Sprint Communications Company L.P. v. Maule et al

Filing 281

MEMORANDUM OPINION AND ORDER denying 256 Motion for Reconsideration ; granting 258 Motion for Summary Judgment on Count One of its Complaint; granting in part and denying in part 268 Motion to Compel; granting in part and denying in part 273 Motion to Compel. Signed by U.S. District Judge Karen E. Schreier on 2/26/2016. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SPRINT COMMUNICATIONS COMPANY
L.P.,
Plaintiff,

4:10-CV-04110-KES

MEMORANDUM OPINION AND
ORDER

vs.
CROW CREEK SIOUX TRIBAL COURT,
NATIVE AMERICAN TELECOM, LLC.,
and B. J. JONES, in his official capacity
as special judge of Tribal Court;
Defendants.
Plaintiff, Sprint Communications Company, L.P., moves the court for
reconsideration of its August 5, 2015 order granting in part and denying in
part the parties’ cross motions for summary judgment. Docket 256. Sprint also
moves the court for partial summary judgment on Count 1 of Sprint’s
complaint. Docket 258. Additionally, Sprint moves the court to compel
defendant, Native American Telecom, LLC (NAT), to respond fully to Sprint’s
discovery requests. Docket 268. NAT resists each of Sprint’s motions and
moves the court to compel Sprint to respond fully to NAT’s discovery requests.
Docket 273. Sprint resists NAT’s motion. For the following reasons, the court
denies Sprint’s motion for reconsideration, grants Sprint’s motion for summary
judgment, grants in part and denies in part Sprint’s motion to compel, and
grants in part and denies in part NAT’s motion to compel.

BACKGROUND
The facts of this case are more fully set forth in the court’s August 7,
2015 order granting in part and denying in part cross motions for summary
judgment from both parties. See Docket 250. On September 15, 2015, a
telephonic status conference was held. Docket 254 (Transcript). This matter is
now set for a court trial to begin on April 12, 2016. Docket 267.
I.

Sprint’s Motion for Reconsideration
Sprint inquired during the status conference if the court would

reconsider a factual matter in the court’s August 5, 2015 order. Docket 254 at
14. Sprint explained that the parties entered into a stipulation during the
South Dakota Public Utilities Commission (SDPUC) proceeding that limited
“the geographic scope of NAT’s certification from the [SD]PUC.” Id. Sprint
believed that this fact was important and that the court’s order should “sync
up with what the South Dakota Commission found.” Id. at 15. The court
directed Sprint to file a motion that the court could rule on after NAT had an
opportunity to respond.
DISCUSSION
Sprint argued in its motion for partial summary judgment (Docket 223)
that NAT could not enforce any of its interstate tariffs prior to receiving a
certificate of authority from the SDPUC. Although in 2008 NAT received a
certificate of authority from the Crow Creek Sioux Tribal Utility Authority to
provide telecommunication services on the Crow Creek Reservation, NAT did
not receive a certificate of authority from the SDPUC until June 12, 2014.
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Sprint contended that NAT was not operating as a competitive local exchange
carrier (CLEC) until it received a certificate of authority from the SDPUC, and
NAT’s tariffs were unenforceable prior to that time.
This court disagreed. The court addressed several arguments raised by
Sprint, for example, whether the SDPUC believed that it had sole regulatory
authority over NAT and whether the SDPUC found that NAT was operating
illegally in the state prior to receiving the SDPUC’s certificate of authority.
Docket 250 at 10-11. The court found that Sprint’s arguments were not
supported by the SDPUC decision. And based on the court’s review of case law
concerning tribal sovereignty, decisions and statements of policy from the FCC
regarding the provision of telecommunication services on tribal land, and the
SDPUC proceeding itself, the court concluded:
The Crow Creek Sioux Tribal Utility Authority expressly granted
NAT, a majority tribally-owned entity, permission to provide local
telecommunications services on the Crow Creek Reservation. That
permission included the authority to act as a CLEC on the
Reservation. In light of the observations made by the FCC, the
FCC’s Western Wireless decision, the federal government’s longstanding recognition of encouraging tribal self-government, and the
SDPUC’s response to Sprint’s argument that NAT was operating
illegally, the court finds that the Tribe possessed its own authority
to confer such permission upon NAT. The fact that NAT also
sought and obtained permission to provide similar services outside
the Reservation from the SDPUC in no way divested the Tribe of
the regulatory authority it enjoyed on the Reservation. Cf. Western
Wireless, 16 FCC Rcd. 18145 at ¶ 23. Consequently, the court
finds that NAT had sufficient authority to provide local
telecommunications services on the Reservation prior to receiving
the state’s permission to provide those services off the Reservation.
Docket 250 at 11.

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Here, Sprint’s argument concerns the court’s reference to NAT’s authority
to provide telecommunications services “off the Reservation.” Sprint asserts
that although NAT applied for a certificate of authority from the SDPUC to
provide services both on and off of the Reservation, the SDPUC only addressed
those services offered by NAT on the Reservation. Sprint asks the court to
reconsider the court’s description of the scope of NAT’s authority and to revisit
the court’s legal conclusion to deny Sprint’s summary judgment motion on this
issue. Docket 257 at 8 (“The Court should correct that misstatement . . . and
grant Sprint’s motion for summary judgment as to the time period before
June 12, 2014.”).
The court denies Sprint’s motion for reconsideration. To the extent that
Sprint’s factual argument is an accurate summary of what the SDPUC
considered, the alleged factual error does not change the court’s analysis. The
court found that the tribal regulatory agency “expressly granted NAT . . .
permission to provide local telecommunications services on the Crow Creek
Reservation.” Docket 250 at 11 (emphasis added). The court also found that
“the Tribe possessed its own authority to confer such permission upon NAT.”
Id. In other words, the court found that NAT was operating as a CLEC on the
Reservation since 2008 by virtue of the tribal regulatory agency’s grant of
authority. Thus, the court disagreed with Sprint’s argument that NAT was not
a CLEC prior to receiving a certificate of authority from the SDPUC in 2012.
Although NAT also sought and eventually received permission from the SDPUC,
that does not mean that the Tribe was without sufficient authority to grant NAT
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permission to operate on the Reservation. Thus, Sprint’s motion for
reconsideration is denied.
II.

Sprint’s Motion for Partial Summary Judgment
Sprint moves for partial summary judgment on Count 1 of its complaint.

Count 1 asserts that NAT violated the Communications Act by improperly
billing Sprint for access charges. Docket 1 at 15-17.
LEGAL STANDARD
Summary judgment on all or part of a claim is appropriate when the
movant “shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet
its burden by presenting evidence that there is no dispute of material fact or
that the nonmoving party has not presented evidence to support an element of
its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). Once the moving party has met this burden,
“[t]he nonmoving party may not ‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910
(8th Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). “Further, ‘the mere existence of some alleged factual dispute between
the parties is not sufficient by itself to deny summary judgment. . . . Instead,
the dispute must be outcome determinative under prevailing law.’ ” Id. (quoting
Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts,
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and inferences drawn from those facts, are “viewed in the light most favorable
to the party opposing the motion” for summary judgment. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
Section 201(b) of the Communications Act provides that any “charge,
practice, classification, or regulation that is unjust or unreasonable is deemed
to be unlawful[.]” 47 U.S.C. § 201(b). And under § 207 of the Act, any person
may seek compensation in federal court for damages arising under a violation
of § 201(b). 47 U.S.C. § 207; Glob. Crossing Telecomms., Inc. v. Metrophones
Telecomms. Inc., 550 U.S. 45, 47 (2007) (“Communications Act language links
§ 201(b) to § 207, which authorizes any person ‘damaged’ by a violation of
§ 201(b) to bring a lawsuit to recover damages in federal court.”). One method
of demonstrating that a party has engaged in an unjust or unreasonable
practice is to show that the practice violates an FCC rule or regulation that
implements § 201(b). Glob. Crossing Telecomms., Inc., 550 U.S. at 54
(explaining that “the FCC has long implemented § 201(b) through the issuance
of rules and regulations.”).
The FCC has declared as unjust and unreasonable the practice of billing
for access services that are not provided to an “end user” or “customer” under
the terms of a LEC’s interstate tariff. See In the Matter of Qwest Commc’ns
Corp. v. Farmers & Merchs. Mut. Tel. Co., 24 FCC Rcd. 14801, ¶ 26 (FCC 2009)
(Farmers II) (concluding that the free conference calling companies were not
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“end users” under Farmers’ tariff and “that Farmers’ practice of charging Qwest
tariffed switched access rates for its termination of traffic from the conference
calling companies is unjust and unreasonable in violation of section 201(b) of
the Act.”).1 The FCC has also declared as unjust and unreasonable the practice
of tariffing access charges for calls to entities to whom the LEC offers free
service. In the Matter of Qwest Commc’ns Co., LLC, v. Northern Valley
Commc’ns, LLC, 26 FCC Rcd. 8332, ¶ 9 (FCC 2011) (Northern Valley I)
(explaining that Northern Valley’s tariff violated § 201(b) because it “purports to
permit Northern Valley to charge IXCs for calls to or from entities to whom
Northern Valley offers its services free of charge[.]”).2
The court addressed in its August 5, 2015 order whether NAT’s various
interstate tariffs were lawful or otherwise enforceable. Of relevance to Sprint’s
pending summary judgment motion is NAT’s original and revised tariff
number 1. This court found:
NAT’s interstate tariff number 1 was filed with the FCC and
became effective on September 15, 2009. It was then revised and
The Commission reiterated its conclusion in an order denying Farmers’
petition for reconsideration. In the Matter of Qwest Commc’ns Corp. v. Farmers
& Merchs. Mut. Tel. Co., 25 FCC Rcd. 3422, ¶14 (FCC 2010) (Farmers III)
(explaining that in Farmers II the FCC “found that the service provided to the
conference calling companies was not tariffed, and the assessment of switched
access charges to Qwest therefore violated sections 201(b) and 203(c) of the
Act.”). The District of Columbia Circuit Court of Appeals affirmed the FCC’s
conclusion. Farmers & Merchs. Mut. Tel. Co. of Wayland, Iowa v. F.C.C., 668
F.3d 714, 721 (D.C. Cir. 2011).
2 The Commission reached the same conclusion in another dispute
concerning the same tariff. In the Matter of Sprint Commc’ns Co. L.P. v. Northern
Valley Commc’ns, LLC, 26 FCC Rcd. 10780, ¶ 7 (FCC 2011). The District of
Columbia Circuit Court of Appeals affirmed the FCC’s conclusions. Northern
Valley Commc’ns, LLC v. F.C.C., 717 F.3d 1017, 1019 (D.C. Cir. 2013).
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amended on October 21, 2009, to be effective on October 22, 2009.
Docket 250 at 16 (internal citations omitted).3 The court concluded that NAT
attempted to bill Sprint for access services involving calls delivered to Free
Conferencing, but based on the particulars of the NAT-Free Conferencing
relationship, Free Conferencing was not an “end user” or “customer” under the
terms of NAT’s original and revised tariff number 1. Docket 250 at 22-23. Thus,
under the FCC’s Farmers line of cases, NAT was not entitled to bill Sprint for
those calls. The court concluded that NAT’s original and revised tariff number 1
purported to allow NAT to bill Sprint for access charges for calls delivered to
entities (namely Free Conferencing) to whom NAT offered free service. Id. at 1718. Thus, under the FCC’s Northern Valley line of cases, the court concluded
that NAT could not enforce its original and revised interstate tariff number 1.
Sprint’s motion for summary judgment asks the court to declare
explicitly what Sprint argues was stated implicitly: NAT violated § 201(b)’s
prohibition on unjust and unreasonable practices by improperly billing Sprint
for access charges under NAT’s original and revised tariff number 1. Although
NAT disagrees with the court’s conclusions in the August 5, 2015 order, NAT
acknowledges that “applying the Court’s ruling leads to the summary judgment
determination that Sprint seeks in its Motion.” Docket 263 at 2. The court
agrees. The court has already determined that NAT improperly billed Sprint in
contravention of Farmers and Northern Valley. Because the FCC has
NAT later filed its original tariff number 2 on November 15, 2010, with an
effective date of November 30, 2010. Docket 250 at 25.
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determined that the practices NAT engaged in are unjust and unreasonable
(and therefore unlawful) under § 201(b), Sprint is entitled to summary
judgment in its favor on this claim. Thus, under § 207, Sprint is entitled to
damages.
Sprint paid $29,170.27 to NAT during the time that NAT’s original and
revised tariff number 1 was in effect. Docket 260 at 2. NAT acknowledges that
it has received that amount. Docket 263 at 1-2. The parties dispute, however,
when the issue of damages should be decided. According to NAT, the court
should await the outcome of the parties’ trial and assign damages as part of a
final order as opposed to doing so in a piecemeal fashion. Sprint argues that
judgment should be entered now, along with prejudgment interest. The court
agrees and directs Sprint to calculate the prejudgment interest as of March 17,
2016, and to file its calculation by March 4, 2016. NAT shall file any objections
by March 14, 2016.
Sprint also seeks an award of attorneys’ fees. Section 206 of the
Communications Act provides that
In case any common carrier shall do . . . any act, matter, or thing
in this chapter prohibited or declared to be unlawful, . . . such
common carrier shall be liable to the person or persons injured
thereby for the full amount of damages sustained in consequence
of any such violation of the provisions of this chapter, together
with a reasonable counsel or attorney's fee, to be fixed by the court
in every case of recovery, which attorney's fee shall be taxed and
collected as part of the costs in the case.
47 U.S.C. § 206. This statute provides for the award of reasonable attorneys’
fees to the injured party in cases where the court has determined that the
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injured party is entitled to recover damages. Am. Tel. & Tel. Co. v. United Artists
Payphone Corp., 852 F. Supp. 221, 225 (S.D.N.Y. 1994) (“Thus, the Court
concludes that under 47 U.S.C. § 206, attorney’s fees may only be awarded to a
party that has recovered damages.”), aff’d 39 F.3d 411 (2d Cir. 1994). Because
the court has concluded that Sprint is entitled to recover damages on Count 1
of its complaint, Sprint is also entitled to an award of its reasonable attorneys’
fees. The amount of reasonable attorneys’ fees will be determined after trial.
III.

The Parties’ Cross Motions to Compel
LEGAL STANDARD
Several amendments to the Federal Rules of Civil Procedure took effect

on December 1, 2015. Those amendments “shall govern in all proceedings in
civil cases thereafter commenced and, insofar as just and practicable, all
proceedings then pending.”4 Although the commencement of this case predates
those amendments by more than five years, both of the parties’ motions to
compel were filed after December 1, 2015. Thus, “as just and practicable,” the
amended Federal Rules of Civil Procedure will apply.
The scope of discovery in a civil case is governed by Federal Rule of Civil
Procedure 26. As amended, the rule provides that unless otherwise limited by a
court order, the parties may discover any non-privileged matter that is
“relevant to any party’s claim or defense and proportional to the needs of the

Supreme Court of the United States, Amendments to the Federal Rules
of Civil Procedure, available at
http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf
(last accessed Feb. 19, 2016), at 3.
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case.” Fed. R. Civ. P. 26(b)(1). Chief Justice John Roberts wrote in his Year-End
Report on the Federal Judiciary that amended Rule 26(b)(1) “crystalizes the
concept of reasonable limits on discovery through increased reliance on the
common-sense concept of proportionality.”5 Whether a discovery request is
proportional is determined by considering “the importance of the issues at
stake in the action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Evidence that
falls within this scope is discoverable even if it would not be admissible at trial.
Id.
Both parties’ motions to compel concern Rule 33 interrogatories and Rule
34 requests for production. Amended Rule 33 now refers to Rule 26(b)(1) as
well as Rule 26(b)(2). Fed. R. Civ. P. 33(a)(1). This addition is meant “to reflect
the recognition of proportionality in Rule 26(b)(1).” Advisory Committee Notes
(2015 Amendment). Amended Rule 34(b) now prohibits boilerplate objections
and requires a party objecting to a request for production to “state with
specificity the grounds for objecting, including the reasons” and “whether any
responsive materials are being withheld.” Fed. R. Civ. P. 34(b)(2)(B), (C). Thus,
“[a]n objection may state that a request is overbroad, but . . . should state the
scope that is not overbroad.” Advisory Committee Notes (2015 Amendment).
John Roberts, 2015 Year-End Report on the Federal Judiciary (Dec. 31,
2015), available at http://www.supremecourt.gov/publicinfo/yearend/2015year-endreport.pdf (last accessed Feb. 19, 2016), at 6.
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And “[t]he producing party . . . need[s] to alert other parties to the fact that
documents have been withheld and thereby facilitate an informed discussion of
the objection.” Id. Amended Rule 34 also contains a new provision that “[t]he
production must then be completed no later than the time for inspection
specified in the request or another reasonable time specified in the response."
Fed. R. Civ. P. 34(b)(2)(B).
If a party resists discovery, the requesting party may move for an order
compelling disclosures or discovery. Fed. R. Civ. P. 37(a)(1). The Supreme
Court has long recognized that “[m]utual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation. To that end, either
party may compel the other to disgorge whatever facts he has in his
possession.” Hickman v. Taylor, 329 U.S. 495, 507 (1947).
The requesting party must make a threshold showing that the requested
information falls within the scope of discovery under Rule 26(b)(1). Hofer v.
Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). “Mere speculation that
information might be useful will not suffice; litigants seeking to compel
discovery must describe with a reasonable degree of specificity, the information
they hope to obtain and its importance to their case.” E.E.O.C. v. Woodmen of
the World Life Ins. Soc., No. 8:03-CV-165, 2007 WL 1217919 at *1 (D. Neb.
Mar. 15, 2007) (citing Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.
1972)). Once the requesting party has satisfied its threshold showing, the
burden then shifts to the party resisting discovery to show specific facts
demonstrating that the discovery is irrelevant or disproportional. See Penford
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Corp. v. Nat'l Union Fire Ins. Co., 265 F.R.D. 430, 433 (N.D. Iowa 2009); St. Paul
Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa
2000). But the articulation of mere conclusory objections that something is
“overly broad, burdensome, or oppressive,” is insufficient to carry the resisting
party's burden—that party must make a specific showing of reasons why the
particular discovery should not be had. Cincinnati Ins. Co. v. Fine Home
Managers, Inc., Civ. No. 4:09-CV-234-DJS, 2010 WL 2990118, at *1 (E.D. Mo.
July 27, 2010); see also Burns v. Imagine Films Entm't, Inc., 164 F.R.D. 589,
593 (W.D.N.Y. 1996).
DISCUSSION
In its August 5, 2015 order, the court denied Sprint’s motion for
summary judgment as it pertained to NAT’s tariff number 3. That tariff was
filed on August 8, 2011, to become effective August 23, 2011. Docket 250 at
30. The court found that NAT’s tariff number 3 was analytically
indistinguishable from the tariff at issue in the FCC’s Farmers line of cases. Id.
Thus, whether NAT properly billed Sprint for access charges under that tariff
depends on whether Free Conference is an “end user” or “customer” under the
terms of the tariff. Id. Under this analysis, the court must apply a multi-factor
test, articulated by the FCC, that assesses the actual business relationship
between NAT and Free Conferencing. Id.6 Those factors include: (1) Whether the

The FCC used the same analysis in its Sancom line of cases. See in the
Matter of Qwest Commn’cs Co., LLC v. Sancom, Inc., 28 FCC Rcd. 1982, ¶ 13
(F.C.C. 2013). The FCC noted that Sancom “is materially similar to and
controlled by” the Farmers line of cases. Id. at ¶ 11. “Indeed, the Tariff’s
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conference calling companies would pay for the LEC’s services; (2) Whether the
LEC treated the conferencing company like other customers; (3) Whether the
LEC and conference companies operated under an exclusivity agreement; (4)
Whether the LEC handled the conferencing company’s traffic differently; (5)
Whether the LEC’s agreements with the conference companies contained terms
that did not resemble traditional agreements for tariffed services; and (6)
Whether the LEC timely reported revenues from its services or submitted
Universal Service contributions. See Farmers II, 24 FCC Rcd. 14801 at ¶¶ 1220. The court concluded that material facts concerning the NAT-Free
Conferencing relationship were genuinely disputed, and therefore, the Farmers
analysis could not be applied summarily. Docket 250 at 30-31.
The court and parties discussed the issues in this case that remained for
trial at the status conference. According to counsel for NAT, NAT’s primary
concern was a determination of its rights with respect to its right to receive
payment under its tariff number 3 from the effective date of the CAF Order
going forward. Docket 254 at 7, 8-9. The CAF Order became effective on
December 29, 2011. The parties agreed that discovery should be allowed from
that point through 2015. Sprint estimated that it had received some discovery
up through 2013 but that Sprint would require additional and updated
information for 2014 and 2015. Id. at 8. Sprint explained that the bulk of the
discovery it required would be circumscribed to exploring the NAT-Free
descriptions of ‘end user’ and ‘customer’ are identical to the definitions at issue
in Qwest v. Farmers.” Id. For clarity, the court will refer only to the Farmers
line of cases.
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Conferencing relationship within the framework of the FCC’s Farmers analysis.
Id. at 10.
The court allowed the parties to conduct discovery concerning NAT’s
request for payment under its interstate tariff number 3. Id. at 13 (reiterating
that “NAT is limiting its request for damages to any charges after the CAF
Order forward.”). The court stated: “The documents need to be updated. Any
depositions will be limited to just new facts during the periods of 2014 and
2015.” Id. at 254. A scheduling order to that effect was entered the same day.
Docket 253. 7
A.

Meet and Confer Requirement

Rule 37(a)(1) requires the parties to meet and confer in good faith to
attempt to resolve discovery disputes prior to filing a motion to compel. Fed R.
Civ. P. 37(a)(1). In addition, this court’s local rules impose a similar
requirement. See D.S.D. Civ. L.R. 37.1. Based on the affidavits and exhibits
submitted by both parties, the court is satisfied that the meet and confer
requirement has been fulfilled regarding both motions to compel.
B.

Sprint’s Motion to Compel

Before addressing the specifics of Sprint’s motion, the court must
address a reoccurring contention regarding many of Sprint’s discovery requests
and NAT’s responses to them. Almost all of NAT’s responses contain an
objection that Sprint is improperly attempting to discover information from
The original discovery deadline was set for December 14, 2015. The
court granted the parties’ joint motion for an extension to complete discovery
by March 21, 2016. Docket 267.
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prior to 2014. Following the September 15, 2015 status conference, the court
entered a scheduling order that stated: “Discovery should be limited to new
facts that have developed during 2014 and 2015.” Docket 253 at 1; Docket 267
at 1 (amended scheduling order). NAT reads the court’s order to preclude
discovery of any information prior to 2014. See, e.g., Docket 272 at 8 (“The
Court’s pretrial order of September 15, 2015 limited discovery to ‘new facts
that have developed [during] 2014 and 2015.’ ”).
NAT stated that it will argue at trial that it is entitled to collect the access
charges it has billed to Sprint from December 29, 2011 through 2015. One of
the primary issues at trial will be the application of the Farmers analysis to the
NAT-Free Conference relationship during that timeframe. The Farmers analysis
is fact-driven and whether an entity is treated as an “end user” or “customer”
can change over time. As the court explained in its August 5, 2015 order: “It is
apparent from the [2012] amended agreement that NAT and Free Conferencing
set out to alter their relationship, but it is unclear whether they in fact did so
or actually reached a mutual agreement to do so.” Docket 250 at 31. In other
words, the court could not adjudicate summarily when or if Free Conferencing
became an “end user” or “customer” under the terms of NAT’s tariff number 3.
Under NAT’s view, however, Sprint would be precluded from discovering any
relevant information from late 2011 until 2014 that bears on the answer to that
question.
The court disagrees; neither the court’s discovery order nor principles of
basic fairness support NAT’s position. Sprint acknowledged that it obtained
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some discovery concerning the NAT-Free Conferencing relationship through
2013, but Sprint was unsure whether it possessed complete records for that
time and also requested discovery through 2015. As the court directed, the
discovery Sprint previously received would need to be updated. The court’s use
of the word “should” and its reference to “new facts that have developed during
2014 and 2015” in the scheduling order is meant to avoid duplicative
discovery. But the court’s order does not, as NAT suggests, mean that Sprint
must rely solely on the information prior to 2014 that Sprint already has in its
possession. As a matter of basic fairness, it would be unjust to insulate the
NAT-Free Conferencing relationship from inquiry prior to 2014 because that
period of time may be critical to the Farmers analysis. Similarly, it would be
unjust to allow NAT to support its arguments with relevant evidence prior to
2014 while simultaneously prohibiting Sprint from discovering relevant
evidence prior to 2014. Thus, if Sprint has properly requested otherwise
discoverable information, NAT’s objection to the request because it is not
limited to information from 2014 and 2015 is overruled.
1.

Interrogatories

Interrogatory No. 15: For periods between January 2012 –
present, and for calls from Sprint to NAT numbers assigned to Free
Conferencing or another Call Connection Company, identify (by
type, manufacturer, model number, quantity, and ownership) the
equipment on the Reservation that NAT used to deliver calls to the
Call Connection Company, and identify (by type, manufacturer,
model number, quantity, and ownership) the equipment used by
the Call Connection Company to terminate the calls.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
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ordered by the Court during the status conference on September
15, 2015. Subject to that objection, NAT states that there are no
new facts responsive to this interrogatory.
Docket 270-3 at 4.
Sprint attests that it has not received the type of information sought by
this interrogatory. Docket 270 at ¶ 12. Sprint also asserts that it has learned
recently that additional conference calling companies other than Free
Conferencing are receiving calls through NAT. According to Sprint, the
information sought by its interrogatory would be relevant to the Farmers
analysis because it could show that NAT handled the conference calling
companies’ traffic differently than it did for other customers. NAT responds
that the interrogatory is overbroad because it seeks information about
conference calling companies other than Free Conferencing. NAT states it will
not attempt to recover access fees for calls delivered to any other conference
calling company. And NAT asserts that because no new facts have developed
between 2014 and 2015, NAT is not obligated to provide a further response.
The court grants Sprint’s motion to compel in part and denies it in part.
In Farmers II, the FCC noted that “Farmers provided connections to the
conference calling companies in a manner that differed from those made
available to customers of its tariffed services.” Farmers II, 24 FCC Rcd. 14801
at ¶ 13. The Commission explained that
Farmers provided the conference calling companies with highcapacity DS3 trunks that fed into trunk-side connections, to a
brand new “soft switch” that Farmers purchased specifically to
handle traffic bound for the conference calling companies rather
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than the Nortel DMS-10 circuit switch used to serve all of Farmers’
other customers.
Id. Thus, the type of equipment that is used to deliver and terminate calls to
Free Conferencing is relevant to the issue of whether NAT treated Free
Conferencing differently than its other customers. NAT must provide that
information to Sprint–including the information from 2012. But because NAT
will not seek compensation for calls delivered to any entities other than Free
Conferencing, NAT does not need to furnish information about the type(s) of
equipment and connections used by those other conference calling companies.
Interrogatory No. 16: For periods between January 2012 –
present, identify and describe what connected NAT equipment on
the Reservation with Free Conferencing equipment on the
Reservation, who owns it, and identify the capacity of such
connection(s).
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the Court during the status conference on September
15, 2015. Subject to that objection, NAT states that there are no
new facts responsive to this interrogatory.
Docket 270-3 at 4.
Like the information sought by Sprint’s interrogatory number 15, Sprint
argues that the information sought in this interrogatory is relevant to the issue
of how NAT treated Free Conferencing compared to its other customers. Sprint
also argues that whether Free Conferencing paid for the connection(s) would be
relevant to the issue of whether Free Conferencing paid for any of the services
provided to it by NAT. NAT responds that Sprint is attempting to argue that

19

NAT is a sham entity and that the court has already disposed of that argument
in an earlier order.
NAT is correct that the court determined Sprint is precluded from
arguing that NAT is a sham entity that exists only to generate access traffic.
See Docket 250 at 40 (giving preclusive effect to the findings of the SDPUC).
Nonetheless, Sprint is entitled to discover the information sought by its
interrogatory because that information is relevant to the Farmers analysis. In
Farmers II, the FCC observed that the connection equipment and soft-switch
that Farmers purchased to handle the traffic delivered to the conference calling
companies “was connected directly to the conference calling companies’
conference bridges, which were located in Farmers’ end office.” Farmers II, 24
FCC Rcd. 14801 at ¶ 13. And the Commission noted the “host of services”
Farmers provided to the conferencing companies without cost supported its
finding that the conference calling companies were not “end users” or
“customers.” Id. at ¶¶ 12-13 n.50 (“Prior to this litigation, Farmers did not bill
the conference calling companies for any of this equipment, facilities, power, or
services that it provided.”). Thus, NAT must respond fully to Sprint’s
interrogatory.
Interrogatory No. 17: Describe any
changes/modifications/updates to the diagram labeled as
“Scenario 3” (and discussed at page 44 of the February 13, 2015
Roesel Deposition). Include a description of the change to the
tandem provider reflected at page 43 of the Roesel Deposition, and
the V&H coordinates for the location at which NAT receives Sprint
calls from the new tandem provider.

20

NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the Court during the status conference on September
15, 2015. Subject to that objection, NAT states that the answer to
the above interrogatory may be found within the documents NAT
agrees to produce in response to Sprint’s requests for documents
set forth below. NAT will produce these documents after the parties
execute a mutually agreeable confidentiality stipulation.
Docket 270-3 at 4-5.
The diagram referenced in Sprint’s interrogatory is one of several socalled “call flow diagrams” that Sprint obtained during the SDPUC proceeding.
Sprint cited the diagrams in support of one of its motions for summary
judgment, and the court described the diagrams in the court’s order denying
Sprint’s motion for summary judgment. See Docket 243 at 11-21. The
diagrams contain a number of illustrations and are accompanied by a
“Scenario” that describes in technical terms what the illustrations depict. The
diagrams explain how calls are routed and ultimately delivered to NAT.
According to Sprint, NAT has provided updated diagrams, but NAT did
not provide an updated description (the accompanying “Scenario”). Sprint also
contends that NAT did not identify the V&H coordinates as sought by the
interrogatory. NAT asserts that it has produced everything sought by the
interrogatory and that Sprint did not ask for a description of the diagrams in
its interrogatory. Docket 272 at 10 (“Sprint now claims it is entitled to a
description of that diagram, but that is not what the interrogatory requests.”).
The court disagrees. The interrogatory not only asked NAT to “[d]escribe” any
changes to the diagram but also asked NAT to “[i]nclude a description” of
21

certain specific parts of the diagram. Thus, NAT must provide an appropriate
description and identify the V&H coordinates as sought by the interrogatory.
Interrogatory No. 18: For periods between January 2012 and the
present, identify and describe all services, goods, or products that
you have provided to Free Conferencing, including the quantity of
each service; the rate of each service; all features and practices
associated with the provision of each service; and the specific tariff
or contract provision(s) pursuant to which each service, good, or
product has been provided.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the Court during the status conference on September
15, 2015. NAT also objects on the ground that the request is
overbroad to the extent it seeks information about agreements with
carriers besides Sprint. Such agreements are not reasonably
calculated to lead to the discovery of admissible evidence. NAT also
objects on the ground that the interrogatory is vague, ambiguous,
and does not sufficiently describe the information sought.
Subject to those objections, NAT states that Free Conferencing is a
customer of NAT and receives access service. The quantity, rate,
features, practices and tariff or contract provisions of that service
are contained within the 2012 Amended Service Agreement
between NAT and Free Conferencing already in the possession of
Sprint, as well as the amended agreement and other documents to
be produced in response to Sprint’s request for documents set
forth below after the parties execute a mutually agreeable
confidentiality stipulation.
Docket 270-3 at 5.
Sprint argues that the information sought by this interrogatory is
relevant to the issue of how NAT treated Free Conferencing in comparison to
NAT’s other customers. Also, Sprint asserts that it is relevant to the issue of
whether Free Conferencing paid for any of the services it received from NAT.
Sprint attests that NAT sent only limited billing information and that the bills
NAT produced do not identify the tariff or contract provision by which certain
22

services were provided. Docket 270 at ¶ 20. NAT responds that Sprint has
already received an amended service agreement that regulates the NAT-Free
Conferencing relationship. NAT also argues that it has provided all the 2014
and 2015 invoices that it sent to Free Conferencing.
The court agrees that the information sought by Sprint is relevant under
the Farmers analysis. More specifically, it is relevant to how NAT treated Free
Conferencing in relation to its other customers and to whether Free
Conferencing paid for any of the services it received from NAT. NAT must
identify the services, goods, and/or products that it provided to Free
Conferencing from December 29, 2011 through 2015. NAT must also identify
or describe the quantity of what was provided and the tariff or contract
provision under which the services, goods, or products were provided. As to the
amended service agreement referenced by NAT, the court previously described
the document as follows:
Additionally, the document that purports to replace the 2009
service agreement is not a new document but rather a redlined
version of the original. Docket 240-8. A number of clauses are
incomplete, and it is not clear if the document was ever completed
or carried any legal effect.
Docket 250 at 21-22. The 2009 agreement allowed Free Conferencing to receive
a number of services for free, and the court found that “whatever compensation
NAT was to receive [under the 2012 agreement] for the services it provided to
Free Conferencing (such as Internet access, electrical power, and labor) was
not filled in.” Id. at 22. In other words, even if the amended agreement is a
valid contract, it does not describe the rate(s) applicable to the services or the
23

quantity of service provided as sought by the interrogatory. Thus, NAT must
identify and describe that information.8
Interrogatory No. 20: Identify the total number of minutes
delivered to NAT for termination on a monthly basis from
November 2013-present, and the total number of minutes delivered
each month to NAT for termination that were destined to Free
Conferencing.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the Court during the status conference on September
15, 2015. NAT also objects to the extent the request seeks minutes
delivered to NAT [by] carriers other than Sprint. Subject to those
objections, NAT states that the answer to the above interrogatory
may be found within the documents NAT agrees to produce in
response to Sprint’s requests for documents set forth below. NAT
will produce these documents after the parties execute a mutually
agreeable confidentiality stipulation.
Docket 270-3 at 6.
Sprint attests that NAT produced only the number of minutes that NAT
billed to Sprint “broken down by calling company.” Docket 270 at ¶ 22. Sprint
argues that the total number of minutes delivered to NAT for termination with
Free Conferencing from all carriers is relevant to the Farmers analysis.
Specifically, because a single telephone line can deliver only a finite number of
minutes of traffic per day, Sprint argues that it may be able to demonstrate
that NAT has provided Free Conferencing with more lines and thus more
services than what NAT has previously reported. And if NAT is
Sprint sought to compel a response to its interrogatory number 19,
which asked for the same information as interrogatory number 18 except that
it concerned other conference calling companies besides Free Conferencing.
See Docket 270-3 at 5-6. Because NAT is limiting its damages to those calls
that were provided to Free Conferencing, Sprint has withdrawn its motion
concerning interrogatory number 19. Docket 275 at 8.
8

24

underrepresenting the number of lines it provides to Free Conferencing, then
Sprint could show that NAT is not treating Free Conferencing like any other
customer. NAT argues that the data concerning other carriers is irrelevant
because the only calls for which NAT is seeking compensation are the calls
delivered to NAT by Sprint.
In Farmers II, the FCC found it significant that the conference calling
companies did not pay for any of the services provided by the LEC, including
connections to the interexchange network. Farmers II, 24 FCC Rcd. 14801 at
¶ 12 (explaining that the parties’ agreements showed the conference calling
companies would not “pay Farmers for their connections to the interexchange
network, as would ordinary end-user customers under the tariff.”). The
information sought by Sprint is relevant because it could show how many
connections were provided to Free Conferencing. NAT has not made any
showing that Sprint’s request is not proportional or otherwise unduly
burdensome. Thus, Sprint’s motion to compel a full response to this
interrogatory is granted.
Interrogatory No. 21: For 2014-2015, identify (by name,
telephone number(s) assigned, service address, and dates of
service) those individuals or entities you provided service to.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the Court during the status conference on September
15, 2015.
Subject to those objections, NAT states that the answer to the
above interrogatory may be found within the documents NAT
agrees to produce in response to Sprint’s requests for documents
set forth below, namely the list of customers to whom NAT has
25

provided service in 2014 and 2015. NAT will produce these
documents after the parties execute a mutually agreeable
confidentiality stipulation.
Docket 270-3 at 6-7.
Sprint argues that this information is relevant because it cannot
determine how NAT treated its other customers if Sprint does not know the
identity of the other customers. Sprint attests that it received a list containing
some customer data from NAT, but the list does not contain the names,
numbers, or other information related to any conference calling companies
(including Free Conferencing). Docket 270 at ¶ 23. Thus, Sprint argues NAT’s
response is incomplete. NAT responds that the interrogatory is overly broad
and that it seeks irrelevant information because NAT will not attempt to recover
for calls placed to any entities other than Free Conferencing.
The court finds that Sprint is entitled to receive the information sought
by this interrogatory. Although NAT will not seek compensation for calls
delivered to entities other than Free Conferencing, Sprint should be provided
the identifying data concerning those individuals or entities that receive NAT’s
services. This is especially true of Free Conferencing, and NAT does not refute
Sprint’s assertion that NAT failed to provide Sprint with the identifying data
ascribed to Free Conferencing. Thus, NAT must fully respond to Sprint’s
interrogatory.
2.

Requests for Production

Request for Production No. 19: Provide profit and loss, general
ledger, and balance sheet information for 2014 and any portion of
2015 where it is available. If there have been any restatements to
26

prior years that change what had been previously provided in
discovery for 2012-2013, please provide any restated documents.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the court during the status conference on September
15, 2015. NAT also objects to this request on the ground that it is
not reasonably calculated to lead to the discovery of admissible
evidence. Sprint’s claim that NAT is a “sham” is precluded by the
Court’s order that it is collaterally estopped from pursuing that
contention. NAT also objects to producing any responsive
documents without a Confidentiality Stipulation in place. NAT
agrees to meet and confer with Sprint to execute a Confidentiality
Stipulation.
Subject to those objections, NAT will produce its profit and loss
statements, and balance sheets covering 2014 and 2015. As for the
“general ledger,” NAT objects on the basis that the request is
overbroad in this modern age where the term “general ledger” can
refer to many things. NAT objects to producing all data in its
electronic accounting database, as it includes such things as bank
account numbers and employee information. NAT agrees to meet
and confer with Sprint in an effort to define the scope of the
information that is relevant to the remaining issues before the
court and not addressed by other documents being provided.
Docket 270-3 at 9.
Sprint argues that NAT’s response is incomplete because NAT has not
produced the general ledger information sought by Sprint’s request. Sprint also
contends that it represented to NAT that sensitive data such as personal
financial information or account numbers could be redacted from NAT’s
general ledger. NAT acknowledges that it possesses the general ledger
information sought by Sprint but argues that NAT should not have to produce
its general ledger because it is no longer relevant in this case. According to
NAT, its general ledger could be sought by Sprint only for the purpose of
arguing that NAT is a sham entity, an issue this court has resolved against
27

Sprint. NAT also argues the request is overbroad because NAT will not seek
compensation for calls delivered to any conference calling company except Free
Conferencing.
The court grants Sprint’s motion to compel in part and denies it in part.
In Farmers II, the FCC highlighted the importance of analyzing the flow of
money between an LEC and the conference calling companies. Farmers II, 24
FCC Rcd. 14801 at ¶ 12 n. 49 (“To the contrary, the flow of money between
these parties is essential to analyzing their relationship because the tariff
expressly contemplates and requires payments to Farmers, not payments that
flow in the reverse direction.”). The court’s August 5, 2015 order considered
NAT’s general ledger and accounting documentation in its analysis. Docket 250
at 18 (“Similarly, several income statements and ledgers produced during the
SDPUC proceeding show that Free Conferencing did not pay NAT until
September 12, 2011.”). Thus, NAT’s general ledger is relevant. At the same
time, however, the court finds that Sprint’s request that NAT produce the
entirety of its general ledger for 2014 and 2015 is disproportionate to the needs
of the case. The animating substance of Sprint’s request is Sprint’s need to
determine whether NAT billed Free Conferencing for the various services that
NAT provided, whether Free Conferencing paid those bills, and whether NAT
and Free Conferencing maintained a revenue sharing arrangement. Although
the flow of money between NAT and Free Conferencing is relevant, Sprint has
not shown that it should be entitled to the entirety of NAT’s general ledger.

28

Thus, NAT must produce its general ledger from 2014 and 2015 (as well as any
restatements to it from earlier periods, if any) as it concerns Free Conferencing.
Request for Production No. 40: Produce communications from
2012 to the present between NAT (including NAT’s attorneys) and
Carey Roesel (and/or Mr. Roesel’s company, Technologies
Management Inc.) regarding NAT’s regulatory compliance
obligations, NAT’s collection and/or remittance of taxes and fees,
and any filings made with the South Dakota Commission, the
Federal Communications Commission, the Crow Cree Tribal Utility
Authority, and/or the Universal Service Administrative Company.
Sprint does not seek production of draft expert reports or draft
expert disclosures.
NAT Response: NAT objects to this request to the extent it is not
limited to “new facts during the periods of 2014 and 2015,” as
ordered by the court during the status conference on September
15, 2015. NAT also objects to this request to the extent it calls for
the production of documents covered by the attorney-client
privilege, the work product doctrine, or the protection according to
Fed. R. Civ. P. 26(b)(4). Subject to those objections, NAT will
produce any non-privileged responsive documents in its
possession, custody and control after a mutually agreeable
confidentiality stipulation is executed.
Docket 270-3 at 17.9
Sprint attests that it has neither received any documents that appear to
be responsive to its request nor has NAT produced a privilege log. Docket 270
at ¶¶ 9, 26. NAT responds that it intends to supplement its response by
producing non-privileged documents and to “serve a privilege log if required
under the applicable rules.” Docket 272 at 13.
The focus of Sprint’s request concerns documents that bear on NAT’s
compliance with applicable telecommunications regulations as well as NAT’s
Sprint also moved to compel complete responses to its requests for
production number 22 and 31. Sprint has withdrawn its motion to compel as it
pertains to those two requests. Docket 275 at 11.
9

29

collection and remittance of various taxes and fees. Although neither party
addressed the relevance of Sprint’s inquiry, the court presumes Sprint’s
request is premised on the sixth Farmers factor. That is, whether the LEC has
timely reported revenues from its services or submitted Universal Service
contributions. Farmers II, 24 FCC Rcd. 14801 at ¶ 25 n.97 (“If Farmers had
been providing interstate end-user telecommunications services to Qwest or the
conference calling companies, then Farmers should have timely reported
revenues from those end-user services and paid universal service contributions
based on them”). Thus, the court finds that the information Sprint seeks is
relevant.
“When a party withholds information otherwise discoverable by claiming
that the information is privileged or subject to protection as trial-preparation
material . . . the party must expressly make the claim; and describe the nature
of the documents . . . .” Fed. R. Civ. P. 26(b)(5). The resisting party must
“provide sufficient information to enable other parties to evaluate the
applicability of the claimed privilege or protection.” Advisory Committee Notes
(1993 amendment). Thus, if NAT believes any of the documents requested by
Sprint are privileged or otherwise protected, NAT must disclose a log describing
the basis for the claimed privilege or protection. Otherwise, NAT must produce
the documents sought by Sprint.
C.

NAT’s Motion to Compel
1.

NAT’s contention interrogatories

30

Interrogatory No. 6: State all facts that support every dispute and
notice of dispute sent by or on behalf of Sprint to NAT during 2014
and 2015.
Sprint Response: Sprint objects to this interrogatory as overbroad.
Subject to that objection, with respect to 2014-2015, Sprint has
not been provided information showing that calls to NAT’s calling
company partner(s) generate compensable access charges under
NAT’s FCC Tariff No. 3. Instead, Sprint’s assessment that NAT
lacked tariff authority to bill Sprint, and that Free Conferencing
was not a legitimate end-user subscriber under the FCC’s Farmers
II test is based on the following:
• The 2009 Agreement
• The 2012 Agreement
• NAT’s tariffs and facts regarding the manner in which
services were provided to Free Conferencing
• The invoices issued from NAT to Free Conferencing
• Discovery responses identifying the services provided to
Free Conferencing
• Discovery responses identifying NAT’s failure to collect
and/or remit the proper fees and surcharges
• Testimony from Holoubek, Erickson, and Roesel regarding
NAT’s operations, NAT’s billing practices, NAT’s provision of
numerous services to Free Conferencing without proper
compensation, and NAT’s sharing of access revenue with
Free Conferencing
• See also Sprint’s post hearing briefs in South Dakota PUC
Docket No. TC11-087.
Discovery is continuing as to February of 2014 forward. To date,
Sprint has been provided with no facts that convince Sprint that
NAT had legitimate end-users. Moreover, documents related to an
investigation done by Ms. Clouser and provided in response to
NAT’s document requests demonstrate that NAT is serving new
entities that provide international pass-through capabilities and or
access to radio feeds, so that calls to those numbers do not
terminate with NAT.
Docket 273-3 at 5-6.
Sprint has sent NAT letters disputing Sprint’s obligation to pay the
charges that NAT has billed to Sprint. NAT’s interrogatory asks Sprint to
31

provide the facts that support Sprint’s position(s) in its letters. NAT argues that
Sprint’s response is improper. According to NAT, its interrogatory asked for “all
facts” supporting Sprint’s position(s), but Sprint merely provided a generalized
summary and a bulleted list that non-specifically referred to various
documents. Sprint argues that its response was sufficient and, to the extent
that it is insufficient, that counsel from Sprint has supplemented Sprint’s
original answer in a subsequent letter. That letter is six pages long.
Approximately four-and-one-half of those pages contain the factual points
behind Sprint’s argument that NAT is not entitled to collect the access charges
that NAT billed Sprint under NAT’s tariff number 3. See Docket 273-9. NAT
argues that Sprint’s letter is improper.
The court must first address the interrogatory itself. NAT’s interrogatory
number 6 is a contention interrogatory. A contention interrogatory asks
“another party to indicate what it contends, to state all the facts on which it
bases its contentions, to state all the evidence on which it bases its
contentions, or to explain how the law applies to the facts.” Dziadek v. Charter
Oak Fire Ins. Co., No. Civ. 11-4134-RAL, 2014 WL 820049 at *16 (D.S.D.
Mar. 3, 2014) (quoting Black Hills Molding, Inc. v. Brandom Holdings, LLC, 295
F.R.D. 403 (D.S.D. 2013) (Duffy, Magistrate Judge)). When properly used,
contention interrogatories can be helpful “in that they may narrow and define
the issues for trial and enable the propounding party to determine the proof
required to rebut the responding party's claim or defense.” Moses v. Halstead,
236 F.R.D. 667, 674 (D. Kan. 2006). But broadly phrased contention
32

interrogatories that require a lengthy narrative explaining a party’s claims or
defenses can be oppressive or unduly burdensome, and “ ‘[a] litigant may not
compel his adversary to go to work for him.’ ” Poulos v. Summit Hotel Props.,
LLC, No. Civ 09-4062-RAL, 2010 WL 2640394 at *2 (D.S.D. July 1, 2010)
(quoting Breeland v. Yale & Towne Mfg. Co., 26 F.R.D. 119, 120 (E.D.N.Y.
1960)). Although NAT’s interrogatory asks for “all facts” supporting Sprint’s
position, the major issue of contention is the application of the Farmers
analysis to the NAT-Free Conferencing relationship. Because that analysis is
fact-driven, NAT should be allowed to discover the facts that Sprint believes
supports its argument. Thus, the court is satisfied that the interrogatory is not
unduly burdensome.
As for Sprint’s initial response, the court finds that the response is
insufficient. Sprint merely told NAT what it already knew, i.e., that Sprint
believed that NAT could not collect its access charges based on the Farmers
analysis. But that is a conclusion. What NAT sought were the facts supporting
Sprint’s conclusion. And Sprint cannot satisfy its obligation to respond to
NAT’s interrogatory by referring NAT to a mass of documents. Cf. Black Hills
Molding, 295 F.R.D. at 414 (“More is required of Black Hills Molding than
merely referring . . . to the entirety of its document production.”). Rather,
Sprint needs to provide the facts supporting its argument that NAT is not
entitled to collect its access charges.
Regarding Sprint’s supplemental letter, the court finds that the letter is
procedurally deficient and therefore improper. Under the Federal Rules of Civil
33

Procedure, interrogatories must be signed, under oath, by the party itself, not
by the party’s attorney. Fed. R. Civ. P. 33(b) (the party must answer each
interrogatory separately and fully in writing under oath, and the attorney signs
only as to objections that are raised). Sprint’s initial interrogatory responses
were signed and verified by Amy Clouser, “an Access Verification Analyst III
within Sprint’s Access Verification Department.” Docket 273-3 at 13. Sprint’s
letter is signed by one of Sprint’s attorneys in this matter. While an attorney
may answer interrogatories on behalf of a corporation when the attorney acts
as the corporation’s officer or agent, Fed. R. Civ. P. 33(b)(1)(B), the letter from
Sprint’s counsel is not signed under oath, and it is not clear that Sprint
designated its counsel to act as its agent. Thus, Sprint’s letter is an improper
answer to NAT’s interrogatory.
Sprint argues that its letter is, nonetheless, a proper supplement under
Rule 26(e). Rule 26(e) imposes a continuing duty on
a party . . . who has responded to an interrogatory . . . [to]
supplement or correct its disclosure or response in a timely
manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in
writing[.]
Fed. R. Civ. P. 26(e)(1)(A). Sprint focuses on the last clause’s reference to
supplemental information that has “otherwise been made known.” According to
Sprint, its letter was “in writing,” and therefore Sprint was not required to
supplement its interrogatory answer in accordance with Rule 33, i.e., with an
answer signed under oath by the party. The court disagrees. Under Sprint’s
34

view, a party could shirk the attestation requirement of Rule 33 by providing
an evasive or incomplete answer to an interrogatory and then advancing a host
of facts in an unsworn letter disguised as a supplement. But interrogatories are
intended to be a relatively inexpensive discovery method used to obtain sworn
answers from an opposing party. See 8B Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure, § 2163 (3d. ed) (hereinafter Wright &
Miller). Sprint’s view would render nugatory the utility of the interrogatory and
the value of an interrogatory response. Therefore, Sprint must provide a signed
supplement to NAT’s interrogatory number 6. See, e.g., Knights Armament Co.
v. Optical Sys. Tech., Inc., 254 F.R.D. 463, 467 (M.D. Fla. 2008) (“Thus, if a
party amends or supplements its response, the party must attest to the
truthfulness of the new response.”); Vazquez-Fernandez v. Cambridge Coll., Inc.,
269 F.R.D. 150, 155 (D.P.R. 2010) (observing that “[i]f this answer were in the
original response, it would have required a signature under oath by the party”
and compelling a signed supplemental response).
The burden on Sprint to correct its response is not an onerous one. The
court has reviewed the substance of the supplemental letter. If Sprint provides
the substance of the letter to NAT in a format that accommodates Rule 33, the
contents provide a sufficient response to NAT’s interrogatory number 6.10

NAT argues that if the court were to deem Sprint’s letter a procedurally
proper response, that the response would still be substantively deficient. NAT
contends that Sprint’s use of the phrase “include” in the letter suggests that
Sprint’s letter is evasive or incomplete. See Docket 273-9 at 1 (“The facts that
Sprint will offer relative to the Farmers II and Sancom test include the following
. . . .”). The court disagrees.
10

35

Regardless, Sprint must supply NAT with a full and complete response to NAT’s
interrogatory.
Interrogatory No. 7: State all facts that support Sprint’s
contention that it is not legally required to pay NAT for the claims
asserted in this matter.
Sprint Response: Sprint incorporates its objections and response
to Interrogatory No. 6.
Docket 273-3 at 6.
This interrogatory is similar to NAT’s interrogatory number 6. It is
ostensibly broader to the extent that the interrogatory asks Sprint to provide
“all facts” in support of arguments Sprint has not explicitly made in its dispute
letters. Sprint’s objection is coextensive with its argument regarding
interrogatory number 6. The court found Sprint’s response to NAT’s
interrogatory number 6 insufficient. For the same reasons, the court finds
Sprint’s response to this interrogatory is insufficient. Thus, Sprint must supply
NAT with a full and complete answer to interrogatory number 7.
Interrogatory No. 8: State the basis of your denial, in Paragraph
43 of your Answer To NAT's Amended Counterclaim, that NAT was
providing a service to Sprint and/or its customers.
Sprint Response: Sprint objects to this interrogatory as calling for
a legal conclusion. Subject to that objection, Sprint incorporates
its objections and response to Interrogatory No. 6. NAT is providing
neither Sprint nor Sprint’s customers with a service described in
its Tariff No. 3 in full compliance with NAT’s tariff and applicable
law.
Docket 273-3 at 6.

36

Paragraph 43 of Sprint’s answer to NAT’s amended counterclaim states:
With respect to the allegations in paragraph 49, Sprint admits that
it continued to deliver calls to NAT (as it was obligated to do) and
to dispute NAT’s bills (as it was entitled to do). Sprint denies that
NAT was providing a service to Sprint and/or its customers.
Docket 238 at 8. The allegations in paragraph 49 of NAT’s amended complaint
are that “[e]ven after NAT filed its [tariff number 3] in August 2011, Sprint
continued to terminate calls at NAT without paying for the service that NAT
was providing to Sprint and its customers.” Docket 172 at 13.
The court disagrees with Sprint’s objection that the interrogatory calls for
an improper legal conclusion. The last sentence of Rule 33(a)(2) states that
“[a]n interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact[.]” Fed. R. Civ. P.
33(a)(2). The advisory committee notes explain that
As to requests for opinions or contentions that call for the
application of law to fact, they can be most useful in narrowing
and sharpening the issues, which is a major purpose of
discovery . . . . On the other hand, under the new language
interrogatories may not extend to issues of “pure law,” i.e., legal
issues unrelated to the facts of the case.
Advisory Committee Notes (1970 Amendment); see also Wright & Miller § 2167
(“Thus the only kind of interrogatory that is objectionable without more as
requesting a legal conclusion is one that extends to ‘legal issues unrelated to
the facts of the case.’ ”). NAT’s interrogatory asks Sprint to provide the basis for
Sprint’s argument that NAT was not providing Sprint with a compensable
service. That argument is a focal point of this case. Thus, NAT’s interrogatory
does not ask Sprint about a legal issue unrelated to the facts of the case.
37

The court, nonetheless, finds that Sprint’s response to NAT’s
interrogatory is sufficient. Sprint’s answer explained that NAT did not provide
Sprint or Sprint’s customers with compensable services because those services
were not delivered in accordance with NAT’s tariff. Unlike NAT’s interrogatory
number 6, this interrogatory did not ask Sprint to provide anything more than
the basis for Sprint’s position, and Sprint duly provided it. Thus, no further
response is needed. NAT’s motion to compel a more complete response is
denied.
Interrogatory No. 9: State the basis of your contention, in
Paragraph 64 of your Answer To NAT's Amended Counterclaim,
that NAT's charges were or are "unlawful."
Sprint Response: Sprint objects to this interrogatory as calling for
a legal conclusion. Subject to that objection, Sprint incorporates
its objections and response to Interrogatory No. 6. Sprint further
states that, under the FCC precedent that Sprint identified in
support of its motion for summary judgment on its Count I, billing
of access charges that are not due under tariff is unjust and
unreasonable in violation of 47 U.S.C. §§ 201(b) and 203.
Discovery is continuing as to February of 2014 forward.
Docket 273-3 at 6.
Paragraph 64 of Sprint’s answer to NAT’s amended counterclaim states:
With respect to the allegations in paragraphs 78-80, Sprint admits
that it continues to dispute NAT’s unlawful charges, and it intends
to continue disputing NAT’s bills, and denies the remaining
allegations.
Docket 238 at 11. The gravamen of paragraphs 78-80 of NAT’s amended
counterclaim is that Sprint is withholding payment for NAT’s services on a
continuous, monthly basis. See Docket 172 at 19.

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Like NAT’s interrogatory number 8, this interrogatory asked Sprint to
provide the basis for Sprint’s argument that NAT’s access charges were
unlawful. The basis for Sprint’s argument is that the FCC has declared
unlawful the practice of billing for access charges that are not properly due
under a tariff. Because Sprint has provided the information sought by NAT’s
interrogatory, no further response is needed. Thus, NAT’s motion to compel a
more complete response is denied.
Interrogatory No. 10: With respect to each and every bill sent by
NAT which Sprint has not paid, state the basis of Sprint's
contention that it is not legally obligated to pay each such bill.
Sprint Response: Sprint incorporates its objections and responses
to Interrogatory Nos. 5 and 6.
Docket 273-3 at 6.
NAT’s interrogatory number 5 asked Sprint to “[i]dentify all dispute
letters sent by Sprint to NAT from 2014-2015 and state the basis of the
dispute.” Docket 273-3 at 5. Sprint responded that it will produce the letters
and that “Sprint disputed that NAT’s access charges are compensable under
the terms of NAT’s access tariffs.” Id. NAT did not move to compel an additional
response to its interrogatory number 5. The court has already discussed NAT’s
interrogatory number 6 and Sprint’s response to the interrogatory.
NAT’s interrogatories 5, 6, and 10 all concern Sprint’s justification(s) for
refusing to pay NAT’s bills. Sprint responded to those interrogatories by
asserting that Sprint believes the Farmers analysis prevents NAT from
collecting the access charges NAT has billed to Sprint. In other words, the basis
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for Sprint’s contention is that NAT cannot lawfully bill Sprint for calls delivered
to Free Conferencing under NAT’s tariff number 3 because Free Conferencing is
not an “end user” or “customer” as defined by that tariff. While NAT’s
interrogatory number 6 sought “all facts,” NAT’s interrogatory number 10 only
sought the basis for Sprint’s position. Because Sprint’s response provides the
information sought under NAT’s interrogatory number 10, NAT’s motion to
compel a more complete response is denied.
Interrogatory No. 17: If Sprint contends that NAT cannot lawfully
charge Sprint for a terminating access service under its filed tariffs,
state the basis for that contention.
Sprint Response: Sprint incorporates its objections and responses
to Interrogatory Nos. 5-6.
Docket 273-3 at 10.
This interrogatory again asks Sprint to state the basis for its positon that
NAT cannot collect on the access charges it billed to Sprint. Because Sprint has
already provided the information sought by this interrogatory, NAT’s motion to
compel a more complete response is denied.
Interrogatory No. 18: If Sprint contends that NAT's FCC tariff
violates statutory authority and FCC regulations, state the basis of
those contentions.
Sprint Response: Sprint objects to this interrogatory as calling for
a legal conclusion. Sprint further objects because discovery and
analysis are continuing. Subject to those objections and without
waiver thereof, Sprint states that Section 2.10.3(H) (Original Page
45) of NAT’s Tariff No. 3 states:
In the event Company, in its sole discretion, chooses to
forego billing the Customer for access services in any
particular month(s), Company reserves the right to back bill
Customer for any unbilled recurring or nonrecurring charges
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for a period of twenty-four (24) months.
A “customer” is one who subscribes to the services offered under
the Tariff, including end users. This language purports to allow
NAT to impose tariffed switched access charges on IXCs for calls
placed or received by individuals or entities to whom NAT offers
free services. Because this language gives NAT the discretion not to
bill its end users, the tariff is unlawful and in violation of the FCC’s
Northern Valley v. Qwest decision. Sprint reserves the right to
supplement this response in the event that it discovers other
unlawful terms.
Docket 273-3 at 10.
The court disagrees with Sprint’s argument that this interrogatory calls
for an improper legal conclusion. Sprint has argued, and the court has found,
that several of NAT’s earlier tariffs were unlawful and unenforceable. Thus,
NAT’s interrogatory does not ask Sprint about a legal issue unrelated to the
facts of the case.
As to the substance of Sprint’s response, the court finds it is sufficient.
NAT’s interrogatory asked Sprint to state the basis for Sprint’s argument that
NAT’s tariff violates FCC regulations or statutory authority. Sprint explained its
argument that certain provisions of NAT’s tariff may violate the FCC’s Northern
Valley line of cases. No further response is needed. Thus, NAT’s motion to
compel a more complete response is denied.
2.

Other issues

NAT’s interrogatories 15 and 16 ask Sprint for information about the
revenue Sprint has derived from the calls Sprint delivered to NAT. For example,
NAT asked Sprint to “[d]escribe fully all long distance plans offered to Sprint's
customers for traffic delivered to NAT and the corresponding profit per minute
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obtained on these plans by Sprint.” Docket 273-3 at 9 (NAT interrogatory
number 15). NAT’s requests for production 11-13 asked Sprint to produce
documentation concerning the revenues it has received from calls it delivered
to NAT. For example, NAT asked Sprint to produce “[a]ll documents that
identify Sprint’s revenue for calls transmitted to NAT for termination.” Docket
273-2 at 7 (NAT request for production number 13). Sprint raised a number of
objections to these inquiries, including their lack of relevance.
As the propounding party, NAT must make a threshold showing that the
requested information falls within the scope of discovery under Rule 26(b)(1).
Hofer, 981 F.2d at 380. NAT argues that it is entitled to collect the access
charges it billed to Sprint under its tariff number 3. Sprint has identified
potential arguments against NAT’s efforts to enforce its tariff, for example,
under the FCC’s Farmers and Northern Valley line of cases. NAT has not
explained how the revenue Sprint received is relevant to NAT’s ability to enforce
its tariff or the Farmers and Northern Valley cases.
NAT posits that “Sprint has alluded to unspecified claims and defenses
that NAT’s charges are ‘un[just] and unreasonable’ and otherwise violate
sections 201 and 202 of the Federal Communications Act.” Docket 274 at 14.
According to NAT, information concerning the revenue Sprint has received
would be relevant to Sprint’s allegedly unspecified claims. In response, Sprint
stated that it has no intention of making any “claim that the rate elements
listed in NAT’s FCC Tariff No. 3 exceed the rates allowed by the FCC’s CAF
Order and the step down.” Docket 273-9 at 6. NAT replies that there are still “a
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myriad of ways” that Sprint’s revenues could be relevant to this case. Docket
280 at 9. NAT has not, however, explained what any of those “myriad of ways”
might be.11 Consequently, the court can only speculate. But “[m]ere
speculation that information might be useful will not suffice; litigants seeking
to compel discovery must describe with a reasonable degree of specificity, the
information they hope to obtain and its importance to their case.” Woodmen,
2007 WL 1217919 at *1 (citing Cervantes, 464 F.2d at 994). NAT has not met
its threshold burden of demonstrating that the information it seeks falls within
Rule 26(b)(1). Thus, NAT’s motion to compel more complete responses to
interrogatories 15 and 16 and requests for production of documents 11-13 are
denied.
D.

Expenses

The court has discretion under Rule 37(a)(5)(C) to impose an award of
reasonable expenses if a party’s motion to compel is granted in part and denied
in part. Fed. R. Civ. P. 37(a)(5)(C). Because both parties’ motions to compel are
granted in part and denied in part, the court does not impose monetary
sanctions on either party.

NAT cites an objection Sprint made to a set of interrogatories in a
different case, in a different federal district, and involving a different LEC.
Docket 280-10. According to NAT, the specific wording of Sprint’s objection
demonstrates that Sprint considers its revenues as relevant information in
cases involving claimed violations of the Communication Act. Even if that was a
plausible inference to extract from Sprint’s objection, it is this court–not a
party–that decides issues of relevance.
11

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CONCLUSION
The court will not reconsider its August 5, 2015 order. Sprint is entitled
to summary judgment on Count 1 of its complaint, but the court will not
assign costs prior to trial. The parties’ cross motions to compel are granted in
part and denied in part in accordance with this court’s opinion. Thus, it is
ORDERED that Sprint’s motion for reconsideration (Docket 256) is
denied.
IT IS FURTHER ORDERED that Sprint’s motion for summary judgment
(Docket 258) is granted.
IT IS FURTHER ORDERED that Sprint’s motion to compel (Docket 268)
is granted in part and denied in part.
IT IS FURTHER ORDERED that NAT’s motion to compel (Docket 273) is
granted in part and denied in part.
Dated February 26, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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