GTN

GTN alleges the assigned ALJ issued several rulings that resulted in the denial of GTN's due process. The first ruling concerned PG&E's withholding of certain confidential material from GTN's primary litigation counsel Manatt, Phelps & Phillips (Manatt). GTN agreed to sign a non-disclosure agreement (NDA), but PG&E insisted that Manatt could not review the confidential material because Manatt was a "market participant." GTN filed a motion to compel PG&E to provide the material to Manatt, but the motion was denied by the ALJ. Although the ALJ later reversed his ruling, GTN claims the ALJ did not do so until after the opportunity to prepare and submit direct testimony had passed.

Second, GTN served several data requests on Ruby LLC that sought cost information about the Ruby Pipeline and the results of Ruby's open season. Ruby LLC declined to provide much of the requested information, claiming that it was confidential, despite GTN having publicly disclosed similar information for the Sunstone pipeline, and despite GTN's willingness to sign an NDA.

GTN filed several motions to compel Ruby LLC to provide the requested information. The motions were denied in large part, primarily because the ALJ deemed the information to be highly confidential, and because the ALJ found that the likelihood the requested information would lead to the discovery of admissible evidence was outweighed by the burden, expense, and intrusiveness of GTN's request. Then, on the eve of hearings, Ruby LLC issued a press release that made public the same information it had previously insisted was confidential. GTN contends that Ruby LLC's public release of the information shows it was never confidential and that the ALJ's rulings were erroneous.

GTN next filed a motion to compel Ruby LLC to provide the requested information to GTN's "reviewing representatives." The ALJ denied GTN's motion. Because the ALJ had previously required PG&E to provide confidential information to GTN's reviewing representatives, GTN contends it was legal error when the ALJ did not require Ruby LLC to provide confidential information to GTN's reviewing representatives so that GTN could prepare for litigation.

Third, on June 25, 2008, after the evidentiary hearings had begun, Ruby LLC issued a press release that announced the estimated cost of the Ruby Pipeline had increased to $3 billion, that the design capacity had increased to range of 1.3 Bcf/d to 1.5 Bcf/d, and that no equity partners, other than El Paso itself, were participating in the Ruby Project. The press release was discussed at the evidentiary hearing on June 25, at which time the ALJ ordered Ruby LLC to update its testimony by noon on Friday, June 27, 2008, to reflect the information in the press release. The ALJ also directed GTN to file reply testimony by noon on Tuesday, July 1, 2008.

GTN filed a motion to suspend the proceedings for one month so GTN could amend its case in response to Ruby's new testimony. The ALJ denied GTN's motion. The ALJ also determined that the procedural schedule would not be altered and that GTN would be required to cross-examine Ruby's witnesses on Monday, June 30, 2008. Consequently, GTN had to both write rebuttal testimony and prepare for cross-examination on new evidence in less than two business days, all the while continuing its cross examination of PG&E's witnesses. GTN believes this shows it was denied discovery on Ruby's replacement testimony and an adequate opportunity to prepare its own testimony to respond to Ruby's replacement testimony.

Finally, GTN alleges that it was deprived of the opportunity to complete its cross-examination of Ruby LLC's main witness and the sponsor of Ruby's replacement testimony. The ALJ terminated GTN's cross-examination of Ruby's witness on the grounds that GTN's cross-examination exceeded its estimated time. That estimate had been provided prior to Ruby's press release and Ruby's filing of replacement testimony.

GTN argues that California Courts have held the Commission cannot allow one party to submit new testimony during a hearing without providing the other parties an opportunity to respond to the new testimony. The Courts view three business days as insufficient time to allow an opposing party to respond to new issues raised by another party. Here, only two days were provided.¹⁰⁴

GTN also argues the ALJ rulings allowing Ruby LLC to submit testimony after the start of the evidentiary hearings failed to comply with the due dates for submitting testimony set forth in the Scoping Memo and violated the Commission's Rules of Practice and Procedures (Rules). Rules 13.8(a) and 13.8(b) require that prepared testimony be served to all the parties prior to start of the hearing; that such prepared testimony constitute the entirety of the witnesses' direct testimony; and that any additional testimony that alters the substance of the prior submitted prepared testimony will not be accepted unless the sponsoring party demonstrates good cause as to why the additional testimony could not have been served prior to the hearing.

¹⁰⁴ Southern California Edison Co. v. Public Utilities Commission (2006) 140 Cal. App. 4th 1085, 1106.