6. Comments on Proposed Decision
The proposed decision in this matter was mailed to parties in accordance with § 311 of the Pub. Util. Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. PG&E/SDG&E/SCE (jointly); California Manufacturers and Technology Association and the California Large Energy Consumers Association (CMTA/CLECA) (jointly); IEP; AReM (and the other parties who joined the Petition for Modification); Cogeneration Association of California and The Energy Producers and Users Coalition (CAC/EPUC), and CARE filed comments. AReM filed reply comments.
Several parties criticize the decision for mirroring D.06-12-030, which is on rehearing. However, D.06-12-030 reflects the Commission's current determinations, so this decision appropriately follows its mandates. However, CMTA and CLECA correctly point to modifications to the model protective order that are necessary to track D.06-12-030. We add the following to paragraph 3.F of the model:
If, on the other hand, simultaneous representation is of market participant and non-market participant clients involved in completely different types of matters, there should be no bar (although there may be ethical implications of such representation that we do not address here). If, for example, an attorney represents a market participant in matters unrelated to procurement, resource adequacy, RPS, or the wholesale purchase, sale or marketing of energy or capacity, or the bidding on or purchasing of power plants, or bidding on utility procurement solicitations, in a forum other than this Commission, and simultaneously represents a non-market participant in cases related to these topics before the Commission, there should be no bar to the attorney's receipt of market sensitive data (pursuant to a non-disclosure agreement and protective order) in the latter matter. In close cases, the balance should militate to bar simultaneous representation because of the risks it poses.
CARE claims erroneously the decision contradicts comments the Commission filed in a Federal Energy Regulatory Commission docket.9 The two writings have nothing to do with one another.
Several parties ask for further changes to the Matrix, or reargue the changes already made. These requests are either procedurally improper because requested in comments, or constitute inappropriate reargument.
One party requests that we clarify that the Matrix process and the model protective order applies to ERRA proceedings. We believe we have made this clear but restate that the decisions in this proceeding apply to all uses of the relevant documents, including in ERRA proceedings.
9 FERC Docket EL02-71-004 (filed March 28, 2008).
