ORA's Assertion that Pacific's Supplemental Rebuttal Testimony Relies on Statements in the Deposition that Should Be Stricken from the Record.
ORA moves to strike Answer 5 of Pacific's supplemental rebuttal testimony wherein Dr. Harris asserts that Mr. Sanchez's testimony "proves conclusively that Mr. Sanchez does not understand the concept of retroactive ratemaking, much less offer support for his claim that ORA's recommendation would not constitute retroactive ratemaking." Support for Answer 5 is contained in Answer 6 wherein Dr. Harris asserts that Mr. Sanchez admits that "if ORA's proposed ratemaking is retroactive, it would be improper." In support of the latter assertion, Dr. Harris cites page 8 of the Sanchez deposition transcript.
ORA asserts that page 8 of the deposition deals with a hypothetical question about retroactive ratemaking that Pacific posed to Mr. Sanchez.1 ORA states that both it and The Utility Reform Network objected to the question during the deposition on the grounds that it called for a legal opinion on retroactive ratemaking. ORA states that because Sanchez is not an attorney, it cannot be assumed that he is competent to provide an analysis of retroactive ratemaking. ORA argues that because Dr. Harris's Answers 5 and 6 rely on an improper question, both Answers should be stricken, as should the improper question and related answer on page 8, lines 1-13 of the deposition.
Pacific responds that admissions contained in depositions are admissible evidence. Pacific argues that ORA cannot have it both ways - that Sanchez is competent to assert in his direct testimony that ORA's proposed ratemaking adjustment is not retroactive ratemaking, while also asserting during the deposition that Sanchez is not competent to provide an analysis of retroactive ratemaking. Pacific contends that ORA's contradictory positions regarding the competence of their witness undermine ORA's case.
ORA's motion to strike is denied. Pacific's question at issue on page 8 of the deposition is proper, since it is reasonably germane to Sanchez's testimony that ORA's recommendation does not constitute retroactive ratemaking. Accordingly, there is no merit to ORA's argument that Dr. Harris's Answers 5 and 6 should be stricken because they rely on an improper question.
1 In the question at issue, Pacific asks: "Okay, and if [ORA's proposed ratemaking adjustment] were hypothetically found to be retroactive ratemaking, would you agree it would be improper, hypothetically?"
