STATE OF VERMONT
PUBLIC SERVICE BOARD
Docket No. 6460
Tariff filing of Central Vermont Public Service )
Corporation requesting a 7.6% rate increase, to )
take effect December 24, 2000 )
Order entered: 5/3/2001
ORDER RE: MOTION TO COMPEL
On April 26, 2001, Central Vermont Public Service Corporation ("CVPS" or the
"Company") filed for an Order compelling Springfield Hydro Electric Company, John Warshaw,
Mathew Rubin, and Emerson Falls Hydro, Inc. (the "Ratepayers") to provide substantive
responses to the Company's "First Set of Information Requests" dated March 13, 2001. CVPS
also filed an affidavit under V.R.C.P. 26(h) asserting that counsel for CVPS had engaged in good
faith discussions with the Ratepayers to resolve the issues raised in the Motion to Compel, but
that CVPS had been unable to reach agreement. The Ratepayers filed a response on April 30,
2001. The parties presented argument on the Motions on May 1.
CVPS states that the Ratepayers are planning to challenge certain of the Company's costs.
Accordingly, the Company seeks information designed to rebut the Ratepayers' challenges. CVPS
states that the information requests fall into three categories:
1. Information on compensation paid to Ratepayers for managing the
hydro facilities. Ratepayers, in their request for intervention, suggested
that the compensation CVPS paid to certain of its managers was
excessive. CVPS requests information on Ratepayers' compensation
amounts to rebut this challenge.
2. Information on the costs of owning and operating the hydro plants.
Ratepayers have stated that they intend to challenge the costs CVPS
seeks to recover for operating certain of its hydro facilities. CVPS
Docket No. 6460 Page 2
desires to obtain information on the costs of operating Ratepayers'
facilities to show the reasonableness of its costs.
3. Information related to the claims CVPS has brought in Docket 6270.
In that case, CVPS and other Vermont electric utilities have requested
alteration, modification and construction of power purchase agreements
between qualifying facilities and Vermont Electric Power Producers, Inc.
and for Amendment of Vermont Public Service Board Rule 4.100. The
Ratepayers have stated that they intend to challenge the reasonableness of
CVPS' actions to date in that proceeding. CVPS seeks detailed
information on many aspects of the Ratepayers' operations designed to
show that the Company had a reasonable basis for initiating and
prosecuting Docket 6270.
In addition, the Company's information requests contain a fourth category, best
characterized as typical interrogatories in anticipation of litigation. For example, CVPS asks for
information on the Ratepayers' experts. CVPS also has stated that the Company does not request
information that is already publicly available.
The Ratepayers object to all of CVPS' information requests. The Ratepayers assert that
the information requests are not relevant, not reasonably calculated to lead to the discovery of
admissible evidence and are unreasonably burdensome and oppressive. In particular, the
Ratepayers assert that the information requests concern their business practices, which are
irrelevant. In addition, the Ratepayers state that, as they had not filed any testimony, CVPS had
no right to propound discovery. The Ratepayers ask the Board to deny the Motion to Compel as
untimely, citing the fact that the Motion was not filed within a reasonable time after the issue
arose. Finally, the Ratepayers also request that the Board, sua sponte, convene a hearing to
consider whether the Motion was frivolous under the standards set out in V.R.C.P. 11 and
consider awarding sanctions against CVPS.
I issued rulings on each interrogatory and request to produce from the bench, denying the
Motion to Compel on the majority. This Order reiterates that decision.
Docket No. 6460 Page 3
At the outset, I want to make clear that I do not accept the Ratepayers' argument that
CVPS may not propound discovery requests upon them. The Ratepayers are a party to this
proceeding. The provisions of the Vermont Rules of Civil Procedure relating to discovery, which
the Board has incorporated by reference into its rules, permit discovery upon parties. Nothing in
the civil rules or the Board's rules limit discovery to parties presenting witnesses. Therefore, it is
legitimate for CVPS to seek information from the Ratepayers (to the extent otherwise authorized
by the rules). Nonetheless, I conclude that the majority of CVPS' requests are not likely to lead to
the production of relevant evidence.
CVPS' requests as they relate to Ratepayers' compensation are denied. The probative
value of such information is, at best, marginal and is outweighed by the burden upon the
CVPS' requests for information related to Docket 6270 are denied. This information is
not relevant to the question of CVPS' reasonableness in initiating and prosecuting that docket. As
the Board has stated previously, the prudence of a decision is based upon information known at
the time the decision was made. New information cannot now justify CVPS' previous decisions.
Moreover, the vast amount of information CVPS requests far outweighs any benefit that could be
obtained (particularly when compared to the magnitude of CVPS' costs associated with Docket
6270 to date).
CVPS' requests for information related to the costs of operating Ratepayers' hydro units is
granted, but only as to those costs incurred in the test year and subsequent thereto. It is
reasonable to permit CVPS to demonstrate that its costs of operating hydro units are consistent
with those of similar units.
CVPS' requests for information on Ratepayers' experts and discovery respondents are
Finally, I do not find that CVPS' Motion to Compel is so without merit as to merit
sanctions under V.R.C.P. 11. Thus, I do not grant costs to the Ratepayers in conjunction with
responding to the Motion.
The Ratepayers shall file their responses to the information requests by May 7, 2001.
The specific rulings on each request are set out below.
Docket No. 6460 Page 4
4. Granted as to the information on current owner. Denied as to information requested
concerning the previous owners.
5. Granted as to the identify of the current operator. Denied as to information requested
concerning the previous owners.
6. Granted as to the identify of the current operator. Denied as to information requested
concerning the previous owners.
12. Granted. This information, and that requested in ## 14, 15, 16 and 17, can be obtained (in
large part, if not completely) from Board Orders and the Contracts for the individual
hydro facilities. Counsel have agreed to work together to identify the publicly available
information and to minimize the actual amount of information to be produced.
13. Granted as to current information.
14. See #12.
15. See #12.
16. See #12.
17. See #12.
22. Moot. The Ratepayers have not presented any testimony.
23. Moot. The Ratepayers have not presented any testimony.
24. Moot. The Ratepayers have not presented any testimony.
25. Moot. The Ratepayers have not presented any testimony.
26. Moot. The Ratepayers have not presented any testimony.
27. Moot. The Ratepayers have not presented any testimony.
28. Moot. The Ratepayers have not presented any testimony.
31. Granted as to items required to be produced by this Order.
Requests to Produce
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2. Moot. CVPS modified request to exclude publicly available information.
5. Granted as to financial information for the test year and more recently. Denied as to
previous financial information.
21. Granted as to capital, operating or maintenance budgets prepared during test year and
more recently. Denied as to previous budgets.
22. Granted as to business or strategic plans prepared during test year and more recently.
Denied as to previous plans.
23. Granted as to projections of capital, operating or maintenance expenditures during test
year and more recently. Denied as to previous expenditures.
24. Granted as to cash flow statements prepared during test year and more recently. Denied
as to previous statements.
32. Granted as to current information. See Interrogatory 13.
33. Granted as to current information. See Interrogatory 13.
34. Granted as to current information. See Interrogatory 14.
38. Granted as to experts consulted by the Ratepayers. Denied as to experts that may testify.
Docket No. 6460 Page 6
Dated at Montpelier, Vermont, this 3rd day of May, 2001.
s/George E. Young
George E. Young
OFFICE OF THE CLERK
FILED: May 3, 2001
ATTEST: s/Susan M. Hudson
Clerk of the Board
NOTICE TO READERS: This decision is subject to revision of technical errors. Readers are requested to notify the
Clerk of the Board (by e-mail, telephone, or mail) of any technical errors, in order that any necessary corrections may be
made. (E-mail address: Clerk@psb.state.vt.us)