Commission Determination. We accept NERC’s and WECC’s proposed changes to the WECC Delegation Agreement, subject to revision. With respect to the Commission’s requirements regarding the availability of the attorney-client privilege and attorney work-product doctrine, we accept, in part, NERC and WECC’s statement that no amendment of paragraph 1.4.1(b) of WECC hearing procedures is necessary to ensure that WECC compliance staff’s obligation to produce evidence is subject to and limited by any applicable privilege. However, this statement appears to assume that the only privileges that could be asserted by WECC compliance staff are the attorney-client privilege or the attorney work-product doctrine. In contrast, the comparable provision of the pro forma hearing procedures, paragraph 1.5.7(b)(1)(A), is a more general statement that compliance staff may withhold a document from inspection and copying by a respondent if “the document is privileged to staff or constitutes attorney work product of Staff’s counsel.” WECC’s deletion of the former language of paragraph 1.4.1(b)(3), which would have served as a means for WECC enforcement staff to assert any other privilege that might apply, brings into question whether WECC’s current version of paragraph 1.4.1(b) would recognize any other privilege that WECC compliance staff might successfully assert.59 121. In addition, WECC’s revisions to section 1.4.1(b) eliminate completely the concept codified in paragraph 1.5.7(b)(2) of the pro forma hearing procedures that, in the absence of an assertion of privilege, no circumstance that would otherwise protect a document from disclosure authorizes compliance staff to withhold exculpatory evidence contained in the document. Thus, WECC’s revisions appear to be inconsistent with the pro forma hearing procedures on this matter. Our strong preference is for consistency in fundamental matters relating to compliance hearings before all Regional Entities and NERC. To resolve the inconsistencies discussed above with respect to the bases on 59 WECC’s new section 1.4.1(b)(3) could protect from disclosure by WECC compliance staff certain documents containing confidential information. However, it is not clear that the definition of “confidential information” in section 1501(1) of NERC’s Rules of Procedure would cover privileges that WECC compliance staff could assert. That definition does not refer explicitly to information in documents for which an evidentiary privilege is asserted. We also note that, while section 1.5.7(b)(1)(D) of the pro forma hearing procedures provides a hearing officer residual authority to grant leave to compliance staff to withhold documents that are not relevant, or otherwise for good cause shown, WECC’s proposed hearing procedures do not include an analogous provision. Docket No. RR06-1-016, et al. -41- which compliance staff may withhold or provide documents, we direct NERC and WECC to submit in their compliance filing a proposal to reconcile these matters.60 122. With respect to funding matters, we accept WECC’s proposal to revise section 3 of Exhibit E to reflect its arrangements for invoicing, collecting and funding its statutory activities.
Appears in 2 contracts
Sources: Delegation Agreement, Delegation Agreement
Commission Determination. We accept NERC’s and WECC’s proposed changes to the WECC Delegation Agreement, subject to revision. With respect to the Commission’s requirements regarding the availability of the attorney-client privilege and attorney work-product doctrine, we accept, in part, NERC and WECC’s statement that no amendment of paragraph 1.4.1(b) of WECC hearing procedures is necessary to ensure that WECC compliance staff’s obligation to produce evidence is subject to and limited by any applicable privilege. However, this statement appears to assume that the only privileges that could be asserted by WECC compliance staff are the attorney-client privilege or the attorney work-product doctrine. In contrast, the comparable provision of the pro forma hearing procedures, paragraph 1.5.7(b)(1)(A), is a more general statement that compliance staff may withhold a document from inspection and copying by a respondent if “the document is privileged to staff or constitutes attorney work product of Staff’s counsel.” WECC’s deletion of the former language of paragraph 1.4.1(b)(3), which would have served as a means for WECC enforcement staff to assert any other privilege that might apply, brings into question whether WECC’s current version of paragraph 1.4.1(b) would recognize any other privilege that WECC compliance staff might successfully assert.59 121. In addition, WECC’s revisions to section 1.4.1(b) eliminate completely the concept codified in paragraph 1.5.7(b)(2) of the pro forma hearing procedures that, in the absence of an assertion of privilege, no circumstance that would otherwise protect a document from disclosure authorizes compliance staff to withhold exculpatory evidence contained in the document. Thus, WECC’s revisions appear to be inconsistent with the pro forma hearing procedures on this matter. Our strong preference is for consistency in fundamental matters relating to compliance hearings before all Regional Entities and NERC. To resolve the inconsistencies discussed above with respect to the bases on 59 WECC’s new section 1.4.1(b)(3) could protect from disclosure by WECC compliance staff certain documents containing confidential information. However, it is not clear that the definition of “confidential information” in section 1501(1) of NERC’s Rules of Procedure would cover privileges that WECC compliance staff could assert. That definition does not refer explicitly to information in documents for which an evidentiary privilege is asserted. We also note that, while section 1.5.7(b)(1)(D) of the pro forma hearing procedures provides a hearing officer residual authority to grant leave to compliance staff to withhold documents that are not relevant, or otherwise for good cause shown, WECC’s proposed hearing procedures do not include an analogous provision. Docket No. RR06-1-016, et al. -41- which compliance staff may withhold or provide documents, we direct NERC and WECC to submit in their compliance filing a proposal to reconcile these matters.60 122. With respect to funding matters, we accept WECC’s proposal to revise section 3 of Exhibit E to reflect its arrangements for invoicing, collecting and funding its statutory activities.
Appears in 1 contract
Sources: Delegation Agreement
Commission Determination. We accept NERC’s and WECC’s proposed changes to the WECC Delegation Agreement, subject to revision. With respect to the Commission’s requirements regarding the availability of the attorney-client privilege and attorney work-product doctrine, we accept, in part, NERC and WECC’s statement that no amendment of paragraph 1.4.1(b) of WECC hearing procedures is necessary to ensure that WECC compliance staff’s obligation to produce evidence is subject to and limited by any applicable privilege. However, this statement appears to assume that the only privileges that could be asserted by WECC compliance staff are the attorney-client privilege or the attorney work-product doctrine. In contrast, the comparable provision of the pro forma hearing procedures, paragraph 1.5.7(b)(1)(A), is a more general statement that compliance staff may withhold a document from inspection and copying by a respondent if “the document is privileged to staff or constitutes attorney work product of Staff’s counsel.” WECC’s deletion of the former language of paragraph 1.4.1(b)(3), which would have served as a means for WECC enforcement staff to assert any other privilege that might apply, brings into question whether WECC’s current version of paragraph 1.4.1(b) would recognize any other privilege that WECC compliance staff might successfully assert.59 121. In addition, WECC’s revisions to section 1.4.1(b) eliminate completely the concept codified in paragraph 1.5.7(b)(2) of the pro forma hearing procedures that, in the absence of an assertion of privilege, no circumstance that would otherwise protect a document from disclosure authorizes compliance staff to withhold exculpatory evidence contained in the document. Thus, WECC’s revisions appear to be inconsistent with the pro forma hearing procedures on this matter. Our strong preference is for consistency in fundamental matters relating to compliance hearings before all Regional Entities and NERC. To resolve the inconsistencies discussed above with respect to the bases on 59 WECC’s new section 1.4.1(b)(3) could protect from disclosure by WECC compliance staff certain documents containing confidential information. However, it is not clear that the definition of “confidential information” in section 1501(1) of NERC’s Rules of Procedure would cover privileges that WECC compliance staff could assert. That definition does not refer explicitly to information in documents for which an evidentiary privilege is asserted. We also note that, while section 1.5.7(b)(1)(D) of the pro forma hearing procedures provides a hearing officer residual authority to grant leave to compliance staff to withhold documents that are not relevant, or otherwise for good cause shown, WECC’s proposed hearing procedures do not include an analogous provision. Docket No. RR06-1-016, et al. -41- which compliance staff may withhold or provide documents, we direct NERC and WECC to submit in their compliance filing a proposal to reconcile these matters.60 122. With respect to funding matters, we accept WECC’s proposal to revise section 3 of Exhibit E to reflect its arrangements for invoicing, collecting and funding its statutory activities.
Appears in 1 contract
Sources: Delegation Agreement