PG&E Gets More Info for Its Criminal Defense

     SAN FRANCISCO (CN) – Uncle Sam must deliver more documents to Pacific Gas & Electric in its criminal case that claims PG&E willfully violated regulations before the disastrous 2010 pipeline explosion in San Bruno, Calif.
     Pacific Gas and Electric was indicted in July 2014 on 27 counts of violating the Natural Gas Pipeline Safety Act.
     Prosecutors claim PG&E willfully violated safety standards by not maintaining proper records, failing to identify threats, and failing to fix parts of the pipeline.
     Pacific Gas & Electric is the largest utility company in California.
     The Sept. 10, 2010 explosion killed eight people, injured 58, and leveled 38 homes. The California Public Utilities Commission in April this year fined PG&E $1.6 billion.
     In a hearing this month in the federal criminal case, PG&E asked the court to compel more discovery .
     U.S. District Judge Thelton Henderson agreed Monday that PG&E was entitled to certain discovery materials.
     PG&E asked for documents from audits of other pipeline operators regarding the regulations that PG&E allegedly violated, including evidence that the other operators were not given warning letters or subjected to criminal allegations for actions similar to PG&E’s.
     Henderson agreed that a “government organization’s decision not to bring enforcement action against other individuals in circumstances similar to a defendant’s is evidence that the defendant’s behavior conformed with the law.”
     PG&E claimed that the regulations at issue are ambiguous, so its employees could not have willfully violated them.
     “The question of whether the regulations at issue in this case are so unclear as to preclude a finding of willfulness is not now before the court. Rather, the question is whether the agency statements regarding these regulations to other pipeline operators, and evidence of other operators’ interpretations of these regulations, are material to the preparation of PG&E’s defense. The answer is certainly ‘yes,'” Henderson wrote.
     Communications to other operators from Pipeline and Hazardous Materials Safety Administration – a division of the U.S. Department of Transportation that had regulatory authority over PG&E before and after the explosion -could prove useful to PG&E’s defense.
     The PHMSA will not be overly burdened by the request so long as it is done in a phased disclosure process that includes only relevant documents since 2004, Henderson said.
     He also ordered the government to review the requests it made to the CPUC, to ensure that it sought all information relevant to this case, both inculpatory and exculpatory.
     But PG&E failed to show that it had a particularized need for disclosure of materials related to the grand jury that returned the indictment and superseding indictment against the company, Henderson found.
     PG&E offered several theories on how the government might have omitted relevant information or misstated evidence to the jury, but its “speculation about what happened in front of the grand jury is not sufficient to overcome the presumption of secrecy for these materials,” Henderson wrote.
     PG&E is entitled to the dates that the relevant grand juries were impaneled and excused, and the empaneling instructions, since these are ministerial records that are not entitled to secrecy.
     However, it is unclear whether the legal instructions provided to the grand jury are necessarily separate from the substance of the grand jury’s deliberations and whether they can be disclosed without compromising the secrecy of the grand jury’s deliberations, Henderson said.
     He ordered the government to submit the instructions it gave to the grand jury for in-camera review, after which he will determine whether production of the documents to PG&E is appropriate.
     Finally, Henderson found that the government’s offer to make its witness interview notes available for review by the defense for a reasonable time at the U.S. Attorney’s Office is sufficient.
     Henderson was not persuaded by PG&E’s argument that the documents should be produced, instead of merely disclosed, because the company might need them readily available for trial preparation.
     Official copies of any specified documents PG&E intends to use at trial can be requested after the review, Henderson said.

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