4. Analysis of Cox's Arguments

Cox responded to the motion on August 2, 2005. It asserts that it should be required to supply only business plan documents that reflect changes to plans as a result of the Verizon/MCI merger or plans developed in reference to the merger. It states that this position is supported by ALJ Pulsifer's Ruling on July 5, 2005, in the SBC/AT&T proceeding.

ALJ Pulsifer considered 10 data requests directed to Qwest Communications Corporation (Qwest) in the July 5 ruling. He directed Qwest to supply business documents responsive to the data requests. He added, however:

On the other hand, while Qwest interprets the data requests too narrowly by refusing to provide any documents at all, the Applicants frame their Data Request 1-2, 1-4, and 1-5 too broadly by simply asking for "strategic business documents" or "all business planning documents" without attempting to define the scope in a more focused manner, or specifically relating the business plans to the effects of the planned merger. Moreover, these requests appear somewhat duplicative and/or overlapping with Data Request 1-14 which asks for all planning documents, etc. that are a result of the SBC/AT&T merger. Thus, Qwest should not be required to respond to such duplicative questions. Applicants should narrow and eliminate these overlapping or duplicative questions. (ALJ Ruling Regarding Applicants' Motion to Compel Responses From Qwest, July 5, 2005, at 7-8.)

ALJ Pulsifer's ruling is distinguishable from the ruling that Applicants seek here. First, at the time of that ruling, SBC and Qwest had not met and conferred with respect to the requests at issue, which sought "all business planning documents" without attempting to limit the scope of the documents. Judge Pulsifer therefore deemed the requests overbroad and ordered the parties to engage in meet-and-confer sessions to narrow the requests. By contrast here, the parties have met and conferred, and Applicants have narrowed the document requests to "speaking documents" prepared since July 1, 2004 and limited to meaningful, management-level documents (presumably, vice president level and above). Cox states that it also was agreed to limit the scope of discovery to Verizon's service territory in California.

Second, Judge Pulsifer found two of SBC's requests duplicative of other requests. There is no such claim in this case, but to the extent data request 6 is somewhat duplicative of data request 1, this ruling directs (and Applicants have agreed) that data request 6 need not be answered if Cox provides a full response to data request 1. Finally, Judge Pulsifer's ruling expressly states that Qwest has an "independent obligation to respond to Applicants' requests seeking the basis of Qwest's claims that competition will be adversely affected by the merger." (Ruling, at 8.) This ruling reaches the same conclusion as to Cox and its claims of competitive impact.