mma-motion.pdf

BEFORE THE
POSTAL RATE ComISSIoD
WASHINGTON,
D.C.
,-
SPECIAL
SER"ICES
FEES
AND CLASSIFICATIONS
Docket
1
No.
~~96-3
MAJOR MAILERS ASSOCIATION'S
OPPOSITICXN
TO UNITED STATES POSTAL SERVICE'S WOTIlON
TO STRIKE TESTIMONY OF KKA WITNESS BENT:LEY
Major
Postal
Mailers
Association
asks
Service's
Motion,
dated
to
testimony
of
pertains
the
the
Commission
November
14,
MMA witness
to
1996,
deny
the
insofar
as
Bentley.
/
fly;!t~ .i'-', ' . i:.,::
INTRODUCTION
The
witness
Postal
Bentley
reference
1 and
to
LR-2
and
and
Reference
witness
and
the
is
5).
its
is
authorizes
which
is
and
other
the
declarant
"need
to
Docket
in
not
that
or
for
LR-2
of
theyiz,"make
Lb,
References
complaint
is
not
is
sponsored
evidence.
the
motion
to
motion
that
the
Service's
~.+g f , ,;
..J
' J
:
"..
PRC-LRthat
by
in
R94-l--a
MM?+
c ,,. .r
' b
This
any
Service
strike
that
the
R94-l/63).
Docket
in
No.
law.
R94-1,
Rule
703
witnesses
be admissible
to
in
experts
to
are
admissible
some
as
Service's
to
No.
testimoni.es
Library
admissible
expert
permit
facts
and
(POR No.
motion
the
insofar
identical
unsupportable
Evidence
The
not
in
denied
have
w!!ly@~.~-
Commission
PRC-LR-1
filed
Like
purpose
p.
to
stricken
upon"
substantively
Commission
data
rely
therefore
Service
motion
wants
others
(Motion,
Library
motion
,I.
Service
it
not
other
base
the
base
Federal
their
opinion
"[T]he
on reliable
because
Rules
opinions
evidence."
reason..."
1
of
current
of
the
(2 Graham,
of
on
rule's
hearsay
absence
Of
Handbook
of
.'-
-1
,-
Federal
Evidence
relaxed
standards
like
this
5703.1
of
the
Commission
"irrelevant,,
(4th
Ed.
1996)).
And
Administrative
need
not
immaterial,
or
under
Procedure
exclude
unduly
the
more
Act,
evidence
agencies
unless
repetitious"
it
i-s
(5 U.S.C.
§556(d)).
In
addition,
Bentley
but
is
is
not
using
only.
Even
that
approach,
with
Commission
Bentley's
There
use,
motions
another
submitted
strike
in
November
stand.
the
or
is
no
exhibit
The
business
There
refusal
to
that
Service
the
Commission
days
valid
deny
comply
Mr.
can
refute
has
the
(p.
materials
before
Service's
before
excuse
Special
1,
are
the
motion
the
51.C):
to
"All
be
sczheduled
is
Bentley
Mr.
for
Postal
Commission's
provide
14 days
least
witness."
four
14,
a "second
the
to
The
proceeding
testimony
at
reason
untimely.
this
writing
of
appearance
that
LR-2,
purposes
is
believes
inaccurate,
and
illustrative
notes,
Mr.
file.
is
for
belief,
PRC-LR-1
Service's
Service
important
It
Practice
to
to
of
Bentley
information
Service
Service's
for
the
the
are
motion.
of
Mr.
If
the
Postal
accuracy
by
orders.
is
Service's
the
necessitated
the
the
references
limited
illustration
directed
Rules
to
library
by providing
them
to
testifying
those
best"
the
contrary
dated
is
due
Service's
to
take
delay.
DISCUSSION
A.
The
that
,.._
An Expert's
Opinion
Testimony
Is Admissible
Even If It Relies
Upon Materials
That Are
Not Themselves
Admissible
In Evidence
Postal
an expert's
sources.
Nor
Service
testimony
could
the
does
not
offer
cannot
Service
rely
do
so,
any
upon
since
citations
for
its
Viai
non-evidentiary
all
authority
is
to
2
--
--
-
the
contrary.
_-
The Federal
of
Evidence
opinions
have
upon
evidence.
Rule
Rules.
For
permitted
facts
Rule
or
703
over
twenty
expert
data
the
to
base
witnesses
that
provides
years,
are
(56
not
F.R.D.
Federal
their
themselves
183,
Rules
admissible
283;
in
28 U.S.C.A.
703):
BASES OF OPINION
TESTIMONY BY EXPERTS.
The facts
or
particular
case upon which
an expert
bases
an opinion
inference
may be those
perceived
by or made kTlOWn to
or before
the hearing.
If of a type reasonably
relied
upon
in the particular
field
in forming
opinions
or
upon the subject,
the facts
or data need not be
in evidence
(Emphasis
supplied).
by experts
inferences
admissible
The
data
in
or
him at
Advisory
Committee's
(Id.)
Note
emphasizes
that:
In this
respect
the rule
is designed
to broaden
the basis
for
expert
opinions
beyond
that
current
in many
jurisdictions
and to bring
the judicial
practj.ce
in line
with
the practice
of the experts
themselves
when not
in
court.
The
based
result
not
some
703
annotations
to
into
error.
Federal
authorizing
that
F.2d
is
not
evidence
absence
(7th
of
Nonetheless
---
of
"and
of
Handbook
of
have
witnesses
itself
admissible
Rule
case
Cir.
courts
to
Evidence
other
the
be
facts
declarant
Federal
that
or
for
Evidence
to
a defective
survey
the
of
Court
__
v.
the
There,
1980).
rely
in
Baumholser
is
uniformly
interpreted
upon
nonrecord
evidence
(See
703).
was
Appeals
3
-..
Rules
1995)
expert
28 U.S.C.A.
illustrative
550
the
(2 Graham,
Decisions.
as
of
testimony
1996)).
information
One
,-
Ed.
expert
Federal
Callaghan
because
reason...
(4th
"allows
703
Boardman
admissible
Court
630
Rule
(Rothstein,
(Clark
other
s703.1
Rule
that
on hearsay...."
290.6-290.7
are
is
Amax Coal
lower
held,
ruled
Company,
court's
admission
on appeal,
that
to
an expert
be
the
could
,,-.
the
properly
testify
inadmissible
said
(630
about
survey.
F.2d
at
his
conclusion
Citing
Rule
that
703,
the
was
Court
based
of
upon
Appeals
553):
Barnes
was testifying
as an expert
and as such was entitled
to rely
on hearsay
evidence
to support
his
opinion,
so long
as that
evidence
was of a type
reasonably
relied
upon by
other
experts
in the field.
That
evidence
need not be
independently
admissible.
The
Seventh
Standard
denied,
Oil
356
Circuit
Company
U.S.
v.
975
(Id.)
quoted
Moore,
(1958),
251
a Ninth
F.2d
188,
Circuit
222
decision,
(3.957),
cert.
stating:
It
is common practice
for
a prospective
witness,
in
preparing
himself
to express
an expert
opinion,
to pursue
pretrial
studies
and investigations
of one kind
or another.
Frequently,
the information
so gained
is hearsay
or double
hearsay....This,
however,
does not necessarily
stand
in the
way of receiving
such expert
opinion
in evidence.
The Administrative
administrative
more
Law
Procedure
agencies
relaxed
528.01
that
(Matthew
"apply
those
used
Bender)).
Act.
rules
by
It
of
courts"
Thus
(Id.
is
hornbook
evidence
(4
Stein,
at
s26.01):
law
that
considerably
Administrative
Even before
enactment
of the Administrative
Procedure
in a long
line
of cases,
established
the Supreme
Court,
Act,
the general
rule
that
administrative
agencies
are not to be
One of the direct
bound by formal
rules
of evidence.
results
of this
decision
was the elimination
of the usual
This
rule
which
declares
hearsay
evidence
inadmissible.
view
has been statutorily
adopted
in the Administrative
Procedure
Act which
provides
for
the admission
of all
evidence
which
is not "irrelevant,
immaterial,
or unduly
repetitious"
(citing
5 U.S.C.
§556(d)
and other
authorities).
Whether
judged
relaxed"
standards
Bentley's
opinion
upon
the
Commission's
by
for
the
standards
for
administrative
testimony
library
courts
agencies,
would
be
references.
.r-
4
admissible
or
the
“more
MMA witness
even
if
was
based
OG59lb
B.
Mr. Bentley's
Testimony
Is Not Dependent
Upon the Commission's
Workpaper,
Which Is
-Only
For Illustrative
Purposes
,-
A second
that
Mr.
reason
Bentley's
LR-2.
"The
oppose
the
Postal
of
of
attributing
city
substantiate
Mr.
to
disclosing
the
Service's
predicated
proposal
carrier
his
Postal
not
is
Service's
using
the
my testimony,"
without
consequences
upon
Bentley
position,
costs"
Mr.
Bentley
PRC-LR-1
new rates
(Test.,
p.
his
to
and
the
methodology
states
and
"is
showing
Commission-approved
is
states,
establish
information
delivery
motion
for
1).
To
opinion
that
1.
The
a:Ll
2.
If the Commission
does not insist
upon the use of
consistent
methodologies,
there
will
be difficulties
comparing
financial
data
from one proceeding
to
another,
from one year
to another,
or from
Commi.ssion
opinions
to CRA reports
(Test.,
p. 4);
Commission
should
cases
(Test.,
p.
use
2);
consistent
methodologies
in
3.
The importance
of using
consistent
methodologies
is
underscored
by comparing
the dollar
amount
of overhead
costs
assigned
by the Service's
preferred
methodology,
as compared
with
the Commission-approved
methodology
(Test.,
pp. 4-7);
4.
The Commission
should
adopt
a regulation
in all
future
proceedings,
Postal
Service,
information
showing
its
costs
under
the
approved
methodology
(Test.,
pp. 7-8);
5.
The Commission
should
insist
upon full
disclosure
in
this
proceeding
in order
to forestall
the Service
from
filing
future
rate
and classification
requests
with
inadequate
information
(Test.
pp. 2-3).
Before
LR-2,
the
Mr.
illustrated
Docket
library
/-
denying
testimony
purpose
classifications
and
for
testimony
Commission
Bentley
point
No.
R94-1
(3)
cost
references,
be
had
extended
issued
drafted
by using
numbers
MMA asked
allow
Library
testimony
After
data.
"to
its
that
it
5
Reference
in
derived
which
from
the
Commission
the
date
to
requiring
the
to provide
Commission-
for
incorporate
PRC-LR-1
he
outmoded
issued
filing
the
those
its
1995
cost
in
,/-
information
made
PRC-LR-2.
(POR No.
Mr.
and
that
similar
LR-2
"it
Mr.
data
would
to
(Test.,
p.
Mr.
seek
use
purport
to
On the
that
the
have
record
that
the
Service
refused
that
for
to
a Postal
Service
information--and
the
after
access"
by
Postal
basis
say
contrary,
to
on the
such
of
PRC-LR-1
Mr.
of
carrier
is
"I
the
am thus
calculation"'
LR-2
Bentley's
choosing
data
costs
are
is
for
that
(Id.).
huge..."
from
the
attribution
of
Service
Cannot
Object
and LR-2
of PRC-LR-1
To Hr.
Bentley's
apparent
the
thus
for
or
is
not
is
conclusi.on
a methodology
delivery
true
and
whether
and
No.
the
only.
consequences
conclusion
C.
not
helpful
a second-best
city
used,
been
noted
purposes
apportioning
Docket
have
for
Bentley's
dollar
This
and
4).
illustrative
"the
References...PRC-LR-1
correct.
"presented
request
compelled
does
are
Bentley
Commission's
are
testimony
calculations
witness,"
Library
MC96-3115).
Bentley's
PRC-LR-1
noting
available...in
PRC-LR-I.
and
LR-2
postal
data
costs
R94-1.
The
Use
As A "Second-Best"
Source When That Is Necessitated
By the
Service's
Withholding
of Data That the
Commission
Has Ordered
the Service
To Prcm
In
any
Commission
to
rely
event,
orders
upon
Service
'*It
.-
(Test.,
is
in
PRC-LR-1
should
disentangle
to
is
not
the
the
provide
PRC-LR-1
calculation"
that
it
and
p.
Postal
Service's
data
LR-2
that
to
best
position"
and
LR-2
approximate
left
to
the
parties
of
the
Postal
effect
provide
(Order
6
required
or
to
Mr.
basis
Commission
the
be
has
a "second-best
as
"[T]he
4).
refusal
found
the
1134,
Bentley
for
that
cost
p.
obey
the
the
information
4)
the
Commission
Service's
proposed
and
that
to
changes
in
to
,-
established
proposed
has
changes
ordered
Service
the
has
orders..."
object
that
attribution
to
the
Rules
of
fees"
Service
failed
to
(Order
No.
Mr.
that
[these]
1134,
p.16).
The
employment
conduct
of
has
case
12).
of
The
Commission
but
lawful
Postal
its
"the
Commission
Service
a "second-best"
cannot
approach
necessitated.'
Was Filed
After
The
In the Commission's
Excuse For the Delay!
motion
this
effects
information,
with
Service's
for
p.
comply
own
Practice
the
1126,
supply
The Service's
Motion
Deadline
Established
Rules,
With No Valid
Postal
from
(Order
to
Bentley's
Service's
D.
The
in
methods
is
untimely.
(p.1
§l.C),
In
the
its
Spec:ial
Commission
specified:
1.. EVIDENCE
C.
Motions
to strike
are requests
Motions
to Strike.
for
extraordinary
relief
and are not substitutes
for
briefs
or rebuttal
evidence.
All
motions
to strike
testimony
or exhibit
materials
are to be submitted
in
writing
at least
14 days before
the scheduled
appearance
of the witness...
(2d emphasis
suppli.ed).
The
Service's
motion
is
dated
Thursday,
November
14.,
which
is
' The Service's
failure
to produce
the requested
which
would
prove
or disprove
the accuracy
of PRCinformation,
LR-1 and LR-2,
justifies
a presumption
that
PRC-LR-1
and LR-2 are
correct
and are an accurate
update
of the Commission's
Docket
No.
"It
is generally
held
that,
R94-1
cost
attribution
methodology.
.possesses
positive
and complete
knowledge
where
[one]
party..
or has peculiar
knowledge
or
concerning
the existence
of facts...
control
of evidence
of such matters,
the burden
rests
on him to
produce
the evidence,
the negative
averment
being
taken
as true
unless
disproved
by the party
having
such knowledge
or control."
Evidence
$113 (1964)(citations
omitted).
"In
the
31A C.J.S.,
the failure
or refusal
of a party
to
absence
of explanation,
produce
evidence
may create
an adverse
inference
where
such
evidence
is within
his
knowledge,
and where,
the courts
have
declared,
the evidence
which
the party
fails
or refuses
to
is not equally
accessible
produce
is within
his
power
to produce,
and is such that
he would
naturally
produce
it
to his
opponent,
Id. at $156(l)(citations
omitted).
if
it were favorable
to him."
Accord,
2 Wigmore
on Evidence
§§285-91
(Chadbourne
Rev.
1979);
Jones
on Evidence
§3:91
(1972).
7
only
1-
four
business
November
day
(The
19.
to
days
notify
Service
1,
pp.
is
no valid
ago,
on
September
his
response
to
use
the
acknowledged
detailed
calculations"
apportionment
of
"accept[ed]
the
until
about
excuse
30,
of
its
for
Mr.
PRC-LR-1
Service's
Bentley
Bentley
is
due
mid-day
testify
on the
See
motion.
to
on
following
USE'S'
date
stamp
l-2.)
There
explaining
Mr.
waited
MMA counsel
on Attachment
weeks
before
that
costs
Service's
Bentley
and
First
that
the
filed
his
And
of
Interrogatories,
Set
he had
"not
the
Service
on October
attempted
and
representation"
make
about
that
he had
in
25,
in
Mr.
to
requested
Six
testimony,
LR-2.
(USPS/YMA-6(c))
Commission's
tardiness.
PRC-LR-1
the
the
simply
and
LR-2
(USPS-MMA-8(a)).*
The
its
Postal
Service's
is
sufficient
reason
to
deny
motion.
FOR THE FOREGOING
Service's
to
tardiness
Motion
MMA witness
to
REASONS,
Strike,
Bentley's
MMA asks
dated
November
that
14,
the
E'ostal
1996,
be denied
as
testimony.
Nineteenth
St.
N.W.
Suite
400
Washington,
DC 20036
Phone:
(202)
466-8260
November
-.
18,
Counsel
1996
for
MMA
elaborated
these
points
in his
2 Although
Mr. Bentley
November
7 response
to the Service's
Second
Set of
Interrogatories,
the Service
did not need to await
these
in order
to file
its
motion
(especially
since
it had filed
a similar
motion
to strike
Mr. Bentley's
testimony
that
relied
upon a
similar
PRC workpaper
in Docket
No. R94-1).
8
CERTIFICATE
OF SERVICE
_-
I hereby
certify
that
I have this
day served
the foregoing
document
(1) upon the U.S.
Postal
Service
by facsimile
(transmitted
at 11:30
a.m.
)(2)
upon the Office
of the Consumer
Advocate
by hand delivery
and (3) upon the other
parties
by
First-Class
Mail.
November
18,
1996
,-
ATTACHMENT 1
TO MMA'S RESPONSE TO USPS' MOTION
TO STRIKE TESTIMONY OF MMA WITNESS BENTLEY
(USPS Facsimile
to MMA Counsel,
Dated November
15, 1996, pages l-2)
NOV 15 ‘96
ll:lZRfl
USPS LAW DEPRRTflENT
FAX COVER SHEET
TO:
Dick
Jeff
FAX NO.:
(202)
293~+-97
PRONE NO. :
(202)
466-8260
NO. OF PAGES
(including
this
RE:
Littell
Plummcr
page):
8
MC96-3
MESSAGE:
FROM:
Susan M. Duchek
Attorney
United States Postal Service
475 L'Enfant
Plaza West, S.W.
Washington,
D.C. 20260-1137
(202) 268-2990;
fax -5402
.,
.,
NO\, 15 ‘96
11: 1ZFlFl LISPS LRW DEPARTMENT
BEFORETHE
POSTAL RATE COMMISSION
WASHINGTON, D.C. 20266-0001
SPECIAL SERVICES REFORM, 1995
Docket No MC96-3
UNITED STATES POSTAL SERVICE
MOTION TO STRIKE TESTIMONY OF WITNESSES
BENTLEY AND THOMPSON,
OR, IN THE ALTERNATIVE, FOR PRODUCTION
OF A COMMISSION WITNESS
(November 14, 1996)
On September
references,
20, 1996, the Commission gave notice that it had placed two library
PRC LR-1 and I-R-2, in the Docket Section for public use,. According
Commission,
these workpapers
Commission’s
to the
provided “cost information described in the
Order No. 1134.” which was also issued on September 20. 1996. Notice
of Filing of Workpapers
(September
20, 1996).’
In Order No. 1134, the Commission
indicated that the two library references were produced pursuant to the Commission’s
instruction to its staff “to prepare documents showing the base year 1995 calculation
the direct and indirect city carrier costs using the established methodology
of
of single
subclass stops,” and “showing the base year costs attributed to the classes and service
using approved
methods, and the established test year attributions employing,
to the
extent possible, the roll-forward procedure used by Postal Service witness Patelunas.”
Order No. 1134 at 16
Following issuance of the two Commission library references, various parties to this
proceeding
have made reference to, and relied upon, those library references
’ The Commission revised these library references on September
Notice of Filing of Revised Workpapers (September 30, 1996).
in written
30, 1996