Discussion

Applicants have not presented a convincing case that Qwest revealed or used confidential information in the Ohio proceeding in violation of the NDA. The Declarations submitted by Qwest provide assurance that there was no unauthorized disclosure of the substance of California confidential information by Qwest counsel. SBC has not demonstrated that the mere fact of the production of proprietary information is, itself, proprietary information that is entitled to protection against disclosure under the NDA.

Applicants attached a copy of the Qwest Discovery Motion in the Ohio proceeding as "Exhibit 2" of its Opposition. Contrary to Applicants' claims, however, an examination of the "Exhibit 2" does not provide any evidence that the contents of confidential responses from California were used or revealed by Qwest in formulating its arguments in its Discovery Motion in the Ohio proceeding. Qwest merely indicates in its Ohio motion that it served similar requests in California, and was seeking permission to ask SBC for the same information in the Ohio proceeding that SBC had produced in California. Nothing in the pleading, however, suggests that preparation of the motion required knowledge of the actual confidential contents of the information produced in California.

Likewise, an examination of the Ohio Order does not indicate that any actual contents of the confidential information from the documents produced in the California proceeding were used or revealed by Qwest in its pleadings on the Ohio Discovery Motion. The Ohio Order merely recites Qwest's statement that Joint Applicants had already responded to the same discovery requests in California. Qwest's mere recitation that Applicants' data response containing confidential information had been produced in California is not, in itself, a confidential fact. Qwest's "use" in its discovery motion in the Ohio proceeding of the fact that responsive documents had been produced by SBC in California does not violate the NDA prohibition against the use or disclosure of confidential information.

Moreover, in the Ohio Order, the "Attorney Examiner" directed that "to the extent that Qwest has already received responses to the same discovery requests in the state of California, the responses can be relied upon for the drafting of surrebuttal testimony in [the Ohio] proceeding." The Ohio "Attorney Examiner" directed Qwest and the Joint Applicants "to enter into the appropriate confidentiality agreement(s) to effectuate this ruling." Thus, even to the extent that the Ohio jurisdiction authorized the use of such responsive data, the Ohio order limited access to the information only pursuant to a duly executed confidentiality agreement between SBC and Qwest to protect the confidentiality of any trade secret information. Thus, any confidential data would not be accessible until parties had executed an appropriate confidentiality agreement, as directed by the Ohio "Attorney Examiner."

To the extent that SBC continues to oppose the use of documents in the Ohio proceeding as directed by the Ohio "Attorney Examiner," SBC's recourse would appear to be more appropriately a matter for the Ohio jurisdiction. In any event, SBC has not shown that Qwest has acted in violation of its NDA relating to this proceeding, or that its proposed sanctions should be imposed on Qwest.

IT IS RULED that that Exhibits 142 (a public document) and 142-C (filed under seal as "highly confidential") are hereby admitted into the evidentiary record. Qwest's motion to file under seal its confidential unredacted response, filed concurrently with its August 24, 2005, motion is also hereby granted.

Dated August 29, 2005, at San Francisco, California.

		/s/ THOMAS R. PULSIFER
		Thomas R. Pulsifer Administrative Law Judge

CERTIFICATE OF SERVICE

I certify that I have by mail, and by electronic mail to the parties for whom an electronic mail address has been provided, this day served a true copy of the original attached Administrative Law Judge's Ruling Qwest Motion to Admit Exhibits 142 and 142-C on all parties of record in this proceeding or their attorneys of record.

Dated August 29, 2005, at San Francisco, California.

/s/ JANET V. ALVIAR

Janet V. Alviar

NOTICE

Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to insure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.