The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff objects to four areas of discovery. They are as follows:
7. Any contacts made by MCI with Atlas Excavating,
Inc., Communications, Inc. or Internet Construction,
Inc. concerning the work performed by Atlas
Excavating, Inc. at Grand Avenue and Entry Drive on or
about December 4, 2001.
11. All claims filed by MCI alleging damage to
fiber-optic cables or utility lines.
12. All claims filed by MCI alleging lose [sic] of
use of fiber-optic cables or utility lines.
13. All claims filed against MCI alleging that MCI
improperly or incorrectly marked the location of
its fiber-optic cables or utility lines.
The objection to "7" is that it may require disclosure of attorney work
product respecting contacts with XO Communications, Inc. or Internet
Construction, Inc. Since defendant Atlas Excavating, Inc. (Atlas) has
represented that it has no intention of intruding into the area of work
product privilege, the objection is overruled as moot.
The others are more problematic. "11" and "12" relate to claims "filed"
by MCI Worldcom Network Services, Inc. (MCI), without regard to where,
when or what. MCI contends that the information sought is irrelevant and
asserts that the request is overly broad and unduly burdensome. We cannot assess how burdensome the request may be
since we are not advised whether or not damage to fiber-optic cable is a
common occurrence, with many claims over the years, or only a sometime
thing. Defendant contends that such information is relevant to damages
whether the repair cost estimate is consistent with the claims for
repairs in other incidents and whether the loss-of-use estimate is
consistent with the claims for loss of use in other incidents. MCI
counters by contending that every incident is different and that its
loss-of-use estimate is based on FCC published rates, from which the
reasonable rental value of comparable capacity can be determined for the
time the cable was out of service.
We suspect that analysis of every claim for an extended period would be
an expensive endeavor and burden defendant with more information
than it would want to digest. Further, the information, particularly of
repair costs, appears of limited relevance. Defendant is entitled,
however, to test MCI's assertion that reliance upon FCC rates is a
reasonable and previously used procedure. Accordingly, we confine the
information to claims which, during the past five years, have either
arisen with respect to the cable from Downers Grove, Illinois, to
Minneapolis, Minnesota, or have ripened into lawsuits anywhere in the
country in which MCI has claimed a loss of use in excess of $500,000. For
now, the lawsuit information shall be limited to a list of the cases
sufficiently identified so that defendant can access the public files.
MCI objects, also, to disclosure of all claims against it that alleged
it had improperly or incorrectly marked the location of its cables or
lines, also on the grounds of being irrelevant, overly-broad and unduly
burdensome. MCI has previously sought, and obtained, information from
Atlas about its prior damage of underground facilities, arguing not only
its relevance to a claim for punitive damages, but also to the issue of
causation and possible pattern or practice pursuant to Rule 406, Federal Rules of Evidence. It now claims that
evidence of its prior problems with marking violates Rule 404(b). Its
previous argument was a stretch, but we allowed discovery. Atlas'
argument is also a stretch, but we think, as we did before, that sorting
out admissibility comes later. MCI devotes most of its argument, however,
to the contention that defendant's counterclaim is baseless because the
Atlas witnesses themselves establish that the location was properly
marked. But that is the stuff of a summary judgment motion, which has not
been filed. We think defendant is entitled to some limited exploration
claims of mis-marking within the past three years.
Both parties seek fees and costs. Both are denied. The protective order
sought by MCI is granted in part and denied in part, as indicated above.
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