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Alliance Communications Cooperative, Inc. v. Global Crossing Telecommunications

February 27, 2009

ALLIANCE COMMUNICATIONS COOPERATIVE, BERESFORD MUNICIPAL TELEPHONE COMPANY; INTERSTATE TELECOMMUNICATIONS COOPERATIVE, INC.; KENNEBEC TELEPHONE COMPANY, INC.; MCCOOK COOPERATIVE TELEPHONE COMPANY; AND SPLITROCK PROPERTIES, INC., PLAINTIFFS,
v.
GLOBAL CROSSING TELECOMMUNICATIONS, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
GOLDEN WEST TELECOMMUNICATIONS COOPERATIVE, INC.; BRIDGEWATER-CANISTOTA INDEPENDENT TELEPHONE COMPANY; VIVIAN TELEPHONE COMPANY; JAMES VALLEY COOPERATIVE TELEPHONE COMPANY; NORTHERN VALLEY COMMUNICATIONS, LLC; MIDSTATE COMMUNICATIONS, INC.; MIDSTATE TELECOM, INC.; VALLEY TELECOMMUNICATIONS COOPERATIVE ASSOCIATION, INC.; VENTURE COMMUNICATIONS COOPERATIVE, INC.; WESTERN TELEPHONE COMPANY; FAITH MUNICIPAL TELEPHONE COMPANY; ONVOY, INC.; TRANSNATIONAL COMMUNICATIONS INTERNATIONAL, INC.; EXPRESS COMMUNICATIONS, INC.; AND SOUTH DAKOTA NETWORKS, LLC., THIRD-PARTY DEFENDANTS.
GOLDEN WEST TELECOMMUNICATIONS COOPERATIVE, INC.; BRIDGEWATER CANISTOTA INDEPENDENT TELEPHONE COMPANY; VIVIAN TELEPHONE COMPANY; JAMES VALLEY COOPERATIVE TELEPHONE COMPANY; NORTHERN VALLEY COMMUNICATIONS, LLC; MIDSTATE COMMUNICATIONS, INC.; MIDSTATE TELECOM, INC.; SIOUX VALLEY TELEPHONE COMPANY; VALLEY TELECOMMUNICATIONS COOPERATIVE ASSOCIATION, INC.; VENTURE COMMUNICATIONS COOPERATIVE, INC.; WEST RIVER COOPERATIVE TELEPHONE COMPANY; SOUTH DAKOTA NETWORK, LLC; PLAINTIFFS,
v.
ONVOY, INC. AND TRANS NATIONAL COMMUNICATIONS INTERNATIONAL, INC. DEFENDANTS,
GLOBAL CROSSING TELECOMMUNICATIONS, INC.; DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
EXPRESS COMMUNICATIONS, INC., ALLIANCE COMMUNICATIONS COOPERATIVE, INC.; BERESFORD MUNICIPAL TELEPHONE COMPANY; INTERSTATE TELECOMMUNICATIONS COOPERATIVE, INC.; KENNEBEC TELEPHONE COMPANY, INC.; MCCOOK COOPERATIVE TELEPHONE COMPANY; SPLITROCK PROPERTIES, INC., THIRD-PARTY DEFENDANTS
GOLDEN WEST TELECOMMUNICATIONS COOPERATIVE, INC.; BRIDGEWATER CANISTOTA INDEPENDENT TELEPHONE COMPANY; VIVIAN TELEPHONE COMPANY; JAMES VALLEY COOPERATIVE TELEPHONE COMPANY; NORTHERN VALLEY COMMUNICATIONS, LLC; MMIDSTATE COMMUNICATIONS, INC. MIDSTATE TELECOM, INC.; SIOUX VALLEY TELEPHONE COMPANY; VALLEY TELECOMMUNICATIONS COOPERATIVE ASSOCIATION, INC.; VENTURE COMMUNICATIONS COOPERATIVE, INC.; WEST RIVER COOPERATIVE TELEPHONE COMPANY; WESTERN TELEPHONE COMPANY; FAITH MUNICIPAL TELEPHONE COMPANY; CHEYENNE RIVER SIOUX TRIBE TELEPHONE AUTHORITY; RC COMMUNICATIONS, INC.; UNION TELEPHONE COMPANY OF HARTFORD; ARMOUR INDEPENDENT TELEPHONE COMPANY; AND SOUTH DAKOTA NETWORK, LLC, PLAINTIFFS,
v.
ONVOY, INC.; TRANS NATIONAL COMMUNICATIONS INTERNATIONAL, INC.; DEFENDANTS, AND SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
EXPRESS COMMUNICATIONS, INC., THIRD-PARTY DEFENDANT.
ALLIANCE COMMUNICATIONS COOPERATIVE, INC.; BERESFORD MUNICIPAL TELEPHONE COMPANY; INTERSTATE TELECOMMUNICATIONS COOPERATIVE, INC.; MCCOOK COOPERATIVE TELEPHONE COMPANY; SPLITROCK PROPERTIES, INC.; STOCKHOLM-STRANDBURG TELEPHONE COMPANY AND TRI-COUNTY TELECOM, INC.; PLAINTIFFS,
v.
SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
EXPRESS COMMUNICATIONS, INC., THIRD-PARTY DEFENDANT AND FOURTH-PARTY PLAINTIFF,
v.
ONVOY, INC. AND TRANS NATIONAL COMMUNICATIONS, INC., FOURTH-PARTY DEFENDANTS.
KENNEBEC TELEPHONE COMPANY, INC. AND SANTEL COMMUNICATIONS COOPERATIVE, INC., PLAINTIFFS,
v.
SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
EXPRESS COMMUNICATIONS, INC., THIRD-PARTY DEFENDANT.
ALLIANCE COMMUNICATIONS COOPERATIVE, INC.; BERESFORD MUNICIPAL TELEPHONE COMPANY; INTERSTATE TELECOMMUNICATIONS COOPERATIVE, INC.; MCCOOK COOPERATIVE TELEPHONE COMPANY; SPLITROCK PROPERTIES, INC.; STOCKHOLM-STRANDBURG TELEPHONE COMPANY AND TRI-COUNTY TELECOM, INC.; PLAINTIFFS,
v.
SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, DEFENDANT AND THIRD-PARTY PLAINTIFF,
v.
EXPRESS COMMUNICATIONS, INC., THIRD-PARTY DEFENDANT AND FOURTH-PARTY PLAINTIFF,
v.
ONVOY, INC. AND TRANS NATIONAL COMMUNICATIONS, INC., FOURTH-PARTY DEFENDANTS.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER GRANTING MOTION TO COMPEL DISCLOSURE OF SETTLEMENT AGREEMENT

INTRODUCTION

Pending before the court is plaintiff's motion to compel disclosure of a settlement agreement reached between defendant Trans National Communications International, Inc. (hereinafter "Trans National") and defendant Onvoy, Inc. arising out of litigation filed in state court in Massachusetts. (Docket 160). The motion to compel stems from a request served on Trans National. Trans National resists the motion on several grounds.

FACTS

The facts, insofar as they are pertinent to the motion before the court, are as follows. These consolidated actions were filed by plaintiffs to recover amounts they claim are owed to them pursuant to tariffs filed with the Federal Communications Commission ("FCC") and the South Dakota Public Utilities Commission ("PUC"). Plaintiffs are primarily local exchange carriers ("LEC")*fn1 who provide telephone and other communications services to customers through wires to their homes and businesses. The LECs own the wires that attach to their customers' homes and businesses. Defendants are long distance carriers.

While long distance carriers own the wires that traverse multiple LECs, they do not own the wires that actually connect to customers. Therefore, when a long distance carrier places a long-distance call for one of its customers, it must use the wires of the LECs to originate the call and to terminate the call.*fn2

The LECs' services in allowing the use of their wires to originate and terminate calls are known as "switched access services" or "terminating switched access" or "originating switched access." LECs charge long distance carriers for the use of their wires by charging switched access fees. The amount of switched access fees that LECs are allowed to charge are set by the FCC or PUC in documents called "tariffs."

The plaintiffs in this case except South Dakota Network, LLC ("SDN") are LECs located in South Dakota. Plaintiffs charge long-distance carriers originating and terminating access fees pursuant to their tariffs. Plaintiffs formed SDN, which provides long-distance carriers a single point of connection for all the LECs that formed SDN. As a result, a long-distance carrier only has to run telephone lines to SDN to connect to each LEC's network rather than running separate lines to each LEC. SDN charges "centralized equal access" fees when it switches a call from a long-distance carrier to an LEC. The rates, terms, and conditions of SDN's centralized access services are governed by SDN's tariff filed with the FCC and PUC.

Plaintiffs later formed Express Communications, Inc. ("Express") to enable each plaintiff to provide long-distance service to their end users. However, Express does not itself have the facilities to provide long-distance service because it does not own the telephone lines necessary to connect plaintiffs or SDN to LECs in other areas. Instead, Express purchased long-distance service from Onvoy, a reseller of long-distance service. Onvoy in turn purchased long-distance service from Trans National. Trans National then purchased long-distance service from Global Crossing and/or Sprint. As a result, when one of plaintiffs' customers places a long-distance call through an LEC that has subscribed to Express, the call appears approximately like this:

(1) plaintiff-LEC carries the call from the calling customer to SDN; (2) SDN switches the call to Express; (3) Express carries the call to Onvoy; (4) Onvoy carries the call to Trans National; (5) Trans National carries the call to Global Crossing and/or Sprint; (6) Global Crossing and/or Sprint carries the call to the LEC of the customer being called; and (7) the LEC for the customer being called completes the call.

The plaintiffs then bill Global Crossing and/or Sprint for originating and terminating access fees, and SDN bills Global Crossing and/or Sprint for centralized equal access services. Plaintiffs brought these actions against defendants Sprint and Global Crossing are for unpaid charges made under plaintiffs' tarrifs for originating and terminating access fees. In the alternative, if Sprint and Global Crossing are not liable for the charges for which plaintiffs seek payment under their tariffs, then plaintiffs allege that defendants Onvoy and Trans National are liable.

As to which defendant is liable, Onvoy has contended that Trans National was contractually obligated to put in place arrangements for the payment of access fees by Global and Sprint and that Trans National failed to do so. Trans National claims it did everything the contract with Onvoy required it to do, but that the contract did not require Trans National to put in place the underlying arrangements with Global and Sprint. This disagreement between Onvoy and Trans National led to the Massachusetts litigation in which Onvoy sued Trans National. See Onvoy, Inc. v. Trans National Communications International, Inc., Civ. Action No. 05-4207-BLS2 (Mass. Dist. Ct.). That litigation was settled and it is the settlement agreement from that litigation that plaintiffs seek to discover in this litigation.

DISCUSSION

Trans National urges four bases for denying plaintiffs' motion to compel:

(1) that plaintiffs have not satisfied the prerequisite that they attempted in good faith to resolve their discovery dispute with Trans National prior to filing the motion to compel; (2) that the discovery requests served on Trans National on October 31, 2008, were not properly served; (3) that the discovery requests served on Trans National on October 31, 2008, and on January 2, 2009, were untimely; and (4) that the settlement agreement which ...


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