Ruby Ranch Internet Cooperative Association
c/o Oppedahl & Larson LLP
P.O. Box 5088
Dillon, CO 80435-5088
970-468-6600
carl@rric.net
By email ttymkovich@halehackstaff.com
and fax 303-592-8710
Timothy M. Tymkovich
Hale Hackstaff Tymkovich & ErkenBrack LLP
1675 Broadway, Suite 2000
Denver, CO 80202
January 6, 2002
Re: Discovery issues
Dear Mr. Tymkovich:
We have now had an opportunity to preliminarily review the discovery
responses which your client sent to us on January 3 by email. There are a
number of problems with the responses. As you know, the parties face a
difficult and busy schedule between now and the hearing on January 31. Thus I
am writing to ask for your immediate assistance with the discovery problems.
Absent resolution of the discovery problems by the close of business on Monday
the seventh, we will probably be filing by fax that evening a motion to compel.
I do hope to hear back from you before that.
Admissions 1, 2, 3. Qwest was asked to admit that the Proposed Service poses
less risk to Qwest's network, in technical terms, than POTS or LADS or alarm
line service. Any competent technical person within Qwest would know the
answer, and would say that the correct answer is "admit." We request
a square answer by Qwest to these requests, in the absence of which we will ask
the Administrative Law Judge for relief.
Admissions 4, 5 and 6. Qwest was asked to admit that Qwest's process of
activating a Subloop for the Coop does not require Qwest personnel to do work
at the Remote Terminal, at the Highway 9 Pedestal, or at any Qwest central
office. Qwest's response was to refer the Coop to a November 13, 2001 Order
which has no connection with this subject. Were Qwest to answer truthfully, the
answer would be to "admit." The Remote Terminal is more than a mile
distant from any of the Subloops. The Highway 9 Pedestal is more than a quarter
of a mile distant. The nearest Qwest central office is more than three miles
distant from any of the Subloops. Neither the Remote Terminal nor the Highway 9
Pedestal nor any central office plays any part in activation of Subloops. The
Qwest person who gave you the information for Admissions 9-23 (numbers of spare
pairs in various locations) is likely to be able to assist you with this
question. You can get (and should have gotten) the answer to this question with
a single telephone call to a knowledgeable Qwest employee in Summit County, and
you ought to do so right away, in the absence of which we will have to ask for
help from the Administrative Law Judge.
Admission 24. Qwest was asked to admit that the Crossbox has eight positions
capable of receiving screw terminal blocks each with one hundred pairs of screw
terminals, six of which are filled with screw terminal blocks and two of which
are presently spare positions. Qwest denied. Were Qwest to answer truthfully,
the answer would be to "admit." If it will help you in preparing a
truthful response to this question, just let me know and I can provide to you
clear digital photographs showing the six screw terminal blocks now in place
and the two spare positions. The Qwest person who gave you the information for
Admissions 9-23 (numbers of spare pairs in various locations) is likely to be
able to assist you with this question. You can get (and should have gotten) the
answer to this question with a single telephone call to a knowledgeable Qwest
employee in Summit County, and you ought to do so right away, in the absence of
which we will have to ask for help from the Administrative Law Judge.
Admission 25. Qwest was asked to admit that for carriers providing SDSL over
copper pairs rented from Qwest, Qwest has never made a claim under an Insurance
Policy arising out of the provision of SDSL service. Qwest refused to answer on
admissibility and other grounds. Qwest's insurance claims experience regarding
SDSL (which, as you know, uses dedicated copper pairs that do not connect with
pairs providing Qwest voice service) is central to this matter, and if Qwest
has never made such a claim it will be important to this hearing. The Coop does
not want to be sandbagged at trial with some previously undisclosed alleged
insurance claim involving SDSL. If Qwest has no such evidence then Qwest should
simply say so. Absent a meaningful response from Qwest to this request, we will
have to seek relief.
Admission 41 and 42. Qwest was asked to admit that Qwest has no evidence to
establish that AT&T has ever offered cable modem Internet access in the
Neighborhood, and that it has no evidence to establish that AT&T has ever
said it will offer such access. Qwest's answer was to state that it
"cannot either admit or deny," and further processes that it is
"not aware of what AT&T's cable modem deployment plans were or
are." But the question did not ask Qwest to state what AT&T's plans
are. The question merely asked Qwest to admit that it had no evidence to
establish that AT&T has ever offered such service in the Neighborhood, or
has said that it will. We do not wish to be sandbagged at the hearing with
Qwest suddenly proffering evidence that AT&T has supposedly offered cable
modem Internet access in the Neighborhood. If Qwest has no such evidence (and
the response, such as it is, seems to suggest that Qwest has no such evidence)
then Qwest should simply say so.
Admissions 48 through 61. Qwest was asked to admit that each of several
produced documents was substantially a copy of an item either "received by
Qwest from the Coop" (48-50, 52-54, 56-61) or "sent by Qwest to the
Coop" (51, 55). Qwest's responses go on at some length but duck this
issue. The Coop does not want to be sandbagged at the hearing with Qwest
suddenly claiming it did not send or receive some item, and does not want to
waste the time of the Administrative Law Judge dealing with some such claim by
Qwest. Kindly give a response which takes a position as to whether Qwest is
going to claim it did not actually send or receive these items.
Interrogatory 1. Qwest has declined to provide the requested information.
The Coop will shortly seek an Order in limine precluding Qwest from
adducing anything at the hearing on this topic.
Interrogatory 8. Qwest's response talks about irrelevancies such as Field
Connection Points. The interrogatory is clear and specific -- the cost of one
one-hundred-pair screw terminal of the type found within the Crossbox. Qwest
has taken the position that a confidentiality agreement was entered into
between Qwest and the Coop, and thus the mere alleged "proprietary"
nature of the requested cost is no justification for refusing to provide the
requested cost data. Barring some resolution of Qwest's refusal to produce the
requested documents, the Coop will shortly seek an Order directing Qwest to
answer the interrogatory.
Document request 1. We have not yet received the document. Kindly forward it
right away.
Interrogatories 9, 10, 11 and 12, Document requests 2 and 3. We note that
Qwest has refused to provide cost data, and has instead produced only a
November 13, 2001 decision of the Public Utilities Commission. Qwest has taken
the position that a confidentiality agreement was entered into between Qwest
and the Coop, and thus the mere alleged "confidentiality" of the
requested document is no justification for refusing to provide the requested
cost data. Barring some resolution of Qwest's refusal to produce the requested
documents and to answer the interrogatories, the Coop will shortly seek an
Order directing Qwest to comply with the requests, or failing that, an Order
in limine precluding Qwest from adducing any information or document
at the hearing on these topics other than what was produced.
Interrogatory 14, Document request 4. Qwest refers in its response to a
variety of documents, but produces only one of the documents. The Coop will
shortly seek an Order in limine precluding Qwest from adducing any
document at the hearing on this topic other than what was produced.
Document request 5. Qwest refers in its response to a variety of documents,
but produces none of the documents. The Coop will shortly seek an Order in
limine precluding Qwest from adducing any document at the hearing on this
topic.
Let us turn now to the subject of the Coop's responses to Qwest's discovery
requests. As you know, the Administrative Law Judge adopted your view that the
Coop be required to wait until after your January 3 production to move to
compel. I must let you know that while the Coop had originally expected to be
able to give you its discovery responses on January 7th, that date
assumed that our Motion to Compel would have been heard and decided last week
and assumed that Qwest's responses thereto would already be in hand. That date
also assumed satisfactory responses from Qwest by last week. The Coop now faces
the prospect of spending time over the next few days, dealing with the
deficiencies in Qwest's responses. We will thus not be able to commit to
accelerating our discovery responses to be provided sooner than the dates
required by the Rules. We will not be able to commit to providing our
objections prior to January 8, and our responses prior to January 15. We note
that the paper in which we expressed our goal of responding by January 7 was
expressly "not considered" by the Administrative Law Judge."
Very truly yours,
Carl Oppedahl, Board member
Ruby Ranch Internet Cooperative Association