28733.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

KIMBALL PROPERTIES LIMITED
PARTNERSHIP, AND HEWLETT PACKARD
COMPANY,

COMPLAINANTS

vs.

IDAHO POWER COMPANY, AN IDAHO
CORPORATION

RESPONDENT.
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CASE NO. IPC-E-00-12

ORDER NO. 28733

On August 10, 2000, Complainants, Kimball Properties Limited Partnership (Kimball) and Hewlett Packard Company (Hewlett Packard) filed a Complaint for reparations against Idaho Power Company (Idaho Power; Company).
Complaint
As reflected in the Complaint, Kimball constructed and owns four buildings located on North Sailfish Place, West Golden Trout Street and North Kimball Place in the City of Boise, Idaho, commonly referred to as the Kimball Business Park. Hewlett Packard occupies the four buildings and directly reimbursed Kimball for construction costs including the cost of connecting to Idaho Power’s system. Complainants allege that Idaho Power informed Complainants in early 1999 that it did not have sufficient and reliable distribution/transmission capacity to serve the Kimball Business Park. To provide the requested service, Idaho Power constructed a new 20 MW substation (Bethel Court Substation) near the corner of Maple Grove and Franklin Streets and assessed Kimball approximately 20% of the construction costs, $490,824. Kimball on October 29, 1999 tendered payment under protest.
Complainants contend that the area in the vicinity of the Kimball Business Park is a rapidly growing business and commercial district and that Idaho Power would have had to construct a new substation in that vicinity to meet generic load growth regardless of the construction of the Kimball Business Park. Complainants allege that no other customers have
been required or asked to pay a portion of the Bethel Court Substation. Complainants contend that they have suffered discriminatory treatment at the hands of Idaho Power and request reparations in the amount of $490,824 with interest from October 29, 1999, the date of payment.
Motion to Compel
On April 26, 2001, Complainants filed a Motion to Compel discovery responses. Complainants contend that on March 8, 2001 Complainants served their first set of discovery requests and requests for production on Idaho Power Company. The Company’s responses were served on Complainants on March 22, 2001. In responses to Interrogatory Nos. 2, 3, 4, 5, 6, and 7, and Request for Production (RFP) Nos. 2, 3, 4, 5, 6, 7, and 9, the Company asserted an objection that each request is “overly broad, vague and burdensome and purports to elicit information that is not reasonably calculated to lead to the discovery of admissible evidence.” In addition, the Company objected to Interrogatory No. 1 and Request for Production No. 1 pursuant to Commission Rule of Procedure 225.01.
Complainants contend that the Company’s objection to its discovery requests are unsupportable, self-serving, boilerplate assertions designed to cause unnecessary delay or needless increase in the costs of litigation, in violation of Rule 26(f)(1)(B), of the Idaho Rules of Civil Procedure (IRCP). Complainants contend that their discovery requests are all reasonably calculated to, directly or indirectly, lead to the discovery of admissible evidence. Complainants request that the Commission order the Company to fully respond to all discovery requests pursuant to IRCP Rule 26(f)(2) and order the Company to pay the reasonable expenses incurred by the Complainants due to the Company’s bad faith responses, including Complainants’ reasonable attorney fees.
Idaho Power Company on April 30 filed a response to Complainant’s Motion to Compel requesting that the Commission set the matter for oral argument.
Pursuant to Commission Notice, Oral Argument on Plaintiff’s Motion to Compel was held in Boise on May 8, 2001. The following parties appeared by and through their counsel of record:
Kimball Parties Ltd’ Partnership
Hewlett Packard Company Peter J. Richardson

Idaho Power Company Larry D. Ripley

The Commission has reviewed the filings of record in this case and notes that Complainant’s oral argument followed closely the argument set forth in its filed Motion to Compel. Idaho Power’s oral argument expanded on its filed response and provided more detailed answers. The arguments and respective positions of the parties and the Commission’s related findings can be summarized as follows:
Interrogatory No. 1 and Request for Production No. 1.
Complainants inquire as to the policies, procedures and criteria used to identify the circumstances under which customers of Idaho Power are required to contribute to the cost of transmission and/or distribution infrastructure. The Company responds that no written criteria or published statements of policy exist. The Company provides a copy of its Tariff Rule H. Interconnection requests from Schedule 19 customers, the Company states, are handled on a case-by-case basis where in each instance a determination is made as to whether there exists enough capacity to serve the requested load. The Company offers the names of four employees whom Complainants may depose. The Commission notes that production requests or written interrogatories should not be used to obtain statements of opinion or policy not previously written or published and may be objected to on that ground. Idaho Power is accurate in its reliance on Rule 225 of the Commission’s Rules of Procedure (IDAPA 31.01.01) given its emphatic assertion that no written materials exist. The Commission finds that the Company has adequately and fully responded. The requested information should be obtained through deposition. Consequently, Idaho Power is not required to provide further answer to Interrogatory No. 1 or Request for Production No. 1.
Request for Production No. 2.
Complainants request copies of all documents, including notes, memoranda, correspondence and studies, relating to the construction of the Bethel Court Substation. Complainants contend that the information requested is reasonably calculated to lead to discovery of admissible evidence. Reference Rule 26(b)(1) of the Idaho Rules of Civil Procedure. The Company contends that the need for this substation and cost of the substation are not at issue. At issue, the Company states, is only allocation of a portion of substation costs. The Company states that what has been requested is a mound of information. The Commission finds that Complainants need to ask a more focused direct question. Consequently, Idaho Power is not required to answer Request for Production No. 2, as posed.

Interrogatory Nos. 2 and 3.
Complainants in Interrogatory No. 2 request the Company to identify all individuals with knowledge regarding construction of the Bethel Court Substation. The Commission finds it reasonable to require the Company to identify all employees/individuals (not administrative support personnel) involved in the decision-making process or who provided analyses upon which the decision was based. Consequently, Idaho Power is required to answer Interrogatory No. 2.
Complainants in Interrogatory No. 3 request the Company to identify all individuals involved in the decision making process to construct the Bethel Court Substation and further request that the Company describe the decision making process. The Commission finds the interrogatory reasonable and finds it reasonable to require the Company to provide the information requested. Consequently, Idaho Power is required to answer Interrogatory No. 3.
Interrogatory Nos. 4 and 5.
Complainants in Interrogatory No. 4 request the dates of installation, sizes and current loads of all substations within a seven-mile radius of the Bethel Court Substation. The Company contends that the information requested is burdensome and onerous. It is unclear to the Commission from the parties’ argument whether there are only four substations or fifteen to twenty substations. The Company contends that what is requested is a burdensome amount of data. The Commission finds it reasonable to require the Company to provide the information requested. If the data requested is voluminous, the Company should provide Complainants with reasonable access to the information. Consequently, Idaho Power is required to answer Interrogatory No. 4.
Complainants in Interrogatory No. 5 request 11 years of substation load data. The Company contends that the request is vague and that the Company should not be forced to operate at its peril. The Commission finds it reasonable for the Company to provide the information requested. The Commission finds that to the extent the Company is confused as to what is being requested, Complainants should provide clarification. If the data requested is voluminous, the Company should provide Complainants with reasonable access to the information. Consequently, Idaho Power is required to answer Interrogatory No. 4.

Interrogatory No. 7.
Complainants in Interrogatory No. 7 request a list of all substations in Idaho Power’s system along with related dates of construction, total construction cost, size and location. The Company contends that cost information is not segregated. The Company also questions what cost information is being requested—original construction costs? all capital improvements? The Commission finds it reasonable to require that the Company provide the location, size and date of construction of all system substations. The Company is not required to provide cost information. Consequently, the Company is required to answer Interrogatory No. 7 in the manner indicated by the Commission.
Request for Production Nos. 4, 5 and 6.
In RFP No. 4 Complainants request a map of transmission lines and distribution lines showing voltage levels and location of transformers within a seven mile radius of the Bethel Court Substation. In RFP No. 5 the Complainants request that the Company provide all earlier versions of the map going back to 1990. The Company contends that we are talking about a whole lot of maps. The Commission finds that to the extent that the requested maps exist, the Company should make the maps available for viewing. Consequently, Idaho Power is required to answer RFP Nos. 4 and 5.
In RFP No. 6 the Complainants request copies of all aerial photographs in the Company’s possession of the area in the vicinity of the Bethel Court Substation that were taken at anytime after and including 1990. The Company responds that computer images exist, not photographs. The Commission finds that the Company has provided a sufficient response. Consequently, Idaho Power is not required to provide further answer to Interrogatory No. 6.
Request for Production Nos. 7 and 9 (sic 8).
Complainants in RFP No. 7 request that the Company provide all load flow studies within the area within a seven mile radius of the Bethel Court Substation—both before and after construction of the Bethel Court Substation. The Commission finds that the request is overly broad. Complainants should narrow the request. If the information requested as redefined is voluminous, the Company should provide reasonable access to the information. Consequently, Idaho Power is not required to answer Request for Production No. 7, as posed.
Complainants in RFP No. 9 (sic 8) request all load growth projections for the area within a seven-mile radius of the Bethel Court Substation. The Commission finds that the Complainants have not established adequate time parameters to its request. We find it reasonable that the Company provide the requested data since 1990 (11 years). Consequently, Idaho Power is required to furnish the data requested in Production Request No. 9 (sic 8) in the manner indicated by the Commission.
The Commission is disappointed that the Company chose to initially respond in such a short and cursory manner to Complainants Production Requests. We find based on oral argument that had the Company elaborated with some specificity as to the specific nature of its objections, that the parties might likely have resolved this dispute without Commission involvement.
The Commission finds that Complainants’ request for sanctions and attorney’s fees in this matter should be denied. Sanctions are appropriate for failure to comply with an order compelling discovery. Reference IDAPA 31.01.01.232. We find that unless and until Idaho Power refuses to comply with this or any other order compelling it to respond to discovery, that it is not subjection to sanctions.
O R D E R
IT IS HEREBY ORDERED that Complainant’s Motion to Compel, and related request for sanctions and attorney fees in this case are granted and denied as set forth above.
THIS IS AN INTERLOCUTORY ORDER. Any person interested in this Order may file a petition for review within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order. A petition to review may request that the Commission: (1) rescind, clarify, alter, amend; (2) stay; or (3) finalize this Interlocutory Order. After any person has petitioned for review, any other person may file a cross-petition within seven (7) days. See Rules 321, 322, 323.04, 324, 325 (IDAPA 31.01.01.321–325.)

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this _______ day of May 2001.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

vld/O:IPC-E-00-12_sw2

ORDER NO. 28733 1

Office of the Secretary
Service Date
May 18, 2001