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Saratoga County Water Authority - Ruling 3, May 11, 1995

Ruling 3, May 11, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
------------------------------------------------------------
In the Matter of the Application of
SARATOGA COUNTY WATER AUTHORITY
for a Water Supply Permit pursuant to Environmental
Conservation Law (ECL) Article 15, Title 15 and Title 6
of the Official Compilation of Codes Rules and
Regulations of the State of New York (6 NYCRR) Part 601

RULING on
Companies' Request to Require Use of Prefiled Testimony

File No. 5-4100-22-1
WATER SUPPLY APPLICATION NO. 8858
------------------------------------------------------------

PROCEEDINGS

By letter of Usher Fogel, Esq., dated May 1, 1995 (received in the Office of Hearings May 2, 1995), Saratoga Water Services, Inc., and Luther Forest Corporation (collectively, the Companies) requested that prefiled written testimony be ordered for all expert witnesses in this proceeding. Applicant's objection to this was received May 9, 1995. Staff took no position on the request.

THE COMPANIES' POSITION

Based on discovery, the Companies contend that approximately 9 expert witnesses will be called to testify at the adjudicatory hearing. The testimony would involve complex technical areas including engineering design of water distribution systems, water quality and capacity needs, utility ratemaking, water system economics, and other highly specialized areas. It is argued that prefiling the testimony will be more efficient and consume less time than oral presentation, and enable the parties to fully understand and analyze the sponsoring parties' positions, resulting in a more understandable record that will enhance the commissioner's ability to arrive at a final ruling.

THE APPLICANT'S POSITION

Applicant objects to any requirement that experts pre-file their testimony (calling it "canned" testimony), contending that appearance of the witnesses before the hearing officer will provide fuller disclosure. Applicant contends that while many issues are technical in nature, they go beyond the technicalities involved and cannot be resolved upon a technical presentation. Applicant noted that this issue is one of great public interest, pointed to the public's displeasure with the use of pre-filed testimony in the rate case before the Public Service Commission, and argued that the public should have the opportunity to be present at hearings at which the technical experts present their testimony and be cross-examined in person.

Applicant views this matter as a transfer application which should be handled on the basis of a technical review, with answers based on expert reports.

DISCUSSION

Prefiled testimony has long held a recognized place in DEC hearings. Traditionally it has been employed when, in the discretion of the ALJ, it will aid in narrowing the issues and not unduly delay the proceedings. It's used to improve the hearing process, to make it proceed more efficiently and to clarify the record -- for the benefit of not only the litigants and decisionmaker, but the reviewing public as well. The hearing regulation governing prefiled testimony, 6 NYCRR 624.7(e), provides as follows:

"The ALJ may require the submission of prefiled written testimony for expert witnesses. Such testimony must be attested to at the hearing and the witness must be available to be cross-examined on the testimony, unless otherwise stipulated by the parties and directed by the ALJ. Whenever the ALJ requires the submission of prefiled testimony, the testimony must provide, or must be accompanied by a technical report which provides, a full explanation of the basis for the views set forth therein, including data, tables, protocols, computations, formulae, and any other information necessary for verification of the views set forth, as well as a bibliography of reports, studies and other documents relied upon. Upon ten days notice (which time may be shortened or extended by the ALJ) the party submitting prefiled testimony may also be required to make available all raw data, well logs, laboratory notes, and other basic materials, as well as all items on the bibliography provided. Whenever prefiled testimony is not required, any party may demand, from any other party or the department propounding an expert witness, all backup information that would be required in connection with prefiled testimony."

The prefiling of testimony does not shield the hearing process from public scrutiny. With the possible exception of proprietary business information, prefiled testimony would be part of the Office of Hearings file which is available for public review. Thus, the hearing process remains open to the public.

Prefiled testimony can help the parties to better understand the positions of their adversaries, and contribute to a more developed hearing record. A goal of pre-filed testimony is to ensure that there are "no surprises" at the hearing itself.

However, prefiled testimony is not needed to ensure the goal of "no surprises" at hearing. That may be accomplished through discovery.

Per §624.7(b)(2), parties have a right to discover all the information that CPLR §3101(d)(1) would require to be disclosed. Such discovery includes the "substance of the facts and opinions on which each expert is expected to testify ... and a summary of the grounds for each expert's opinion" (CPLR 3101(d)(1)(i)). With reference to this provision of the CPLR, "[t]he statutory purpose is clear. Upon request there must be full disclosure of expert opinion testimony." Salander v Central General Hospital, 130 Misc. 2d 311, 315 (Sup. Ct. Nassau Co., 1985).

The DEC hearing regulations at §624.7(e) go even further:

"Whenever prefiled testimony is not required, any party may demand, from any other party or the department propounding an expert witness, all backup information that would be required in connection with prefiled testimony."

and

Such "backup information that would be required in connection with prefiled testimony" includes the "technical report" containing:

"a full explanation of the basis for the views set forth therein including data, tables, protocols, computations, formulae, and any other information necessary for verification of the views set forth, as well as a bibliography of reports, studies and other documents relied upon."

and

"all raw data, well logs, laboratory notes, and other basic materials, as well as all items on the bibliography provided."

Presumably this information has already been requested and has either been disclosed or is in the process of being disclosed. The parties are expected to disclose "experts and expert testimony sufficiently in advance of the date of trial so as to prevent surprise and undue prejudice to the other side." Salander, above, at 316. To the extent this has not been done already, the parties are expected to do so as soon as possible. Sufficient and proper disclosure should permit the parties to thoroughly analyze and prepare for each other's cases, and render prefiled testimony unnecessary for that purpose. With discovery continuing, it would be premature to order prefiled testimony now.

In this case, it is also not clear that using prefiled testimony will result in narrowing the issues and avoiding delay. Based on the Companies' motion to preclude witnesses previously addressed, questions have already been raised regarding the relevancy of some of the testimony expected to be produced. Prefiled testimony might either have to be redacted or clarified in some fashion. It would be easier and more efficient to address these issues as the testimony comes in, rather than have to "redo" something previously produced.

At this point, I cannot see sufficient benefits from prefiled testimony to justify ordering it.

RULING

The Companies' request that prefiled written testimony be ordered for all expert witnesses in this proceeding is denied.

May 11, 1995
Albany, New York

__________/s/___________
Frank Montecalvo
Administrative Law Judge

To: Official Service List (5/10/95)

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