In the piece, Professor Krieger criticizes the Texas Public Utility Commission proposed rules severely limiting written discovery by customer groups in utility rate proceedings.
The proposal is a case study in the unintended consequences of a one-size-fits-all approach to very different situations.
The rule, which imposes sharp limits on written discovery, is roughly modeled on the rules that govern Texas civil trials. But the PUC’s proposed rule ignores the differences between most civil trials and PUC rate cases.
In civil trials, oral depositions are the primary discovery tool, and written discovery generally plays a secondary role. Conversely, in rate proceedings before the PUC, written discovery is the central means of gathering evidence, and depositions are rare because they are time-consuming and expensive.
In support of rate increases, utilities file volumes of documentary evidence on purported costs, revenue and required profit.
As would be expected, these filings are obviously slanted to support the requested increase.
Only through pointed requests for information can other parties in rate cases — representing residential customers, small businesses and large industrial users — ferret out from utilities the supporting evidence for these filings to assess their accuracy.
In the name of agency efficiency, the proposed PUC rule limits a cost-effective means of discovery in rate cases and hobbles representatives of ratepayers in their efforts to challenge the one-sided filings of utilities.
Unlike most civil litigation, most of the witnesses presented by utilities in rate proceedings are experts who develop complex reports on myriad issues in the case, ranging from the utilities’ revenue requirements to the allocation of rate increases to different classes of customers.
Without extensive discovery directed at these expert reports, effective cross-examination of these experts in the rate hearings will be significantly thwarted.