Opinion
No. 01-30923DM, Chapter 11.
June 18, 2001
ORDER CONTINUING HEARING ON MOTION FOR ORDER REQUIRING PRODUCTION OF DOCUMENTS AND DIRECTING FURTHER DISCUSSIONS AMONG CERTAIN PARTIES
Presently on the court's calendar set for June 20, 2001, at 9:30 a.m., is the motion of debtor Pacific Gas and Electric Company ("PGE") for an order requiring production of documents by the California Independent System Operator Corporation and California Power Exchange Corporation (the "Motion"). The Motion was filed pursuant to instructions given to counsel for PGE by the court at a telephone conference attended by counsel for PGE, the California Independent System Operator Corporation, the California Power Exchange Corporation and the Official Committee of Participant Creditors in the Bankruptcy Case of the California Power Exchange Corporation ("Cal PX Committee"), and some but not all of the participants who have responded to the Motion.
As directed by the court, responses to the Motion were to be filed no later than five days prior to the June 20, hearing date. Accordingly, the court has now received responses from California Power Exchange Corporation ("Cal PX"), Williams Marketing and Trading, Puget Sound Energy, Inc., Enron Corp., El Paso Merchant Energy, LP, Reliant Energy Services, Inc., Idaho Power Company, Avista Energy, Inc., Mirant Americas Energy Marketing, LP, Mirant Delta, LLC, Mirant Potero, LLC, the Cal PX Committee and the Dynergy Power Marketing, Inc. entities. Further, the papers filed by the Mirant entities purport to be a joinder in objections of Duke Energy Trading and Marketing, LLC and the Dynergy Parties to the motion; as of the date of preparation of this Order, the court has not received, in chambers, any opposition from the Duke entities, but presumes they are en route.
While the court has had very little time to study the various oppositions and responses in detail, it is obvious that some progress has been made since the May 8, 2001, telephone conference and the "meet and confer" sessions among PGE's counsel and counsel for various participants and the Cal PX Committee have been worthwhile. Further, while there are several arguments and theories set forth by various participants and the Cal PX Committee, at least four predominant themes appear to be echoed by several responses: (1) that PGE should not be allowed to use the discovered information beyond the scope of its bankruptcy case; (2) whether and how participants should be entitled to obtain discovered information that pertains to their own claims; (3) the scope and operation of any protective order the court may issue; and (4) whether discovery rules and procedures applicable to proceedings before the Federal Energy Regulatory Commission should be applied rather than those under Fed.R.Bankr.P. 2004.
It is also apparent from the court's brief review of the responses that a modest amount of additional time may help PGE and the participants, Cal PX and the Cal PX Committee, resolve, in part (if not entirely), all of the differences that exist among them on these issues. It should also be obvious that the court could use more time to consider and reflect upon the various arguments presented by the respondents. Accordingly, the court is continuing until Thursday, June 28, 2001, at 1:30 P.M., the hearing on the Motion. PGE is directed not to file a reply to the various responses and opposition; provided, however, no later than noon on June 27, 2001, it is to file and serve by facsimile or personal delivery on all participants who have responded to the motion as well as Cal PX, the Cal PX Committee, its final proposed form of protective order and a brief statement of its position on any item not then resolved, specifically identifying the contention asserted by any particular respondent.