State of New York v. Deutsche Telekom AG
- Victor Marrero
- 1:19-cv-05434
- U.S. District Court · Southern District of New York
- 112
In State of New York v. Deutsche Telekom AG, Judge Marrero allowed workshop documents into evidence after finding the states supplied enough support for their authenticity and use.
The plaintiff states and the defendants—Deutsche Telekom AG, T-Mobile US, Inc., Sprint Corporation, and SoftBank Group Corp.—were affected because the workshop documents could be used as trial evidence. The ruling also affected the presentation of evidence in the antitrust trial.
What happened
In State of New York v. Deutsche Telekom AG, the plaintiff states asked to use documents from workshops that Deutsche Telekom and T-Mobile held with McKinsey in December 2015. The defendants sought to exclude the documents, arguing that McKinsey's role meant the documents could not be treated as statements by Deutsche Telekom or T-Mobile.
The states argued that Deutsche Telekom and T-Mobile employees created, directed, edited, and later used the documents. They relied on emails, deposition testimony, the documents' Deutsche Telekom branding, and later Deutsche Telekom board materials that reused portions of the workshop materials.
Judge Marrero ruled that the states had provided enough foundation and that the documents were not barred as hearsay under the party-opponent rules. The defendants could challenge the documents' credibility and weight, but the court found no basis to exclude them altogether.
The detailed version
- State of New York v. Deutsche Telekom AG · No. 1:19-cv-05434
- Victor Marrero
- Dec. 23, 2019
Background
The plaintiff states filed a letter asking the court to admit workshop documents produced by Deutsche Telekom AG and T-Mobile US, Inc. The documents concerned two workshops held in Germany in December 2015 with McKinsey involved in facilitating the discussions. The defendants attempted to exclude the documents on the ground that they contained statements by McKinsey consultants that could not be attributed to the defendants.
The states relied on emails, documents, and deposition testimony from Peter Ewens of T-Mobile and Hannes Wittig of Deutsche Telekom. According to the states' presentation of that record, Deutsche Telekom employees scheduled the workshops, set substantive topics, prepared working drafts, and controlled the content. T-Mobile employees supplied information in response to Deutsche Telekom's questions and participated in the workshops. The documents prominently displayed Deutsche Telekom's logo and did not display McKinsey's logo. Later Deutsche Telekom board-presentation drafts also used portions of the workshop materials.
The record included conflicting testimony from Ewens. He initially recalled that McKinsey had prepared the materials for Deutsche Telekom, but later confirmed that the materials were created by Deutsche Telekom and referred to them as Deutsche Telekom documents. Ewens also testified that T-Mobile provided information responsive to Deutsche Telekom's questions. The states acknowledged that the defendants could present contrary arguments, but contended those arguments went to the evidence's weight rather than its admissibility.
Legal question
The issue was whether the workshop documents had sufficient authentication and foundation, and whether their statements were excluded by the rule against hearsay. Under Federal Rule of Evidence 801(d)(2), a statement is not hearsay when, among other circumstances, it was made by a party or by someone whose statement the party adopted or believed to be true. The states argued that the documents qualified under both the rule covering statements made by a party and the rule covering statements adopted by a party.
The states also relied on Federal Rule of Evidence 901, which requires evidence sufficient to support a finding that an item is what its proponent claims it is. They argued that the emails, testimony, document history, branding, and later use of the materials satisfied that requirement.
Ruling
Judge Marrero accepted the states' foundation for the workshop documents and ruled that the documents, including PX 339, PX 329, PX 800, and PX 802, were not objectionable hearsay. The court allowed the documents to be admitted rather than precluding them altogether. The defendants remained free to present contrary arguments concerning the documents' weight or the witnesses' credibility. The order also directed the clerk to place the states' letter on the public record.
This ruling addressed the admissibility of evidence during the antitrust trial. It did not decide the underlying antitrust claims or determine the ultimate outcome of the case.
Read the full 112-page opinion on CourtListener, the free public archive maintained by the Free Law Project.