Readlyn Telephone Company v. Qwest Communications Corporation

Filing 100

ORDER granting in part and denying in part 56 Qwest's Motion to Compel. See ruling for particulars. Signed by Magistrate Judge Ross A Walters on 3/29/2013. (RAW)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
THE READLYN TELEPHONE COMPANY,)
)
Plaintiff,
)
vs.
)
)
QWEST COMMUNICATIONS
)
CORPORATION,
)
)
Defendant.
)

No. 6:10-cv-2040-JEG-RAW
RULING ON MOTION
TO COMPEL
OF QWEST COMMUNICATIONS
CORPORATION

The above resisted motion [56] is before the Court. It is
decided on the motion papers. LR 7.c. The discovery dispute
concerns the sufficiency of Readlyn's objections and responses to
certain of Qwest's first set of requests for production, and an
answer to an interrogatory propounded in Qwest's first set of
interrogatories. The Court takes up the disputed issues in the
order presented by Qwest.
Customer Proprietary Network Information ("CPNI")
Readlyn's objection to producing CPNI is overruled. The
information is relevant to Qwest's counterclaims and defenses.
Discovery in the circumstances of this case is authorized by 47
U.S.C. § 222(c)(1), and probably subsection (d)(2) as well. See CMC
Telecom, Inc. v. Michigan Bell Tel. Co., 637 F.3d 626, 630 (6th
Cir. 2011); ICG Commun., Inc. v. Allegiance Telecom, 211 F.R.D.
610, 612, 614 (N.D. Cal. 2002)(cited in CMC Telecom); ASIS Internet
Serv. v. Active Response Group, 2008 WL 2129417, at *3 (N.D. Cal.
2008). CPNI disclosed in compliance with this order shall be
produced subject to existing protective order.

Production of Responsive Electronically Stored Information in
Native Format or Read-Only But Searchable Format
Federal Rule of Civil Procedure 34(b)(2)(E) requires that
a party must produce electronically stored information ("ESI") "in
a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms . . . ." Similarly the Advisory
Committee Note to the 2006 rules amendment ("Advisory Committee
Note") explains that if the form of production has not been
specified by agreement or court order "the responding party must
produce electronically stored information either in a form or forms
in which it is ordinarily maintained or in a form or forms that are
reasonably

useable."

Readlyn

says

it

has

produced

ESI

in

a

reasonably useable form and to the extent of its production thus
far the Court is not convinced Readlyn has failed to do so. The
Court will not require Readlyn to re-produce documents already
produced in native format or read-only but searchable format.
However,

to

the

extent

this

ruling

requires

production

of

additional documents sought by RFPs 17, 18, 30 and 31 (financial,
billing or accounting information typically on spreadsheets) the
ESI shall be produced in native format or read-only but searchable
format. Specifically, if Readlyn ordinarily maintains additional
information subject to production by this ruling "in a way that
makes it searchable by electronic means," care shall be taken that
the

form

of

production

will

not

"remove[]

or

significantly

degrade[]" the searchable feature. Advisory Committee Note.
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RFPs 6 and 16
These requests seek production of documents exchanged
with consultants, affiliated companies or FCSCs pertaining to
FCSCs, access revenue sharing, switched access tariffs, local
exchange tariffs, or rate development. It is unclear to the Court
in the motion papers what the status of Readlyn's production on
these items is. Readlyn has responded subject to its objections.
The principal dispute appears to be about what is meant by the word
"consultant."
Readlyn's

The

other

documents
conclusory

sought

have

objections

discovery

are

relevancy.

overruled,

except

attorney-client privilege and work-product doctrine. If there
remains any question about the term "consultant" Readlyn should
respond with respect to any person from whom Readlyn sought advice
or consultation on the topics described in the RFPs. The motion is
granted to require supplementation to the extent any non-privileged
documents have been withheld on the basis of the objections put
forward, provided, however, any documents concerning which Readlyn
claims attorney-client privilege, work-product protection, or other
privilege shall be identified on a privilege log.
RFPs 8 and 14
These

requests

seek

revenue

information

concerning

traffic routed to Readlyn or sent to each FCSC and specified
records relating to the volume of traffic routed to Readlyn
associated with each FCSC, including specifically call detail

3

records (CDRs). Much of Readlyn's resistance has to do with the
burden of producing the requested CDRs. Its undue burden objection
in this regard is sustained. Beyond this Readlyn's objections are
overruled

and

the

motion

granted.

Readlyn

shall

produce

any

documents, other than the CDRs, withheld from production on the
basis

of

its

objections

and

shall

supplement

its

responses

accordingly.
RFPs 17, 18 and 31
These RFPs seek documents relating to payments from any
FCSC (17), documents relating to any payments to an FCSC (18), and
comprehensive financial records from January 1, 2005 (31). The
objections to 17 and 18 are breadth and burden, or lack of
possession,

custody

or

control,

but

subject

to

them

Readlyn

responds it has or will produce responsive documents (through
incorporation of Readlyn's response to RFP 5). It is thus not clear
what

has

been

withheld

on

the

basis

of

these

objections

if

anything. Readlyn's objections to RFPs 17 and 18 are overruled.
Readlyn

shall

possession,

produce

custody

or

all

responsive

control

as

documents

that

phrase

within
is

its

commonly

understood in the federal rules, and supplement its responses and
produce additional documents accordingly. Fed. R. Civ. P. 34(a)(1).
RFP 31 is quite broad in calling for production of now
eight years of balance sheets, financial statements, monthly income
statements, monthly cash flow statements, monthly trial balances,

4

detailed

trial

balances,

summary

trial

balances,

and

general

ledgers. The Court can understand that the financial records sought
are relevant to determining if Readlyn accounted for FCSCs as it
did for traditional end-users, an issue which bears on Qwest's
Communications

Act

claims

and

defenses.

Readlyn's

discovery

relevancy objection therefore are overruled. RFP 31 is specific,
hence the "vague and ambiguous" objections are overruled. The
burden objection is not supported. The Court will give Readlyn some
relief on the issue of breadth. In response to RFP 31 Readlyn shall
produce its annual financial statements, income statements, balance
sheets and general ledger, but not the monthly financial records
sought by the request. To this extent the motion is granted.
RFPs 23 and 24
These RFPs seek invoices and documents from January 1,
2004 relating to certain high capacity services provided to FCSCs
and non-FCSCs. A relevant fact issue is whether Readlyn treated the
FCSCs the same as it did other customers with respect to tariff
rates, terms and conditions. The information requested will reflect
whether FCSCs and non-FCSCs were treated the same with respect to
the services described in the requests. The breadth, vagueness and
ambiguity objections are overruled, as are the CPNI and discovery
relevancy objections. The undue burden objection is not supported
and as Qwest notes, Readlyn is not a large town and it may well be
that not many local businesses received high capacity services. If,

5

however, there are a significant number of such customers the
parties should, as Qwest has offered, discuss narrowing the request
to a random selection of such customers. Subject to the foregoing,
the motion is granted with respect to these RFPs.
RFP 25
This RFP seeks documents relating to the payment of taxes
concerning services provided to the FCSCs. Readlyn objects, noting
the heightened two-part relevancy and need standard for production
which courts often apply to tax return discovery requests. See EEOC
v. Ceridian Corp., 610 F. Supp. 2d 995, 996-97 (D. Minn. 2008).
Qwest

has

narrowed

the

request

to

documents

that

specifically refer to an FCSC by name or by direct implication. It
also

states

it

is

not

interested

in

Readlyn's

tax

return

information. Collection and payment of taxes on services provided
to FCSCs is relevant to the end-user issue. Readlyn says it has
produced documents showing it billed taxes to an FCSC but argues
evidence of payment of taxes is irrelevant. The Court disagrees.
Payment as well as billing of taxes is relevant. The motion is
granted with respect to RFP 25 provided Readlyn is not required to
produce documents from its tax returns.
RFP 33
This RFP sought all Readlyn board of directors meeting
minutes since January 1, 2004. Readlyn's original overbreadth
objection was well taken. The other conclusory objections are not.

6

However, Qwest says it has since narrowed the request to those
portions of board minutes which discuss FCSCs, Sully or TouchTone
Communications, the business of those entities, revenues from those
entities,

traffic

pumping

Readlyn's

relationship

with

litigation
an

FCSC,

in

Iowa

Sully

generally,

or

or

Touchtone.

As

narrowed the request is clearly relevant. According to Qwest, in
discovery information has been produced which indicates Readlyn and
Sully had an arrangement whereby Sully sent originating calls to
Readlyn. As narrowed the motion to compel with respect to this RFP
is granted. Readlyn shall supplement and provide non-privileged
responsive documents accordingly.
INT 16
This INT inquired about Readlyn's communications with
FCSCs on the subject of whether Readlyn should issue invoices to
FCSCs for service provided. Apparently there is some evidence that
other LECs have back dated invoices, something the IUB and FCC have
found relevant to the end-user issue. Readlyn's only objection is
that the interrogatory is compound. That objection is overruled.
Subject to that objection Readlyn has provided some information
concerning discussions with a Mr. Neill of ICORE which, as the
Court understands Readlyn's response to the motion, are the only
non-privileged

communications

within

the

scope

of

the

interrogatory. Readlyn has not, however, responded to those parts
of the interrogatory seeking the details of the communications. The

7

motion

to

compel

is

granted

to

require

Readlyn

to

answer

subparagraphs (c) through (f) of the interrogatory (content, why it
was decided to issue or not issue invoices, facts that evidence the
communications, and identification of relevant documents). Readlyn
shall supplement its answer accordingly.
Motion to compel [56] granted in part and denied in part
in conformity with the foregoing. To the extent granted Readlyn
shall supplement its discovery responses and provided documents
within twenty (20) days of the date hereof. The Court elects not to
undertake

an

apportionment

of

fees

and

expenses

incurred

in

relation to the motion. Fed. R. Civ. P. 37(a)(5)(C). The Court
reserves for later determination on separate motion, if necessary,
Qwest's request to reopen the deposition of Readlyn.
IT IS SO ORDERED.
Dated this 29th day of March, 2013.

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