Faculty Notes

Prof. Stefan Krieger Writes Op-Ed Criticizing Proposal to Limit Written Discovery in Utility Rate Cases

Stefan Krieger, Richard J. Cardali Distinguished Professor of Trial Advocacy, Director of Center for Applied Legal Reasoning and Director Emeritus of Hofstra Clinical Programs

On Feb. 11, 2015, Professor Stefan Krieger published an opinion piece, “Proposed PUC Rules Harm Customers,” in the Fort Worth (Texas) Star-Telegram.

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.

Read the full piece.

Latest Tweets

  • Watch Prof. @jamesjsample discuss articles of impeachment and the latest on the impeachment process with… https://t.co/dsiFA438ol
    about 5 days ago
  • Prof. Fred Klein Presents to Nassau County District and County Court Judges on New Criminal Discovery Law in New Yo… https://t.co/0gnceVkLZQ
    about 6 days ago
  • Prof. Andrew Schepard Presents on Forensic Parenting Evaluations at 10th Judicial District 3rd Annual Matrimonial C… https://t.co/XEeEnJx6vh
    about 6 days ago
  • Prof. Norman Silber Presents on the ‘Revolt Against the Regulation of Philanthropy’ at 2019 ARNOVA Annual Conference https://t.co/eSw9yEQNHR
    about 6 days ago
  • Article by Prof. Norman Silber on Foreign Interference in National Elections Published in Northwestern University L… https://t.co/xh6W6WYZfP
    about 6 days ago
  • Watch Prof. @jamesjsample discuss the latest regarding the impeachment inquiry with @PIXScott on @PIX11News:… https://t.co/p3nyM9uoc1
    about 7 days ago