The U.S. Justice Department and AT&T don't see eye to eye on much these days, but they agree on this: Google should not be allowed to modify how the attorneys in the government's antitrust case share confidential information.
Google said recently it is concerned about the security of information the company turned over to the Justice Department during its antitrust investigation of AT&T.
The company, represented by Axinn, Veltrop & Harkrider, asked for permission to intervene in the DOJ's antitrust enforcement action to add restrictions to a protective order in the case.
The Justice Department and lawyers for AT&T responded to the request Tuesday, saying in separate submissions (here and here) that Google’s request should be denied.
Google’s proposal included requiring the attorneys in the case to provide three days’ notice before any confidential information is filed or discussed in court and a 24 hours’ heads up before any documents are introduced and discussed about at trial.
The lawyers in the case are required to file confidential material under seal. “Thus, providing advance notice of a filing does not provide additional protection,” DOJ attorneys Joseph Wayland and Christine Hill said in the government’s filing Tuesday.
The Justice Department also said the parties involved in the antitrust suit must alert the trial judge before discussing any confidential material. At that time, the judge, Ellen Segal Huvelle, can decide whether to close the courtroom to the public.
DOJ and AT&T’s attorneys, including Mark Hansen, a Kellogg, Huber, Hansen, Todd, Evans & Figel partner, said another concern is keeping the antitrust case moving as swiftly as possible.
The Justice Department said providing advance notice to Google every time a confidential document might be used is “impractical.”
And it’s impossible, according to Justice, for any of the lawyers to know how they will use a confidential document at trial, DOJ said. The attorneys in the case could need to make quick decisions in response to questions from the trial judge.
AT&T’s lawyers said their ability to defend against the DOJ’s allegations would be “severely prejudiced” if the company is forced to get permission from non-parties before disclosing confidential information with experts and at trial.
Google’s proposal, AT&T’s attorneys said, would “unfairly and unreasonably restrict” the company’s ability to introduce confidential information on cross-examination.
Huvelle is scheduled to meet with the lawyers in the case later this month for a status conference.
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