Home/S.D. New York/State of New York v. Deutsche Telekom AG

State of New York v. Deutsche Telekom AG

District Court, S.D. New York·Decided December 23, 2019·No. 1:19-cv-05434·Unknown

Opinion

tel £ “HE RO, INE LOA . ne gray DOCUMENT ves i] ELECTRONICALLY FILED |} as eee DOCH fay STATE OF New York DATE FILED: □ |} OFFICE OF THE ATTORNEY GENERAL oo LETITIA JAMES DIVISION OF ECONOMIC JUSTICE ATTORNEY GENERAL Antitrust Bureau December 17, 2019 By ECF Filing & Hand Delivery . Hon. Victor Marrero United States District Judge 500 Pearl Street New York, NY 10007-1312 □

Re: — State of New York, et al. v. Deutsche Telekom, et al., 1:19-cv-05434-VM(RWL) Plaintiff States’ Letter Motion to Admit Defendants’ DT’s Workshop Documents Judge Marrero, Defendants are attempting to exclude certain documents produced by Deutsche Telekom (“DT”) and/or T-Mobile (the “Workshop Documents”), on the basis that the documents purportedly contain McKinsey consultant statements that cannot be attributed to them. Exh. A (PX 339).! On day two of the trial, the Court preliminarily sustained an objection from the bench concerning □ one of the Workshop Documents during the testimony of Mr. Langheim. Exh. B (trial transcript) at 310:2-313:16; 315:3-316:3; Exh. C (PX 329).? At the time, the Court ruled against admissibility on the basis that “there’s no indication that the client controlled the development of the content.” Exh. B at 315:18-19. □ Plaintiff States respectfully submit that the trial testimony of T-Mobile executive Peter Ewens would have laid the necessary foundation for these documents. Because Defendants have chosen to drop Mr. Ewens as a trial witness, Plaintiff States write instead to provide the Court with the attached documents and testimony in order to lay that foundation. The documentary record surrounding the drafting of these materials, together with deposition téstimony from two of Defendants’ executives, Mr. Ewens of T-Mobile and Hannes Wittig of DT, demonstrates that these documents were prepared by and completely controlled by DT, and that the contents were fully embraced by and adopted by DT, to the point that a slide from them was adapted for use in _ several draft iterations of a September 2018 board presentation. ‘In accordance with the Court’s Trial Practices VIII. regarding exhibits, Plaintiff States submit only the pages-of Exhibits A C, E, and H that are relevant at trial and for this motion. Plaintiff States attest that they are familiar with the full contents of each of these documents, that they possess and will maintain a copy of each entire document □ until the Court’s final disposition, and that the excerpts of these exhibits are authentic copies of the relevant portions of the documents. ? Exhibit C contains privilege redactions. Initially, DT and TMUS redacted each of these documents for privilege; after being challenged, they withdrew their privilege assertions, but did not unredact every iteration of these documents in their productions.

LETITIA JAMES Division OF Economic Justice ATTORNEY GENERAL Antirrust Bureau

This evidentiary record is sufficient to lay a foundation and establish that these documents are exempted from the definition of hearsay under Rule 801. Background The Workshop Documents were created in connection with two workshops held in Germany in - December 2015. (See Ewens Deposition transcript, attached as Exhibit D hereto, at 47:7-16). Documents show that those workshops were scheduled by Mr. Langheim. Exh. E (PX 802), p. 3. and that Mr. Langheim hired the consulting firm McKinsey to facilitate the discussions. Exh. F (PX 796), The Workshop Documents prominently display DT’s logo, and do not display McKinsey’s logo. The Workshop Documents list Mr. Langheim and Mr. Ewens as participants (although Mr. Langheim disputes how much of the workshops he actually attended), and Mr. Ewens emailed John Legeré on December 3, the day of the first workshop, to report that one of Langheim’s ideas “is that if we can’t get 4-3 consolidation the industry is headed for commoditization and DT should limit their exposure in the US.” Exh. F (PX 796) The fact that the Workshop Documents were created by DT with input from T-Mobile is apparent from evidence and testimony found elsewhere in the record, In a November 14 email before the first workshop, DT employee Steffen Stern describes at length DT’s substantive preparations for and content of the meetings, before noting that McKinsey was merely “supporting on the topic.” Exh. E (PX 802), p. 2. Mr. Stern then follows up in the same email chain with a November 29, 2015 email sent solely between DT and TMUS employees anticipating a conference call, to attach “a current working draft”, “[i]n case we decide to jump into the workshop document for next week.” Jd, p.1. In addition, a December 7, 2015 email sent between the dates of the two workshops between only Mr. Stern and Mr. Ewens shows Mr. Stem proposing, as next steps, that “we start to create a few slides” and “we align with you starting ca. _ mid of this week to jointly bring the document to a good shape for next week’s workshop.” Exh. G (PX 800), p. 2. The bottom line is that while McKinsey appeared to have some facilitating role for the meetings themselves, it is apparent that DT and TMO employees created, managed, and controlled the content of the Workshop Documents, a At his deposition in this matter, Mr. Ewens gave conflicting testimony, first stating that “to my. recollection, those materials were prepared by McKinsey for DT,” (See Ewens Deposition _ transcript, Exh. D, at 44:11-16) but then confirming that “[t]his was created by Deutsche Telekom,” (Id. at 48:13-18), and referring to the Workshop Documents as being prepared by DT or as being DT documents another nine times.? Mr. Ewens further testified that Mr. Stern asked him to participate and assist in preparations for the workshop, including telephone interviews in advance of the workshop, (Id. at 46:2-47:16), and that T-Mobile “provide[d] information ‘Jreflected in the Workshop Documents] that was responsive to DT's questions that they had in advance of the first workshop.” (Id. at 82:21-83:7), Mr. Ewens also attributed directly to DT the ideas and theories conveyed in these materials, e.g. “what it meant to me was a DT idea that we shouldn’t follow Sprint into price wars.” Id. at 97:13-20.

3 See Ex. D at: (1) 58:15-23; (2) 59:1-10; (3) 59:24-60:1; (4) 61:23-62:2; (5) 64:14-18; (6) 10-12; (7) 89:18-21; (8) 95:22 ; and (9) 99:12-13. .

Letitia JAMES DIVISION OF ECONOMIC JUSTICE ATTORNEY GENERAL Antitrust Bureau

Finally, it is clear from other materials that DT considered the material to be DT work product. Several draft iterations of DT board presentation documents from September 2018 contain portions of the Workshop Materials, including an updated and substantially identical version of a slide from one of the Workshop Documents. Compare Exh. A, PX 339 p. 16 (“Today, the US ‘Telco Market is More Attractive than European Portfolio Markets”) with Exh. H, PX 386, p.25 (“The US Telco Market Remains More Attractive than European Portfolio Markets), When shown these slides in the 2015 and 2018 documents, Mr. Wittig testified that “it seems some of these pages were apparently, let’s say, used as frameworks in future — to structure future discussion.” See Exh. I, Wittig Deposition transcript at 135:18-133:25). Argument .

A statement of a party opponent is by definition “not hearsay,” so long as any one of five | enumerated conditions is met. Fed. R. Evid, 801(d)(2)(A)-(E). For such documents, there is no to invoke or satisfy Rule 803’s hearsay exceptions because the document is not hearsay... Here, Plaintiff States satisfy two separate conditions establishing that the Workshop Documents are non-hearsay party opponent statements. First, these documents were “made by the party in an individual or representative capacity” under Rule 801(d)(2)(A).

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