3. Analysis

CPSD states in its motion:

Clear World and the Mancusos have largely failed to comply with the OII, as set out below. In lieu of a "meet and confer," CPSD provided notice of this failure to Clear World and the Mancusos on July 14, 2004, and requested their prompt compliance with the OII." (CPSD Motion to Compel, at 2; footnote omitted.)

In a footnote explaining its reference to the "meet and confer," CPSD states: "Staff does not believe that it would be proper to negotiate compliance with a Commission Order."

As Clear World points out, Resolution ALJ-164 (establishing the Commission's law and motion procedure to hear discovery disputes) provides: "No discovery dispute shall be eligible for law and motion resolution unless the parties to the dispute have previously met and conferred in a good faith effort to informally resolve the dispute." Moreover, Ordering Paragraph 10.2 of the OII provides in pertinent part:

Meet and Confer: Staff and Respondents are directed to meet and confer with the several producing parties in order to establish which Attachments and Supporting Documents may be released as unrestricted, which Attachments and Supporting documents may only be produced to Respondents herein as "confidential," which Attachments and Supporting Documents may only be produced to Respondents as "attorneys-eyes-only" confidential, and whether some of the Attachments and Supporting Documents may be redacted or other accommodations reached in order to avoid a "confidential" or "attorneys-eyes-only" designation.

In view of these explicit requirements, it is difficult to understand CPSD's unilateral position that it will not meet and confer because it will not negotiate compliance with a Commission Order. The purpose of a meet and confer requirement is to facilitate compliance with discovery demands through, among other things, a discussion of what information is and is not available, where and in what form data can be supplied, what confidentiality considerations apply, and what data, specifically, should be addressed in a motion for a protective order or in a motion to compel. Without such a good faith effort to narrow any differences in the scope of discovery, a motion to compel is premature.

Moreover, if Clear World is correct in its assertions, the depositions of outside accountants by CPSD will provide at least some of the information that CPSD seeks. The depositions also provide an opportunity for the parties to arrange to meet and confer as to specific additional information that may or may not be required after the deposition testimony and documents have been evaluated.

Finally, I am troubled by CPSD's assertion that it will not engage in settlement discussions unless Clear World first supplies financial information in a manner satisfactory to CPSD. The Assigned Commissioner and I directed that settlement discussions be conducted, and we did not authorize a discovery condition that would have to be met prior to beginning these discussions. The parties have now been invited to select one of three available mediation/ settlement judges, and I expect settlement discussions to take place as the settlement judge directs. CPSD's request for financial information can be made part of those discussions in the event the requests are not resolved by the "meet and confer" or depositions.