Global Project Finance > Tax Equity Telegraph > Discovery Order Issued in “SolarCity” Cash Grant Litigation — Treasury to Provide Benchmarking Materials
14 Oct '14

On October 6, 2014, Judge Eric G. Bruggink of the U.S. Court of Federal Claims issued an order on the disputed production of documents and interrogatory responses requested from the U.S. Department of the Treasury by plaintiffs, investors in cash-grant-eligible solar projects sponsored by SolarCity, in connection with their challenge to Treasury’s calculation of their Section 1603 cash grant awards.  Judge Bruggink heard oral argument on the discovery disputes on August 29, 2014.  That hearing is covered in a September 3 blog post, which also references earlier posts providing background and early developments in the case.

Consistent with his rulings issued from the bench during the August 29 oral argument, Judge Bruggink ordered Treasury to produce documents sufficient to identify the “benchmark” or “threshold” amounts it used in evaluating Section 1603 solar project applications and, to the extent such benchmarks were higher than the amounts claimed in plaintiffs’ applications, documents sufficient to identify how such benchmarks were derived.  He also ordered Treasury to produce all documents and information, including materials submitted by third parties in connection with the Section 1603 program, upon which Treasury relied in evaluating plaintiffs’ Section 1603 applications.

Plaintiffs’ other document requests and interrogatories were denied.  Accordingly, except for materials related to the review and adjustment of plaintiffs’ applications, Treasury is not required to produce other third-party documents and information requested by plaintiffs (e.g., information on adjustments made to comparable third-party applications).  Treasury also does not have to provide information regarding the development of its general screening policies or its benchmarks that were below the amounts claimed by plaintiffs in their applications.  The full text of the order is available here.

The order extended the deadline for fact discovery to March 27, 2015, and scheduled expert discovery to conclude on or before August 7, 2015.  With expert discovery not scheduled to conclude until August 7, which will be followed by the scheduling and holding of a trial, an opinion on the merits is unlikely until sometime in 2016 at best.