United States v. American Tel. & Tel. Co.

United States v. American Tel. & Tel. Co.

Opinion

 [*1287]  Petition for Writ of Mandamus (D.C. Civil No. 74-1698).

Appellants MCI Communications Corp. and MCI Telecommunications Corp. (hereinafter collectively "MCI") seek reversal of an interlocutory discovery order of the district court, issued in the course of a civil antitrust suit brought by the United States against the American Telephone and Telegraph Company (AT&T). The district court's order would require the United States to accede to AT&T's discovery request for certain documents which the Government earlier received from MCI, and in which MCI claims a work product privilege. We have stayed the district court's discovery order pending our decision on this appeal. ¹

 [**2]  Shortly before the district court handed down its discovery order, MCI moved to intervene for the purpose of asserting its claim of work product privilege in the documents requested by AT&T. The district court denied this motion. MCI now appeals both the district court's denial of its intervention motion and the district court's interlocutory discovery order, and in the alternative seeks a writ of mandamus to prevent the transfer of the documents from the Government to AT&T. We hold that MCI should have been allowed intervention as of right, that the denial of intervention is appealable, and that MCI has not waived  [*1288]  any work product privilege that it might have in the requested documents.

I. BACKGROUND

The controversy in this appeal arises from two antitrust suits with closely related issues, filed against AT&T in two different federal district courts. The first suit was filed against AT&T by MCI in the United States District Court for the Northern District of Illinois on 6 March 1974. MCI charged AT&T with monopolizing and attempting to monopolize the market for long-distance telephone communications. The second suit, which directly concerns us in this appeal, was filed [**3]  as a civil antitrust action by the United States against AT&T on 20 November 1974 in the United States District Court for the District of Columbia. In claims overlapping those made by MCI, the Government charged AT&T with monopolizing, attempting to monopolize, and conspiring to monopolize markets for telecommunications services and equipment.

Discovery in the District of Columbia suit has extended over a several year period, interrupted at times pending appeals on various issues. The first stage of the controversy that resulted in the present litigation occurred in 1978, when a magistrate supervising the discovery process required AT&T to produce for the Government all materials previously given by AT&T to private plaintiffs in the discovery stage of several private antitrust actions. ² One of the private plaintiffs to whom AT&T had given documents was MCI, which had discovered documents from AT&T in the antitrust suit in the Northern District of Illinois. ³ Of the approximately seven million pages of documents that AT&T had produced for MCI in that case, the United States sought to obtain the one and a half million pages that MCI had selected for copying. ⁴ Over AT&T's objections,  [**4]  the district court ordered AT&T to produce these pages for the United States. ⁵

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