CONFIDENTIAL — 18 C.F.R. Part 1b
CALDERWOOD & HARKNESS LLP
Attorneys at Law
Houston Office 1001 Fannin Street, Suite 4200 Houston, TX 77002 Tel: (713) 655-4800
Fax: (713) 655-4801
Principal Office 600 Lexington Avenue New York, NY 10022 Tel: (212) 558-4000
Fax: (212) 558-3588
July 24, 2023
VIA SECURE FILE TRANSFER AND FIRST-CLASS MAIL
Thomas Adebayo, Lead Investigator Division of Investigations Office of Enforcement Federal Energy Regulatory Commission 888 First Street NE Washington, D.C. 20426
Re: Docket No. IN23-7-000 — First Document Production on Behalf of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC
Dear Mr. Adebayo:
We write on behalf of our clients, Dunmore Energy Holdings Ltd. ("DEH") and Dunmore Power Trading LLC ("DPT" and, together with DEH, "Dunmore"), in connection with the above-referenced non-public investigation being conducted by the Office of Enforcement ("OE") of the Federal Energy Regulatory Commission ("FERC" or "Commission") pursuant to 18 C.F.R. Part 1b. Calderwood & Harkness LLP represents DEH and DPT in all matters arising from or relating to this investigation. This letter accompanies Dunmore's first production of documents responsive to FERC OE's First Data Request, as described in further detail below.
As you are aware, on June 12, 2023, the Commission issued a formal non-public order of investigation authorizing FERC Staff to conduct an investigation into certain trading activities in the Midcontinent Independent System Operator, Inc. ("MISO") markets. Thereafter, on June 26, 2023, FERC OE served its First Data Request upon Dunmore, comprising forty-one (41) interrogatories and twenty-three (23) document requests (the "First Data Request"). This letter accompanies the first production of documents responsive to the document request portion of the First Data Request. Dunmore is making this production on a rolling basis, and additional productions of documents responsive to the First Data Request will follow in due course as document collection, processing, and review are completed for the remaining custodians and data sources identified in this matter.
Description of Production Volume
This production consists of forty-eight thousand two hundred (48,200) documents, produced in response to the document requests contained in FERC OE's First Data Request dated June 26, 2023. These documents have been collected, processed, reviewed, and produced in the ordinary course of Dunmore's document review and production workflow. Dunmore reserves all rights, objections, and privileges as set forth in Calderwood & Harkness's letter to Mr. Adebayo dated July 17, 2023, captioned "Objections and Responses to First Data Request on Behalf of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC" (the "Objections Letter"). To the extent any general or specific objection set forth in the Objections Letter is applicable to any document produced herewith, such objection is incorporated by reference and preserved in full.
Bates Numbering Convention
All documents included in this production have been assigned unique, sequential Bates numbers using the prefix "DUNMORE-" followed by a six-digit numeric identifier. This initial production encompasses documents bearing Bates numbers DUNMORE-000001 through DUNMORE-048200. Sequential Bates numbering will continue in all subsequent productions, beginning with the next available number following the last Bates number assigned in this production. In the event that Dunmore identifies the need to produce replacement pages or corrected versions of any previously produced documents, such replacement or corrected documents will be clearly identified and cross-referenced to the original Bates numbers in the accompanying correspondence.
Production Format and Media
All documents in this production have been produced in electronic format and are being delivered via secure file transfer to the designated FERC OE secure portal, as coordinated between the parties. The production has been prepared in accordance with the following format specifications:
(a) Native files have been produced where applicable and where the native format is necessary to preserve the functionality or integrity of the document. This includes, but is not limited to, Ashbury Holdings Excel spreadsheets, Ridgeway Data Systems databases, and other structured data files for which conversion to image format would result in the loss of material content or functionality.
(b) All other documents have been produced as single-page TIFF images (Group IV, 300 DPI, black and white), accompanied by extracted text (for electronically stored information) or OCR text (for scanned hard copy documents) and associated metadata load files.
(c) The production conforms to industry-standard litigation support formats, including Ashgrove Technologies- and Crestline Technologies-compatible load files (DAT, OPT, and associated control files). Metadata fields include, at a minimum: Bates Begin, Bates End, Custodian, Date Sent, Date Received, Author, From, To, CC, BCC, Subject, File Name, File Extension, File Path, and Confidentiality Designation.
(d) Email attachments have been produced as separate documents with parent-child relationship indicators preserved in the load file, enabling reassembly and review in the receiving party's document review platform.
Document processing, hosting, and production for this matter have been managed by Crestline Document Solutions LLC, located at 1400 Smith Street, Suite 2100, Houston, TX 77002. Crestline has processed all collected data in accordance with industry-standard electronic discovery protocols and has maintained a defensible chain of custody for all materials processed and produced in connection with this investigation.
Should FERC Staff have any questions regarding the format of this production, or should any technical issues arise in loading or reviewing the produced materials, please do not hesitate to contact the undersigned so that we may coordinate with Crestline to resolve any such issues promptly.
Custodians Included in This Production
This initial production includes documents collected from the files, email accounts, and other data repositories of the following four (4) custodians, who represent a subset of the eleven (11) total custodians identified for this investigation:
1. Kyle Renfro, Senior Trader, MISO Day-Ahead Desk, Dunmore Power Trading LLC
2. Anastasia Petrov, Trader, MISO Real-Time Desk, Dunmore Power Trading LLC
3. Derek Sung, Senior Vice President, Power Marketing & Trading, Dunmore Power Trading LLC
4. Rhonda Vasquez, Vice President, Regulatory Affairs, Dunmore Energy Holdings Ltd.
Documents collected from additional custodians are currently being processed, reviewed for responsiveness and privilege, and prepared for production. Dunmore will include documents from such additional custodians in subsequent rolling productions. As previously discussed between FERC Staff and counsel for Dunmore, the total custodian population for this matter consists of eleven (11) individuals, whose identities were disclosed to FERC Staff during the meet-and-confer conference held on July 10, 2023. Dunmore will continue to prioritize the processing and review of documents from the remaining custodians and will advise FERC Staff of the anticipated timing for subsequent productions as review progresses.
Date Range of Responsive Documents
The documents included in this production span the date range of January 1, 2021 through May 22, 2023, which is consistent with the temporal scope specified in the First Data Request. Documents have been collected and reviewed across this entire date range for each of the four custodians identified above. To the extent any document falls outside this date range but was determined to be responsive to the First Data Request based on its content or context (for example, documents that pre-date the specified period but are referenced in or attached to communications within the date range), such documents have been included in the production as well.
Confidentiality Designations
Certain documents in this production contain commercially sensitive, proprietary, or confidential business information belonging to DEH, DPT, or their affiliates. Such information includes, without limitation, trading strategies and methodologies, proprietary pricing data and models, Financial Transmission Rights ("FTR") positions and portfolio analyses, gas nomination schedules, internal business communications regarding market positions and risk management, counterparty information, and other information the disclosure of which could cause competitive harm to Dunmore.
Documents containing such information have been designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on the face of each produced page, consistent with the confidentiality protections afforded under 18 C.F.R. § 1b.9 and the non-public nature of proceedings conducted pursuant to 18 C.F.R. Part 1b. Dunmore respectfully requests that FERC Staff treat all materials produced in this and subsequent productions in accordance with the Commission's regulations governing the confidentiality of investigative proceedings, including, but not limited to, 18 C.F.R. § 1b.9, and that access to such materials be limited to those FERC Staff members who have a demonstrated need to review the materials in connection with this investigation. In the event that FERC Staff intends to disclose, share, or otherwise make available any documents designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL to any person or entity outside of the Division of Investigations, Dunmore requests advance notice and an opportunity to be heard regarding the appropriateness of such disclosure.
Privilege and Redactions
Certain documents that are responsive to the document requests contained in the First Data Request have been withheld from this production, in whole or in part, on the basis of the attorney-client privilege and/or the work product doctrine, as applicable. Specifically, documents reflecting confidential communications between Dunmore and its legal counsel (including in-house counsel and outside counsel) made for the purpose of seeking or providing legal advice, as well as documents prepared in anticipation of litigation or in connection with this investigation, have been withheld or redacted to the extent necessary to preserve applicable privileges.
A privilege log identifying each document withheld or redacted on the basis of privilege will be provided under separate cover. Dunmore intends to provide a cumulative privilege log accompanying its rolling document productions, and anticipates that the initial privilege log will be delivered to FERC Staff no later than August 14, 2023. The privilege log will identify each withheld or redacted document by Bates number (where assigned), date, author, recipient(s), general subject matter description, and the specific privilege(s) asserted.
Dunmore expressly reserves all rights to supplement, amend, or otherwise modify its privilege designations as additional documents are reviewed and produced, and as the scope of privileged materials is further refined through the document review process. The inadvertent production of any privileged document shall not constitute a waiver of any applicable privilege, and Dunmore reserves all rights under Federal Rule of Evidence 502(b) and any applicable common law principles governing the inadvertent disclosure of privileged materials.
Reservation of Rights
This production is made subject to, and without waiver of, any and all objections, rights, defenses, and privileges previously asserted in Dunmore's Objections and Responses to First Data Request dated July 17, 2023. Without limiting the foregoing, Dunmore specifically reserves the following rights:
(a) The production of any document in this or any subsequent production does not constitute an admission by Dunmore as to the relevance, authenticity, admissibility, or evidentiary significance of any such document in any proceeding before the Commission, in any court, or in any other forum.
(b) Dunmore reserves the right to supplement, correct, or amend this production as additional documents are identified, collected, processed, reviewed, and determined to be responsive to the First Data Request. Dunmore further reserves the right to produce additional documents in response to clarifications or modifications of the First Data Request that may result from ongoing discussions between counsel for Dunmore and FERC Staff.
(c) Nothing in this production, or in any document produced herewith, constitutes or shall be construed as an admission of liability, wrongdoing, or violation of any law, regulation, or Commission order, including, without limitation, Section 222 of the Federal Power Act, 16 U.S.C. § 824v (prohibition on market manipulation), the Commission's Anti-Manipulation Rule, 18 C.F.R. § 1c.2, or any other provision of the Federal Power Act, the Natural Gas Act, or the regulations promulgated thereunder.
(d) Dunmore reserves all rights and objections set forth in the Objections Letter, including but not limited to objections based on relevance, proportionality, burden, overbreadth, ambiguity, privilege, and the protections afforded to Dunmore under the United States Constitution and applicable statutes and regulations.
Cooperation Statement
Dunmore and DPT remain fully committed to cooperating with FERC Staff's investigation in a timely and constructive manner. Dunmore has devoted, and will continue to devote, substantial resources to the collection, processing, review, and production of documents responsive to the First Data Request and any subsequent data requests that FERC Staff may issue in connection with this investigation.
Additional productions of responsive documents are anticipated on a rolling basis as the review of documents from the remaining custodians is completed. Dunmore will advise FERC Staff of the anticipated timing of each subsequent production as the review progresses. At present, Dunmore anticipates that its second production, encompassing documents from at least three additional custodians, will be delivered to FERC Staff on or before August 21, 2023, subject to the volume and complexity of the materials under review.
Calderwood & Harkness LLP is available at any time to discuss any questions FERC Staff may have regarding this production, the format of documents produced, the scope of Dunmore's search and collection methodology, or any other matter relating to the investigation. We welcome the opportunity to continue the productive dialogue between counsel for Dunmore and FERC Staff, and we are prepared to schedule a meet-and-confer at FERC Staff's convenience to address any issues that may arise in connection with this or future productions.
Please direct any questions regarding this production or any aspect of the matters discussed herein to the undersigned at the contact information provided below, or to Catherine Bloom, the responsible partner for this matter, at cbloom@calderwoodharkness.com or (212) 558-4127.
We thank you for your attention to this matter and look forward to continuing to work with FERC Staff cooperatively throughout this investigation.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Hannah Brinkley Associate Calderwood & Harkness LLP 1001 Fannin Street, Suite 4200 Houston, TX 77002 Tel: (713) 655-4839
Fax: (713) 655-4801
Email: hbrinkley@calderwoodharkness.com
cc:
Catherine Bloom, Partner, Calderwood & Harkness LLP
Christine Pham, Senior Attorney, Division of Investigations, FERC Office of Enforcement
Margaret Hollowell, Director, Division of Investigations, FERC Office of Enforcement (via courtesy copy)
Martin Llewellyn, General Counsel, Dunmore Energy Holdings Ltd.