COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATION AND CABLE __________________________________________ ) Petition of Verizon New England Inc., ) MCImetro Access Transmission Services of ) Massachusetts, Inc., d/b/a Verizon Access ) Transmission Services, MCI Communications ) Services, Inc., d/b/a Verizon Business Services, ) D.T.C. 07-9 Bell Atlantic Communications, Inc., d/b/a ) Verizon Long Distance, and Verizon Select ) Services, Inc. for Investigation into the ) Intrastate Access Rates of Competitive Local ) Exchange Carriers ) __________________________________________) VERIZON’S RESPONSE TO XO’s MOTION TO COMPEL DISCOVERY Verizon New England Inc. (―Verizon Massachusetts‖), MCImetro Access Transmission Services of Massachusetts, Inc., d/b/a Verizon Access Transmission Services, MCI Communications Services, Inc., d/b/a Verizon Business Services, Bell Atlantic Communications, Inc., d/b/a Verizon Long Distance, and Verizon Select Services, Inc. (collectively ―Verizon‖ or ―the Verizon companies‖) hereby respond to the August 11, 2008 Motion of XO Communications Services, Inc. (―XO‖) to Compel Verizon Massachusetts, Inc. to Provide Further Responses to Certain Document Requests (―Motion‖). XO’s Motion seeks an order from the Department compelling production of additional responses to XO-VZ 2-3 and XO-VZ 2-4. For the reasons set forth below, the Motion should be denied. I. The Department Should Sustain Verizon’s Objections to XO-VZ 2-3 In XO-VZ 2-3, XO requests that Verizon confirm that it has ―no internal memos, e-mails, or other documents regarding the reasonableness of Verizon’s switched access rates.‖1 Verizon objected to this request on the grounds that it is overly broad and unduly burdensome, but directed XO to Verizon’s filings in D.T.E. 01-31. XO’s request is patently excessive in its breadth and degree of burden. XO’s request would require Verizon to search the hard and electronic files of numerous Verizon employees (current and former) and consultants who have been involved in Massachusetts regulatory matters since the initiation of D.T.E. 01-31, as well as the files of past and present employees of Verizon’s finance group, to determine if they have any documents that might be germane to the level of Verizon’s intrastate switched access rates in Massachusetts. Such an undertaking would not be quick and would consume significant internal and external resources. XO fails to justify the imposition of such a heavy burden on Verizon. XO appears to forget that the issue before the Department in this docket is the reasonableness of CLEC switched access rates in Massachusetts –—including those of XO—not Verizon’s rates, and that the Department has already specifically determined that Verizon’s rates are just and reasonable under Massachusetts law, deciding in D.T.E. 01-31 that it would be appropriate to set Verizon’s intrastate rates at the level of its interstate rates. Given the Department’s determination, what any Verizon employee or consultant might have written about the reasonableness of Verizon’s access rates is clearly beside the point, if any documents do exist that might be responsive to the request. 1 The initial question from XO on this issue – XO-VZ 1-4 – limited the question to Verizon’s rates in Massachusetts. 2 XO’s attempt to justify its request fails to do so. XO simply asserts that ―any internal evaluations of Verizon’s own rates have obvious relevance to matters at issue in this proceeding.‖2 The ―obvious relevance‖ is not so obvious and XO fails to explain the linkage. As noted above, the Department has already determined that Verizon’s rates are just and reasonable. Discovery on this point is a fishing expedition, one that XO has failed to defend. Verizon’s objections should be sustained. II. Verizon Has Fully Responded to XO-VZ 2-4 XO-VZ 2-4 requests a statement from Verizon as to whether it has any e-mail messages that are responsive to XO-VZ 1-6. The latter request sought from Verizon ―all studies and internal memoranda prepared in connection with Verizon’s determination that other carriers’ switched access rates are anti-competitive.‖3 Verizon responded to XO- VZ 2-4 with an undue burden objection. In discussing Verizon’s objections with counsel for Verizon, XO’s counsel indicated that XO wanted to see internal documents that led Verizon to decide to file the petition in this proceeding. Indeed, in the Motion, XO stated that ―[i]t is only reasonable to insist that Verizon produce documents that would reflect Verizon’s rationale for initiating this proceeding.‖4 Verizon’s counsel indicated to XO’s counsel that those documents were produced in response to XO-VZ 1-5 as proprietary attachments. Those attachments contain the internal analyses that demonstrated that CLEC intrastate switched access rates in Massachusetts are substantially in excess of the rates of Verizon 2 XO Motion at 2. 3 XO-VZ-1-6, dated July 17, 2008. 4 XO Motion at 3. 3 Massachusetts, which analyses prompted Verizon to file the petition in this proceeding in October 2007. As a result of this discussion with XO’s counsel, Verizon will supplement its response to XO-VZ 2-4 to provide a cross-reference to Verizon’s response to XO-VZ 1- 5. Respectfully submitted, VERIZON NEW ENGLAND INC., MCIMETRO ACCESS TRANSMISSION SERVICES OF MASSACHUSETTS, INC., MCI COMMUNICATIONS SERVICES, INC., BELL ATLANTIC COMMUNICATIONS, INC., and VERIZON SELECT SERVICES, INC. By their attorneys, ______________________________ Bruce P. Beausejour 185 Franklin St. – 13th Floor Boston, Massachusetts 02110-1585 (617) 743-2445 Richard C. Fipphen 140 West Street – 27th Floor New York, New York 10007 (212) 321-8115 Dated: August 15, 2008 4 .