TRP/sid 7/5/2005
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
In the Matter of the Joint Application of SBC Communications Inc. ("SBC") and AT&T Corp. ("AT&T") for Authorization to Transfer Control of AT&T Communications of California (U-5002), TCG Los Angeles, Inc. (U-5462), TCG San Diego (U-5389), and TCG San Francisco (U-5454) to SBC, Which Will Occur Indirectly as a Result of AT&T's Merger With a Wholly-Owned Subsidiary of SBC, Tau Merger Sub Corporation.
Application 05-02-027
(Filed February 28, 2005)
ADMINISTRATIVE LAW JUDGE'S RULING
REGARDING ORA CROSS-MOTION FOR PROTECTIVE ORDER
This ruling resolves issues raised in the Cross-Motion for a Protective Order, filed on June 20, 2005, by the Office of Ratepayer Advocates (ORA).1 ORA filed its cross-motion for a protective order calling for procedures regulating discovery for the remainder of this proceeding in a way that preserves both Applicants' right to prepare testimony and ORA's right and duty to investigate and analyze the subject merger. ORA also attached the Supporting Declaration of Christopher Witteman as an attachment to its Cross-Motion. An administrative law judge's (ALJ) ruling dated June 22, 2005, denied the portion of ORA's cross-motion seeking a three-week extension in the schedule, but permitted responses to filed and deferred consideration of the remaining portions of ORA's cross-motion.
In its Motion, ORA requests a ruling setting out with certain specificity the parties' discovery obligations to one another. Certain of the discovery scheduling issues raised by ORA have already been addressed in the June 22, 2005 ruling. Remaining issues are addressed herein relating to dates certain for the production of all backup documents supporting Applicants' rebuttal testimony, and the depositions of Applicants' key witnesses prior to hearing.
Position of ORA
ORA expresses concern that it will encounter difficulties in obtaining the workpapers and other backup supporting Applicants' "rebuttal" testimony. ORA argues that it has already experienced difficulty obtaining the backup for Applicants' opening testimony. TURN supports ORA's Motion. TURN argues that requiring that Applicants provide backup for their testimony and appear at limited depositions is an appropriate means to level the playing field and to provide for some measure of transparency and full disclosure in this proceeding.
To ensure that it understands the factual bases and backup for Applicants "rebuttal" testimony, as well as any as-yet unproduced workpapers and backup for Applicants' direct opening testimony, ORA noticed the deposition of Applicants' witnesses and asked in the Deposition Notice that Applicants produce such workpapers and supporting documents more or less concurrently with the production and service of their rebuttal testimony. On Tuesday, June 14, 2005, ORA and TURN served on Applicants a revised Notice of Deposition and Request for Backup Documents, essentially seeking to secure the documents supporting Applicants' testimony, as well as the depositions of at least two of Applicants' key witnesses. The June 14, 2005 Deposition Notice and cover letter was attached to ORA's Motion as Exhibit A. ORA's Deposition Notice was served in place of an earlier notice that sought to depose James Kahan and obtain the backup for his opening testimony only. That earlier notice was withdrawn after Applicants objected.
ORA expresses concern that Applicants will again object to the deposition of their witnesses. The depositions are noticed for San Francisco on July 26 and 28, 2005, respectively, although ORA and TURN indicated a willingness to move dates within the period of July 26 through August 2, 2005. ORA had asked Applicants to inform ORA by June 17, 2005, of whether they planned to object to the deposition notice. As of June 19, 2005, ORA had received no response to its letter. (See Supporting Declaration, at ¶ 2.) ORA thus seeks an order setting dates certain for the notice depositions of Applicants' witnesses.
ORA also moves for a ruling requiring that Applicants provide all the backup for their opening and prepared rebuttal testimony by a date certain. TURN filed a response on June 24, 2005, in support of ORA's request. TURN argues that after Applicants' rebuttal testimony is served on July 8, 2005, intervenors will have only a few weeks to digest that testimony and prepare for hearings. Thus, TURN argues that a protective order should also provide notice to Applicants, now, that they are expected to provide all workpapers and other documents supporting their rebuttal testimony, at or near the time they serve such testimony, as required in the Deposition Notice found as Exhibit A to ORA's Cross-Motion.
TURN asks that Applicants be reminded that evidence developed on a national basis, to the extent it informs such rebuttal testimony, should be produced. (See Ruling Imposing a Sanction, supra, at p. 7 (Appendix A to TURN's response) ("withholding evidence relevant to the issue of cost modeling and costs throughout the various states in which SBC operates ... may have a bearing on costs in California").)
1 ORA titled its pleading as a "Cross-Motion" in that it was filed in conjunction with ORA's response in opposition to the Applicants' motion filed on June 10, 2005, for a "Discovery Protective Order." A separate ruling was issued on June 22, 2005 regarding Applicants' June 10th motion.
