290 F. Supp. 3d 1
D.C. Cir.2018Background
- DOJ (Antitrust Division) sued to block AT&T's acquisition of Time Warner under Section 7 of the Clayton Act.
- Defendants asserted a selective-enforcement defense, claiming the suit was politically motivated because CNN (owned by Time Warner) was unfavorable to President Trump.
- Defendants requested privilege logs and other discovery about communications between the White House, the Attorney General’s Office, and the Antitrust Division relevant to that defense.
- DOJ produced one log listing written communications between the White House and the Antitrust Division but refused to produce additional logs and oral-communication information, moving to strike/quash the discovery.
- The court applied the Supreme Court’s standard in United States v. Armstrong for selective-enforcement discovery and evaluated whether defendants made the required colorable showing of discriminatory effect and intent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants are entitled to discovery (privilege logs) on selective-enforcement | DOJ: defendants failed to make a colorable showing under Armstrong; discovery would intrude on prosecutorial discretion | Defendants: need logs to support claim that enforcement was selective and politically motivated (e.g., comparator Comcast-NBCU) | Denied — defendants did not satisfy Armstrong’s two-part test (discriminatory effect and intent) |
| Whether to strike/quash specific discovery requests re: White House/AG/Antitrust Division communications | DOJ: requests are not warranted because selective-enforcement claim is not colorable and discovery raises separation-of-powers concerns | Defendants: communications are relevant to show improper motive and selective prosecution | Granted — court struck/quashed the identified requests and denied motion to compel logs |
Key Cases Cited
- United States v. Armstrong, 517 U.S. 456 (rigorous standard for discovery on selective-prosecution claims)
- Wayte v. United States, 470 U.S. 598 (courts should avoid unnecessary intrusion into prosecutorial discretion)
- United States v. Slatten, 865 F.3d 767 (D.C. Cir.) (prosecutorial decisions presumed proper absent clear evidence)
- Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir.) (similarity of comparators requires absence of legitimate prosecutorial factors)
- Att’y Gen. v. Irish People, Inc., 684 F.2d 928 (D.C. Cir.) (must show similarly situated persons not prosecuted; colorable showing required before discovery)
- United States v. Baker Hughes Inc., 908 F.2d 981 (D.C. Cir.) (merger analysis requires transaction-specific, industry-context inquiry)