ORDER NO. 98-294

ENTERED JUL 16 1998

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UE 102

DISPOSITION: RECONSIDERATION GRANTED; RULING AFFIRMED IN PART, MODIFIED IN PART; SPECIAL PROTECTION GRANTED.

This Order relates to PacifiCorp’s Application for Reconsideration and/or for Certification to Commission and Motion for Extension of Time filed June 25, 1998. PGE submitted a statement in opposition to the PacifiCorp filing. PacifiCorp filed a reply to PGE’s statement in opposition.

The extension of time requested was granted in a June 26, 1998, Ruling by the Administrative Law Judge and is not considered further herein.

Because this decision grants special discovery protection to PacifiCorp, it is issued as an order of the Commission. The request for certification is thus moot.

Issues for Reconsideration

PacifiCorp originally objected to Data Requests 1-16 submitted by PGE. The June 15, 1998, Ruling by the Administrative Law Judge granted PGE’s Motion to Compel. Since then, PacifiCorp has answered Data Requests 5, 10, 11, and 12, which are no longer in dispute.

PacifiCorp claims that the June 15 Ruling did not adequately consider all the issues raised by PacifiCorp in its response to the Motion to Compel. It claims that the Ruling addressed only PacifiCorp’s objection based on the timing of the discovery and did not deal with the issue of the relevance of the information.

The June 15, 1998, Ruling did address the issue of relevance and drew a conclusion on that general issue favorable to PGE. PacifiCorp’s present filing and PGE’s response have, however, provided additional information and argument. We will thus reconsider the June 15 Ruling.

Data Requests 1-4 and 6-9

These Data Requests ask for information about PacifiCorp’s participation in the PGE Pilot Program (UE 101) as an Energy Service Provider (ESP), including the offer price for each of its customers or potential customers, other terms and conditions of the offer, the size of the load, expected usage patterns utilized by PacifiCorp for costing purposes, and estimates made by PacifiCorp of the cost of power used in the Pilot Program. PacifiCorp asks that these Data Requests be barred or, at the least, allowed only if the customers consent to the disclosure. PacifiCorp claims that the information sought is highly sensitive and that PGE's attempt to obtain it is an attempt to circumvent the tariffs, assessment process and confidentiality guidelines developed in PGE’s Pilot Program. PacifiCorp also asserts that providing the information would be contrary to provisions in its contracts with its customers.

PGE argues that the information is relevant. PGE proposed in UE 101 that a public utility such as PacifiCorp not be allowed to be an ESP because of the possibility of cross-subsidization. The Commission did not allow that provision to become effective. PGE is proposing a Rule E in this case which would prohibit such participation. The data it is requesting will, according to PGE, help it determine whether the harm it forecast from utility participation in a Customer Choice plan has in fact occurred in the Pilot Program.

PacifiCorp argues that PGE has not defined its proposed Rule E. It contends, moreover, that PGE’s claim that PacifiCorp would be engaged in cross-subsidization if it priced its services in the Pilot Program at marginal costs is "plain wrong," citing a scholarly text in support of its position.

Disposition. PGE has made a reasonable claim that this information is relevant to the issue of the participation of public utilities in the Customer Choice plan set out in UE 102. PGE set out its proposed Rule E relating to that issue in its motion to compel. It now seeks to determine whether the course of UE 101 supports its position. That is reasonable, given that one of the purposes of the Pilot Program in UE 101 was to gather information. In any event, the issue of utility participation as ESPs is relevant on its face. The issue of whether certain behavior is improper cross-subsidization is also relevant. It cannot be decided in a ruling on a motion to compel. The material sought is relevant.

The limitations on disclosure established in UE 101 cannot determine the discovery rights of parties in another proceeding. The disclosure limitations imposed by PGE and the Commission in UE 101 are a different matter from the issue of appropriate discovery in UE 102. Discovery is a right afforded to parties in a legal proceeding by our rules and by the Oregon Rules of Civil Procedure, which we follow except where our rules differ. The parties cannot limit discovery by their own action. Nor can the steps taken by a party to assure confidentiality of certain material in one proceeding be used to bar discovery of that material in another proceeding. Clearly, an entity such as a public utility cannot defeat the discovery rights of others by adopting a tariff or other stricture limiting disclosure. Thus, the rules imposed in the Pilot Program are not relevant to whether PGE can obtain discovery in this case. Similarly, PacifiCorp’s claim that release by it of some of the information sought would be contrary to its contracts is not a basis for limiting discovery. A party’s contract provisions cannot limit the discovery rights of another party in a proceeding.

However, PacifiCorp's concern about the sensitive nature of some of the material is understandable. Our Standard Protective Order limits the use of discovered material to matters pertaining to the proceeding involved and thus provides some protection. We have the ability to further limit discovery, as set out in ORCP 36 and elsewhere. In this case, the additional protection requested by PacifiCorp is appropriate and is adopted as set out below. In addition, PGE's agreement that PacifiCorp may redact the customer names from all information disclosed is adopted.

Data Requests 13-16

PacifiCorp argues that Data Requests 13-16 relating to PacifiCorp’s joint venture en*able seek information beyond the scope of the proceeding. En*able is a competitive provider of meter, bill and collect services. The Data Requests in question seek information such as the business plan for en*able and copies of all contracts or agreements between PacifiCorp and en*able. PacifiCorp also argues that these Data Requests subject a non-party (en*able) to discovery through the "attenuated link of its partially-owned parent." In response, PGE argues that, as the meter, bill, and collect functions will no longer be part of the regulated utility under its Customer Choice plan, the availability of providers of such functions is a relevant matter.

PGE has not made a case for the Data Requests relating to en*able. It is agreed by the parties that en*able is a competitive provider of meter, bill, and collect services. PGE’s questions, however, go beyond the matter of availability of such providers. PGE has made no showing that the business plan and the other information it seeks relating to en*able is relevant. Thus, the motion to compel is denied with respect to Data Requests 13-16. The June 15, 1998, Ruling is reconsidered and modified to that extent.

PacifiCorp Request for Additional Protection

PacifiCorp asks that, given the confidential, sensitive nature of the information, if any portion of the Motion to Compel is ultimately granted, the following additional protection be granted:

PGE's counsel be precluded form using the information in their capacity as counsel for Enron or First Point.

PacifiCorp be required to produce the information only to qualified persons at PGE and to PUC Staff.

PGE did not object to that request. No other party filed a response.

It is concluded that this special protection is warranted to protect the interests of PacifiCorp and others with whom it has dealt. In addition, as set out above, PacifiCorp may redact the names of customers from all information disclosed.

ORDER

IT IS ORDERED that the June 15, 1998, Ruling is reconsidered and modified as set out herein. Where not modified it is affirmed. PacifiCorp’s request for special protection is granted as set out in this order.

Made, entered, and effective ________________________.

A party may appeal this order to a court pursuant to ORS 756.580.