ORDER GRANTING IN PART MOTION OF TIME, INC. TO STRIKE TESTIMONY OF POSTAL SERVICE WITNESS MEREWITZ, AND DISPOSING OF DMA MOTION TO REQUIRE A WITNESS, Summary. (Issued May 30, 1984) On February 23, 1984, Time, Inc., moved to strike the testimony of Postal Service witness Merewitz concerning peak load costs. Witness Merewitz's testimony provides a theoretical justification for attributing certain clerk and mailhandler costs to classes of mail according to how much handling they undergo during peak handling periods. That testimony implements its recommended theory through the Mail Processing Cost Model (MPCM). The MPCM is a set of computerized models of mail flows and resulting labor requirements at 17 SCFs, originally developed to analyze staffing, scheduling and workload requirements at SCFs nationwide. Witness Merewitz used the MPCM to determine the labor costs that would be avoided under the assumption that mail arrives at SCFS at uniform rates throughout the day. He redistributed those costs among mail classes on the basis of data. not derived from the MPCM. USPS-T-17 at 4-6. APPENDIX This Appendix discusses in greater detail two matters: the procedural background of the present Order, and the future of the peak-load concept, and especially of the MPCM, in our rate proceedings. Procedural background. While our decision to exclude portions of the Merewitz testimony rests on its failure to comport with the foundation requirements of both Rule 31(k) (3) and the rules of evidence generally, it is necessary to explain the steps taken to attempt a cure for this state of affairs. As we have stated in the past, the striking of testimony is not a favored remedy; if striking can be avoided by removing the reasons for its objectionable character it makes sense to do So. In this case we are asked to strike testimony because a foundation for it, required by the terms of our rules and by the necessity to afford opposing parties a meaningful hearing, has never been provided. We have tried to allow that foundation to be provided nunc pro tunc, but our efforts have not been fruitful. Time's motion to strike witness Merewitz's testimony (in its entirety) was filed February 23, 1984, and answered by a number of parties; some opposed it and some favored it wholly or in part. Rather than proceeding on these pleadings alone, the Presiding Officer asked (Tr. 11/5585) the movants for a listing of "the specific information that [they considered] essential to [their] ability to properly validate and test the MPCM." This was supplied on March 1, 1984. The Postal Service subsequently filed its comprehensive opposition to the motion. The next approach tried was that of a technical conference, in the hope that informal discussion of the MPCM might permit the movants to deal knowledgeably enough with the model to protect their rights. On March 15, the Presiding Officer asked the Postal Service to designate the earliest dates on which a suitable expert on the MPCM could be ready to assist at such a conference. Presiding Officer's Ruling No. R84-1/49. On March 19, Time moved that this ruling be reconsidered or certified to the full Commission. On March 20, taking note of this request, it stated that it could not positively schedule an expert until that motion was resolved. Postal Service Response to Presiding Officer's Ruling No. R84-1/49, at 2-3. On March 27, 1984, we accepted certification of Ruling No. R84-1/49 and affirmed it. Order No. 555, March 27, 1984. On March 28, the Postal Service responded, asking that the scope of the intended conference be "more fully delineated" (Response to Commission Order No. 555 and Request for Clarification, March 28, 1984, at 2). Among other things, the Service stated that since the Postal Service may decide to present the expert as a rebuttal witness later in Id., at 3. In addition to asking for a Presiding Officer's ruling responding to this and similar concerns, the Postal Service stated that "the schedule of the appropriate expert to assist at the technical conference will allow his earliest appearance on any one of the following dates: April 17, 18, 2528, or 30, 1984. Accordingly, on April 10, 1984, the Presiding Officer issued a detailed Notice Scheduling Technical Conference, fixing the session for April 25, listing the participants, describing the subject areas to be covered, and directing that: Any issues or subject areas of interest to participants that are not clearly included within the scope of the conference outlined above should be included in a notice to the Presiding Officer, with service on Postal Service at least three working days prior to the conference. Notice Scheduling Technical Conference, at 3. On April 20, Time filed a Notice Concerning Presiding Officer's Scheduling of MPCM Technical Conference. Time stated (as it had in earlier pleadings) that, although it would participate, it believed the conference was too late to cure the problems it had complained of in its motion to strike. In addition, it stated that since the Presiding Officer had ruled that the conference would be transcribed but not made part of the record, Procedures must be established whereby any useful information elicited or data and .. Normally, when a technical conference Time Notice, at 3-4. The conference was convened as scheduled, but produced no concrete results so far as clarifying the MPCM was concerned. The proceedings were comprehensively summarized by the Presiding Officer in an Informational Notice issued on April 27. Briefly, the Postal Service stated that it could not participate unless it were determined that information provided could not become part of the evidentiary record.1 An arrangement relying on case-by . . . in response to an inquiry from the Presiding Informational Notice, at 2. case decisions by the Presiding Officer upon requests by parties to include technical conference information in the record was also not acceptable to the Service. Time and DMA stated that on these conditions the conference was of no value. The Postal Service offered to restate its position, with potential alternative procedures, and estimated that this could be done within about ten days. On May 14, the Service filed its Statement Regarding the Technical Conference on the Mail Processing Cost Model. This pleading comprised a comprehensive restatement and reaffirmation of the position taken at the conference itself, together with copies of Postal Service pleadings in previous cases expressing similar positions. On May 17, the Presiding Officer issued a Request for Clarification asking if the Postal Service's position were that no discovery under rules 25 and 26 would be appropriate, and whether its view depended on whether the technical conference expert was expected to appear as a Postal Service witness. On May 21, the Service responded, quoting portions of its May 14 statement, to the effect that discovery or stipulation offered means by which technical conference information might ultimately enter the record. It also stated, however, that in the present case, the information sought is not within the Response to Request for Clarification, at 3-4. As the Service states, the case is indeed "rapidly |