BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
RUBY RANCH INTERNET COOPERATIVE )
ASSOCIATION, )
)
PETITIONER, )
) ARBITRATION
) DOCKET NO. 01B-493T
)
QWEST CORPORATION, )
)
RESPONDENT. )
PETITIONER'S REPLY IN SUPPORT OF ITS MOTION TO COMPEL
The Ruby Ranch Internet Cooperative Association ("Coop") submits this brief reply to the December 28, 2001 Response that Qwest Corporation ("Qwest") filed in response to the Coop's December 24, 2001 motion to compel discovery.(1)
Other than repeat its argument that it would be an "undue burden" if required to acknowledge having sent or received 13 documents,(2) Qwest does not address the substance of the Coop's motion. Instead, Qwest asserts that the motion is "premature because Qwest has not yet responded to Ruby Ranch's discovery."(3) According to Qwest, the Coop should be required to re-file its motion to compel on some date after January 3, 2001, when Qwest admittedly "will not respond to certain" discovery involving matters where Qwest's objections are "significant."(4) In short, Qwest wants to continue its "hide the ball" strategy.
The Coop is by no means an expert on the Commission's discovery rules. Nevertheless, Qwest's position appears to make no sense, given that Commission Rules 77(b)(1) and (b)(3) specifically provide that a party must make its objections five days after service, while the responses are not due until ten days after service. If the Commission had intended that motions to compel should be held in abeyance until after the response date, then there would have been no reason for the Commission to require objections to be made five days earlier; a party could simply serve its objections on the scheduled date for the response that would have been made (in the absence of the objections).
Qwest's position is nothing more than a continuation of its "hide the ball" strategy. The difference is this time it seeks the Commission's participation in its strategy, by having the Commission agree to defer its consideration of Qwest's objections to the discovery even though by Qwest's own admission, "many" of its objections are not "significant."(5)
Qwest has offered the three terms subject to arbitration on a "take it or leave it" basis only (although Qwest has repeatedly professed its commitment to the negotiation process). Qwest has repeatedly declined to produce any justification for its position despite the fact that the FCC has ruled that "an incumbent LEC may not deny a requesting carrier's reasonable request for cost data during the negotiation process, because we conclude that such information is necessary for the requesting carrier to determine whether the rates offered by the incumbent LEC are reasonable."(6)
On December 19, 2001, Qwest objected to all of the Coop's discovery requests.(7) Now, on December 28, 2001, it says that it "will . . . respond to many of Ruby Ranch's discovery requests to which Qwest has objected," but that it "will not respond to certain other requests for which Qwest's objections are so significant."(8) Qwest asks the Commission and the Coop to "guess" its plans, because it does not identify those requests for which it will respond and those for which it will not respond. Qwest also does not explain why it raised "insignificant" objections in the first place.
Qwest should have produced months ago the facts the Coop has been seeking. The hearing is scheduled for January 31, 2001, less than a month from today. The Coop has decided to prepare and submit prefiled testimony so as to simplify and shorten the hearing. However, the Coop cannot submit meaningful prefiled testimony if Qwest continues to refuse to provide the core facts that it claims supports the position it has consistently taken for the past seven months.
The Coop submits that Qwest's strategy is apparent: it wants to delay the date that it "shows its cards" so as to inhibit the Coop's ability to prosecute this arbitration proceeding, and it wants to preclude the Coop from submitting follow-up discovery. It is time for Qwest's "hide the ball" strategy to end and for the arbitration issues to be addressed on the merits.
Unlike Qwest, the Coop does not intend to engage in gamesmanship. On December 31, 2001, Qwest served 45 discovery requests on the Coop (70 requests if subparts are counted separately). Under Commission Rule 77(b)(1), the Coop's responses are not due until December 15, 2002, which is only two weeks before the hearing. Realizing that the exercise of its "legal rights" could hamper Qwest's ability to prepare for the hearing, the Coop plans on responding to the Qwest discovery no later than Monday, December 7, 2002.
For the foregoing reasons, the Coop respectfully requests that the Administrative Law Judge consider the Coop's motion to compel now rather than postponing such consideration as Qwest would prefer. Qwest has already deprived the Coop from obtain relevant evidence for seven months. The hearing is scheduled to begin in less than one month. It is time, finally, that Qwest be required to "show its cards."
Respectfully submitted,
RUBY RANCH INTERNET COOPERATIVE
ASSOCIATION
_______________________________
Carl Oppedahl, Director
c/o Oppedahl & Larson LLP
P.O. Box 5088
Dillon, CO 80435-5088
970-468-6600
carl@rric.net
January 1, 2002
CERTIFICATE OF SERVICE
The undersigned certified that on this 1st day of January, 2002, a true and correct copy of the foregoing PETITIONER'S REPLY IN SUPPORT OF ITS MOTION TO COMPEL was sent to the following persons via
facsimile and email:
Timothy M. Tymkovich
ttymkovich@halehackstaff.com
fax 303-592-8710
and will be served via first-class mail prepaid on January 2, 2002:
Timothy M. Tymkovich
Hale Hackstaff Tymkovich & ErkenBrack LLP
1675 Broadway, Suite 2000
Denver, CO 80202
Kris A. Ciccolo
Qwest Services Corporation
1005 17th Street, Suite 200
Denver, CO 80202
______________________________
Carl Oppedahl
1. 1 Because of the importance and exigency of this matter, the Coop is submitting and serving this reply via facsimile. In compliance with Rule 22(d)(6), the Coop will, within one business day, also mail a copy of this reply to the Commission and counsel for Qwest.
2. 2 See Qwest's Response Opposing Petitioner's Motion to Compel, at 2 ¶ 7 (Dec. 28, 2001)("Qwest's Response"). Qwest's "undue burden" argument is frivolous. According to Qwest, the Coop should instead establish during the hearing that Qwest sent or received each document, presumably through cross-examination of the Qwest personnel who sent or received the documents (wasting the ALJ's time), at which time Qwest would face the identical "burden" it would face by addressing the matter now: engage in a "time-consuming word-by-word comparison" in order to evaluate whether to object to the accuracy of the documents. See ibid.
The Coop further disagrees with Qwest's prediction that it is "unlikely that many of these record will be admitted into evidence at the hearing." Id. at 2 ¶ 7 In fact, many of these documents will be introduced because Qwest's failure to produce relevant evidence during the first seven months undermines the credibility of any evidence that Qwest may ultimately submit at the 11th hour and demonstrates that Qwest has engaged in bad faith negotiations.
3. 3 Qwest's Response at 1 ¶ 4.
4. 4 Id. at ¶ 5.
5. 5 See id. at 2 ¶ 5.
6. 6 Coop Motion to Compel at 7, quoting First Local Competition Order, 11 FCC Rcd 15499, 15578 ¶ 155 (1996).
7. 7 Qwest misstates the record when it asserts that it did "not object to many of Ruby Ranch's requests." Qwest Response at 1-2 ¶ 5.
8. 8 Qwest's Response at 2 ¶ 5.