Discussion
It is concluded that ORA has raised valid concerns in seeking establishment of specific deadlines relating to production of discovery and depositions. Although Applicants claim that the concerns raised by ORA are not ripe for resolution by the ALJ, it is still appropriate to set preliminary deadlines for reporting to the ALJ in the event that the planned meet and confer sessions do not produce mutually acceptable results.
Also, ORA's request is reasonable in seeking deadlines for Applicants to produce workpapers and related discovery. ORA proposes that Applicants be required to produce all back up workpapers supporting their testimony within two weeks after the testimony is served. This deadline is reasonable and shall be adopted. Thus, all back up workpapers supporting Applicant testimony shall be due by July 22nd.
The previous June 22nd ALJ ruling stated that discovery relating to the Applicants' Rebuttal Testimony shall be served by July 15, 2005. That ruling did not set any final cut offs for Applicants to respond to all outstanding discovery. ORA in its motion proposed that Applicants be required to respond to all discovery outstanding as of July 1 by July 22, 2005. ORA's proposal, however, assumed a three-week extension in the entire procedural schedule. Applicants thus shall be required to respond to all discovery still outstanding as of June 24th, by July 15th.
With respect to the scheduling of depositions, since parties have agreed to meet and confer regarding scheduling, that process should be allowed to go forward. Nonetheless, if there is going to be an objection either to the schedule or other arrangements, as discussed below, the parties shall inform the ALJ promptly after conclusion of the meet-and-confer session in order to allow for timely resolution.
TURN raises the issue of whether to require depositions to take place in San Francisco. TURN notes that in response to a prior notice of deposition, Applicants objected to producing witnesses in San Francisco.3 As a noticing party, TURN expresses a desire to participate in that deposition (as do counsel for some of the other intervenors). TURN requests, however, that because it lacks resources to travel across country to take these depositions, that the depositions take place in California.
Given the importance of California as one of Applicants' biggest proposed markets, and the discrepancy in parties' resources, TURN argues that it is only fair that the depositions occur in California. It has already been ruled in this case that Applicants must produce in this proceeding all responsive information and documents, whether or not it is in the hands of Applicants per se or in the hands of affiliates, subsidiaries, and/or companies in which Applicants own a 50% or greater share. (See ALJ June 8, 2005 Ruling Regarding ORA's Second Motion to Compel, at Ordering Paragraph 6; see also Assigned Commissioner's February 21, 2002 Ruling Imposing a Sanction Against Pacific Bell For Failure to Comply with Discovery Rulings, at p. 8 ("Pacific's actions would set a dangerous precedent of allowing an entity to hide information from the Commission by developing and maintaining it at one of its sister companies or at its corporate headquarters"4)) (Attached as Appendix A to TURN's Response).
Applicants are directed to seek to find some means of providing accommodation to enable TURN to participate in the depositions within TURN's resource limits. Accommodation for TURN's participation should be addressed in the meet and confer sessions that are scheduled. One possible avenue that may be explored is video conferencing whereby TURN (or other interested parties) could participate in the depositions remotely. To the extent that parties cannot work out some mutually acceptable accommodations to allow TURN to participate in the depositions, TURN may advise the ALJ after the meet and confer session so that further action may be considered, as necessary.
IT IS RULED that:
1. The Office of Ratepayer Advocates cross-motion is granted, in part, as set forth below.
2. Applicants shall be required to produce all back up workpapers supporting their testimony within two weeks after the testimony is served, by July 22, 2005.
3. Applicants shall be required to respond to all discovery still outstanding as of June 24th, by July 15th.
4. The meet-and-confer process shall go forward regarding scheduling and logistical arrangements for depositions. If, however, parties cannot reach mutual accommodation either to the deposition schedule or other logistical arrangements, the parties shall inform the ALJ promptly after conclusion of the meet-and-confer session in order to allow for timely resolution, as may be necessary.
5. Accommodation for TURN's participation (or other parties interested in participating) in the depositions shall be addressed in the meet and confer sessions that are scheduled.
Dated July 5, 2005, at San Francisco, California.
/s/ THOMAS R. PULSIFER
Thomas R. Pulsifer
Administrative Law Judge
CERTIFICATE OF SERVICE
I certify that I have by mail, and by electronic mail to the parties for whom an electronic mail address has been provided, this day served a true copy of the original attached Administrative Law Judge's Ruling Regarding ORA Cross-Motion for Protective Order on all parties of record in this proceeding or their attorneys of record.
Dated July 5, 2005, at San Francisco, California.
/s/ FANNIE SID
Fannie Sid
NOTICE
Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to insure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.
3 Applicants have not responded to ORA's request that Applicants inform ORA and TURN whether or not they plan to object to the deposition notice. (See Supporting Declaration at ¶ 2 and Exhibit A.)
4 TURN states that this Ruling also provides a reference point for the propriety of Applicants' initial position, refusing to produce Cingular documents, as discussed in ORA's Cross-Motion.
