Qwest's Motion for a Deposition
By its July 26, 2005 motion, Qwest seeks a determination of whether a proposed deposition would be a permissible follow-up to Qwest's outstanding data requests relating to special access issues. Qwest indicates that it intends to utilize the deposition as an alternative mechanism to attempt to obtain the same information sought in the third and fourth sets of data requests that it has failed to obtain through written discovery. Qwest seeks to depose a self-designated corporate representative of Joint Applicants with responsibility for a variety of activities related to the purchase and sale of special access services. Qwest argues that given the pace of the schedule in this proceeding with evidentiary hearings starting on August 8th, there is not enough time remaining to continue to pursue written interrogatories. Qwest argues that even with a favorable ruling on its pending motion to compel, it will be impossible, without the deposition, to obtain the responsive information prior to the start of hearings. Qwest thus argues that, given the proximity of the hearings, it is critical that Qwest (in addition to receiving full responses to the Special Access DRs) be given the opportunity to conduct the deposition that is the subject of its July 26, 2005 motion for determination.
Applicants oppose Qwest's motion for a deposition. SBC argues that it has already provided extensive information on special access services and is producing more based on meet-and-confer discussions with Qwest. AT&T timely responded to Qwest's data requests indicating that AT&T had not identified information sought by Qwest at that time. Since responding to Qwest on July 15, 2005, AT&T has identified certain responsive materials and produced them on August 2, 2005. Applicants argue that Qwest fails to show why additional information is needed, or why Qwest did not seek the information within the schedule set by the ALJ. The ALJ's June 22 ruling provides that discovery served after June 24 must "relat[e] to Applicants' Rebuttal Testimony" and that "[d]iscovery relating to the Applicants' Rebuttal Testimony shall be served by July 15."1
Yet, Qwest sought the depositions of Applicants' witnesses for the first time on July 21, nearly a week after the discovery cut off. Since Qwest seeks discovery after the deadline set by the ALJ, Applicants argue that no further discovery should be permitted.
Qwest subsequently proposed to take depositions after the evidentiary hearings are completed. Takemoto Decl. Ex. C. Applicants oppose this alternative, arguing that such depositions would be unprecedented. As noted in an email dated August 3, 2005, by Level 3 Communications, LLC, (Level 3) such a procedure also would permit Qwest to have a portion of the hearing after the actual hearing had concluded. Takemoto Decl. Ex. D. Level 3 argues that such an approach would be unfair to parties who are concerned about issues which might be raised in the deposition, including the possibility that the Joint Applicants could use the deposition to buttress perceived shortcomings in their presentation at the hearing itself through the use of fresh witnesses who had not served written testimony. If the deposition were taken before the hearing, however, then at the time the transcript or portions thereof are offered into the record, parties could object and to use the written transcript in cross-examination, if necessary.
SBC's counsel stated in his response to Qwest's deposition notice (which was made on behalf of AT&T as well) that the notice was untimely and there is no basis for allowing the depositions.2
1 See Administrative Law Judge's Ruling Denying Motion to Extend the Schedule and Granting in Part, Discovery Limits, entered June 22, 2005, at 6-7.
2 See Declaration of Joseph F. Wiedman in Support of Qwest's Motion for Determination that Deposition of Joint Applicant's Witness Falls Within Permissible Discovery Limits, Ex. A.
