RECEIVED
fi\Rzq
II 27 M ‘@
,,l,T:.r~i~Wi,,lC,~.!~~ji
rosrli ‘:I”‘-,~,:.‘cl(i i$l~‘c
off,c’. c, 13”..Jc
UNITED STATES OF AMERICA
POSTAL RATE COMMlSSlGN
WASHINGTON, D.C. 20268-0001
PRESIDING OFFICER’S
RULING NO. R2000-l/18
Postal Rate and Fee Changes
PRESIDING
OFFICER
Docket No. R2000-1
RULING GRANTING
ADVO MOTION TO COMPEL
March 24, 2000
On March 9, 2000, ADVO, Inc. (Advo) filed interrogatories
and 19(c) to Postal Service witness Raymond.
Engineered
Standards
(a) a full description
(ES) project, interrogatory
Interrogatory
instructions
For each contract he performed
on the
2 asks witness Raymond to provide
of the work plan proposed to the Postal Service, (b) the statement
of work and list of deliverables,
documentation
AdvolUSPS-T13-2
that he prepared,
(c) a list of reports, analyses and all other
(d) contract initiation and completion
dates.
19(c) asks witness Raymond to provide copies of all requests, proposals,
and correspondence
he directed to the Postal Service or its contractors
relating to use of the ES data to update the Street-Time
The Postal Service filed objections
offers highly generalized
Survey of carrier costs.
to these interrogatories
assertions that much of the information
on March 3, 2000.’
requested
would be
irrelevant to carrier cost issues, and would disclose information that the Postal Service
and the firms with which witness Raymond has been associated
It also asserts that providing the information
could compromise
future negotiations
considers
confidential.
requested would disclose information
that
with its labor unions, and could have commercial
’ Objection of the United States Postal Service to ADVO Interrogatories
19(c) to witness Raymond, filed March 3, 2000 (Objection).
ADVOIUSPS-T13-2
and
It
Docket No. R2000-1
-2-
value to its competitors.
the unobjectionable
intertwined.
It argues that it would be unduly burdensome
material from the mass of objectionable
to “unscramble”
material with which it is
Objection at 2. The Postal Service objects to interrogatory
overbroad.
19(c) as
It also objects to it on the ground that litigation strategy or other privileged
communications
could turn up in the requested
material.
Objection at 3.
On March 9,200O Advo moved to compel production
information.’
It argues that these interrogatories
of the requested
seek the kind of basic information
should have been provided when witness Raymond’s
that
testimony was filed. It notes that
the data that witness Raymond has provided were collected in order to develop
engineered
work standards,
purposes,
the documentation
non-existent.”
rather than to estimate carrier costs, and that for costing
of the manner in which the data were collected is “thin or
It characterizes
the Postal Service’s objections
as part of a pattern of
resisting legitimate discovery designed to document witness Raymond’s
methods.
data collection
Motion at 1-2.
Advo argues that the failure of the Postal Service to maintain organized
focused documentation
of witness Raymond’s
ground for objecting to its discovery.
Commission’s
discovery
Id. at 3-4. It observes that under the
requested,
that burden by making generalized
documents
broad, they are necessarily
descriptions
data collection effort is not a legitimate
rules, the Postal Service must show that specific privileges
apply to specific information
what the requested
and
and that the Postal Serviced has not carried
assertions
might contain.
of privilege based on speculations
about
Advo argues that if its interrogatories
so, since the Postal Service has provided only vague
of the documentation
that it has. Motion at 5-6.
’ Motion of ADVO. Inc. to Compel Answers to Interrogatories
Witness Raymond, filed March 9, 2000 (Motion).
ADVOIUSPS-T13-2
and 19(c) to
are
Docket No. R2000-1
-3-
In opposing Advo’s motior?, the Postal Service asserts that the origin and
purpose of witness Raymond’s
whether
data collection effort must be considered
it has lodged its overbreadth,
when deciding
undue burden, and privilege claims in good faith.
It contends that because the purpose of the ES project was to develop comprehensive
engineered
standards
for workload analysis, it collected a lot of data that is not relevant
to carrier cost estimation.
this effort concerns
negotiations,
It also explains that much of the documentation
hypothetical
of actual carrier activity.
Opposition
The Postal Service observes that the Raymond Engineered
testimony,
database that witness Raymond maintained.
has now finished “reconstituting”
additional documentation.”
project
state.
The Postal Service explains that witness
the hard copy records generated
by the ES
and possibly produce
Id. at 5.
The Postal Service says that it has now determined
that is responsive to interrogatory
objection to answering
Standards
it notes, came from an electronic
project, enabling the Postal Service to “refine its objections
documentation
at 3-4.
and the hard copy records were stored in an unordered
The data provided in witness Raymond’s
Raymond
by
work methods that may be the subject of future labor
rather than observations
was abruptly suspended,
generated
that interrogatory.
that it has little
19(c), and therefore withdraws
its
Id. at 6. With respect to interrogatory
2,
however, it asserts that cannot comply with Advo’s demand that it support its objections
by providing a full list of all reports, analyses, and all other documentation
prepared
under each contract, and discuss specific privileges that apply to specific documents.
it did, it contends,
standards
it would prematurely
If
disclose to postal labor unions the types of time
and work methods that could become the subject of future negotiations.
at 6-7. Instead, the Postal Service argues that the information
Id.
sought by interrogatory
3 Opposition of United States Postal Service to Advo Motion to Compel Answers to Interrogatories
ADVOIUSPS-T13-2
and 190 to Witness Raymond, filed March 16,200O (Opposition).
2
Docket No. R2000-1
-4.
should be provided under strict protective conditions.
the descriptions
It estimates that it could provide
and listing sought
in a reasonable time (perhaps a week) if the Postal Service were
allowed, when necessary, to list categories of similar documents (such as
hundreds of daily data collection reports transmitted from field data
collectors) rather than be required to list each individual document
produced.
Id.
Because the Postal Service has withdrawn
its objection to answering
Advo
interrogatory
19(c) to witness Raymond, Advo’s motion to compel a response to that
interrogatory
will be granted.
Advo interrogatory
Because the Postal Service has volunteered
2 if its responses
are subject to strict protective conditions,
motion to compel a response to Advo interrogatory
protective conditions
appropriate,
2. Presumably
2 will also be granted subject to the
of similar documents.
The Postal Service estimates that it
take a week to compile the information
it has already begun that effort. Therefore,
provide a response
Advo’s
attached to this ruling. The Postal Service may, where
list categories
would approximately
to answer
requested
by interrogatory
it should be feasible to
by March 29,200O.
After having seen the Postal Service’s response to interrogatory
in a better position to argue that some of the information
to carrier cost estimation
2, Advo will be
provided is sufficiently
that it should be publicly disclosed,
and the Commission
relevant
will
be in a better position to make an informed judgment as to whether protective
conditions
should continue to attach to any such information
Up to this point, the protective conditions
No. R2000-l/II
identified by Advo.
adopted in Presiding Officer’s Ruling
have been serving as a model for rulings that conclude that material
should be subjected
to strict protective conditions.
Ruling 11 requires persons
obtaining access to protected material to certify that they are eligible for access and will
Docket No. R2000-1
-5.
comply with the protective conditions
requirement
name.
prescribed.
includes a
that the person mark every page of the material obtained with that person’s
It appears that this marking requirement
impractical
The certification
is likely to become cumbersome
with respect to hard copy material that is unusually voluminous,
material documenting
the Engineered
Standards
impractical with respect to electronically
Although
the requirement
security of the protected
its impracticality
project.
and
such as the
It also appears to be
filed material.
that every page be marked adds marginally to the
material, it appears that this marginal benefit is outweighed
in many circumstances.
Accordingly,
the certification
requirements
attached to this ruling require a signature only on the cover or label of the protected
material that is returned.
The certification
that have used the protective conditions
amended
in the same manner.
requirements
accompanying
other rulings
attached to Ruling 11 as a model will be
by
-6-
Docket No. R2000-1
RULING
I.
The Motion
of ADVO,
ADVOIUSPS-T13-2
Inc. to Compel
to Interrogatories
and 19(c) to Witness Raymond, filed March 9, 2000, is
granted with respect to interrogatory
2.
Answers
19(c).
The Motion of ADVO, Inc. to Compel Answers to Interrogatories
ADVOIUSPS-T13-2
and 19(c) to Witness Raymond, filed March 9, 2000, is
granted with respect to interrogatory
2, subject to the protective conditions
attached to this ruling.
3.
Responses
to interrogatories
ADVOIUSPS-T13-2
and 19(c) to witness
Raymond shall be due on or before March 29,200O.
4.
The certification
requirements
accompanying
the protective conditions
imposed by Presiding Officer Ruling Nos. R2000-l/II,
-l/12,
-1115, -1117
are hereby modified to require that a person that has viewed protected
material sign only to cover or label on the protected
Commission’s
material returned to the
docket section.
,lza---A
1 JJL--Edward J. Glei an
Presiding Officer
Docket No. R2000-1
Page 1 of 4
P.O. Ruling R2000-1118
Attachment A
STATEMENT OF COMPLIANCE
WITH PROTECTIVE CONDITIONS
The following protective conditions limit access to materials provided in Docket
No. R2000-1 by the Postal Service in response to Presiding Officer’s Ruling No. R2000l/l8 (hereinafter, “these materials”). Individuals seeking to obtain access to such
material must agree to comply with these conditions, complete the attached
certifications, provide the completed certifications to the Commission, and serve them
upon counsel for the party submitting the confidential material.
1. Only a person who is either:
(a)
an employee of the Postal Rate Commission (including the Ofice of the
Consumer Advocate) with a need-to-know; or
(b)
a participant in Postal Rate Commission Docket No. R2000-1; or a person
employee by such participant, or acting as agent, consultant, contractor,
affiliated person, or other representative of such participant for purposes
related to the litigation of Docket No. R2000-1; shall be granted access to
these materials. However, no person involved in competitive decisionmaking for any entity that might gain competitive advantage from use of
this information shall be granted access to these materials. “Involved in
competitive decision-making”
includes consulting on marketing or
advertising strategies, pricing, product research and development, product
design, or the competitive structuring and composition of bids, offers or
proposals. It does not include rendering legal advice or performing other
services that are not directly in furtherance of activities in competition with
a person or entity having a proprietary interest in the protected material.
2. No person granted access to these materials is permitted to disseminate them in
whole or in part to any person not authorized to obtain access under these
conditions.
3. The final date of any participants
access shall be:
(a)
the date on which the Postal Rate Commission issues its recommended
decision or otherwise closes Docket No. R2000-1; or
(b)
the date on which that participant formally withdraws
No. R2000-1; or
from Docket
Docket No. R2000-1
Page 2 of 4
P.O. Ruling R2000-l/18
Attachment A
(c)
the last date on which the person who obtains access is under contract or
retained or otherwise affiliated with the Docket No. R2000-1 participant on
whose behalf that person obtains access, whichever comes first. The
participant immediately shall notify the Postal Rate Commission and
counsel for the party who provided the protected material of the
termination of any such business and consulting arrangement or retainer
or affiliation that occurs before the closing of the evidentiary record.
4. Immediately after the Commission issues its last recommended decision in
Docket No. R2000-1, a participant (and any person working on behalf of that
participant) who has obtained a copy of these materials shall certify to the
Commission:
(a)
that the copy was maintained in accordance with these conditions
others established by the Commission); and
(b)
that the copy (and any duplicates)
to the Commission.
either have been destroyed
(or
or returned
5. The duties of any persons obtaining access to these materials shall apply to
material disclosed or duplicated in writing, orally, electronically or otherwise, by
any means, format, or medium. These duties shall apply to the disclosure of
excerpts from or parts of the document, as well as to the entire document.
6. All persons who obtain access to these materials are required to protect the
document by using the same degree of care, but no less than a reasonable
degree of care, to prevent the unauthorized disclosure of the document as those
persons, in the ordinary course of business, would be expected to use to protect
their own proprietary material or trade secrets and other internal, confidential,
commercially-sensitive,
and privileged information.
7. These conditions shall apply to any revised, amended,
of materials provided in Docket No. R2000-1.
or supplemental
versions
8. The duty of nondisclosure of anyone obtaining access to these materials is
continuing, terminable only by specific order of the Commission.
9. Any Docket No. R2000-1 participant or other person seeking access to these
materials by requesting access, consents to these or such other conditions as
the Commission may approve.
Docket No. R2000-1
Page 3 of 4
P.O. Ruling R2000-1118
Attachment A
CERTIFICATION
The undersigned
represents
that:
Access to materials provided in Docket No. R2000-1 by the Postal Service in
response to Presiding Officer’s Ruling No. R2000-l/18 (hereinafter, “these materials” or
“the information”) has been authorized by the Commission.
The cover or label of the copy obtained is marked with my name.
I agree to use the information
Docket No. R2000-1.
only for purposes of analyzing matters at issue in
I certify that I have read and understand the above protective conditions and am
eligible to receive access to materials under paragraph 1 of the protective conditions. I
further agree to comply with all protective conditions and will maintain in strict
confidence these materials in accordance with all of the protective conditions set out
above.
Name
Firm
Title
Representing
Signature
Date
Docket No. R2000-1
Page 4 of 4
P.O. Ruling R2000-l/18
Attachment A
CERTIFICATION
UPON RETURN OF
PROTECTED MATERIALS
Pursuant to the Certification which I previously
regarding information provided in Docket No. R2000-1
response to Presiding Officer’s Ruling No. R2000-1118
“the information”), received on behalf of myself and/or
indicated below), I now affirm as follows:
1.
I have remained eligible to receive access to materials under paragraph 1
of the protective conditions throughout the period those materials have
been in my possession. Further, I have complied with all conditions, and
have maintained these materials in strict confidence in accordance with all
of the protective conditions set out above.
2.
I have used the information only for purposes of analyzing
issue in Docket No. R2000-1.
3.
I have returned the information to the Postal Rate Commission.
4.
I have either surrendered to the Postal Rate Commission or destroyed all
copies of the information that I obtained or that have been made from that
information.
Name
Firm
Title
Representing
Signature
Date
filed with the Commission
by the Postal Service in
(hereinafter, “these materials” or
the party which I represent (as
matters at