20130806Reply to PAC Response.pdf

Brad M. Purdy
Attorney at Law
Bar No. 3472
2019 N. 17tr St.
Boise,lD. 83702
[phone] (Land)
[phone] (Fax)
[e-mail]
Attorney for Petitioner
Community Action Partrership
Association of Idatro
BEFORE TIIE IDAHO PUBLIC UTILITIES COMIIflSSION
IN THE MATTER OF TIM APPLICATION )
oF PACIFTCORP DBA ROCI(Y MOUNTATN )
POWER TO TMTTATE DISCUSSIONS IYITH )
INTERESTED PARTIES ON ALTERNATTVE )
CASE NO. PAC-8.I3.04
COMMT]MTY ACTION PARTNER-
SHIP ASSOCIATION OF IDAHO'S
REPLY TO ROCKY MOUNTAIN'S
RESPONSE TO MOTION TO
COMPEL
REQTJEST FOR EXPEDTTEL
TREATMEI{T ATID POSSIBLE
RESCHEDT]LING OF CASE
PURSUAIYT TO PROCEDURAL
RULE 256
RATE PLAN PROPOSALS
)
I. INTRODUCTION
Pursuant to Rules 221-225 of the Commission's Rules of Procedure, 31.01.01.221-225,
and256 as well as Rules 26 and 37 of the Idaho Rules of Civil Procedure, the Community
Action Parfirership Association (CAPA[) hereby replies to the Response submiued by Rocky
Mountain Power on August 2,2013 to CAPAI's Motion to Compel.
U. BACKGROIJNI)
On July 30,2013, CAPAI filed a Motion to Compel rcsponses to discovery requests
submitted by CAPAI to Rocky Mountain in April, 2013. On August 1,2013, the undersigned
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
received a telephone call from legal counsel for Rocky Mountain, Mr. Daniel Solander, and
senior executive Mr. Ted Weston offering to respond to CAPAI's outstanding discovery Request
No. 6(b) if CAPAI promised that it would immediately withdraw its Motion to Compel, prior to
receiving and reviewing the discovery response. The undersigned declined to withdraw the
Motion until CAPAI received the discovery response and had a reasonable amount of time to
ensure its compliance with the request. The undersigned indicated that, so long as the Company
fully responded to the discovery in good faittU that the Motion to Compel would be withdrawn.
At this point, Messrs. Solander and Weston stated that that the employee responsible for
responding to the subject discovery request at issue (No. 6(b)), Ms. Joelle Steward, the same
employee who prepared the same type of information on behalf of PacifiCorp in Washington in
response to identical discovery requests of a different low-income advocate (the actual data
obtained in Washington is not the same as will be produced in Idatro and is of no value in this
case), was already working on a response and it was either completed or very close to it. After
listening to CAPAI's point of view from the undersigned, Messrs. Solander and Weston then
altered their initial proposal and agreed, unconditionally, that the Company would promptly
submit the discovery response to CAPAI. In retum, the undersigned promised a prompt review
of that discovery response and, if warranted, a prompt withdrawal of the Motion to Compel.
The next day, August 2,2013,the undersigned received anothertelephone call from Mr.
Solander who informed the undersigned that" "after talking with managemen!" the Company
was reneging on its agreement and would not respond to the discovery unless CAPAI not only
withdrew the Motion to Compel, but actually executed the Settlement Stipulation as well.
Requiring CAPAI to withdraw its Motion and join in the settlement would, of course, result in a
complete waiver of CAPAI's full parties'rights and, therefore, constifute a heavy "price" to pay
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
for an otherwise lawful and legitimate discovery request already completed by the Company.
Thus, the Company reneged not only from its agleement of the previous day, but took an even
harder line position. Though CAPAI endeavored to reach resolution with Rocky Mountain in
this dispute, it finally became apparent to CAPAI that Rocky Mountairu even in May when Mr.
Weston had repeatedly promised a response to request No. 6(b), has been deliberately stalling
and using a response to the discovery as leverage to compel CAPAI to join in the settlement.
This is why the matler now remains in dispute before the Commission and quite late in the
process.
In response to this surprising turn of events, the undersigned requested, during the August
2,2013 telephone call from Mr. Solander, that he put the Company's refusal to respond to the
discovery in writing and in the context of CAPAI's pending Motion to Compel. Mr. Solander
agreed to do this. Once again, however, the Company reneged on the representation of its legal
counsel and, on August 2,2013, Mr. Solander emailed the undersigned with a Word Document
attachment setting for0r the Company's position with respect to the Motion to Compel. A true
and correct copy of Mr. Solander's email and the Word document attachment are included as
Exhibits "A" and "Bu to the Second Affidavit of Brad M. Purdy filed contemporaneously
herewith.r
Rather than putting the Company's response in the context of the Motion to Compel as
promised (i.e., a Response to Motion to Compel in pleading format) the Word attachment is an
exfiemely unusual, confusing and self-contradictory document that fails to satisff Procedural
Rules regarding motions and responses thereto. The essence of the Response, however, leaves
no room for doubt as to the Company's final and unqualified position regarding the Motion to
t fxnibit B purports to be "confidential" buq for the neasons clearly articulated herein, is not confidential nor
privileged under any conceivable legal or facoal basis.
REPLY TO ROCKY MOLINTAIN'S RESPONSE TO MOTION TO COMPEL
Compel and, therefore, it qualifies as such. The ernail from Mr. Solander to the undersigned and
the attached Word document are attached to the Second Affidavit of Brad M. Purdy as Exhibits
'oA'o and "B" in their entirety and original form.
III. ARGUMENT
A. No Legal Basis for Refusd to Comply With Discovery.
Rocky Mountain still has not, to this day, even offered a legal basis for its refusal to
respond to CAPAI's discovery, the same discovery that PacifiCorp provided to another entity
similar to CAPAI in its pending general rate case in Washington and the same type of
information provided by AVISTA to CAPAI in that utility's 2012 general rate case.
As noted in CAPAI's first brief supporting its Motion, Rocky Motrntain gave numerous
assurances in the month leading up to the execution and filing of the settlement stipulation in this
proceeding that it would fully respond to CAPAI's discovery requests. It never did so and, as the
target deadline for filing the stipulation approached, Rocky Mountain applied increasing pressure
on CAPAI to join in the settlement, but always offering excuses as to why request No. 6(b) had
not yet, but would be, responded to. [n fact, just as it did in early June, Rocky Mountain
continues to use a meaningless offer of an undefined "collaborative effort" and/or "Technical
Workshop" (discussed below) as a means of forcing CAPAI to waive all parties' rights and sign
the settlement.
The Company's behavior since receipt of CAPAI's Motion to Compel seems designed to
waste even more time and resources as the August 16,2013 deadline for Staffand Intervenor
testimony rapidly approaches. CAPAI has repeatedly informed Rocky Mountain ttlat it needs the
information contained in request No. 6(b) early enough prior to the filing deadline to determine
whether the testimony is warranted and, if so, how the information produced by the Company
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
might affect that testimony. ln spite of this, or because of it, Rocky Mountain continues to
ignore CAPAI's discovery without any stated legal basis and has now created a situation
requiring either expedited treafinent of CAPAI's Motion or a complete rescheduling of this case.
B. Roclry Mountain Response is Not a Confidential Document-CAPAI is Not Seeking
"Cost of Service" Studies.
As stated above, Rocky Mountain titled its informal Response (Exhibit B) to CAPAI's
Motion to Compel as "confidential'and a "tertrr sheet resolving motion to compel and Idatro rate
plan." This characterization and claim of confidentiality are a transparent affempt to avoid
revelation of Rocky Mountain's tactics regarding the Motion to Compel. Exhibit B, in no way,
relates to settlement negotiations nor is there any legal basis for the contention that it is protected
from disclosure.
Regarding Rocky Mountain's apparent reliance on Rule 408 ofthe Idatro Rules of
Evidence, this illustrates a profound misunderstanding of Idaho's evidentiary rules. Rule 408
pertains to settlement or mediation pnocesses and has no bearing on discovery requests that seek
information not otherwise privileged. In fact, the rule ends with the sentence: "[c]ompromise
negotiations encompass mediation."
CAPAI's discovery requests and Rocky Mountain's refusals to respond to them were not
discussed during the two settlement conferences conducted in this case and do not involve any
confidential information or party position statement that was presented during those conferences.
The discovery requests seeks low-income consumption data and the impacts of theoretical
alternative rate designs on low-income customers' monthly bills. There is absolutely nothing
about the nature of such information as to protect any dispute over whetherthe Company will
turn the information over to qualifi it as "confidential." The information contained in Exhibit B
REPLY TO ROCKY MOT]NTAIN'S RESPONSE TO MOTION TO COMPEL
to the Second Affidavit of Brad M. Purdy is, therefore, simply not protected by law from
disclosure on the basis of confidentiality.
Exhibit B contains statements that are bewildering and simply wrong. For example, the
document begins with the following statemenl u The Company's position is that we have no
duty to perform a study on the cost of service information." CAPAI's discovery request No. 6
was already included in its initial brief in support of its Motion to Compel. Nowhere in that
request, or any other request, does CAPAI request a "cost of service sfudy." To the best of the
undersigned's knowledge, CAPAI has never requested a cost of service study from PacifiCorp.
Exhibit B further states:
o The Company is, however, willing to spend Company personnel time and resources to
complete the data request response provided we obtain some value in return.
o Accordingly, the Company proposes:
(1) that in return for the Company completing the cost of service study
requested in Data Request 6(b) and providing the results to CAPAI as
well as making appropriate Company personnel available to discuss the
study and results, CAPAI agrees to withdraw its Motion to Compel and
further agrees not to oppose the rate plan stipulation; and
(2) the Company will agree to hold a collaborative process to further
discuss and review the cost ofservice issues that have been raised by
CAPAI in this proceeding, and to discuss what action the Company
should take or propose for Commission approval as a result of the cost of
service studies.
Again, no such request for "cost of seryice" studies or infomration has ever been made by
CAPAI. The undersigned has had numerous discussions with Messrs. Solander and Weston and
confidently states that they are well aware that CAPAI seeks low-income consumption data and a
better understanding of how varying rate designs affect the poor. It is simply not believable that
these two educated and experienced gentlemen misunderstood CAPAI's request. Rocky
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
Mountain's tactic, sadly, is pure gamesmanship and an attempt to create some type of buffer
protecting the Company to do what it admitted on August 1,2013, that it had already done,
which is perform algebraic equations based on a low-income proxy group and calculate the
impact to low-income customer monthly bills. This has nothing to do with cost of service.
C. Position Statement Response Violates Numerous Commission Procedural Rules.
As is immediately apparent, Rocky Mountain's Response set forttr in Exhibit B, fails to
comply with the Commission's Rules of Procedure, IDAPA 31.01.01.000 in terms of its form.
Specifically, the Response violates Procedural Rule 62(b) in that it fails to contain the case
caption and title of the document. It also fails to contain the required personal inforrration of the
attorney as required by Rule 62(c). Furthermore, the undersigned has inquired as to whether the
Response was formally filed with the Commission as was CAPAI's Motion and related
pleadings. Rocky Mountain's Response has not been filed with the Commission in violation of
Procedural Rule 6l nor has it, to the best of the undersigned's knowledge, been served on any
other party to this proceeding, in violation of Procedural Rule 63.
D. Notwithstanding its Procedural Infirmities, Roclry Mountain Response set forth in
Exhibit B Constitutes aDe Facto Response to CAPAI's Motion to Compel.
Among the numerous tactics employed by Rocky Mountain in this case is its refusal to
teat the matter as a rate case even though, as fully articulated in CAPAI's initial brief, it is so
titled and characterized frequently throughout the Rocky Mountain's pleadings that initiated this
case. Nonetheless, Rocky Mountain has repeatedly contended to CAPAI that this proceeding is
o'not a rate case" even though it has resulted in a proposed general rate increase. Rocky
Mountain has obviously slipped arate case in through the door under the transparent disguise as
an informal "investigation" into various rate case procedural options. Oddly, the settlement
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
stipulation is completely devoid of any list of "alternatives" to a general rate case procedure. It is
simply a settlement of a general rate case processed under a misleading title and in violation of
law. Again, what came out the end of the settlement pipe was a general rate increase. Labels are
meaningless when they connadict substance and, contrary to the apparent beliefs of some,
procedure does matter and this entire proceeding is a compendium of procedural violations.
Rocky Mountain has also treated CAPAI and its discovery request with the same
misguided indifference and lack of accurate characterization. The Company freats the discovery
issue and resulting Motion to Compel as though this case were informal and being processed
under modified procedure, which it is not. Rocky Mountain has fully responded to numerous
discovery requests from the other parties but has treated CAPAI's discovery and the Motion to
Compel through informal telephone calls and emails rather than through a respectful adherence
to the Commission's Rules of Procedure.
Rocky Mountain has been urged by CAPAI to fully respond to the discovery since May
yet defiantly refused. CAPAI waited to file ir Motion to Compel as long as possible to grant the
Company time to provide the requested information. Even now, Rocky Mountain refuses to take
the maffer seriously and refuses to file a proper response to that Motion and, instead, continues to
file informal position statements or "proposals" to respond to the discovery, referring vaguely to
"collaboration," only if CAPAI waives all of its rights as a party. It is simply unconscionable to
condone this type of behavior and allow it to continue. Regarding the position statement set
forth in Exhibit B, this too is indicative of Rocky Mountain's treatnent of CAPAI's Motion to
Compel in a dismissive fashion. Regardless of the informal formatting of Rocky Mountain's
position statemento there is no doubt that it is the Company's final position on the Motion to
Compel and that any further attempt by CAPAI to resolve this dispute is pointless. The
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
Company has made it clear that it has no intention of filing a formal pleading with the
Commission in response to the Motion. Thus, the position statement in Exhibit B should be
treated as Rocky Mountain's Response to the Motion.
E. Roclry Mountain's Proposed I'Collaborative EfforUTechnical Workshop" Pointless.
Incidentally, Rocky Mountain, through Messrs. Solander and Weston, has referred to
their solution to the discovery dispute as both a "Collaborative Effort" and a "Technical
Workshop.u The Company has never offered a single detail or piece of information regarding
what either of these terms means in a practical sense so it matters not what they call it.
There has never been any definition provided by Rocky Mountain as to what this
collaborative effort would entail, when it would @cur, how long it would last, what the outcome
of it would be, or any other single relevant fact. Because the information sought by CAPAI has
already been completed or is near completion and because an offer of a vague collaboration is
completely unnecessary considering that the information sought has been provided with ease by
the Company's Washington division and in Idaho by Avista, and because CAPAI does not
possess the infonnation sought or the ability to calculate the impact on low-income customer
bills of varying rate designs, there is simply nothing to collaborate on. CAPAI can bring nothing
to the table in terms of "collaboration." Thus, it would be redundant, and a needless waste of
CAPAI's very limited time and resources to agree to this arrangement and would require CAPAI
to waive any and all rights to differ from the other parties' proposed settlement.
f'. Roclry Mountain Actions Have Created Situation Requiring Extraordinary Relief.
The record is already clear that Rocky Mountain gave CAPAI false assurances
throughout the end of April and month of May that it would respond to all of CAPAI's discovery,
including request 6(b). It wasnt until June that Rocky Mountain first declined to provide the
9REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
information and claimed that it was too busy with rate cases in other jurisdictions. CAPAI
endeavored in good faith to reach resolution on this matter for nearly 3 months and when it
became apparent that the Company was simply stalling and using its response to discovery as a
leverage tool to force CAPAI into settlemeng the Motion to Compel was filed. The Company,
well aware of the August 16,2013 testimony deadline, has done nothing more than to waste
more of CAPAI's time and resources and burn precious time as the testimony deadline
approaches.
As stated in the Second AffidaviL the undersigned has been informed that the
Commissioners will be unavailable for oral argument the entire week leading up to the testimony
prefile deadline (August 12-16,2013). This requires CAPAI to seek expedited relief pursuant to
Procedural Rule 256. Although CAPAI believes that the Company's position statement should
be heated for what it is, a response to CAPAI's Motion to Compel, it is imperative that CAPAI
receive the response with enough advance time to make use of it. Rule 256 allows for expedited
relief in less than fourteen (la) days time under appropriate circumstances. As stated, it is
CAPAI's position that Rocky Mountain has responded to the Motion to Compel and this Reply
completes the motion process such that Rule 256 expedited treatnent is not required. In that
regard, CAPAI seeks oral argument on its Motion to Compel at any time this week, August 6-9,
2013.
In the event, however, that the Commission determines that Rocky Mountain still has
fourteen (14) days from the date CAPAI filed its Motion to Compel to file a proper response
(i.e., August 13,2013) and the Commission issues an immediate Order requiring Rocky
Mountain to immediately provide the already-completed response to request 6(b), then CAPAI
would have sufficient time to process the response and incorporate it into testimony, or possibly
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL l0
choose not to file testimony. Regardless, because the Commission is unavailable to hear oral
argument and presumably to rule on the Motion to Compel at aoy point during the week of
August l2-l6,this presents a dilemma created by Rocky Mountain and that requires some type
of adjustnent of the existing schedule.
Should the Commission choose to not hear oral argument this week, and if it is in fact
unable to rule on the Motion next week, then CAPAI proposes that all dates and deadlines
already established in this case be delayed by a period of time no less than three (3) weeks. A
three week delay would result in the following schedule:
Friday, September 6,2013 Deadline for Staffand Intervenor
Testimony & Exhibits
Friday, September 20,2013 Deadline for Company Rebuttal
Testimony & Exhibits
Wednesday, October 2,2013 Technical Hearing
Tuesday, October 22,2013 Deadline for Post-Hearing Briefs
CAPAI submits that the foregoing three week extension is the minimum time necessary
for several reasons. Rocky Mountain's posture and behavior with respect to this dispute has been
erratic, unpredictable, misleading and the Company has already reneged on its agreements to
provide the requested inforrration. Thus, it is reasonable for CAPAI to assume that, even if the
Commission grants CAPAI's Motion to Compel, any response the Company gives might well be
factually and legally insufficient requiring even more motions, briefing and a waste of time and
resources for all involved.
IV. PRAYER FOR RELIEF
l. CAPAI requests that the Commission schedule the Motion to Compel for oral
argument to take place sometime prior to Friday, August 9,2013 and issue a ruling on said
Motion with a complete, good faith response due from the Company to CAPAI no later than
Tuesday, August 13, 2013.
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL
2. In the event that the Commission does not grant Request No. 1, then CAPAI
requests that the Commission extend the current schedule in this case by three (3) weeks as set
forth above.
3. That the Commission issue an award of sanctions as well as costs, fees and
expenses incurred as a result of the Company's actions, pursuant to Rule 37($$) of the Idatro
Rules of Civil Procedure and Title 61, Chapter 7 of the Idaho Code against the Company in a fair
and reasonable amount to be determined by way of a separate filing following the issuance of the
Commission's Order.
DATED, this 66 day of Augus! 2013.
REPLY TO ROCKY MOUNTAIN'S RESPONSE TO MOTION TO COMPEL t2
CERTIFICATE OF SERVICE
I, the undersignd, heneby certiff that on the 6th day of August 2013,I served a copy of
the foregoing document onthe following by electronic mail and U.S. Postage, first class.
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 841I I
ted. weston@fracifi corp. com
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 841l1
dani el. so I ander@pac i ficorp. com
Electronic Serwice Onlv:
Data Request Response Center
PacifiCorp
datarequest@.pac ifi c orp. com
Neil Price
Deputy Attorney General
Idatro Public Utilities Commission
4'12 W, Washington (837 02)
P0 Box 83720
Boise, lD 83720-0074
[e-mail]. eov
Randall C. Budge
Racine, Olson, Nyc, Budge & Bailey
201 E. Center
P0 Box l39l
Pocatello, ID 83204-1391
E-Mail: [e-mail]
Brubaker & Associates
16690 Swingley Ridge Rd., #140
Chesterfield, MO 63017
bcol I ins@.consultbai.com
James R. Smith
Monsanto Company
P.O. Box 816
Soda Springs, ID 83276
REPLY TO ROCKY MOI.]NTAIN'S RESPONSE TO MOTION TO COMPEL l3
Jim.r. [e-mail]
Eric L. Olsen
ASSOCIATION, INC: Racine, Olsoru Nye, Budge & Bailey
@xhibitNos.30 l-400) 201E,. Center
P0 Box l39l
Pocatello, ID E3204-l 39 I
[e-mail]
Anthony Yankel
29814 Lake Road
BayVillage, OH 44140
tony@.yankel.net
BenjaminJ. Otto
Idaho Conservation League
710N.66 St.
Boise,ID 83702
botto@ idahoconservation. org
Ronald Williams
Williams Bradbury, P.C.
l0l5 W. Hays St.
Boise,ID 83702
ron@wi I I iamsbradbury.com
Don Schoenbeck
RCS,Inc.
900 Washington St., Suite 780
Vancouver, WA 98660
[e-mail]
Tim Buller
Agrium,Inc.
3010 Conda Rd.
Soda Springs,ID 83276
[e-mail]
Ken Miller
Snake River Alliance
Box l73l
Boise,ID 83701
E-Mail : lani ller@,snalteriveralliance.org
REPLY TO ROCKY MOI.JNTAIN'S RESPONSE TO MOTION TO COMPEL t4