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NEM Files Motion To Compel DPS Staff Production of Information Request Responses From Non-Party ESCOs in N.Y. PSC Evidentiary Mass Market Review

Direct Energy Alleges Failure To Share Info From Non-Parties Would Amount To Use Of "Secret Evidence"

June 30, 2017

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

The National Energy Marketers Association filed a motion to compel Staff of the Department of Public Service to provide complete and full responses to NEM Information Request IR-1 served on DPS Staff in the PSC's evidentiary proceeding reviewing the retail energy mass markets.

On April 14, 2017, NEM propounded IR-1 on DPS, requesting, "any and all data or information that DPS Staff has been provided directly or indirectly in connection with these proceedings by parties or non-parties including but not limited to all responses to DPS Information Requests served in these proceedings."

"The purpose of the request was to ensure that, as a party to these proceedings, NEM had access to the same data and information that DPS was reviewing in preparing for the submission and presentation of evidence in these proceedings," NEM said in its motion to compel

NEM said in its motion to compel that DPS Staff has stated that providing NEM with the non-party data would require Staff to violate Public Service Law § 15.1, insofar as Staff would have to produce confidential information it received from non-parties. NEM in its motion to compel said that DPS Staff acknowledged that Staff would be permitted to share the information if directed to do so by the Commission, a court or judge, or by law.

NEM therefore requested that the ALJs direct DPS Staff to respond to NEM IR-1 and produce the data and information responsive to that request, subject to the protections of the Protective Order that the ALJs already entered in the proceedings

"To ensure a level playing field, NEM must be permitted to review, analyze, and present the same data that DPS was permitted to review, analyze, and present. Simply put, by permitting non-parties to furnish DPS with data and information only to turn around and refuse to provide that data and information to the other parties in these proceedings, DPS has turned these proceedings into a one-sided, patently unfair process," NEM said in its motion to compel

"As to the confidentiality concerns to which DPS appeals in justifying its refusal to produce the data and information, the Protective Order entered by the ALJs in these proceedings specifically contemplates the exchange of proprietary, confidential or trade secret information, and provides comprehensive mechanisms prescribed by the ALJs to protect that information from abuse by competitors, including by limiting access to such information to NEM’s outside consultants. DPS Staff has not attempted to avail itself of any of these mechanisms, instead content simply to refuse to provide the requested information even to the approved outside consultants that are qualified to receive, review, and analyze the exact same type of confidential and trade-secret information provided by ESCO parties to this proceeding. DPS does not even attempt to explain how ESCO parties to this proceeding can be adequately protected against disclosure of their confidential and trade-secret protected information by subjecting disclosure to the protections of the Protective Order, but ESCO non-parties that chose to furnish data are somehow at risk if their data was shared in the exact same way, with the exact same outside consultants, subject to identical protections," NEM said in its motion to compel

"DPS Staff’s refusal to share with NEM the information that was produced in response to DPS’s Information Requests in these proceedings, where NEM is subject to the Protective Order, fatally undermines any effort to afford due process to the parties to this proceeding," NEM said in its motion to compel

In a separately filed motion, Direct Energy Services, LLC moved to postpone the due date for direct testimony in the proceeding pending completion of discovery process, including discovery related to information from non-parties obtained by PSC Staff

"Outside counsel and independent consultants for Direct Energy and other ESCOs must be granted access to all information concerning sales to mass market customers by other ESCOs which DPS Staff has obtained from other parties and non-parties through informal discovery or by subpoena," subject to the protective order provisions adopted in the case, Direct Energy said in its motion

"This expansive approach to the scope of discovery must be applied with equal force to any and all information that DPS Staff has obtained from other parties and from non-parties. Failure to do so would permit DPS Staff to base its testimony in these proceedings on 'secret evidence' not available to Direct Energy and other ESCO parties," Direct Energy said in its motion

"Without access to this important information – as well as a fair opportunity to digest this evidence and to prepare expert testimony – Direct Energy and other ESCO parties will be deprived of the their due process rights to review and understand all information available to DPS Staff that is relevant to the issues in these proceedings or likely to lead to the discovery of relevant evidence," Direct Energy said in its motion

"The unfairness of the use of secret evidence is particularly severe in this case because DPS Staff has been allowed to obtain such information from parties and non-parties using the broad scope of the Commission’s discovery rules discussed above, while Direct Energy and other parties have been denied similar access. In the absence of a compelling justification for such discriminatory treatment not present in these proceedings, allowing DPS Staff to use such evidence that has not been made equally available to Direct Energy and other parties would violate not only the Commission’s discovery rules and the due process guarantees of the Fifth and Fourteenth Amendments to the United States Constitution, but also the requirement of the Fourteenth Amendment that all persons be granted the equal protection of the laws," Direct Energy said in its motion

The New York PSC's press office issued the following statement concerning the motions: "All of the motions that have been submitted will be reviewed by the administrative law judges overseeing the proceeding."

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