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1 JAMES J. MITTERMILLER, Cal. Bar No. 85177 [email protected] 2 FRANK J. POLEK, Cal. Bar No. 167852 [email protected] 3 JOHN C. DINEEN, Cal. Bar No. 222095 [email protected] 4 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 5 501 West Broadway, 19th Floor 6 San Diego, California 92101-3598 Telephone: 619-338-6500 7 Facsimile: 619-234-3815 8 Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT-SPECTRUM L.P. 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 UTILITY CONSUMERS' ACTION 14 NETWORK and ERIC TAYLOR, on behalf of themselves, their members and/or 15 all others similarly situated, as applicable, 16 17 v. Judge: Courtroom: Date: Time: Hon. Leo S. Papas G N/A N/A Plaintiffs, Case No. 07 CV 2231 W (LSP) DEFENDANTS' OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION FOR ORDER PERMITTING EXPEDITED DISCOVERY

18 SPRINT SOLUTIONS, INC.; SPRINT SPECTRUM L.P.; SPRINT-NEXTEL 19 CORPORATION, 20 21 22 23 24 25 26 27 28
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1 2 3 4 5 6 7 III. 8 9 10 11 12 13 14 VI. VII. IV. V. II. I.

TABLE OF CONTENTS Page INTRODUCTION ...................................................................................................... 1 THE TOPICS ON WHICH PLAINTIFFS SEEK DISCOVERY ARE NOT INCLUDED IN THE COMPLAINT AND ARE NOT AT ISSUE IN THE CASE .......................................................................................................................... 1 DISCOVERY IS NOT APPROPRIATE PRIOR TO THE COURT'S RULING ON DEFENDANTS' MOTIONS TO DISMISS........................................ 3 THERE IS NO SUBSTANCE TO PLAINTIFFS' UNPLEADED CLAIMS ABOUT THE NEW CHARGES................................................................................ 4 PLAINTIFFS LACK STANDING TO ASSERT THESE NEW CLAIMS .............. 6 PLAINTIFFS HAVE FAILED TO ALLEGE A CLASS THAT INCLUDES THESE NEW CLAIMS.............................................................................................. 7 PLAINTIFFS' PROPOSED DISCOVERY CANNOT BE DONE ON AN EXPEDITED BASIS.................................................................................................. 8

15 VIII. PLAINTIFFS HAVE PRESENTED IRRELEVANT AND MISLEADING ARGUMENTS IN AN EFFORT TO CONFUSE THE ISSUES............................. 13 16 17 IX. 18 19 20 21 22 23 24 25 26 27 28
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CONCLUSION ........................................................................................................ 14

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1 2 Cases

TABLE OF AUTHORITIES

3 United Food & Commercial Works Union Local 751 v. Brown Group, 517 U.S. 544 (1996) ....................................................................................................... 7 4 Whitmore v. Arkansas, 495 U.S. 149 (1990) ....................................................................................................... 6 5 6 Statutes 7 California Public Utility Code § 2891(a) .......................................................................... 12 8 Cal. Const., Art. I, sec. 1.................................................................................................... 12 9 Fed. R. Civ. P. 8(a)(2).......................................................................................................... 7 10 Fed. R. Civ. Proc. 12(b)(6) ................................................................................................. 3 11 Fed. R. Civ. P. 26(b)(1) ....................................................................................................... 3 12 Fed. R. Civ. P. 26(b)(2) ..................................................................................................... 10 13 Federal Rule of Evidence 408 ............................................................................................. 6 14 Telecommunications Act § 201(b) ................................................................................. 1, 3 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Defendants Sprint Solutions, Inc. and Sprint Spectrum L.P. (collectively

2 "Sprint") oppose Plaintiffs Utility Consumers' Action Network ("UCAN") and Eric 3 Taylor's ex parte application for an order permitting expedited discovery. 4 5 6 7 8 Plaintiffs have failed to demonstrate that good cause exists to support their I. INTRODUCTION

9 application to embark on an early fishing expedition regarding claims not asserted in their 10 complaint. No emergency necessitates the extraordinary relief Plaintiffs request. To the 11 contrary, there are numerous reasons the Court should reject Plaintiff's application. 12 13 Sprint has moved to dismiss Plaintiffs' complaint, to dismiss Plaintiff UCAN

14 as a party for lack of standing, and to refer Plaintiffs' claim under Section 201(b) of the 15 Telecommunications Act to the Federal Communications Commission. The Court should 16 not permit Plaintiffs to circumvent having Judge Whelan rule on Sprint's motions to 17 dismiss. Further, the issues raised in the proposed discovery are unrelated to any of the 18 issues contained in the complaint. Compounding the problem, Plaintiffs' proposed 19 discovery requests are not narrowly tailored and it would take Sprint many months to 20 respond to them. The Court should deny Plaintiffs' ex parte application. 21 22 23 24 25 26 A fundamental flaw in Plaintiffs' ex parte application is that the topics on II. THE TOPICS ON WHICH PLAINTIFFS SEEK DISCOVERY ARE NOT INCLUDED IN THE COMPLAINT AND ARE NOT AT ISSUE IN THE CASE

27 which they seek expedited discovery are not included in the First Amended Complaint (or 28 the original complaint) and are simply not at issue in this case. -1W02-WEST:8JCD1\400701313.3

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Plaintiff Taylor is a Sprint customer who subscribed to Sprint's mobile

2 broadband services plan for his aircard. See FAC, ¶ 1. An aircard is a device that plugs 3 into a computer. It receives data transmissions through a wireless network to connect the 4 computer to the internet. Plaintiffs' complaint alleges that Sprint wrongfully assessed to its 5 broadband services customers certain surcharges, fees and taxes, as well as text message 6 charges, that were only appropriate for cell phone customers. See FAC, ¶¶ 3, 6, 7, 14, 267 33. 8 9 Plaintiffs' complaint takes issue with two general categories of charges.

10 First, Plaintiffs' complaint challenges certain surcharges, fees and taxes that Plaintiffs 11 argue do not apply to broadband services because such services are considered 12 "information services" and not "telecommunications services." FAC, ¶ 26, 32. 13 (Assessment of certain surcharges, fees and taxes at issue in this matter mistakenly 14 occurred in May 2007, as the result of a change in billing systems. Refunds were made to 15 these customers in December 2007.) 16 17 Second, Plaintiffs complain about two text message charges Plaintiff Taylor

18 received on his data services bill: (1) a text message charge that he received in October 19 2006 for 10¢, which was promptly credited by Sprint; and (2) a second charge for 15¢ for a 20 text message Taylor received in July 2007 that was also promptly credited. Plaintiff 21 Taylor alleges that aircard customers should not receive charges for text messages and 22 should not be forced to contact Sprint in order to receive credits for any such charges. 23 FAC, ¶ 29. Plaintiffs' complaint specifically limits the claims and the class definition to 24 these two billing issues. 25 26 Despite the fact that the complaint addresses only alleged billing issues

27 unique to broadband customers and broadband services, Plaintiffs' application does not 28 seek discovery on those issues. Instead, without filing an amended complaint (or a new -2W02-WEST:8JCD1\400701313.3

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1 lawsuit), Plaintiffs now seek discovery on charges wholly unrelated to the claims in the 2 complaint. Specifically, Plaintiffs seek to take expansive discovery on "two new charges 3 effective January 1, 2008" ­ specifically, whether the change in contract terms concerning 4 the new charges entitles all customers (both broadband services and cell phone customers) 5 to terminate the contract without paying an early termination fee ("ETF"). See Pl's App., 6 p. 2. That issue is completely foreign to the claims in the operative complaint. 7 8 The standard for discovery is liberal ­ but not without limit. Rule 26(b)(1)

9 provides that parties "may obtain discovery regarding any nonprivileged matter that is 10 relevant to any party's claim or defense . . . ." Fed. R. Civ. P. 26(b)(1) [emphasis added]. 11 This rule establishes the boundaries of discovery. Here, Plaintiffs' complaint does not even 12 mention a claim regarding the new charges. Plaintiffs have no authority to support their 13 request to take discovery on issues not asserted in the complaint for an uncertified class of 14 persons that is not included in the class definition contained in the complaint. Plaintiffs are 15 attempting to obtain discovery on completely unrelated matters to decide whether to 16 pursue a new and separate claim. The Court should reject Plaintiffs' request. 17 18 19 20 21 22 Defendants have filed motions to dismiss and/or stay pursuant to Rules III. DISCOVERY IS NOT APPROPRIATE PRIOR TO THE COURT'S RULING ON DEFENDANTS' MOTIONS TO DISMISS

23 12(b)(6) and 12(b)(1) on grounds that Plaintiffs fail to state a claim for several of their 24 causes of action, that Plaintiff UCAN lacks standing, and that Plaintiffs' cause of action 25 under Section 201(b) of the Telecommunications Act must be referred to the FCC and the 26 remainder of the case stayed. Those motions are scheduled to be heard by the Court 27 (without oral argument) on March 3, 2008. 28
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Plaintiffs are attempting to preempt Judge Whelan's rulings on those

2 motions. If the Court grants Defendants' motions, Plaintiffs' claims will be significantly 3 affected. Accordingly, the Court should deny Plaintiffs' request for any discovery 4 (whether expedited or not) until after the Court has ruled on the pending motions to 5 dismiss and after, if ever, claims have been sufficiently asserted, properly putting in issue 6 the matters as to which Plaintiffs seek discovery. 7 8 9 10 11 12 In their application, Plaintiffs argue that Sprint customers have received new IV. THERE IS NO SUBSTANCE TO PLAINTIFFS' UNPLEADED CLAIMS ABOUT THE NEW CHARGES

13 charges and that all such customers have the right to terminate their contracts without 14 incurring an ETF. Plaintiffs further assert that Sprint is misleading subscribers about the 15 new charges and about whether subscribers may terminate their contracts as a result of the 16 new charges. 17 18 Plaintiffs are wrong. Not only have they failed to allege any claims based on

19 the new charges, but their assertions in their application are wrong and misleading. The 20 contract terms and conditions cited by Plaintiffs' counsel provide: 21 22 23 24 25 26 27 28 "We may change any part of the Agreement at any time, including, but not limited to, rates, charges, how we calculate charges, or your terms of Service. We will provide you notice of material changes, and may provide you notice of nonmaterial changes, in a manner consistent with this Agreement . . . . If a change we make to the Agreement is material and has a material adverse effect on Services under your Term Commitment, you may terminate each line of Service materially affected without incurring an Early Termination Fee only if you: (a) call us within 30 days after the effective date of the change; and (b) specifically advise us that you wish to cancel Services because of a material change to the Agreement that we have made. If you do not cancel Service within 30 -4-

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days of the change, an Early Termination Fee will apply if you terminate Services before the end of any applicable Term Commitment."

4 See Mansfield Decl., Exh. 7, p. 25. 5 6 Plaintiffs fail to inform the Court that Sprint has many different subscribers

7 who are situated differently. Sprint has business plan customers, governmental customers 8 and residential customers. The new charges have no effect on some customers, result in a 9 net increase for some, and result in a net decrease for others. For instance, Plaintiff 10 Taylor's charges increased by 45¢, which comes to approximately 0.7% of his monthly 11 bill. Whether or not this increase is "material" may be subject to debate, but in Mr. 12 Taylor's case, Sprint has agreed that Taylor may consider it a material change and if he 13 complies with the procedures set forth in the Terms and Conditions, he may terminate his 14 agreement without incurring an ETF. Sprint has informed Mr. Taylor of this fact in 15 writing. 16 17 As Plaintiffs admit, for other subscribers the new charges actually resulted in

18 a reduction in the total monthly amount they owe on their bill. See e.g. Decl. of Art Neill, 19 ¶ 8(e). With respect to those subscribers, the new charges have not effected an adverse 20 material change to their services. 21 22 In support of their assertion that Sprint is misleading customers, Plaintiffs

23 provide a declaration by Art Neill composed almost entirely of hearsay. Mr. Neill's 24 declaration and UCAN's website reveal that any confusion that exists about the changes in 25 charges is the result of Plaintiffs' - not Sprint's - actions. The postings quoted in Mr. 26 Neill's declaration were elicited by UCAN's press release dated January 2, 2008, entitled 27 "Cancel Your Sprint/Nextel Contract Without An Early Termination Fee." Polek Decl, 28 ¶ 5. In this press release, UCAN appears to be actively soliciting and inciting Sprint's -5W02-WEST:8JCD1\400701313.3

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1 customers to cancel their contracts, and to use the change in charges as a pretext. Polek 2 Decl., ¶ 5. UCAN now seeks to exploit confusion it created itself. 3 4 5 6 7 Yet another problem with Plaintiffs' application is that neither Taylor nor V. PLAINTIFFS LACK STANDING TO ASSERT THESE NEW CLAIMS

8 UCAN has standing to assert the new claims which, in any event, do not appear in 9 Plaintiffs' complaint. 10 11 Sprint has already informed Plaintiff Taylor in writing that he has the right to

12 terminate his contract within 30 days of the date of his January bill that includes the new 13 charges. Mr. Taylor cannot possibly be confused about his rights. Indeed, Plaintiffs 14 attached to their application the letter of James J. Mittermiller to Alan M. Mansfield, dated 15 January 25, 2008, addressing this issue. Plaintiffs attached this letter despite the fact that 16 it clearly noted at the outset that it was a confidential, settlement-related communication 17 protected by Federal Rule of Evidence 408. While under the Rules of Evidence Plaintiffs 18 should not have attached that letter to their application, by doing so, they have 19 demonstrated that Plaintiff Taylor has no injury as a result of the conduct of which he 20 complains in this application and he therefore lacks standing. 21 22 The other purported Plaintiff in this case, UCAN, also lacks standing to

23 pursue any of the new assertions contained in their application. Although Plaintiffs have 24 not filed a complaint that includes any of the issues addressed in their application, it is 25 clear that it would be futile for Plaintiff UCAN to do so. UCAN has not been assessed any 26 of the fees they complain of in their application. See Whitmore v. Arkansas, 495 U.S. 149, 27 155-56 (1990) (The plaintiff must allege an injury to himself or herself that is "distinct and 28 palpable," as opposed to merely abstract.). Further, UCAN lacks associational standing -6W02-WEST:8JCD1\400701313.3

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1 because individual class members are required in any case challenging the new charges. 2 See United Food & Commercial Works Union Local 751 v. Brown Group, 517 U.S. 544, 3 553 (1996). These and other standing issues are the subject of Sprint's 12(b)(1) motion 4 currently pending before the Court. 5 6 7 8 9 10 Not only does Plaintiffs' application seek discovery on issues not presented VI. PLAINTIFFS HAVE FAILED TO ALLEGE A CLASS THAT INCLUDES THESE NEW CLAIMS

11 in their complaint, it seeks information about a purported class that has never been defined 12 in any pleading. The class alleged in Plaintiffs' complaint does not include the proposed 13 new class mentioned in Plaintiffs' ex parte application. 14 15 The pleading rules require that Plaintiffs file a "short and plain statement of

16 the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Sprint is 17 not required to contest unpleaded claims and the court cannot certify a class that is not 18 alleged in the complaint. 19 20 While Plaintiffs' application is vague, it appears they now seek to represent a

21 nationwide class of Sprint customers who received certain new charges in their recent bills 22 and who contend they are entitled to terminate their contract without paying an ETF. 23 However, Plaintiffs will not, under any circumstances, be able to pursue these new claims 24 as a nationwide class action because, among other things, individual issues will swamp 25 common issues. Sprint's subscribers include business plan customers, government 26 customers and residential customers. Business plan and governmental customers often 27 negotiate the charges that apply to their accounts and the new charges Plaintiffs challenge 28
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1 do not apply to many of those accounts. As explained more fully below, the circumstances 2 of individual residential consumers also vary. 3 4 For example, customers have agreed to waive their rights to sue on a

5 classwide basis. The terms and conditions provide: 6 7 8 9 10 11 12 See Mansfield Decl., Exh. 7, p. 35. 13 14 Plaintiffs' papers include declarants from around the country. However, "TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING."

15 there are stark variances in state laws regarding class action waivers, as well as other 16 matters. In short, Plantiffs' new unpleaded assertions about a purported nationwide class 17 will not survive if they are ultimately alleged in a complaint. 18 19 20 21 22 23 Even if the discovery sought by Plaintiffs were relevant to actual claims VII. PLAINTIFFS' PROPOSED DISCOVERY CANNOT BE DONE ON AN EXPEDITED BASIS

24 included in their lawsuit, and even if Plaintiffs were entitled to go forward with discovery 25 while Sprint's motion to dismiss is pending, it is clear that the discovery Plaintiffs seek 26 cannot, and should not, be provided on an expedited basis. 27 28
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Plaintiffs' proposed discovery is neither narrowly tailored nor reasonably

2 focused. The proposed discovery seeks a wide range of documents and information that 3 will, to some extent, be impossible to provide. The balance can be addressed only through 4 collection, review, and production of both paper documents and electronically stored 5 information (ESI). For example, several of the requests seek information contained in 6 proprietary databases that track customer information. These databases were not designed 7 for litigation purposes and contain many different fields of data which, depending on the 8 nature of the information sought, may or may not be relevant. 9 10 Based on the research that Sprint and its counsel have conducted to date, it

11 appears that much of the information being sought is not contained within a single 12 database, nor is it contained within the program run against these databases. As a result, to 13 extract data responsive to the requests will likely require programming by individuals with 14 expertise in that system, or the retention of a third party vendor specializing in the 15 extraction of data from such systems. 16 17 The complexity of these systems, the compressed response period demanded

18 by Plaintiffs, the sweeping nature of their requests, and the complexity of the document 19 and data sources involved would necessarily result in precisely the sort of error-prone and 20 incomplete discovery of ESI that the amended Federal Rules were designed to avoid. 21 22 23 24 25 26 27 28 SPECIAL INTERROGATORY NO 3 State the number of complaints YOU have received from any -9SPECIAL INTERROGATORY NO. 2 Of YOUR customers who have indicated to YOU a desire to cancel service based on the imposition of FEES, state the number of such CUSTOMERS who have received authorization to cancel their service without having a termination fee imposed. For example, in Proposed Special Interrogatories 2, 3 and 6 Plaintiffs ask:

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source RELATING to any claim that YOUR representatives are not recognizing customers' right to cancel service under the Terms and Conditions of Service.

SPECIAL INTERROGATORY NO 6 State the number of customers who have claimed to YOU that imposition of FEES triggered their right to cancel service without having an early termination fee imposed, yet YOUR representatives have not provided them such relief.
To the extent that this information exists, it resides in Sprint's customer care

8 records. Sprint has over 50 million subscribers. Sprint's preliminary investigation reveals 9 that the records, which are stored electronically, are found in at least two different relevant 10 systems, "Ensemble" and "P2K," corresponding to the iDen (Nextel) and CDMA (Sprint) 11 wireless networks. In general, these systems are optimized for responding to questions 12 about individual customers -- not for litigation searches to establish the total number of 13 customers who made a given type of complaint. Data in the Ensemble system, for 14 example, can be searched and exported, but the system is designed to produce results on an 15 individual customer basis, and that export must be reformatted to be useful. Similarly, 16 data in the P2K system can be searched and exported, but is designed to produce results on 17 an individual customer basis. P2K has a further limitation, namely that its reporting is 18 generally based on using a "screen snapshot" of the records in question -- a process not 19 suitable for large data extractions. 20 21 At this point, and based on preliminary investigation, it is not clear that a 22 search could be constructed to answer Plaintiffs' questions, and therefore there are 23 significant questions as to whether the data is maintained in a form that would be 24 considered reasonably accessible. See Fed. R. Civ. P. 26(b)(2)(B). 25 26 In sum, there is simply no way to "press a button" and reveal which

27 customer records reflect the fact patterns sought by Plaintiffs. If discovery of these 28 databases is attempted, it may require the retention of a third party expert to see whether - 10 W02-WEST:8JCD1\400701313.3

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1 the data can be extracted in a form suitable for searching and review, while maintaining the 2 systems' function and protecting them from harm. That process would require the 3 involvement of the parties and possibly the Court, and would take a number of months. It 4 could also be extremely expensive and any such expense should be borne by Plaintiffs. 5 6 Plaintiffs' proposed document requests present similar problems. For

7 example, Plaintiffs seek: 8 9 10 11 12 13 14 15 16 As with the proposed interrogatories, it simply may not be possible to locate REQUEST NO. 4 All DOCUMENTS that would indicate the number of requests for cancellation of service YOU have received from YOUR customers since YOU notified them of the imposition of the FEES, and how many have been either honored or rejected.

REQUEST NO. 5 All DOCUMENTS that evidence any complaints YOU have received from any source RELATING to any claim that YOUR representatives are not recognizing customers' right to cancel service under the Terms and Conditions of Service

17 these documents. These materials are subject to the same difficulties noted above in 18 connection with the Interrogatories -- i.e., responses would require extensive review of the 19 customer care databases, without any simple way, short of individualized review, to 20 narrow those records down to those that are responsive. Moreover, this request may 21 require Sprint to include, in its search of electronic documents, those Sprint custodians 22 who may have received information in email form, which would require searching each 23 custodian's computer individually and downloading relevant files (i.e., it is not possible to 24 do a comprehensive search from a centralized email server location). 25 26 Expedited discovery in this case is a lose-lose proposition. It could only be

27 accomplished in an incomplete and non-standardized manner, using procedures likely to 28 miss documents and information relevant to Plaintiffs' unasserted claims. In particular, to - 11 W02-WEST:8JCD1\400701313.3

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1 the extent that the requested information can be obtained at all, expedited discovery would 2 not permit a thoughtful and deliberate approach. At the end of Plaintiffs' proposed fire 3 drill, considerable time and financial resources will have been expended, only to face (no 4 doubt) the all-too common criticisms regarding partial ESI responses, incomplete 5 custodian lists, inadequate search methodologies, etc. To ensure that discovery in this case 6 proceeds in an orderly and appropriate fashion, with litigation limited to the merits rather 7 than to satellite disputes over ESI concerning claims not in issue, the Court should refuse 8 Plaintiffs' request for expedited discovery. 9 10 Finally, many of Plaintiffs' proposed discovery requests implicate important

11 privacy laws and policies. For instance, Exhibit 1 to Plaintiffs' proposed 30(b)(6) 12 deposition notice seeks: 13 14 15 16 17 18 Other requests similarly call for the production of consumer records. However, California 19 Public Utility Code § 2891(a) restricts Sprint's ability to provide customer information 20 without written consent by the customer. Further, other California privacy laws limit the 21 dissemination of such information. See Cal. Const., Art. I, sec. 1. It is interesting that 22 Plaintiffs, who claim to be acting in the interests of consumers, offer proposed discovery 23 that would run roughshod over important privacy protections. 24 25 26 27 28
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"All documents that relate to any communications between defendants' representatives and any customer regarding the Fee, including any communications relating to customer complaints over customers being advised that they could not cancel their service based upon the imposition of the Fee."

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VIII. PLAINTIFFS HAVE PRESENTED IRRELEVANT AND MISLEADING ARGUMENTS IN AN EFFORT TO CONFUSE THE ISSUES

In support of their application, Plaintiffs attached a copy of an unpublished,

6 unrelated state court order in an attempt to improperly influence this Court. That case 7 dealt with different facts, different fees, and different issues. 8 9 Further, the declaration of Art Neill contains "complaints" by customers

10 about a requirement that if customers want to "port" their telephone number to another 11 wireless carrier after cancellation, the customers cannot cancel their account (or phone) 12 until after the number has been transferred to the customers' new service provider. In 13 some instances, this requirement necessitates an additional call to Sprint. Mr. Neill fails to 14 inform the Court that a customer must port his or her number prior to cancelling service 15 because a number cannot be ported from an inactive account. This is the established 16 practice in the cell phone industry. If Plaintiffs disagree with this requirement they should 17 raise their concerns with the FCC ­ not criticize Sprint for complying with an industry 18 standard. 19 20 21 22 23 24 25 26 27 28
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IX. CONCLUSION

For the foregoing reasons Sprint respectfully requests that the Court deny

5 Plaintiffs' ex parte application. 6 7 DATED: February 12, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

s/James J. Mittermiller Attorneys for Defendants SPRINT SOLUTIONS, INC. and SPRINT SPECTRUM L.P. E-mail: [email protected]

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