20150903-5047 FERC PDF (Unofficial) 9/3/2015 8:38:59 AM

UNITED STATES OF AMERICA

BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

Public Utilities Commission of the )

State of California )
Complainant, )
v. )
Sellers of Long-Term Contracts to the )
California Department of Water Resources )
Respondents. ) Docket Nos. EL02-60-007 and
) EL02-62-006 (Consolidated)
California Electricity Oversight Board )
Complainant, )
v. )
Sellers of Energy and Capacity under )
Long-Term Contracts with the )
California Department of Water Resources )
Respondents. )

CALIFORNIA PARTIES’ UNOPPOSED MOTION FOR EXPEDITED

ADOPTION OF ADDENDUM TO PROTECTIVE ORDER

To: The Honorable Steven A. Glazer,

Presiding Administrative Law Judge

Pursuant to Rules 212 and 410(c) of the Rules of Practice and Procedure1 of the

Federal Energy Regulatory Commission (Commission), the California Parties,2 hereby

1
18 C.F.R. §§ 385.212, 410(c) (2015).
2
The California Parties are the People of the State of California ex rel. Kamala D.
Harris, Attorney General, the Public Utilities Commission of the State of California,
Pacific Gas and Electric Company, and Southern California Edison Company. The
California Electricity Oversight Board (EOB) is the complainant in one of the two
underlying FERC proceedings, Docket No. EL02-62. In 2008, EOB was de-funded.
Pursuant to California Public Utilities Code Section 343, the Attorney General “shall
succeed to, and may exercise, all rights, claims, powers, and entitlements of the
Electricity Oversight Board in any litigation or settlement to obtain ratepayer recovery for
the effects of the 2000-02 energy crisis.” CAL. PUB. UTIL. CODE § 343 (West 2014).
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request approval of an addendum to the Amended Protective Order3 adopted in this

proceeding to provide for the “identification and clawback of privacy or privileged

communications” that may be contained in audio tapes that the California Independent

System Operator Corp. (ISO) is producing. This addendum will facilitate the timely

production of such audio tapes pursuant to a subpoena to the ISO that Your Honor issued

on May 12, 2015.4 Specifically, this Addendum A to the Amended Protective Order

provides a process under which the ISO may produce audio recordings in response to the

subpoena without first screening them to determine whether they contain information that

is privileged or otherwise exempt from production, without waiving any such claims.5

The California Parties are authorized to state that the active parties in this

proceeding – the Commission Trial Staff, Shell Energy North America (US), L.P., and

Iberdrola Renewables, LLC – do not object to adoption of the proposed addendum, which

applies solely to the ISO’s production of audio recordings.

3
“Amended Protective Order,” Public Utils. Comm’n. of the State of California v.
Sellers of Long-Term Contracts to the California Dept. of Water Resources, Docket Nos.
EL02-60, et al. (July 7, 2015).
4
“Order Granting California Parties’ May 11, 2015 Applications for the Issuance of
Subpoenas Duces Tecum,” Public Utils. Comm’n. of the State of California v. Sellers of
Long-Term Contracts to the California Dept. of Water Resources, Docket Nos. EL02-60,
et al. (May 12, 2015).
5
Unlike the California Parties’ January 7, 2015 proposed Addendum A, which
Your Honor did not approve, the current proposed Addendum A is a purely optional
mechanism for the production and clawback of privileged materials that applies only to
the ISO’s production of audio recordings.

2
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WHEREFORE, the California Parties respectfully request that Your

Honor issue the proposed Addendum A to the Amended Protective Order on an expedited

basis.

Respectfully submitted,

/s/ Candace Morey /s/ David M. Gustafson

Arocles Aguilar, General Counsel Kamala D. Harris
Candace Morey Attorney General of California
Charlyn Hook Mark Breckler
Public Utilities Commission Chief Assistant Attorney General
of the State of California Martin Goyette
505 Van Ness Avenue Senior Assistant Attorney General
San Francisco, CA 94102 Office of the Attorney General
(415) 703-3050 455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Paul B. Mohler
Law Offices of Paul B. Mohler, PLC David M. Gustafson
840 First Street, NE, 3rd Floor Deputy Attorney General
Washington, DC 20002 1515 Clay Street, 20th Floor
(571) 344-5097 Oakland, CA 94612-0550
(510) 622-2232
Lucus A. Ritchie
Louise K. Thomas Kevin J. McKeon
Pierce Atwood LLP Judith D. Cassel
254 Commercial Street Whitney E. Snyder
Portland, ME 04101 Hawke McKeon & Sniscak LLP
(207) 791-1100 Harrisburg Energy Center
100 North Tenth Street
Attorneys for the Public Utilities Harrisburg, PA 17101
Commission of the State of California (717) 236-1300

Attorneys for the People of the State of

California ex rel. Kamala D. Harris,
Attorney General

3
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/s/ Stan Berman /s/ Richard L. Roberts

Stan Berman Richard L. Roberts
Sidley Austin LLP Jane I. Ryan
701 5th Avenue, Suite 4200 Catherine M. Giovannoni
Seattle, WA 98104 Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Emily Watkins Washington, DC 20036
Lauren Freeman (202) 429-3000
Sidley Austin LLP
1501 K Street, NW, Suite 600 Attorneys for Southern California
Washington, DC 20005 Edison Company
(202) 736-8000

Mark D. Patrizio
Joshua S. Levenberg
Pacific Gas and Electric Company
77 Beale Street, B30A
Post Office Box 7442
San Francisco, CA 94120

Attorneys for Pacific Gas and

Electric Company

Dated: September 3, 2015

4
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CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing document upon

each person designated on the ListServ established in Docket Nos. EL02-60 and

EL02-62.

Dated at Harrisburg, PA this 3rd day of September 2015.

/s/ Whitney E. Snyder

Hawke McKeon & Sniscak LLP
100 North Tenth Street
Harrisburg, PA 17101
(717) 236-1300
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ADDENDUM A TO JULY 7, 2015 AMENDED PROTECTIVE ORDER

IN DOCKET NOS. EL02-60-007 AND EL02-62-006

1. This Addendum A to the Amended Protective Order shall govern the use of all
audio recording materials produced by the California Independent System Operator
(“ISO”) in this proceeding, including, but not limited to, audio recordings of certain
telephone conversations involving personnel acting on behalf of the California
Department of Water Resources’ California Energy Scheduling division (“CERS”) and/or
personnel acting on behalf of any market participant that was doing business with CERS,
that were recorded during the period January 17, 2001 through July 31, 2001.

2. The ISO agrees that audio recording materials exist that are responsive to the
subpoena issued to the ISO in this proceeding. The ISO recognizes that it may not be
practicable to thoroughly review, prior to production, each and every such recording for
possible protection under privacy, attorney-client, the attorney work product, or any other
applicable privilege or protection and still provide such recordings in a timely way. To
avoid the undue delay that would result from such pre-production review, the ISO agrees
that information may be disclosed more efficiently through the discovery process without
risk of automatic waiver of privacy, privilege or work-product protection.

3. The terms of this Addendum A apply to all audio recording materials that the ISO
produced in the above-referenced dockets.

4. Definitions – This Addendum A incorporates all of the definitions set forth in the
Amended Protective Order. For purposes of this Addendum A, the following additional
definitions shall apply:

(a) "Addendum A Access Certificate" means the certificate annexed hereto by

which persons shall certify their understanding that access to Audio Recordings is
contingent on, and provided pursuant to, the terms and restrictions of this Addendum A,
and that such representatives have read this Addendum A and agree to be bound by it.
All Addendum A Access Certificates shall be served upon persons in accordance with the
procedures adopted for service in this proceeding.

(b) “Addendum A Reviewing Representative” means a person who meets the

definition of Reviewing Representative as set forth in the Amended Protective Order and,
in addition, has signed the Addendum A Access Certificate.

(c) “Audio Recordings” means all audio recording materials produced by the
ISO in response to discovery in this proceeding.

(d) “CERS” shall, for purposes of this Addendum A, refer to the California
Energy Resources Scheduling division of the California Department of Water Resources
acting solely under the authority and powers created by California Assembly Bill 1 of the
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First Extraordinary Session of 2001-2002, codified in Sections 80000 through 80270 of

the California Water Code, and not under its powers and responsibilities with respect to
the State Water Resources Development System, including its consultants, employees,
agents, representatives, and contract personnel.

(e) “ISO” shall mean the California Independent System Operator

(f) “Notes of Audio Recordings" means memoranda, handwritten notes, or any

other form of information (including electronic form) which copies or discloses a
conversation, discussion, dialogue or any other type of verbal statement consisting of
Privacy Materials and/or Privileged Materials contained in an Audio Recording, in whole
or in part. Notes of Audio Recordings are subject to the same restrictions provided in this
Addendum A for Audio Recordings except as specifically provided in this Addendum A.

(g) “Non-Responsive Materials” means, with respect to any Audio

Recordings produced by the ISO in response to a discovery request (including a
subpoena) which asks for Audio Recordings involving one or more non-ISO entities, any
conversation, discussion or dialogue that does not involve at least one participant who is
an employee, agent, consultant, contractor or representative of the non-ISO entity or
entities identified in the discovery request.

(h) “Privacy Materials” means any personal information or materials that could
be shielded from release pursuant to any authority under which such information can
lawfully be withheld in a proceeding before the FERC, including, but not limited to,
social security numbers, personal financial information, medical information, or the
names of minor children.

(i) “Privileged Materials” means any information or materials that may be

subject to a privilege of any kind under which such materials would otherwise be
shielded from release pursuant to any authority under which such materials can lawfully
be withheld in a proceeding before the FERC, including, but not limited to, attorney-
client, attorney work product, or joint defense privileges.

(j) “Receiving Participant” means any person that receives Audio Recordings
protected under the Amended Protective Order and this Addendum A.

5. Upon adoption of this Addendum A by the Presiding Administrative Law Judge

for inclusion in the Amended Protective Order, the ISO will provide access to Audio
Recordings to any person that has signed the Non-Disclosure Agreement as well as the
Addendum A Access Certificate and has sought such Audio Recordings in discovery in
this proceeding. Such production may be made by one participant to another in this
proceeding, subject to confirmation that the requisite Non-Disclosure Agreement and
Addendum A Access Certificate have been executed.
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6. Unless otherwise specifically provided in this Addendum A, all of the provisions

set forth in the Amended Protective Order, including those related to the release of
Protected Materials, shall apply to all Audio Recordings, and unless otherwise agreed to
by the ISO and the Receiving Participant(s), the Audio Recordings will be treated as if
they had been properly designated as Protected Materials pursuant to the terms of the
Amended Protective Order.

7. Notwithstanding any order terminating this proceeding, this Addendum A shall

remain in effect until specifically modified or terminated by the Presiding Administrative
Law Judge, the Chief Administrative Law Judge, or the Commission.

8. As a condition of receiving access to the Audio Recordings, the Receiving

Participant and each Addendum A Reviewing Representative agrees that the production
of any Audio Recordings with Privacy Materials, Privileged Materials or Non-
Responsive Materials shall be deemed to be inadvertent and shall not result in or
constitute a waiver of any privilege or other protection that may otherwise be accorded
such materials under any jurisdiction under which such privilege or protection may
otherwise be claimed.

9. Receiving Participants shall not be under an obligation to review each Audio

Recording that may be made available to them. However, to the extent a Reviewing
Participant reviews Audio Recordings, it shall provide guidance regarding what
constitutes Privacy Materials, Privileged Materials and Non-Responsive Materials to its
Addendum A Reviewing Representatives, and shall make a good faith effort to identify
materials that may constitute Privacy Materials, Privileged Materials or Non-Responsive
Materials. Receiving Participant shall immediately notify the ISO if potential Privacy
Materials, Privilege Materials or Non-Responsive Materials are identified. .

10. Upon notification by a Receiving Participant that an Audio Recording may include
Privacy Materials, Privileged Materials or Non-Responsive Materials, the ISO will
promptly review such Audio Recording, and make a determination as to whether or not
the Audio Recording should be partially or entirely redacted. If the ISO determines that
an Audio Recording requires partial redaction, the ISO will, in coordination with the
Receiving Participant, make arrangements to redact such Privacy Materials Privileged
Materials, or Non-Responsive Materials.

11. If the ISO determines that an Audio Recording should be partially or entirely
redacted and such determination is not disputed, all Addendum A Reviewing
Representatives will immediately upon notification thereof use their best efforts to redact
those portions so identified in the copies of the Audio Recording and Notes of Audio
Recordings in their possession. As soon thereafter as possible, the Receiving Participant
shall send the ISO confirmation, in writing, that the Audio Recording and applicable
Notes of Audio Recordings have been redacted or destroyed.
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12. If a Receiving Participant disagrees with a determination made by the ISO

regarding whether an Audio Recording contains Privacy Materials, Privileged Materials
or Non-Responsive Materials, the ISO and the Receiving Participant, as applicable, will
engage in good faith negotiations and shall use their best efforts to resolve such dispute.

13. If participants to this Addendum A are unable to resolve a dispute hereunder,

despite using their best efforts, the Presiding Administrative Law Judge, upon motion,
shall resolve such dispute. If the Presiding Administrative Law Judge finds that an Audio
Recording, or portion thereof, does meet the definition of Privacy Materials, Privileged
Materials or Non-Responsive Materials, or otherwise determines that the materials should
not be produced in whole or in part, then any Addendum A Reviewing Representatives
that have retained such Audio Recordings, or applicable Notes of Audio Recordings, or
portions thereof, shall destroy them and within a reasonable time provide confirmation, in
writing, that the Audio Recording and Notes of Audio Recordings, or redacted portions
thereof, have been destroyed.

14. Except for Audio Recordings that have been made public, Audio Recordings will
be maintained in a secure location, and access shall be restricted to Addendum A
Reviewing Representatives.

15. With respect to any Audio Recording provided pursuant to this Addendum A, the
Receiving Participant agrees that it is prohibited and estopped from arguing, claiming, or
otherwise advocating in any manner whatsoever, before any court, agency, any other
decisional authority, or legal proceeding, that the production of Audio Recordings
pursuant to this Addendum A waives any privilege or other protection that the ISO may
have with respect to such audio recording or portions thereof.

16. All participants reserve the right to argue before the Presiding Administrative Law
Judge or other decisional authority that Audio Recordings that have not been found to be
Privacy Materials, Privileged Materials or Non-Responsive Materials should nonetheless
not be admitted as record evidence on any legitimate basis under which evidence
otherwise may be excluded.

17. Any violation of this Addendum A and of any Addendum A Access Certificate
executed hereunder shall constitute a violation of an order of the Commission.

Administrative Law Judge

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UNITED STATES OF AMERICA

BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

Public Utilities Commission of the )

State of California )
Complainant, )
v. )
Sellers of Long-Term Contracts to the )
California Department of Water Resources )
Respondents. ) Docket Nos. EL02-60-007 and
) EL02-62-006 (Consolidated)
California Electricity Oversight Board )
Complainant, )
v. )
Sellers of Energy and Capacity under )
Long-Term Contracts with the )
California Department of Water Resources )
Respondents. )
)

ADDENDUM A ACCESS CERTIFICATE

I hereby certify my understanding that access to Audio Recordings is provided to me

pursuant to the terms and restrictions of Addendum A to the Amended Protective Order
in this proceeding, that I have been given a copy of and have read the Amended
Protective Order, including Addendum A thereto, and that I agree to be bound by it. I
acknowledge that a violation of this certificate constitutes a violation of an order of the
Federal Energy Regulatory Commission.

By: ________________________________
Name: _____________________________
Title: ______________________________
Representing: _______________________
Date: ________________
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Document Content(s)

Unopposed Motion for Addendum A .PDF..................................1-5

Addendum A to Protective Order.PDF....................................6-10