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In re Access Charge Cases Consolidated for Discovery Matters

December 15, 2009

IN RE: ACCESS CHARGE CASES CONSOLIDATED FOR DISCOVERY MATTERS,


The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

ORDER ON MOTION TO COMPEL DOC. 148

Pending is Global Conference Partner's (GCP) Motion to Compel responses to Requests for Admission Nos. 1-18, Substituted Interrogatory Nos. 1, 2, 3, 4, 8, 9, and 12, and Substituted Request for Production Nos. 1, 2, and 3 (Doc. 148, p. 8, CIV. 07-1016). The parties commendably conferred about their discovery disputes. GCP submitted what it calls Substituted Interrogatories and Requests for Production. Verizon calls them Revised Written Discovery Requests. The disputed discovery requests and responses are found in Document 151, Exhibit B. The original Interrogatories and Requests for Production are not addressed here.

This case is one of many similar cases currently pending in the District of South Dakota. Judges Schreier, Piersol, and Kornmann have all written opinions on motions to dismiss claims asserted by parties in those lawsuits. Sancom, Inc. v. Qwest Communications Corporation, 2008 WL 2627465 (D.S.D.), Northern Valley Communications, LLC. v. Qwest Communications Corporation, 2009 WL 3164856 (D.S.D.), Splitrock Properties, Inc. v. Qwest Communications Corporation, 2009 WL 2827901 (D.S.D.), and Northern Valley Communications LLC. v. AT&T Corp., 2009 WL 3150787 (D.S.D.). Suffice it to say all of the cases were started as collection cases by local exchange carriers. The complaints drew counterclaims and third party claims from long distance carriers asserting traffic pumping and asserting that the services giving rise to the collection claims were not rendered and were not covered by the tariff schedules filed with the FCC and the South Dakota PUC.

REQUESTS FOR ADMISSION

GCP moves to compel responses to Requests for Admission Nos. 1-18. Federal Rule of Civil Procedure 36 provides a party may request another party to admit or deny the truth of any matter within the scope of Rule 26(b)(1). The requests may include facts, the application of law to fact, or opinions about either. The answer must specifically deny the request or state in detail why the answering party cannot truthfully admit or deny it. Rule 26(b)(1) provides parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense.

For the most part, Verizon's objections are that the requests are vague, overly broad, unduly burdensome, and seek information that is not relevant to the subject matter of this proceeding and are not likely to lead to the discovery of admissible evidence. No privilege objections have been asserted.*fn1 The requests can be admitted or denied. To the extent the requests cannot be admitted or denied, Verizon can explain in detail why it cannot truthfully admit or deny as Rule 36 directs. With the exception of Request For Admission #9, the requests are not vague, overbroad, or unduly burdensome. Request For Admission #9 is vague and confusing because it contains at least two inquiries, so it is confusing to try to provide a single admission or denial. Regarding the others Verizon need only admit, deny, or explain in detail why the request cannot be admitted or denied.

Verizon argues it would need to identify hundreds of affiliates and thousands of pages to respond to the Requests for Admission. On the contrary, Verizon need only admit, deny, or explain why it cannot admit or deny. Regarding relevancy, GCP asserts the matters are relevant to claims asserted in their counterclaim. Even though it appears later in this opinion that relevancy is questionable, at this stage and based upon the record supplied to decide this motion to compel, it cannot be determined as a matter of law that the subject matters of the Requests for Admission are not relevant. Regarding vagueness as it relates to the terms "resale telecommunications services," "telecommunications services" and "wholesale," Verizon can deny the Request by explaining in detail why the meaning of these terms is vague if it can truthfully do so.

1. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

2. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

3. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

4. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

5. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

6. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

7. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

8. Objection overruled. Motion GRANTED. Verizon shall admit or deny.

9. Objection sustained. Motion DENIED. VERIZON need not admit or deny. The request is vague. It contains at least two inquiries, so a single ...


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