PENNSYLVANIA PUBLIC UTILITY COMMISSION Electronic Access to Pre-Served Testimony [43 Pa.B. 595]
[Saturday, January 26, 2013]Public Meeting held
January 10, 2013Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; Wayne E. Gardner; James H. Cawley; Pamela A. Witmer
Electronic Access to Pre-Served Testimony;
Doc. No. M-2012-2331973Implementation Order By the Commission:
The Pennsylvania Public Utility Commission (Commission) has identified the need to provide Commission staff, as well as parties of record in an adjudicatory proceeding, electronic access to parties' pre-served testimony through the Commission's case and document management system. In order to accommodate this need, parties serving pre-served testimony in proceedings pending before the Commission pursuant to 52 Pa. Code § 5.412(f) shall be required, within thirty (30) days after the final hearing in an adjudicatory proceeding (unless such time period is otherwise modified by the presiding officer), to either eFile with or provide to the Secretary's Bureau a Compact Disc (CD) containing all testimony furnished to the court reporter during the proceeding. This Implementation Order (Order) will set forth the specific procedures to be followed, for a one-year pilot period, for such electronic submission of testimony.
Background
The Commission's regulations proscribe the method by which pre-served testimony is to be handled during an adjudicatory proceeding as follows:
§ 5.412. Written Testimony.
(f) Service. Written testimony shall be served upon the presiding officer and parties in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Secretary.
52 Pa. Code § 5.412(f). Pursuant to this regulation, pre-served testimony is served on the parties and the presiding officer involved in an adjudicatory proceeding but is not filed with the Commission at the time of service. Id. At the time of service, parties merely file a certificate of service for the pre-served testimony with the Secretary's Bureau. Id. The Commission then receives only paper copies of admitted testimony from the court reporter following the close of the record in adjudicatory proceedings. Due to the voluminous nature of the testimony provided to the Commission and the fact that it is usually bound and stapled, the Commission is currently unable to efficiently scan testimony documents into the Commission's database.
On November 8, 2012, the Commission issued a Secretarial Letter (November 8th Secretarial Letter) proposing that parties serving pre-served testimony in proceedings pending before the Commission pursuant to 52 Pa. Code § 5.412(f) be required, within five (5) days after the final hearing in an adjudicatory proceeding,1 to either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter during the proceeding. The November 8th Secretarial Letter also proposed that parties would not be required to serve other parties in the proceeding with electronically submitted testimony again when it is eFiled or a CD is provided to the Secretary's Bureau because the parties would have already previously received a copy of such testimony during the initial filing made pursuant to 52 Pa. Code § 5.412(f). The November 8th Secretarial Letter specifically noted that this proposed practice would provide Commission staff with electronic access to parties' testimony through the Commission's case and document management system.
The November 8th Secretarial Letter also solicited comments from interested parties and stakeholders. Comments to the November 8th Secretarial Letter were filed by the Pennsylvania Department of Transportation (PennDOT); the Office of Consumer Advocate (OCA); PECO Energy Company; Eckert Seamans Cherin & Mellott, LLC (Eckert Seamans); and, jointly, Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company and West Penn Power Company (collectively, First Energy Companies). We will address those comments in this Order.
Discussion
In this section of the Order, the Commission will outline the details of electronic submission for pre-served testimony by addressing the comments filed in response to the November 8th Secretarial Letter. The requirement for parties, within thirty (30) days after the final hearing in an adjudicatory proceeding (unless such time period is otherwise modified by the presiding officer), to either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter becomes effective with the entry of this Order. This requirement to submit electronic testimony will be implemented as a pilot project for a period of one year.
1. Submission of Testimony Modified During an Adjudicatory Proceeding
Several of the comments provided in response to the November 8th Secretarial Letter, including comments filed by the OCA, Eckert Seamans and the First Energy Companies, raised questions regarding the filing procedures for testimony that is modified during an adjudicatory proceeding. Initially, we reiterate that the purpose of the electronic submission of testimony is to provide Commission staff and parties of record with electronic versions of the testimony documents that the Commission currently receives in paper form from the court reporter. With that purpose in mind, it follows that the electronically submitted testimony should be an exact copy of the testimony that was submitted to the court reporter during the hearing(s) in an adjudicatory proceeding.
The Commission is aware that the presiding officers maintain different practices regarding the submission of testimony containing words and/or provisions that have been stricken at hearing. As such, the testimony required to be electronically submitted should match exactly the copy of the testimony that the presiding officer has required be submitted to the court reporter during the hearing. For example, if an ALJ requires parties to make hand-marked modifications to testimony to reflect that which was stricken during the hearing before submitting such testimony to the court reporter, the parties should electronically submit to the Commission a copy of the testimony reflecting such modifications.2 Similarly, if an ALJ does not require parties to make modifications to testimony to reflect that which was stricken during the hearing before submitting such testimony to the court reporter, the parties should electronically submit to the Commission an un-marked copy of the testimony.3 Testimony that is not admitted during the hearing should not be electronically submitted to the Commission.
In addition to the testimony that is electronically submitted to the Commission either by eFiling or by the submission of a CD, during the one-year pilot period, the Commission will continue to require parties to submit two paper copies of such testimony to the court reporter at hearing. As we become more comfortable with the electronic submission process, we will re-evaluate the need to continue to require paper copies of testimony to be submitted to the court reporter. Parties are not, however, required to serve other parties in the proceeding with the electronically submitted testimony again when it is eFiled or a CD is provided to the Secretary's Bureau.4
Parties are also not required to file or provide the relevant transcript pages that correspond with the corrections, if any, made to the electronically submitted testimony. Similarly, parties are not required to file or provide an ''errata sheet'' showing any corrections, if any, that have been made to the testimony during the hearing. We note that parties may, however, file with the Commission and/or provide such transcript pages and/or errata sheets to other parties in the proceeding on a voluntary basis.
2. Form of Testimony Documents for Electronic Submission
The requirement for electronic submission, either by eFiling or the submission of a CD, is limited to pre-served testimony documents.5 In their comments, Eckert Seamans suggested that the electronic submission requirement also include the exhibits attached to such pre-served testimony documents. Rather than expanding the electronic submission requirement to include exhibits, the Commission has determined that parties may voluntarily submit electronic versions of any and all exhibits that are physically attached to pre-served testimony during the one-year pilot period.6 After the one-year pilot period, we will reevaluate whether the Commission should require parties to electronically submit all exhibits and/or those exhibits physically attached to pre-served testimony.
Pre-served testimony must be electronically submitted, either by eFiling or submitting a CD to Secretary's Bureau, in Portable Document Format (PDF). Currently, documents may only be filed on the Commission's eFiling system in PDF format.7 For this one-year pilot period, the Commission will similarly require all testimony electronically submitted on CD to the Secretary's Bureau to be in PDF format.8
Consistent with the Commission's current eFiling procedures, parties must upload one eFiled document at a time. As such, each piece of pre-served testimony should be separately eFiled on the Commission's website. In contrast, parties electronically submitting pre-served testimony on a CD to the Secretary's Bureau may load all testimony documents onto one CD (pending file size limitations).9 For consistency purposes, all pre-served testimony, whether eFiled or submitted by CD, should be labeled as follows: ''Direct Testimony of _____ '' and/or ''Rebuttal Testimony of _____ .''
3. Time of Electronic Submission
As previously noted, the November 8th Secretarial Letter initially proposed to require parties to either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter within five (5) days after the final hearing in an adjudicatory proceeding. Based on further internal review and in response to comments filed by the OCA, the Commission has determined that parties shall either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter within thirty (30) days after the final hearing in an adjudicatory proceeding, unless such time period is otherwise modified by the presiding officer.
Extending the electronic submission deadline from five days to thirty days after the final hearing alleviates the OCA's concern that transcripts of the proceeding may not necessarily be available within five days after a final hearing. Requiring parties to electronically submit their testimony within thirty days after the final hearing provides parties sufficient time to consult the transcript and accordingly make any necessary modifications to testimony, if required by the presiding officer, before electronically submitting such testimony to the Commission.10 This extension of the electronic submission deadline also does not impact our internal need for electronic access to this testimony by advisory staff.
Although not originally proposed in the November 8th Secretarial Letter, the Commission has determined that the electronic submission time period may be modified by the presiding officer. This modification procedure will allow presiding officers to appropriately accommodate for situations which would require a modified time period for obtaining electronic access to testimony (including but not limited to access during expedited proceedings).
4. Electronic Submission of Confidential or Proprietary Testimony
Several of the commentators, including PennDOT, the OCA and Eckert Seamans, expressed concern regarding the electronic submission of confidential or proprietary testimony. The Commission recognizes the need to limit electronic access to confidential and proprietary testimony to the appropriate internal advisory staff within the Commission. As the Commission does not currently have the capability to limit internal access to eFiled documents, the Commission will require parties to submit confidential or proprietary testimony on a separate CD to the Secretary's Bureau during the one-year pilot period. During the pilot period, we will continue to evaluate whether our eFiling system can be modified to limit internal access to electronically submitted documents to appropriately accommodate for the eFiling of confidential and proprietary testimony.
In addition to raising concerns regarding the electronic submission of confidential and proprietary testimony, the OCA also asked whether the Commission will require parties to redact confidential information before electronically submitting such testimony. Again, we reiterate that that the purpose of the electronic submission is to provide Commission staff and parties of record with electronic versions of the testimony documents that the Commission currently receives in paper form from the court reporter. Accordingly, whatever, if any, redaction measures are currently being taken by parties prior to submitting confidential testimony to the court reporter should be followed when electronically submitting testimony.
5. Confirmation and Vertification that Proper Testimony Documents have been Electronically Submitted
In response to the November 8th Secretarial Letter, the OCA and Eckert Seamans inquired as to how parties would be able to verify and confirm that other parties in the proceeding have electronically submitted proper testimony documents to the Commission within the required period of time. Initially, we note that because parties of record will have electronic access to such testimony through the Commission's case and document management system,11 parties will have the capability to review the testimony electronically submitted by other parties in the proceeding to ensure that it is consistent with what was admitted into the official record.12 If a party discovers that another party has electronically submitted improper testimony documents to the Commission, that party may raise such concern with the presiding officer in the proceeding.13 In addition to being able to review testimony that has been electronically submitted, parties of record are also able to receive daily action alerts and to review daily action records on the Commission's database to ensure that other parties in the proceeding have electronically submitted testimony with the required time period.14
In addition to confirmation and notification issues, the OCA specifically raised the issue of whether parties should be required to submit a verification with their electronically submitted testimony to ensure that such testimony is consistent with the testimony admitted into the official record. Because all parties of record in the proceeding will have electronic access to verify that electronically submitted testimony from other parties is consistent with that admitted into the record, we do not anticipate there will be any issues with parties submitting improper testimony. Accordingly, during the one-year pilot period, parties will not be required to submit a verification with electronically submitted testimony. If we find during the pilot period that parties are intentionally submitting testimony that is not consistent with the testimony admitted into the record, we will reevaluate the need to file a verification with electronically submitted testimony.
6. Access to Electronically Submitted Testimony
In the November 8th Secretarial Letter, we initially proposed to allow only Commission staff to have electronic access to pre-served testimony. Upon further internal review and based on the comments provided in response to such proposal, the Commission has determined that both Commission staff and all parties of record in an adjudicatory proceeding will have electronic access to testimony. As previously mentioned, our advisory staff is aware of the need to consult the transcript for purposes of determining which testimony has been admitted into the official record. Similarly, we are confident that parties of record in an adjudicatory proceeding are equally aware of the need for such consultation.15 Therefore, the Commission does not anticipate any issues to result from providing Commission staff or parties of record with electronic access to testimony.
As previously mentioned, any party desiring to electronically view testimony that has been electronically submitted to the Commission must obtain an eFiling account. If a party is incapable of obtaining an eFiling account with the Commission, such party would need to consult with the other parties in the proceeding to make arrangements for obtaining electronic access, whether by CD or other electronic transmission, to electronically submitted testimony.16
Some of the commentators responding to the November 8th Secretarial Letter proposed that in addition to Commission staff and parties of record, the public should also have electronic access to testimony after the expiration of the one-year pilot period. Although the Commission is confident that Commission staff and parties of record in a proceeding are aware of the need to consult the transcript for purposes of determining which testimony was admitted into the official record, we are not certain that the public is similarly aware of the need for such consultation. With this concern in mind, we will evaluate whether electronic access to testimony should be extended to the public at the end of the pilot period.
Conclusion
Requiring parties, within thirty days after the final hearing in an adjudicatory proceeding (unless such time period is otherwise modified by the presiding officer), to either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter during the proceeding will accommodate the need to provide Commission staff and parties of record electronic access to pre-served testimony through the Commission's case and document management system. Through this Order, the Commission sets forth the specific procedures to be followed for such electronic submission of testimony for a one-year pilot period. In the event the Commission determines that it will continue the implementation of the requirements set forth in this Order after the initial one-year pilot period, the Commission will notify the appropriate stakeholders and initiate a proposed rulemaking to reflect such new requirements; Therefore,
It Is Ordered That:
1. Parties serving pre-served testimony in proceedings pending before the Commission pursuant to 52 Pa. Code § 5.412(f) shall be required, within thirty (30) days after the final hearing in an adjudicatory proceeding (unless such time period is otherwise modified by the presiding officer), to either eFile with or provide to the Secretary's Bureau a Compact Disc (CD) containing all testimony furnished to the court reporter during the proceeding.
2. Both Commission staff and parties of record in an adjudicatory proceeding will have electronic access to testimony through the Commission's case and document management system during the one-year pilot period.
3. In addition to the testimony that is electronically submitted to the Commission either by eFiling or by the submission of a CD to the Secretary's Bureau, parties must continue to submit two copies of such testimony to the court reporter at the hearing during the one-year pilot period.
4. Parties are not required to serve other parties in the proceeding with the electronically submitted testimony when it is eFiled or a CD is provided to the Secretary's Bureau.
5. During the one-year pilot period, parties must electronically submit confidential or proprietary testimony on a separate CD to the Secretary's Bureau.
6. The requirements set forth in this Order shall be implemented as a pilot project for a period of one year from the entry date of this Order.
7. In the event the Commission determines that it will continue the implementation of the requirements set forth in this Order after the initial one-year pilot period, the Commission will notify the appropriate stakeholders and initiate a proposed rulemaking to reflect such new requirements.
8. A copy of this Order shall be published in the Pennsylvania Bulletin and posted on the Commission's website at www.puc.pa.gov.
9. A copy of this Order be served on the appropriate stakeholders in this matter.
ROSEMARY CHIAVETTA,
Secretary[Pa.B. Doc. No. 13-164. Filed for public inspection January 25, 2013, 9:00 a.m.] _______
1 As noted in the ''Time of Electronic Submission'' section below, based on further internal review and in response to comments filed by the OCA, the Commission has determined that parties shall either eFile with or provide to the Secretary's Bureau a CD containing all testimony furnished to the court reporter within thirty (30) days after the final hearing in an adjudicatory proceeding, unless such time period is otherwise modified by the presiding officer.
2 Prior to electronic submission of testimony documents, we request that parties revise testimony to reflect that which was stricken at hearing by either making hand-marked strikethroughs or electronic strikethroughs on the testimony. Parties should not, however, completely electronically delete testimony that has been stricken at hearing. This practice will allow the text of the electronically submitted testimony documents to remain on the same page as it appears on the testimony documents submitted to the court reporter.
3 Commission staff is aware of the need to consult the transcript for purposes of determining which testimony has been admitted into the official record.
4 The parties in the proceeding would have already previously received a copy of such testimony during the initial filing made pursuant to 52 Pa. Code § 5.412(f). Also, by this Order, we are noting that parties of record will be able to view the electronic submissions.
5 The electronic submission requirement does not apply to discovery requests or responses.
6 All exhibits not electronically submitted must be submitted to the court reporter in physical/paper form.
7 The Commission will create a qualified document labeled ''testimony'' for the purpose of eFiling pre-served testimony.
8 Comments submitted by the OCA suggest that the PDF documents electronically submitted to be ''searchable'' format. We note that all PDF documents can be converted electronically to become searchable documents.
9 Due to file size restrictions, parties may be required to submit multiple CD's containing testimony documents. Additionally, pursuant to 52 Pa. Code § 1.32(b)(3) and the Commission's Secretarial Letter regarding the Size of Qualified Documents and Paper Copy Requirements issued on August 16, 2012, testimony documents exceeding 10 megabytes in size may not be eFiled and must be electronically submitted to the Commission on a CD.
10 This practice contemplates a situation in which the presiding officer requires a party to make hand-marked changes to testimony prior to submitting such testimony to the court reporter. In the event the party does not have an additional copy of such testimony, to be used for electronic submission purposes, on which to make hand-marked changes, the party will need to consult the transcript to make hand-marked changes to testimony (matching those changes made at hearing) prior to electronic submission.
11 Parties of record wishing to view electronically submitted testimony will need to have an eFiling account with the Commission.
12 We note that under the current practice of only submitting paper copies of testimony to the court reporter at the hearing, parties do not have the opportunity to ensure that such paper copies of testimony are consistent with what was admitted into the record.
13 Even if a party were to improperly electronically submit testimony that was not admitted into the record, both Commission staff and parties of record are aware of the need to consult with the transcript for purposes of determining which testimony was actually admitted into the official record.
14 In order to receive such alerts, parties must have an eFiling account with the Commission.
15 Parties of record are able to obtain copies of the official transcript in all adjudicatory proceedings.
16 Electronically submitted testimony will be an exact copy of the testimony submitted to the court reporter. Accordingly, all parties in the proceeding would have been previously served with such testimony and would have access to consult the transcript to determine which testimony was admitted into the official record.
