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N.Y. ALJs Stay Order Which Requires ESCOs To Provide Customer-Specific Info To PULP Under Discovery

June 23, 2017

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

Two of the presiding ALJs in the New York PSC's proceeding conducting an evidentiary review of the retail energy mass market have issued an order staying a May 25 discovery ruling ("Ruling") which had compelled ESCOs to respond to certain data requests filed by the Public Utility Law Project of New York, Inc.

Based on the language of the ALJs' order, the entirety of the prior ruling granting PULP's motion to compel has been stayed, and not only certain elements of it (e.g. only those orders relating to confidential customer information).

As was first reported by EnergyChoiceMatters.com, the ALJs previously ordered ESCOs to respond to PULP's data requests which 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

While certain ESCOs filed for interlocutory appeal of the ruling, on grounds that were previously considered by the ALJs in ruling on the motion to compel, disparate parties also raised concern with the ruling due to the ALJs' order that ESCOs disclose confidential, customer-specific information to PULP, such as names, addresses, and account numbers

For example, Department of Public Service Staff separately said that disclosures required by the ALJs' ruling may cause ESCOs to violate the Uniform Business Practices due to the directed disclosure of personal customer information, although Staff opposed a stay (in favor of a modified ruling which would exclude the disclosure of customer-specific info.)

In response, the ALJs have issued an order staying their prior ruling on PULP's motion to compel, pending the outcome of the interlocutory appeals

"Under the particular circumstances of these proceedings, we find that the parties have made convincing arguments to justify a stay of the Ruling. Among the information sought by PULP is a significant amount of data regarding the ESCOs’ customers, including names, addresses and distribution utility account numbers. Considering the highly confidential nature of this information, we will stay the Ruling until 15 days after the Commission issues a determination of the pending interlocutory appeal," the ALJs said

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