United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE
case comes before the Court without oral argument on Peerless
Network, Inc.'s Motion to Compel Local Access for
Discovery and for Sanctions (Doc. 55), and Local Access'
response in opposition to the motion (Doc. 60).
Access and Peerless are parties to a contract
(“Contract”) which provides, among other things,
that Peerless will furnish “Homing Tandem
Service” for Local Access (Doc. 1-1). In an amendment
to the Contract that was effective August 5, 2015, Peerless
agreed to share (exclusive of certain charges), 75% of
collected tandem access revenue it received for the delivery
of tandem access InterMTA and InterLATA traffic with Local
Access (Doc. 1-2).
Contract includes a provision stating that if Local Access
“provides written proof of a competitive offer from
another carrier for the specific service being provided under
this agreement; and (2) Peerless does not match the
competitive price being offered for this specific service,
[Local Access] will then be entitled to reroute traffic
pursuant to the alternative proposal (this right constitutes
the “Peerless Price Guarantee”) (Doc. 1-1 at
§ 3.3). On August 24, 2015, Local Access received a
competitive offer from Inteliquent, Inc. (Doc. 1 at
¶¶ 24-25). When Peerless did not match the offer,
Local Access began rerouting its traffic to Inteliquent
(Id.). Although Local Access now does business with
Inteliquent, it alleges that some of its traffic remains on
the Peerless' network (Id. at ¶ 26).
Access complains that Peerless breached the Contract and has
been unjustly enriched because, from August 5, 2015 to the
present, it has failed to provide reports, an accounting, or
compensation for traffic routed to Peerless under the
Contract (Id. at ¶ 27). Peerless has filed a
motion to dismiss Local Access' complaint (Doc. 14).
alleges that Local Access failed to disclose all of the terms
of the Inteliquent offer, and that if it had, Peerless might
have decided to match the offer (Doc. 41 at 10-11). Peerless
also claims that once it ceased to be Local Access'
exclusive provider of Homing Tandem Services, it was no
longer obligated to share 75% of the collected tandem access
revenue with Local Access (Doc. 55 at 4). But, Peerless
asserts that under § 7.2 of the Contract, it retains the
right to be the exclusive provider of transit services to
Local Access within its footprint (Id.).
instant dispute concerns requests for production and an
interrogatory Peerless propounded to Local Access. Some of
this discovery concerns “Call Detail Records”
(Id. at 10). Peerless explains that Call Detail
[A]re computerized records that provide information on calls
transferred between carriers. Among other things, [Call
Detail Records] contain telephone numbers from which the call
originated, telephone numbers to which the call terminated,
the type of traffic (jurisdiction) involved for those calls,
the volume of traffic, and which carriers transferred,
carried, or delivered the traffic.
(Id. at 12). Peerless has asked Local Access to
produce its Call Detail Records so that Peerless can
determine when, and what types of traffic Local Access
rerouted to Inteliquent or some other third party, and also
determine whether Local Access complied with the Peerless
Price Guarantee and (Xxxxx) Contract
is also attempting to discover Local Access' contracts
with any Homing Tandem Provider, communications relating to
the negotiation and execution of those contracts, and
communications between Local Access and Inteliquent
concerning the provision of Tandem Services by Inteliquent to
Local Access (Id. at 13-15). Peerless argues that
this information is relevant to determine whether Local
Access provided written proof of all the material terms of
every competitive offer it received to Peerless (Id.
addition, Peerless seeks information concerning payments made
to and from Inteliquent and other third parties for traffic
routed away from Peerless (Id. at 15-18). Peerless
contends that this information is relevant to Local
Access' compliance with the Contract and the calculation
of Local Access' damages (Id. at 17).
Peerless alleges that Local Access has not complied with the
parties' ESI Agreement because the documents it has
produced do not contain certain metadata fields (Id.