1016-00004 · Dunmore Energy Holdings · Data Requests & Discovery

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT

CALDERWOOD & HARKNESS LLP

MEMORANDUM

Date: June 30, 2023

To: Catherine Bloom, Responsible Partner Hannah Brinkley, Lead Associate

From: Patrick Gallagher, Working Associate

Re: Analysis of FERC Office of Enforcement First Data Request — Docket No. IN23-7-000 (In the Matter of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC)

C&H Matter No.: 1016-00004

Billing Code: 71420.00001

I. Executive Summary

On June 26, 2023, the Federal Energy Regulatory Commission Office of Enforcement ("FERC OE"), Division of Investigations, served its first data request in Docket No. IN23-7-000, directed to Dunmore Energy Holdings Ltd. ("DEH") and Dunmore Power Trading LLC ("DPT," and together with DEH, the "Dunmore Entities"). The data request was transmitted by Lead Investigator Thomas Adebayo, with Senior Attorney Christine Pham copied on the cover letter. The data request was issued pursuant to the formal non-public order of investigation dated June 12, 2023, under 18 C.F.R. Part 1b, which authorizes FERC OE Staff to conduct a non-public investigation into the trading activities of DPT in the Midcontinent Independent System Operator, Inc. ("MISO") markets.

The data request is substantial in scope, comprising forty-one (41) interrogatories and twenty-three (23) document requests. The requests cover the period from January 3, 2022 through March 17, 2023 (the "Relevant Period"), a span of approximately fourteen and one-half months. The requests are wide-ranging, targeting the following principal areas: (i) DPT's MISO Day-Ahead and Real-Time trading activity at the Indiana Hub and Minnesota Hub pricing nodes; (ii) Financial Transmission Rights ("FTR") positions acquired and held by DPT during and prior to the Relevant Period; (iii) gas nominations made through Dunmore Midstream Partners LP ("DMP"); (iv) trader communications, including inter-desk communications among identified individuals; (v) organizational structure, reporting relationships, and supervisory authority within DPT's trading operations; (vi) trader compensation, including incentive compensation tied to trading performance; and (vii) compliance policies, programs, and internal reviews.

This memorandum serves three principal purposes. First, it categorizes each of the sixty-four (64) individual requests by topic to provide a structured framework for the response effort. Second, it identifies potential privilege issues, recommended objections, and strategic considerations arising from the requests. Third, it proposes a document collection, review, and production plan targeting an initial document production to FERC OE by July 24, 2023 — two days in advance of the formal thirty-day response deadline of July 26, 2023 — with narrative interrogatory responses to be submitted by July 17, 2023.

As a threshold observation, the data request reflects a well-developed investigative theory. FERC OE Staff has clearly identified the three prongs of its potential market manipulation case: (1) allegedly uneconomic Day-Ahead offers at the Indiana Hub designed to depress Day-Ahead prices and create artificial congestion; (2) FTR positions that profited from the resulting congestion patterns; and (3) coordinated physical-financial activity across the DPT and DMP entities, including alleged coordination of gas nominations with Day-Ahead bidding activity. The requests are designed to build the evidentiary record for each prong. Our responses must be calibrated accordingly.

II. Overview of the Data Request

A. Structure and Scope

The data request is organized into four principal sections: Definitions, Instructions, Interrogatories, and Document Requests.

The Definitions section defines eighteen (18) terms that apply throughout the data request. Key defined terms include "Relevant Period" (January 3, 2022 through March 17, 2023), "Transaction" (broadly defined to encompass any bid, offer, schedule, nomination, or other submission to MISO or any related market), "Communication" (defined to include all forms of written, oral, and electronic communication), "Document" (defined consistent with Fed. R. Civ. P. 34(a) to include electronically stored information in all forms), and "Affiliated Entity" (defined to include DEH, DPT, DMP, and any other entity directly or indirectly controlling, controlled by, or under common control with DEH). The breadth of these definitions is typical for a FERC OE first data request, but the definition of "Affiliated Entity" warrants attention because it sweeps in DMP — an entity that is not itself a respondent in Docket No. IN23-7-000 but whose activities are central to the third prong of Staff's manipulation theory.

The Instructions section specifies the format for document production. FERC OE Staff has requested that all electronically stored information ("ESI") be produced in native format, accompanied by a load file conforming to FERC's standard ESI specifications. The instructions further require that each document be Bates-stamped, that metadata fields be preserved, and that any documents withheld on privilege grounds be identified on a privilege log containing specified fields (date, author, recipients, general subject matter, and basis for privilege assertion). The instructions also note that FERC OE reserves the right to seek additional information and to conduct investigative testimony pursuant to 18 C.F.R. § 1b.12.

The Interrogatories are numbered 1 through 41 and are organized in an approximate topical sequence, though some requests cross multiple subject areas. The Document Requests are numbered 1 through 23 and generally correspond to and complement the interrogatories in each topical area.

The formal response deadline is thirty (30) calendar days from the date of service, yielding a deadline of July 26, 2023. The cover letter from Lead Investigator Adebayo indicates that FERC OE Staff is amenable to discussing any "reasonable scheduling accommodations" for large-volume productions, but emphasizes that interrogatory responses should be provided within the thirty-day window.

It is also noteworthy that the data request specifically references DPT's market-based rate authorization under Docket No. ER05-1128-000, which was granted on November 14, 2005. This reference signals that FERC OE Staff may be considering the full range of remedies available under the Federal Power Act, including potential revocation or suspension of market-based rate authority under Section 206 of the FPA, in addition to civil penalties under Section 316A.

B. Custodians Implicated

The data request identifies certain individuals by name in specific interrogatories and document requests. The following individuals are explicitly named in the data request:

• Kyle Renfro — Senior Trader, MISO Day-Ahead Desk. Named in Interrogatories 1–9 (Day-Ahead bidding at Indiana Hub), Interrogatory 28 (gas nomination communications), and Document Requests 1–5 and 13. Renfro is clearly a primary target of the investigation. His Day-Ahead offers at the Indiana Hub during the Relevant Period are at the center of FERC Staff's uneconomic bidding theory.

• Anastasia Petrov — Trader, MISO Real-Time Desk. Named in Interrogatories 16–22 (virtual transactions at Minnesota Hub), Interrogatory 28 (communications with gas scheduling), and Document Requests 10–13. Petrov's virtual transactions at the Minnesota Hub form the second leg of the alleged manipulation scheme.

• Derek Sung — Senior Vice President, Power Marketing & Trading. Named in Interrogatories 29–30 (organizational structure and supervisory authority), Interrogatories 31–33 (trader compensation), and Document Requests 18–20. Sung supervised both Renfro and Petrov and was ultimately responsible for the trading strategies under investigation. His potential supervisory liability is significant.

Beyond these three named individuals, the subject-matter scope of the data request implicates the following additional custodians:

• Rhonda Vasquez — Vice President, Regulatory Affairs. Implicated by Interrogatories 36–41 (compliance policies and programs) and Document Requests 21–23 (compliance documentation). Vasquez was responsible for regulatory filings and compliance program administration during most of the Relevant Period.

• Jennifer Caulfield — Chief Compliance Officer. Specifically referenced in Interrogatory 38, which asks about the circumstances of her appointment on February 6, 2023. Also implicated by Document Requests 22 and 23 (hiring documents and compliance assessments). Caulfield was hired approximately five weeks before the end of the Relevant Period, and the timing and circumstances of her appointment will be scrutinized by FERC Staff.

• Trading Desk Personnel — During the Relevant Period, DPT's MISO trading desk comprised fourteen (14) traders, including Renfro and Petrov. Interrogatories 29–30 seek identification of all of these individuals, and Document Request 18 seeks communications among all of them. The remaining twelve traders will need to be evaluated as potential custodians for document collection purposes.

Several requests also reach communications involving Martin Llewellyn (General Counsel, DEH) and Elena Mirova (President & Chief Operating Officer, DEH). Specifically, Document Request 22 (documents relating to Caulfield's hiring) and Document Request 23 (documents relating to internal compliance reviews) are highly likely to capture communications to or from Llewellyn, given his role as General Counsel. Document Requests 17 and 20 (organizational charts and management structure) may also implicate both Llewellyn and Mirova. The involvement of these senior executives, and particularly the General Counsel, raises significant privilege concerns that are discussed in Section IV below.

III. Categorization of Requests by Topic

This section categorizes the sixty-four individual requests into six topical categories and provides a detailed analysis of each category, including identification of key issues, strategic observations, and preliminary recommendations for response.

A. Category 1: Day-Ahead Bidding at Indiana Hub

Applicable Requests: Interrogatories 1–9; Document Requests 1–5

This is the largest and most central category of requests, directed at the first prong of FERC Staff's manipulation theory: the allegation that DPT submitted uneconomic Day-Ahead energy offers at the Indiana Hub pricing node during the Relevant Period.

Interrogatories 1–3 seek identification of all Day-Ahead energy offers submitted by DPT at the Indiana Hub during the Relevant Period. The requests are granular, demanding offer prices (in $/MWh), quantities (in MW), the specific generation units associated with each offer (by unit name and MISO resource ID), and the time period for each offer. Interrogatory 3 specifically requests an explanation of the "methodology, process, or analytical framework" used by DPT to determine offer prices for Day-Ahead energy at the Indiana Hub, including whether the methodology was documented in any written policy, procedure, or guideline. This request is designed to establish whether DPT had a systematic approach to offer pricing or whether offer prices were determined on an ad hoc basis by individual traders — a distinction that could be significant in assessing whether the offers reflected a legitimate business strategy or an improper purpose.

Interrogatories 4–6 narrow the focus to what FERC Staff clearly regards as the most problematic subset of DPT's Day-Ahead activity: instances in which DPT submitted Day-Ahead offers at negative prices. The data request specifically references a price range of -$15/MWh to -$40/MWh that has been identified by FERC Staff through market surveillance data. Interrogatory 4 seeks a complete enumeration of all such negative-price offers, by date, hour, unit, price, and quantity. Interrogatory 5 requests the economic rationale for each negative-price offer, and specifically asks whether the rationale was documented contemporaneously. Interrogatory 6 asks whether any individual other than Kyle Renfro was involved in the decision to submit offers at negative prices, and if so, whether any supervisory approval was required. This last interrogatory is designed to probe the chain of decision-making authority and to determine whether Renfro was acting independently or pursuant to instructions from Sung or other supervisors.

Interrogatories 7–9 seek detailed information about DPT's marginal cost calculations for each gas-fired generation unit whose output was offered into the MISO Day-Ahead market at the Indiana Hub. Interrogatory 7 requests a description of the cost inputs used in DPT's marginal cost calculations, including fuel costs (and the method of determining fuel costs, e.g., daily index, monthly average, contract price), heat rate data, variable operations and maintenance ("O&M") costs, startup costs, and emissions costs. Interrogatory 8 asks whether DPT had any contractual minimum generation obligations — such as must-run obligations, reliability commitments, or tolling agreement requirements — that could provide an economic justification for offers below short-run marginal cost. Interrogatory 9 asks whether DPT employed any opportunity cost methodology in determining offer prices and, if so, requests a detailed description of the methodology.

Document Requests 1–3 seek production of all documents reflecting or relating to Day-Ahead bidding strategies, offer price formulations, and internal policies governing offer submissions at the Indiana Hub during the Relevant Period. Document Request 1 is broadly framed, seeking "all documents reflecting, discussing, analyzing, or relating to" DPT's Day-Ahead bidding strategy at the Indiana Hub. Document Request 2 focuses on documents reflecting the actual formulation of specific offer prices, including spreadsheets, models, calculators, or other analytical tools. Document Request 3 seeks any written policies, procedures, guidelines, or directives governing the submission of Day-Ahead energy offers, including any policies addressing negative-price offers.

Document Requests 4–5 seek production of all documents reflecting the marginal cost of each DPT generation unit during the Relevant Period, including fuel cost data, heat rate calculations, heat rate curves, variable O&M cost data, startup cost data, and emissions cost data. Document Request 5 specifically requests any documents reflecting comparisons between DPT's offer prices and its calculated marginal costs for the same units and time periods.

Key Observations and Strategic Considerations:

These requests go to the heart of FERC Staff's allegation that DPT submitted uneconomic Day-Ahead offers during the Relevant Period. According to FERC Staff's preliminary analysis, as referenced in the cover letter accompanying the data request, DPT offered approximately 2,840 GWh of energy at the Indiana Hub during the Relevant Period at prices that were, in Staff's view, below the marginal cost of the associated generation units. The interrogatories are drafted in a manner that implicitly assumes the offers were below marginal cost, and several requests appear designed to foreclose potential economic justifications before they are raised.

I recommend careful framing of responses to these interrogatories to preserve the portfolio optimization defense. Specifically, the responses should articulate that DPT's offer pricing at the Indiana Hub was part of a broader portfolio management strategy that took into account, among other factors, the overall economics of DPT's generation fleet, fuel supply arrangements, and hedging positions. The responses should avoid characterizing individual offers as "below marginal cost" or conceding that any specific offer lacked an economic rationale. To the extent that individual offers were priced below short-run marginal cost as conventionally calculated, the responses should frame such pricing in the context of contractual obligations (e.g., minimum generation levels under gas supply agreements), operational constraints (e.g., minimum run-time requirements, ramp-rate limitations), and legitimate portfolio optimization considerations.

The response to Interrogatory 5 (economic rationale for negative-price offers) will require close coordination with the client's trading personnel and, ultimately, with the economic expert retained for this matter. I recommend that the response be drafted at a general level in the initial submission, with a reservation of the right to supplement after completion of the expert's analysis.

B. Category 2: Financial Transmission Rights

Applicable Requests: Interrogatories 10–15; Document Requests 6–9

This category of requests targets the second prong of FERC Staff's manipulation theory: the allegation that DPT held FTR positions that benefited from the congestion patterns allegedly created by DPT's uneconomic Day-Ahead offers at the Indiana Hub.

Interrogatories 10–12 seek comprehensive identification of all FTR positions held by DPT during the Relevant Period. The requests demand a high degree of specificity, including: the source and sink nodes for each FTR path; the volume of each position (in MW); the term of each FTR (monthly, annual, or seasonal); the date and manner of acquisition (auction or bilateral); the acquisition price; and the settlement value (both positive and negative) for each position over its term. Interrogatory 11 focuses specifically on FTR positions that included the Indiana Hub as either a source or sink node. Interrogatory 12 requests an explanation of the "FTR acquisition strategy and decision-making process," including which individuals were responsible for FTR portfolio management, what analytical tools or models were used to evaluate FTR opportunities, and how FTR acquisition decisions were documented internally.

Interrogatories 13–14 extend the temporal scope of the FTR inquiry. Interrogatory 13 seeks identification of all FTR auction bids and bilateral FTR purchases by DPT during the twelve-month period preceding the Relevant Period — i.e., from January 2021 through December 2021 — as well as during the Relevant Period itself. This request is designed to establish the historical pattern of DPT's FTR activity and to assess whether the FTR positions held during the Relevant Period represented a departure from prior practice. Interrogatory 14 requests identification of the individuals who made FTR acquisition decisions during both the pre-Relevant Period and the Relevant Period itself, including whether those individuals also had responsibility for Day-Ahead or Real-Time trading.

Interrogatory 15 is, in my assessment, the single most sensitive interrogatory in the entire data request. It asks DPT to "explain the relationship, if any, between DPT's FTR portfolio and its Day-Ahead bidding strategy at the Indiana Hub, including whether FTR positions were considered in formulating Day-Ahead offer prices or vice versa." This interrogatory goes directly to the question of whether DPT's Day-Ahead bidding and FTR activities were coordinated as part of an integrated strategy to profit from artificial congestion — the core of FERC Staff's cross-product manipulation theory. The response to this interrogatory has significant legal and strategic implications and must be crafted with the utmost care.

Document Requests 6–8 seek production of all documents reflecting FTR acquisition decisions, internal analyses of FTR value, and communications regarding FTR strategy during both the pre-Relevant Period and the Relevant Period. Document Request 7 specifically targets "any analysis, model, spreadsheet, presentation, or other document evaluating the relationship between DPT's FTR positions and Day-Ahead energy price outcomes at the Indiana Hub or any other MISO pricing node." Document Request 8 seeks communications among DPT's trading personnel regarding FTR strategy, FTR auction participation, or FTR valuation.

Document Request 9 seeks all documents reflecting the notional value and settlement of DPT's FTR positions during the Relevant Period. The data request notes that "FERC Staff's preliminary analysis indicates that DPT's FTR portfolio had an approximate notional value of $47.3 million during the Relevant Period." This figure is significant — if accurate, it represents a substantial FTR position that would have been materially affected by congestion patterns at the Indiana Hub.

Key Observations and Strategic Considerations:

These requests aim to establish the alleged cross-product manipulation link between uneconomic Day-Ahead bids and FTR positions that profited from resulting congestion. The strength of this link is the central factual dispute in the investigation. FERC Staff's theory requires demonstrating that DPT's Day-Ahead offers were submitted with the purpose or foreseeable effect of creating or exacerbating congestion patterns that would increase the settlement value of DPT's FTR positions.

It is critical to document in our response that DPT's FTR positions were acquired well in advance of the Relevant Period as part of routine portfolio hedging activity. Based on preliminary information from the client, the majority of the FTR positions held during the Relevant Period were acquired through MISO's annual FTR auction conducted in late 2021 — months before the commencement of the Relevant Period. If this timeline can be established and documented, it significantly undermines the inference that the FTR positions were acquired as part of a scheme to profit from artificial congestion created by subsequent uneconomic Day-Ahead offers. The FTR positions, if acquired through competitive auctions based on publicly available historical congestion data, can be characterized as legitimate hedging instruments that reflected DPT's reasonable expectations about future congestion patterns.

Interrogatory 15 deserves special attention and strategic discussion at the partner level before a response is finalized. I have flagged this interrogatory in Section VIII (Recommended Next Steps) below. Any response that acknowledges a deliberate connection between FTR portfolio management and Day-Ahead bidding strategy risks being characterized as an admission of coordinated cross-product activity. Conversely, a response that denies any connection whatsoever may be contradicted by contemporaneous documents reflecting portfolio-level analysis or by trader testimony. I recommend that the response be crafted to acknowledge that DPT, like all sophisticated MISO market participants, manages its portfolio holistically, but that FTR acquisition decisions and Day-Ahead bidding decisions were made through separate analytical processes by personnel with distinct responsibilities. The response should avoid using language that could be construed as acknowledging that Day-Ahead offers were formulated with the specific intent to increase FTR settlement values.

C. Category 3: Virtual Transactions at Minnesota Hub

Applicable Requests: Interrogatories 16–22; Document Requests 10–13

This category addresses a distinct but related aspect of FERC Staff's investigation: DPT's virtual trading activity at the Minnesota Hub pricing node. Virtual transactions — Increment Offers ("INCs") and Decrement Bids ("DECs") — are purely financial positions in the Day-Ahead market that settle against Real-Time prices. FERC Staff appears to allege that DPT's virtual transactions at the Minnesota Hub were coordinated with its Day-Ahead physical offers at the Indiana Hub as part of the broader manipulative scheme.

Interrogatories 16–18 seek identification of all virtual transactions submitted by DPT at the Minnesota Hub during the Relevant Period, including the type of each transaction (INC or DEC), the price and volume of each submission, the clearing status (accepted or rejected by MISO's market clearing engine), and the settlement outcome (profit or loss). FERC Staff's cover letter references approximately 1,620 GWh of virtual transactions at the Minnesota Hub during the Relevant Period, suggesting that Staff has already analyzed DPT's virtual trading data obtained from MISO's market monitoring unit. Interrogatory 18 asks DPT to identify the net profit or loss from virtual transactions at the Minnesota Hub during the Relevant Period and to provide a monthly breakdown of trading results.

Interrogatories 19–20 seek the trading rationale for DPT's virtual positions at the Minnesota Hub. Interrogatory 19 asks DPT to "explain the economic rationale and trading thesis" for its virtual transactions, including what market conditions, price signals, or analytical models informed DPT's virtual trading decisions. Interrogatory 20 is more pointed: it asks whether "any analysis was performed regarding the relationship between Day-Ahead congestion at Indiana Hub and Real-Time prices at Minnesota Hub, and if so, describe the analysis and identify the individuals who performed or directed it." This interrogatory directly probes whether DPT analyzed the congestion impacts that its own Day-Ahead activity at Indiana Hub would have on prices at Minnesota Hub — an analysis that, if it existed, could be characterized as evidence of a coordinated cross-node manipulation strategy.

Interrogatories 21–22 focus on personnel. Interrogatory 21 asks DPT to identify the traders responsible for virtual transactions at the Minnesota Hub during the Relevant Period and to describe their specific responsibilities, trading authorities, and reporting relationships. Interrogatory 22 specifically identifies Anastasia Petrov and asks for a detailed description of her role, her trading authority, the types of transactions she was authorized to execute, and the identity of her direct supervisor.

Document Requests 10–12 seek all documents reflecting virtual trading strategies at the Minnesota Hub, including internal analyses, trading models, strategy memoranda, and communications between Day-Ahead and Real-Time desk traders regarding the coordination of positions. Document Request 11 is specifically targeted at "any analysis, model, or document reflecting the expected price impact of virtual transactions at the Minnesota Hub on Day-Ahead or Real-Time prices at the Minnesota Hub or at any other MISO pricing node, including the Indiana Hub." Document Request 12 seeks "all communications between any member of DPT's Day-Ahead trading desk and any member of DPT's Real-Time trading desk during the Relevant Period regarding trading strategies, position management, or market conditions at the Indiana Hub, the Minnesota Hub, or any related MISO pricing nodes."

Document Request 13 seeks "all communications between Kyle Renfro and Anastasia Petrov during the Relevant Period, in any format, including email, instant messaging, text messaging, voice communications (if recorded), and any other form of electronic or written communication." This is a blanket request for all communications between these two individuals, without limitation as to subject matter.

Key Observations and Strategic Considerations:

The cross-desk communication request embodied in Document Request 13 is particularly significant and warrants early attention. Kyle Renfro (Senior Trader, MISO Day-Ahead Desk, responsible for Indiana Hub offers) and Anastasia Petrov (Trader, MISO Real-Time Desk, responsible for Minnesota Hub virtual transactions) operated on different trading desks with ostensibly distinct mandates. FERC Staff's interest in the volume, frequency, and content of their communications is transparent: Staff is looking for evidence that Renfro and Petrov coordinated their trading activities across desks and across pricing nodes. Communications in which Renfro and Petrov discussed their respective positions, market conditions at the Indiana Hub and Minnesota Hub, congestion patterns, or settlement outcomes would be of particular interest to FERC Staff and could be characterized as evidence of a coordinated strategy.

I recommend that collection and review of Renfro-Petrov communications be prioritized as a Tier 1 activity. These communications should be reviewed early in the process so that the team can assess the nature and volume of cross-desk interaction and calibrate our interrogatory responses accordingly. If the communications are largely administrative or operational in nature (e.g., logistical matters, desk coverage, general market commentary), that fact can be affirmatively presented to FERC Staff. If, however, the communications reflect substantive discussions of trading strategy, position coordination, or analysis of the price impacts of each other's positions, the team will need to assess the implications and discuss defensive strategies with Catherine Bloom and the client before finalizing interrogatory responses.

The temporal and subject-matter breadth of Document Request 13 is also potentially objectionable. A request for "all communications" between two individuals over a fourteen-and-a-half-month period, without subject-matter limitation, is facially overbroad. I recommend lodging an overbreadth objection but providing a responsive production of communications that reference trading strategies, market conditions, or specific positions at the Indiana Hub and Minnesota Hub. If FERC Staff insists on broader production after receiving our objection, we can evaluate the incremental burden and respond accordingly.

D. Category 4: Gas Nominations and Physical-Financial Coordination

Applicable Requests: Interrogatories 23–28; Document Requests 14–17

This category probes the third prong of FERC Staff's alleged manipulation theory: the coordination of gas nominations and scheduling through Dunmore Midstream Partners LP ("DMP") with DPT's Day-Ahead bidding activity. FERC Staff appears to be investigating whether DMP's gas nomination activity was used to support, justify, or facilitate DPT's submission of negative-price Day-Ahead offers at the Indiana Hub.

Interrogatories 23–25 seek identification of all gas nominations made by or through DMP for gas-fired generation units whose output was offered into the MISO Day-Ahead market by DPT during the Relevant Period. The requests seek the volume of each nomination, the pipeline and receipt/delivery point for each nomination, the timing of the nomination (timely, intraday 1, intraday 2, or evening cycle), and the identity of the individual(s) who submitted or authorized each nomination. Interrogatory 24 asks DPT to describe the gas nomination process in detail, including the roles and responsibilities of DPT and DMP personnel, the flow of information between DPT's trading desk and DMP's gas scheduling operations, and the timeline for nomination decisions relative to Day-Ahead offer submission deadlines. Interrogatory 25 asks whether DMP's gas supply arrangements included any take-or-pay provisions, minimum volume commitments, or other contractual obligations that could affect the economics of DPT's generation units and, by extension, the offer prices submitted in the MISO Day-Ahead market.

Interrogatories 26–27 are more directly accusatory in tone. Interrogatory 26 asks whether gas nomination volumes were "adjusted, modified, or coordinated in connection with" DPT's Day-Ahead bidding at the Indiana Hub, and if so, asks DPT to describe the nature and frequency of such coordination. Interrogatory 27 asks whether DMP's gas scheduling was "used to support, justify, or provide an economic basis for" the negative offer prices submitted by DPT, including whether gas supply costs were used as an input into DPT's offer price calculations for specific hours in which negative-price offers were submitted. These interrogatories are transparently designed to establish that DMP's gas operations were used instrumentally to support an uneconomic bidding strategy.

Interrogatory 28 seeks identification of all individuals who communicated between DPT's trading desk and DMP's gas scheduling operations during the Relevant Period, including the frequency and nature of such communications. This request is significant because it probes the operational boundary — or lack thereof — between DPT and DMP. If communications between DPT traders and DMP scheduling personnel were frequent, substantive, and bidirectional (i.e., if DPT's trading decisions influenced DMP's nominations and vice versa), FERC Staff will argue that the corporate separation between DPT and DMP is a formality that does not reflect the actual integrated operation of the Dunmore enterprise.

Document Requests 14–16 seek production of all documents reflecting gas nominations, scheduling communications between DPT and DMP, and any internal analyses of the relationship between gas costs and generation offer prices. Document Request 14 targets NAESB-format nomination documents and any related correspondence with pipeline operators. Document Request 15 seeks all communications between DPT personnel and DMP personnel during the Relevant Period regarding gas supply, nominations, scheduling, transportation, storage, or pricing. Document Request 16 seeks any internal analyses, models, or spreadsheets used to calculate the fuel cost component of DPT's Day-Ahead offer prices for gas-fired generation units.

Document Request 17 seeks organizational charts, reporting structures, and any shared management between DPT and DMP, including identification of any individuals who held positions, titles, or responsibilities at both entities during the Relevant Period.

Key Observations and Strategic Considerations:

These requests probe the alleged physical-financial coordination that constitutes the third prong of FERC Staff's manipulation theory. The corporate structure is relevant here: DMP (Employer Identification Number 47-8831205) is a separate legal entity organized as a Delaware limited partnership, but it shares the same principal office address as DPT and DEH at 2200 Post Oak Boulevard, Suite 3100, Houston, Texas 77056. The co-location of DPT and DMP raises natural questions about the degree of operational separation and independence between the two entities.

We need to assess the extent of operational overlap between DPT and DMP. Specific questions to address with the client include: (i) whether any individual held concurrent roles at both DPT and DMP during the Relevant Period; (ii) whether DMP's gas scheduling decisions were made independently of DPT's trading decisions, or whether there was a regular flow of information from DPT's trading desk to DMP's scheduling operations; (iii) whether DMP's gas supply contracts included take-or-pay or minimum volume provisions that created obligations independent of DPT's generation dispatch decisions; and (iv) whether DMP maintained its own compliance policies and procedures separate from DPT's. The answers to these questions will significantly shape our response strategy for this category of requests.

The response to Interrogatories 26 and 27 requires particular care. A blanket denial of any coordination between gas nominations and Day-Ahead bidding may not be credible if, as is typical in integrated energy companies, there was a routine operational workflow in which gas nominations were adjusted to reflect anticipated generation dispatch. The key distinction is between legitimate operational coordination (adjusting gas supply to match anticipated generation needs, which is an ordinary and economically rational business practice) and improper coordination (deliberately manipulating gas nominations to support or justify uneconomic Day-Ahead offers). Our responses should affirmatively establish that any coordination between DPT and DMP was limited to the former category.

E. Category 5: Trader Communications and Organizational Structure

Applicable Requests: Interrogatories 29–35; Document Requests 18–20

This category of requests targets the personnel, organizational structure, and incentive arrangements underlying DPT's MISO trading operations. FERC Staff is seeking to understand who made trading decisions, how authority was delegated, how performance was measured, and how traders were compensated.

Interrogatories 29–30 seek identification of all traders on DPT's MISO trading desk during the Relevant Period. Based on preliminary information from the client, the desk comprised fourteen (14) traders during all or part of this period. Interrogatory 29 asks for each trader's name, title, hire date, specific responsibilities, trading authorities (including dollar and volume limits), and reporting relationships. Interrogatory 30 specifically identifies Derek Sung as the Senior Vice President of Power Marketing & Trading and asks for a detailed description of his supervisory role, including the nature and frequency of his oversight of Day-Ahead and Real-Time trading activities, his involvement in trading strategy formulation, and his authority to approve or direct specific trading decisions.

Interrogatories 31–33 address trader compensation. Interrogatory 31 asks DPT to describe the compensation structure for all traders on the MISO trading desk during the Relevant Period, including base salary ranges, bonus structures, and any incentive compensation arrangements. Interrogatory 32 focuses specifically on whether any component of trader compensation was tied to trading profits, profit and loss ("P&L") performance metrics, or the performance of specific positions (including Day-Ahead positions, FTR positions, or virtual positions). Interrogatory 33 narrows the inquiry further, asking specifically about the compensation arrangements for Kyle Renfro and Anastasia Petrov, including the terms of their respective bonus plans and any performance targets or metrics used to calculate their variable compensation.

Interrogatories 34–35 ask about internal risk controls. Interrogatory 34 seeks information about any risk limits, position limits, or approval requirements applicable to DPT's MISO trading activities during the Relevant Period, including whether there were specific limits on negative-price Day-Ahead offers, virtual transaction volumes, or FTR position sizes. Interrogatory 35 asks whether any trader exceeded any applicable risk limit during the Relevant Period and, if so, what corrective action was taken.

Document Request 18 is among the broadest in the data request: it seeks "all communications among trading desk personnel regarding Day-Ahead bidding strategy, virtual trading strategy, or FTR strategy during the Relevant Period." Given the fourteen-person desk and the fourteen-and-a-half-month Relevant Period, this request has the potential to generate an enormous volume of responsive documents.

Document Request 19 seeks trader compensation agreements, bonus plans, performance evaluations, P&L attribution reports, and any other documentation reflecting the performance metrics used to evaluate traders and determine incentive compensation. This request encompasses both the formal written agreements and any informal documentation of compensation discussions or decisions.

Document Request 20 seeks all organizational charts and desk structure documentation for DPT's MISO trading operations during the Relevant Period, including any changes to desk structure, reporting relationships, or supervisory assignments that occurred during the Relevant Period.

Key Observations and Strategic Considerations:

The trader compensation requests (Interrogatories 31–33, Document Request 19) are designed to establish motive. FERC Staff's theory is that incentive compensation tied to trading profits created a financial incentive for traders to pursue manipulative strategies that maximized the P&L of their positions, even if those strategies involved uneconomic bidding that would not have been rational absent the cross-product benefits (i.e., FTR profits and virtual trading profits). If Renfro's bonus was tied to the profitability of his Day-Ahead trading book, and if that book was profitable in part because the congestion created by his negative-price offers benefited FTR positions attributed to the same book or to a broader portfolio metric, FERC Staff will argue that Renfro had a direct financial incentive to submit uneconomic offers.

I recommend reviewing compensation agreements carefully for privilege issues. In many organizations, General Counsel is involved in structuring, negotiating, and approving trader compensation arrangements. If Martin Llewellyn was involved in the design of DPT's trader compensation structure, communications reflecting his involvement may contain legal advice regarding regulatory risks, compliance considerations, or structural alternatives, and may be subject to attorney-client privilege. Privilege log entries for any such documents should be prepared with particular care.

With respect to the interrogatory responses, I recommend providing a general description of the compensation structure (e.g., "traders received a base salary supplemented by discretionary annual bonus compensation, which was determined based on a combination of individual performance, desk performance, and overall corporate results") while objecting to the disclosure of individual compensation amounts for Renfro, Petrov, and other traders on the grounds that such information is confidential, proprietary, and only marginally relevant to the investigation at this stage. If FERC Staff insists on individual compensation data in a follow-up request, we can evaluate the appropriate response at that time.

F. Category 6: Compliance Policies and Programs

Applicable Requests: Interrogatories 36–41; Document Requests 21–23

This final category of requests addresses DPT's compliance infrastructure, including written policies, training programs, internal reviews, and the recent appointment of a Chief Compliance Officer.

Interrogatories 36–37 seek identification and description of all compliance policies, procedures, and training programs in effect at DPT during the Relevant Period relating to wholesale electricity trading, market manipulation, and FERC regulatory compliance. Interrogatory 36 asks DPT to identify each compliance policy by title, effective date, author or approver, and the scope of covered activities and personnel. Interrogatory 37 asks whether traders on the MISO desk received training on FERC's anti-manipulation rule (18 C.F.R. § 1c.2) and, if so, requests a description of the training content, frequency, and attendance records.

Interrogatory 38 specifically addresses the appointment of Jennifer Caulfield as Chief Compliance Officer on February 6, 2023. The interrogatory asks for a description of the "circumstances leading to" Caulfield's appointment, her job description and scope of authority, her reporting relationships (including whether she reports to the General Counsel, the CEO, the board of directors, or another officer), and whether her appointment was prompted by any specific concern, event, or inquiry regarding DPT's trading activity. The phrasing of this interrogatory suggests that FERC Staff is aware that Caulfield was hired approximately five weeks before the end of the Relevant Period and approximately four months before the formal order of investigation, and is probing whether her hiring was a response to emerging compliance concerns — which could be interpreted either as evidence of proactive remediation or as a tacit acknowledgment of pre-existing compliance deficiencies.

Interrogatories 39–40 ask about internal compliance reviews. Interrogatory 39 asks whether DPT or any affiliated entity conducted any "internal compliance review, audit, investigation, or assessment" during or after the Relevant Period concerning DPT's MISO trading activity, including any review prompted by market monitoring inquiries, MISO Independent Market Monitor reports, or internal concerns. Interrogatory 40 asks, if any such review was conducted, for a description of its scope, findings, and any remedial actions taken. These interrogatories are sensitive because any internal investigation may have generated privileged communications and work product, and the existence (though not the substance) of such an investigation is arguably discoverable.

Interrogatory 41 casts a wider historical net, asking DPT to identify any prior instances of regulatory inquiry, investigation, or enforcement action involving DEH, DPT, or any affiliated entity at FERC or any other federal or state regulatory body. This request extends beyond the Relevant Period and beyond the specific MISO trading activity at issue, reaching any prior regulatory history of the Dunmore enterprise. This interrogatory may implicate privileged communications with prior counsel regarding earlier regulatory matters.

Document Request 21 seeks all compliance policies, procedures, manuals, and training materials in effect during the Relevant Period. This request is straightforward and should generate a finite set of documents.

Document Request 22 seeks all documents relating to Jennifer Caulfield's hiring, appointment, and initial compliance assessments performed after her appointment. This request is broad and is likely to capture internal memoranda, board presentations, job descriptions, recruiting materials, and communications among senior management — including Martin Llewellyn — regarding the decision to create the CCO position and hire Caulfield.

Document Request 23 seeks all documents relating to any internal compliance review or audit of DPT's MISO trading activity, whether conducted before, during, or after the Relevant Period.

Key Observations and Strategic Considerations:

These requests are double-edged and require a nuanced strategic approach. On one hand, the existence of a compliance program — even if admittedly inadequate in certain respects — and the proactive decision to hire a dedicated Chief Compliance Officer before the commencement of the formal investigation can be presented as mitigating factors reflecting the Dunmore Entities' good faith commitment to compliance. Under FERC's Revised Policy Statement on Penalty Guidelines (18 C.F.R. § 1b.1), the existence of an effective compliance program is a mitigating factor in the determination of civil penalties, and proactive remedial measures are also given weight.

On the other hand, if the pre-existing compliance policies were inadequate, outdated, or not enforced — for example, if there was no written policy addressing negative-price offers, no regular compliance training for MISO desk traders, or no mechanism for compliance review of novel or high-risk trading strategies — that information could be used by FERC Staff to argue that the Dunmore Entities operated without adequate compliance safeguards and that the absence of such safeguards facilitated the alleged manipulative conduct. Similarly, if the hiring of Caulfield was prompted by specific internal concerns about the trading activity that is now under investigation, FERC Staff could characterize the hiring as evidence that the Dunmore Entities were aware of potential problems and failed to act sooner.

I recommend a careful review of existing compliance documentation to assess our exposure in this area. The review should evaluate: (i) the scope and specificity of written compliance policies in effect during the Relevant Period; (ii) whether those policies addressed the specific types of trading activity at issue (negative-price Day-Ahead offers, FTR-physical coordination, virtual trading); (iii) whether compliance training was conducted regularly and documented; and (iv) whether any internal compliance reviews were conducted and, if so, whether the findings were privileged. This review should be completed before the interrogatory responses in this category are finalized.

IV. Privilege Issues and Recommended Approach

A. Attorney-Client Privilege Concerns

Several of the document requests in the data request are likely to capture communications and documents protected by the attorney-client privilege. The principal areas of concern are as follows:

Communications Involving Martin Llewellyn (General Counsel). Document Requests 18, 22, and 23 are the requests most likely to sweep in communications involving Llewellyn. Document Request 18 (communications among trading desk personnel regarding trading strategy) could capture communications in which Llewellyn was copied or included as a participant in strategy discussions in his capacity as General Counsel. Document Request 22 (documents relating to Caulfield's hiring) is virtually certain to include communications in which Llewellyn participated, given his likely involvement in the decision to create the CCO position and in the recruitment and onboarding of Caulfield. Document Request 23 (documents relating to internal compliance reviews) may capture communications reflecting legal advice provided by Llewellyn in connection with any compliance assessment or internal investigation.

For documents involving Llewellyn, the privilege analysis will turn on the familiar distinction between communications in which Llewellyn was acting in his capacity as a legal advisor (privileged) and communications in which he was acting in a business capacity (not privileged). This distinction can be difficult to apply in practice, particularly for in-house counsel who wear multiple hats. I recommend that all documents involving Llewellyn be routed to the second-level privilege review described in Section V.D below and that borderline documents be escalated to Hannah Brinkley or Catherine Bloom for final determination.

Communications Involving Aldercroft & Beane LLP (Warren Aldercroft). Aldercroft & Beane LLP, led by partner Warren Aldercroft, served as Dunmore's FERC regulatory counsel prior to the commencement of this enforcement proceeding. Aldercroft & Beane has been conflicted out of representation in this matter due to a concurrent representation of another MISO market participant that is also under investigation by FERC OE. However, the disqualification of Aldercroft & Beane from representing Dunmore in this proceeding does not extinguish the attorney-client privilege applicable to their prior communications with the client. Any communications between Aldercroft & Beane personnel and Dunmore personnel that were made for the purpose of providing or seeking legal advice remain privileged and should be withheld from production, with appropriate entries on the privilege log.

Interrogatory 41 (Prior Regulatory Matters). This interrogatory asks about prior regulatory inquiries, investigations, or enforcement actions involving the Dunmore Entities. To the extent that prior regulatory matters were handled by counsel (whether Aldercroft & Beane, Calderwood & Harkness, or any other law firm), communications and work product generated in connection with those matters are privileged. The interrogatory response can identify the existence of prior matters at a general level without disclosing the substance of privileged communications. I recommend a careful review of the scope of this interrogatory response with the team before finalization.

Mixed Business-Legal Communications. Communications between Martin Llewellyn and Rhonda Vasquez (VP, Regulatory Affairs) regarding compliance assessments may contain mixed business and legal content. Where a communication contains both privileged legal advice and non-privileged business information, we should assess whether the document can be redacted to remove the privileged content while producing the non-privileged portions, or whether the privileged content is so intertwined with the business content that the entire document must be withheld. Each such document should be logged with a detailed description sufficient to support the privilege assertion.

B. Work Product Protection

Any documents reflecting legal analysis of DPT's trading strategies, prepared in anticipation of the current investigation or any prior regulatory inquiry, should be withheld as attorney work product under the doctrine of Hickman v. Taylor, 329 U.S. 495 (1947), and its progeny. Work product protection applies to documents prepared by or at the direction of an attorney in anticipation of litigation or regulatory proceedings, and encompasses both "fact" work product (which may be subject to a qualified privilege) and "opinion" work product (which is subject to a near-absolute privilege).

With respect to the engagement of Dr. Leonard Whitfield of Whitfield Economic Advisors LLC ("WEA"), I note that Dr. Whitfield was retained on July 10, 2023 — after the data request was served on June 26, 2023. WEA materials generated after the engagement date are not responsive to this data request (which seeks documents existing as of the date of service), but any pre-engagement expert consultations — such as preliminary discussions between Calderwood & Harkness and Dr. Whitfield prior to formalization of the engagement — should be reviewed to confirm that they are protected as work product or as communications in furtherance of the attorney-client relationship.

C. Recommended Objections

Based on my review of the data request, I recommend the following categories of objections:

Overbreadth. Several requests are facially overbroad in scope. The most significant example is Document Request 18, which seeks "all communications among trading desk personnel regarding Day-Ahead bidding strategy, virtual trading strategy, or FTR strategy during the Relevant Period." Applied to a fourteen-person desk over a fourteen-and-a-half-month period, this request could encompass tens of thousands of documents, many of which would consist of routine market commentary, daily position summaries, or other communications of marginal relevance to the investigation. I recommend objecting to the breadth of this request and proposing reasonable limitations — for example, limiting the production to communications that specifically reference negative-price offers, specific bidding strategies at the Indiana Hub or Minnesota Hub, FTR positions involving the Indiana Hub, or coordination between the Day-Ahead and Real-Time desks. Similarly, Document Request 13 (all communications between Renfro and Petrov) should be objected to as overbroad and limited to communications referencing trading strategies, market conditions, or specific positions.

Temporal Scope. Several requests extend beyond the Relevant Period without providing adequate justification for the expanded temporal scope. The most notable example is Interrogatory 13, which reaches back twelve months before the Relevant Period to January 2021 to capture FTR auction bids and bilateral purchases. While the pre-Relevant Period FTR acquisition activity may be relevant to establishing the timeline and purpose of FTR positions held during the Relevant Period, the twelve-month extension is broader than necessary. I recommend objecting to the temporal scope of this interrogatory while noting that our litigation hold, which was implemented on June 14, 2023, adopted January 1, 2021 as the start date for preservation of responsive documents. As a practical matter, we will have documents from this period available for production if the objection is overruled or if we determine that affirmative production of pre-Relevant Period FTR data supports our defense.

Burden. The aggregate scope of the document requests, applied across the identified custodians, will generate an enormous volume of material. I recommend including a general objection regarding burden and proposing a phased production approach in which documents from the three priority custodians (Renfro, Petrov, and Sung) are produced first, with documents from additional custodians to follow on a rolling basis. This approach is consistent with FERC OE's expressed willingness to discuss "reasonable scheduling accommodations" and is a common and accepted practice in enforcement investigations of this scale.

Relevance (Compensation). Interrogatories 31–33 seek detailed information about trader compensation, including individual salary and bonus amounts. While I acknowledge that FERC Staff has a legitimate investigative interest in understanding the incentive structures that motivated DPT's traders, the disclosure of individual compensation amounts is arguably more intrusive than necessary at this stage of the investigation. I recommend lodging a limited relevance objection and providing a responsive answer that describes the general compensation structure (base salary, discretionary bonus, performance metrics) without disclosing specific dollar amounts for individual traders. If FERC Staff determines that individual compensation data is necessary, it can serve a follow-up request with a more targeted justification.

Privilege Log. I recommend that a comprehensive privilege log be prepared and maintained contemporaneously with the document review and production process. The privilege log should be organized as a master log encompassing all productions in this matter, with entries for each document withheld in whole or in part on privilege grounds. Each entry should include the document date, author, recipients, a general description of the subject matter (sufficient to enable FERC Staff to assess the privilege claim without disclosing privileged content), the Bates range (for redacted documents) or a unique identifier (for fully withheld documents), and the specific privilege or protection asserted (attorney-client privilege, work product, or both). The privilege log will be produced to FERC Staff contemporaneously with each document production.

V. Document Collection and Production Plan

A. Custodian Prioritization

Based on the scope and focus of the data request, I recommend a three-tier custodian prioritization as follows:

Tier 1 — Immediate Collection (by July 3, 2023):

These three custodians are the primary targets of the investigation and their documents are responsive to the majority of the requests. Collection from these custodians should commence immediately.

Tier 2 — Collection by July 5, 2023:

These custodians are primarily implicated by the compliance-related requests and should be collected promptly but may be processed and reviewed on a slightly later timeline than Tier 1 custodians.

Tier 3 — Collection by July 10, 2023:

Total custodians identified in the litigation hold, which was implemented on June 14, 2023: eleven (11). The remaining three traders from the fourteen-person desk who are not designated as custodians will be assessed after the initial review of Tier 1 documents to determine whether their documents are likely to contain responsive material that is not duplicative of material already collected from designated custodians.

B. Data Sources

The following data sources have been identified for collection:

1. DPT Trading Systems: MISO Day-Ahead bidding platform records, FTR auction records, virtual transaction records, position management systems, and risk management system data. These systems contain the transactional data responsive to the interrogatories seeking identification of all offers, bids, and positions during the Relevant Period. Data should be extracted in a format that enables both production to FERC Staff and use by the economic expert.

2. DPT Email (Strathmore Data Systems / Ashbury Software): Email for all eleven (11) custodians, including all email folders (inbox, sent, drafts, deleted items, archive), calendar entries, and any email-integrated task or note items. Email is expected to be the largest source of responsive documents by volume.

3. DMP Gas Nomination/Scheduling Systems: NAESB-format nomination records, scheduling confirmations, pipeline capacity reservation records, and related gas operations data. These records are maintained by DMP and will need to be collected separately, with appropriate attention to the corporate separateness of DMP as a distinct legal en

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP
MEMORANDUM
Date: June 30, 2023
To: Catherine Bloom, Responsible Partner Hannah Brinkley, Lead Associate
From: Patrick Gallagher, Working Associate
Re: Analysis of FERC Office of Enforcement First Data Request — Docket No. IN23-7-000 (In the Matter of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC)
C&H Matter No.: 1016-00004
Billing Code: 71420.00001
I. Executive Summary
On June 26, 2023, the Federal Energy Regulatory Commission Office of Enforcement ("FERC OE"), Division of Investigations, served its first data request in Docket No. IN23-7-000, directed to Dunmore Energy Holdings Ltd. ("DEH") and Dunmore Power Trading LLC ("DPT," and together with DEH, the "Dunmore Entities"). The data request was transmitted by Lead Investigator Thomas Adebayo, with Senior Attorney Christine Pham copied on the cover letter. The data request was issued pursuant to the formal non-public order of investigation dated June 12, 2023, under 18 C.F.R. Part 1b, which authorizes FERC OE Staff to conduct a non-public investigation into the trading activities of DPT in the Midcontinent Independent System Operator, Inc. ("MISO") markets.
The data request is substantial in scope, comprising forty-one (41) interrogatories and twenty-three (23) document requests. The requests cover the period from January 3, 2022 through March 17, 2023 (the "Relevant Period"), a span of approximately fourteen and one-half months. The requests are wide-ranging, targeting the following principal areas: (i) DPT's MISO Day-Ahead and Real-Time trading activity at the Indiana Hub and Minnesota Hub pricing nodes; (ii) Financial Transmission Rights ("FTR") positions acquired and held by DPT during and prior to the Relevant Period; (iii) gas nominations made through Dunmore Midstream Partners LP ("DMP"); (iv) trader communications, including inter-desk communications among identified individuals; (v) organizational structure, reporting relationships, and supervisory authority within DPT's trading operations; (vi) trader compensation, including incentive compensation tied to trading performance; and (vii) compliance policies, programs, and internal reviews.
This memorandum serves three principal purposes. First, it categorizes each of the sixty-four (64) individual requests by topic to provide a structured framework for the response effort. Second, it identifies potential privilege issues, recommended objections, and strategic considerations arising from the requests. Third, it proposes a document collection, review, and production plan targeting an initial document production to FERC OE by July 24, 2023 — two days in advance of the formal thirty-day response deadline of July 26, 2023 — with narrative interrogatory responses to be submitted by July 17, 2023.
As a threshold observation, the data request reflects a well-developed investigative theory. FERC OE Staff has clearly identified the three prongs of its potential market manipulation case: (1) allegedly uneconomic Day-Ahead offers at the Indiana Hub designed to depress Day-Ahead prices and create artificial congestion; (2) FTR positions that profited from the resulting congestion patterns; and (3) coordinated physical-financial activity across the DPT and DMP entities, including alleged coordination of gas nominations with Day-Ahead bidding activity. The requests are designed to build the evidentiary record for each prong. Our responses must be calibrated accordingly.
II. Overview of the Data Request
A. Structure and Scope
The data request is organized into four principal sections: Definitions, Instructions, Interrogatories, and Document Requests.
The Definitions section defines eighteen (18) terms that apply throughout the data request. Key defined terms include "Relevant Period" (January 3, 2022 through March 17, 2023), "Transaction" (broadly defined to encompass any bid, offer, schedule, nomination, or other submission to MISO or any related market), "Communication" (defined to include all forms of written, oral, and electronic communication), "Document" (defined consistent with Fed. R. Civ. P. 34(a) to include electronically stored information in all forms), and "Affiliated Entity" (defined to include DEH, DPT, DMP, and any other entity directly or indirectly controlling, controlled by, or under common control with DEH). The breadth of these definitions is typical for a FERC OE first data request, but the definition of "Affiliated Entity" warrants attention because it sweeps in DMP — an entity that is not itself a respondent in Docket No. IN23-7-000 but whose activities are central to the third prong of Staff's manipulation theory.
The Instructions section specifies the format for document production. FERC OE Staff has requested that all electronically stored information ("ESI") be produced in native format, accompanied by a load file conforming to FERC's standard ESI specifications. The instructions further require that each document be Bates-stamped, that metadata fields be preserved, and that any documents withheld on privilege grounds be identified on a privilege log containing specified fields (date, author, recipients, general subject matter, and basis for privilege assertion). The instructions also note that FERC OE reserves the right to seek additional information and to conduct investigative testimony pursuant to 18 C.F.R. § 1b.12.
The Interrogatories are numbered 1 through 41 and are organized in an approximate topical sequence, though some requests cross multiple subject areas. The Document Requests are numbered 1 through 23 and generally correspond to and complement the interrogatories in each topical area.
The formal response deadline is thirty (30) calendar days from the date of service, yielding a deadline of July 26, 2023. The cover letter from Lead Investigator Adebayo indicates that FERC OE Staff is amenable to discussing any "reasonable scheduling accommodations" for large-volume productions, but emphasizes that interrogatory responses should be provided within the thirty-day window.
It is also noteworthy that the data request specifically references DPT's market-based rate authorization under Docket No. ER05-1128-000, which was granted on November 14, 2005. This reference signals that FERC OE Staff may be considering the full range of remedies available under the Federal Power Act, including potential revocation or suspension of market-based rate authority under Section 206 of the FPA, in addition to civil penalties under Section 316A.
B. Custodians Implicated
The data request identifies certain individuals by name in specific interrogatories and document requests. The following individuals are explicitly named in the data request:
•  Kyle Renfro — Senior Trader, MISO Day-Ahead Desk. Named in Interrogatories 1–9 (Day-Ahead bidding at Indiana Hub), Interrogatory 28 (gas nomination communications), and Document Requests 1–5 and 13. Renfro is clearly a primary target of the investigation. His Day-Ahead offers at the Indiana Hub during the Relevant Period are at the center of FERC Staff's uneconomic bidding theory.
•  Anastasia Petrov — Trader, MISO Real-Time Desk. Named in Interrogatories 16–22 (virtual transactions at Minnesota Hub), Interrogatory 28 (communications with gas scheduling), and Document Requests 10–13. Petrov's virtual transactions at the Minnesota Hub form the second leg of the alleged manipulation scheme.
•  Derek Sung — Senior Vice President, Power Marketing & Trading. Named in Interrogatories 29–30 (organizational structure and supervisory authority), Interrogatories 31–33 (trader compensation), and Document Requests 18–20. Sung supervised both Renfro and Petrov and was ultimately responsible for the trading strategies under investigation. His potential supervisory liability is significant.
Beyond these three named individuals, the subject-matter scope of the data request implicates the following additional custodians:
•  Rhonda Vasquez — Vice President, Regulatory Affairs. Implicated by Interrogatories 36–41 (compliance policies and programs) and Document Requests 21–23 (compliance documentation). Vasquez was responsible for regulatory filings and compliance program administration during most of the Relevant Period.
•  Jennifer Caulfield — Chief Compliance Officer. Specifically referenced in Interrogatory 38, which asks about the circumstances of her appointment on February 6, 2023. Also implicated by Document Requests 22 and 23 (hiring documents and compliance assessments). Caulfield was hired approximately five weeks before the end of the Relevant Period, and the timing and circumstances of her appointment will be scrutinized by FERC Staff.
•  Trading Desk Personnel — During the Relevant Period, DPT's MISO trading desk comprised fourteen (14) traders, including Renfro and Petrov. Interrogatories 29–30 seek identification of all of these individuals, and Document Request 18 seeks communications among all of them. The remaining twelve traders will need to be evaluated as potential custodians for document collection purposes.
Several requests also reach communications involving Martin Llewellyn (General Counsel, DEH) and Elena Mirova (President & Chief Operating Officer, DEH). Specifically, Document Request 22 (documents relating to Caulfield's hiring) and Document Request 23 (documents relating to internal compliance reviews) are highly likely to capture communications to or from Llewellyn, given his role as General Counsel. Document Requests 17 and 20 (organizational charts and management structure) may also implicate both Llewellyn and Mirova. The involvement of these senior executives, and particularly the General Counsel, raises significant privilege concerns that are discussed in Section IV below.
III. Categorization of Requests by Topic
This section categorizes the sixty-four individual requests into six topical categories and provides a detailed analysis of each category, including identification of key issues, strategic observations, and preliminary recommendations for response.
A. Category 1: Day-Ahead Bidding at Indiana Hub
Applicable Requests: Interrogatories 1–9; Document Requests 1–5
This is the largest and most central category of requests, directed at the first prong of FERC Staff's manipulation theory: the allegation that DPT submitted uneconomic Day-Ahead energy offers at the Indiana Hub pricing node during the Relevant Period.
Interrogatories 1–3 seek identification of all Day-Ahead energy offers submitted by DPT at the Indiana Hub during the Relevant Period. The requests are granular, demanding offer prices (in $/MWh), quantities (in MW), the specific generation units associated with each offer (by unit name and MISO resource ID), and the time period for each offer. Interrogatory 3 specifically requests an explanation of the "methodology, process, or analytical framework" used by DPT to determine offer prices for Day-Ahead energy at the Indiana Hub, including whether the methodology was documented in any written policy, procedure, or guideline. This request is designed to establish whether DPT had a systematic approach to offer pricing or whether offer prices were determined on an ad hoc basis by individual traders — a distinction that could be significant in assessing whether the offers reflected a legitimate business strategy or an improper purpose.
Interrogatories 4–6 narrow the focus to what FERC Staff clearly regards as the most problematic subset of DPT's Day-Ahead activity: instances in which DPT submitted Day-Ahead offers at negative prices. The data request specifically references a price range of -$15/MWh to -$40/MWh that has been identified by FERC Staff through market surveillance data. Interrogatory 4 seeks a complete enumeration of all such negative-price offers, by date, hour, unit, price, and quantity. Interrogatory 5 requests the economic rationale for each negative-price offer, and specifically asks whether the rationale was documented contemporaneously. Interrogatory 6 asks whether any individual other than Kyle Renfro was involved in the decision to submit offers at negative prices, and if so, whether any supervisory approval was required. This last interrogatory is designed to probe the chain of decision-making authority and to determine whether Renfro was acting independently or pursuant to instructions from Sung or other supervisors.
Interrogatories 7–9 seek detailed information about DPT's marginal cost calculations for each gas-fired generation unit whose output was offered into the MISO Day-Ahead market at the Indiana Hub. Interrogatory 7 requests a description of the cost inputs used in DPT's marginal cost calculations, including fuel costs (and the method of determining fuel costs, e.g., daily index, monthly average, contract price), heat rate data, variable operations and maintenance ("O&M") costs, startup costs, and emissions costs. Interrogatory 8 asks whether DPT had any contractual minimum generation obligations — such as must-run obligations, reliability commitments, or tolling agreement requirements — that could provide an economic justification for offers below short-run marginal cost. Interrogatory 9 asks whether DPT employed any opportunity cost methodology in determining offer prices and, if so, requests a detailed description of the methodology.
Document Requests 1–3 seek production of all documents reflecting or relating to Day-Ahead bidding strategies, offer price formulations, and internal policies governing offer submissions at the Indiana Hub during the Relevant Period. Document Request 1 is broadly framed, seeking "all documents reflecting, discussing, analyzing, or relating to" DPT's Day-Ahead bidding strategy at the Indiana Hub. Document Request 2 focuses on documents reflecting the actual formulation of specific offer prices, including spreadsheets, models, calculators, or other analytical tools. Document Request 3 seeks any written policies, procedures, guidelines, or directives governing the submission of Day-Ahead energy offers, including any policies addressing negative-price offers.
Document Requests 4–5 seek production of all documents reflecting the marginal cost of each DPT generation unit during the Relevant Period, including fuel cost data, heat rate calculations, heat rate curves, variable O&M cost data, startup cost data, and emissions cost data. Document Request 5 specifically requests any documents reflecting comparisons between DPT's offer prices and its calculated marginal costs for the same units and time periods.
Key Observations and Strategic Considerations:
These requests go to the heart of FERC Staff's allegation that DPT submitted uneconomic Day-Ahead offers during the Relevant Period. According to FERC Staff's preliminary analysis, as referenced in the cover letter accompanying the data request, DPT offered approximately 2,840 GWh of energy at the Indiana Hub during the Relevant Period at prices that were, in Staff's view, below the marginal cost of the associated generation units. The interrogatories are drafted in a manner that implicitly assumes the offers were below marginal cost, and several requests appear designed to foreclose potential economic justifications before they are raised.
I recommend careful framing of responses to these interrogatories to preserve the portfolio optimization defense. Specifically, the responses should articulate that DPT's offer pricing at the Indiana Hub was part of a broader portfolio management strategy that took into account, among other factors, the overall economics of DPT's generation fleet, fuel supply arrangements, and hedging positions. The responses should avoid characterizing individual offers as "below marginal cost" or conceding that any specific offer lacked an economic rationale. To the extent that individual offers were priced below short-run marginal cost as conventionally calculated, the responses should frame such pricing in the context of contractual obligations (e.g., minimum generation levels under gas supply agreements), operational constraints (e.g., minimum run-time requirements, ramp-rate limitations), and legitimate portfolio optimization considerations.
The response to Interrogatory 5 (economic rationale for negative-price offers) will require close coordination with the client's trading personnel and, ultimately, with the economic expert retained for this matter. I recommend that the response be drafted at a general level in the initial submission, with a reservation of the right to supplement after completion of the expert's analysis.
B. Category 2: Financial Transmission Rights
Applicable Requests: Interrogatories 10–15; Document Requests 6–9
This category of requests targets the second prong of FERC Staff's manipulation theory: the allegation that DPT held FTR positions that benefited from the congestion patterns allegedly created by DPT's uneconomic Day-Ahead offers at the Indiana Hub.
Interrogatories 10–12 seek comprehensive identification of all FTR positions held by DPT during the Relevant Period. The requests demand a high degree of specificity, including: the source and sink nodes for each FTR path; the volume of each position (in MW); the term of each FTR (monthly, annual, or seasonal); the date and manner of acquisition (auction or bilateral); the acquisition price; and the settlement value (both positive and negative) for each position over its term. Interrogatory 11 focuses specifically on FTR positions that included the Indiana Hub as either a source or sink node. Interrogatory 12 requests an explanation of the "FTR acquisition strategy and decision-making process," including which individuals were responsible for FTR portfolio management, what analytical tools or models were used to evaluate FTR opportunities, and how FTR acquisition decisions were documented internally.
Interrogatories 13–14 extend the temporal scope of the FTR inquiry. Interrogatory 13 seeks identification of all FTR auction bids and bilateral FTR purchases by DPT during the twelve-month period preceding the Relevant Period — i.e., from January 2021 through December 2021 — as well as during the Relevant Period itself. This request is designed to establish the historical pattern of DPT's FTR activity and to assess whether the FTR positions held during the Relevant Period represented a departure from prior practice. Interrogatory 14 requests identification of the individuals who made FTR acquisition decisions during both the pre-Relevant Period and the Relevant Period itself, including whether those individuals also had responsibility for Day-Ahead or Real-Time trading.
Interrogatory 15 is, in my assessment, the single most sensitive interrogatory in the entire data request. It asks DPT to "explain the relationship, if any, between DPT's FTR portfolio and its Day-Ahead bidding strategy at the Indiana Hub, including whether FTR positions were considered in formulating Day-Ahead offer prices or vice versa." This interrogatory goes directly to the question of whether DPT's Day-Ahead bidding and FTR activities were coordinated as part of an integrated strategy to profit from artificial congestion — the core of FERC Staff's cross-product manipulation theory. The response to this interrogatory has significant legal and strategic implications and must be crafted with the utmost care.
Document Requests 6–8 seek production of all documents reflecting FTR acquisition decisions, internal analyses of FTR value, and communications regarding FTR strategy during both the pre-Relevant Period and the Relevant Period. Document Request 7 specifically targets "any analysis, model, spreadsheet, presentation, or other document evaluating the relationship between DPT's FTR positions and Day-Ahead energy price outcomes at the Indiana Hub or any other MISO pricing node." Document Request 8 seeks communications among DPT's trading personnel regarding FTR strategy, FTR auction participation, or FTR valuation.
Document Request 9 seeks all documents reflecting the notional value and settlement of DPT's FTR positions during the Relevant Period. The data request notes that "FERC Staff's preliminary analysis indicates that DPT's FTR portfolio had an approximate notional value of $47.3 million during the Relevant Period." This figure is significant — if accurate, it represents a substantial FTR position that would have been materially affected by congestion patterns at the Indiana Hub.
Key Observations and Strategic Considerations:
These requests aim to establish the alleged cross-product manipulation link between uneconomic Day-Ahead bids and FTR positions that profited from resulting congestion. The strength of this link is the central factual dispute in the investigation. FERC Staff's theory requires demonstrating that DPT's Day-Ahead offers were submitted with the purpose or foreseeable effect of creating or exacerbating congestion patterns that would increase the settlement value of DPT's FTR positions.
It is critical to document in our response that DPT's FTR positions were acquired well in advance of the Relevant Period as part of routine portfolio hedging activity. Based on preliminary information from the client, the majority of the FTR positions held during the Relevant Period were acquired through MISO's annual FTR auction conducted in late 2021 — months before the commencement of the Relevant Period. If this timeline can be established and documented, it significantly undermines the inference that the FTR positions were acquired as part of a scheme to profit from artificial congestion created by subsequent uneconomic Day-Ahead offers. The FTR positions, if acquired through competitive auctions based on publicly available historical congestion data, can be characterized as legitimate hedging instruments that reflected DPT's reasonable expectations about future congestion patterns.
Interrogatory 15 deserves special attention and strategic discussion at the partner level before a response is finalized. I have flagged this interrogatory in Section VIII (Recommended Next Steps) below. Any response that acknowledges a deliberate connection between FTR portfolio management and Day-Ahead bidding strategy risks being characterized as an admission of coordinated cross-product activity. Conversely, a response that denies any connection whatsoever may be contradicted by contemporaneous documents reflecting portfolio-level analysis or by trader testimony. I recommend that the response be crafted to acknowledge that DPT, like all sophisticated MISO market participants, manages its portfolio holistically, but that FTR acquisition decisions and Day-Ahead bidding decisions were made through separate analytical processes by personnel with distinct responsibilities. The response should avoid using language that could be construed as acknowledging that Day-Ahead offers were formulated with the specific intent to increase FTR settlement values.
C. Category 3: Virtual Transactions at Minnesota Hub
Applicable Requests: Interrogatories 16–22; Document Requests 10–13
This category addresses a distinct but related aspect of FERC Staff's investigation: DPT's virtual trading activity at the Minnesota Hub pricing node. Virtual transactions — Increment Offers ("INCs") and Decrement Bids ("DECs") — are purely financial positions in the Day-Ahead market that settle against Real-Time prices. FERC Staff appears to allege that DPT's virtual transactions at the Minnesota Hub were coordinated with its Day-Ahead physical offers at the Indiana Hub as part of the broader manipulative scheme.
Interrogatories 16–18 seek identification of all virtual transactions submitted by DPT at the Minnesota Hub during the Relevant Period, including the type of each transaction (INC or DEC), the price and volume of each submission, the clearing status (accepted or rejected by MISO's market clearing engine), and the settlement outcome (profit or loss). FERC Staff's cover letter references approximately 1,620 GWh of virtual transactions at the Minnesota Hub during the Relevant Period, suggesting that Staff has already analyzed DPT's virtual trading data obtained from MISO's market monitoring unit. Interrogatory 18 asks DPT to identify the net profit or loss from virtual transactions at the Minnesota Hub during the Relevant Period and to provide a monthly breakdown of trading results.
Interrogatories 19–20 seek the trading rationale for DPT's virtual positions at the Minnesota Hub. Interrogatory 19 asks DPT to "explain the economic rationale and trading thesis" for its virtual transactions, including what market conditions, price signals, or analytical models informed DPT's virtual trading decisions. Interrogatory 20 is more pointed: it asks whether "any analysis was performed regarding the relationship between Day-Ahead congestion at Indiana Hub and Real-Time prices at Minnesota Hub, and if so, describe the analysis and identify the individuals who performed or directed it." This interrogatory directly probes whether DPT analyzed the congestion impacts that its own Day-Ahead activity at Indiana Hub would have on prices at Minnesota Hub — an analysis that, if it existed, could be characterized as evidence of a coordinated cross-node manipulation strategy.
Interrogatories 21–22 focus on personnel. Interrogatory 21 asks DPT to identify the traders responsible for virtual transactions at the Minnesota Hub during the Relevant Period and to describe their specific responsibilities, trading authorities, and reporting relationships. Interrogatory 22 specifically identifies Anastasia Petrov and asks for a detailed description of her role, her trading authority, the types of transactions she was authorized to execute, and the identity of her direct supervisor.
Document Requests 10–12 seek all documents reflecting virtual trading strategies at the Minnesota Hub, including internal analyses, trading models, strategy memoranda, and communications between Day-Ahead and Real-Time desk traders regarding the coordination of positions. Document Request 11 is specifically targeted at "any analysis, model, or document reflecting the expected price impact of virtual transactions at the Minnesota Hub on Day-Ahead or Real-Time prices at the Minnesota Hub or at any other MISO pricing node, including the Indiana Hub." Document Request 12 seeks "all communications between any member of DPT's Day-Ahead trading desk and any member of DPT's Real-Time trading desk during the Relevant Period regarding trading strategies, position management, or market conditions at the Indiana Hub, the Minnesota Hub, or any related MISO pricing nodes."
Document Request 13 seeks "all communications between Kyle Renfro and Anastasia Petrov during the Relevant Period, in any format, including email, instant messaging, text messaging, voice communications (if recorded), and any other form of electronic or written communication." This is a blanket request for all communications between these two individuals, without limitation as to subject matter.
Key Observations and Strategic Considerations:
The cross-desk communication request embodied in Document Request 13 is particularly significant and warrants early attention. Kyle Renfro (Senior Trader, MISO Day-Ahead Desk, responsible for Indiana Hub offers) and Anastasia Petrov (Trader, MISO Real-Time Desk, responsible for Minnesota Hub virtual transactions) operated on different trading desks with ostensibly distinct mandates. FERC Staff's interest in the volume, frequency, and content of their communications is transparent: Staff is looking for evidence that Renfro and Petrov coordinated their trading activities across desks and across pricing nodes. Communications in which Renfro and Petrov discussed their respective positions, market conditions at the Indiana Hub and Minnesota Hub, congestion patterns, or settlement outcomes would be of particular interest to FERC Staff and could be characterized as evidence of a coordinated strategy.
I recommend that collection and review of Renfro-Petrov communications be prioritized as a Tier 1 activity. These communications should be reviewed early in the process so that the team can assess the nature and volume of cross-desk interaction and calibrate our interrogatory responses accordingly. If the communications are largely administrative or operational in nature (e.g., logistical matters, desk coverage, general market commentary), that fact can be affirmatively presented to FERC Staff. If, however, the communications reflect substantive discussions of trading strategy, position coordination, or analysis of the price impacts of each other's positions, the team will need to assess the implications and discuss defensive strategies with Catherine Bloom and the client before finalizing interrogatory responses.
The temporal and subject-matter breadth of Document Request 13 is also potentially objectionable. A request for "all communications" between two individuals over a fourteen-and-a-half-month period, without subject-matter limitation, is facially overbroad. I recommend lodging an overbreadth objection but providing a responsive production of communications that reference trading strategies, market conditions, or specific positions at the Indiana Hub and Minnesota Hub. If FERC Staff insists on broader production after receiving our objection, we can evaluate the incremental burden and respond accordingly.
D. Category 4: Gas Nominations and Physical-Financial Coordination
Applicable Requests: Interrogatories 23–28; Document Requests 14–17
This category probes the third prong of FERC Staff's alleged manipulation theory: the coordination of gas nominations and scheduling through Dunmore Midstream Partners LP ("DMP") with DPT's Day-Ahead bidding activity. FERC Staff appears to be investigating whether DMP's gas nomination activity was used to support, justify, or facilitate DPT's submission of negative-price Day-Ahead offers at the Indiana Hub.
Interrogatories 23–25 seek identification of all gas nominations made by or through DMP for gas-fired generation units whose output was offered into the MISO Day-Ahead market by DPT during the Relevant Period. The requests seek the volume of each nomination, the pipeline and receipt/delivery point for each nomination, the timing of the nomination (timely, intraday 1, intraday 2, or evening cycle), and the identity of the individual(s) who submitted or authorized each nomination. Interrogatory 24 asks DPT to describe the gas nomination process in detail, including the roles and responsibilities of DPT and DMP personnel, the flow of information between DPT's trading desk and DMP's gas scheduling operations, and the timeline for nomination decisions relative to Day-Ahead offer submission deadlines. Interrogatory 25 asks whether DMP's gas supply arrangements included any take-or-pay provisions, minimum volume commitments, or other contractual obligations that could affect the economics of DPT's generation units and, by extension, the offer prices submitted in the MISO Day-Ahead market.
Interrogatories 26–27 are more directly accusatory in tone. Interrogatory 26 asks whether gas nomination volumes were "adjusted, modified, or coordinated in connection with" DPT's Day-Ahead bidding at the Indiana Hub, and if so, asks DPT to describe the nature and frequency of such coordination. Interrogatory 27 asks whether DMP's gas scheduling was "used to support, justify, or provide an economic basis for" the negative offer prices submitted by DPT, including whether gas supply costs were used as an input into DPT's offer price calculations for specific hours in which negative-price offers were submitted. These interrogatories are transparently designed to establish that DMP's gas operations were used instrumentally to support an uneconomic bidding strategy.
Interrogatory 28 seeks identification of all individuals who communicated between DPT's trading desk and DMP's gas scheduling operations during the Relevant Period, including the frequency and nature of such communications. This request is significant because it probes the operational boundary — or lack thereof — between DPT and DMP. If communications between DPT traders and DMP scheduling personnel were frequent, substantive, and bidirectional (i.e., if DPT's trading decisions influenced DMP's nominations and vice versa), FERC Staff will argue that the corporate separation between DPT and DMP is a formality that does not reflect the actual integrated operation of the Dunmore enterprise.
Document Requests 14–16 seek production of all documents reflecting gas nominations, scheduling communications between DPT and DMP, and any internal analyses of the relationship between gas costs and generation offer prices. Document Request 14 targets NAESB-format nomination documents and any related correspondence with pipeline operators. Document Request 15 seeks all communications between DPT personnel and DMP personnel during the Relevant Period regarding gas supply, nominations, scheduling, transportation, storage, or pricing. Document Request 16 seeks any internal analyses, models, or spreadsheets used to calculate the fuel cost component of DPT's Day-Ahead offer prices for gas-fired generation units.
Document Request 17 seeks organizational charts, reporting structures, and any shared management between DPT and DMP, including identification of any individuals who held positions, titles, or responsibilities at both entities during the Relevant Period.
Key Observations and Strategic Considerations:
These requests probe the alleged physical-financial coordination that constitutes the third prong of FERC Staff's manipulation theory. The corporate structure is relevant here: DMP (Employer Identification Number 47-8831205) is a separate legal entity organized as a Delaware limited partnership, but it shares the same principal office address as DPT and DEH at 2200 Post Oak Boulevard, Suite 3100, Houston, Texas 77056. The co-location of DPT and DMP raises natural questions about the degree of operational separation and independence between the two entities.
We need to assess the extent of operational overlap between DPT and DMP. Specific questions to address with the client include: (i) whether any individual held concurrent roles at both DPT and DMP during the Relevant Period; (ii) whether DMP's gas scheduling decisions were made independently of DPT's trading decisions, or whether there was a regular flow of information from DPT's trading desk to DMP's scheduling operations; (iii) whether DMP's gas supply contracts included take-or-pay or minimum volume provisions that created obligations independent of DPT's generation dispatch decisions; and (iv) whether DMP maintained its own compliance policies and procedures separate from DPT's. The answers to these questions will significantly shape our response strategy for this category of requests.
The response to Interrogatories 26 and 27 requires particular care. A blanket denial of any coordination between gas nominations and Day-Ahead bidding may not be credible if, as is typical in integrated energy companies, there was a routine operational workflow in which gas nominations were adjusted to reflect anticipated generation dispatch. The key distinction is between legitimate operational coordination (adjusting gas supply to match anticipated generation needs, which is an ordinary and economically rational business practice) and improper coordination (deliberately manipulating gas nominations to support or justify uneconomic Day-Ahead offers). Our responses should affirmatively establish that any coordination between DPT and DMP was limited to the former category.
E. Category 5: Trader Communications and Organizational Structure
Applicable Requests: Interrogatories 29–35; Document Requests 18–20
This category of requests targets the personnel, organizational structure, and incentive arrangements underlying DPT's MISO trading operations. FERC Staff is seeking to understand who made trading decisions, how authority was delegated, how performance was measured, and how traders were compensated.
Interrogatories 29–30 seek identification of all traders on DPT's MISO trading desk during the Relevant Period. Based on preliminary information from the client, the desk comprised fourteen (14) traders during all or part of this period. Interrogatory 29 asks for each trader's name, title, hire date, specific responsibilities, trading authorities (including dollar and volume limits), and reporting relationships. Interrogatory 30 specifically identifies Derek Sung as the Senior Vice President of Power Marketing & Trading and asks for a detailed description of his supervisory role, including the nature and frequency of his oversight of Day-Ahead and Real-Time trading activities, his involvement in trading strategy formulation, and his authority to approve or direct specific trading decisions.
Interrogatories 31–33 address trader compensation. Interrogatory 31 asks DPT to describe the compensation structure for all traders on the MISO trading desk during the Relevant Period, including base salary ranges, bonus structures, and any incentive compensation arrangements. Interrogatory 32 focuses specifically on whether any component of trader compensation was tied to trading profits, profit and loss ("P&L") performance metrics, or the performance of specific positions (including Day-Ahead positions, FTR positions, or virtual positions). Interrogatory 33 narrows the inquiry further, asking specifically about the compensation arrangements for Kyle Renfro and Anastasia Petrov, including the terms of their respective bonus plans and any performance targets or metrics used to calculate their variable compensation.
Interrogatories 34–35 ask about internal risk controls. Interrogatory 34 seeks information about any risk limits, position limits, or approval requirements applicable to DPT's MISO trading activities during the Relevant Period, including whether there were specific limits on negative-price Day-Ahead offers, virtual transaction volumes, or FTR position sizes. Interrogatory 35 asks whether any trader exceeded any applicable risk limit during the Relevant Period and, if so, what corrective action was taken.
Document Request 18 is among the broadest in the data request: it seeks "all communications among trading desk personnel regarding Day-Ahead bidding strategy, virtual trading strategy, or FTR strategy during the Relevant Period." Given the fourteen-person desk and the fourteen-and-a-half-month Relevant Period, this request has the potential to generate an enormous volume of responsive documents.
Document Request 19 seeks trader compensation agreements, bonus plans, performance evaluations, P&L attribution reports, and any other documentation reflecting the performance metrics used to evaluate traders and determine incentive compensation. This request encompasses both the formal written agreements and any informal documentation of compensation discussions or decisions.
Document Request 20 seeks all organizational charts and desk structure documentation for DPT's MISO trading operations during the Relevant Period, including any changes to desk structure, reporting relationships, or supervisory assignments that occurred during the Relevant Period.
Key Observations and Strategic Considerations:
The trader compensation requests (Interrogatories 31–33, Document Request 19) are designed to establish motive. FERC Staff's theory is that incentive compensation tied to trading profits created a financial incentive for traders to pursue manipulative strategies that maximized the P&L of their positions, even if those strategies involved uneconomic bidding that would not have been rational absent the cross-product benefits (i.e., FTR profits and virtual trading profits). If Renfro's bonus was tied to the profitability of his Day-Ahead trading book, and if that book was profitable in part because the congestion created by his negative-price offers benefited FTR positions attributed to the same book or to a broader portfolio metric, FERC Staff will argue that Renfro had a direct financial incentive to submit uneconomic offers.
I recommend reviewing compensation agreements carefully for privilege issues. In many organizations, General Counsel is involved in structuring, negotiating, and approving trader compensation arrangements. If Martin Llewellyn was involved in the design of DPT's trader compensation structure, communications reflecting his involvement may contain legal advice regarding regulatory risks, compliance considerations, or structural alternatives, and may be subject to attorney-client privilege. Privilege log entries for any such documents should be prepared with particular care.
With respect to the interrogatory responses, I recommend providing a general description of the compensation structure (e.g., "traders received a base salary supplemented by discretionary annual bonus compensation, which was determined based on a combination of individual performance, desk performance, and overall corporate results") while objecting to the disclosure of individual compensation amounts for Renfro, Petrov, and other traders on the grounds that such information is confidential, proprietary, and only marginally relevant to the investigation at this stage. If FERC Staff insists on individual compensation data in a follow-up request, we can evaluate the appropriate response at that time.
F. Category 6: Compliance Policies and Programs
Applicable Requests: Interrogatories 36–41; Document Requests 21–23
This final category of requests addresses DPT's compliance infrastructure, including written policies, training programs, internal reviews, and the recent appointment of a Chief Compliance Officer.
Interrogatories 36–37 seek identification and description of all compliance policies, procedures, and training programs in effect at DPT during the Relevant Period relating to wholesale electricity trading, market manipulation, and FERC regulatory compliance. Interrogatory 36 asks DPT to identify each compliance policy by title, effective date, author or approver, and the scope of covered activities and personnel. Interrogatory 37 asks whether traders on the MISO desk received training on FERC's anti-manipulation rule (18 C.F.R. § 1c.2) and, if so, requests a description of the training content, frequency, and attendance records.
Interrogatory 38 specifically addresses the appointment of Jennifer Caulfield as Chief Compliance Officer on February 6, 2023. The interrogatory asks for a description of the "circumstances leading to" Caulfield's appointment, her job description and scope of authority, her reporting relationships (including whether she reports to the General Counsel, the CEO, the board of directors, or another officer), and whether her appointment was prompted by any specific concern, event, or inquiry regarding DPT's trading activity. The phrasing of this interrogatory suggests that FERC Staff is aware that Caulfield was hired approximately five weeks before the end of the Relevant Period and approximately four months before the formal order of investigation, and is probing whether her hiring was a response to emerging compliance concerns — which could be interpreted either as evidence of proactive remediation or as a tacit acknowledgment of pre-existing compliance deficiencies.
Interrogatories 39–40 ask about internal compliance reviews. Interrogatory 39 asks whether DPT or any affiliated entity conducted any "internal compliance review, audit, investigation, or assessment" during or after the Relevant Period concerning DPT's MISO trading activity, including any review prompted by market monitoring inquiries, MISO Independent Market Monitor reports, or internal concerns. Interrogatory 40 asks, if any such review was conducted, for a description of its scope, findings, and any remedial actions taken. These interrogatories are sensitive because any internal investigation may have generated privileged communications and work product, and the existence (though not the substance) of such an investigation is arguably discoverable.
Interrogatory 41 casts a wider historical net, asking DPT to identify any prior instances of regulatory inquiry, investigation, or enforcement action involving DEH, DPT, or any affiliated entity at FERC or any other federal or state regulatory body. This request extends beyond the Relevant Period and beyond the specific MISO trading activity at issue, reaching any prior regulatory history of the Dunmore enterprise. This interrogatory may implicate privileged communications with prior counsel regarding earlier regulatory matters.
Document Request 21 seeks all compliance policies, procedures, manuals, and training materials in effect during the Relevant Period. This request is straightforward and should generate a finite set of documents.
Document Request 22 seeks all documents relating to Jennifer Caulfield's hiring, appointment, and initial compliance assessments performed after her appointment. This request is broad and is likely to capture internal memoranda, board presentations, job descriptions, recruiting materials, and communications among senior management — including Martin Llewellyn — regarding the decision to create the CCO position and hire Caulfield.
Document Request 23 seeks all documents relating to any internal compliance review or audit of DPT's MISO trading activity, whether conducted before, during, or after the Relevant Period.
Key Observations and Strategic Considerations:
These requests are double-edged and require a nuanced strategic approach. On one hand, the existence of a compliance program — even if admittedly inadequate in certain respects — and the proactive decision to hire a dedicated Chief Compliance Officer before the commencement of the formal investigation can be presented as mitigating factors reflecting the Dunmore Entities' good faith commitment to compliance. Under FERC's Revised Policy Statement on Penalty Guidelines (18 C.F.R. § 1b.1), the existence of an effective compliance program is a mitigating factor in the determination of civil penalties, and proactive remedial measures are also given weight.
On the other hand, if the pre-existing compliance policies were inadequate, outdated, or not enforced — for example, if there was no written policy addressing negative-price offers, no regular compliance training for MISO desk traders, or no mechanism for compliance review of novel or high-risk trading strategies — that information could be used by FERC Staff to argue that the Dunmore Entities operated without adequate compliance safeguards and that the absence of such safeguards facilitated the alleged manipulative conduct. Similarly, if the hiring of Caulfield was prompted by specific internal concerns about the trading activity that is now under investigation, FERC Staff could characterize the hiring as evidence that the Dunmore Entities were aware of potential problems and failed to act sooner.
I recommend a careful review of existing compliance documentation to assess our exposure in this area. The review should evaluate: (i) the scope and specificity of written compliance policies in effect during the Relevant Period; (ii) whether those policies addressed the specific types of trading activity at issue (negative-price Day-Ahead offers, FTR-physical coordination, virtual trading); (iii) whether compliance training was conducted regularly and documented; and (iv) whether any internal compliance reviews were conducted and, if so, whether the findings were privileged. This review should be completed before the interrogatory responses in this category are finalized.
IV. Privilege Issues and Recommended Approach
A. Attorney-Client Privilege Concerns
Several of the document requests in the data request are likely to capture communications and documents protected by the attorney-client privilege. The principal areas of concern are as follows:
Communications Involving Martin Llewellyn (General Counsel). Document Requests 18, 22, and 23 are the requests most likely to sweep in communications involving Llewellyn. Document Request 18 (communications among trading desk personnel regarding trading strategy) could capture communications in which Llewellyn was copied or included as a participant in strategy discussions in his capacity as General Counsel. Document Request 22 (documents relating to Caulfield's hiring) is virtually certain to include communications in which Llewellyn participated, given his likely involvement in the decision to create the CCO position and in the recruitment and onboarding of Caulfield. Document Request 23 (documents relating to internal compliance reviews) may capture communications reflecting legal advice provided by Llewellyn in connection with any compliance assessment or internal investigation.
For documents involving Llewellyn, the privilege analysis will turn on the familiar distinction between communications in which Llewellyn was acting in his capacity as a legal advisor (privileged) and communications in which he was acting in a business capacity (not privileged). This distinction can be difficult to apply in practice, particularly for in-house counsel who wear multiple hats. I recommend that all documents involving Llewellyn be routed to the second-level privilege review described in Section V.D below and that borderline documents be escalated to Hannah Brinkley or Catherine Bloom for final determination.
Communications Involving Aldercroft & Beane LLP (Warren Aldercroft). Aldercroft & Beane LLP, led by partner Warren Aldercroft, served as Dunmore's FERC regulatory counsel prior to the commencement of this enforcement proceeding. Aldercroft & Beane has been conflicted out of representation in this matter due to a concurrent representation of another MISO market participant that is also under investigation by FERC OE. However, the disqualification of Aldercroft & Beane from representing Dunmore in this proceeding does not extinguish the attorney-client privilege applicable to their prior communications with the client. Any communications between Aldercroft & Beane personnel and Dunmore personnel that were made for the purpose of providing or seeking legal advice remain privileged and should be withheld from production, with appropriate entries on the privilege log.
Interrogatory 41 (Prior Regulatory Matters). This interrogatory asks about prior regulatory inquiries, investigations, or enforcement actions involving the Dunmore Entities. To the extent that prior regulatory matters were handled by counsel (whether Aldercroft & Beane, Calderwood & Harkness, or any other law firm), communications and work product generated in connection with those matters are privileged. The interrogatory response can identify the existence of prior matters at a general level without disclosing the substance of privileged communications. I recommend a careful review of the scope of this interrogatory response with the team before finalization.
Mixed Business-Legal Communications. Communications between Martin Llewellyn and Rhonda Vasquez (VP, Regulatory Affairs) regarding compliance assessments may contain mixed business and legal content. Where a communication contains both privileged legal advice and non-privileged business information, we should assess whether the document can be redacted to remove the privileged content while producing the non-privileged portions, or whether the privileged content is so intertwined with the business content that the entire document must be withheld. Each such document should be logged with a detailed description sufficient to support the privilege assertion.
B. Work Product Protection
Any documents reflecting legal analysis of DPT's trading strategies, prepared in anticipation of the current investigation or any prior regulatory inquiry, should be withheld as attorney work product under the doctrine of Hickman v. Taylor, 329 U.S. 495 (1947), and its progeny. Work product protection applies to documents prepared by or at the direction of an attorney in anticipation of litigation or regulatory proceedings, and encompasses both "fact" work product (which may be subject to a qualified privilege) and "opinion" work product (which is subject to a near-absolute privilege).
With respect to the engagement of Dr. Leonard Whitfield of Whitfield Economic Advisors LLC ("WEA"), I note that Dr. Whitfield was retained on July 10, 2023 — after the data request was served on June 26, 2023. WEA materials generated after the engagement date are not responsive to this data request (which seeks documents existing as of the date of service), but any pre-engagement expert consultations — such as preliminary discussions between Calderwood & Harkness and Dr. Whitfield prior to formalization of the engagement — should be reviewed to confirm that they are protected as work product or as communications in furtherance of the attorney-client relationship.
C. Recommended Objections
Based on my review of the data request, I recommend the following categories of objections:
Overbreadth. Several requests are facially overbroad in scope. The most significant example is Document Request 18, which seeks "all communications among trading desk personnel regarding Day-Ahead bidding strategy, virtual trading strategy, or FTR strategy during the Relevant Period." Applied to a fourteen-person desk over a fourteen-and-a-half-month period, this request could encompass tens of thousands of documents, many of which would consist of routine market commentary, daily position summaries, or other communications of marginal relevance to the investigation. I recommend objecting to the breadth of this request and proposing reasonable limitations — for example, limiting the production to communications that specifically reference negative-price offers, specific bidding strategies at the Indiana Hub or Minnesota Hub, FTR positions involving the Indiana Hub, or coordination between the Day-Ahead and Real-Time desks. Similarly, Document Request 13 (all communications between Renfro and Petrov) should be objected to as overbroad and limited to communications referencing trading strategies, market conditions, or specific positions.
Temporal Scope. Several requests extend beyond the Relevant Period without providing adequate justification for the expanded temporal scope. The most notable example is Interrogatory 13, which reaches back twelve months before the Relevant Period to January 2021 to capture FTR auction bids and bilateral purchases. While the pre-Relevant Period FTR acquisition activity may be relevant to establishing the timeline and purpose of FTR positions held during the Relevant Period, the twelve-month extension is broader than necessary. I recommend objecting to the temporal scope of this interrogatory while noting that our litigation hold, which was implemented on June 14, 2023, adopted January 1, 2021 as the start date for preservation of responsive documents. As a practical matter, we will have documents from this period available for production if the objection is overruled or if we determine that affirmative production of pre-Relevant Period FTR data supports our defense.
Burden. The aggregate scope of the document requests, applied across the identified custodians, will generate an enormous volume of material. I recommend including a general objection regarding burden and proposing a phased production approach in which documents from the three priority custodians (Renfro, Petrov, and Sung) are produced first, with documents from additional custodians to follow on a rolling basis. This approach is consistent with FERC OE's expressed willingness to discuss "reasonable scheduling accommodations" and is a common and accepted practice in enforcement investigations of this scale.
Relevance (Compensation). Interrogatories 31–33 seek detailed information about trader compensation, including individual salary and bonus amounts. While I acknowledge that FERC Staff has a legitimate investigative interest in understanding the incentive structures that motivated DPT's traders, the disclosure of individual compensation amounts is arguably more intrusive than necessary at this stage of the investigation. I recommend lodging a limited relevance objection and providing a responsive answer that describes the general compensation structure (base salary, discretionary bonus, performance metrics) without disclosing specific dollar amounts for individual traders. If FERC Staff determines that individual compensation data is necessary, it can serve a follow-up request with a more targeted justification.
Privilege Log. I recommend that a comprehensive privilege log be prepared and maintained contemporaneously with the document review and production process. The privilege log should be organized as a master log encompassing all productions in this matter, with entries for each document withheld in whole or in part on privilege grounds. Each entry should include the document date, author, recipients, a general description of the subject matter (sufficient to enable FERC Staff to assess the privilege claim without disclosing privileged content), the Bates range (for redacted documents) or a unique identifier (for fully withheld documents), and the specific privilege or protection asserted (attorney-client privilege, work product, or both). The privilege log will be produced to FERC Staff contemporaneously with each document production.
V. Document Collection and Production Plan
A. Custodian Prioritization
Based on the scope and focus of the data request, I recommend a three-tier custodian prioritization as follows:
Tier 1 — Immediate Collection (by July 3, 2023):
These three custodians are the primary targets of the investigation and their documents are responsive to the majority of the requests. Collection from these custodians should commence immediately.
Tier 2 — Collection by July 5, 2023:
These custodians are primarily implicated by the compliance-related requests and should be collected promptly but may be processed and reviewed on a slightly later timeline than Tier 1 custodians.
Tier 3 — Collection by July 10, 2023:
Total custodians identified in the litigation hold, which was implemented on June 14, 2023: eleven (11). The remaining three traders from the fourteen-person desk who are not designated as custodians will be assessed after the initial review of Tier 1 documents to determine whether their documents are likely to contain responsive material that is not duplicative of material already collected from designated custodians.
B. Data Sources
The following data sources have been identified for collection:
1.  DPT Trading Systems: MISO Day-Ahead bidding platform records, FTR auction records, virtual transaction records, position management systems, and risk management system data. These systems contain the transactional data responsive to the interrogatories seeking identification of all offers, bids, and positions during the Relevant Period. Data should be extracted in a format that enables both production to FERC Staff and use by the economic expert.
2.  DPT Email (Strathmore Data Systems / Ashbury Software): Email for all eleven (11) custodians, including all email folders (inbox, sent, drafts, deleted items, archive), calendar entries, and any email-integrated task or note items. Email is expected to be the largest source of responsive documents by volume.
3.  DMP Gas Nomination/Scheduling Systems: NAESB-format nomination records, scheduling confirmations, pipeline capacity reservation records, and related gas operations data. These records are maintained by DMP and will need to be collected separately, with appropriate attention to the corporate separateness of DMP as a distinct legal en

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