III. Discussion

SET's motion is for interlocutory relief concerning a discovery matter during an ongoing proceeding. We have consistently discouraged interlocutory appeals concerning procedural and evidentiary matters except for extraordinary circumstances. Our reluctance to entertain interlocutory matters avoids piecemeal litigation, prevents vexatious interference with the Commission's regulatory functions, and helps the Commission to complete its proceedings within the statutory time periods. (See, e.g., In re AT&T Communications of California, Inc. & WorldCom, Inc., D.02-05-042, 2002 Cal. PUC LEXIS 286, at *32 (2002) ("[W]e note that the Commission generally looks with disfavor on interlocutory appeals of ALJ rulings."); In re Southern California Gas Co., D.03-12-057, 2002 Cal. PUC LEXIS 1061 (2003) ("[O]n rare occasion the Commission may choose to reconsider some interim rulings, including Scoping Memos.").)

We have said, "Nothing in the Public Utilities Code, or in our Rules of Practice and Procedure, authorize[s] interlocutory appeals as a right of the parties. Interlocutory appeals delay the orderly functioning of the Commission and are not tolerated." (In re Roseville Telephone Co., D.99-06-051, 1999 Cal. PUC LEXIS 308, at *42 (1999).) With particular relevance to this proceeding, we have admonished that "the presiding officer must have the authority to rule on discovery motions and impose sanctions for discovery abuse. Without this authority, material evidence would remain undisclosed or unconscionable delay would occur as parties seek relief from the Commission." (See In re AT&T Communications of California, Inc. & WorldCom, Inc., supra, at *33.)

While enabling the presiding officer to properly manage a proceeding without disruption, our procedural rules expressly provide two avenues for the Commission to address disputed ALJ rulings. The usual opportunity is when the presiding officer submits a draft decision or a proposed decision to us for our consideration on the merits. Any previously filed motions are then before the Commission as it reviews the draft or proposed decision. At that time, the Commission may act to affirm, modify, or reject the prior ALJ ruling.

The second avenue is Rule 65, which allows the presiding officer, during a proceeding, to refer evidentiary rulings to the Commission when "necessary to promote substantial justice." (In re AT&T Communications of California, Inc. & WorldCom, Inc., supra, at *32.) Under Rule 65, the Assigned Commissioner and Administrative Law Judge are ideally positioned to identify those few but important interlocutory matters that should be referred to the entire Commission for determination. Indeed, the legislative scheme created by Public Utilities Code Section 1701 et seq. contemplates that, in almost all respects, the conduct of contested Commission proceedings is entrusted to the Assigned Commissioner and the assigned ALJ. With reference to SET's motion, both the Assigned Commissioner and the assigned ALJ have recommended against our interlocutory review of the discovery rulings.

Although not explicitly provided in our rules, under extraordinary circumstances the Commission may grant a direct request by a petitioner for interlocutory review of an ALJ's ruling. (See, e.g., Application of Pacific Gas & Electric Co., D.86-12-101, 23 CPUC 2d 352, 353 (1986).) Such interlocutory appeals are rarely granted; and, under Rule 87, the petitioner must demonstrate good cause for deviating from the Commission's Rules, which expressly provide the previously described two avenues for reviewing an ALJ's ruling during a proceeding.

In this instance, SET has not convincingly demonstrated extraordinary circumstances under Rule 65 or for a direct appeal of an interlocutory ALJ ruling. We have weighed SET's stated need for interlocutory relief against our regulatory interest in an expeditious investigation of the underlying facts of potential market abuse. SET has been conducting the ordered e-mail recovery and review process for over a year. The costs SET indicates it has incurred in complying with the subpoenas are relatively small when compared with the potential magnitude of natural gas market abuse that is alleged in this proceeding. If the full Commission decides to reallocate these costs as it reviews the draft or proposed decision, SET faces minimal risk in its ability to collect its costs from Edison, a sizeable entity in its own right and subject to our ongoing jurisdiction and orders. SET's discovery costs, under the facts of this case, do not present such an extraordinary circumstance that the Commission should address its claims now. Indeed, SET's efforts to secure judicial review and our review of the ALJ rulings have distracted attention from the merits of our investigation. Under these circumstances, SET has not demonstrated the extraordinary circumstances warranting interlocutory review or relief.