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AT & T v. Public Service Commission
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1992 Term ____________ No. 21110 ____________ AT&T COMMUNICATIONS OF WEST VIRGINIA, INC., Appellant v. THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Appellee, WEST VIRGINIA CELLULAR TELEPHONE CORPORATION, Intervenor CONSUMER ADVOCATE OF THE PUBLIC SERVICE COMMISSION, Intervenor ____________________________________________________________ Appeal from the Public Service Commission of West Virginia PSC Case No. 89-596-T-P et al. REMANDED ____________________________________________________________ Submitted: September 23, 1992 Filed: October 22, 1992 Mark A. Keffer, Esquire Fairfax, Virginia Attorney for the Appellant Steven Hamula, Esquire Charleston, West Virginia Attorney for the Appellee Robert R. Rodecker, Esquire McDonald & Rodecker Charleston, West Virginia Attorney for West Virginia Cellular Telephone Corporation Helen M. Hall, Esquire Washington, D.C. Attorney for U. S. Sprint JUSTICE NEELY delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. "Issuance of a broad protective order, based upon the assertion of a blanket privilege against discovery, without Robert Lopardo, Esquire Washington, D.C. Attorney for MCI Telecommunications, Corp. David K. Hall, Esquire Charleston, West Virginia Attorney for C & P Telephone Company Terry D. Blackwood, Esquire Charleston, West Virginia Attorney for Consumer Advocate of the Public Service Commission

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scrutiny of each proposed area of inquiry and without giving full consideration to a more narrowly drawn order constitutes abuse of discretion under West Virginia Rule of Civil Procedure 26(c)." Syl. pt. 7, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988). 2. In order to obtain a protective order from the Public Service Commission to prevent the disclosure of annual report information, a utility must make a credible showing that the information is a "trade secret" as described in W.Va. Code, 29B-1-4(1). Neely, J.: We are faced with a dispute between telephone companies who do business in West Virginia and the Public Service Commission (PSC). The PSC requires all utilities doing business in the State to file annual reports; the companies are willing to file annual reports so long as their competitors do not have access to the information contained within the reports. AT&T Communications of West Virginia, Inc. (AT&T) petitioned the PSC for a protective order covering all information in its annual report. We believe AT&T must be more specific in its request, and therefore remand the case to the Public Service Commission for further proceedings. It seems that the real issue in this case is not the status of the law surrounding privilege, but something much more fundamental: the role of the Public Service Commission in regulating competitive industries. AT&T, U.S. Sprint, and MCI contend that they are in a competitive industry; thus there is no need for a regulatory body to oversee the industry and impose rules that do nothing but hinder competition. The PSC agreed with this position when it "streamlined" its regulation of the long-distance industry.See footnote 1 Under the Legislature's grant of authority to the Public Service Commission in W.Va. Code 29-2-9 [1991],See footnote 2 the PSC may compel all organizations subject to its regulation to prepare such reports as the PSC demands. Furthermore, the PSC is required to preserve these reports and to publish an annual statistical tabulation of the information provided. The PSC is not required to print every word of the reports, but the PSC has the authority to print every word if it so desires. The PSC applies the same standards that the courts apply in determining what information should be covered by protective orders. Appalachian Power Co., PSC Case No. 79-140-E-42T; C&P Telephone Co., PSC Case No. 84-747T-42T. That standard is embodied in Rule 26(c), WVRCP: (c) Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . .(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way. [Emphasis added.] We have required those seeking protective orders to make more than a mere assertion of privilege before a protective order will be granted: Issuance of a broad protective order, based upon the assertion of a blanket privilege against discovery, without scrutiny of each proposed area of inquiry and without giving full consideration to a more narrowly drawn order constitutes abuse of discretion under West Virginia Rule of Civil Procedure 26(c). Syl. pt. 7, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988). AT&T's blanket assertion of privilege is far too broad to stand without a more specific showing as to the need for the protective order. The specific showing that would justify a protective order is adumbrated by our standard interpretation of Rule 26(c):

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"The rule [Rule 26(c)] requires that good cause be shown for a protective order. This puts the burden on the party seeking relief to show some plainly adequate reason therefor. The courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements, in order to establish good cause." 8 C. Wright and A. Miller, Federal Practice and Procedure: Civil

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