Data

PRIVILEGED AND CONFIDENTIAL
ATTORNEY CLIENT PRIVILEGE

Richard,
I am following up on the electronic data from Tim. Do we have any
more progress yet?

I also met with Mike Day yesterday to discuss his views on strategy
for opposing the subpoena if it becomes necessary. He added an important
fact. He said that because the CPUC is a California constitutionally
created entity, they take the view that they need not go to Superior Court
for enforcement of their orders. While Williams and others are claiming
that they should, Michael believes it much much more likely that the
procedural course will be for the ALJ to enter a decision and order which
the full Commission may but need not consider. If the Commission does not
take up the ALJ's order, at that point, we would be left with seeking a writ
of mandate at the Court of Appeals level. In other words, if the CPUC takes
that view, then there may be no de novo review anywhere outside of the CPUC.
This is because orders of the CPUC are only reviewable at the Court of
Appeals level. Thus, there may be no need for the Commission to even bother
trying to find a favorable judge in San Diego since the commission already
has the contempt power. In short, this wrinkle seems to make the ALJ
approach even less appealing than before. Williams, however, is still
pressing apparently on the theory that the CPUC should go to Superior Court.

Michael also had a suggestion for a back channel approach to the AG
that was raised on the governmental affairs side of the house that might be
useful to discuss next week.

Thanks
Gary

=======================================================
This email message is for the sole use of the intended recipient(s) and may
contain confidential and privileged information. Any unauthorized review,
use, disclosure or distribution is prohibited. If you are not the intended
recipient, please contact the sender by reply email and destroy all copies of
the original message.

To reply to our email administrator directly, send an email to
postmaster@brobeck.com
BROBECK PHLEGER & HARRISON LLP
http://www.brobeck.com