UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION. Complainant, Respondents. Complainant, Respondents.

Transcription

1 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Public Utilities Commission of the State of California Complainant, v. Docket No. EL Sellers of Long-Term Contracts to the California Department of Water Resources California Electricity Oversight Board Respondents. Complainant, v. Sellers of Energy and Capacity Under Long- Term Contracts with the California Department of Water Resources Docket No. EL (consolidated) Respondents. CALIFORNIA PARTIES MOTION (1) TO COMPEL SHELL TO EXPEDITE PRODUCTION OF AUDIO RECORDINGS (2) FOR MODIFICATION OF THE PROCEDURAL SCHEDULE, AND (3) FOR EXPEDITED CONSIDERATION To: The Honorable Steven A. Glazer, Presiding Administrative Law Judge Pursuant to Rules 212 and of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission ( Commission ), Rule 1B.-C. of Your Honor s Rules for the 1 18 C.F.R , (2014).

2 Conduct of the Hearing, 2 and the Discovery Plan adopted in these proceedings, 3 having made intensive, good faith efforts to resolve the discovery dispute prior to filing, the California Parties 4 move Your Honor to remedy Shell Energy North America (US), L.P. s ( Shell ) continuing failure to produce trader tape audio files which were requested three months ago in their First Set of Data Requests on December 5, 2014, by issuing: (1) An order compelling Shell to immediately produce all audio recordings for the period May 1, 2000 June 20, 2001, as requested in CA-SHELL-2, and; (2) An order modifying the procedural schedule to reset the due date for the California Parties direct testimony from March 20, 2015 to a date 30 days from the date Shell is required to deliver or actually delivers all audio files to the California Parties, whichever date is later, or; in the alternative, for an order modifying the procedural schedule to include a Supplemental Direct Testimony filing deadline 30 days from the date Shell is required to deliver or actually delivers all audio files to the California Parties, whichever date is later, so that the 2 Order Adopting Rules for the Conduct of the Hearing, Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, Docket Nos. EL02-60 et al. (Dec. 8, 2014). 3 Order Adopting Discovery Plan, Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, Docket Nos. EL02-60, et al. (Dec. 29, 2014) ( Discovery Plan ). 4 The California Parties are the People of the State of California ex rel. Kamala D. Harris, Attorney General, the Public Utilities Commission of the State of California, Pacific Gas and Electric Company, and Southern California Edison Company. The California Electric Oversight Board (EOB) is the complainant in one of the two underlying FERC proceedings, Docket No. EL In 2008 EOB was de-funded. Pursuant to California Public Utilities Code Section 343, the Attorney General shall succeed to, and may exercise, all rights, claims, powers, and entitlements of the Electricity Oversight Board in any litigation or settlement to obtain ratepayer recovery for the effects of the energy crisis. CAL. PUB. UTIL. CODE 343 (West 2014). 2

3 California Parties may file and serve supplemental direct testimony on evidence gleaned from the as-yet unproduced (i.e., virtually all) audio files. In light of the urgency of this matter, the California Parties also request that Your Honor order Shell and any other party to file by Friday, March 6, 2015 any response to this motion, and schedule argument on this motion, if deemed necessary, for Monday, March 9, 2015, so that the above issues may be resolved expeditiously. I. SUMMARY Almost three months have passed since the California Parties request to Shell for all of its trader tape audio files recorded during the California Energy Crisis, but Shell has still only produced a very small fraction of the requested audio files (covering 19 days of the 132 day January 17, 2001 June 8, 2001 Negotiation Period, and an additional 13 days of the earlier May 2000-January 16, 2001 portion of the Crisis Period, for a total of only 32 out of 397 days requested), and did not produce any of them until the past two weeks. Given that less than three weeks remain until the California Parties direct testimony is due, Shell should be compelled to produce all of the audio without further delay. Audio files, particularly those of Shell s traders, have been recognized as among the richest sources of evidence of unlawful behavior in the spot markets, which is a central issue in this case. Shell s delay in producing the audio is undue by any definition, and the delay has compromised and continues to compromise the California Parties ability to present their direct case. Shell s delay in producing the requested audio files is especially egregious because it appears to be tactical in nature, expressly designed to prevent the discovery of information that could provide further proof of Shell s involvement in market manipulation. In light of the fact 3

4 that Shell has already been found by the Commission to have engaged in unlawful market manipulation during the Summer Period of the California Energy Crisis (May, 2000 October, 2000), 5 and found by Judge McCartney to have engaged in market manipulation in spot market sales to CDWR during the very period when the long term contract at issue in this case was being negotiated, 6 Shell s failure to timely produce the requested audio files appears to have the purpose, and certainly has the effect, of improperly denying the California Parties and the Commission access to additional potential evidence of Shell s unlawful activity. As a result, an extraordinary remedy is required. The California Parties request that Your Honor compel Shell to produce all of the requested audio files now, subject if necessary to a clawback Addendum to the Protective Order in this case so as to preserve any privilege Shell may seek to claim. In light of the exigent circumstances outlined in this motion and the rapidly approaching March 20, 2015 deadline for filing direct testimony, the California Parties further respectfully request that the procedural schedule in this case be modified to afford the California Parties the requisite time to review and include in direct testimony evidence gleaned from the as-yet unproduced audio files, and to deny Shell the undue advantage it otherwise will gain by not producing required discovery items in a timely fashion. Finally, the California Parties request expedited consideration of this motion, in the form of an order directing any response to this motion be filed by Friday March 6, 2015 and oral argument, if deemed necessary, be held on Monday, March 9, San Diego Gas & Elec. Co., 149 FERC 61,116 (2014) ( Summer Proceeding ). 6 Puget Sound Energy, Inc., Initial Decision, 146 FERC 63,028 (2014) (McCartney, J.) (as amended), order on initial decision pending ( Puget Proceeding ). 4

5 II. MOTION TO COMPEL A. Shell s Audio Tapes Are A Potential Key Source of Evidence That Shell Engaged In Unlawful Activities In the Spot Market One of the two issues identified for hearing in the Order on Remand 7 that the Supreme Court directed the Commission to address in Morgan Stanley 8 is whether Shell engaged in unlawful activities in the spot market that affected its negotiation of the long term contract at issue. 9 Experience in the California Energy Crisis litigation has shown that unguarded conversations among traders on recorded telephone lines, especially calls between co-workers and calls between traders and their supervisors, are among the most fertile, and most truthful, sources of evidence of unlawful activities in spot market trading. 10 Experience in previous proceedings has also shown, however, that Shell routinely fails to produce trader tape audio in a timely fashion as it is required to do, and uses this tactical device to thwart proper discovery into its unlawful activities. As a result, notwithstanding timely discovery requests in previous cases for production of all audio for the entire period in question (for example, the entire 154 days of the May 1, 200 October 1, 2000 Summer period 11 or the 7 Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, 149 FERC 61,127 (2014) (Order on Remand). 8 Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1 of Snohomish County, 128 S. Ct (2008). 9 Order on Remand at P 16 (2014) (citing Morgan Stanley, 128 S. Ct. 2733, (2008)). 10 See, e.g., Puget Sound Energy, Inc., Docket No. EL , Tr (McCartney, J.) ( the trader tapes are best evidence of unlawful conduct); Exh. No. CAT-713 at 7:24-8:4 (January 18, 2001 trader tape wherein a Shell trader asks his supervisor Beth Bowman: Purely on an ethical basis, do you have any problem with rolling blackouts and Ms. Bowman responds: On an ethical basis? No. ) 11 San Diego Gas & Elec. Co., 149 FERC 61,116 (2014) ( Summer Proceeding ). 5

6 entire 155 days of the January 17, 2001 June 20, 2001 CERS period 12 ), Shell has been able to avoid producing the bulk of its audio tapes, ultimately producing only the equivalent of three or four days of tapes in the Summer Proceeding and eleven days in the Puget Proceeding. 13 With that history in mind, the California Parties commenced discovery against Shell in this proceeding on the first possible day, December 5, 2014, 14 and asked for all Energy Crisis audio tapes not previously produced by Shell in prior cases. 15 As set forth below, however, Shell has again failed to produce the requested audio in a timely fashion, notwithstanding almost daily efforts by the California Parties to work cooperatively with Shell to expedite the process. B. Your Honor Has Recognized That Delay in Producing Audio Files Requires Corrective Action The Discovery Plan adopted in this case provides that prior review of audio recordings by the producing party shall not be a basis for undue delay in producing said recordings to the requesting party if an Addendum to the Protective Order... provides for the identification and clawback of privacy or privileged communications. 16 On January 7, 2015, after adoption of the 12 Puget Sound Energy, Inc., Initial Decision, 146 FERC 63,028 (2014) (McCartney, J.) (as amended), order on initial decision pending ( Puget Proceeding ). 13 In addition to the full days of audio recordings produced in the Summer and Puget proceedings (4 and 11, respectively) Shell also produced a handful of audio files for other days (3 such days in the Summer Proceeding and 27 such days in the Puget Proceeding) with the result that virtually all of the audio files on those other days were not produced. 14 Parties may initiate discovery immediately after the the Chief Administrative Law Judge designates a Presiding Judge. Discovery Time Standards, Federal Energy Regulatory Commission, available at The Chief Administrative Law Judge made this designation on December 5, Order of Chief Judge Designating Presiding Administrative Law Judge and Establishing Track II Procedural Time Standards, Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, Docket Nos. EL02-60 et al., (Dec. 5, 2014) (C.J. Wagner) See CA-SHELL-2, attached as Appendix A. Discovery Plan at P 9. 6

7 Discovery Plan, at a time when Shell s response to the California Parties request to produce audio tapes was already more than two weeks overdue, the California Parties proposed an Addendum to the Protective Order that provided for the identification and clawback of privacy or privileged communications. 17 The California Parties proposed the Addendum so that it would be in place to protect privilege claims in the event the California Parties later determined that Shell was engaging in undue delay and moved to compel Shell s production of the tapes without prior review by Shell. 18 By order issued January 23, 2015, Your Honor denied the motion to adopt the Addendum, but recognized that delay in producing audio tapes was a serious issue that would require corrective action: The Motion of the California Parties does not suggest that Shell has engaged in undue delay in responding to discovery requests up to now. In the event that such a contention is properly raised by the California Parties at a later time, namely that Shell is not producing the audio tapes in a timely fashion and that the delay is compromising the ability of the California Parties to litigate the case, there are corrective methods that can be ordered to resolve such problems. 19 As set forth below, Shell is not producing the audio tapes in a timely fashion. 20 That delay is compromising the ability of the California Parties 21 to present their direct testimony, due March 20, 2015 under the current procedural schedule. 17 Motion for Adoption of Addendum to Amended Protective Order and Request for Shortened Comment Period, Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, Docket Nos. EL02-60 et al., (filed Jan. 7, 2015) Id. Order Denying Motion for Adoption of Addendum to Amended Protective Order Public Utilities Commission of the State of California v. Sellers of Long-Term Contracts to the California Department of Water Resources, Docket Nos. EL02-60 et al., at P 6 (Jan. 23, 2015) (Glazer, J.) Id. Id. 7

8 C. Shell Is Not Producing Audio Tapes In A Timely Fashion Shell did not produce any audio files at all until February 18, 2015 (two months after the initial discovery due date and one month before testimony would be due) and to date has produced audio files for only 19 days of the 132 day Negotiation Period for which audio was requested (January 17-June 8, 2001), as that term is defined in the California Parties discovery requests. 22 Worse, it has focused on tapes from the lower priority time period (early 2000) rather than the Negotiation Period, even though the California Parties directed Shell to produce tapes from the Negotiation Period first in response to Shell s request that they prioritize their initial request for tapes. Shell now claims its review team made a mistake and spent the last two weeks reviewing tapes from May 2000, not It is not clear from the relatively few audio files Shell has produced to date what exactly Shell is reviewing for and whether and to what extent Shell is withholding or redacting audio files upon review. 23 What is clear is that, given the history, which is that the California Parties have encountered the same slow roll production 22 Shell previously produced in the Puget proceeding audio files for 11 additional days of the Negotiation Period, meaning Shell has produced in total audio files for only 30 days of the 143-day Negotiation Period. 23 The California Parties have requested, but not received, a listing of existing tapes, or listings of tapes that have been withheld or redacted, and the basis for the withholding or redactions that have occurred. Without the precise identification of tapes that have been withheld or redacted, by date, time, and duration, it is impossible to determine whether there are patterns of withheld or redacted tapes that suggest that review by an independent third party would be appropriate. This concern is not hypothetical. The California Parties identified instances of suspicious audio redactions during review of tapes by another party in Puget Sound Energy, Inc. v. All Jurisdictional Sellers proceeding in Docket No. EL Following a motion to compel, Judge McCartney agreed to review the tapes and required their production to her by the seller. Order Granting California Parties Motion to Compel as Modified, issued July 12, 2013, Docket No. EL Following her review, she allowed the continued redaction of certain personal and non-relevant information, but importantly required that other portions of redacted tapes be provided to the California Parties. Order on Redacted Audio Recordings, issued July 31, 2013, Docket No. EL

9 from Shell in past cases, and the effect, which is to severely prejudice the California Parties preparation of their direct case against Shell, any excuses strain credulity. The highlights of the California Parties mostly vain efforts to secure Shell s audio files through discovery in this case to date are as follows: December 5, 2014 California Parties serve Shell with Set 1 Discovery Requests, CA- SHELL-2 of which seeks all audio recordings of Shell s recorded trading telephone lines during the period May 1, 2000-June 20, 2001, except for those specific days (19 days out of the 416-day period) previously produced in the Summer Proceeding before Judge Baten in Docket No. EL in 2011 and 2012, and the Puget Proceeding before Judge McCartney in Docket No. EL in 2012 and December 19, 2014 Shell responds to Set 1 Discovery Requests, failing to produce the requested audio and instead stating its response would be expedited if the California Parties would agree to limit their request to certain days. December 22, 2015 The California Parties and Shell meet and confer. Shell states that it will retrieve all trader tapes for dates requested and prioritize production for dates within the contract Negotiation Period (January 17-June 8, 2001), as that term is defined in the California Parties discovery requests. January 5, 2015 The California Parties propose that Shell agree to an Addendum A to the Protective Order in this proceeding which would provide, in the event the Presiding Judge were to agree that Shell s pre-review unduly delayed production, for production of audio recordings without the need for pre-production privilege review under the so-called clawback privilege protection mechanism provided for in Fed. R. Evid January 7, 2015 Shell refuses to join in a request to modify the protective order to provide for the clawback provision protection, stating that its planned privilege review will not cause undue delay in production of audio recordings. January 9, 2015 Shell provides an update on production status, stating it located responsive recordings and expects to begin providing audio recordings in one month. January 12, 2015 The California Parties request that Shell provide the audio recordings in native format prior to review subject to the proposed Addendum A clawback provision providing for protection from waiver of privilege pursuant to Fed. R. Evid. 502, and inform Shell that production in one month is unacceptable because (1) the initial request was submitted five weeks prior, (2) production on or about February 9, 2015 would not provide the California Parties with sufficient time to review audio recordings prior to submission of their direct testimony, (3) technology provides for rapid conversion of native format files to.wav files, (4) the California Parties offer of a clawback agreement to protect Shell from any inadvertent waiver of privilege, and (5) Shell s history in other proceedings of taking a very long time period to locate, review, and produce only a relatively few days of tapes. January 13, 2015 Shell refuses to provide audio recordings in native format prior to review. Shell states it is attempting to expedite production to provide audio recordings by February 9,

10 January 14, 2015 The California Parties and Shell meet and confer regarding Addendum A to the Protective Order and production of audio recordings. The parties are unable to reach agreement due to Shell s protests that its pre-production review of audio recordings will not cause undue delay. The California Parties prioritize production of tapes from the Negotiation Period (January 17-June 8, 2001). The California Parties propose an electronic reading room solution where both parties could listen to tapes through an audio review platform, with agreed-upon protocols on how the tapes would be reviewed and downloaded; the California Parties provide Shell with information about Nexidia, an audio review vendor that provides a full service conversion and searching platform for audio files. January 16, 2015 The California Parties and Shell again meet and confer regarding Addendum A and production of audio recordings. Shell advises it contacted Nexidia, but will not agree to a reading room review solution or the proposed Addendum A. Shell also states it expects its use of Nexidia will speed up production of audio recordings. The California Parties request Shell to provide a revised estimate of the expected production commencement date as soon as possible, and advise that if Shell does not agree to commence production well in advance of February 9, 2015 the California Parties will file a motion to compel. January 18, 2015 Shell rejects the proposed Addendum A, states that its preproduction review will not cause undue delay, and is working to expedite its previous February 9, 2015 production commencement estimate. January 20, 2015 Shell states that it will begin producing audio recordings as early as January 26-30, January 22, 2015 During a meet and confer, Shell confirms that it has engaged Nexidia for conversion and review of audio recordings and that it will begin producing audio recordings during the week of January 26 after screening for privileged information using search terms. Shell states that it is focusing review on recordings from the Negotiation Period (January 17-June 8, 2001). January 26-30, 2015 Shell does not produce any audio recordings. January 30, 2015 The California Parties request an update on the status of audio recording production. Shell states that all of its audio is uploaded to Nexidia where Shell reviewers are screening the files and that it will begin producing audio recordings early in the week of February 2-6, 2015, as it completes privilege review. February 2, 2015 During a meet and confer, the California Parties ask Shell to estimate the number of hours of audio recordings responsive to CA-SHELL-2 that were transferred to Nexidia and whether Shell was only gathering audio recordings from the Negotiation Period. Shell states it will respond with this information. Shell agrees to coordinate with the California Parties on audio production format. February 6, 2015 Shell does not produce any audio recordings. February 9, 2015 During a meet and confer, Shell explains that its production of audio recordings was slowed due to delays with its vendor and states that it plans to begin production by the end of the week (February 13, 2015). February 13, 2015 Shell does not produce any audio recordings. February 18, 2015 Shell produces audio files from 19 days (January 22, 2001 February 9, 2001) covering a small fraction of the January 17, 2001 June 8, 2001 Negotiation Period. 10

11 February 19-27, 2015 Shell produces no additional audio for the period post-february 9, February 27, 2015 Shell informs the California Parties that Shell s team of audio reviewers, rather than reviewing the next tranche of Negotiation Period audio files, commencing February 10, 2001, has mistakenly reviewed audio recordings from May Shell further informs the California Parties that this production of audio files for the wrong time period will not be available until Monday, March 2, The California Parties again request Shell to provide all audio recordings subject to a clawback mechanism consistent with Fed. R. Evid. 502 and that Shell immediately commence review of audio files from specified dates within the Negotiation Period and produce all non-privileged audio files no later than Wednesday, March 4, Shell refuses the California Parties renewed request for a clawback agreement and states that it will try to produce audio from the requested priority dates by March 4 or as soon as possible thereafter. March 2, 2015 Shell produces audio files for 13 days in May 2000, spanning the dates May 1, 2000 through May 13, 2000, including two days for which audio was previously produced in the Summer proceeding (May 2 and 3, 2000), and, thus was not requested in this proceeding. In short, over the nearly three months since the initial data request for these trader tapes, Shell has managed to produce tapes for only 32 days of audio 13 days from May 2000 and 19 days from the prioritized 2001 Negotiation period out of the 397 days that were requested. This purposeful slow roll of audio recording is unconscionable, and constitutes undue delay by any measure. D. Shell s Undue Delay Is Compromising the California Parties Ability To Present Their Direct Case The process of reviewing trader tapes is painstaking and time consuming for the California Parties, and involves multiple levels of review and analysis, even with the availability of recent technological innovations such as audio searching technology of the type made available by Nexidia. Unlike Shell, the California Parties have not had the audio files in their possession for the past 15 years, did not create them, do not know their contents, and lack inside knowledge from the speakers or their supervisors, many of whom are still employed at Shell. If the California Parties select an audio file for use as evidence, it must be transcribed, formatted to 11

12 CD or DVD, and processed for evidentiary presentation. This concern is not conjectural. Even within the very limited production received from Shell, the California Parties have already identified recordings that may be included in its direct case as evidence of Shell s manipulative activities or intent. Shell s refusal to produce audio files in a timely fashion makes it virtually certain that the California Parties will be severely limited in the level of review they are able to perform on the files already produced. Further delay in producing all of the remaining files guarantees that the California Parties will be blocked from reviewing and potentially using in direct testimony what in the past has proven to be critical evidence of Shell s unlawful behavior. E. An Extraordinary Remedy Is Required The California Parties respectfully request that Your Honor grant this motion to compel, determine that Shell is not producing the requested audio tapes in a timely fashion, find that the delay is compromising the ability of the California Parties to litigate their case, and order Shell to immediately produce the remainder of the tapes not yet produced without prior review, consistent with Fed. R. Ev Fed. R. Ev. 502(d) provides that a court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court. Or, under Fed. R. Ev. 502(e), the parties may reach an agreement that can be incorporated into a court order. Given that Shell has already opposed the California Parties proposal for such a consensual arrangement under Paragraph 9 of the Discovery Plan, the California Parties request Your Honor to issue a ruling under Fed. R. Ev. 502(d) that will allow Shell to preserve attorney client and work product privileges, while also providing the California Parties with immediate 12

13 access to the requested audio recordings. 24 Alternatively, the California Parties request that Your Honor take such other steps as may be required to preserve the California Parties right to obtain timely discovery of the subject recordings. III. MOTION TO MODIFY THE PROCEDURAL SCHEDULE As explained above, Shell s delay in producing the requested audio files prevents the California Parties from reviewing and potentially using in direct testimony what in the past has proven to Judge Baten and the Commission (in Docket No. EL in 2014) and to Judge McCartney (in Docket No. E in 2014) to be compelling evidence of Shell s unlawful behavior in the spot markets in California. The California Parties sought the audio that Shell has never produced in previous proceedings in discovery in this proceeding at the earliest possible time, and have diligently pursued production of those files from Shell at the earliest possible time. But now, with less than three weeks remaining before direct testimony is due on March 20, 2015, Shell has produced only a small fraction of the audio files in Shell s possession. To afford the California Parties sufficient time to review and incorporate audio file evidence into direct testimony, a minimum of a month is needed from the time the tapes are received until the tapes can be reviewed, analyzed, transcribed and incorporated into testimony. Accordingly, the California Parties respectfully request that Shell be required to produce all of the audio files requested by a date certain, and that the procedural schedule be modified to reset the due date for the California Parties direct testimony to a date 30 days from that date or the date Shell actually delivers all audio files to the California Parties, whichever date is later. Alternatively, the California Parties request that the procedural schedule be modified to include a 24 The California Parties remain willing to craft a suitable claw back provision or Addendum under Paragraph 9 of the Discovery Plan. However, Shell has refused to agree to such an arrangement in spite of repeated proposals by the California Parties, including most recently on February 27,

14 Supplemental Direct Testimony filing deadline that is 30 days from the date Shell is required to deliver or actually delivers all audio files to the California Parties, whichever date is later, so that the California Parties may file and serve supplemental direct testimony on evidence gleaned from the audio files. 25 IV. MOTION FOR EXPEDITED CONSIDERATION Given the exigent circumstances outlined in this motion and the rapidly approaching deadline for filing direct testimony, the California Parties respectfully request expedited consideration of this motion, in the form of an order directing Shell to file any response by Friday, March 6, 2015, and the scheduling of oral argument if deemed necessary for Monday, March 9, V. CONCLUSION For the reasons stated above, the California Parties respectfully request that the Presiding Judge grant this motion, compel Shell to produce the requested audio recordings forthwith, and modify the procedural schedule as requested herein. 25 Although this motion does not address the audio recording production by Iberdrola Renewables, LLC, it is not because Iberdrola has provided audio recordings. It is because Iberdrola has not provided any audio recordings at all. Although it identified the existence of thousands of hours of such recordings in discovery responses in 2003, it has advised the California Parties that it has to date been unable to locate any of those audio recordings. Thus, there is nothing to compel. The California Parties reserve the right, however, to seek an appropriate remedy for Iberdrola s apparent failure to retain evidence relevant to this proceeding and the absence of which prejudices the California Parties prosecution of its case against Iberdrola. 14

15 Respectfully submitted, /s/ Candace Morey Karen V. Clopton, Interim General Counsel Christopher Clay Candace Morey Charlyn Hook Public Utilities Commission of the State of California 505 Van Ness Avenue San Francisco, CA (415) /s/ David M. Gustafson Kamala D. Harris Attorney General of California Mark Breckler Chief Assistant Attorney General Martin Goyette Senior Assistant Attorney General Office of the Attorney General 455 Golden Gate Avenue, Suite San Francisco, CA Paul B. Mohler Law Offices of Paul B. Mohler, PLC 840 First Street, NE, 3 rd Floor Washington, DC (571) Lucus A. Ritchie Louise K. Thomas Pierce Atwood LLP 254 Commercial Street Portland, ME (207) Attorneys for the Public Utilities Commission of the State of California David M. Gustafson Deputy Attorney General 1515 Clay Street, 20 th Floor Oakland, CA (510) Kevin J. McKeon Judith D. Cassel Whitney E. Snyder Hawke McKeon & Sniscak LLP Harrisburg Energy Center 100 North Tenth Street Harrisburg, PA (717) Attorneys for the People of the State of California ex rel. Kamala D. Harris, Attorney General

16 /s/ Stan Berman Stan Berman Sidley Austin LLP th Avenue, Suite 4200 Seattle, WA Emily Watkins Lauren Freeman Sidley Austin LLP 1501 K Street, NW, Suite 600 Washington, DC (202) /s/ Richard L. Roberts Richard L. Roberts Jane I. Ryan Catherine M. Giovannoni Steptoe & Johnson LLP 1330 Connecticut Avenue, NW Washington, DC (202) Attorneys for Southern California Edison Company Mark D. Patrizio Joshua S. Levenberg Pacific Gas and Electric Company 77 Beale Street, B30A Post Office Box 7442 San Francisco, CA Attorneys for Pacific Gas and Electric Company Dated: March 4, 2015

17 CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing document upon each person designated on the ListServ established in Docket Nos. EL02-60 and EL Dated at Harrisburg, PA this 4th day of March, /s/ Whitney E. Snyder Whitney E. Snyder HAWKE MCKEON & SNISCAK LLP 100 North Tenth Street P.O. Box 1778 Harrisburg, PA Tel: (717)

18 Shell Energy North America (US), L.P. Response to the California Attorney General s First Set of Discovery Requests December 19, 2014 Appendix A UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION Public Utilities Commission of the ) State of California ) Complainant, ) v. ) Sellers of Long-Term Contracts to the ) California Department of Water Resources ) Respondents. ) Docket Nos. EL and ) EL (Consolidated) California Electric Oversight Board ) Complainant, ) v. ) Sellers of Energy and Capacity under ) Long-Term Contracts with the ) California Department of Water Resources ) Respondents. ) ) SHELL ENERGY NORTH AMERICA (US) L.P. RESPONSES TO CALIFORNIA COMPLAINANTS' FIRST SET OF DISCOVERY REQUESTS December 19, 2014 Pursuant to Rules 406 and 410 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission, 18 C.F.R and 410 (2014), Shell Energy North America (US), L.P. (Shell Energy) (f/k/a Coral Power, LLC (Coral)) hereby submits its Responses to the California Parties First Set of Discovery Requests. Shell Energy incorporates by reference the General Objections and Objections to Instructions and Definitions in its Objections to the California Complainants First Set of Discovery Requests dated December 12,

19 Shell Energy North America (US), L.P. Response to the California Parties First Set of Discovery Requests December 19, 2014 Appendix A CA-SHELL-2 Provide audio recordings of all recorded conversations of your traders, schedulers, risk managers, and their supervisors who bought, sold, traded, supervised or otherwise transacted in energy, ancillary services, and transmission markets in California and the Western Grid during the California Crisis Period. If you agree that the California Parties may use audio recordings you produced in Docket Nos. EL and EL as if produced in response to this Request, your Response may be limited to audio recordings for the dates set forth on Attachment A. Response Shell Energy agrees that the California Complainants may use audio recordings that Shell Energy produced in Docket Nos. EL and EL as if produced in response to this Request. Shell Energy did not record the conversations of a majority of its employees. Shell Energy is attempting to locate any additional responsive audio recordings. Shell Energy s response will be expedited if the Complainants agree to limit the requested dates set forth on Attachment A. Shell Energy will provide responsive materials on an ongoing basis as such materials are located. Prepared by: Counsel 3

20 Appendix A Attachment A CALIFORNIA PARTIES FIRST SET OF DISCOVERY REQUESTS TO SHELL ENERGY NORTH AMERICA (US) L.P. Docket Nos. EL and EL (Consolidated) Dates of Shell Audio Files Requested Pursuant to CA-SHELL-2 5/1/00 5/4/00-6/19/00 6/22/00-8/3/00 8/5/00-8/6/00 8/8/00-1/16/01 1/22/01-2/9/01 2/11/01-3/12/01 3/14/01-4/8/01 4/11/01-5/6/01 5/9/01-6/20/01 18