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Over three weeks of proceedings, Judge Leon, a 16-year veteran of the Washington, D.C., court, has run an exacting trial, and his management of the case has presented a challenge for the Justice Department as it seeks to block the $85 billion deal on antitrust grounds. The judge, an appointee of President
George W. Bush,
has pressed government lawyers on issues of style, procedure and substance as they have presented 16 witnesses so far.
The department’s principal arguments, which may wrap up this week, will be followed by ATT and Time Warner presenting their defense, which will put their own lawyers in the hot seat.
Judge Leon has chastised the Justice Department for moving too fast. “Ma’am, I said hold on a minute,” the judge told one department lawyer on Thursday as she was questioning an ATT witness. “Listen!” the judge told her, pointing to his ear for effect while he looked at a document. Two other department lawyers, including a junior member of the team, have received similar admonishments.
The judge also has criticized the government for moving too slow. “Ask him a question. Let’s go,” he said to another government attorney after telling him not to waste time repeating a witness’s answers. On another sluggish morning, the department told the judge it had only a few more questions for a marketing professor who was a witness on the stand.
“Good,” Judge Leon responded.
No single limitation imposed by the judge has appeared to be a major setback for the Justice Department, but collectively, the instances have crimped how the government has presented its case against the deal.
The judge has kept the courtroom open to the public for most of the proceedings. That is a boost for transparency, but it has been a visible frustration for Justice Department attorneys who have had to dance around questions involving sensitive business data and strategy documents that can’t be discussed in open court.
“Explain as much as you can without revealing confidential information,” the Justice Department’s lead trial lawyer,
told an industry consultant on the witness stand last week.
Judge Leon alone will decide the fate of the merger, which would combine ATT’s pay-TV distribution capabilities with Time Warner’s stable of cable channels. There is no jury.
The judge has been strict about what internal company documents and emails he is willing to consider as evidence. He also has curbed the questions the government has been able to ask certain witnesses, including those from ATT, particularly as they related to internal company communications.
The judge signaled from the outset he would take such a rigorous approach, telling the department he wouldn’t allow company documents like internal PowerPoint presentations without knowing who wrote them, when and why they were created, and whether company decision makers relied on the information.
“I’m going to need context,” Judge Leon said in a pretrial hearing last month, adding that he wanted to be “cautious” about making assumptions.
Judge Leon has a reputation for putting lawyers through their paces. He also hasn’t been afraid to hold the government’s feet to the fire, including in cases where litigants sought State Department records from
tenure and challenged the National Security Agency’s bulk collection of phone-call records, a program Judge Leon labeled “almost Orwellian” in 2013.
Discussions about evidence relevancy and confidentiality have become a central feature of the ATT trial, with Judge Leon interrupting witness testimony to call lawyers to the bench for private conferences, often a half-dozen times or more a day. Sometimes these huddles last just a few minutes. Other times, their duration has stretched 15 minutes or longer.
Spectators and witnesses can watch but can’t listen. The judge turns on a “husher” that plays static on the courtroom speakers to drown out the conversation.
There isn’t much for the audience to do during the dead time other than attempt to lip-read, as courtroom visitors are held to their own firm code of conduct. They can’t drink water or glance at newspapers or magazines. While policing the gallery, some court security officials have instructed visitors to keep both feet on the floor at all times, lest their shoes rub up against the row in front of them.
The zero-tolerance policy applies most forcefully to computers and cellphones. On most days, security officials have searched visitors’ bags before entering the courtroom and asked people to show their electronic devices to prove they are turned off. Still, a couple of people have heard the mortifying ring of their phones during the proceedings, and they have been removed immediately from the courthouse.
“These are Judge Leon’s orders and they will be followed,” one court officer said in the hallway.
—Drew FitzGerald contributed to this article.
Write to Brent Kendall at email@example.com