ESCO, In Motion To Quash, Says DPS Staff Subpoenas Directed At Entire Industry Has Created "Chaotic Environment"

The issuance of some 176 subpoenas to ESCOs who are not part of the New York PSC's evidentiary mass market review has created a, "chaotic," environment, AP Gas & Electric (NY), LLC said in a motion to quash filed with the PSC

"DPS Staff’s determination to request the issuance of 176 subpoenas directed to non-party ESCOs operating in New York (basically, the entire ESCO industry in New York), and the ALJs’ determination to issue them, simply put, has created a chaotic environment. Moreover, the mass subpoena issuance confirms that the current evidentiary hearing process is not providing an efficient venue to adequately address the issues the Commission identified concerns in the retail mass- markets ... DPS Staff and the ALJs not only lack authority to issue such blanket and generic subpoenas, these subpoenas seek sensitive pricing information and other confidential business records of APG&E NY, much of which is not material and necessary to the evidentiary hearing process," AP Gas & Electric said in its motion

AP Gas & Electric said in its motion that, "DPS Staff failed to tailor any of its subpoenas to the specific ESCOs targeted by the subpoenas. Instead, it has served generic, non-specific subpoenas on all non-party ESCOs serving customers in New York, that do not conform to New York’s requirements with respect to either the form or substance of subpoenas."

"APG&E NY sent correspondence to the ALJs on June 6, 2017 in this proceeding requesting that the Subpoenas not be entered. Unfortunately, APG&E NY was informed on June 8, 2017 that the Subpoenas had been executed and returned to PSC Staff for service. APG&E NY was not provided with a copy of the Subpoena until June 8, 2017 [On June 8, 2017, DPS Staff shared an electronic 'courtesy copy' of the Subpoena.], just eight (8) days before the required response date, and APG&E NY has still not received a copy from the Secretary of State, upon whom DPS Staff purportedly effected service of the Subpoena," AP Gas & Electric said in its motion

AP Gas & Electric said in its motion that New York Civil Practice Law and Rules (CPLR) 3101(a)(4) requires that a subpoena set forth, "the circumstances or reasons such disclosure is sought or required."

"Far from setting forth 'the circumstances or reasons such disclosure is sought or required,' the Subpoena consists of naked demands for documents and records, together with improper interrogatories. No separate notice was individually served on APG&E NY and the Subpoena 'itself' provides no notice of any kind as to how the documents and records it seeks are relevant to the underlying evidentiary hearings. Consequently, the Subpoena is facially defective and should be quashed," AP Gas & Electric said in its motion

AP Gas & Electric further said in its motion that the subpoena, "is both fatally imprecise and overbroad in violation of CPLR 3101, and seeks information that is not material and necessary."

In addition to granting its motion to quash, AP Gas & Electric asked that the ALJs grant a Stay of all non-party discovery until twenty (20) days after a final decision is rendered on a RESA Interlocutory Appeal, or alternatively, twenty (20) days after the ALJs issue a ruling on AP Gas & Electric's motion to quash