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Enron Mail |
Cc: lysa.akin@enron.com, tim.belden@enron.com
Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Bcc: lysa.akin@enron.com, tim.belden@enron.com X-From: "Ronald Carroll" <rcarroll@bracepatt.com< X-To: "Jeffrey Watkiss" <dwatkiss@bracepatt.com<, <GFergus@brobeck.com<, <Alan.Comnes@enron.com<, <Christian.Yoder@enron.com<, <James.D.Steffes@enron.com<, <Jeff.Dasovich@enron.com<, <Joe.Hartsoe@enron.com<, <Mary.Hain@enron.com<, <Richard.B.Sanders@enron.com<, <Sarah.Novosel@enron.com<, <Susan.J.Mara@enron.com<, <mday@gmssr.com< X-cc: <Lysa.Akin@enron.com<, <Tim.Belden@enron.com< X-bcc: X-Folder: \Richard_Sanders_Oct2001\Notes Folders\Iso_ pricecaps X-Origin: Sanders-R X-FileName: rsanders.nsf While I appreciate the virtue of flying below the radar if possible, the matter here is complicated by the fact that FERC's discovery rules (18 CFR, Subpart D) pertain only to "proceedings set for hearing . . . and to such proceedings as the Commission may order." 18 CFR 385.401. In this case, FERC stated that "a trial-type hearing is not necessary . . . ." and specifically rejected the use of a "trial-type evidentiary hearing." Slip op. at 47-48 & n.97. Thus, while I have not researched the matter as yet, my preliminary view is that the CPUC's attempt to invoke FERC's discovery processes would appear to be outside the contemplation of FERC's Nov. 1 order and its regulations, unless FERC specifically orders discovery in this case. (The CPUC seems to recognize the relevance of this consideration when it specifically attempts to equate "paper" hearings with "trial-type" hearings; see page 1 of its Motion.) The CPUC's motion may prompt FERC to decide whether or not to allow discovery in this case under Rule 401. While the CPUC's motion does not apply directly to marketers, FERC's ruling will be precedent in the event the CPUC or someone else hereafter serves discovery on other parties. As a result, we need to consider whether laying in the weeds risks losing an opportunity to present our views on whether FERC should allow discovery in a paper hearing with an expedited decisional track, particularly in light of the fact that Staff has already conducted. <<< Jeffrey Watkiss 11/08/00 10:31AM <<< Does anyone have an idea as to why marketers, including EPMI, are not included in the list of subject companies: Exh. B? Since EPMI is not a subject of the motion, why should it answer? Lying in the weeds may be a more prudent course of action. <<< "Fergus, Gary S." <GFergus@brobeck.com< 11/07/00 10:08PM <<< I just spoke with Mary to make sure we have the same information. Here are the facts we have so far. On November 4th, the CPUC filed a motion with FERC to adopt the form of protective order that the CPUC entered, to compel the production of documents and to shorten time to answer. According to Exhibit B (read to me by Nancy Pickover at Bracewell) the following CPUC moved against the following entities: AES, Williams, Duke, Dynegy, Reliant and Southern. Enron entities were NOT named in exhibit B. This is not to say that we could not be easily added to the group. While the motion reads as if the CPUC was moving against everybody, in fact, in footnote 2 they state they are only moving against the entities named in Exhibit B. We will have Exhibit B in hand first thing tomorrow via FEDEX to confirm this. To repeat, Enron is not named yet. Thanks Gary -----Original Message----- From: Mary.Hain@enron.com [mailto:Mary.Hain@enron.com] Sent: Tuesday, November 07, 2000 6:23 PM To: dwatkiss@bracepatt.com; Susan.J.Mara@enron.com; Richard.B.Sanders@enron.com; James.D.Steffes@enron.com; Christian.Yoder@enron.com; Jeff.Dasovich@enron.com; mday@gmssr.com; gfergus@brobeck.com; rcarroll@bracepatt.com; Alan.Comnes@enron.com; Joe.Hartsoe@enron.com; Sarah.Novosel@enron.com Cc: Tim.Belden@enron.com; Lysa.Akin@enron.com Subject: Important - CPUC Motion - Confidential Attorney Client Privilege and Work Product As you may already know, the CPUC filed a motion at FERC asking for a protective order and to compel production of the information they subpoened from us in the CPUC's OII case. Given the timing, we should discuss this on our conference call scheduled for tomorrow. They request that we be required: to answer their motion on Thursday, to provide the information within 5 working days of a FERC ordering production, and to provide of P&L information and spread sheets detailing our deals, specifically delivery point, delivery date, counterparty, volume and price. We may not have a problem providing this information for use by FERC in its proceeding subject to a confidentiality agreement but I think we would oppose their requests for: the information to be provided for "government eyes only" - this would prohibit EPMI from defending itself vis-a-vis other market participants. a FERC confidentiality order that would could allow FERC to "share" this information with the CPUC (for purposes of the PUC's OII proceeding) pursuant to 16 U.S.C. 824h©. 16 USC 824g© requires the Commission to make information available to state commissions as may be of assistance in state regulation of public utilities. We should argue that 16 USC 824h© does not apply here given that we are not a public utility nor does the PUC regulate how much market power wholesale marketers exercise or the level of market power mitigation (these are the bases the PUC provides for explaining why it should have this information.) the above contractual information to allow them to analyze the competitiveness of the forward market to evaluate the wisdom of the Commission's decision to allow the UDC's "unfettered access" to the forwards market. This argument is unpersuasive given that the CPUC can get information about the competitiveness of the forward markets from the Wall Street Journal's listing of NYMEX prices. ======================================================= 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. 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