Pre-trial hearings kicked off in the most-watched antitrust trial since Microsoft Corporation (NASDAQ:MSFT) was declared a monopoly back in 2000. The Justice Department’s antitrust division is squaring off against AT&T, Inc. (NYSE: T), in the latter’s attempt to complete a vertical merger with Time Warner Inc. (NYSE: TWX).

Opening statements will be today. However, the Justice Department was petitioning the judge to submit thousands of pages of emails and PowerPoint presentations generated internally by AT&T employees.

This is not an uncommon tactic in antitrust trials. The DOJ is attempting to show that AT&T secretly has strategies that it believes will in fact stifle competition. It’s sort of a sneaky way of trying to convince the judge that the public messaging of AT&T, and its briefings, are at odds with what AT&T believes internally.

What’s Going on with the AT&T Pretrial

I, however, think the optics on this for the DOJ are terrible. As AT&T’s lead attorney argued, the emails and presentations are not relevant, and that depending on who these emails are from, the people who wrote them may not even be major decision-makers of the company.

“The mere fact something is in an email made on a business computer does not mean it is a business record,” the judge said, adding that there was clearly a distinction between “water cooler conversations” that happen via email and relevant conversations that once took place in person.

What the judge is getting at is what we have all come to think of is being “regular conversation” that occurs via email. Email conversations, as we all know, take many forms. This includes conversational-like exchanges that happen to occur in concise writings and are whisked off without a second thought.

The judge is right to make a distinction between casual conversation that occurs in an email, and significant and relevant conversations that might have occurred behind closed doors in the pre-email era.

The judge has not ruled on this matter, yet but he did say he was not inclined to let emails or Powerpoints be included as evidence unless there was some sort of context provided, such as a witness’ testimony.

DOJ Wrangling and the AT&T Suit

Another angle of the Justice Department is trying to play is to submit comments that were made by DirecTV to the Federal Communications Commission back in 2010. DirecTV submitted these comments in opposition to the merger between Comcast Corporation (NASDAQ: CMCSA) and NBC-Universal.

Again, the DOJ is playing silly games. DirecTV at the time was an independent company that naturally wanted to prevent a direct competitor from gaining a competitive edge by merging with a content company. The circumstances are entirely different now.

DirecTV had no downside in making the arguments it did at the time. It was purely to try to prevent another company from gaining a competitive edge.

To assume that this somehow catches DirecTV in a form of hypocrisy is a really lousy argument. I don’t think the judge is going to find that terribly relevant. Indeed, the judge asked whether any such statements were relevant. He did say he was inclined to allow older regulatory advocacy statements, but they had to relate directly to DirecTV, not AT&T.

So I don’t think the DOJ is going to win that one either.

Stay tuned for more developments.

Lawrence Meyers is the CEO of PDL Capital, a specialty lender focusing on consumer finance and is the Manager of The Liberty Portfolio at www.thelibertyportfolio.com. He owns shares of TWX. He has 23 years’ experience in the stock market, and has written more than 2,000 articles on investing. Lawrence Meyers can be reached at TheLibertyPortfolio@gmail.com.