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Enron Mail |
Privileged and Confidential
Attorney Client Communication Attorney Work Product Here is my status report on today's activities: Attorney General Investigation Mike Day, Enron's outside counsel that does work before the PUC called me late tonight to tell me that he was contacted by another attorney that has done work for Enron in the past. This other attorney received a call from the California State Attorney General's office, Richard Rothman (phonetic) stating that the AG was going to be sending out preservation of documents letters to market participants including Enron and that they were going to be issuing subpoenas in the very near future. California Energy Oversight Board Some recipients of this email may not have been included on the list that got copies of the subpoena requests to the California ISO and California PX so I will duplicate them here. <<7-21EOB4.pdf<< <<Confiden.pdf<< <<EOBoard0.pdf<< <<EOBoard1.pdf<< Enron Investigation in Canada FYI <<dowjones.11.21.00.PDF<< EPMI Western Trading Desk Organization Chart <<Organizational chart.PDF<< Change of Venue Research by Peter Meringolo Here's preliminary analysis of change of venue: The court may change the venue of a trial "where there is reason to believe that an impartial trial cannot be had therein." C.C.P. o 397(b). The party requesting a change of venue must show actual "widespread" prejudice "extending over a long period of time." Nguyen v. Superior Court, 49 Cal. App. 4th 1781, 1791 (1996). Whether such a showing has been made is left to the discretion of the trial court. Id. Case law provides little guidance regarding how much evidence is enough for a party to show actual prejudice. As Witkin states, this "challenge is so vague and difficult to sustain." 3 Witkin, Cal. Procedure, Actions, o 871 (4th ed. 1996). In fact, a change of venue on these grounds has been granted in very few reported cases, the most recent of which was in 1938. See People v. Ocean Shore R.R., 24 Cal. App. 2d 420 (1938); San Joaquin and Kings River Canal and Irrigation Co. v. Stevinson, 179 Cal. 533 (1919). Ocean Shore was an eminent domain proceeding against 32 defendant land owners to acquire lands to build a state highway, one defendant's motion for change of venue was granted. People v. Ocean Shore R.R., 24 Cal. App. 2d 420 (1938). The defendant filed nearly 200 affidavits, which referenced newspaper articles, reports from civic meetings, and statements by citizens showing a widespread prejudice against the defendants and its cause extending over a long period of years. Id. at 427-28. The Court affirmed the trial court's discretion, noting that the affidavits show that "it would at least make it extremely doubtful whether an impartial trial could be had before a jury in that county." Id. at 428. San Joaquin was a condemnation action for the use of waters of a river for the benefit of landowners on the west side of the river. San Joaquin and Kings River Canal and Irrigation Co. v. Stevinson, 179 Cal. 533 (1919). In that action, the defendant operated an irrigation system for the benefit of the landowners on the east side of the river. Plaintiff filed one affidavit showing that the people on the east side of the river felt widespread prejudice against plaintiff and people on the west side of the river were disqualified as jurors because they were using defendant's irrigation system. Id. at 537-38. Defendant filed 22 affidavits in opposition. According to the Court, "if numbers of affiants or of affidavits were the determining factor in questions of this character the defendant herein would have been entitled to prevail upon said motion; but . . . this is not the rule." Id. at 538. Rather, the question is whether the trial court abused its discretion, and the Court held that it did not. These cases are contrasted with two case reported since 1938 in which change of venue motions were denied. See Riverside County Flood Control and Water Conservation Dist. v. Joseph W. Wolfskill Co., 147 Cal. App. 2d 714 (1957); Nguyen v. Superior Court, 49 Cal. App. 4th 1781, 1791 (1996). Riverside County was an eminent domain proceeding, where plaintiff was seeking to condemn property for the purposes of flood control. Defendants moved for a change of venue by presenting evidence that the advantages of the flood control project was widely publicized, the newspapers portrayed defendants as trying to prevent flood controls, that the cost of purchasing defendant's property was to come from county funds and therefore every taxpayer was adverse to defendant. 147 Cal. App. 2d at 716. Plaintiff's affidavit contradicted these facts. The trial court denied the motion, and this decision was affirmed on appeal. Id. at 717. In Nguyen, the State brought a suit against business owners in order to shut down a red light district in San Mateo. The defendant businesses moved for a change of venue. Defendants' evidence consisted of two newspaper articles reporting the raid on the businesses, that the city spent over $5000 investigating, and one affidavit of an employee of defendants' lawyer. The trial court denied the motion because the evidence fell "far short of proving actual prejudice." 49 Cal. App. 4th at 1791. Moreover, the trial was to be a court trial, not a jury trial, and defendants showed no prejudice by the court. Id. Ross v. Kalin, 53 Cal. App. 616 (1921), although an extreme case, exemplifies that a change of venue motion most likely requires a high standard of proof. In Ross, plaintiff's motion for change of venue was denied. Plaintiff filed numerous affidavits, in which uncontroverted facts showed that, as a result of plaintiff's "crusade against vice conditions' in the City of venue, plaintiff was assaulted by a mob, beaten, tarred and feathered, and chained to a tree. Id. at 617. The local newspaper published editorials approving the mob action. Id. Plaintiff's attorney was also assaulted and beaten, and banned from two organizations. Id. Of the 8000 to 12000 potential jurors, between 30 and 300 were prejudiced against the plaintiff at some point in time. Id. at 619. The appellate court affirmed, holding that the trial court did not abuse its discretion in finding that this prejudice against the plaintiffs did not outweigh the defendants' right to have their case tried in the county where they reside and their witnesses reside. Id. Summary of Business & Professions Code 17200 Cases I sent a two volume set to each of you with a summary of the California 17200 cases. (Dave and Mike, I know this may be superfluous for you but I thought you should see what I sent to everybody.) While the cases do not break out cleanly, I tried to divide the cases into those that defined unfair, preemption, the filed rate doctrine, conspiracy and damages. Sampling of Tapes I spoke with Steve Hall today (Stoel Rives). He has listened to approximately 2 hours of tapes. He said they are best described as using colorful language. There is some chit chat about what the participants guess the price might be or what they heard the price might be and some discussion about a line that may have gone down. Projects Underway Data Resolution - No progress today Fact Memo - I received Steve Hall's memorandum and will incorporate with the materials I have for distribution tomorrow. Contracts - We hope to have that package sent out tomorrow. PUC- No contact from Harvey Morris (PUC in house counsel.) 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 - 7-21EOB4.pdf - Confiden.pdf - EOBoard0.pdf - EOBoard1.pdf - dowjones.11.21.00.PDF - Organizational chart.PDF
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