Inside FERC Quotes David Applebaum on Discovery Issue in Enforcement Cases

David Applebaum, a partner in the energy regulation, markets and enforcement practice at Akin Gump, has been quoted by Inside FERC in the article “CFTC, FERC officials assess enforcement path ahead with new leadership.” The article reports on a recent Energy Bar Association forum at which officials from the Commodity Futures Trading Commission and the Federal Energy Regulatory Commission spoke about the future of enforcement at both agencies.

Also discussed in the article is whether discovery should be allowed in Federal Power Act (FPA) enforcement cases that reach the federal courts. FERC, the article notes, has argued that courts should rely on the extensive administrative record developed at the commission for such cases, but recent decisions have found that the Federal Civil Rules of Procedure along with discovery are warranted.

Applebaum said the scope of discovery is a case-specific inquiry and will play itself out on a case-by-case basis. He added that parties in some of the cases are in the middle of negotiations over what sort of discovery should be permitted.

Due to the newness of these types of FPA cases, in comparison for instance to those pursued by the Securities and Exchange Commission, it is understandable, Applebaum added, that the government and the defendants are in court over how the civil litigation will proceed.