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United States v. Pacific Gas and Electric Co.

United States District Court, N.D. California

June 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PACIFIC GAS AND ELECTRIC COMPANY, Defendant.

          ORDER GRANTING IN PART WITNESSES' MOTION TO QUASH; DENYING GOVERNMENT'S MOTION TO QUASH

          THELTON E. HENDERSON United States District Judge.

         This matter came before the Court on June 6, 2016 for a hearing on two motions to quash the same third-party subpoenas to trial witnesses Margaret Felts and David Berger, which were separately filed by Felts and Berger (the "witnesses") and the Government. Dkt. Nos. 507 ("Witness Mot."), [1] 574 ("Gov't Mot."). Defendant Pacific Gas and Electric Company ("PG&E"), who issued the subpoenas, timely opposed both motions. Dkt. Nos. 522 ("Witness Opp'n"), 599 ("Gov't Opp'n"). The movants timely replied in support of their respective motions. Dkt. Nos. 537 ("Witness Reply"), 609 ("Gov't Reply"). After carefully considering the parties' written and oral arguments, the Court hereby GRANTS IN PART the witnesses' motion and DENIES the Government's motion.

         BACKGROUND

         PG&E served trial subpoenas for documents on two individuals - Felts and Berger - who previously worked with both the Government in this criminal prosecution and the California Public Utilities Commission ("CPUC") in its regulatory investigation of PG&E. According to PG&E, "these experts were working for the CPUC and the prosecutors at the same time, and appear to have been sharing information between the two clients." Witness Opp'n at 16. PG&E has confirmed that it intends to call both witnesses at trial.

         The Felts subpoena calls for the production at trial of the following seven categories of evidence:

A. All emails, documents, or other correspondence between you (including your consulting business) and any person employed by the DOT, PHMSA, the DOJ, the FBI, the San Mateo District Attorney, the City of San Bruno or the California Attorney General.
B. All emails, documents, or other correspondence between you (including your consulting business) and any person employed by the California Public Utilities Commission, including the California Safety and Enforcement Division and the Consumer Protection and Safety Division.
C. All notes, drafts, documents, and files concerning your investigation and testimony in California Public Utilities Commission Order Instituting Investigation (OD) No. 1.11-02-016.
D. All documents referenced in the attached January 22, 2016 email to James Haggarty (USA-178426) described as "an excel table and a text document . . . prepared for the OII." E. All contracts, billing records, invoices, and time entries relating to your work (including the work of your consulting business) concerning PG&E.
F. Any documents referencing or relating to grand jury secrecy or the requirements of Federal Rule of Criminal Procedure 6(e).
G. To the extent not provided in response to the above requests, all of you2r correspondence, documents, and files concerning PG&E.[2]

Dkt. No. 507-1 ("Felts Decl."), Ex. A. Felts does not challenge Category D. Witness Mot. at 6 n.1.

         The Berger subpoena calls for the production at trial of the following four categories of evidence (which are identical to several of the Felts categories):

A. All emails, documents, or other correspondence between you (including your consulting business) and any person employed by the DOT, PHMSA, the DOJ, the FBI, the San Mateo District Attorney, the City of San Bruno or the California Attorney General, since September 9, 2010.
B. Any documents referring or relating to grand jury secrecy or the requirements of Federal Rule of Criminal Procedure 6(e).
C. All contracts, billing records, invoices, and time entries relating to your work (including the work of your consulting business) concerning PG&E, since September 9, 2010.
D. To the extent not provided in response to the above requests, all of your correspondence, documents, and files ...

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