CONFIDENTIAL — CONTAINS NON-PUBLIC INFORMATION PURSUANT TO 18 C.F.R. § 1b.9
CALDERWOOD & HARKNESS LLP 1001 Fannin Street, Suite 4200 Houston, TX 77002 Tel: (713) 655-2400
Fax: (713) 655-2401
600 Lexington Avenue New York, NY 10022 Tel: (212) 848-1000
Fax: (212) 848-1001
August 21, 2023
VIA ELECTRONIC SUBMISSION 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 — Second Document Production on Behalf of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC
C&H Matter No. 1016-00004
CONFIDENTIAL — Contains Non-Public Information Pursuant to 18 C.F.R. § 1b.9
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" or the "Company"), in connection with the above-referenced non-public investigation in Docket No. IN23-7-000, initiated pursuant to the Commission's formal non-public order of investigation dated June 12, 2023. As you are aware, Calderwood & Harkness LLP ("C&H") represents DEH and DPT in this matter, and our Notice of Appearance on behalf of both entities was filed with the Commission on June 5, 2023.
This letter accompanies Dunmore's second production of documents responsive to FERC Staff's First Data Request, served on counsel on June 26, 2023, which comprises forty-one (41) interrogatories and twenty-three (23) document requests, and to FERC Staff's Supplemental Second Data Request, served on counsel on August 7, 2023, which comprises eighteen (18) additional interrogatories. As a point of reference, we direct your attention to C&H's letter dated July 17, 2023, setting forth Dunmore's objections and responses to the First Data Request, and to C&H's letter dated August 18, 2023, setting forth Dunmore's objections and responses to the Supplemental Second Data Request. The production described herein is made in accordance with and subject to the objections and responses contained in those prior letters.
I. Description of the Second Document Production
A. Volume and Bates Range
This second production consists of sixty-three thousand four hundred (63,400) documents, Bates-stamped DUNMORE-048201 through DUNMORE-111600. The production is being made in the same format and on the same media as the first document production submitted to FERC Staff on July 24, 2023.
B. Cumulative Production Statistics
For FERC Staff's convenience, the table below summarizes Dunmore's cumulative document production to date in this investigation:
As reflected above, the cumulative total of documents produced to date in this matter is one hundred eleven thousand six hundred (111,600) documents, spanning Bates numbers DUNMORE-000001 through DUNMORE-111600.
C. Custodians Covered in This Production
The documents contained in this second production were collected from the eleven (11) custodians identified in the negotiated custodian list that was agreed upon between counsel for Dunmore and FERC Staff during the meet-and-confer held on July 5, 2023. The custodians from whom documents in this production were sourced include the following individuals:
1. Kyle Renfro, Senior Trader, MISO Day-Ahead Desk, DPT;
2. Anastasia Petrov, Trader, MISO Real-Time Desk, DPT;
3. Derek Sung, Senior Vice President, Power Marketing & Trading, DPT;
4. Rhonda Vasquez, Vice President, Regulatory Affairs, DEH;
5. Jennifer Caulfield, Chief Compliance Officer, DEH;
6. Elena Mirova, President & Chief Operating Officer, DEH; and
7. Five (5) additional trading desk and operations personnel as specified in the negotiated custodian list.
We note that this second production includes additional documents from custodians whose electronic collections were still undergoing forensic processing, de-duplication, and attorney review at the time Dunmore's first production was submitted on July 24, 2023. In particular, the processing and review of documents from the custodial files of Mr. Renfro, Ms. Petrov, and Mr. Sung required additional time given the substantial volume of electronic communications and trading-related files associated with those custodians.
Additionally, this second production encompasses documents that are responsive to the topics and subject matter areas addressed in FERC Staff's Supplemental Second Data Request served on August 7, 2023, including, without limitation, documents concerning: (i) gas nomination practices undertaken through or in coordination with Dunmore Midstream Partners LP; (ii) trader compensation structures, including incentive compensation plans, bonus calculations, and performance metrics applicable to personnel on the MISO trading desks; and (iii) internal communications regarding bidding strategy in the MISO day-ahead and real-time energy markets during the relevant time period.
D. Date Range of Responsive Documents
The documents contained in this second production span the date range of January 1, 2021 through May 22, 2023. This date range is consistent with the agreed-upon collection parameters discussed during the July 5, 2023 meet-and-confer and subsequently confirmed in correspondence between counsel.
II. Production Format and Processing
Consistent with the production format agreed upon between C&H and FERC Staff, the documents in this second production are produced in native format where feasible. Where native format production was not feasible — for example, in the case of certain hard-copy documents, handwritten notes, and legacy file formats — documents have been produced as single-page TIFF images accompanied by extracted text files and metadata load files. The production format is identical to the format in which the first production was submitted on July 24, 2023.
Electronic processing, de-duplication, hosting, and production of documents were managed by Crestline Document Solutions LLC, located at 1400 Smith Street, Suite 2100, Houston, TX 77002. Crestline served in this same capacity for the first production and has maintained consistent processing parameters and quality control protocols throughout the engagement.
This production is accompanied by a Ashgrove Technologies-compatible load file and a comprehensive document-level index identifying each document by: (i) Bates number or Bates range; (ii) custodian; (iii) document date; (iv) author; (v) recipients (including "To," "CC," and "BCC" fields for email communications); and (vi) document type. The document-level index is provided in both .dat and .csv formats for FERC Staff's convenience.
III. Privilege Withholdings and Redactions
Certain documents collected from the identified custodians that are responsive to the First Data Request and/or the Supplemental Second Data Request have been withheld in their entirety, or produced in redacted form, on the basis of the attorney-client privilege and/or the work product protection doctrine. These withholdings and redactions are consistent with the legal bases for privilege asserted in C&H's response letter to the First Data Request dated July 17, 2023, and are made in accordance with applicable law and Commission precedent.
A supplemental set of privilege log entries is being provided concurrently with this second production. These supplemental entries update the master privilege log previously submitted to FERC Staff in connection with the first production, and they cover all newly identified privileged documents falling within the Bates range of this second production (DUNMORE-048201 through DUNMORE-111600). The supplemental privilege log entries include the following information for each withheld or redacted document:
• Bates number or Bates range of the withheld or redacted document;
• Date of the document;
• Author of the document;
• All recipients of the document;
• Document type (e.g., email, memorandum, presentation, instant message);
• Subject matter description sufficient to enable assessment of the privilege claim without disclosing privileged content; and
• Privilege basis asserted (i.e., attorney-client privilege, work product protection, or both).
Dunmore and C&H reserve all rights with respect to any and all privilege assertions, including the right to supplement or amend the privilege log as warranted upon further review of the document collection.
IV. Confidentiality Designations
Certain documents included in this second production contain commercially sensitive, proprietary, or confidential business information pertaining to Dunmore's trading strategies, positions, financial condition, contractual relationships, personnel matters, and operational processes. Such documents have been designated as "CONFIDENTIAL" pursuant to 18 C.F.R. § 1b.9 and bear a corresponding confidentiality stamp. FERC Staff is respectfully requested to maintain the confidentiality of all documents so designated, and to treat such materials in accordance with the Commission's regulations governing the handling of non-public information in the context of non-public investigations, including the restrictions set forth in 18 C.F.R. § 1b.9 and applicable Commission orders. To the extent that any document designated as "CONFIDENTIAL" in this production is sought to be disclosed, referenced, or used in any public proceeding, Dunmore respectfully requests advance notice and an opportunity to seek appropriate protective treatment from the Commission.
V. Ongoing Production Obligations
Dunmore's document review and production efforts are ongoing. The Company's counsel and document review teams continue to process and review potentially responsive materials from the identified custodians, and Dunmore continues to search for and collect additional materials that may be responsive to the outstanding data requests.
Dunmore anticipates that additional responsive documents will be produced in a subsequent third production. Counsel for Dunmore will notify FERC Staff regarding the expected timing of the third production as the review process progresses. Dunmore will supplement its production as warranted to ensure that its document production obligations in this matter are fulfilled in a complete and timely manner.
VI. Reservation of Rights
This second production is made subject to, and without waiver of, any and all general and specific objections set forth in C&H's letters dated July 17, 2023 (in response to the First Data Request) and August 18, 2023 (in response to the Supplemental Second Data Request). Nothing in this production or this cover letter shall be construed as a waiver, limitation, or narrowing of any such objection. Dunmore expressly reserves the right to assert additional objections as may be appropriate in connection with any further data requests, subpoenas, or other compulsory process issued in this investigation.
Furthermore, the production of any document in this or any other production in this matter does not constitute an admission as to the relevance, materiality, authenticity, or admissibility of such document. The production of any document does not constitute a waiver of any applicable privilege, protection, or immunity, including the attorney-client privilege and the work product protection doctrine. In the event that any document protected by the attorney-client privilege, the work product doctrine, or any other applicable privilege or protection is inadvertently produced in this or any other production, such inadvertent production shall not be deemed a waiver of the applicable privilege or protection under any circumstances, and Dunmore reserves all rights to assert clawback of such materials pursuant to Federal Rule of Evidence 502(b) and any other applicable authority. Upon identification of any inadvertently produced privileged material, Dunmore will promptly notify FERC Staff and request the return or destruction of such material, and FERC Staff shall be obligated to comply with such request in accordance with applicable law and Commission regulations.
Should FERC Staff have any questions regarding this production, the accompanying privilege log entries, or any other aspect of Dunmore's document production in this matter, please do not hesitate to contact me directly at (713) 655-2418 or at hbrinkley@calderwoodharkness.com, or contact Catherine Bloom, the responsible partner on this matter, at (713) 655-2405 or at cbloom@calderwoodharkness.com. We are available to meet and confer at FERC Staff's convenience to discuss any issues that may arise.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Hannah Brinkley Lead Associate 1001 Fannin Street, Suite 4200 Houston, TX 77002 Tel: (713) 655-2418
Email: hbrinkley@calderwoodharkness.com
On behalf of Dunmore Energy Holdings Ltd. and Dunmore Power Trading LLC
cc:
Catherine Bloom, Calderwood & Harkness LLP Alan Ngo, Calderwood & Harkness LLP Martin Llewellyn, General Counsel, Dunmore Energy Holdings Ltd. Rhonda Vasquez, VP Regulatory Affairs, Dunmore Energy Holdings Ltd. Christine Pham, Senior Attorney, Division of Investigations, FERC Office of Enforcement
Enclosures:
1. Second Document Production (DUNMORE-048201 through DUNMORE-111600; 63,400 documents)
2. Supplemental Privilege Log Entries
| Production | Date | Documents Produced | Bates Range |
| First Production | July 24, 2023 | 48,200 | DUNMORE-000001 through DUNMORE-048200 |
| Second Production | August 21, 2023 | 63,400 | DUNMORE-048201 through DUNMORE-111600 |
| Cumulative Total | — | 111,600 | DUNMORE-000001 through DUNMORE-111600 |