UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION

San Diego Gas & Electric Company,		)
							)
			Complainant,			)
							)
		v.					)	Docket No. EL00-95-045
							)
Sellers of Energy and Ancillary Service Into	)
Markets Operated by the California		)
Independent System Operator Corporation	)
and the California Power Exchange,		)
							)
			Respondents.			)
							)
							)
Investigation of Practices of the California	)	Docket No. EL00-98-042
Independent System Operator and the		)	 
California Power Exchange				)

THIRD SET OF DATA REQUESTS OF THE CALIFORNIA PARTIES 
TO DUKE ENERGY NORTH AMERICA, LLC AND DUKE ENERGY TRADING AND MARKETING, LLC

Pursuant to Rule 406 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (“FERC” or “Commission”), 18 C.F.R. § 385.406 (2001), the California Parties (collectively, the Attorney General for the State of  California, the California Electricity Oversight Board, the California Public Utilities Commission, Pacific Gas and Electric Company (“PG&E”), San Diego Gas & Electric Company (“SDG&E”), and Southern California Edison Company (“Edison”)) jointly request the production of the documents and other information described in these Data Requests from Duke Energy North America, LLC and Duke Energy Trading and Marketing, LLC. (collectively, “Duke Energy”).  
Please provide all written and documentary responses as they become available, and in any case, within 4 business days, or, November 29, 2001, as established at the August 13, 2001 Prehearing Conference in this proceeding.  Pursuant to Rules 385.406(b)(5) and 385.410(a) of the Commission’s Rules of Practice and Procedure, 18 C.F.R. §§ 385.406(b)(5) and 410(a), the California Parties request that if there are any objections to full compliance with these Data Requests, notice of each such objection should be given in writing as soon as reasonably possible, but no later than within 4 business days of the receipt of these Data Requests.
INSTRUCTIONS
1.	These data requests require the recipient to produce data and documents within its possession, custody, or control.  Possession, custody, or control includes constructive possession such that the recipient need not have actual physical possession.  As long as the recipient has a superior right to compel the production from a third party (including an agency, authority, or representative), the recipient has possession, custody, or control of the requested data and documents.

2.	For any responsive data or documents withheld on grounds of privilege or work product, the recipient must provide a schedule of items withheld and a statement of:

(a)	The character and specific subject matter of each item; and
(b)	The specific objection asserted for each item.

3.	The recipient is requested to produce the data and documents as they are kept in the normal course of business, and to organize and label them to correspond to these data requests.

4.	If a data request specifically seeks an answer or an explanation in response, rather than the production of documents, an answer or an explanation is required.  The production of documents alone is not sufficient.

5.	If the recipient does not now have data or documents responsive to a particular data request, but later obtain possession, custody, or control of such data or documents, the recipient is requested to furnish such data and/or documents immediately thereafter.

6.	If the recipient cannot respond to a data request completely, provide the answer to the extent possible, explain why the recipient cannot respond to the data request completely, and provide all information and knowledge in the recipient’s possession, custody, or control regarding the incomplete response.

7.	Each of these data requests shall be considered to be continuing in nature and to require supplemental responses when new, different, or further information that is the subject of the requests is obtained by the recipient.  For each supplemental response, the recipient should specify the date upon which such new, different, or further information was obtained, as well as from whom and by whom such information was obtained.

8.	If any data or document responsive to any data request is unavailable, identify the data or document, provide an explanation concerning why the data or document is unavailable, and state where the data or document can be obtained.

9.	If any data or document responsive to any data request has been destroyed and thus is not available, state when and explain why such data or document was destroyed, identify the person directing the destruction, and identify and produce all data and documents relevant to such destruction and explanation.  If a claim is made that the destruction occurred pursuant to the recipient’s document destruction program, identify and produce a copy of the guidelines, policy, or company manual describing such document destruction program, and any correspondence or communications relating to the destruction of responsive data, documents, records, or other information.

10.	For each data request, provide the names of all individuals responsible for providing the response and provide the certification of the response as required by Rule 403(c), 18 C.F.R. §  385.403(c) (2001).

11.	Please supply the requested data in machine readable form (preferably on IBM-PC compatible 3.5" 1.44 MB disks using Excel standard format) in addition to providing hard copy responses.

12.	For each document produced or identified in a response that is computer generated, state separately (i) what types of data, files, or tapes are included in the input and the source thereof, (ii) the form of the data that constitutes machine input (e.g., punch cards, tapes), (iii) a description of the recordation system employed (including program descriptions, flow charts, etc.), and (iv) the identity of the person who was in charge of the collection of input materials, the processing of input materials, the data bases utilized, and the programming to obtain the output.

13.	If, in the course of responding to these data requests, the recipient determines that any instruction, definition, or data request is ambiguous, contact counsel for the California Parties for any necessary clarification.
14.	Please provide a copy of each response to:

Joseph H. Fagan
Heller Ehrman White & McAuliffe LLP
1666 K Street, N.W.
Suite 300
Washington, D.C. 20006
(202) 912-2162
e-mail:  jfagan@hewm.com

Kermit R. Kubitz
Pacific Gas and Electric Company
77 Beale Street, 30th Floor
Post Office Box 7442
San Francisco, California 94120
(415) 973-2118
e-mail:  krk2@pge.com

Richard Saas
Steptoe & Johnson, LLP
1330 Connecticut Avenue, N.W.
Washington, DC  20036
(202) 429-6273
e-mail:  rsaas@steptoe.com

DEFINITIONS
	As used herein:

1.	Unless otherwise defined herein, terms used in these Requests shall have the same meaning as those set forth in the Master Definitions Supplements of the ISO and PX Tariffs, including the ISO’s July 10, 2001 compliance filing in Docket Nos. EL00-95-000, et al.

2.	“Document” is used in its broadest sense and shall mean and include all written, printed, typed, recorded, or graphic matter of every kind and description and all attachments and appendices thereto including, but not limited to all testimony, exhibits, memoranda, correspondence, forms, workpapers, information, data, reports (including drafts, preliminary, intermediate, and final reports), studies, surveys, analyses, tables, charts, summaries, graphs, tabulations, plans, books, publications, periodicals, photographs, maps, pamphlets, bulletins, notes, letters, diaries, computer print-outs, computer data and files, press releases, log sheets, ledgers, accounting statements, microfilms, microfiche, vouchers, diagrams, facsimiles, telegrams, telexes, messages, transcripts, accounting statements, or any other record, written, printed, typed, or recorded.

“Document” includes every copy of a document which contains handwritten or other notations or which otherwise do not duplicate the original or any other copy.

“Document” includes copies of documents, where the originals are not in your possession, custody, or control.

“Document” also includes any attachments or appendices to any document.

3.	“Person” means, without limiting the generality of its meaning, every natural person, partnership, association (whether formally organized or ad hoc), corporation, joint venture, or other legal business entity, as well as any governmental entity or agency.

4.	“Communication” means both written and oral communications of any kind, including, without limitation, letters, memoranda, telegrams, telexes, face-to-face meetings, and telephone conversations.

5.	A document that “refers to” or that “relates to” any given subject means any document that in whole or in part refers to, deals with, or is in any way pertinent to that subject, including without limitation, documents concerning the preparation of other documents.

6.	The singular form of a word shall be interpreted as plural, and the plural form of a word shall be interpreted as singular whenever appropriate in order to bring within the scope of these Data Requests any information or documents which might otherwise be considered beyond its scope.

THIRD SET OF DATA REQUESTS
OF THE CALIFORNIA PARTIES
24.	Dr. Scott A. Jones’ Testimony states that “[t]he fuel costs generators incurred by supplying the CAISO’s very short-term electricity demand were directly related to the high cost of acquiring spot gas supplies, not the average cost of gas, which is closer to the cost of fuel acquired under long-term contracts.”  Exhibit No. PPL-1 at 23.  
(a). Please provide the actual fuel costs incurred by Duke Energy’s California generating units in “supplying the CAISO’s very short-term electricity demand” between October 2, 2000 and June 20, 2001 (“Refund Period”).  In addition, please provide all documentation showing how these actual fuel costs were determined.  Please provide these costs on a daily, weekly and monthly basis during the Refund Period.
(b). What was Duke Energy’s California generating units’ cost of “acquiring spot gas supplies” to supply the California wholesale electricity markets during the Refund Period?  Please provide these costs on a daily, weekly and monthly basis during the Refund Period.
(c). Please identify all gas purchase contracts in effect during the Refund Period which Duke Energy’s California generating units could utilize for purposes of acquiring natural gas supplies to supply the California wholesale electricity markets.  For each such gas purchase contract, please provide: (a) the term of the contract; (b) the pricing mechanism(s); and (c) the quantity available under the contract.
(d).  Please identify all gas sales contracts in effect during the Refund Period which Duke Energy’s California generating units could utilize for purposes of selling natural gas supplies.  For each such gas purchase contract, please provide: (a) the term of the contract; (b) the pricing mechanism(s); and (c) the quantity available under the contract.
25.	Section IV. of Dr. Scott A. Jones’ Testimony is entitled “Any Refunds Should Be Reduced To Reflect Reasonable Measures That The CAISO Could Have Taken To Reduce Its Exposure To Volatile Spot Market Prices.”  Exhibit No. PPL-1 at 29.  Dr. Jones’ Testimony states further that “[t]he high prices that the California parties are seeking to avoid through their refund claim could have been substantially reduced or even eliminated had action been taken [by the ISO] to hedge price soon enough and completely enough in the California electricity market.”  Exhibit No. PPL-1 at 31. 
(a). Did Duke Energy and/or its California generating units take any “measures” during the Refund Period to “reduce its exposure to volatile [natural gas] spot market prices,” including, but not limited to, engaging in, and/or entering into, any hedging and/or forward contracting arrangements and/or strategies?
(b). If so, please identify these measures.
(c). Please provide any documents that identify, discuss, propose, or analyze such measures that Duke Energy and/or its California generating units took with respect to reducing its exposure to natural gas spot market prices during the Refund Period.