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N.Y. DPS Staff: ESCOs' Appeals Of "Mundane" Discovery Disputes Indicative Of Delay Tactic

July 6, 2017

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

Staff of the New York Department of Public Service opposed stays of the mass market review evidentiary proceeding sought by various ESCOs, alleging that interlocutory appeals of "mundane" discovery disputes are indicative of a stalling tactic.

Staff noted various objections have been addressed by the presiding ALJs, but various ESCO parties have filed for interlocutory appeal of such ALJ rulings, and have sought stays based on such pending appeals

"This process of continuing to appeal resolved issues — either at the Commission or at the New York Supreme Court — ensures that even the most mundane discovery disputes take months to resolve. It has been apparent from the onset of these proceedings that the strategy of the ESCO parties is to delay these proceedings for as long as possible in order to maintain the status quo for New York customers who continue to be harmed by overcharges in the Retail Market and unscrupulous ESCO business practices to the benefit of ESCOs," DPS Staff alleged

Staff proposed a limited two-week extension in the procedural schedule, which Staff said would allow RESA to access and analyze the data for which it was recently granted access

"Finally, while Staff opposes a stay of the existing schedule, Staff proposes that any extension should be limited to two weeks, and coupled with an agreement by the ESCO parties to comply with Staff information requests and/or commit in a formal manner to moving these proceedings forward, and submit to the final determinations of Your Honors and the Commission. Without such a commitment, it is apparent that the ESCO parties will continue to unnecessarily delay these proceedings. As Justice Zwack astutely pointed out in his recent decision on a related Retail Market matter, '[w]hat can also be reasonably concluded is that the ESCOs have instead focused on litigation to frustrate the plain purpose of the PSC and PSL — consumer protection....,'" Staff said

Staff said that under PSC rules, interlocutory appeals are only available for "extraordinary circumstances," which Staff said the ESCOs have not shown here

"Contrary to an appeal of a New York Supreme Court decision, there is no 'appeal as of right' with respect to a ruling made by an Administrative Law Judge in a Commission proceeding. There are no extraordinary circumstances to support the two interlocutory appeals before the Commission and is apparent that these parties simply intend to appeal any ruling that is not decided in their favor," Staff said

"RESA also argues that the existence of the subpoenas duces tecum served on non-party ESCOs operating in New York warrants a stay of the existing schedule. However, the only argument presented on this issue that in any way impacts the timing of testimony is with respect to the extensions of the response date to July 27, 2017, granted to a subset of non-party ESCOs by Your Honors. These extensions do not necessitate a stay of the schedule. Instead, Staff proposes that a two-week extension would allow Staff to receive data prior to the deadline for filing initial testimony. Additionally, Staff proposes that a process be instituted by Your Honors whereby Staff is afforded the opportunity to update their testimony by a certain date in order to analyze the data receive on July 27, 2017 and incorporate any necessary information into its testimony," Staff said

Separately, Staff also opposed motions filed by ESCO parties to compel Staff's production of information (at times under subpoena) it has obtained from non-party ESCOs. Staff argued that Staff cannot share the information, for which non-party ESCOs have sought trade secret status, under New York law, and noted that, as non-parties, the protective order in the case does not apply to the sought data

"As the non-party ESCOs are not parties to these proceedings, they are not subject to the Protective Order, and thus, Staff and the RAO [records access officer] are required to protect this non-party information filed with the RAO pursuant to PSL §15 and Public Officers Law (POL) §87(2)(d)," Staff said

"NEM and Direct use a subterfuge and the claim of a violation of their due process rights to obtain this information from Staff — the fact that Staff is a party to these proceedings, and also has access to non-party ESCO data through the RAO. The Commission has previously addressed such a situation, in Case 12-E-0577. In that case, a party (Earthjustice) sought production of trade secret confidential material under the protective order issued in that proceeding. The Commission determined that a protective order could not be used by a party as a vehicle to obtain confidential information submitted by a non-party (the New York Independent System Operator (NYISO)) to the RAO. The Commission determined that Earthjustice could not use the protective order to gain access to the trade secret information supplied to Staff because it did not entitle Earthjustice access to non-party documents filed with the RAO and protected from disclosure pursuant to POL §87(2)(d) and the protective order, by its terms, only applied to parties to the proceeding," Staff said

"Under New York State Law, Staff cannot provide to NEM, Direct or any other party to these proceedings confidential trade secret materials filed with the RAO. To do otherwise would be a misdemeanor," Staff said

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