Readlyn Telephone Company v. Qwest Communications Corporation
Filing
125
ORDER granting in part and denying in part 113 Qwest's Motion to Compel. See ruling for particulars. Signed by Magistrate Judge Ross A Walters on 7/10/2013. (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.
)
------------------------------)
SULLY TELEPHONE ASSOCIATION, )
)
Plaintiff,
)
)
vs.
)
)
QWEST COMMUNICATIONS
)
CORPORATION,
)
)
Defendant.
)
No. 6:10-cv-2040-JEG-RAW
No. 4:10-cv-00218-JEG-RAW
(SDIA - Central Division)
RULING ON QWEST'S MOTIONS
TO COMPEL DISCOVERY
Qwest's "emergency" [113] (in Readlyn) and "expedited"
[90] (in Sully) motions to compel from Readlyn Telephone Company
and Sully Telephone Association (collectively "the LECs"1 unless
otherwise indicated) in these Tier 2 cases are before the Court.
The LECs resist. The motions are decided on the motion papers. LR
7.c.
The issue concerns the discoverability and use in these
cases
of
documents
originally
produced
under
"Protective
Agreements" in proceedings before the Iowa Utilities Board (the
"IUB documents"). The Court will grant the request for expedited
relief in view of the soon-to-occur Rule 30(b)(6) deposition in the
1
Readlyn and Sully are incumbent local exchange carriers.
Readlyn case (the Sully case is not as far along in discovery) and
the
demand
of
possession
be
both
LECs
destroyed
that
the
IUB
documents
under
the
terms
of
the
in
Qwest's
Protective
Agreements.
Readlyn and Sully were not parties in the IUB proceeding.
Qwest subpoenaed documents from them. The LECs agreed to produce
the documents subject to identical Protective Agreements.
The Protective Agreement prohibits the disclosure of
"Stamped Confidential Documents" except to identified persons.
(Readlyn Resist. Ex. A [115-1] ¶¶ 2, 3). Apparently all of the IUB
documents produced by the LECs were stamped Confidential. The
Agreement contemplates that confidential documents may be subject
to "subpoenas or orders" in another judicial or administrative
proceeding and requires Qwest to promptly notify the LECs of any
such subpoena or order so that "[c]onsistent with the independent
authority" of the other forum the LECs have a pre-disclosure
opportunity to oppose the production. (Id. ¶ 8). The Agreement
further provides that the use of information from confidential
documents obtained under the Agreement is limited "solely for the
preparation and conduct of this proceeding and any subsequent
judicial proceeding directly relating to this proceeding and,
except as provided herein, [persons having access to the documents]
shall not use such information for any other purpose, including
business,
governmental,
commercial,
2
or
other
administrative,
regulatory or judicial proceedings." (Id. ¶ 10). The Agreement
vests the IUB with authority to impose sanctions for violation of
the Agreement. (Id.) Finally, within two weeks after the conclusion
of the IUB proceeding (including administrative or judicial review)
the confidential documents and all copies "shall be destroyed."
(Id. ¶ 11). The IUB's final order was the subject of a judicial
review petition which was denied. Appeal was taken and denial was
affirmed by the Iowa Court of Appeals and petition for review by
the Iowa Supreme Court was denied. Readlyn asserts that from the
last action of the Iowa Supreme Court Qwest was obligated to
destroy the documents on or before June 4, 2013.
An issue arose in the development of a protective order
in the Tier 1 cases concerning the use of documents produced by
non-Tier 1 parties under the terms of the Protective Agreements in
the IUB case. The final Tier 1 protective order entered by this
Court provided that the Tier 1 parties could use all discovery and
other materials produced in the IUB case. However, with respect to
IUB documents produced by non-Tier 1 parties the right to use the
documents was made subject to the express terms of the Protective
Agreements, including specifically paragraph 8 which the Court
viewed as incorporating "a simple process . . . notification
sufficient to allow the disclosing party an opportunity to oppose
production in this Court." (10/7/2010 Order in 07-00078 [295] at 6;
see id., Protective Order [302] at ¶ 21). By letters dated October
3
20, 2010 Qwest's counsel, Mr. Steese, wrote to the attorney who had
represented the LECs in connection with the Protective Agreements,
Mr. Troup, attempting to notify the LECs that Qwest would begin
using the LECs' IUB documents in the Tier 1 cases unless the LECs
took action to protect the information. (Qwest Mot. Ex. 3 [113-5]
and Ex. 4 [90-5]). The LECs did not object. In affidavits attached
to the LECs' resistances to the present motions their general
managers say that Mr. Troup was no longer representing the LECs on
October 20, 2010 and that they had never seen Mr. Steese's letter,
facts not known to Qwest at the time. (Readlyn Resist. Ex. B [1154], Sully Resist. Ex. D [92-3]). There is no indication what Mr.
Troup did with the letters.
In these cases Qwest, in September (Readlyn) and October
(Sully) 2010, served requests for production of documents, one of
which, RFP 36, sought "all material you produced previously in the
[IUB] proceeding . . . ." (Qwest Mot. Exs. 1 [113-2], [90-2]). The
LECs objected in December 2010 on the basis of undue burden,
stating that Qwest "was a party to that [IUB] proceeding, and
already has the requested documents in its possession." (Id. Exs.
2 [113-3], [90-3]). The LECs did not object on the basis of
discovery relevancy or the IUB Protective Agreements. They did make
a number of non-specific, prefatory general objections. Among these
the LECs objected "to the extent that [the RFPs] require the
disclosure
of
confidential,
proprietary,
4
secret,
commercially
protected, or other non-public information . . . ." (Id.) The Court
disapproves of document productions made subject to "to the extent"
general objections of this kind because it leaves the propounding
party and the Court unclear as to what documents, if any, may have
been withheld. That is not a concern with respect to RFP 36.
However,
objection
to
the
discovery
of
a
party's
relevant
confidential information is rarely, if ever, a basis to prevent
disclosure, the usual course being to direct disclosure under a
protective order. See Federal Open Mkt. Comm. v. Merrill, 443 U.S.
340, 362 n.24 (1979). Certainly, a broad, general objection to the
production of confidential information like that put forward by the
LECs is insufficient.
In May 2013 the LECs amended their privilege logs to
state they would not produce documents obtained by Qwest under its
IUB subpoenas and which are subject to the Protective Agreements.
(Readlyn Mot. Ex. B [116] at 9; Sully Mot. Ex. B [93] at 25). The
Protective Agreements did not create a privilege and the Court is
not alerted to any specific IUB documents to which a recognized
privilege might apply.
Ordinarily
a
protective
order
issued
by
one
forum
restricting disclosure of documents does not restrict disclosure in
another forum where the documents are independently discoverable
under the rules of the second forum in proceedings pending in that
forum.
The
Protective
Agreements
5
here
do
not
purport
to
do
otherwise. Paragraph 8 in the Agreement recognizes documents held
confidential in the IUB proceeding may be subject to production
under the "independent authority" of an other administrative agency
or court, and requires notice so that the disclosing party has an
opportunity to challenge the production in the other forum.2 RFP 36
gave the required notice. Paragraph 10 provides that those who
obtain access to confidential documents "under this Protective
Agreement" must use the information solely in the IUB proceeding
and not in any other proceeding, including judicial proceedings. By
its
terms
this
limited
use
provision
does
not
restrict
the
recipient's use of the same documents in a separate proceeding if
obtained
from
the
LECs
under
the
process
available
in
that
proceeding. Nor does it prohibit the recipient from using the
2
Qwest filed in this Court a Fed. R. Civ. P. 45 motion to
compel LEC Farmers & Merchants Mutual Telephone Company of Wayland,
Iowa ("Wayland") to produce subpoenaed IUB documents for use in the
Sancom case pending in the District of South Dakota. The Court
rejected Wayland's argument that a document request did not
constitute a "subpoena or order" under paragraph 8 of an identical
Protective Agreement in the IUB proceeding. In so doing the Court
said:
The purpose of paragraph 8 is simply to assure
notice to the disclosing party when the
receiving party is required to disclose the
documents or information in proceedings before
another court or administrative agency. The
technicality of whether or not a document
request under the federal rules of civil
procedure is a subpoena or order is not
significant to the purpose of the paragraph.
(1/6/2009 Ruling, 4:08-mc-00036-RAW, at 10 (Mot. Ex. 6 [90-7])).
6
discovery tools available to it in a separate proceeding. To
interpret
the
provision
broadly
as
forever
putting
relevant
documents and information beyond use in separate agency or court
proceedings no matter how discoverable and relevant in those
proceedings would be incompatible with the independent authority of
other
agencies
and
courts
recognized
in
paragraph
8
of
the
Agreement. Here it is also appropriate to recognize the changed
circumstances. The LECs are no longer non-parties. They have sued
Qwest and are now subject to the discovery rules of this Court. It
follows there is nothing improper or violative of the Protective
Agreements in Qwest seeking production from the plaintiff LECs of
the same documents produced by them in the IUB proceeding to the
extent permitted by the federal rules of civil procedure. See
Sancom, Inc. v. Qwest Commun. Corp., 08-mc-75, Order on Motion to
Compel at 3-6 (12/29/2008 N.D. Iowa)(Mot. Ex. 5 [90-6]).
In its RFP 36 Qwest, under the authority of Fed. R. Civ.
P. 34, explicitly sought production of the same documents produced
by the LECs in IUB proceedings. Its purpose was stated in a
contemporaneous (October 26, 2010) joint consolidation motion filed
in Readlyn's Northern District of Iowa cases (including 10-cv-2040)
and signed by the attorney then representing both Readlyn and Sully
at the time, Mr. Binder. In the motion Qwest explained it had
propounded discovery in the Tier 2 cases seeking the IUB documents
of Readlyn, Sully and others so that it could use the documents in
7
these cases. (Joint Mot. to Consolidate [29] in 10-cv-2040 at 2-3).
This should have been clear to both Readlyn and Sully at the time.
Neither Readlyn nor Sully objected on the basis of the Protective
Agreements and, in fact, only complained about producing the
documents anew because Qwest already had them in hand.3 In light of
their responses to RFP 36, Qwest could reasonably believe that the
IUB documents had been produced in these cases and that it was free
to use them subject to the Tier 2 protective order.4 Only now, some
two and one-half years later, have Readlyn and Sully, with new
counsel, objected that the Protective Agreements bar use by Qwest
of
the
IUB
documents
in
these
cases.
The
Court
views
these
objections as having long ago been waived by failure to assert them
in response to RFP 36. The Readlyn and Sully IUB documents are now
in the domain of the Tier 2 cases in this Court.
No question is raised about the relevancy of the IUB
documents to the claims and defenses in these cases. The IUB
proceeding involved allegations that certain LECs had engaged in
what Qwest refers to as improper "traffic pumping" accomplished by
improperly billing Qwest for switched access charges. Qwest ceased
paying Readlyn and Sully. The LECs, as plaintiffs, brought these
actions against Qwest for collection of amounts allegedly owed for
3
As Qwest notes, the IUB documents would have been responsive
to other of its document requests.
4
The sufficiency of the Tier 2 protective order to safeguard
the confidentiality of the documents is not in question.
8
services provided to Qwest. Qwest answered, alleging the charges in
issue were illegal and counterclaimed, seeking damages for the
alleged illegal traffic pumping. It is apparent the subject matter
of the IUB proceeding is closely related to the subject matter of
these cases and indeed Qwest relies in part on the outcome of the
IUB
proceeding
in
support
of
its
affirmative
defenses
and
counterclaims. The IUB documents are thus independently subject to
discovery in these cases. See Fed. R. Civ. P. 26(b)(1).
There is another concern with respect to the Readlyn IUB
documents. Readlyn (and Sully) argue that the Protective Agreements
require Qwest to now destroy the IUB documents subpoenaed from
them. The motion papers reveal some question about whether Readlyn
any longer has the original documents produced in response to the
IUB subpoena. Naturally the Court would be most reluctant to
sanction the destruction of evidence relevant in these cases. In
any event, as the IUB documents now reside with Qwest as a result
of its requests for production under the discovery rules of this
Court they are not subject to destruction under the terms of the
Protective Agreements.
The Court has considered the other arguments presented by
the parties and finds it is unnecessary to address them. Qwest has
filed the pending motions to compel as a vehicle to resolve the
disputed issues about the affect of the IUB Protective Agreements
on the discoverability and use of the IUB documents in this case.
9
There really is nothing to compel as such because Qwest has the
disputed documents. The motions are
granted in part
only to
indicate that the disputed IUB documents are now part of the
discovery in these cases, and may be used subject to the Tier 2
protective order. This ruling only authorizes the use of the IUB
documents in these Tier 2 cases.
Motions to compel ([113] in 10-cv-2040)([90] in 10-cv218) granted in part as above.
IT IS SO ORDERED.
Dated this 10th day of July, 2013.
10
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