COMMISSION WASHINGTON UTILITIES AND ) TRANSPORTATION COMMISSION, ) vs. ) DOCKET NO. UT-971140 WASHINGTON EXCHANGE ) VOLUME 2 CARRIERS ASSOCIATION ) Pages 13-22 --------------------------------- A hearing conference in the above matter was held on March 19, 1998, at 11:00 a.m., at 1300 South Evergreen Park Drive Southwest, Olympia, Washington, before Administrative Law Judge Terrence Stapleton. The parties were present as follows: AT&T COMMUNICATIONS, by SUSAN D. PROCTOR and RON GAYMAN, (via bridge), Attorneys at Law, 1875 Lawrence Street, Suite 1575, Denver, Colorado 80202. U S WEST COMMUNICATIONS, INC., by LISA A. ANDERL, (via bridge), Corporate Counsel, 1600 Seventh Avenue, Room 3206, Seattle, Washington 98191. RSS COMPANIES, by ROBERT S. SNYDER, Attorney at Law, 1000 Second Avenue, 30th Floor, Seattle, Washington 98104. WASHINGTON EXCHANGE CARRIERS ASSOCIATION, by RICHARD A. FINNIGAN, Attorney at Law, 2405 Evergreen Park Drive Southwest, Suite B-3, Olympia, Washington 98502. THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION STAFF, by JEFFREY D. GOLTZ, Senior Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, Olympia, Washington 98504-0128; and BETTY ERDAHL, Revenue Requirements Specialist. Kathryn T. Wilson, CCR Court Reporter P R O C E E D I N G S JUDGE STAPLETON: This hearing will please come to order. This is a discovery conference in the matter of Washington Utilities and Transportation Commission, Complainant, versus Washington Exchange Carriers Association, et al., Respondents, Docket No. UT-971140. Today's date is Thursday, March the 19th, 1998. We're convened in Olympia, Washington before Administrative Law Judge Terrence Stapleton. Let's take appearances, please, beginning with the Association. MR. FINNIGAN: On behalf of the Washington Exchange Carriers Association and the companies identified as the RAF companies, this is Rick Finnigan. JUDGE STAPLETON: For Commission staff? MR. GOLTZ: My name is Jeffrey Goltz with the attorney general's office. Mary Tennyson is the attorney of record in this case, but she is in Paris so she couldn't be here today. JUDGE STAPLETON: We extend our sympathies to Ms. Tennyson for her very unfortunate plight. For intervenors RSS companies, please? MR. SNYDER: On behalf of companies identified as RSS companies in the prehearing order in this proceeding, I am Robert S. Snyder. JUDGE STAPLETON: For intervenor, U S West? MS. ANDERL: On behalf of U S West Communications, Inc., this is Lisa Anderl. JUDGE STAPLETON: For AT&T, please? MS. PROCTOR: For AT&T, Susan Proctor and Ron Gayman. JUDGE STAPLETON: Before we get into this, I have read all the pleadings. I don't think I need anything more from the parties by way of explanation, although I do have some specific questions that I will be imposing. However, in the Commission staff response to recall for answers to the motion, Mr. Goltz indicated that there might be some suggestions on how the Commission should proceed, so at this point in time, if there are any such specific suggestions, I would appreciate hearing them. MR. GOLTZ: I apologize for not being able to respond with something elaborate within the time frame. Perhaps if Ms. Tennyson had been here, she could have done so, but having reviewed the file and having reviewed the various comments by the parties, I think we find ourselves in somewhat of a procedural mess, as far as this motion goes and this discovery procedure goes. On one hand -- I guess when I start off saying "on one hand," you can see there is going to be another hand, and it's not going to be very good. But on one hand, Mr. Finnigan and Mr. Snyder raised some legitimate points, although perhaps to an outsider, some of them seem kind of nit-picky, like the data requests weren't signed properly, and those are valid points, and there's a reason for that rule. On the other hand -- so they make some good points about this motion to compel and the lateness of this motion to compel, but there are some defects. However, this is an important proceeding, and it is important for all parties to have access to necessary information to prepare their case, and the time lines are coming up. So having said that, it seems to me that one way to proceed would be to deny the motion to compel with need to file a revised set of data requests, and one would hope they could be pared down, and maybe the administrative law judge can give some guidance about what he believes to be the scope of relevancy that would be legitimate grounds and subject matters which data requests could be issued, and on a very short time frame -- meaning like tomorrow -- let AT&T file a revised and hopefully pared down set of data requests, allow Mr. Finnigan and Mr. Snyder to file objections to those -- again, on a very short turnaround time, perhaps, say, by Tuesday -- and at this conference today, pick a time in the very near future -- sometime late next week, depending on scheduling for the administrative law judge -- to have argument on a pared down set of requests. Now, the reason for this is twofold. One is it cures whatever procedural defects there may be in this motion and in the earlier set of data requests so we get that issue behind us, but at the same time, it protects the rights, I hope, of AT&T to be able to prepare their case. With that even accelerated schedule, that puts us up into a crunch with the filing deadline for staff and intervenors, which is, I believe, April 6th. If one can make the assumption that AT&T would opt to file renewed requests -- and there's going to be some discussion about those, objection to those -- it would probably be necessary, and one should perhaps assume so, to bump the filing dates for staff intervenor testimony out a couple of weeks and then adjust the remaining schedule accordingly, and whether that means it's necessary to move the hearing dates, that's a function for the Commission, and if that can't be moved, one has to condense the remaining process. If it can be moved, then one has a little more flexibility. So that's as close as I can come to a solution to this. It defers a little bit to next week the actual decision on discovery, but it at least cures some of the procedural issues while still protecting the rights of the intervenors. JUDGE STAPLETON: Thank you. Just a question for you. Never having practiced law in the state of Washington or anywhere else for that matter, the reference to the civil rules of practice. As I read the quoted language in the answers, I believe that it states something to the effect that once the defect, vis-a-vis, the signature on discovery requests is brought to the attention of the requesting party that it could be cured by a letter from that person acknowledging that they have, in fact, reviewed those data requests, and whatever reason there was a failure of the signature to appear, it's now corrected by this letter conveying a signature for the purpose of conveying those data requests. Is that essentially what the rule permits? MR. GOLTZ: I didn't bring my rule with me. JUDGE STAPLETON: Quoting from Mr. Snyder's answer, it says, "If a request, response or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response or objection, and a party shall not be obligated to take any action with respect to it until it is signed." MR. GOLTZ: That, of course, is the civil rule. The Commission rule, I think, was patterned in substantial part on the civil rule. It had the same purposes in mind. The Commission rule doesn't say that, but I think the Commission could so interpret it if it wanted to. I guess my solution or my suggestion would get at that same issue. It would, however, allow the opportunity for the administrative law judge to encourage AT&T to pare down its requests. JUDGE STAPLETON: Ms. Proctor, do you have any response to what you've just heard from Mr. Goltz? MS. PROCTOR: Yes. The signature issue, I've always had a lot of trouble getting unnecessarily caught up in issues of form over substance. Obviously, our difficulty is that I'm here in Denver, and frequently, when we have to file things in Olympia, as we did yesterday, after I have prepared them and reviewed them, Mr. Gayman will initial my signature. That is precisely what happened with these data requests. One of the factual inaccuracies of Mr. Finnigan's recitations is that I did not review these before they went out. That was not accurate. But leaving that aside, I guess my concern here is that the substantive issue in this matter is that the companies are objecting to producing their interstate Part 3669 filing, and as far as having pared down requests, that's what I did attempt to do in our reply yesterday, and having talked more to people who know something about the material here, as opposed to people like me who understand it sort of generally in concept, my understanding is, at this point, if the companies would provide to us their Part 3669 filings from the interstate filing, which would include the total company inter and intrastate results, that all the questions 2 through 10 would be contained in that material, and that basically is the substance of our request. I would be happy, if it will make life easier for everyone, to go through this course that Mr. Goltz has suggested of refiling asking for that again, but the issue of the companies' objections on the grounds that they do not want to do their total company data, even in a confidential manner, is not going to go away. JUDGE STAPLETON: At this point, I'm going to interject here with a couple of thoughts. First of all, I know how busy each and every person is, at least in this room, and I suspect that the people on the line are just as busy as the rest of us are. I'm very frustrated with being here today with the voluminous number of data requests that are before me and the breadth of those data requests and the fact that I have heard nothing from any party until I got this AT&T motion to compel. The Staff motion to compel teed up some of these issues. It was withdrawn. I spent no time attempting to resolve in my own mind what data requests were or were not appropriate in this proceeding. At this point in time, I'm still a little uncertain whether or not a certain interstate information is, in fact, relevant discovery for this proceeding. There was clear direction to the parties at the prehearing conference to notify the requesting party immediately if there was a problem with discovery or for filling a discovery request. I know there's some confusion about whether AT&T has put on hold responses from the companies. All that aside, I don't want to spend another minute on this than I have to. And I don't think you need to either. So the first thing I'm going to do is I'm going to go off the record, and I'm going to leave the room with the court reporter, and I'm going to put Mr. Finnigan at his word in Page 13 of his response where he says, "The clearest and cleanest way to get at some of this is to direct the parties to consult with counsel to determine the meaning of the data requests, lessen the burden, and eliminate duplicative requests," so I'm going to leave this room, and I expect while you already have this time blocked out that you resolve this. My intention would be that if the counsel in this case can agree to a relevant level of discovery, I will ask them to also waive any defect in the transmission of the data requests by having Ms. Proctor address a letter to the Commission with the data request that you can agree will be responded to, conveying your signature for those data requests. At this point in time, I will be off the record. I'm going to leave this room, and I want you people to resolve this, and I'll be back in about a half hour to check on you. (Recess from 11:25 a.m. to 12:40 p.m.) JUDGE STAPLETON: The parties have engaged in a lengthy discussion of the issues involved in this discovery conference and have reported that they have made substantial progress and have asked that this particular discovery conference be recessed until 3:00 p.m. on Tuesday, March the 24th. We will stand in recess until that time. Thank you all very much for your work. (Hearing conference recessed at 12:45 p.m.)