EMERGENCY MOTION TO SUSPEND HEARINGS AND MOVE WITNESSES TO A LATER DATE AND TIME
The parties to this proceeding, Save Vermont Ridgelines ("SVR"), Industrial Wind Action Group ("IWA"), Thomas Shea ("Shea"), Duncan Cable TV ("DUNTV") and Clifford and Diana Duncan ("CDUN"), request that the Public Service Board ("Board") issue an order to immediately suspend the entire week of hearings scheduled to begin September 22 and to move witnesses in that week to a time after the conclusion of the October hearing days.
The basis for this emergency motion is the gross abuse of discovery procedures in producing an enormous overload of documents on the last day before the hearings begin, many of which are more than two months old.
At the end of day on Friday, September 19, attorneys for Deerfield Wind, LLC ("Deerfield") e-mailed to the parties sixty-one separate electronic files, with numerous documents contained, totaling fifteen megabytes. (See attachments A and B)
In correspondence with Deerfield Attorney Andrew Raubvogel (See attachment C) on Saturday morning, September 20, Attorney Raubvogel justified the enormous dump of documents as follows by stating "the discovery rules require a responding party to seasonably supplement their prior discovery responses if new documents become available which are responsive to the original requests."
In the short time available since this massive batch of documents has been produced, only a cursory review of the documents has been possible. Yet even a cursory review reveals that a huge number of very important documents are dated back to mid- August with many dated in July and earlier (See attachment B). Several of the documents sent by Deerfield on Friday contained information of significant relevance to the parties that could have been used by our experts in preparing any possible rebuttal testimony and in preparing for cross-examination. For example:
1) The proprietary financial information pertaining to the Project included updated information with new assumptions and analyses that go to the heart of the testimony presented by Hewson and Michaels indicating that the project is not financially feasible and that any power purchase agreement would involve payments by Vermont ratepayers far in excess of many alternative ways of meeting the same alleged "need" for this particular renewable source of power.
2) A July 9 e-mail between Robert Bayer of the US Forest Service and Deerfield Attorney Brian Dunkiel (Attachment D), in which Bayer inquires about Attorney Dunkiel's suggestion that the public be charged for hardcopy versions of the Draft Environmental Impact Statement ("DEIS") prepared by the Forest Service for the Project site. The correspondence between Bayer and Dunkiel, which predates the release of the DEIS by two months, demonstrates a deliberate strategy by Deerfield to limit access of the document to the public. This reflects on the ethical character of the company, the credibility of its witnesses and the appropriateness of allowing them to operate a business in the State of Vermont.
Attorneys for Deerfield Wind LLC are experienced in proceedings before the Public Service Board and understand the intent and spirit of the discovery rules. Deerfield offers no explanation for why the two and three-month old documents were sent a day before the hearings but merely claims adherence to the rules.
It is apparent that this document "dump" is a direct attempt by Deerfield to overwhelm the intervenor parties with information at the last minute. In so doing, Deerfield is obviously seeking to deny the parties a fair chance to challenge this clearly inappropriate Project. But the ramifications of Deerfield's action reach far beyond the parties. By withholding information as it did, Deerfield has grossly hindered the intent of these proceedings, i.e. to vigorously test the facts of the Project before the Board. If this action is allowed to stand without relief for the parties and consequences to Deerfield, it will be the residents of Vermont who are ultimately harmed since the public cannot be assured that any resulting certification, should the Project be approved, will be based on the best available data. Deerfield's failure to produce these documents in a timely manner, when the experts on many of the issues are scheduled to appear at the beginning of this coming week - Habig Panel, Hausman, Kavet, Michaels, Hewson, Lamont, etc. - is particularly egregious.
Further, some of the material produced has already been released to the parties, like prefiled testimony, suggesting that Deerfield included documents it knew had already been provided apparently in an attempt to make the "disclosures" as large as possible, thus making it even harder for the parties to sort through all of the information to find what was relevant to the witnesses. These are cheap acts that should not be allowed.
Rather than obeying the spirit and letter of the rules, Deerfield reduced itself to these improper tactics for the sole and obvious reason that they cannot defend the Project on its own merits.
This is a flagrant violation of the due process rights of those opposing the Project and the Board should not countenance such a misuse of their rules done obviously to gain an unfair strategic advantage. We note that the volume of material produced far exceeds the normal supplementation done in the past, further underscoring that this is a deliberate tactic to deprive the parties of their statutory and constitutional rights to be heard and to protect our rights to the peaceful enjoyment of our property and our public lands and to live our lives without illegal intrusions from industrial development.
Such underhanded, illegal tactics deprive the public of a fair chance to oppose the Project and Deerfield knows if there were a fair chance, they would lose. Given the high profile of this Project as the first wind energy facility proposed for National Forest land, it is vital that the Board act to correct this situation.
Pursuant to Rule 37 of the Vermont Rules of Civil Procedure, Deerfield cannot provide substantial justification for its failure "to supplement responses as required by Rule 26(e)". Deerfield's withholding of this information rather than releasing it when it became available was harmful to the parties in this proceeding. It is appropriate for the Board to impose sanctions against Deerfield.
For the reasons cited above, we believe it imperative that the Board act on this motion prior to the proceedings opening on Monday, September 22.
We respectfully ask that this honorable Board:
A. Suspend the hearings scheduled to begin September 22, 2008.
B. Move all witnesses for the week of September 22 to a date and time after the conclusion of the October hearing days.
C. Impose sanctions on Deerfield in accordance with Rule 37 of the Vermont Rules of Civil Procedure.
D. Grant such further relief as it deems equitable and appropriate.
Save Vermont Ridgelines, Inc.
Industrial Wind Action Group, Inc.
Duncan Cable TV
Clifford and Diana Duncan