2. Factual Background

Applicants served their First Set of Data Requests on Cox on June 2, 2005. Two of these requests are at issue in this motion:

Data Request 1:

Please provide all documents that describe, discuss, address or refer to your plans, projections or strategies concerning the provision in California of the following services: local exchange service; intraLATA toll; interLATA toll; Voice over IP ("VoIP"); Internet access service; broadband access service; local and intrastate data transport services; and packaged service comprising one or more of the foregoing. Please include, without limiting the foregoing, documents address or referring to any particular customer groups (e.g., enterprise, small business, consumer) or geographic area(s) within California to which such services would be marketed.

Data Request 6:

Please provide all documents that refer to, describe, discuss or address your business plans or strategies relating to provision of any real time communication service in California by using, in whole or in part, any facility not owned by Verizon or MCI.

Cox on June 13, 2005, objected to Applicants' First Set of Data Requests on grounds, among other things, that the requests were "improper, overbroad, and unduly burdensome," and "not relevant or material to the subject matter of this proceeding." (Motion, Exhibit B.) In a June 17, 2005 letter, Applicants argued that because the gravamen of Cox's protest was that the proposed merger would adversely affect competition in telecommunications services in California, and because the data requests seek documents related to that issue, Cox's objections lacked merit. (Motion, Exhibit C.)

The parties then met and conferred and reached agreement on some of the requests to which Cox originally had refused to provide a response. Applicants offered to narrow the scope of the requests by reducing the time frame for documents to July 1, 2004 or later, by narrowing production to documents to "speaking documents" (those that specifically mention the subjects of the requests), and by limiting the documents to meaningful, management-level documents. Cox agreed to respond to data requests 1 and 6, but it indicated that its response would be limited to documents that are "focused or limited to or relating to the effects of the merger." Cox based its position on a ruling of the Administrative Law Judge (ALJ) in the SBC/AT&T proceeding, Application 05-02-027.¹

¹ ALJ Ruling Regarding Applicants' Motion to Compel Responses from Qwest, July 5, 2005.