PG&E Demands Records From Private Eyes

SAN FRANCISCO (CN) — A week before trial begins for the fatal San Bruno pipeline explosion, Pacific Gas and Electric told a federal judge it needs two private investigators to turn over records that are vital to its defense.
PG&E attorneys told U.S. District Judge Thelton Henderson on Monday that they need six years of emails, invoices and other documents from two government-hired consultants who helped gather evidence used to indict the utility giant in 2014.
The records will contradict government claims that the regulations PG&E is accused of violating were clear, and that it knowingly violated them, PG&E attorney Margaret Tough said.
“A criminal defendant is entitled to this discovery, and we’re not getting it,” Tough told the judge.
The Sept. 9, 2010 explosion in San Bruno killed eight people, injured at least 66, leveled 38 homes and damaged many more.
PG&E says it plans to call both private investigators — Margaret Felts and David Berger — as witnesses during the criminal trial.
The federal government and California Public Utilities Commission oppose the subpoenas, calling PG&E’s request “a fishing expedition,” and arguing that the information sought is irrelevant and privileged attorney work product.
The CPUC retained Berger and Felts as expert witnesses in multiple cases before the feds hired them to work on the PG&E investigation, according to court filings.
In its motion to quash the Berger and Felts subpoenas, the CPUC said granting the requests could make it harder for the state regulator to retain witnesses, for fear they “could be punished” by “voluminous data requests” such as PG&E has demanded.
“What is the relevance of all these documents?” CPUC attorney Harvey Morris asked in the Monday hearing.
“They want to do all this work so they can call [Felts] up and impeach her, but she’s not a witness for the prosecution. Neither her nor Mr. Berger are prosecution witnesses.”
Because PG&E has said its defense hinges on whether the charged regulations were clear and understandable, Henderson asked whether the private eyes could testify on that issue, “and if not, why not?”
U.S. government attorney Philip Kopczynski said that because the private investigators did not write or enforce the regulations, their opinions on the clarity of the rules are irrelevant.
But Tough said Henderson settled that question a year ago, when he ordered the government to turn over documents on the clarity and understanding of the rules.
Henderson wasn’t so sure. “I didn’t say you could go get that guy who sleeps across the building and ask him what he thinks,” he said.
Tough said the private eyes are not some “random stranger on the street,” but people hired by the government and the CPUC, “precisely to evaluate PG&E’s compliance with the regulations.”
After about an hour of debate, Henderson ended the hearing with no clear indication on how he might rule.
The trial subpoena request coincides with PG&E’s motion for sanctions against the U.S. Attorney’s Office, alleging prosecutorial misconduct. PG&E says the government withheld until after its discovery deadline more than 600,000 pages of documents “that bring into question the accuracy of many statements” the government made to the court and grand jury.
PG&E has also accused the government of improperly sharing secret grand jury information with its private investigators.
Henderson in May barred the government from presenting photos, videos and testimony about the explosion or the deaths and injuries it caused, finding it could prejudice the jury.
PG&E faces 12 counts of violating the U.S. Pipeline Safety Act and one count of obstructing an investigation of the explosion.
The trial, pushed back twice since its original March 22 start date, is scheduled to begin on Tuesday, June 14.

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