NOTICE DATE:  December 21, 2016

NOTICE TYPE:  M-A071516-02 Legal

SHORT DESCRIPTION:  Notice of Disclosure of Certain Protected Information and Other Confidential Data Due to Litigation Discovery Request

INTENDED AUDIENCE:  All Resource Entities and Transmission and Distribution Service Providers

DAY AFFECTED:  July 18, 2016 and Ongoing

LONG DESCRIPTION:  On July 15, 2016, ERCOT issued Market Notice M-A071516-01 regarding discovery requests by Panda Power Generation Infrastructure Fund, LLC d/b/a Panda Power Funds, et al. (Panda Power Funds and/or Plaintiffs) in which certain responsive documents contained Protected Information as defined in the ERCOT Protocols.  ERCOT requested that the Court enter a protective order prohibiting Plaintiffs’ counsel from allowing Plaintiffs to view such commercially sensitive information.  (See Defendant’s Motion for Entry of Protective Order in Market Notice M-A071516-01.)  A hearing to consider ERCOT’s motion for entry of a protective order occurred on July 27, 2016 in Grayson County District Court.

On December 14, 2016, Judge James P. Fallon of the 15th Judicial District Court of Grayson County, Texas issued a letter ruling that Plaintiffs’ proposed protective order would be entered.  Attached is an unsigned version of the Protective Order that will control the production and disclosure of materials that include trade secrets, confidential business information, or other proprietary information.

Paragraph 8 of the Protective Order provides that “in-house counsel who have a decision making role in the Action but who exercise no competitive decision-making authority on behalf of the client may have access to Protected Material designated RESTRICTED - - ATTORNEYS’ EYES ONLY.” 

This provision means that Panda Power Funds’ in-house counsel, in accordance with the terms of the Protective Order, will be permitted to view Protected Information of Market Participants that is produced during the pendency of the litigation.  Such Protected Information has been and will be labeled “Restricted-Attorneys’ Eyes Only” in this lawsuit. 

During a hearing last week on other matters, when ERCOT sought clarification, Judge Fallon ruled that the protections concerning “Restricted-Attorneys’ Eyes Only” under Paragraph 8 trump the provisions of Paragraph 11 in the Protective Order regarding use of information during depositions.  Paragraph 11 will therefore not serve as an end-run around the protection of Restricted-Attorneys’ Eyes Only information during depositions.

At this time, ERCOT believes that it has fulfilled its obligation under Section 1.3, Confidentiality, of the ERCOT Protocols to seek a protective order from the Court to protect the confidentiality of Protected Information.

CONTACT:  If you have any questions about this outcome, please contact Chad V. Seely, ERCOT Vice President and General Counsel, at [log in to unmask] or (512) 225-7035.

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