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ESCO Calls Discovery Process In N.Y. Evidentiary Review of Mass Markets, "Unfair"

February 16, 2017

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Copyright 2010-17 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com

Citing the lack of a protective order which would allow all parties to receive discovery responses and develop testimony based on such responses, Family Energy, Inc. said in a February 10 filing with the New York PSC concerning the PSC's evidentiary review of the retail energy markets that, "it is simply unfair for this proceeding to continue without an appropriate Protective Order in place," given that, unlike other parties, PSC Staff will be receiving discovery responses in the absence of a protective order.

In a February 10 filing made by Phillips Lytle LLP, which represents Family Energy, Family Energy cited an ALJ's February 8 ruling (see details here) which had provided that, in the absence of a protective order, confidential discovery responses shall only be provided to PSC Staff, the state's Utility Intervention Unit, and the proceeding's ALJ.

"Consistent with our prior comments regarding the proposed Protective Order, it is essential for fair play in this proceeding that all parties have access to evidence with which to prepare their testimony. It was our understanding that the evidentiary hearing would proceed with a Protective Order in place that would meet this objective. However, the [February 8] Ruling on Schedule and Procedure now states only that there 'may' be a Protective Order at some undefined time in the future. Nonetheless, parties are required to respond to the interrogatories/document requests propounded by the Department of Public Service ('DPS IRs') without a Protective Order," Family Energy said in its February 10 [emphasis by Family Energy]

"Family Energy respectfully submits that it is simply unfair for this proceeding to continue without an appropriate Protective Order in place. As it stands, DPS may obtain discovery information as early as Monday, February 13, which will only be available to a single other party, the Utility Intervention Unit. DPS and UIU will be able to proceed to develop their initial testimony while other parties await a Protective Order," Family Energy said in its February 10 comments

As noted in our related story today, guidance to parties contained in a February 14 email from the proceeding's ALJ said that a protective order would be issued, "soon."

"It is respectfully submitted that the process needs to be adjusted so that it is fair and equitable, and so that no undue advantage is provided to select parties," Family Energy said in its February 10 comments.

James Denn, Public Information Officer for the PSC, said in commenting on Family Energy's filing, "The request is a motion filed in active proceedings and will be considered by the presiding ALJ."

Providing background information, the Department of Public Service said that the presiding ALJ had told parties at a procedural conference that she planned on adopting a protective order, and she solicited input on a draft from the parties. The ALJ is reviewing the comments and anticipates ruling on a protective order shortly, the Department said.

The Department further said that the underlying argument that parties are not being given equal treatment is "disingenuous" in that the draft the ALJ circulated states that competitors may not be entitled to receive protected information. ESCOs are concerned with information being shared with other ESCOs, who are direct competitors, the Department said.

In its February 10 comments, Family Energy also recommended that guidance be issued concerning the process for confidential filings, given that there are many unrepresented parties participating in the proceeding and discovery responses may be undertaken by persons who are not necessarily familiar with evidentiary hearings, protective orders, or the procedures for protecting trade secret and confidential information. As noted in our related story today, the ALJ issued several guidance documents concerning the process for filing confidential information

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