Claims of Nondisclosure Agreement Violation

Parties' Positions

Another reason cited for opposition to Qwest's motion is SBC's claims that Qwest violated its nondisclosure agreement (NDA) with SBC. Based on such claims of violation, SBC requests that the motion to admit Exhibits 142/142-C be denied, and that Qwest be sanctioned, requiring that: (1) Qwest return immediately all confidential documents and data request responses that were produced to Qwest by either of the Joint Applicants in this proceeding; and (2) Qwest be forbidden from using these same materials in briefing in this proceeding.

SBC claims that Qwest is attempting to use the same documents produced in the California proceeding to support its efforts in the state of Ohio and "to advance other business interests" in violation of the NDA between Qwest and SBC. SBC points to an August 15, 2005 pleading filed by Qwest in the Ohio merger docket requesting leave to serve discovery (similar to DRs 4-26 through 4-35). SBC claims that by citing, in its motion in the Ohio proceeding, to the existence of confidential documents produced in California under the NDA, Qwest violated the NDA provision that confidential information produced in this proceeding "shall be used exclusively for purposes of participating in [the California] proceeding." SBC argues that the NDA prohibits Qwest, not only from sharing the substance of confidential information with others, but also from using the knowledge of the existence of information obtained confidentially here for any purpose other than this proceeding. 

SBC also notes that two of the four attorneys on the Ohio pleading are signatories to the California NDA, and claims that they are in direct violation thereof. SBC also claims there is a "distinct possibility" that the other two attorneys shown on the Ohio pleading have reviewed these highly confidential materials even though never being authorized by SBC to do so.

Qwest denies Applicants' allegations that it has violated the NDA, and argues that SBC's accusations are, themselves, sanctionable. Qwest denies that it disclosed in Ohio the contents of the documents produced in California, and maintains that it merely identified that similar requests had been propounded and that documents (identified in a footnote by Bates number) had been provided in response. Qwest argues that there is nothing confidential in its mere disclosure that it served similar requests in California or that Applicants responded with documents of a certain Bates-number range. Qwest argues that recitation of information in the public domain cannot be a violation of the NDA. Qwest argues that the purpose of an NDA is to protect trade secret information, not to "embargo" the mere existence of information from other venues where the information may be probative.