TRP/tcg 7/27/2005
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
ADMINISTRATIVE LAW JUDGE'S RULING ON
MOTION OF THE OFFICE OF RATEPAYER ADVOCATES
AND THE UTILITY REFORM NETWORK
TO STRIKE DECLARATIONS AND TESTIMONY
This ruling addresses the motion filed on July 19, 2005 jointly by the Office of Ratepayer Advocates (ORA) and The Utility Reform Network (TURN) to strike certain specified declarations and testimony of witnesses, as follows.
1. The Declarations of Dennis W. Carlton and Hal. S. Sider dated February 21, 2005, and attached to the Application, and dated May 9, 2005, filed as an attachment to the Rebuttal Testimony of Professor Aron.
2. The Declaration of David Toti dated June 13, 2005 filed as an attachment to the Rebuttal Testimony of Professor Aron.
3. Questions 17 to 25, inclusive, of the Rebuttal Testimony of James Kahan.
4. The testimony of any of Joint Applicants' witnesses who are not being offered for cross-examination testimony under oath in person in San Francisco in this proceeding. This would include the declarations of Messrs. Carlton, Sider, and Toti above, as well as the declarations of Hossein Eslambolchi, and Thomas Horton, dated February 21, 2005 and filed with the supplemental Application. Statements by individuals who will not subject themselves to cross-examination should not be included in the record.
5. The expert opinion testimony of witnesses who are not being offered as experts, such as portions of John Polumbo's Rebuttal Testimony.
Declarations of Dennis W. Carlton, Hal. S. Sider, and David Toti
ORA and TURN move to strike the declarations of Dennis W. Carlton, Hal. S. Sider, and David Toti, which are attachments to the Rebuttal Testimony of Dr. Aron. This material is offered for the truth of the matters asserted but the witnesses are not appearing in this proceeding.
ORA and TURN object to the inclusion of these declarations in the evidentiary record without an opportunity to cross-examine the authors of the declarations. The Rebuttal Testimony of Dr. Aron calls upon the Reply Declaration of Dennis W. Carlton and Hal. S. Sider, filed in the FCC proceeding reviewing this transaction (Carlton/Sider Declaration). Yet, ORA and TURN contend that Dr. Aron does not adopt the declaration as part of her testimony, and does not state that she has independently examined any the materials relied upon by the experts who prepared this declaration. ORA and TURN contend that the material will not be verified at the hearing.
Applicants concede that the Rebuttal Testimony of Dr. Aron relies on the Declarations of Messrs Sider, Carlton and Toti (Opposition at 4), but are not producing those declarants for cross examination in this proceeding. Applicants contend that it is sufficient for ORA and TURN to cross-examine Dr. Aron about these statements by third parties.
However, in a response to a Data Request from Qwest, Applicants stated that Dr. Aron did not review or even see the "workpapers, studies, analyses and data" on which Messrs Sider and Carlton relied, so Dr. Aron could not competently answer questions about their results. (See Attachment 1 to the Motion.)
ORA and TURN also contend that the Evidence Code refutes Applicant's contention that testimony from Dr. Aron would be sufficient. Where an expert relies on the opinions or statements of others, as here, those others may be called and examined by any adverse party.1 (Evid. Code, § 804(a).) Yet Applicants are not willing to allow these witnesses to be examined. For example, Applicants' response to ORA Data Request Set No. 17, questions, 20 and 24 (Attachments 1 and 2 to ORA/TURN motion) refuse to provide details of the compensation of Sider and Carlton on the grounds that they are "not testifying" in this matter.
Dr. Aron also relies on the Declaration of David Toti, filed in the FCC's Special Access NPRM (Toti Declaration). ORA and TURN object to the admission of the Toti Declaration without an opportunity to cross-examine him. Neither ORA nor TURN has received any indication that Toti will testify before this Commission.
In the alternative, ORA and TURN argue that only the specific passages of the Carlton, Sider, and Toti declarations actually relied on by Dr. Aron in developing her expert opinion should be allowed into the record. As to Messrs. Carlton and Sider, ORA and TURN argue that only those references on pages 82, 83, and 85 of Dr. Aron's testimony should be allowed. Because Dr. Aron does not cite any specific reference to Toti (see p. 88), ORA and TURN argue that his declaration should be excluded entirely.
Applicants argue that including these declarations is appropriate under Commission practice and rules,2 and are consistent with the Evidence Code, which provides that an expert may form admissible opinion based on matter "whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates...."3
Applicants dispute the claim of ORA and TURN of having no opportunity to test the material relied upon by Dr. Aron other than by questioning Dr. Aron. ORA and TURN have already had the opportunity to test this material in discovery, and may use Applicants' discovery responses related to expert and analyst reports cited in her testimony to question Dr. Aron. Similarly, Applicants may use discovery responses and other publicly available information to question, for example, Dr. Selwyn's use of Prof. Wilkie's report,4 which was submitted to the FCC in the same manner as the two Declarations ORA and TURN seek to strike.
1 Evidence Code § 804(b) states that the section does not apply when the "other" declarant is a "person identified with a party," but this is only because the statute is primarily designed to provide cross-examination rights when an adverse party itself calls the "other" declarant; no such further statutory authority to cross-examine is required when an adverse party calls a party-identified witness. In any event, the Commission only looks to the Evidence Code for guidance when its own Rules are silent, and the point here is that the Evidence Code recognizes that there is often a need to subject such "other" declarants to cross-examination.
2 The sworn Declarations here satisfy the certification requirements under the Commission Rule 69(b).
3 Cal. Evid. Code § 801(b). The Commission admittedly does not always strictly apply the Evidence Code, but its Rules of Practice and Procedure provide for the same result.
4 See Selwyn Reply Testimony, pp. 68-69 and 163-64.
