Iowa Network Services, Inc., Plaintiff, v. Sprint Communications Company, L.P., Sprint Nextel Corporation, Sprint United Management Company, and Sprint Corporation, Defendants NO. 4:10-cv-00102-JEG-RAW United States District Court, S.D. Iowa, Central Division Signed July 23, 2010 Counsel Denny M. Dennis, Todd A. Strother, Timothy N. Lillwitz, Bradshaw Fowler Proctor & Fairgrave, Des Moines, IA, Robert H. Jackson, Attorney at Law, McLean, VA, for Plaintiff. Bret Alan Dublinske, Brant Michael Leonard, Fredrikson & Byron, P.A., Des Moines, IA, for Defendants. Walters, Ross A., United States Magistrate Judge RULING ON PLAINTIFF'S FIRST AND SECOND MOTIONS TO COMPEL AS SUPPLEMENTED *1 The above resisted motions [59] [66] [111] are before the Court. They are decided on the motion papers. LR 7.c. The motions concern defendants' (hereinafter collectively “Sprint”) responses to INS's first request for production of documents. Following a status conference, by order entered March 30, 2010 [107] the Court directed INS by April 19, 2010 to clarify what issues remained pending in the motions to compel. The supplement [111] to its motions was intended to do this. Sprint has responded to the supplement [117]. Sprint's production of documents has been an evolving affair now amounting to several hundred thousands of documents retrieved largely from electronic storage. The Court has therefore focused on the supplement and the response to it though has reviewed the earlier motions as they bear upon the issues remaining. Unless expressly sustained herein, Sprint's objections to the requests for production are overruled. The Court will address each discovery request in turn. Request Nos. 1 and 2 These requests respectively ask for all communications between Sprint Corporation and INS and all communications between Sprint Nextel Corporation and INS. In previous correspondence Sprint told INS it could not locate any documents responsive to the requests. It says it will amend its formal responses to so indicate. Beyond this, if it has not already done so, it shall supplement its responses by the date indicated below. The motions are denied as moot. Request No. 3 By this request INS requests Sprint, for each defendant, to produce “all documents with dates between January 1, 2006 and the present providing a complete list of employee names.” It says it needs the lists to ascertain which of the defendant companies employed the Sprint employees known to have been involved in the matters in dispute. It speculates the lists may also refresh the recollections of INS employees concerning who they dealt with. Sprint's overbreadth and discovery relevancy objections are sustained. Apparently the Sprint defendants employed tens of thousands of employees during the specified time period. Most of these persons would have had nothing to do with this case. Sprint says it has produced a list of relevant employee names for the specified time period which ought to be sufficient. In any event there must be a less cumbersome way to find out by which entities relevant employees were employed. The motion is denied with respect to this request. Request No. 4 This request seeks production of “all contracts, correspondence, and other Documents establishing or describing [Sprint's] employee relationship with” seventeen named individuals. INS says the individuals named were actively involved in the matter at issue. The motion is granted in part. If it has not done so already, Sprint shall produce all employment contracts with the persons named and documents describing the employee relationship, that is, the description of the job or jobs performed by the individuals and the persons within the organization to whom they reported. Sprint need not produce any documents, or portions of documents disclosing the individual's compensation, medical conditions or work restrictions, performance reviews and similar personal information. The emphasis here is on disclosure of who the named individuals worked for, the nature of the employment relationship, and the job performed. Request Nos. 5 and 6 *2 These requests, respectively, require Sprint to produce all documents relating to INS and all documents relating to Centralized Equal Access Service in the possession of each of the persons identified in Request No. 4. Sprint responds it has produced responsive documents and continues to do so. It said it would produce “the last production of known responsive, non-objectionable documents” starting May 13, 2010, the date of its response [117] to INS's motions supplement. Having now plumbed the documents in electronic storage with the assistance of an e-discovery vendor, Sprint says it “believes that nearly every relevant document has been unearthed....” (Sprint Resp. to INS Supp. [117] at 6). The Court has no reason to doubt these representations. However, the statement that all “non-objectionable” responsive documents have been produced leaves open the possibility that some documents have been withheld on the basis of the numerous objections to these requests originally made by Sprint. To be clear, all of these objections are overruled and to the extent Sprint has withheld production of non-privileged responsive documents on the basis of them, such documents shall now be produced. Sprint shall supplement its discovery responses to clearly state it has produced all responsive non-privileged documents within the scope of this request. The motions are granted in part to this extent. Request No. 7 In this request INS seek production of all documents discussing, describing or calculating the amounts of INS's bills which Sprint has not paid, all documents relating to the process or method used to determine amounts Sprint has not paid, and all data and information relied upon by Sprint to determine amounts not paid. Sprint responds it has produced some 211,500,000 call detail records (CDRs) plus over 300,000 additional documents within the scope of the request. INS claims it cannot validate Sprint's PIU (Percent Interstate Usage) claims from the documents provided. It complains the telephone numbers have been altered in two respects. First, Sprint has replaced the last three digits of the ten-digit terminating phone numbers with zeroes or x's and in the case of about fifteen percent of the telephone numbers, the first seven digits of the ten-digit phone numbers have been altered. In addition, INS says that Sprint has not provided any originating call data, the omission of which “erroneously inflates the overall PIU.” (Decl. of Hilton, Pl. Supp. Motions Ex. 2 [111] at 2). In its response to the motions' supplement, Sprint does not appear to address INS's complaints about the non-production of originating traffic and the alleged alteration of the first seven digits of the ten-digit phone numbers in about fifteen percent of the phone records. Accordingly, the Court accepts the declaration of INS's vice president, Mr. Hilton, concerning these issues. The motions are granted in these regards and Sprint shall produce originating call data and CDRs unaltered with respect to the first seven digits of phone numbers. It shall supplement its response accordingly. Sprint has altered the last three numbers of the phone records because it says the disclosure of those numbers would only define each specific telephone customer and are not necessary to determine the jurisdiction of a telephone call. Sprint views the complete phone numbers as customer proprietary network information (CPNI), the confidentiality of which is protected by 47 U.S.C. § 222(a), (c), (h). INS concedes calling and call telephone numbers likely fall within the statutory definition of CPNI. It urges, however, that the FCC has recognized that sharing telephone numbers between carriers may be necessary for the accurate billing of telecommunication services and is permitted by subsections 222(c)(1)(B) and (d)(2) of the statute. (See Pl. Supp. to Motions [111] at 12-13, quoting FCC Rules and Regulations). Sprint responds these exceptions do not apply to permit INS to obtain Sprint customers' CPNI in order to bill Sprint. It is not necessary to resolve the CPNI issue. It is enough that the statute generally protects the confidentiality of customer telephone numbers unless the customer authorizes disclosure. The Court could perhaps order disclosure of complete telephone numbers subject to a protective order, but that at a minimum would require a showing of necessity. The Court is not convinced from INS's motion papers, in particular the declaration of Mr. Hilton, that the last three digits of the ten-digit terminating phone numbers are necessary in order for INS to assess Sprint's PIU calculations or Sprint's disputes with INS's invoices. To require Sprint to make another massive disclosure of terminating call records with the last three digits restored would be an unnecessary and unwarranted burden. The motions are denied in this respect. Request Nos. 8 and 9 *3 Request No. 8 asks for all documents relating to Sprint's decision to not pay INS's bills (No. 8) and all notes, memoranda and the like discussing, describing or relating to any meeting at which the decision to withhold such payments was discussed. INS complains that while Sprint has produced some documents responsive to these requests, it is unclear how fully Sprint has responded. Sprint responds it has “now produced all non-privileged, relevant documents of which it is aware and in possession not otherwise subject to particular objections asserted generally or specifically in writing as part of the discovery process....” (Sprint Resp. to INS Supp. [117] at 11). In responding to INS's document requests Sprint made eleven general objections of the boilerplate variety and numerous “specific” objections which were in truth usually not very specific at all, asserting mainly conclusory, overbreadth, discovery relevancy and burden complaints. Like chicken soup, general and conclusory objections to discovery requests may make the maker feel better, but they rarely merit much attention from the Court and are simply a fertile source for needless dispute. When a party, as Sprint has done, says it has produced all documents subject to a plethora of general and specific objections, the opponent may be forgiven for wondering if responsive documents have been withheld. Once again, to be clear, all of Sprint's general objections, and the specific objections with respect to these requests, are overruled. The motions are granted in part. Sprint shall produce all responsive documents except those it has withheld on the basis of privilege. Privileged documents should of course be identified on a privilege log. Sprint shall amend its responses to the requests to specifically indicate that it has produced all responsive documents known to be within its possession or control. Request No. 10 In this request INS seeks all the documents “discussing or [r]elating to the effect on Sprint's cash flow, budget or financial results if Sprint does not pay for access service.” Sprint objected on the basis of overbreadth and discovery relevancy. It has subsequently said that it has no non-privileged documents responsive to the requests which it views as requesting any documented analysis of the relationship between the refusal to pay access charges and the financial standing of Sprint Nextel Corporation. (Sprint's Mem. in Opp. [65] at 6). The relevancy objection is overruled, but the overbreadth objection is sustained with respect to that portion of the request seeking documents “relating” to the effect on Sprint's cash flow, etc. which if taken literally could be endless. The motion is granted to require Sprint to produce non-privileged documents “discussing” the subject identified in the request. Request Nos. 11, 12 and 13 It is not necessary to paraphrase these requests. Sprint responds it has produced all of the documents sought by these requests of which it is aware. Sprint adds that it incorporates its responses to Request Nos. 5, 6, 8 and 9. The motion is denied, subject, however, to the Court's ruling above concerning request Nos. 5, 6, 8 and 9, and in addition, request No. 7. Request Nos. 14 and 15 It is also not necessary to paraphrase these requests. The motion is denied subject to the Court's ruling with respect to Request Nos. 5, 6, 7, 8 and 9. Request No. 16 This request asks for all communications between Sprint and INS which provided INS with PIU reports submitted to Sprint by Subtending LEC's. Sprint appears to indicate it has provided all of the documents within the scope of the request but is not entirely clear. Sprint shall supplement its response to clearly indicate whether it has produced all responsive documents. Beyond this the motions are denied. Request No. 17 *4 The same ruling is made with this request as with respect to Request Nos. 7, 13-16 above. Request No. 18 This request seeks all documents that demonstrate how Sprint can or does distinguish between interstate calls and intrastate calls placed from or to CMRS providers. Sprint has produced a document with a diagram which purports to explain how it distinguishes the jurisdiction for CMRS calls. It is not entirely clear from Sprint's supplemental response ( [117] at 13), but the Court takes it that Sprint has produced all documents within the scope of the request. The motions are granted to require Sprint to amend its response to this request to so indicate if all such documents have been produced, but otherwise the request is denied. Request No. 19 This request asks Sprint to produce certain documents pertaining to specific claim numbers. INS, in substance, complains about the quality of the documents produced and suspects there may be more. Sprint in substance says it has produced all documents within the scope of the request. However, it adds that it “stands on its previous objections and responses.” Sprint's previous objections to the request are overruled. To the extent Sprint has withheld any non-privileged documents on the basis of its objections, the same shall be produced. In addition, the motion is granted to require Sprint to supplement its response to clearly state it has produced all responsive documents. Beyond this the motion is denied. Request Nos. 20 and 21 These requests are related to request No. 19. The Court makes the same ruling with respect to request Nos. 20 and 21 as made with respect to request No. 19. Request No. 22 This request seeks Sprint documents disputing INS's charges in 2006 and 2007. Sprint responds that it has produced, or was producing coincident with the filing of its response to INS's motions supplement, all responsive documents. Sprint's response is clear enough that the motions are denied. Request Nos. 23 – 27 These requests are related, involving documents pertaining to certain identified claim numbers. The Court makes the same ruling with respect to these requests as made with respect to request Nos. 19, 20 and 21. Request No. 28 This request relates to Sprint's document retention and records management policies. In its response to INS's motions supplement ( [117] at 15) Sprint says it will produce all responsive documents in existence if and when found and redacted. Sprint adds that it stands on its previous objections. Sprint's previous objections, which were purely conclusory, are overruled. No documents shall be withheld on the basis of them. Presumably all responsive documents have now been found and produced, but if not Sprint shall within the time period provided below produce all responsive documents and supplement its response to so indicate. Motions granted in part as above. Request No. 30 This is a “contention” document request. In its answer Sprint denied receiving payment from Sprint's customers who placed long-distance calls using INS's facilities. This request seeks documents supporting Sprint's contention. Sprint originally said, subject to its many objections, that it would produce non-privileged documents responsive to the request. (Motion to Compel [59] Ex. B [59-2] at 19). Sprint's objections, including the discovery relevancy objection are overruled. The motions are granted to require the production of any documents responsive to the request withheld on the basis of the objections. In response to INS's motions supplement ( [117] at 15), Sprint represents that it has “no documents maintained in the normal course of business that break out all of Sprint's revenues from its customers in the manner requested.” If by this Sprint means to indicate it has produced all responsive documents, as it earlier said it would do, it shall supplement its response to clearly so indicate by the date indicated below. Motions granted in part. Request No. 31 *5 This is another “contention” request. INS asks Sprint to produce all documents supporting its contention in its counterclaims that there was a conspiracy between INS and certain LECs. Sprint says it is inhibited by protective agreements the Iowa Utilities Board compelled it to enter into with INS in order to obtain discovery from INS in the Board proceedings. According to Sprint, INS has not released Sprint from those agreements nor has it accepted Sprint's proposal that Sprint and INS jointly petition the Board to remove protection from INS-related documents which the Board determined were confidential. Sprint continues that in the meet-and-confer process it has described the documents on which it relies in detail. Apparently INS has now produced to Sprint many of the documents which Sprint relies on for its conspiracy allegations. Sprint said it would supplement its response to this request to identify the documents in question, and presumably it has done so. Sprint adds that it still stands on its previously objections. The objections on which Sprint stands are overruled and no non-privileged documents shall be withheld on the basis of them. The motions are granted in part. Sprint shall further supplement its response to this request to clearly indicate whether all non-privileged documents in its possession responsive to the request have been produced and, if any documents have been withheld because of the confidentiality orders and agreements entered or required by the Iowa Utilities Board, the supplemental response shall identify the number, general nature, and originator of the documents withheld. Following this, the Court would reconsider the matter further at the parties' request. Motions [59] [66] [111] granted in part and denied in part in conformity with the above. To the extent granted, Sprint shall supplement its responses to the subject requests and produce any additional documents within thirty (30) days of the date hereof. The motions to compel having been granted in part and denied in part, the Court elects not to undertake an apportionment of expenses incurred in relation to the motions. Fed. R. Civ. P. 37(a)(5)(C). IT IS SO ORDERED. Dated this 23rd day of July, 2010.