The opinion of the court was delivered by: John E. Simko United States Magistrate Judge
1. Qwest Communications Corporation's ("Qwest") motion to compel.*fn1
2. Northern Valley Communications, L.L.C.'s ("Northern") motion to compel.*fn2
3. Qwest's motion to amend or correct declaration.*fn3
4. Northern's motion to seal.*fn4
5. Qwest's motion to seal.*fn5
6. Qwest's motion to seal.*fn6
7. Northern's motion to seal.*fn7 Central to Northern's motion to compel is its claim that Qwest has been unjustly enriched at Northern's expense.*fn8 Northern asserts it originated and terminated long distance calls for Qwest customers but did not receive payment from Qwest. Northern claims this was inequitable because Qwest collected money for these calls.
Central to Qwest's motion to compel is its claim that it is a victim of Northern's traffic pumping scheme, i.e. Qwest did not choose Northern's services to complete conference calls for Qwest's customers.*fn9 Instead Northern paid conference calling companies*fn10 to attract Qwest customers to use a telephone number belonging to Northern, which in turn triggered a fee for Qwest to use Northern's origination and termination services.
Qwest's Motion to Compel.*fn11
Qwest's motion asserts: ! Northern refuses to identify all of the Free Calling Service Companies ("FCSCs") who have contacted, interacted or contracted with Northern. Northern refuses to identify the FCSCs other than those which actually used Northern telephone numbers. The request's full scope is relevant and necessary to several of Qwest's claims, particularly to the question of whether Northern's FCSC arrangements were "end user" customer relationships subscribing to services under its tariffs. ! Northern identifies contractual amendments with its FCSC partners on its privilege log and refuses to produce them. Northern claims they are "settlement agreements" and withholds them as well as documents related to them (i.e., drafts and correspondence). These agreements define the prospective (and potentially historic) relationships between Northern and its FCSCs, which is at the very heart of this lawsuit. This material goes to several claims. The requested documents are relevant and necessary to all of Qwest's claims. ! Northern refuses to produce several non-privileged, public documents because their lawyers provided advice about these public materials. While the advice itself is privileged and protected, the underlying public documents are not. Qwest seeks production of the non-privileged documents, which cannot be shielded from discovery simply by attaching them to privileged emails.
Northern's Motion To Compel.*fn12
Northern's motion asserts:
Specifically, Northern seeks documents and interrogatory responses relating to its alternative theory of recovery for unjust enrichment, including discovery regarding Qwest's revenues derived from its customers for calls destined to Northern's network. Northern seeks documents regarding Qwest's own practices with regard to issues in this litigation, including revenue sharing practices and concerning the payment and collection of access charges associated with calls directed to Qwest's affiliated conference call provider, Genesys. Northern also seeks documents that Qwest has shared with its potential purchaser, CenturyLink, including statements regarding its analysis of the instant litigation. Finally, Qwest has erroneously claimed that several documents are protected from disclosure as a result of the attorney work product or attorney-client privilege. Northern requests that those documents be produced or reviewed by the Court in camera to evaluate Qwest's claims of privilege.
Neither Qwest nor Northern identified the disputed discovery requests by number in their respective motions to compel. Both parties submitted hundreds of pages of briefs, exhibits, and sworn declarations. The specific references to specific disputed discovery requests are identified within these documents. Because the motions to compel categorize the disputed subjects rather than identify each particular disputed discovery request by number, the rulings are likewise by category rather than by number.
A. QWEST'S MOTION TO COMPEL.
1. Qwest's Motion to Compel
Northern to identify all Free Calling Service Companies with whom Northern has communicated, interacted or contracted.*fn13
Qwest argues the identity of companies with whom Northern did not do business is helpful to prove the free calling service companies with whom Northern does do business are not end users. Qwest asserts:
First, if Northern Valley declined any inquiries from FCSCs (either as brokers for other FCSCs or directly for themselves), this is directly relevant to whether the FCSCs were end users subscribing to Northern Valley's tariffs, or instead were doing business with Northern Valley outside of its tariffs. Only common carrier services can be tariffed, and holding oneself out to provide services indifferently to all potential users is a hallmark of tariffed services.*fn14
There are many reasons why people and companies choose to do business with each other. One of the reasons could be the one articulated by Qwest, i.e. that Northern declined to do business. But, one can imagine many other reasons which would not tend to prove or disprove the free calling service customer with whom Northern does business is an end user. This discovery request is too broad and only minimally likely to produce relevant or admissible information. When compared to the work Northern would have to accomplish to uncover the identity and contact information for every free calling service company with whom Northern has communicated, interacted or contracted directly or indirectly, the burden is too great and the benefit too little. On the other hand, if there are so few free calling service companies that it would not be burdensome for Northern to identify those with whom it did not do business despite having communicated, interacted or contracted directly or indirectly, then the burden is not too great for Qwest to conduct its own investigation about those free calling service companies to discover facts tending to prove Northern's current free calling service customers or partners are not end users. Qwest's motion to compel Northern to identify all of the free calling service companies with whom Northern has communicated, interacted or contracted is DENIED.
2. Qwest's Motion To Compel Northern To Produce Contract Amendments With Free Calling Service Companies, Including Drafts And Communications Relating To Them*fn15
Qwest argues these amendments are substantive evidence about whether the FCSCs are end users, and whether Northern Valley is, or is not, delivering calls pursuant to the terms of its switched access tariff. Under the official notes to Rule 408, Qwest is not seeking these documents for a use prohibited by Rule 408(a), and therefore, Rule 408(b) expressly authorizes use of these documents at trial.*fn16
These amendments are the result of confidential litigation settlement agreements to which Northern is a party. The pertinent cases have been considered.*fn17 Qwest has satisfied both the ordinary Rule 26(b)(1) standard*fn18 and the heightened standard giving deference to Federal Rule of Evidence 408.*fn19 Northern has not claimed privilege as a protection from discovery. Northern argues:
In order to effectuate the terms of those settlement agreements and operate on a forward looking basis, Northern Valley has been obliged to amend the terms of its agreements with the affected conference-calling providers (the "Amendments") to reflect the financial arrangement reached with the IXCs (i.e., to set a new rate at which the conference-calling providers will be compensated for the traffic delivered by the settling carriers). This new rate is the sole content of the Amendments to the conference-calling providers' contracts that Northern Valley has not produced to Qwest, and constitutes confidential information pursuant to the terms of the settlement agreements reached with the relevant IXC.*fn20
But Qwest claims that if Northern is either charging different rates to different free calling service companies or off tariff rates*fn21 then the different rates or off tariff rates tend to prove whether the FCSCs are end users, and whether Northern is, or is not, delivering calls pursuant to the terms of its switched access tariff. That claim is central to Qwest's theories in this litigation. Qwest's motion to compel Northern to produce contract amendments with free calling service companies, including drafts and communications relating to them is GRANTED. Northern may redact from the drafts and communications matters which are protected by the attorney/client privilege. The materials produced must be protected by the Protective Order which is on file and must be "for attorneys' eyes only" unless otherwise ordered by the court.
148 F.R.D. 532 (E.D.Pa.1993).
3. Qwest's Motion To Compel Production Of Public Documents Attached To Privileged E-Mail*fn22
Qwest argues that attaching non-privileged documents to privileged communications does not make the public documents privileged. Otherwise, Qwest argues, fully discoverable material could be shielded from discovery through the simple expedient of conveying copies to his attorney.*fn23
Northern asserts "all of the disputed e-mails and attachments were selected and forwarded by either Northern Valley or its counsel for the specific purpose of ...