Energy Choice
                            

Matters

Archive

Daily Email

Events

 

 

 

About/Contact

Search

New York ALJs Compel ESCOs To Respond To PULP Discovery Requests, Require Responses Within 5 Days

May 26, 2017

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

The presiding ALJs in the New York PSC's evidentiary review of the New York PSC's review of the retail energy mass markets have granted a motion to compel filed by the Public Utility Law Project of New York, Inc., requiring ESCOs to respond to PULP's data requests.

Among other things, PULP's data requests issued to various ESCOs have included requests for:

• Sales scripts, marketing and promotional materials and related documents

• Scripts used in telemarketing campaigns and all door-to-door marketing campaigns

• Copies of audio recordings for each sales call made by the ESCO or others acting on its behalf (for a certain month)

• Copies of audio recordings of all third-party verification calls (for a certain month)

• The name, address, distribution utility, and account number of each customer enrolled by the ESCO

• A list of all sales or marketing training materials involving the UBPs and other issues, and records confirming that certain employees have received training in a wide array of areas

• Documents related to internal audits and investigations

• Identification of internal discipline and/or sanctions imposed as a result of marketing actions in New York

For certain information, PULP requested production of documents related to the requests for the past six years

ESCOs raised various objections to the PULP discovery requests, arguing, among other things, that the requests exceeded the scope of the proceeding and that the requests sought information for a longer period of time than relevant to the proceeding. ESCOs called PULP's requests a, "fishing expedition," and also argued that, through various requests, PULP is seeking to litigate ESCOs' prior compliance with the UBPs, transforming the discovery process in the proceedings from a review of the value of ESCO service offerings into a field audit of ESCO compliance with the UBPs

The ALJs granted PULP's motion to compel

"Pursuant to 16 NYCRR 5.1(a) parties must disclose 'all information (including data, records, objects, and documents) relevant and material to a proceeding in which they are participating and any information likely to lead to such information.' The information that PULP is seeking in discovery requests PULP-ESCOs Set 1 [Revised] and PULP-ESCOs Set 2 is material and relevant to this proceeding. We believe that, in order for the parties to conduct a thorough investigation and prepare testimony in response to the issues identified for consideration in the December Notice, comprehensive responses from the ESCO parties to PULP’s discovery questions are needed," the ALJs said

Addressing arguments that PULP's requests sought information over an inappropriately long time horizon, the ALJs said, "it is reasonable and appropriate to incorporate as part of the record in this proceeding information covering the same five calendar years with regard to the other enumerated topics identified in the December Notice. Since ESCOs will be permitted to submit testimony and exhibits covering the period in which they were in business in the State prior to 2014, up to a maximum of five years (2011-2016), we will permit the parties to conduct discovery designed to obtain information on all topic areas covered by the December Notice covering those same time periods."

"We reject the claims that the information PULP seeks in PULP-ESCO Sets 1 and 2 is overly broad and unduly burdensome, and that only current ESCO practices are the subject of the Track I proceeding. It is clear from the December Notice and previous orders issued related to this proceeding that the scope of the Commission’s investigation is very broad. Although the ESCO parties may need to provide a significant amount of documents and raw data related to their operations as an ESCO in the State, they are not required to perform any new studies. We note that an understanding of past ESCO practices in the State is essential to gaining an understanding of the functioning of the market, appropriate ESCO practices going forward, and the likelihood that ESCOs will adhere to regulatory provisions imposed by the Commission. We believe that the discovery questions asked by PULP could produce information that would assist in providing that understanding and, accordingly, fashioning recommendations relevant to the Commission’s decision in this proceeding," the ALJs said

"We also reject the objections to PULP’s discovery questions potentially relating to ESCO compliance with the Commission’s UBPs. The Commission’s rules governing the scope of discovery are very liberal. Parties are permitted to conduct discovery for all information that is not only directly relevant to a proceeding in which they are participating, but also for information that likely would lead to other information that is material and relevant to the pending proceeding. We believe that the information requested by PULP in PULP-ESCO Sets 1 and 2 has the potential to produce information that could be material and relevant to the Track I proceeding. The fact that the information produced also may relate to or overlap with an investigation of the ESCOs’ compliance with the Commission’s UBPs is not a basis for precluding discovery of the information in these proceedings. Information regarding an ESCO’s past compliance with the UBPs, Commission rules and regulations or regulatory provisions is potentially relevant to the question of whether ESCOs should be completely prohibited from serving their current products to mass-market customers and/or whether the regulatory regime applicable to ESCOs needs to be modified to, among other things, create enforcement mechanisms," the ALJs said

While ESCOs cited PULP’s failure to confer with parties concerning discovery disputes prior to filing a motion to compel, the ALJs dismissed this concern

"We do not consider PULP’s failure to confer with those parties who objected to PULP-ESCOs Set 1 [Revised] and PULP-ESCOs Set 2 before filing its Motion as warranting denial of its Motion to Compel in this instance," the ALJs said

"While we have previously requested that parties attempt to resolve any discovery disputes before bringing them to our attention, in the interest of efficiency we will address the substantive matters raised in PULP’s Motion. However, on a going-forward basis, we expect that PULP, and all other parties in these proceedings, will communicate with the party(ies) objecting to discovery in an effort to resolve disputes before seeking our assistance to compel discovery responses. At the very least, such communications could result in a reduction in the number of questions subject to discovery objections," the ALJs said

ESCOs were given 5 days to respond to PULP's discovery requests.

"We conclude, given our finding described above, that PULP’s Motion to Compel should be, and is, granted. We therefore direct, in accordance with 16 NYCRR §§ 5.3(e) and 5.4(d), the ESCO parties that withheld discovery responses or provided limited discovery responses to PULP-ESCOs Set 1 [Revised] and PULP-ESCOs Set 2 pending a ruling on this motion to provide responses or amended responses within five days of this ruling," the ALJs said

ADVERTISEMENT
NEW Jobs on RetailEnergyJobs.com:
NEW! -- Sales & Marketing Manager -- Retail Supplier
NEW! -- Director, Regulatory Compliance -- Retail Supplier -- Houston
NEW! -- Pit Crew Analyst - Pricing, Contracting & Service Guru -- DFW / Irving
NEW! -- Sr. Energy Consultant
NEW! -- Manager of Regulatory Affairs -- Retail Supplier
NEW! -- Sales Support Specialist Energy Solutions -- Retail Supplier
NEW! -- Paralegal, Regulatory Affairs -- Retail Supplier -- Houston
NEW! -- EDI Transactions Manager -- Retail Supplier -- Houston
NEW! -- Director of Channel Sales -- Retail Supplier
NEW! -- Sales Manager -- Retail Supplier -- New York
NEW! -- Sales Manager -- Retail Supplier -- MA / NJ
NEW! -- Sales Agent -- Retail Supplier -- Multiple markets
NEW! -- Customer Retention -- Retail Supplier -- Houston

Email This Story

HOME

Copyright 2010-16 Energy Choice Matters.  If you wish to share this story, please email or post the website link; unauthorized copying, retransmission, or republication prohibited.

 

Archive

Daily Email

Events

 

 

 

About/Contact

Search