Enron recently asked a FERC administrative law judge (ALJ) to give the bankrupt former energy trading giant an additional six months to review thousands of hours of Enron trader tapes as part of a FERC probe into possible manipulation of California's energy markets in 2000-2001 and Enron's relationships and practices in the West during that time frame [EL03-180-000].
At issue are 49,500 hours worth of Enron trader tapes in the custody of the U.S. Department of Justice (DOJ). "Despite Enron's best efforts, Enron will only have access to the tapes on terms that are decidedly inferior to the terms upon which Commission trial staff has had access," Enron said in its June 10 filing with FERC ALJ Carmen Cintron.
The Federal Energy Regulatory Commission (FERC) staff has been plowing through thousands of hours worth of audio tapes as part of a FERC probe into possible manipulation of California's energy markets in 2000-2001 and Enron's relationships and practices in the West during that time frame.
In its filing, Enron noted that FERC staff, Snohomish Public Utility District No. 1 and various California parties have filed testimony based on selected portions of tapes from Enron's former trading operations. Enron sought and was granted the opportunity to rebut that testimony by conducting its own review of the tapes and filing testimony containing its own selections from the tapes.
Enron noted that its ability to review the tapes and to submit testimony is contingent upon receiving access from the DOJ. "The DOJ has notified Enron of its need to maintain custody of the tapes and to keep them confidential, as the DOJ considers the trader tapes to be grand jury materials," Enron said.
The DOJ will not permit Enron to receive copies of the tapes or otherwise have access in a manner that would impair its custodial and confidentiality requirements. Enron has therefore been working with FERC trial staff and the DOJ to obtain access to the tapes in a way that meets the DOJ's requirements.
A necessary first step was reached on May 13, when Enron successfully obtained a protective order signed by Commission trial staff, the DOJ and Enron. However, the former energy trading giant did not get access to the tapes immediately thereafter because the DOJ had not finalized the terms upon which physical access to the tapes would be accorded.
The DOJ has now agreed to permit Enron to send three to five persons per day to the FBI's Houston offices during ordinary business hours to listen to the tapes, and the DOJ is finalizing its setup to allow that limited access to occur.
Therefore, as of the date of Enron's June 10 filing, Enron had not yet realized actual access to the tapes. Enron expected to obtain access to the tapes at the Houston FBI offices at some point last week. However, "through no fault of its own, Enron has already lost more than half of the time that your honor [Cintron] provided to it to conduct its review and the hearing date in this matter is fast approaching."
Enron said that the terms under which it will be accorded access to the tapes are "markedly inferior" to the access FERC trial staff has had to those same tapes. "In addition, Snohomish was given access to its subset of the tapes in mid-2004, with no restrictions whatsoever."
That's why Enron wants a six-month period in which to review the tapes and file its testimony, starting from the date that it actually gains the access currently permitted by DOJ.
Enron said that if Cintron is unwilling to grant a further extension and is determined to proceed to trial as now scheduled, "the government's testimony based on the tapes, as well as the testimony of Enron's other accusers, must be stricken from the record for failure to provide Enron with meaningful and equivalent access to the potentially exculpatory tapes."
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