Opinion
1:19-cv-05434-VM(RWL)
12-20-2019
Re: State of New York, et al. v. Deutsche Telekom, et al.
LETITIA JAMES ATTORNEY GENERAL By ECF Filing & Hand Delivery Hon. Victor Marrero
United States District Judge
500 Pearl Street
New York, NY 10007-1312
Plaintiff States' Letter Motion to Admit Defendants' DT's Workshop Documents
Dear 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 testimony 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. 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 Legere 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 aNovember 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." Id., 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. Stern 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. 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 [reflected 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. 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 need 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). As noted above, the evidence from the discovery phase of this case showed that the exhibit is a "DT document", made with input from DT and/or T-Mobile personnel, that DT led the workshops at which they were presented, that they were edited and sent by a DT executive to Mr. Ewens. "Rule 901 provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Rule 901 does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." United States v. Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004) (internal citations and quotation marks omitted). "[A]ll doubts at a bench trial should be resolved in favor of admissibility." Commerce Funding Corp. v. Comprehensive Habilitation Servs., No. 01 Civ. 3796 (PKL), 2004 WL 1970144, *5 (S.D.N.Y. Sept. 32, 2004) (citation and internal quotation omitted). Moreover, "the proponent of the evidence is not required to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (citations and quotes omitted). Where there has been a prima facie showing, the opponent's evidence to the contrary goes to credibility, not admissibility. Mendez v. Int'l Food House Inc., No. 13 Civ. 2651 (JPO), 2014 WL 4276418, *1 (S.D.N.Y. Aug. 28, 2014). Second , the relevant statements in the document are ones "the party manifested that it adopted or believed to be true" under Rule 801(d)(2)(B). Schering Corp. v. Pfizer Inc., 189 F.3d 218, 238-39 (2d Cir. 1999) (noting that the Advisory Committee "recommends 'generous treatment of this avenue to admissibility'" and holding that a survey designed and commissioned by a company qualified under 801(d)(2)(B)). As shown by the documents and Mr. Wittig's testimony, at least some of the Workshop Documents were used as frameworks for future discussion within DT, including in the fall of 2018, after the merger was announced. For these reasons, the Workshop Documents, including the last version of the slide deck (PX 339) and related materials (PX 329, 800, 802), are not objectionable hearsay, and Plaintiff States have established a foundation for their admittance. Defendants are free to present their contrary arguments, if they choose, but only as to the weight or credibility of the evidence. There is no basis to preclude them altogether.
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.
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) 89:10-12; (7) 89:18-21; (8) 95:22 ; and (9) 99:12-13. --------
Respectfully submitted,
/s/
Amber Wessels-Yen
Assistant Attorney General
The Clerk of Court is directed to enter into the public record of this action the letter above submitted to the Court by ____________________.
SO ORDERED.
12-20-19
DATE
/s/_________
VICTOR MARRERO, U.S.D.J.
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