20120906Hidden Hollow 1-15,1-5 to IPC.pdf

RECEIVED
20I2SEP-5 AM 8:t8
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Stephen R. Thomas, ISB No. 2326
MOFFATT, THOMAS, BARRETr, ROCK &
FIELDS, CHARTERED
101 S. Capitol Blvd., 10th Floor
Post Office Box 829
Boise, Idaho 83701
Telephone [phone]
Facsimile [phone]
[e-mail]
25214.0000
Attorneys for Complainant
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
HIDDEN HOLLOW ENERGY 2 LLC,
Case No. IPC-E-12-1 8
Complainant,
COMPLAINANT'S DISCOVERY TO
11 RESPONDENT (FIRST SET)
IDAHO POWER COMPANY,
Respondent.
COMES NOW complainant Hidden Hollow Energy 2 LLC ("Hidden Hollow"),
by and through undersigned counsel, MOFFATT, THOMAS, BARRETT, ROCK & FIELDS,
CHARTERED, and, for its first discovery to respondent Idaho Power Company under PUC
Rules 221, 222 and 225, serves the following interrogatories and requests for production of
documents to be answered within twenty-one (21) days from the date of service hereof as
follows:
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 1 CIient229681 .2
The following Definitions and Instructions shall apply to Complainant Hidden
Hollow's discovery to respondent:
iIfiXf
A. "Complaint" refers to the Formal Complaint filed on or about July 13,
2012 with the Idaho Public Utilities Commission, Case No. IPC-E- 12-18.
B. "Hidden Hollow" refers to Hidden Hollow Energy 2 LLC.
C. When asked to "identify" a person or entity or when asked for the
"identity" of a person or entity, you must state:
(a)The name of the person or entity; and
(b)The present or last known address and telephone number of the person or
entity.
D. When asked to "identif" a record or document or when asked for the
"identity" of a record or document, you must state:
(a)The type of record or document (e.g., letter, photograph, tape recording,
email, facsimile, etc.);
(b)The subject matter of the record or document and a general description of
its contents;
(c)The date, if any, which the document bears;
(d)The identity of the person who authored or created the record or
document; and
(e)The identity of the present custodian of the record or document.
E. In responding to these interrogatories and requests, the following
definition of the terms "document(s)" and "record(s)" shall apply: any tangible things upon
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) -2 CIient:2581.2
which has been placed handwriting, typewriting, printing, photostating, photographing or any
other form of recording, communication or representation, including but not limited to letters,
e-mails, words, pictures, sounds, magnetic impulses, symbols, numbers or any combination
thereof, whether or not visible to the unassisted human eye. This definition shall include, but is
not limited to, any and all originals, copies or drafts of any and all of the following: papers,
records, notes, correspondence, e-mails, patents, books, studies, minutes, accounting books,
maps, plans, charts, movies, assignments, notebooks, ledgers, bills analyses, surveys,
summaries, schedules, contracts, agreements, drawings, blueprints, sketches, invoices, orders,
acknowledgments, diaries, reports, findings, forecasts, tests, memoranda, telephone recordings,
telephone logs, letters, telegrams, telexes, cables, tapes, tape recordings, statements, receipts,
check registers, transcripts, recordings, photographs, witness statements, pictures, films,
computer programs and materials of any nature whatsoever. Any documents that contain any
comment, notation, addition, insertion or marking of any kind that is not part of another
document are to be considered as a separate document.
F.The word "you," "yours," or "Idaho Power Company" means Respondent
Idaho Power Company, its predecessors in interest, and all or any of its agents, representatives,
employees, or attorneys.
G."Trial" refers to hearing(s) before the Idaho Public Utilities Commission.
H."FESA" refers to a Firm Energy Sales Agreement between Idaho Power
Company and one or more seller of electricity.
I."Commission" or "PUC" means the Idaho Public Utilities Commission.
J."PURPA" means the Public Utility Regulatory Policies Act of 1978.
COMPLAINANT'S DISCOVERY TO RESPONDENT
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INSTRUCTIONS
I. If any document identified in an answer to an interrogatory or document
request was, but is no longer in your possession, custody or control, or was known to you but is
no longer in existence, state what disposition was made of it or what became of it. Your
response must be based not only on documents in your personal possession, but also on any
documents available to you, including documents in the possession of your agents, attorneys,
accountants or employees. No document requested to be produced herein can be destroyed or
disposed of by virtue of a record retention program or for any other reason.
2.If any document is withheld from production hereunder on the basis or
claim of privilege or otherwise, identify each such document and describe with particularity the
privilege or grounds (fact and law) upon which its production is being withheld.
3.These requests shall be deemed to call for non-identical copies of
documents. A document with handwritten notes, editing marks, etc., shall not be deemed
identical to one without such modifications, additions or deletions.
4.Documents shall be produced in their original file folders; or, in lieu
thereof, any writing on the file folder from which a document is taken shall be copied and
appended to such documents, and the person from whom or department or business for which
such file is maintained shall be identified.
5.The masculine gender shall be deemed to include the feminine and the
neuter where appropriate, and the singular shall be deemed to include the plural, and vice versa,
being construed as necessary to bring within the scope of the request all information and
documents that would otherwise be construed as being outside the request.
COMPLAINANT'S DISCOVERY TO RESPONDENT
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6.If any of the following discovery requests should require additional
documents in order to be made comprehensible or non-misleading, you are instructed to include
such additional documents as are necessary.
7.These discovery requests shall be deemed continuing, and any
information, documents or things requested which are acquired, obtained or later discovered to
be in your possession or within the knowledge of plaintiff, up to or including at the time of trial,
shall be furnished to this defendant or be made available for this defendant to copy or inspect
immediately upon such acquisition or discovery of said information, documents or things.
In your written responses to these requests for production, please restate
the text of each request preceding your response thereto.
The documents responsive to these discovery requests must be produced within
twenty-one (2 1) days at the offices of MOFFATT, THOMAS, BARRETT, ROCK AND FIELDS
CHARTERED, 101 South Capitol Boulevard, 10th Floor, Boise, Idaho 83701.
INTERROGATORIES
INTERROGATORY NO. 1: Please fully identify the name, address, and
telephone number of every person known to you or your attorney who purports to have any
knowledge of any fact pertinent to damages or liability issues in this case, and describe generally
what their knowledge is.
INTERROGATORY NO. 2: Please describe each and every statement, oral,
written or otherwise, made by Complainant or any employee, agent, or representative of the
Complainant regarding liability, damages, liquidated damages, force majeure, Dynamis Energy
LLC or Ada County landfill at Hidden Hollow, including gas volumes, air pollution and its
permitting by Idaho DEQ. For the purposes of this interrogatory, the term "statement" is not
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 5 Cflent2529681.2
limited to the definition of that term in Idaho Rule of Civil Procedure 26(b)(3), but includes any
and all communications of any and every kind, name or nature, including an "admission" as
defined by Idaho Rule of Evidence 801(d).
INTERROGATORY NO. 3: Identify all letters, emails, facsimiles or other
communication documents between Idaho Power Company, on the one hand, and (A) Ada
County, or (B) Dynamis Energy LLC, or (C) Hidden Hollow or its affiliates (including Fortistar
Methane Group), or (D) the Commission (including Staff thereof), on the other hand, regarding
the minimum, proper or necessary volume of landfill methane gas from the Ada County landfill
in order to support Complainant's PURPA project at the Ada County landfill which forms the
basis of the FESA dated December 8, 2010 underlying Commission Order No. 32180, entered
February 11, 2011.
INTERROGATORY NO. 4: With respect to each person that you might call to
testify as an expert witness at the trial of this cause, please separately state the following:
(a)the qualifications, education, training, experience or other credentials that
you contend qualify him or her to testify to the inferences and opinions that you intend to elicit at
trial;
(b)the subject matter as to which he or she is expected to testify and the
opinions he or she is expected to express; and
(c)the opinions or inferences as to which he or sheis expected to testify, and,
for each, all facts and data underlying each such opinion or inference.
INTERROGATORY NO. 5: Identify each and every document of importance to
this dispute, and its resolution, together with any exhibits that you may offer or introduce into
evidence at trial in this case, including the identity of the current custodian of each such exhibit.
COMPLAINANT'S DISCOVERY TO RESPONDENT

(FIRST SET) - 6 Client:2529681.2
INTERROGATORY NO. 6: Please set forth all facts, identify persons with
knowledge, and identify all supporting documents relative to the following affirmative defenses
set forth in your Answer identified below:
(a)Paragraph 29 regardingforce majeure;
(b)Paragraph 30 regarding waiver and/or estoppel;
(c)Paragraph 31 regarding the doctrine of unclean hands;
(d)Paragraph 32 regarding the doctrine of judicial estoppel;
(e)Paragraph 33 regarding failure to mitigate damages;
(f)Paragraph 34 regarding real party in interest;
(g)Paragraph 35 regarding no damages having resulted from the matters
alleged in the Complaint;
(h)Paragraph 36 regarding comparative fault, responsibility or failure to act;
and
(i)Paragraph 37 regarding the doctrine of laches.
INTERROGATORY NO. 7: In the first full paragraph of your Answer at page 3,
you state:
"[1] Force majeure is intended to address unforeseeable events or
events that are outside of the control of the parties. [2] Hidden
Hollow's failure to adequately plan for potential disruptions in its
fuel supply, specifically excluded as grounds for a claim of force
majeure in the FESA, does not constitute a valid event of force
majeure pursuant to the FESA. [3] Hidden Hollow's failure to
maintain the proper permits necessary to construct and operate its
facility are not valid events of force majeure pursuant to the FESA.
[4] Idaho Power's contract with Dynamis Energy, LLC, does not
constitute a valid event of force majeure pursuant to the FESA."
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) 7 CIent:25291.2
For each statement contained in each sentence, numbered 1 —4 above, please set forth all facts
and legal and Commission precedents in support thereof, and identify all documents which
support your statements.
INTERROGATORY NO. 8: With regard to Idaho Power Company's contract
with Dynamis Energy, LLC, please identify the individuals who negotiated that contract or
worked on its preparation on behalf of Idaho Power Company.
INTERROGATORY NO. 9: With regard to your contract(s) with Cogeneration,
Inc. which were the subject of litigation in Idaho state courts including two Idaho Supreme Court
opinions (129 Idaho 46 (1996) [Cogeneration 1] and 134 Idaho 738 (2000) [Cogeneration 1]])
please identify the Idaho Power Company people or representatives who negotiated or worked
on those contracts with the PURPA qualified facility owner(s) involved in those two lawsuits.
INTERROGATORY NO. 10: (A) Please identify all Idaho Power Company
employees or agents who, as the result of the Idaho Power Company litigation with
Cogeneration, Inc., adapted or otherwise changed Idaho Power Company's contract documents
(including forms and templates), business models or expectations due to the decisions in (1)
Congeneration I, and (2) Congeneration H. (B) Please identify each and every change in your
aforesaid contract documents relative to force majeure.
INTERROGATORY NO. 11: (A) For the past ten (10) years, please list all
PURPA qualified facilities which have had operation deadlines deferred or delayed due to force
majeure incidents, and for each such delayed or deferred facility, identify the nature of theforce
majeure event, and Idaho Power Company's response thereto. (B) Please identify documents
which articulate your position and that of the qualified facility owner relative to said force
majeure incident. (C) Please state the outcome of any dispute between Idaho Power Company
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 8 Cient2529681 .2
and a qualified facility owner in whichforce majeure was a primary defense raised for delay by
the qualified facility owner, and if a court or IPUC proceeding was involved, please call out its
docket number (for any Commission proceedings) and produce the complaint, answer and all
substantive Orders (for any court proceeding).
INTERROGATORY NO, 12: For the past ten (10) years, please (A) set forth all
PURPA Qualified Facility owners and projects for which Idaho Power Company has had a delay
liquidated damages clause in the power purchase agreement or FESA, which clause was invoked
by Idaho Power Company, and (B) for each such case identified above in Interrogatory 12(A),
please state the amount of money or other value called out in said clause, and (C) whether or not
the clause has been enforced literally by Idaho Power Company such that the value posted as
security for delay liquidated damages has been retained by Idaho Power Company in whole or
substantial part.
INTERROGATORY NO. 13: With regard to your formula in FESA paragraph
5.3.1 defining "delay Liquidated Damages," please set forth the history and justification of that
formula as being a reasonable, accurate and enforceable measure of damages for delay of the sort
at issue in this case.
INTERROGATORY NO. 14: (A) With regard to your FESA article 14 entitled
force majeure, please set forth Idaho Power Company's experience with "disruptions or
curtailment of the Facility's fuel supply" among sellers of power to you under PURPA which, in
Idaho Power Company's view, are "short term" disruptions or curtailment. (B) For each alleged
incident of curtailment or disruption, list the names of the PURPA Qualified Facility owner, the
dates and number of days of disruption or curtailment, and the reasons for said disruptions or
curtailment over the past ten (10) years.
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 9 Chent 2529681 .2
INTERROGATORY NO. 15: With regard to your FESA article 14 entitled force
majeure, regarding alleged "disruptions or curtailment of the Facility's fuel supply" among
sellers of power to you under PURPA which, in Idaho Power Company's view, are 'short term,'
please state the maximum number of days that, in your opinion, qualify as 'short term,' and then
set for all reasons, variables, factors and calculations necessary to explain your answer.
REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1: Please produce all reports, final or draft,
issued by your experts witnesses relative to the above-captioned case.
REQUEST FOR PRODUCTION NO. 2: Please produce all documents
referenced in your responses to the foregoing interrogatories.
REQUEST FOR PRODUCTION NO. 3: Please produce all documents
identified, or requested to be identified, in one or more of the foregoing interrogatories.
REQUEST FOR PRODUCTION NO. 4: Please produce all documents
constituting or reflecting Idaho Power Company's negotiations with, or analysis of, the actual or
potential impact on landfill methane quantities at the Ada County landfill if Id'aho Power
Company does enter or has entered into a purchase power agreement or FESA with Dynamis
Energy, LLC, on or about November 16, 2011.
COMPLAINANT'S DISCOVERY TO RESPONDENT
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REQUEST FOR PRODUCTION NO. 5: Please produce all documents
identified, or requested to be identified, in Interrogatory No. 3, above.
DATED this 5th day of September, 2012.
MOFFATT, THOMAS, BA IT, ROCK &
FIELDS, CHART___
By
StepJç R. Thomas - Of the Firm
Attcriiys for Complainant
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 11 CIient:2529081.2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 5th day of September, 2012, I caused a true
and correct copy of the foregoing COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) to be served by the method indicated below, and addressed to the following:
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(vj Email
Jean Jewell
Commission Secretary
IDAHO PUBLIC UTILITIES COMMISSION
472 W. Washington St.
Boise, ID 83702
Facsimile: [phone]
[e-mail]
Donovan E. Walker
Julia A. Hilton
IDAHO POWER COMPANY
1221 W. Idaho St.
P0 Box 70
Boise, ID 83707
Facsimile: [phone]
[e-mail]
[e-mail]
( ) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
(&1 Email
COMPLAINANT'S DISCOVERY TO RESPONDENT
(FIRST SET) - 12 Cflent:2529681.2