El Paso Natural Gas has called on FERC Chief Administrative Law Judge Curtis Wagner Jr. to take steps to prevent the further release to the media of “highly sensitive marketing materials” that it has been required to turn over as part of discovery in a complaint case brought against it.

The pipeline’s request comes in the wake of an “apparent disclosure” to The New York Times of El Paso documents that were supposed to be sealed and protected as part of the California Public Utilities Commission’s (CPUC) complaint accusing the pipeline company and its merchant power affiliates of engaging in improper and possibly illegal practices to drive up natural gas prices in the California market (See NGI, April 9).

The Commission has initiated a formal, non-public investigation into the leak, headed by Wagner. He has been directed to report the results back to the Commission either later this month or in early May, along with recommended remedies.

Specifically, El Paso has asked that a Sept. 15, 2000 protective order, governing the discovery and handling of proprietary material and information in the case, be amended so that: 1) the material would only be available for viewing at the Washington, D.C., law offices of Andrews & Kurth LLP; parties would be permitted to take notes of the highly sensitive documents only on the condition that the notes be destroyed at the end of the complaint case; parties would be barred from making copies of the documents; and a log would be maintained of all parties that review the documents pertaining to El Paso and its merchant power affiliates.

These additional protective measures are needed because the Sept. 15 protective order “already has been seriously breached,” as reflected by the Commission-ordered probe into the leak of confidential materials, and any further public disclosure of proprietary information “could cause serious, if not irreparable, competitive harm to El Paso,” the pipeline told Wagner.

The focus of the FERC investigation is a March 26 New York Times article, “Deal for Use of Gas Pipeline Stirs Dispute on Competition,” that made “detailed references” to sealed documents in the complaint proceeding in which El Paso and affiliates were charged with rigging the bid process and manipulating gas prices at the California border. The companies were cleared by FERC of the former allegations in late March, but the latter charge of price manipulation has been set for hearing (See NGI, April 2).

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