Points of Procedure

Dollar Amount Derived From Privileged Material Remains Privileged

Mark Reishus
October 12, 2018 at 07:45:13 ET
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On Oct. 11, 2018, in a proceeding involving Pacific Gas and Electric Co.’s (PG&E) eighteenth Transmission Owner Tariff filing, Carmen A. Cintron, FERC’s Chief Administrative Law Judge (ALJ), granted PG&E’s motion to continue to treat as privileged material the aggregate dollar amount derived by counsel for the California Public Utilities Commission and the People of the State of California (CPUC) and used in post-hearing briefs.

PG&E explained in its motion that counsel for CPUC contests the privilege designation PG&E assigned to the dollar amount CPUC derived from information in a privileged document.

PG&E asserted that “there is no reason to lift the Privileged Materials protection for the aggregate dollar amount in question. Counsel for the CPUC have represented that they are not asserting that the underlying Privileged Materials designation for the exhibit from which they derived their ‘aggregate number’ should be changed. … While PG&E does not know precisely how counsel for the CPUC prepared the ‘aggregate number’ used in their briefs, and PG&E cannot speak to its accuracy for purposes of how the CPUC briefs use it, counsel for the CPUC readily concede that the number was ‘derived from information provided’ in a Privileged Materials exhibit. As such, it too is Privileged Materials.”

Cintron concluded that the “number at issue was ‘obtained from’ the aggregated privileged data in Ex. TNC-0185 (PRIV), and therefore falls under the Protective Order’s definition of ‘Privileged Materials.’ Contrary to the assertion of CPUC, there was no need for PG&E to file an affidavit affirming the continued privileged status of the information given that there are no disputed facts and all parties agree that CPUC derived the number at issue by aggregating the data in Ex. TNC-0185 (PRIV). CPUC’s Answer also seeks relief by now tangentially attacking the privileged status of Ex. TNC-0185 altogether, but this attempt is procedurally deficient and falls short. … Accordingly, PG&E’s Motion is granted and the dollar figure at issue shall retain its status as ‘Privileged Materials’ under the Protective Order.”

See ¶410-46: Trade Secrets Privilege for more summaries of orders discussing privileged material.

Pacific Gas and Electric Co., Order of Chief Judge Maintaining Privileged Status of Aggregate Dollar Figure, 165 FERC ¶63,005 (2018) (C.J. Cintron) [Docket No. ER16-2320-002].