No. 02 C 4394 Page 3

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.

See Meco

SI JAMES B. MORAN
Senior Judge, U. S. District Court

Carel & _, 2004,


xo.» Minato Order Form (06/97)

United States District Court, Northern District of Dinois

singe MaglrateJudee James B. Moran San Aied Sage

CASE NUMBER 02 C4394 DATE 48/2004
CASE MCI WORLDCOM NETWORK SERVICES vs. ATLAS EXCAVATING, INC.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

qd)

MOTION:
MEMORANDUM OPINION AND ORDER
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im} Brief in support of motion due
(3) Oo Answer brief to motion due___- Reply to answer briefdue___.
(4) oO Ruling/Hearingon___setfor___—_at
(5) o Status hearing[held/continued to] [set for/re-set for]on__setfor___at
(6) Oo Pretrial conference(held/continued to] [set for/re-set forlon___—_—setfor__——s—sat__—t«s
(7) o Trial[set for/re-set for]on___at
(8) 0 [Bench/Jury trial] [Hearing] held/continued to__at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) (Local Rule 41.1 COFRCP41(a)(1) C1 FRCP41(a)(2).
(10) MM [Otherdocketentry}] Enter Memorandum Opinion And Order. The protective order sought by MCI

is granted in part and denied in part.

| (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge's staff.
Notified counsel by telephone. APR 0 9 2004
Docketing to mail notices,
Mait AO 450 form.

Copy to judge/magistrate judge.

IPR jhe QancliRdee
courtroom ~
LG deputy’s
initials

Date/time received in

central Clerk’s Office mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MCI WORLDCOM NETWORK SERVICES, )
Plaintiff/Counter-Defendant, }
vs. } No. 02 C 4394
ATLAS EXCAVATING, INC., } / fy
Defendant/Counter-Plaintiff. }

APp :
MEMORANDUM OPINION AND ORDER "© 9 2aqy

Plaintiff objects to four areas of discovery. They are as follows:

7. Any contacts made by MCI with Atlas Excavating, “‘Inc., XO
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

—
_


No. 02 C 4394 Page 2

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
MCtI 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

aclaim for punitive damages, but also to the issue of causation and possible pattern or practice