New York ALJs Give Parties Limited Opportunity To File Updated Testimony, Addressing Discrete Issues, In Retail Mass Market Evidentiary Review

The presiding ALJs in the New York PSC's review of the retail energy mass markets have issued a ruling authorizing limited updates to parties' initial testimony, as a result of their ruling on sanctions sought by the Public Utility Law Project against Robison Energy LLC and Agway Energy Services LLC, with the updated testimony limited to issues related to information contained in discovery responses filed by the two ESCOs after the ALJs ruled on the motion for sanctions

See background on the sought sanctions here, which stem from disputes concerning discovery responses

The ALJs found, for both ESCOs, that while some discovery responses were adequate, "certain [discovery] responses to be deficient and not compliant with the Commission’s August 3, 2017 Order and our ruling of May 25, 2017."

However, the ALJs said that PULP's sought sanction -- to take facts as established -- is not currently workable. "PULP did not offer specific facts to be taken as established, and we do not believe that the nature of these discovery requests lends themselves to obvious facts to be established. In addition, we do not find it to be appropriate to independently establish such facts without providing all of the other parties with an opportunity to be heard. Considering that initial testimony is due in two days, there is no time to provide the parties with such opportunity," the ALJs said in a September 13 ruling

"Another available sanction (see 16 NYCRR §5.10) is to preclude the recalcitrant ESCOs from offering evidence in their testimony regarding the matters within the discovery requests. However, we do not find that to be an effective sanction, given the apparent reluctance of Agway and Robison to provide the information. In addition, we noted that the parties always retain the right to make an application to strike testimony and evidence if it was not disclosed upon request during discovery," the ALJs said

In their September 13 ruling, the ALJs said, "Given the limitations inherent in each of the above remedies, we crafted a sanction that we believe is appropriate. Specifically, we directed Agway and Robison to remedy the identified deficiencies by 12:00 p.m. on September 14, 2017. While we have every expectation that Agway and Robison will work diligently to comply with this directive, we nonetheless articulated a further sanction that could be imposed if they fail to comply. Specifically, we authorized PULP to make a further application after initial testimony is filed proposing specific facts to be taken as established."

In a subsequent September 14 communication to parties, the ALJs said, "Agway apparently has provided a substantial amount of information in response to PULP‐ESCO Set 1 [Revised] and PULP‐ESCO Set 2," which prompted PULP to request that the ALJs grant it an opportunity to file updated testimony on September 28, 2017. PULP asserted that it requires this opportunity so that its expert can review and analyze the data provided by Agway.

The ALJs maintained the September 15 deadline (today) for initial testimony

"However, we will grant all parties, including PULP, an opportunity to update their initial testimony on or before 4:30 p.m. on September 22, 2017," the ALJs said

"This update shall be limited to addressing the information provided by Agway today, September 14, 2017. No other updates or supplements are authorized. We are making no other changes to the schedule," the ALJs said

The ALJs in their ruling provided a detailed explanation of their finding that certain of the ESCOs' discovery responses were deficient. See the ruling here for such discussion