Board mulls over discovery limits

St. Albans Messenger, June 12, 2017

ENERGY:
Swanton Wind files motion
By TOM BENTON
Messenger Staff Writer

SWANTON — Swanton Wind’s legal counsel before the Public Service Board (PSB) has now filed an official motion to limit discovery questions through the remainder of the board’s review process.

Discovery questions in the PSB process operate like discovery questions in the court process. The party being questioned must respond, under oath, to the best of their ability.

So far, Swanton Wind has been the party being questioned. In future discovery rounds, Swanton Wind will have the capability to question other parties officially participating in the case.

There are a total of 68 such parties. Swanton Wind’s most recent response to discovery questions filed by the citizen participants in the case, the bulk of whom are operating as one party, was 240 pages. There is no doubt Swanton Wind’s counsel and representatives face an enormous amount of questions.

The question now before the PSB is whether they face too many questions — the basic question that has sat at the base of Swanton Wind’s entire developmental process.

Swanton Wind filed the motion to limit discovery on June 6, but initially proposed the limitations as a “recommendation” with its May 24 schedule proposal, noting in the footnotes of that proposal that Swanton Wind will seek reimbursement for the time of its expert witnesses.

Christine and Dustin Lang filed a response within a week, alleging that limiting discovery “alters the scope of a discovery process already under way,” and that parties “would likely have undertaken different approaches to discovery had they known constraints would be imposed mid-way through the process.”

But the bulk of the Langs’ response focused on the way Swanton Wind announced its proposed limitations, which they said violated PSB procedure.

The Langs’ response specifically detailed the alleged procedural violations: that the recommendation was not a properly filed motion, that Swanton Wind’s counsel did not consult with other participants in the process in an attempt to mediate the discovery situation, and that counsel did not state legal facts in evidentiary form, such as in an affidavit.

When Swanton Wind’s counsel did file its proposed discovery limits as a motion about a week after the Langs’ response, it included all the procedural necessities the Langs noted were absent from its initial “recommendation.”

The discovery limits proposed in the motion are these: that discovery be limited to written questions only, not depositions, and that all subsequent rounds of discovery, aside from the first round on nonpetitioners — the first time Swanton Wind will question other participants in the case — be limited to 50 questions, “including subparts.”

That would significantly limit the more voluminous discovery requests — for example, the aforementioned discovery request from the case’s citizen participants totaled more than 200 questions — while discovery requests from parties such as the Northwest Regional Planning Commission, which submitted less than 40 questions in its first round of discovery, or the Burlington Electric Department, which submitted less than 20, might be less effected.

Swanton Wind argued in its motion that the discovery limitations are “appropriate because the firstround discovery responses received by Swanton Wind were unreasonably cumulative or duplicative, with different parties asking the same or substantially similar questions.

“Reasonable limitations on discovery questions moving forward will give the parties incentive to pose non-duplicative, carefully written and meaningful questions.”

Inspection of discovery questions received by Swanton Wind does show similar questions between parties. For example, in Swanton Wind’s most recent discovery filing, multiple parties submitted questions asking about Swanton Wind’s financial backing and how many homes fall within certain distances of the project.

Those who are curious can inspect the filings themselves at the Public Service Board’s online system, ePSB. Swanton Wind’s PSB case number is 8816.

“In addition,” Swanton Wind’s motion states, “in light of the approximately 1,000 discovery requests already served on [Swanton Wind] and the subsequent rounds of discovery contemplated in the schedules proposed by [Swanton Wind] and others, all parties will have ample opportunity by discovery to obtain information sought.”

Swanton Wind’s counsel argued in the motion that depositions are “impractical” because of the “unprecedented number of individual parties,” which, Swanton Wind alleged, would require “securing a large space such as an auditorium to accommodate all of the parties” to question any witness.

“The public good is not served by pouring unlimited resources into a proceeding regarding a proposed renewable energy project in a state that needs more renewable energy generation to meet its goals,” the motion said.

The PSB is presently accepting input from process participants regarding the motion. Such input is due by June 14, after which the board will issue its ruling.

Swanton Wind’s motion noted that the Department of Public Service, not to be confused with the Public Service Board, has already objected to its proposed limitations.

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One Response to Board mulls over discovery limits

  1. Pingback: Board mulls over discovery limits | ajmarciniak

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