Postal Rate Commission
Submitted 8/8/2005 3:44 pm
Filing ID: 46385
Accepted 8/8/2005
PRESIDING OFFICER’S
RULING NO. R2005-1/68
UNITED STATES OF AMERICA
POSTAL RATE COMMISSION
WASHINGTON, DC 20268-0001
Postal Rate and Fee Changes
Docket No. R2005-1
PRESIDING OFFICER’S RULING
ON DAVID B. POPKIN MOTION TO COMPEL
RESPONSES TO INTERROGATORIES
(Issued August 8, 2005)
On July 12, 2005, David B. Popkin filed a motion to compel responses to ten
interrogatories or subparts thereof.1 The Postal Service objected to these discovery
requests on various grounds in a pleading filed on June 30, 2005,2 and filed an
Opposition to Mr. Popkin’s Motion on July 19.3 Each interrogatory will be considered
below in numerical sequence.
DBP/USPS-183. This interrogatory, which Mr. Popkin designated as a follow-up
to DBP/USPS-107, asks a series of questions regarding delivery of Express Mail
between two particular ZIP Codes on specified days, and how the associated
guaranteed delivery times can be ascertained from the Postal Service’s website.
The Postal Service objected on the ground that such minutiæ concerning
Express Mail are irrelevant to issues in this rate proceeding, and are unlikely to lead to
1
David B. Popkin Motion to Compel Response to Interrogatories DBP/USPS-183-184, 187-188,
190, 192 subparts d-h and l, 195-197, and 199, July 12, 2005 (Motion). On the same date, Mr. Popkin
filed a separate motion to compel responses to an additional 24 interrogatories or subparts thereof. See
Presiding Officer’s Ruling No. R2005-1/59, July 28, 2005.
2
Objection of the United States Postal Service to Interrogatories of David B. Popkin (DBP/USPS183-184, 187-188, 190, 192 (d)-(h) and (l), 195-197, 199), June 30, 2005 (Objection).
3
Opposition of the United States Postal Service to David B. Popkin Motion to Compel Responses
to Interrogatories DBP/USPS-183-184, 187-188, 190, 192 (d)-(h) and (l), 195-197, and 199, July 19, 2005
(Opposition).
Docket No. R2005-1
-2-
relevant information.4 In his Motion, Mr. Popkin asserts that the requested information
relates to the value of service of Express Mail, and appropriately seeks detailed
information to produce a responsive answer. He also invokes arguments made earlier
by Douglas F. Carlson in support of a motion to compel,5 and links the requested
information to an argument he anticipates making on brief that the Commission should
recommend that the Service amend its website to provide correct and appropriate
information regarding Express Mail, thereby enhancing its value of service.
In its Opposition, the Postal Service challenges Mr. Popkin’s explanation that he
seeks detailed information in order to produce a responsive answer, noting that he has
not identified any interrogatory for which a responsive answer was not forthcoming from
the Service, and claiming that his question attempts to evade rulings that have found
such information irrelevant. It also claims that the cited arguments from Mr. Carlson’s
motion are unpersuasive here, inasmuch as substantively identical arguments
advanced to compel a response to an earlier Carlson interrogatory seeking nationwide
data were rejected in Presiding Officer’s Ruling No. R2005-1/50. Finally, the Service
asserts that Mr. Popkin’s agenda to equip the Commission to recommend correction of
inaccuracies in the Express Mail information presented on the USPS website is
unrelated to the purposes of this omnibus rate proceeding.6
I agree with the Postal Service that compelling a response to this interrogatory
would not be justified. The Service has already produced responsive information
regarding Express Mail service commitments and related website information in its
answer to DBP/USPS-107. Mr. Popkin is free to argue how the facts already provided
by the Postal Service, in comparison with published service commitments, bear on the
value of Express Mail service, and how that conclusion should influence the rates
recommended for that service.
4
Objection at 4.
5
Motion at 2; Douglas F. Carlson Motion to Compel the United States Postal Service to Respond
to Interrogatories DFC/USPS-90-97, or, in the Alternative, to Respond to DFC/USPS-58, or, in the
Alternative, to Respond to DFC/USPS-76, July 11, 2005.
6
Opposition at 2-5.
Docket No. R2005-1
-3-
However, Mr. Popkin by his own report wishes to extract more detailed
information to document possible discrepancies between actual Express Mail service
commitments and what the USPS website displays. Mr. Carlson’s arguments regarding
the impact of service fluctuations on value lend no support to this initiative, as
Mr. Popkin’s declared focus here is on putatively inaccurate information presented to
the public, rather than on actual service performance. While the Commission is
properly concerned about the accuracy with which the Postal Service informs the public
of the features of its services, this issue is, at best, tangential to the ratemaking process.
Moreover, the effort to induce the Commission to recommend changes in the Postal
Service’s website is beyond the scope of the ratemaking process. Consequently, the
detailed information sought in DBP/USPS-183 is not germane to the ratemaking
process, and the motion will be denied as to this discovery request.
DBP/USPS-184. This interrogatory also follows up on DBP/USPS-107, and
explores interrelationships between collection box locations, changes in collection times,
and the Product Tracking System (PTS) and Collection Point Management System
(CPMS) databases. The Postal Service objected to providing the requested information
on the ground of irrelevance, asserting that it “pertain[s] to operational minutiæ and
internal operations of the Postal Service of no concern to postal ratemaking.”7
Mr. Popkin’s Motion argues that the interrogatory “attempts to evaluate the
accuracy of the database that is utilized by PTS[,]” which relates to delivery of Express
Mail, and therefore to that service’s value.8 The Service responds that the Motion fails
to articulate any basis for finding the requested information relevant to issues in this
proceeding, and that Mr. Popkin’s attempt to link his detailed questions to the value of
Express Mail service “is especially strained.”9
I agree with the Postal Service that the Motion fails to establish any convincing
nexus between the highly detailed information sought in the interrogatory and value of
7
Objection at 4.
8
Motion at 3.
9
Opposition at 5.
Docket No. R2005-1
-4-
service considerations for ratemaking purposes. As I found in Ruling No. 15, data from
information systems that monitor collection services for various mail categories may
bear on the value of those services.10 However, Mr. Popkin’s broad and detailed foray
into potential connections between collection box schedules and the PTS and CPMS
systems exceeds the bounds of reasonable inquiry regarding those systems,
particularly as a follow-up question. Therefore, the Motion shall be denied with respect
to this interrogatory.
DBP/USPS-187-188. These interrogatories are also designated as follow-ups to
DBP/USPS-107. DBP/USPS-187 asks a series of detailed questions regarding the
service and refund ramifications of Express Mail shipments that are accepted or
removed from collection boxes before or after specified service cutoff times.
DBP/USPS-188 poses another series of questions regarding the service ramifications of
Express Mail acceptance through collection boxes at post offices. The Postal Service
objected on the ground of relevance, invoking earlier rulings that have found requests
for highly specific operational details to be outside the scope of material issues in a rate
proceeding.11
In his Motion, Mr. Popkin presents an argument that is symmetrical with his
defense of DBP/USPS-183: he explains that he posed very specific questions in order
to receive answers that would be responsive to his specific concerns; he incorporates
Mr. Carlson’s arguments regarding the motion to compel responses to DFC/USPS-9097; and he reveals an intention to propose on brief that the Commission issue a report
requesting that the Postal Service furnish correct and appropriate public information
regarding Express Mail to improve its value.12 The Postal Service responds that the
“questions clearly seek a level of operational detail…that bears no material nexus to
Express Mail ratemaking.”13 The Service also argues that the cited Carlson motion is
10
Presiding Officer’s Ruling No. R2005-1/15, May 26, 2005, at 2-3.
11
Objection at 5-6.
12
Motion at 4.
13
Opposition at 6.
Docket No. R2005-1
-5-
inapplicable to this controversy, and characterizes Mr. Popkin’s declared proposal on
brief to be “a meaningless ground for asserting that these interrogatories are relevant.”14
I agree with the Postal Service that these interrogatories seek unduly detailed
operational information for a purpose that has a loose connection, at best, to the
ratemaking process. As with DBP/USPS-183, Mr. Carlson’s cited arguments are
unavailing here, because Mr. Popkin’s focus once again is on public information about
Express Mail service rather than actual service performance. And again, his purpose of
inducing the Commission to recommend changes in service information published by
the Postal Service is at most tangential to the ratemaking process. Accordingly, for the
same reasons, the motion will be denied as to this interrogatory.
DBP/USPS-190. This interrogatory is designated a follow-up to Mr. Carlson’s
interrogatory DFC/USPS-75, and asks what data elements are contained in the District
file in the CBMS database that are not contained in the National CBMS or CPMS file.
The Postal Service objected on the grounds of relevance, and that the interrogatory
constitutes improper follow-up of the Carlson interrogatory.15
In his Motion, Mr. Popkin argues that the Postal Service’s interpretation of the
purpose of Mr. Carlson’s interrogatory does not preclude him from following up on the
response for his own independent purposes.16 The Service responds that Mr. Popkin’s
Motion makes no attempt to explain the relevance of his specific question, and
reiterates its challenge to its relevance.17
The Postal Service disputes the relevance of this interrogatory either to the
value-of-service issue explored in Mr. Carlson’s interrogatories or any other matter at
issue in this proceeding, and I agree. Mr. Popkin’s position, apparently, is that the
Carlson interrogatory afforded an occasion to explore different technical issues latent in
the question, so he pursued them. However, technical curiosity alone is no assurance
14
Ibid.
15
Objection at 7-8.
16
Motion at 4.
17
Opposition at 7.
Docket No. R2005-1
-6-
that an inquiry will lead to the production of admissible evidence, which is the criterion
governing discovery requests established in section 25 of the Commission’s rules.
Lacking the tether of relevance to any issue to be decided in this case, the Motion will
be denied as to this interrogatory.
DBP/USPS-192(d)-(h), (l). This interrogatory refers to the Postal Service’s
response to Mr. Carlson’s interrogatory DFC/USPS-76. The challenged subparts (d)
through (h) ask the Service to confirm certain factual statements, such as “New York
City is probably in the center of the largest population and business center that
stretches from Boston to Washington.” DBP/USPS-192(f). Subpart (l) asks the Service
to “explain the difference between using 10001 vs. 10199 as an origin ZIP Code.” The
Service objects to subparts (d) through (h) on the ground that it has no particular
expertise on the subjects of those questions, and that Mr. Popkin is capable of
consulting a secondary source to acquire such information. Regarding subpart (l), the
Service objects on the ground of relevance, asserting that information about Express
Mail at the level of 5-digit ZIP Codes has no relevance to this proceeding.18
In his Motion, Mr. Popkin states that the challenged subparts are intended to
probe the Postal Service’s choice of ZIP Code 10001 as the source of data for its
response to DFC/USPS-90 through 97. Once again, he incorporates by reference the
contents of Mr. Carlson’s motion to compel responses to these interrogatories. He also
submits that New York City “is probably the LEAST representative post office in the
country[,]” and states that the controversial subparts of the interrogatory relate to
aspects of the Service’s choice of ZIP Codes in that area.19
The Postal Service responds that the requested information is no longer
relevant—if ever it was—because it has revised its responses to the Carlson
interrogatories by providing Express Mail data based on a sample of 10 originating ZIP
18
Objection at 8-10.
19
Motion at 5-6.
Docket No. R2005-1
-7-
Codes, rather than just 10001. Thus, the Service argues, changed circumstances have
rendered the localized information sought by Mr. Popkin completely irrelevant.20
I agree with the Postal Service that the requested information regarding the New
York City area and its relation to the rest of the nation is irrelevant in light of the updated
responses to Mr. Carlson’s interrogatory. As the Service also argues, the localized data
requested in this interrogatory would have minimal relevance to the overall value of
Express Mail service. Moreover, even if the revision had not been made, the Service’s
obligation in the discovery process to affirm facts available from independent sources
such as an almanac is dubious. Consequently, I shall not compel a response to this
interrogatory.
DBP/USPS-195. This interrogatory also refers to the Service’s response to
DFC/USPS-76, and asks for breakdowns of specific data for Express Mail deposited in
or delivered to a range of local ZIP Codes. The Postal Service objected on the grounds
of irrelevance and untimeliness, as it asserts that the interrogatory opens up a new line
of questioning and thus is not proper follow-up discovery.21
In the Motion, Mr. Popkin asserts that the requested breakdown of data covered
in the response to DFC/USPS-76 is highly significant, in that it would document his
hypothesis that some of the local ZIP Code areas receive no Express Mail service on
weekends.22 As with the contested subparts of DBP/USPS-192, the Postal Service
responds that this interrogatory’s relevance is negated by its subsequent revision of its
response to DFC/USPS-76 to include samples of more ZIP Code areas.23
As with the challenged subparts of DBP/USPS-192, this interrogatory seeks to
probe information that has since been superseded by the Postal Service’s updated
response. Moreover, the localized data requested in the interrogatory would have
20
Opposition at 7-8.
21
Objection at 10-11.
22
Motion at 6-7.
23
Opposition at 7-8.
Docket No. R2005-1
-8-
minimal relevance to the overall value of Express Mail service. Accordingly, the Motion
shall also be denied as to this interrogatory.
DBP/USPS-196. This interrogatory also refers to the Postal Service response to
DFC/USPS-76, and requests a copy of the Express Mail directory for ZIP Code 10001.
The Service objected to providing the requested information, asserting that “[t]he
Express Mail directory for a single 5-digit ZIP Code is simply irrelevant to this
proceeding.”24
In his Motion, Mr. Popkin argues that the requested directory is relevant because
it is backup data for the Service’s response to the Carlson interrogatory, and that
without it a participant would have to use the Postal Service website by entering
thousands of ZIP Codes to evaluate the reported data.25 As with Mr. Popkin’s
interrogatories 192 and 195, the Service replies that its updated response for
DFC/USPS-76 negates the relevance of the requested information.26
Because the requested directory pertains to information that is local in nature and
has since been superseded by the Postal Service’s updated response, I shall deny the
Motion as to this interrogatory on the same grounds applicable to DBP/USPS-195 and
the contested subparts of DBP/USPS-192.
DBP/USPS-197. Once again referring to the Service’s response to DFC/USPS76, this interrogatory asks for a breakdown of the responses to subparts (a) and (b) of
the interrogatory between a defined range of ZIP Codes that receive Sunday/holiday
delivery and those that do not. The Postal Service objected, asserting that “the
information it seeks is so local that it bears no relevance to postal ratemaking.”27
Mr. Popkin’s Motion claims that the requested breakdown is highly significant for
the same reason he asserts for the request in DFC/USPS-195: to document his
hypothesis that some of the included local ZIP Code areas receive no Express Mail
24
Objection at 11.
25
Motion at 7.
26
Opposition at 7-8.
27
Objection at 11-12.
Docket No. R2005-1
-9-
service on weekends.28 As with the prior interrogatory, the Postal Service reiterates that
its updated response for DFC/USPS-76 negates the relevance of the requested
information.29
The same considerations applicable to DBP/USPS-192, 195 and 196 are
dispositive here: the localized nature of the requested information is of minimal
relevance to the overall value of Express Mail service. Therefore, the Motion shall also
be denied as to this interrogatory.
DBP/USPS-199. This interrogatory refers to the Postal Service’s response to
DBP/USPS-109, and requests any information that will enable evaluation of the original
response, “such as the availability of the [alternative] service, the cost of providing each
of the services, the weight sent by each of the services, the number of pieces sent by
each of the services, or a best estimate by those that are responsible for this choice of
services.” In its response to DBP/USPS-109, the Service replied that it “does not track
this information.” It objects to providing any further response on the ground that it would
be “purely speculative, which is clearly irrelevant,” or would require a “special study,
which would clearly be unduly burdensome.”30
In his Motion, Mr. Popkin asserts that the requested information is related to the
level of weekend Express Mail service, and thus relevant to value of service
considerations. He also argues that the fact that the Postal Service does not track this
information is no reason for not providing the Service’s best estimate by those
responsible for the choice of services.31 The Postal Service replies that a further
response would necessarily be a guess, and thus would lack any proper factual
foundation.32
28
Motion at 8.
29
Opposition at 7-8.
30
Objection at 12.
31
Motion at 9.
32
Opposition at 8-9.
Docket No. R2005-1
- 10 -
I shall not compel the Postal Service to provide a response to this interrogatory.
The Service has already denied that it has any factual basis for estimating the
percentage of the described Express Mail shipments transported by the FedEx network,
commercial airplane, or surface transportation. Lacking a factual basis for the
requested estimate, the further discovery request is not likely to lead to the production
of admissible evidence. Therefore, the Motion will be denied as to this interrogatory.
RULING
The David B. Popkin Motion to Compel Response to Interrogatories DBP/USPS183-184, 187-188, 190, 192 subparts d-h and l, 195-197, and 199, filed July 12, 2005, is
denied.
George Omas
Presiding Officer