Civil Subpoena Compliance


CIVIL SUBPOENA POLICY


1. POLICY – GENERALLY; APPLICABILITY:


1.1.
Scope of Policy – Dipvtel Entities; Certain Third Party Civil Subpoenas: This policy applies for the following entities (collectively “Dipvtel”) and governs only the processing of subpoenas, court orders, depositions by written questions, or other legal process issued by litigants in civil litigation matters to which Dipvtel is a non-party and in which customer related information concerning 1 or more telephone numbers is sought from Dipvtel (“Third Party
Civil Subpoenas or ‘TPCS’”):

  • Dipvtel


This policy is presented in light of Dipvtel’s unique role as a provider of
wholesale communications services. Given the function performed by Dipvtel (and accordingly, the relatively minimal useful records we will have, as contrasted with the records of retail sevice providers) and in the interest of orderly, efficient interactions with TPCS issuers, this policy is intended to proactively inform such parties about Dipvtel, the limited scope of desirable information that we may possess, and how to request the same. As such, it is further intended to avoid time wasted and costs incurred by civil litigants (seeking records that we do not possess, or which will not meet expectations where
actually in our possession), as well as comparable time and expense to Dipvtel.

Accordingly, all parties contemplating issuance of a TPCS to Dipvtel are strongly encouraged to: (1) fully review this policy, (2) understand how Dipvtel differs from retail service providers, and (3) limit the scope of their TPCS consistent with this policy. Doing so will yield the most positive course for interacting with Dipvtel.

Specifically, for parties seeking call detail records (or “tolls” or “incoming and outgoing messages”), attention is directed to section 2, and more generally, all parties should refer to section 7.3, for a thorough listing of records that should NOT be requested from Dipvtel as a provider of wholesale services.

1.2 Service; Non-Consent; Non-Waiver: Dipvtel does not consent to service of a TPCS by any means other than consistent with this policy (see Sec. 3.2). Further, Dipvtel does not consent to service of any non-TPCS pursuant to this policy. Receipt of a TPCS by any email address or at any fax number will not constitute service under this policy or any waiver of this policy. Communication from Dipvtel to a TPCS issuer concerning attempted service inconsistent with this policy (e.g, via email or fax) or to affirm the need to comply with this policy concerning service will not constitute service under this policy or any waiver of this Sec. 1.2 or Sec. 3. Service must occur per Sec. 3.2.


1.3
Defects: Dipvtel will presume the invalidity of and object to any TPCS that: (a) lack legibility, signatories, citation to or evidence of issuing authority, issuance dates, compliance dates, or processing fees, (b) are untimely served, or (c) present other material defects.


1.4
Customer Proprietary Network Information (“CPNI”): In compliance with FCC Orders concerning CPNI and Dipvtel’s CPNI Policy, Dipvtel will not release customer identifying or customer account information without the express permission from our customer, except when required by law. Accordingly, civil litigants seeking such information must serve a valid TPCS (see Sec. 3 “Service”), compensate Dipvtel for reasonable costs (see Sec. 5 “Processing Fees”), and as applicable, provide a protective order (see Sec. 2.2).



2. CALL DETAIL RECORDS (“CDRs”) AND PROTECTIVE ORDER REQUIREMENT:


2.1
Dipvtel is a Secondary Source of CDRs; Our Wholesale Customers are Primary:
Dipvtel generally is an
inferior source of call detail records (“CDRs,” which may also commonly be referenced in a TPCS as “tolls” or “incoming and outgoing calls”). 

Typically, civil litigants will instead want to obtain CDRs through the subsequent issuance of another subpoena to the other service provider(s) to whom we are providing wholesale communications services (“OSPs”) involving target number(s) specified in a TPCS issued to Dipvtel and requesting customer identifying information from our company. As will be further explained in this Sec. 2.1, as compared to Dipvtel, OSPs will be a superior source of CDRs.
Optimally, a TPCS issued to Dipvtel will seek
only customer identifying information from Dipvtel, and Dipvtel’s answer will then enable pursuing CDRs through the OSP(s) identified by Dipvtel.

Essentially, Dipvtel delivers traffic between the networks of OSPs involving telephone numbers either: (a) allocated to Dipvtel and released to an OSP, or else (b) already in use by an OSP (who “ported” the number to our network). In either case, the number is being used by the OSP. This means that: (a) the OSP will necessarily have the actual relationship with the end user subscriber (i.e., with the calling/called party using a number to initiate/receive calls -- Dipvtel will have no relationship with or information about an OSP’s end user subscriber), and (b) the OSP
will have CDRs for
all calls involving the number in service with the OSP.

Comparatively, at best, any CDRs which are in Dipvtel’s systems or which may be recoverable from our archived data will represent an incomplete aggregation of the entire universe of CDRs pertaining to a target number (we only carry traffic that an OSP wants delivered by Dipvtel and our services are typically fractional for a number – other wholesale providers offer services comparable to Dipvtel). Further, the CDRs in Dipvtel’s possession will also generally be redundant (the relevant OSP will have counterpart CDRs for each call that crossed our network, as well as CDRs for all other calls which originated from or terminated to that OSP’s network, but which did not cross our
network).

As such, civil litigants will generally want to issue an initial TPCS to Dipvtel only for the purpose of identifying our wholesale customer (the OSP), and thereafter, pursue CDRs through a further subpoena to the OSP so identified (who will have other end user related information, including the end user subscriber’s identity, billing/payment, and other numbers in use by the end user subscriber).

See also Sec. 5.5 and 5.6 concerning ICB Fees and archived CDRs.


2.2
Protective Order: Where Dipvtel must produce CDRs, such production will only occur pursuant a protective order issued by the court having jurisdiction in the case in which the TPCS is issued. Such orders must limit access to and use of any produced CDRs to the parties in that case and only for purposes of such litigation (and appeal of same). Where CDRs are sought from Dipvtel (despite the conditions summarized in Sec. 2.1), the TPCS issuer must obtain such a protective order in a form agreed upon by all parties to the litigation (optimally, using a form order from the issuing court) and provide the same for Dipvtel’s review.


2.3
Processing Fees; Objection: Dipvtel will conditionally object to a TPCS requesting CDRs. The communication which presents Dipvtel’s objection will also provide an estimate for a Processing Fee (see Sec. 5.5), among other conditions related to the objection (see Sec. 7).


2.4
Exception – Back Tracing (or Tracing Back) of Calls: Back tracing is the exceptional, isolated circumstance in which Dipvtel’s CDRs may contain some unique information. If you are back tracing a call based upon the CDR of a “downstream” provider, refer to Section 9.


 

3. SERVICE OF THIRD PARTY CIVIL SUBPOENAS (“TPCS”):


3.1
Non-Consent; Non-Waiver: Dipvtel does not consent to email or facsimile service of TPCS. See Sec. 1.2.


3.2
Address for Service; Registered Agent Service; Inclusion of Processing Fees: All TPCS must name the relevant Dipvtel entity (see Sec. 1.1) and tender the applicable Processing Fee (see Sec. 5) for service only at the following address (Dipvtel consents to service via US Mail, overnight delivery, or courier at this address), or otherwise upon our registered agent:
Dipvtel Legal Department
ATTN: Custodian of Records
Civil Subpoena Compliance
400 N Tampa St
Tampa, FL 33602


3.3
Typical Requests for Customer Identifying Information: Our customers are typically OSPs to whom we provide wholesale services (see Sec. 2.1). As such, we will have no relationship with or information about the OSP’s end user subscribers. A typical TPCS will request only customer identifying information about one or more numbers for a specified interval of time, and will result in our identification of the OSP(s) and our provision of their contact information, per our records. Dipvtel may be wholly unable to respond to a TPCS that presents a request with reference to
details other than a telephone number (e.g., referencing an individual or business name, a service address, or an IP address – all of which will be unknown to Dipvtel – relative to a target number may preclude our ability to be responsive). As specified in Sec. 2.1, we are generally not a useful source of CDRs. We also incur significant costs where production of CDRs is required (see Sec. 5.5 and 5.6). Accordingly, we generally will object to TPCS seeking CDRs. Moreover, as a wholesale provider, we will object to a range of items that are itemized in Sec. 7.3.


3.4
Email Address for Production Response: in the interest of timely correspondence and processing, the TPCS will specify an email address to which production response will be directed.


 

4. DISCLOSURE NOTICES TO CUSTOMERS AND RESPONSE TIME:


4.1
Contractual Obligations for Disclosure Notices to Customers: Parties seeking to effect service of a TPCS upon Dipvtel are hereby expressly cautioned that Dipvtel is generally required by contract to: (a) provide or attempt to provide notice of a TPCS to our wholesale customer(s) whose information is sought, and (b) await the tolling of the applicable notice interval (notice intervals vary by contract) or waiver of the same.


4.2
Estimated Processing Interval – 20 Business Days: In order to fulfill our disclosure notice obligations (see Sec. 4.1), Dipvtel typically cannot produce responsive customer information until approximately 20 business daysafter receipt of a valid TPCS and applicable Processing Fees. Dipvtel will endeavor to promptly notify of the need to extend the compliance date of a TPCS in order to allow Dipvtel to fulfill such obligations; provided, however, that Dipvtel reasonably expects TPCS issuers to review this policy and issue their TPCS with recognition of the same, thereby avoiding unnecessary extensions and interactions concerning the same.


4.3
Disclosure Notices to Customers: Absent a contract-specified method of notice, Dipvtel may attempt to fulfill its disclosure obligations to customers via telephone, email, U.S. mail, or other reasonable means using contact information on file with Dipvtel. Dipvtel customers objecting to the disclosure of their information to the TPCS issuer should consult with an attorney. Absent receipt of a protective order or similar protection issued by the court having jurisdiction over the matter, Dipvtel will disclose the information requested in a TPCS on or after the date on which Dipvtel’s compliance is due, any applicable customer notice interval has lapsed, and other requirements of this Policy are satisfied. Other disclosure objections communicated to Dipvtel will be disregarded.

5. PROCESSING FEES FOR SUBPOENA COMPLIANCE:


5.1
Processing Fees, Generally: To offset undue burden and recover expenses arising from TPCS compliance (as a nonparty to litigation), Dipvtel may require two types of Processing Fees: (1) a Standard Processing Fee and (2) an Individual Case Basis Processing Fee.


5.2
Payment in Advance; by Check ONLY: Dipvtel may object and condition TPCS processing upon receipt of an applicable Processing Fee, including wait 10 business days for non-certified funds to clear. Certified funds or law firm trust account checks may allow for expedited processing. Credit card or wire transfer arrangements are not available; rather, checks are to be made payable to “Dipvtel.”


5.3
Extension for Processing Fee: An extension may be required where the applicable Processing Fee is tendered only after service of the TPCS or where the compliance date for a TPCS seeking for customer identifying information is less than 10 business days after receipt of the Processing Fee.

5.4 Standard Processing Fee: The Standard Processing Fee covers all costs associated with processing of and compliance with a TPCS seeking customer identifying information, including the following:

  • Review of the TPCS to ensure the same constitutes a valid legal requirement for our response;
  • Review of the underlying proceedings and/or applicable law, as necessary;
  • Target number research queries in our systems (of which there are several, including legacy systems fromacquired companies which are non-integrated or for which data is archived and not readily accessible);
  • Disclosure notice correspondence with our wholesale customer (to fulfill contractual obligations);
  • The provision of a substantive response (as well as (1) any interim communications necessary concerning defects in or objections to the TPCS (see also Sec. 7), requests for clarification, supplemental information, or modification of the scope, or to agree to an extension, and/or (2) subsequent clarifying correspondence or teleconferences (frequently necessary for litigants unfamiliar with Dipvtel’s unique role in the industry);
  • Any applicable copying or mailing expenses.

 

The fee is tiered, based upon the quantity of target numbers for which customer identifying information is sought:

  • Tier 1 (1 or 2 numbers): $50.00
  • Tier 2 (3 to 5 numbers): $75.00
  • Tier 3 (6 to 9 numbers): $100.00
  • Tier 4 (10+ numbers): See Sec. 5.5 - ICB Fee.


Dipvtel provides wholesale communications services on a national basis. This policy recognizes that litigation may arise in a jurisdiction which prohibits or otherwise caps the amount of the Standard Processing Fee; however, as a nonparty to the proceedings, Dipvtel may be unaware of the same. The TPCS issuer
must affirmatively state any such prohibition or limitation in its transmittal letter, including citing to specific legal authority.

5.5 Individual Case Basis Processing Fee (“ICB Fee”): an ICB Fee will be necessary for any TPCS for which Dipvtel determines that compliance will impose a greater undue burden and expense, including, without limitation, a TPCS that will require extensive research and/or voluminous production (e.g., any TPCS seeking CDRs or a Tier 4 request [see Sec. 5.4 above] for customer identifying information). The ICB Fee will necessarily be a greater where CDR data is archived and must be retrieved and restored to enable research and production (see Sec. 5.6 below).


A party who has
fully reviewed this Sec. 5 and Sec. 2.1 and who nevertheless intends to issue a TPCS to request CDRs should first contact legal via mailto: anant.kamat@dipvtel.com to request an estimate for (1) the ICB Fee and (2) the interval necessary for processing (please supply the: (1) target number(s) and (2) target interval per number).


Where a TPCS is served
absent prior contact and seeks CDRs, Dipvtel will issue a CDR Notice as per Sec. 7.2.


5.6 Archived Call Detail Records (CDRs):
Dipvtel’s network carries around 1 billion minutes of traffic daily. With this sheer volume of traffic, our CDRs are 
promptly archived in aggregate on a calendar month basis.


Accordingly, Dipvtel will incur additional personnel and system costs to retrieve and restore such CDRs to our systems (in order to enable research and compilation of responsive CDRs), and such costs will be reflected in the ICB Fee applicable per Sec. 5.5.


A more significant extension may also be necessary for archived CDRs, as
only one month’s data can be restored to our systems at a time (note: Dipvtel’s CDRs are stored in aggregate for all numbers in service for all customers in a calendar month). Further, because of system demands, restoration can occur only on an overnight basis, and multiple overnights will typically be necessary in order to restore a month’s data.


Queries are then performed against the restored CDR data. The data must thereafter be purged from our system in order to allow restoration of another calendar month’s data.

As a result, TPCS issuers should anticipate a period of at least 4 to 6 weeks for processing, and several months or more for broader requests that seek greater quantities of calls or CDRs arising in multiple calendar months. A greater interval may also be required for processing where system resources are otherwise committed or where our offices are closed due to extraordinary circumstances (e.g., the ongoing COVID-19 pandemic).

Coupling such circumstances with the limited scope of CDRs that may be in our possession concerning a given number, most civil litigants conclude that CDRs are
best obtained through our wholesale customers (who should have CDRs for all calls involving a telephone number – see Sec. 2.1).

6. FEE FOR WITNESS TESTIMONY:


If an Dipvtel witness is subpoenaed to appear in court and provide testimony, and the witness fee is not set by law in that respective state, Dipvtel charges $150.00 per hour for witness testimony including travel time to and from court, plus the reasonable cost of travel (including mileage at the then current IRS rate, tolls, parking, airfare, rental car, train fare, taxi fare), food at a per diem rate of $25.00 and lodging in accordance with Dipvtel’s travel and expense policies.
Dipvtel reserves the right to request pre-payment of an amount that is one-half of the reasonably estimated witness testimony fee. 

Checks are to be made payable to "Dipvtel" and submitted to the above address with memorandum reference to Dipvtel’s file number for the matter.

7. OBJECTIONS:


7.1
Non-Receipt of Processing Fees: As detailed in this Policy (including in Secs. 2.3, 3.3, 5.2, 5.4, and 5.5), Dipvtel may object where an issuing party fails to tender the applicable Processing Fee for a TPCS seeking customer identifying information or CDRs.


7.2
Objection Notices:

  1. Generally: Dipvtel will object to requests that: are unduly burdensome, overly broad, and neither relevant to nor proportional to the needs of the litigation; seek privileged, confidential or proprietary information; are beyond the scope required under the applicable Rules of Civil Procedure and any local rules, including as to third parties; and would require production of ESI. Dipvtel’s objection notice may refer a TPCS issuer to one or more provisions of this policy to address objections presented in said notice or to address other defects evident in the TPCS.
  2. Requests for Customer Identifying Information: Generally, where a TPCS is received absent prior contact and seeks customer identifying information, Dipvtel will: (1) notify the TPCS issuer that Dipvtel objects to the TPCS and (2) inform the TPCS issuer of a Standard Processing Fee applicable under Sec. 5.4. The TPCS issuer must then tender the fee in order for processing to commence, or otherwise inform Dipvtel of any prohibition or limitation of the same consistent with Sec. 5.4 or assert some other basis for non-payment. 
  3. Requests for CDRs: Generally, where a TPCS is received absent prior contact and seeks CDRs, Dipvtel will: (1) notify the TPCS issuer that Dipvtel conditionally objects to the TPCS; (2) refer the TPCS issuer to Sec. 2.1; (3) inform of the necessity for a protective order for CDRs to be produced (see Sec. 2.2), and (4) provide estimates for both (a) an ICB Fee and (b) the extension interval necessary (a “CDR Notice”). The TPCS issuer must thereafter authorize processing to commence consistent with the CDR Notice. Exceptionally broad TPCS requests and other factors may limit a precise or immediate estimate or result in the presentation of an unconditional objection to the TPCS issuer.

7.3 Other Information Requested: As further discussed in Sec. 2.1, Dipvtel’s customers generally are “OSPs” (other service providers to whom we provide wholesale communications services). Such OSPs have the end user subscribers who are using telephone numbers to make/receive calls. As such, requests that might be routine when seeking information concerning an end user subscriber (to whom retail services are provided) will be objected to by Dipvtel
as unduly burdensome, overly broad, and neither relevant to nor proportional to the needs of the litigation with regard to Dipvtel (as a
non-party to the litigation and moreover, as a provider of wholesale services, who is at least a step removed from the end user calling/called party – we don’t know their identity and similarly, they are unaware of our role underlying their use of a number). Dipvtel will generally have no information about or relationship with the end
user subscribers
of OSPs and will only maintain records in the aggregate relative to the OSP (and without regard to any end user subscriber of the OSP).


Accordingly, we either will
object to all TPCS that seek the following with reference to one or more target numbers, or we will otherwise reply to advise that we have no responsive records (i.e., the records should be sought through our wholesale customers only) for the following:

  1. Applications for service, account establishment documents, service plans, contracts, or service agreements 
  2. Billing records, invoices, and charges for services provided
  3. Payment information and banking records 
  4. Correspondence and records of other communications with the end user subscriber
  5. Complaints received about the target number
  6. Identification of all telephone numbers in service or other accounts for the end user subscriber 
  7. Voice mail or SMS/MMS/text message content (our network does not capture or retain such content)
  8. End user subscriber equipment and ID numbers associated with the same, including SIM cards.
  9. IP address for the end user subscriber
  10. Data used by the end user subscriber

Please do not invest your firm’s time in presenting such requests in a TPCS or require our company to spend time addressing the same. The foregoing are all details to be pursued instead through our wholesale customers. Please confine the scope of your TPCS to Dipvtel to customer identifying information requests, and then pursue such other items by issuing a subsequent subpoena to the wholesale customer(s) identified in our response to your TPCS.

8. VERIFICATION OF TELEPHONE NUMBERS: Dipvtel cannot accommodate requests to verify or otherwise validate a particular telephone number as being with Dipvtel. Please do not request such information via telephone call or by message to any email address. We recognize that this may represent some inconvenience; however, given the volume of subpoenas that we receive as a wholesale service provider, we cannot escalate such number verification inquiries ahead of such deadline-specific matters, and may not return calls or reply to emails requesting verification or
which present a non-specific request for contact.


9. BACK TRACING (OR TRACING BACK) OF CALLS:
Back-tracing is the process of recreating the path of a call in reverse (i.e., going from the
called party’s service provider to one or more intermediary providers [e.g., Dipvtel], and ultimately to the calling party’s service provider). This effort is driven by review of the CDR for each service provider relevant to a target call, so as to identify the next provider backwards. While a calling name/number may be spoofed/blocked (in which case, manipulation occurs before our network and so our records reflect only the spoofed/blocked details), the network-level details of a CDR will remain unaffected by such efforts. Accordingly, by recreating the call path, the originating network can be determined, and thereby, the actual calling number and end user subscriber’s identity.


Dipvtel’s CDRs will generally
only have unique information in a very limited instance wherein a party is: (1) “backtracing” a specific call involving (2) a number that was (a) “spoofed” (i.e., electronically manipulated so that caller ID information is other than that for the true calling number) or (b) “blocked” for caller ID details, and (3) another service provider has informed the TPCS issuer that the traffic to that provider’s network was delivered by Dipvtel, per their CDR.
All of the foregoing elements generally
must be true in order for Dipvtel to possess unique information in a CDR. While Dipvtel’s CDRs will typically be fractional/redundant (see Sec. 2.1), in a spoofing/blocking scenario our CDRs would contain a detail to facilitate further back tracing: the identity of the service provider who delivered the traffic to us.


A back tracing TPCS
must present specific details (e.g., instead of seeking “all calls from 123-456-7890 from 1/1/19 to 6/1/20,” it would only seek “the call from 123-456-7890 to 456-789-0123 on 7/1/20 at 1:23 pm CST for 45 seconds”). In response to such a TPCS, we will provide an estimate for an ICB Fee (see Sec. 5.5) and extension of time, as applicable.

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