Reply Memorandum in Support of Plaintiff's Motion for an Expedited Rule 16Scheduling Conference and Order

Date: 
Friday, June 12, 1998
Document Type: 
Discovery Motions, Memoranda, and Orders
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,    

                  Plaintiff,

                  v.

PRIMESTAR, INC., et al.

                  Defendants.


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Civil No.: 1:98CV01193 (JLG)

REPLY MEMORANDUM IN SUPPORT OF
PLAINTIFF'S MOTION FOR AN EXPEDITED
RULE 16 SCHEDULING CONFERENCE AND ORDER

Plaintiff United States of America ("the Government") hereby submits this reply memorandum in further support of its motion for an early scheduling conference and Order, pursuant to Fed. R. Civ. P. 16, setting an expedited schedule for discovery, pretrial proceedings, and trial of this case.

Defendants' Memorandum in Opposition to Plaintiff's Motion ("Defendants' Opp.") advances several arguments which purport to justify defendants' position that an expedited scheduling conference and trial of this matter is unreasonable. The basis for plaintiff's request for an expedited trial is clear: until there is a final resolution of plaintiff's claims, the scarce and valuable DBS assets at issue will remain idle, and competition in mutichannel video program distribution markets will be stifled. Moreover, American consumers will continue to be denied the benefits of competition, including lower prices, better service, and enhanced options. Accordingly, this Court should reject defendants' arguments and impose an expedited schedule for trial of this matter at its earliest convenience.

Defendants' arguments about the timing of plaintiff's motion under Local Rule 206 (Defendants' Opp. at 2-4) miss the point. The exact timing of the scheduling conference is not the crux of plaintiff's concern here -- establishing a workable discovery schedule leading to the earliest possible trial date is. The Court has the authority under Rule 16 to order the parties to appear for a scheduling conference whenever the Court deems appropriate. Given the importance of this case, plaintiff merely seeks to initiate this dialogue between the Court and the parties as soon as possible. Defendants' other principal contention is that plaintiff's proposed schedule is "unrealistic and unfair." (Defendants' Opp. at 4). As discussed in plaintiff's opening memorandum, plaintiff's proposed schedule, which allows for a full five months between the filing of the complaint and the beginning of trial, is entirely consistent with the schedules typically imposed by District Courts in the District of Columbia in merger cases comparable to the one at bar. Defendants disingenuously suggest that the proposed schedule is unfair because plaintiff benefitted from a headstart in this litigation. To the contrary, defendants have had access to virtually all of the probative information, documents and witnesses relevant to this case from day one of the Justice Department investigation. The third-party documents which defendants use as an excuse for delay amount to less than 1% of the total documents in the Department's possession -- the other 99% came directly from defendants themselves.(1)

In reality, it is the facts uncovered in this investigation and the ongoing competitive harms flowing from them that require an expeditious resolution of this matter. Plaintiff is and has been committed to bringing this case to a speedy and just resolution as promptly as possible. The fact that defendants are unwilling to stand behind their expressed desire to "expeditiously" resolve this matter highlights the issues presently before the Court. Every day that passes without steps being taken to deploy the contested assets in a fully competitive fashion harms millions of American consumers.

Respectfully submitted,

FOR PLAINTIFF UNITED STATES:

_______________/s/________________
James R. Wade
D.C. Bar No. 412538
Trial Attorney
Department of Justice
Antitrust Division
Telecommunications Task Force
1401 H Street, NW, Suite 8000
Washington, D.C. 20530
(202) 514-5621

DATED: June 12, 1998


CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing REPLY MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR AN EXPEDITED RULE 16 SCHEDULING CONFERENCE AND ORDER were served by hand and/or first-class U.S. mail, postage prepaid, this 12th day of June 1998 upon each of the parties listed below:

Theodore C. Whitehouse
WILLKIE FARR & GALLAGHER
Three Lafayette Centre
1155 21st Street. N.W., Suite 600
Washington, D.C. 20036-3384
(202) 328-8000

Counsel for PRIMESTAR, Inc.

Robert D. Joffe
CRAVATH, SWAINE & MOORE
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Counsel for Time Warner Entertainment
Company, L.P.

Timothy O'Rourke
DOW, LOHNES & ALBERTSON
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
(202) 776-2716
Counsel for Cox Enterprises, Inc.

Yvonne S. Quinn
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
(212) 558-5736
Counsel for Newhouse Broadcasting
Corporation

William J. Kolasky
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6059
Counsel for MediaOne Group

Joe Sims
JONES, DAY, REAVIS & POGUE
1450 G Street, N.W.
Washington, D.C. 20005-2088
(202) 879-3939
Counsel for TCI Satellite Entertainment, Inc.
and Tele-Communications, Inc.

Ronan P. Harty
DAVIS, POLK & WARDWELL
450 Lexington Avenue
New York, New York 10017
(212) 450-4905
Counsel for Comcast Corporation

David J. Saylor
HOGAN & HARTSON
555 13th Street, N.W.
Washington, D.C. 20004
(202) 637-5600
Counsel for GE American Communications, Inc.

Lloyd Constantine
CONSTANTINE & PARTNERS
477 Madison Avenue
New York, New York 10022
(212) 350-2700
Counsel for The News Corporation Limited and K. Rupert Murdoch

Carl S. Nadler
JENNER & BLOCK
601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6055 (main)
Counsel for MCI Communications Corp.

Thomas F. O'Neil III
Adam H. Charnes
MCI Communications Corporation
1133 19th Street, N.W.
Washington, DC 20036
(202) 736-6093
Counsel for MCI Communications Corp.

_______________/s/________________
James R. Wade
Counsel for Plaintiff

FOOTNOTES

1. Likewise, defendants' efforts to criticize particular aspects of the proposed schedule are misguided. For example, defendants argue that plaintiff's schedule calls for third party depositions to begin one day after defendants receive their initial discovery from plaintiff. (Defendants' Opp. at 5). In point of fact, plaintiff's proposed schedule simply sets forth the beginning and end of what is at minimum almost a two month period for third party depositions (June 17 - Aug. 14), with further allowance for additional depositions on an appropriate "need shown" basis. This provides more than enough time for defendants to conduct whatever third party depositions they deem necessary.

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