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Parties Raise FERC Deliberative-Process Limits; Plaintiffs Withdraw Post-deadline Deposition Notice
Summary
Defendants and plaintiffs clashed over a deposition noticed after the discovery deadline and discussed Federal Energy Regulatory Commission (FERC) limits on probeable materials. Plaintiffs withdrew the specific deposition notice.
During a June 26 status conference in the consolidated Great Lakes Energy litigation (lead case 20-094MM), defense and plaintiff counsel debated whether a post-discovery deposition notice for a witness identified as Michael France was timely and properly served. Plaintiffscounsel later told the court they were withdrawing the deposition request.
Defense counsel objected, saying the notice was served after the case's discovery deadline and, further, that the subpoena was not properly served because the witness and his counsel are in Colorado. Plaintiffs' counsel acknowledged the timing but said the notice related to the practical problem that FERC (the Federal Energy Regulatory Commission) had limited what plaintiffs could obtain from certain federal witnesses and documents because of FERC's handling of critical infrastructure information.
Plaintiffs described efforts to secure records and depositions from individuals listed as defense experts and said they had been told by FERC that some materials and testimony are off-limits for civil discovery on deliberative-process or critical-infrastructure grounds. Plaintiffs said they intended to file a motion seeking court assistance to address whether FERC's limitations prevented discovery and to ask the court to rule on what limited testimony or documents remain available.
At the hearing the court expressed concern about seeking to compel federal administrative materials but said it would consider the parties' arguments. The presiding judge said he would review any motion and the parties' responses before ruling, emphasizing that the issue had been on the parties' radar since early in the case.
Plaintiffs' lead counsel later told the court they had "decided we aren't taking the dep" for the originally noticed date and that they were withdrawing the deposition notice. The court directed counsel to either withdraw the request formally or respond to any motion related to the notice; the transcript records plaintiffs' counsel confirming the withdrawal.
Why this matters: The dispute highlights an evidentiary tension in cases involving infrastructure regulated by federal agencies: plaintiffs say FERC's protective treatment of certain records has limited their ability to develop claims tied to agency interactions; defendants maintain those limitations are known and manageable in the case schedule. The court said it would consider briefing on the issue if the dispute is renewed.
The court and counsel also discussed the broader legal framework for subpoenas of federal officers and records, and the judge noted the well-established case law governing third-party discovery from federal agencies. Counsel agreed to bring any contested motions to the court for resolution so the record could be clear.
No formal ruling on FERC's authority was issued at the conference; the immediate practical outcome on the deposition was that plaintiffs withdrew the noticed deposition for now.
