On July 29, FERC filed an opposition to the brief on discovery filed by Richard Silkman and CES in the U.S. District Court for the District of Maine. In early July, Silkman and CES submitted a brief outlining the discovery they seek in the case, as directed by the judge during a scheduling conference. In opposing the discovery, FERC argues that the respondents have been provided with “all of the hallmarks of administrative procedure and due process,” including an adjudication before an unbiased decision-maker, notice and an opportunity to be heard. In addition, FERC claims that the respondents could have sought particular documents or testimony before FERC, but they did not, so these requests have been waived. Finally, FERC claims that the respondents’ discovery requests are premature, as the administrative record should be reviewed before determining whether any of the exceptions to the general rule against supplementation of the record may be present.
On August 8, Silkman and CES filed a response. Silkman and CES argue that all they are seeking is basic discovery—a right afforded under the Rule 1 of the Federal Rules of Civil Procedure “in all civil actions and proceedings in the United States district courts,” except for certain delineated exceptions (none of which apply). They note that FERC is trying to avoid fact-finding by attempting to cast the proceeding as judicial review on an administrative record, which it plainly is not.