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ESCO Calls PULP Motion for Sanctions, "Petty," Says Supplemental Discovery Responses Provided

August 30, 2017

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

In a filing with the New York PSC responding to a motion for sanctions filed by the Public Utility Law Project due to an alleged failure to abide by a discovery order, Robison Energy LLC called PULP's motion, "petty," and sought denial of the motion, reporting that it acted in good faith with respect to PULP's discovery requests and filed a supplemental response on August 25.

"Robison, a small family owned ESCO, remains committed to engaging in meaningful dialogue with Commission Staff, consumer protection advocates, and industry colleagues on the substantive questions posed by the Commission in its December 2 Order. Indeed, Robison is disappointed that PULP chose to air its concerns with Robison’s previous responses to the ALJs directly instead of to Robison itself. With its limited resources, Robison does not have the luxury of engaging in petty motion practice, and at this time, is not requesting sanctions, fees and costs against PULP. Instead, Robison encourages PULP to withdraw its Motion and join Robison in focusing its attention on the substantive issues under review in this proceeding," Robison said in its filing

"PULP’s Motion is unwarranted, and should accordingly be denied. Like Agway Energy Services, LLC, PULP never expressed concern with the substance of the responses provided by Robison until its Motion, and further filed no motion to compel as to Robison. Though not necessarily required, Robison supplemented its earlier April 18, 2017, response in line with the Commission’s August 3rd Order," Robison said in its filing

"Furthermore, even if the motion was ripe (which it is not), the circumstances do not remotely approach the high standards that warrant the extreme sanction of preclusion recited in PULP’s motion. Robison has been in regular communication with PULP throughout the discovery process to discuss, in good faith, how the two parties could identify areas of agreement, as opposed to engaging in adversarial exchanges. Early in the process Robison discussed with PULP the reasons many of its discovery questions were inapplicable to it, and provided information about the Company’s history, business structure, and service offerings. Prior to submission of its April 18 response, Robison requested and was granted additional time from PULP to assemble its responses. Throughout discovery, Robison consistently expressed its intention to cooperate and exercise good faith in its disclosures. At no point in Robison’s discussions with PULP did PULP’s counsel indicate that it took issue with Robison's initial response. While Robison does acknowledge that its supplementary responses were provided a few days after August 18, it contends it has been upfront throughout the process, and consistently provided updates to PULP on its progress. As communicated to PULP’s counsel on Wednesday, August 23, on Friday, August 25, Robison submitted its supplemental response to PULP’s discovery requests," Robison said in its filing

"As counsel for Robison, we are taken aback by the Motion for sanctions. As the undersigned discussed with PULP’s counsel as recently as last week (before the motion was made), we were deeply involved in preparing supplemental responses, but were awaiting important input from Robison. We expected to be in a position to finalize Robison’s supplemental response shortly thereafter, and in fact filed the supplemental response on August 25," Robison said in its filing

"PULP’s counsel did not voice any objection to the additional time Robison needed to adequately prepare Robison’s supplemental response. While PULP did communicate to Robison any request for extension should be made to the ALJs, PULP did not indicate in any way that receipt of the supplemental response by August 25 was unacceptable, that it required Robison's response immediately, or that PULP faced any exigency or near-term prejudice should the supplemental response be provided by a date certain. Importantly, PULP did not warn us that it would be making a motion for sanctions or any other relief in the absence of supplemental responses by a date certain. In short, as recently as a few days ago, we were working with PULP, and PULP was working with us, to bring the discovery to a close amicably. Thus, the Motion for Sanctions comes entirely out of the blue. Accordingly, Robison respectfully submits that PULP did not properly exhaust its good faith 'meet and confer' obligations under 16 NYCRR §5.9(c). If PULP intended to make a motion, PULP should have demanded supplemental disclosures directly from Robison by a date certain 'before involving the presiding officer.' For that reason alone PULP’s Motion should be denied," Robison said in its filing

Robison further called PULP's sought sanctions unwarranted on the merits. "PULP argues that it 'should be allowed to take specified facts related to the matter contained in the unproduced discovery requests as established, and Robison and Agway should be prohibited from introducing evidence concerning the discovery request after the fact.' In effect, PULP seeks an order of preclusion and partial default on certain issues, without describing the issues with any particularity. An order of preclusion and partial default is the most extreme kind of sanction, warranted in only the most egregious cases, which is far from what we have here," Robison said

Robison also said that to the extent the PULP seeks an order compelling Robison to serve its supplemental responses, that issue is now moot. "As noted, on Friday, August 25, 2017, Robison served its supplemental responses and has produced all responsive material in its possession, custody and control," Robison said

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