not to delve into the Commissioners' privileged deliberations in specific proceedings.
Accordingly, defendants may inquire of the Commissioners and other listed FCC witnesses regarding this subject.
4. With regard to the questions to be posed to the members of Federal-State Joint Board established by the FCC in Docket No. 19528, a distinction may appropriately be drawn between the members of the board who were FCC Commissioners and those who were state commissioners, for the simple reason that no privilege has been asserted with respect to the latter, while the FCC has asserted privilege on behalf of the former. On that basis, the state commissioner named by defendants will be required to testify with regard to those portions of defendants' proffer which appropriately deal with the Joint Board. However, no such requirement will be imposed on those members of the board who were FCC Commissioners.
The Court could not, in a practical way, compel these officials to answer questions as if they were only members of a board making recommendations to the final decision-maker, and ignore the fact that they were also members of the Commission which considered the recommendations and made that decision. Since the testimony of the federal members would, in any event, be merely cumulative of that of the state member, the Court, taking into account the privilege problem, has determined that it is unnecessary and inappropriate to require these members to provide additional evidence on this point. Rule 403, Federal Rules of Evidence.