VI. Discussion
A. Ordering Paragraph 4 Controls this Discovery Dispute
In an OII, the Commission determines the scope of its proceeding. (See generally Pub. Util. Code § 1701.1 and Rule 6.3 of the Commission's Rules of Practice and Procedure (Rules).) Statutes such as Pub. Util. Code § 1701.2 underscore the importance of this task, by requiring the Commission to resolve adjudication cases such as this OII within a year of their initiation, unless the Commission finds the deadline cannot be met and issues an order extending it.3
In defining the scope of the OII, the Commission determined that Edison should have access to the information relating to the specific violations alleged in the order. The specific violations alleged consist of 37 accidents, 4,044 GO 95 violations, 677 GO 128 violations, and 94 GO 165 violations. This is sufficiently broad to enable Edison to obtain the information reasonably necessary to prepare its defense, but also forecloses discovery requests that are overbroad, excessively burdensome, or which could cause an unwarranted delay, contrary to the public interest.
B. Other Commission OIIs Contain Similar Discovery Directives
The Commission has previously upheld a similar discovery directive to Ordering Paragraph 4. In the Commission's investigation of Telmatch Telecommunications, Inc., (Telmatch), Investigation (I.) 99-09-001, the Commission limited CSD's obligation to respond to discovery requests from Telmatch to those "directed at Staff's investigation of the respondent and staff's prepared testimony offered in this proceeding."
In denying rehearing of the OII, the Commission reasoned as follows.
"This provision gives Telmatch access to the information obtained in the course of staff's investigation of Telmatch, and to all the evidence that staff intends to present at the hearings. It is sufficiently broad to enable Telmatch to obtain the information reasonably necessary to prepare its defense. It merely forecloses discovery requests concerning other investigations and other respondents. Such requests would be overbroad and excessively burdensome, and could cause an unwarranted delay of these proceedings, which would be contrary to the public interest." (Telmatch, Decision 99-10-027,1999 Cal.PUC LEXIS 748 *4.)
This rationale applies equally here. If every utility under investigation could seek discovery concerning other utilities and CSD itself, the Commission would be hampered and unduly delayed in effective regulation.
Edison primarily distinguishes Telmatch because in Telmatch, the company used the sweepstakes method to sell telephone calling cards and the issue was whether that practice violated Pub. Util. Code § 451, among other statutes. According to Edison, information about other telecommunications providers' conduct would have no bearing on whether Telmatch customers knowingly consented to buy the calling cards.
This is a distinction without a difference. In challenging the discovery directives, Telmatch made arguments similar to those made by Edison, including (1) that the discovery was necessary because other companies may also have used the sweepstakes method of obtaining customers; (2) that the Commission should not pick and choose which companies to impose remedies on; and (3) that the discovery restriction unfairly hampered its ability to prepare a defense.4
Edison also argues that to its knowledge, the Telmatch OII is the only other Commission order directing the scope of CSD's discovery obligations.5 However, our own Lexis research reveals at least 14 other OIIs in the last six years containing similar language.6 In fact, some of these OIIs determined that CSD need only respond to discovery directed to its prepared testimony, and not, as here, to discovery relating to the specific violations alleged. Thus, the Commission is treating Edison in the same manner as other regulated utilities by including Ordering Paragraph 4's discovery directive in the OII.
C. The Three Categories Raised in Edison's Motion
The Commission is not bound by the technical rules of evidence. (Pub. Util. Code § 1701.) No statute or Commission rule defines the scope or procedure for discovery in Commission proceedings. Such direction as exists is general and permissive. For example, Pub. Util. Code § 1794 permits depositions under certain circumstances "in the manner prescribed by law for like depositions in civil actions in superior courts... ."7
The Commission generally relies upon the discovery rules in the California Code of Civil Procedure (CCP) in the absence of its own rules. (See generally Re Alternative Regulatory Frameworks for Local Exchange Carriers, D.94-08-028, 55 CPUC2d 672, 677.) CCP § 2017(a) provides that, unless otherwise limited in accordance with that section, any party may obtain discovery regarding any non-privileged matter relevant to the subject matter of the case, if the matter either is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. Section 2017(c) provides that the court shall limit the scope of discovery if the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. With these statutes in mind, and in the context of Ordering Paragraph 4 of the OII, we now consider the three separate categories raised in Edison's motion to compel.
1. Information Relating to Other Edison Safety and Maintenance Incidents
The OII focuses on the time period between 1998-2000. As stated above, footnote 1 on page 2 of the OII states that during this time period, CSD has investigated numerous other Edison accidents "where violations were found, but were not directly related to the accidents, or there was not sufficient evidence for CSD staff to establish a violation."
The Commission makes regular inspections of Edison, as a result of which Edison should have obtained much of the requested information. However, footnote 1 references other Edison investigations between 1998-2000. Granting Edison's request unlimited as to date would be burdensome and intrusive. Therefore, Edison's motion to compel information regarding other Edison safety and maintenance incidents not specified as alleged violations in the OII is granted, with the restriction that Edison's requests shall be limited to CSD's inspections of Edison from January 1, 1998 to December 31, 2000.
2. Information on Other Alleged Utility Safety and Maintenance Violations
The limited scope of this OII is whether Edison violated certain statutes and General Orders. An exhaustive review of the Commission's inspection records of four additional large electric and gas utilities would be extremely burdensome for CSD, and this burden outweighs the likelihood that the information sought would lead to the discovery of admissible evidence. This is so because the scope of this proceeding concerns Edison's alleged violations, not those of the other utilities.
Edison believes that discovery of information concerning other utilities will show that the alleged violations do not amount to a continuing pattern of a "high level" of violation, and that CSD's inspection standards vary greatly from utility to utility, such that the violations alleged have not been regarded as violations at other times and places.8
Edison attempts to raise a selective prosecution defense, but "[p]rosecutorial discretion permits the choice among possible defendants which to prosecute, whether to prosecute, and in what order to prosecute." (See People v. Superior Court (Lyons Buick-Opel-GMC, Inc.) (2nd Dist.; Div. 2 1977) 70 Cal.App.3d 341, 344.) The Commission regulates many utilities. If each utility against whom the Commission issued an OII could expand the scope of discovery to include Commission inspections or investigations of other utilities, the Commission's business could slow to a snail's pace or stop altogether. This is not a hypothetical concern, as shown in Telmatch, where the utility also sought information concerning other utilities as relevant to its defense. In fact, this is precisely the type of inquiry the Commission seeks to foreclose in Ordering Paragraph 4 in the OII. As stated above, Edison can obtain information of CSD's inspections of Edison from 1998 to 2000, and has access to public files concerning other formal Commission proceedings. Edison's request for further information therefore is denied.
Edison states it has obtained evidence supporting its belief that it is being singled out by CSD in this investigation, citing the deposition transcript of Larry McNeely (McNeely), a former CSD employee. McNeely states that, in his opinion, the allegations identified in the OII were insufficient to bring a formal proceeding against a utility according to CSD standard practice, and that there was pressure on CSD from other parts of the Commission to issue an OII against Edison. Edison argues that this information constitutes a prima facie, or plausible, case justifying further discovery, citing People v. Municipal Court (Street) (1st Dist., Div. 3 1979) 89 Cal.App.3d 739, 747-751.
Unlike the instant investigation, People v. Municipal Court (Street) addressed criminal discovery, rather than to civil discovery. In fact, the court there contrasted the right to discovery in criminal and civil contexts, noting that discovery in a criminal case is strictly a judicial creation and quite broad.9 Since California civil discovery law is not binding upon the Commission in determining the scope of discovery, a fortiori, California criminal law is also not binding before the Commission in the context of this OII.
In any event, Edison has not established a prima facie case justifying discovery because the Commission, through its orders, speaks for itself. It does not do so through an individual employee (or in this case, a former employee.) The Commission itself issued this OII to determine if Edison has violated the laws, rules, and orders set forth in the OII. The Commission, based on the record, will determine whether there were violations and, if so, the appropriate penalty. Although a former employee may believe that the allegations in the OII are insufficient to establish a violation, that issue is for the Commission to determine, not the former employee. While the Commission may consider CSD's recommendations on violations and penalties, it is not bound to follow them. The Commission instead will independently assess the appropriate outcome of this investigation based on the record. The information underlying Edison's alleged prima facie case is irrelevant and does not establish a need for wholesale discovery concerning the Commission's investigations of other electric utilities.
3. Information on CSD's Own Policies, Practices and Standards
Edison states it is entitled to information concerning CSD's policies, practices, and standards to support its defenses of laches, waiver, estoppel, ratification, and selective prosecution. Edison states it will use this discovery to prove that, in the past, CSD knowingly accepted or did not timely object to Edison and other utilities' safety inspections and maintenance practices and programs. Edison claims that this information is also essential to determine whether monetary penalties should be assessed and, if so, in what amount.
As noted above, Edison will be permitted full discovery concerning the specific violations alleged in the OII as well as other CSD inspections of Edison between 1998-2000. Under the same rationale articulated in subsection 2 above, a full scale inquiry into all of CSD's internal policies, practices, and standards is overbroad and intrusive. These problems clearly outweigh the likelihood that the information sought will lead to the discovery of admissible evidence. The timing of the exercise of discretion in enforcing the law is irrelevant to the issue of a violation of the law. We therefore deny Edison's request on this issue.
In summary, we grant Edison's motion to compel discovery insofar as it relates to other Edison safety and maintenance incidents which CSD investigated between 1998 - 2000, and which are not specified as alleged violations in the OII. CSD shall serve its responses to Edison's October 31, 2001 data request in light of this ruling no later than February 28, 2002. In all other respects, we deny Edison's motion to compel. Because of this disposition, it is unnecessary to address CSD's other statutory arguments. Pursuant to Rule 65, we do not refer this matter to the Commission for determination.
3 Pub. Util. Code § 1701.1(c)(2) defines adjudication cases as enforcement cases and complaints except those challenging the reasonableness of any rates or charges as specified in § 1702. This OII is an enforcement case.
4 See Application for Rehearing of Telmatch Telecommunications, Inc. filed in I.99-09-001 on September 9, 1999, of which we take official notice pursuant to Rule 73 of the Commission's Rules of Practice and Procedure. At p. 3, Telmatch states: "...staff's position raises serious practical issues: will all [interexchange carriers] be required to re-PIC away any customers previously signed up through sweepstakes? Will the Commission order that, or will it pick-and-choose which companies to force this remedy on? How many sweepstakes customers are out there? ... Second, the discovery restriction unfairly hampers Telmatch's ability to prepare and present a defense."
5 In its January 3, 2002 reply, Edison states it searched both Lexis-Nexis and the orders and decisions listed on the Commission's web site.
6 The 14 OIIs include the following: (1) I.01-08-003 into the practices of TALK AMERICA, INC., Ordering Paragraph (OP) 4; (2) I. 00-12-029 into the practices of Guillermo and David Navarro, doing business as Happy Tours, OP 4; (3) I.00-11-052 into the operations of Qwest Communications, OP 7; (4) I.00-11-054 into the practices of Frank M. Quenga, doing business as Hafa Adai, OP 3; (5) I.99-12-001 into the practices of Coleman Enterprises et al., OP 12; (6) I.99-10-024 into the practices of USP&C, OP 3; (7) I.99-06-035 into the practices of ACI Communications et al., OP 7; (8) I.99-04-020 into the practices of Vista Communications, et al., OP 10; (9) I.98-03-039 into the practices of America's Tele-Network Corp., et al., OP 10; (10) I.97-09-001 into the practices of National Telephone & Communications, OP 10; (11) I.97-04-045 into the practices of Brittan Communications International Corp., OP 10; (12) I.97-04-044 into the practices of L.D. Services, doing business as Long Distance Services, OP 6; (13) I.96-04-024 into the operations of Heartline Communications, Inc., OP 9; and (14) I.96-02-043 into the practices of Communication TeleSystems International et al., OP 9.
7 Pub. Util. Code §§ 1791 through 1795 address a witness' appearance before the Commission. Rules 59 through 61.1 address subpoenas, including their issuance, contents and service, motions to quash or for protective orders. No rule sets forth all permissible means of conducting discovery in formal Commission proceedings.
8 In addition to its selective prosecution defense, Edison states it needs the requested information to support its affirmative defenses of vagueness, waiver, laches, estoppel, and ratification, but does not state in any further particular detail why it needs information about other utilities for these defenses.
9 "This broad allowance of discovery granted to criminal defendants has been continuously reaffirmed. In Pitchess v. Superior Court, supra, 11 Cal.3d 531, 536, the court said: `[I]n contrast to the formal requirements for civil discovery, an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.'" (People v. Municipal Court (Street) 89 Cal.App.3d at 750.)
