BEFORE THE MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street St. Paul, MN 55101

Transcription

1 BEFORE THE MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street St. Paul, MN FOR THE MINNESOTA PUBLIC UTILITIES COMMISSION 121 Seventh Place East, Suite 350 St. Paul, MN In the Matter of the Complaint by Qwest MPUC Docket No. P-5096, 5542/C Communications Company, LLC against Tekstar Communications, Inc. regarding OAH Docket No Traffic Pumping QWEST'S REQUEST TO ISSUE CERTIFIED COPIES OF A COMMISSION REQUESTING THE MINNESOTA DISTRICT COURT FOR THE SECOND JUDICIAL DISTRICT (RAMSEY COUNTY) TO ISSUE COMMISSIONS DIRECTING DOMESTICATION OF SUBPOENAS IN NON-PARTIES' RESIDENT STATES Qwest Communications Company, LLC ("Qwest") respectfully requests that the Administrative Law Judge issue a "commission" so that Qwest can domesticate and enforce this Court's subpoenas on third parties located outside of the state of Minnesota; namely, on the records custodian of Information Age Economics, Inc.; Alan Pearce, Ph.D.; and W. Brian Barrett, Ph.D., CFA.' This company and Messrs. Pearce and Barrett have relevant, unique information that is central to this traffic pumping lawsuit. These persons are located outside the State of Minnesota, and as a result, Qwest will have to complete domestication processes for the out of state service and execution of the subpoenas. Qwest will take the ALJ's subpoenas and "commission" (see Exhibit A) to the Minnesota State District Court for the Second Judicial District (Ramsey County) for the court to in turn issue its commission to the States of Florida (for Mr. Barrett) and Maryland (for the records custodian of Information Age Economics and Mr. Pearce). Qwest has already used this process in a traffic pumping Qwest seeks subpoenas for documents and depositions from each subpoena recipient.

2 case pending before the Iowa Utilities Board, to domesticate and enforce subpoenas in Florida and Maryland (as well as other states). Accordingly, Qwest respectfully requests that the Administrative Law Judge issue the attached, proposed commission to Qwest, in addition to issuing the requested subpoenas. The proposed commission to the state district court comports with the governing Minnesota statutes and rule. The State of Minnesota has authorized the chief administrative law judge to issue subpoenas, including upon the request of an interested person, for documents, deposition testimony, and/or hearing testimony "as are material to any matter being heard by the Office of Administrative Hearings." MSA See also Minn. R "The subpoenas shall be enforceable through the district court in the district in which the subpoena is issued." MSA Because the OAH is located in Saint Paul, the district from which the subpoenas are issued is the Second Judicial District (Ramsey County). To serve the subpoenas outside of Minnesota under the U.S. Constitution's Full Faith and Credit Clause, Qwest will comply with the state laws, rules and court procedures of their resident states, respectively the States of Florida and Maryland. The domestication procedures depend upon the specific state in question. The State of Florida has adopted the Uniform Foreign Depositions Law. See, F.S.A The State of Maryland has adopted a version of the Uniform Interstate Depositions and Discovery Act, MD Code, Courts and Judicial Proceedings et seq. Both the Florida and Maryland statutes refer to subpoenas or commissions from a "court of record" in the foreign state, without defining whether administrative agencies acting in their adjudicatory capacities are considered courts of record for these purposes. To preclude litigation of this issue, and thus facilitate 2

3 compliance with the subpoenas, Qwest requests that the Administrative Law Judge issue the proposed commission to the District Court, requesting commissions to the States of Florida and Maryland. As noted, pursuant to MSA 14.51, the Second Judicial. District Court has jurisdiction to enforce subpoenas issued by the Office of Administrative Hearings and as such has jurisdiction to issue a commission for the subpoenas' out-of-state domestication under the Full Faith and Credit clause. Accordingly, Qwest respectfully requests that the Administrative Law Judge issue to Qwest the attached, proposed commission, stamped with the official stamp or seal of the Office of Administrative Hearings, and the subpoenas requested on the OAH's request form. Qwest will then file the commission and subpoenas with the Minnesota District Court and provide proposed commissions from the district court to the States of Florida and Maryland. Qwest will serve copies of all papers to the official service list in this proceeding. Dated this 16 th day of April, QWEST CORPORATION /s/ Jason D. Topp Jason D. Topp 200 South Fifth Street, Room 2200 Minneapolis, MN (612) Charles W. Steese (pro hac vice) STEESE, EVANS & FRANKEL, P.C S. Fiddlers Green Circle, Suite 1820 Denver, CO (720)

4 Exhibit A

5 BEFORE THE MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS 600 North Robert Street St. Paul, MN FOR THE MINNESOTA PUBLIC UTILITIES COMMISSION 121 Seventh Place East, Suite 350 St. Paul, MN In the Matter of the Complaint by Qwest Communications Company, LLC against Tekstar Communications, Inc. regarding Traffic Pumping MPUC Docket No. P-5096, 5542/C OAH Docket No COMMISSION TO THE MINNESOTA DISTRICT COURT FOR THE SECOND JUDICIAL DISTRICT (RAMSEY COUNTY) REQUESTING ISSUANCE OF COMMISSIONS FOR OUT-OF-STATE DOMESTICATION OF SUBPOENAS The undersigned Administrative Law Judge requests the Court issue commissions for domestication of subpoenas in the States of Florida and Maryland, as follows. For necessary discovery in the above-captioned matter pending before the Office of Administrative Hearings ("OAH"), in the investigation of matters asserted in the formal complaint filed by Qwest Communications Company before the Minnesota Public Utilities Commission, and such other issues as may develop during the course of the proceedings, the undersigned Administrative Law Judge has issued upon Qwest's request pursuant to MSA and Minn. R , Subpoenas commanding non-parties W. Brian Barrett, Ph.D., CFA, the records custodian of Information Age Economics, Inc. ("Information Age Economics") and Alan Pearce, Ph.D., each to produce documents and appear for depositions. Those Subpoenas are attached as Exhibits A-F to this Commission. Minnesota statutes and rule authorize the Office of Administrative Hearings to issue these subpoenas for service within the state. The State of Minnesota has authorized the chief administrative law judge to issue subpoenas, including upon the request of an interested

6 person, for documents, deposition testimony, and/or hearing testimony "as are material to any matter being heard by the Office of Administrative Hearings." MSA The chief administrative law judge can and has delegated such authority to administrative law judges. MSA 14.48(2); Minn. R "The subpoenas shall be enforceable through the district court in the district in which the subpoena is issued." MSA The Office of Administrative Hearings is located in the city of Saint Paul, Ramsey County, Minnesota. The Minnesota District Court for the Second Judicial District is thus the judicial court with enforcement authority over subpoenas issued by this Administrative Law Judge. MSA According to Qwest's representations in requesting the Subpoenas, Mr. Barrett appears to be a resident of the State of Florida. Qwest has represented to the undersigned that the State of Florida appears to require a commission from a judicial court of the State of Minnesota, to domesticate the subpoena to Mr. Barrett for service in the State of Florida, and that in any case, the Court's commission will facilitate compliance with the subpoena. See, F.S.A (Florida enactment of Uniform Foreign Depositions Law, referring to writ, mandate or commission from a "court of record" in a foreign state). Qwest has also represented that similarly, for the subpoenas to Mr. Pearce and the records custodian of Information Age Economics in the State of Maryland, a commission from a Minnesota judicial court appears to be necessary for domestication of, and will facilitate compliance with, the subpoena. See, MD Code, Courts and Judicial Proceedings et seq. (Maryland version of Uniform Interstate Depositions and Discovery Act, requiring subpoena from "court of record" of the foreign state). The undersigned takes no position on the merits of that position.

7 Accordingly, the undersigned Administrative Law Judge hereby requests by this Commission, that for the enforcement of the attached Subpoenas pursuant to MSA 14.51, the Minnesota District Court for the Second Judicial District (Ramsey County) issue Commissions to the state courts of the State of Florida and Maryland, authorizing and directing any entity which is authorized under the laws of those States to issue subpoenas, to take such actions as may be required for issuance of subpoenas enforceable within those respective states to the non-parties Mr. Barrett, Mr. Pearce, and the records custodian of Information Age Economics, commanding the document productions and deposition appearances required in the Subpoenas. Qwest, the requesting party, shall submit forms of Commission to the Second Judicial District Court so providing. So ordered this day of April Steve M. Mihalchick ADMINISTRATIVE LAW JUDGE