Fraser Trebilcock Davis & Dunlap, P.C.

Transcription

1 124 West Allegan Street, Suite 1000 Lansing, Michigan T (517) F (517) Jennifer Utter Heston [email protected] (517) January 19, 2016 Ms. Mary Jo Kunkle Executive Secretary Michigan Public Service Commission 7109 W. Saginaw Hwy. Lansing, MI Re: MPSC Case No. U Dear Ms. Kunkle: Enclosed herewith for filing in the above-referenced matter, please find the Retail Energy Supply Association's Response to Consumers Energy Company's Motion to Strike with corresponding Certificate of Service. If you have any questions, please feel free to contact my office. Thank you. Very truly yours, Fraser Trebilcock Davis & Dunlap, P.C. JUH/ab Enclosures cc: All parties of record. Jennifer Utter Heston FRASER TREBILCOCK DAVIS & DUNLAP PC LANSING DETROIT GRAND RAPIDS

2 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of ) CONSUMERS ENERGY COMPANY for ) authority to increase its rates for the ) Case No. U distribution of natural gas and for other ) relief ) ) RETAIL ENERGY SUPPLY ASSOCIATION'S RESPONSE IN OPPOSITION TO CONSUMERS ENERGY COMPANY'S MOTION TO STRIKE NOW COMES the Retail Energy Supply Association ("RESA") 1, by and through its attorneys, Fraser Trebilcock Davis & Dunlap, P.C., pursuant to Rule 432(3) of the Rules of Practice and Procedure Before the Commission, R (3), and the case schedule adopted by Administrative Law Judge Mark D. Eyster ("ALJ") in this proceeding, hereby submits this response in opposition to Consumers Energy Company's ("Consumers'") motion to strike portions of the pre-filed direct testimony of Matthew S. White. Specifically, Consumers seeks to strike page 3, line 17 through page 4, line 4 and page 4, line 12 through page 10, line 24 of Mr. White's pre-filed direct testimony. Consumers argues that it would be unfair to permit RESA witness Mr. White's testimony in view of RESA's responses to FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN The comments expressed in this filing represent the position of the Retail Energy Supply Association (RESA) as an organization but may not represent the views of any particular member of the Association. Founded in 1990, RESA is a broad and diverse group of more than twenty retail energy suppliers dedicated to promoting efficient, sustainable and customer-oriented competitive retail energy markets. RESA members operate throughout the United States delivering value-added electricity and natural gas service at retail to residential, commercial and industrial energy customers. More information on RESA can be found at 2

3 discovery. 2 Consequently, Consumers seeks to have substantial portions of the testimony stricken. Consumers' motion to strike is without merit and should be denied for the reasons stated herein. Consumers' motion to strike is premature, and unfounded. RESA appropriately responded to Consumers' discovery in this case. RESA's witness, Mr. White, responded to Consumers' discovery seeking the underlying bases and support for his expert opinions. RESA also responded to Consumers' discovery where it could do so without conducting discovery of third-parties. Under Michigan Court Rules, RESA does not have a responsibility to conduct discovery of third parties in order to respond to Consumers' discovery requests. Moreover, Consumers motion for discovery sanctions is improper and premature. Consumers never filed a motion to compel discovery. Consumers' motion to strike was the first indication from Consumers that it was not satisfied with RESA's responses to its discovery requests. Consumers had a duty to raise its concerns regarding RESA's responses with RESA, and obtain an order compelling responses that was subsequently violated, before sanctions are warranted. RESA requests that the ALJ deny Consumers' motion to strike. I. INTRODUCTION On December 22, 2015, Consumers served its first set of discovery on RESA. Consumers' discovery requests consisted of ten questions. RESA timely served objections FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN and responses to Consumers' discovery on January 4, Consumers' Motion to Strike, 5. 3 See, Attachment 1. 3

4 RESA objected to a portion of Consumers' discovery requests claiming, inter alia, that the requests sought information outside the scope of RESA's knowledge and require it to conduct discovery from third parties in order to answer. RESA did not hear anything further from Consumers regarding its discovery responses. On January 16, 2016, Consumers filed a motion to strike portions of RESA's witness Matthew S. White's testimony. In support of its motion, Consumers cites a portion of RESA's objection to three of Consumers' discovery requests. For the reasons set forth below, Consumers' motion must be denied. II. LEGAL STANDARDS Rule 423 of the Commission's Rules of Practice and Procedure, R , provides that discovery shall "be conducted in the same manner as in the circuit courts of this state..." Under the Michigan Court Rules, the scope of discovery is broad but it is not limitless When issuing a request to produce documents, a party may serve upon another party to a proceeding a request to produce documents where those documents "are in the possession, custody, or control of the party on whom the discovery is served." MCR 2.310(B)(1). Thus, where the documents requested are not within the possession, custody, or control of a party, the discovery request is beyond the scope of permitted discovery in Michigan circuit courts. FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN Similarly, the scope of information which must be provided in response to interrogatories is limited. When answering an interrogatory, a party "must include such information as is available to the party served or that the party could obtain from his or her employees, agents, representatives, sureties, or indemnitors." MCR 2.309(B)(1). A party 4

5 does not have a responsibility to make inquiries to persons beyond those required by the court rules. If the party submitting the discovery requests take issue with the responding party's objections or an alleged failure to answer, then the submitting party may move for a motion to compel answers under MCR 2.313(A). See, MCR 2.309(C) & 2.310(C)(3). In its motion, the moving party, "must state that the movant had in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action." Id. MCL 2.313(B) permits a court to order sanctions when a party fails to obey an order compelling discovery. MCL 2.313(B)(2) states the following: (2) Sanctions by Court in Which Action Is Pending. If a party or an officer, director, or managing agent of a party, or a person designated under MCR 2.306(B)(5) or 2.307(A)(1) to testify on behalf of a party, fails to obey an order to provide or permit discovery, including an order entered under subrule (A) of this rule or under MCR 2.311, the court in which the action is pending may order such sanctions as are just, including, but not limited to the following: (a) an order that the matters regarding which the order was entered or other designated facts may be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN (b) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters into evidence; (c) an order striking pleadings or parts of pleadings, staying further proceedings until the order is obeyed, dismissing the action or proceeding or a part of it, or rendering a judgment by default against the disobedient party; 5

6 (d) in lieu of or in addition to the foregoing orders, an order treating as a contempt of court the failure to obey an order, except an order to submit to a physical or mental examination; (e) where a party has failed to comply with an order under MCR 2.311(A) requiring the party to produce another for examination, such orders as are listed in subrules (B)(2)(a), (b), and (c), unless the party failing to comply shows that he or she is unable to produce such person for examination. A discovery sanction, such as precluding a party from introducing evidence or striking pleadings, is an extraordinary remedy available under the Michigan Court Rules only after failure to comply with an order compelling discovery. III. CONSUMERS' MOTION TO STRIKE IS IMPROPER, EXCESSIVE, AND UNFOUNDED. RESA'S OBJECTIONS TO CONSUMERS' DISCOVERY WERE APPROPRIATE AND SANCTIONS ARE NOT WARRANTED. AS SUCH, RESA'S TESTIMONY SHOULD NOT BE STRICKEN. In its motion to strike, Consumers claims that it would be "unfair" to permit RESA to sponsor RESA's witness Mr. White's testimony alleging a competitive disadvantage while avoiding discovery questions. 4 Consumers' assertion, however, is without merit. For the reasons stated below, RESA's objections and responses to Consumers' discovery requests were appropriate. Consumers' motion to strike due to RESA's discovery responses is an improper and unwarranted discovery sanction that should be denied. A. RESA appropriately responded to Consumers' discovery requests. FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN The focus of Consumers' motion to strike is RESA's responses to discovery requests CE-RESA-1, CE-RESA-2, and CE-RESA-4. 5 Each of these discovery requests sought information from RESA that RESA does not have. As such, RESA objected 4 Consumers' Motion to Strike, 5. 5 See, Consumers' Motion to Strike, 3. 6

7 to the requests indicating that the requested information is outside RESA's knowledge and would require it to conduct discovery of third-parties in order to answer. RESA also objected to each of the discovery requests at issue on other grounds, which Consumers does not address in its motion. RESA's objections were proper. Consumers' first discovery request to RESA, CE-RESA-1, sought "copies of marketing materials" provided to customers in Consumers' territory by RESA's Michigan members for the past two years. RESA, however, does not maintain copies of its members' marketing materials. Thus, RESA simply does not have the requested information and informed Consumers of that fact. Furthermore, the requested information is not relevant to the issues raised in this proceeding, and requiring RESA to survey its members to obtain information that it does not have would impose undue burden and needless expense on RESA in violation of the Michigan Court Rules. Similarly, Consumers' discovery request CE-RESA-2 asked whether any member of RESA has informed customers about GCR factors charged by Michigan utilities during the past five years. RESA objected to this request stating, inter alia, that the information responsive to this request is beyond the scope of RESA's knowledge because RESA does not know its members' marketing activities and communications to customers. Consumers' discovery request CE-RESA-4 asked whether any member of RESA directs customers to the Michigan Public Service Commission's gas price comparison FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN website via various media, and, if so, to provide copies. RESA objected to this request indicating, inter alia, that the requested information was beyond the scope of RESA's knowledge and that RESA did not possess copies of such materials. 7

8 Under the Michigan Court Rules, RESA cannot be required to provide documents or information it does not have. A party may serve upon another party to a proceeding a request to produce documents where those documents "are in the possession, custody, or control of the party on whom the discovery is served." MCR 2.310(B)(1). Thus, where the documents requests are not within the possession, custody, or control of a party, the discovery request is beyond the scope of permitted discovery. Similarly, when answering an interrogatory, a party "must include such information as is available to the party served or that the party could obtain from his or her employees, agents, representatives, sureties, or indemnitors." MCR 2.309(B)(1). A party does not have a responsibility to make inquiries to persons beyond those required by the court rules. It would place an undue burden on RESA and impose requirements on them inconsistent with those required by the Michigan Court Rules to require RESA to respond to Consumers' discovery. Importantly, RESA did provide responses to Consumers' discovery where Consumers sought the bases of RESA's expert witness testimony and where RESA could answer without having to seek additional information from its members. For instance, Consumers' discovery requests CE-RESA-3 and CE-RESA-6 through CE-RESA-10 asked about the bases underlying Mr. White's statements appearing on pages 6-8 of his testimony and Mr. White provided answers. See, Attachment 1. RESA also responded to Consumers' FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN discovery request CE-RESA-5 wherein Consumers asked for RESA's position on a matter, and Mr. White provided a response. Despite having provided Consumers with the requested information, the statements made on pages 6-8 of Mr. White's testimony are included in Consumers' motion to strike. 8

9 RESA's responses to Consumers' discovery were appropriate. For the reasons discussed above and further below, RESA's discovery responses should not be the bases for sanctions. B. Discovery sanctions are not proper absent a violation of a court order compelling discovery. Consumers request to strike Mr. White s testimony is premature. MCR 2.313(B) governs the remedies when a party fails to comply with an order. What Consumers appears to misunderstand, however, is that MCR 2.313(B) only allows imposition of sanctions, such as the striking of a witness s testimony, after violation of a court order regarding the alleged discovery violation. MCR governs interrogatories to parties, and subsection (C) deals with motions to compel answers. The rule states: The party submitting the interrogatories may move for an order under MCR 2.313(A) with respect to an objection to or other failure to answer an interrogatory The motion must state that the movant has in good faith concurred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action. MCR 2.309(C). MCR governs requests for production of documents, and subsection (C)(3) deals with motions to compel. The rule states: "The party submitting the request may move for an order under MCR 2.313(A) with respect to an objection to or other failure to respond FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN to the request or a part of its, or failure to permit inspection, as requested... The motion must state that the movant has in good faith concurred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action. MCR 2.310(C)(3). 9

10 MCR 2.313(A) permits a motion for order compelling discovery. A motion is permissible where a party fails to answer an interrogatory or a party fails to provide a document. MCR 2.313(A)(2)(c) & (d). Consumers, however, did not file a motion to compel discovery under MCR 2.313(A). Consumers' motion to strike was the first indication to RESA that Consumers had an issue with RESA's responses. Absent a motion to compel under MCR 2.313(A) and a court order compelling answers, discovery sanctions are not proper under MCR 2.313(B). In a similar situation, the Court of Appeals upheld a trial court order denying a motion to strike. [P]laintiff would have been entitled to relief had she file a motion to compel pursuant to MCR 2.309(C). However, plaintiff did not file a motion to compel answers and so defendant did not violate MCR 2.313(B). Jilek v Stockson, 297 Mich App 663, 668 (2012) (footnotes omitted). IV. CONCLUSION AND PRAYER FOR RELIEF For all the reasons explained in the preceding sections of this response, RESA respectfully requests that the presiding officer deny Consumers' motion to strike portions of the pre-filed direct testimony of RESA's witness Mr. Matthew S. White. Respectfully submitted, FRASER TREBILCOCK DAVIS & DUNLAP, P.C. ATTORNEYS FOR RETAIL ENERGY SUPPLY ASSOCIATION FRASER TREBILCOCK DAVIS & DUNLAP, P.C. LAWYERS LANSING, MICHIGAN Date: January 19, 2016 By: Jennifer Utter Heston (P65202) Business Address: 124 W. Allegan, Ste 1000 Lansing, MI Telephone: (517) [email protected] 10

11 ATTACHMENT 1

12 124 West Allegan Street, Suite 1000 Lansing, Michigan T (517) F (517) Douglas J. Austin Michael E. Cavanaugh David E.S. Marvin Stephen L. Burlingame Darrell A. Lindman Gary C. Rogers Mark A. Bush Michael H. Perry Brandon W. Zuk Thomas J. Waters Michael S. Ashton H. Kirby Albright Graham K. Crabtree Michael P. Donnelly Edward J. Castellani Peter D. Houk Jonathan E. Raven Thaddeus E. Morgan Anita G. Fox Elizabeth H. Latchana Ryan M. Wilson Brian P. Morley Max R. Hoffman, Jr. Thomas L. Sparks Paula J. Manderfield Marlaine C. Teahan Mark E. Kellogg Ryan K. Kauffman Jennifer Utter Heston Samantha A. Kopacz Paul V. McCord J.J. Burchman Brian T. Gallagher Melisa M. W. Mysliwiec Aaron L. Davis Paul C. Mallon, Jr. Mark J. Hynes RETIRED Donald A. Hines John J. Loose Archie C. Fraser ( ) Everett R. Trebilcock ( ) James R. Davis ( ) Mark R. Fox ( ) Peter L. Dunlap, P.C. [email protected] (517) January 4, 2016 Kelly M. Hall Consumers Energy Company One Energy Plaza Jackson, Michigan Dear Ms. Hall: Re: MPSC Case No. U Enclosed please find the Retail Energy Supply Association's Responses to Consumer Energy Company s First Set of Discovery with regard to the above-referenced matter. In providing these responses, the Retail Energy Supply Association does not concede that the requested information is relevant or material and therefore, reserves the right to raise objections to the introduction into evidence of any material supplied pursuant to these discovery requests. Further, please be advised that any objections should be considered signed by the undersigned counsel. If you have any questions, please feel free to contact my office. Thank you. Very truly yours, Fraser Trebilcock Davis & Dunlap, P.C. JUH/ab Enclosures cc: All Parties of Record Jennifer Utter Heston FRASER TREBILCOCK DAVIS & DUNLAP PC LANSING DETROIT GRAND RAPIDS

13 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-1. Provide copies of marketing materials provided to potential or actual Gas Customer Choice ( GCC ) customers in Consumers Energy Company s ( Consumers Energy ) natural gas service territory by members of RESA who are licensed Alternative Gas Suppliers ( AGS ) in Michigan for the past two years. Objection: RESA objects to this request to the extent that it seeks information neither relevant to the subject matter of this proceeding nor reasonably calculated to lead to the discovery of admissible evidence. RESA further objects to this request to the extent that it is interposed in bad faith, for an improper purpose, or to impose undue burden or needless expense on RESA. RESA further objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. RESA is a trade association that does not possess copies of member marketing materials. Objection by: Counsel Date: January 4, 2016

14 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-2. State whether any member of RESA has informed a potential or actual GCC customer of the Gas Cost Recovery ( GCR ) factor being charged by the customer s local distribution company in Michigan during the past five years. Objection: RESA objects to this request to the extent that it seeks information neither relevant to the subject matter of this proceeding nor reasonably calculated to lead to the discovery of admissible evidence. RESA further objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. RESA is a trade association that does not possess copies of member marketing materials and does not have knowledge of all of its members marketing activity and communications to customers. Objection by: Counsel Date: January 4, 2016

15 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-3. Refer to page 6, lines 4-7 of Matthew S. White s testimony. a. Specify the bases for Mr. White s allegation that Consumers[ ] webpage was designed to persuade customers to remain with Consumers[ ] GCR price. b. Specify the specific portions of Consumers Energy s webpage which Mr. White believes are designed to persuade customers to remain with Consumers[ ] GCR price. c. Specify the bases for Mr. White s allegation that Consumers[ ] webpage contains a number of warnings about shopping with an AGS which appear to attempt to dissuade customers from enrolling with an AGS. d. Specify the portions of Consumers Energy s webpage which Mr. White believes constitute an attempt to dissuade customers from enrolling with an AGS. Response: A. Attached is a copy of Consumers Energy's GCC webpage. The following statements appear on the webpage and are the basis of my testimony that the webpage appears designed to persuade customer to remain with the Consumers GCR price: "Our natural gas prices are lower than the average for the Midwest and the country We have a huge underground storage system, right here in Michigan, that allows us to buy an ample supply of natural gas during the summer when prices are generally lower and pass along those savings to you Our natural gas costs are regulated by the Michigan Public Service Commission ensuring your prices are reasonable and reflect market conditions. This helps to provide you with reliable energy and stable, predictable bills We make no profit on the sale of the gas itself, and like all commodities, the cost of that gas may vary by month, depending on the market conditions. For gas price information, please see our 18-month history" B. See response to A. above. C. See response to A. above. Also, the following statements appearing on the attached webpage appear to attempt to dissuade customers from enrolling with an AGS: "our company does not recommend or endorse any of their products." "If you purchase your gas supply from an alternative gas supplier, the price you pay will not be regulated by the MPSC." (emphasis in original)

16 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests D. See response to C. above. Response by: Matthew S. White Date: January 4, 2016

17 Natural Gas Choice Consumers Energy Page 1 of 2 1/4/2016 Gas Customer Choice Making an Informed Decision At Consumers Energy, we offer relatively stable and predictable natural gas prices. That brings peace of mind during a long, bitter winter and for those on a budget. We want to make sure you have the tools to make an informed decision about natural gas. After all, we live here, too, and have been serving Michigan for more than 125 years. We re committed to the success of our customers and Michigan s economy. What you should know about Consumers Energy and the natural gas you receive: Our natural gas prices are lower than the average for the Midwest and the country We have a huge underground storage system, right here in Michigan, that allows us to buy an ample supply of natural gas during the summer when prices are generally lower and pass along those savings to you Our natural gas costs are regulated by the Michigan Public Service Commission ensuring your prices are reasonable and reflect market conditions. This helps to provide you with reliable energy and stable, predictable bills We make no profit on the sale of the gas itself, and like all commodities, the cost of that gas may vary by month, depending on the market conditions. For gas price information, please see our 18-month history Use our Choice Comparison Calculator to compare your current rate with the rate an Alternative Gas Supplier is offering. View the Compare MI Gas website to compare residential and commercial natural gas prices. The site is provided by the Michigan Public Service Commission. If you have questions about Gas Customer Choice you can review our frequently asked questions section, contact us by , or call (800) PLEASE NOTE: Consumers Energy is not associated or affiliated with Alternative Gas Suppliers, and our company does not recommend or endorse any of their products. If you purchase your gas supply from an alternative gas supplier, the price you pay will not be regulated by the MPSC. AGS representatives may market to you by calling or coming to your home. To enroll with an AGS, you will need to provide the POD (Point of Delivery) number, name and service address from your current bill. Only provide the POD once you decide to enroll. Please be careful about disclosing too much private information when communicating with AGS representatives. Licensed Alternative Gas Suppliers. If you choose an AGS you can still count on us to: Deliver the gas to your home or business Read your meter and send a monthly bill that includes Consumers Energy s delivery charges and gas supply charges agreed to between you and the AGS Ensure the safety of our delivery system and fix any problems that occur Compare Natural Gas Prices What You Need To Know Before You Go!

18 Natural Gas Choice Consumers Energy Page 2 of 2 1/4/2016 Gas Choice FAQs Additional Resources Natural Gas Choice is Here Making an Informed Choice Customer Information Helpful Checklist For Making Your Choice Are you registered with the MPSC? Does this price include all fees? If the price is variable, how often does it change? Is there a membership or other fee to sign up with you? Is there a fee if I cancel the contract early? What is the price you will charge me per thousand cubic foot (Mcf)? Is the price fixed or does it change? Are there any built in price increases or decreases? What is the length of the contract? Is there a customer incentive for signing up? What happens when my contract expires? Print this Checklist to use when talking to alternative suppliers 2016 Consumers Energy SSL

19 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-4. State whether any member of RESA directs potential or actual GCC customers to the Michigan Public Service Commission s GCC price comparison website (developed as a result of Case No. U-17850) in any of the following: a. Written marketing materials provided to customers; b. On the AGS s web site; c. In marketing prompts provided to marketers working on behalf of the AGS; d. By any other means or any other forum; and e. If the answer to any of the subsections (a) through (d) is yes, provide copies of the AGS s references to the Michigan Public Service Commission s GCC price comparison website. Objection: RESA objects to this request to the extent that it seeks information neither relevant to the subject matter of this proceeding nor reasonably calculated to lead to the discovery of admissible evidence. RESA further objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. RESA is a trade association that does not possess copies of member marketing materials and does not have knowledge of all of its members marketing activity and communications to customers. Objection by: Counsel Date: January 4, 2016

20 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-5. State whether RESA would support requiring AGS to be required to include reference to the Michigan Public Service Commission s GCC price comparison website (developed as a result of Case No. U-17850) on the AGS web sites, marketing materials provided potential or actual GCC customers, and contracts between AGS and GCC customers. If your answer is anything but an unqualified yes, explain your answer in detail. Objection: RESA objects to this request on the grounds that it is overly broad and vague. RESA further objects to this request to the extent that it seeks information neither relevant to the subject matter of this litigation nor reasonably calculated to lead to the discovery of admissible evidence. Subject to these objections, please the response below. Response: RESA is unable to answer this question without knowing exactly how Consumers Energy would have AGSs reference the Choice website, the location of such references and the specific types of marketing material Consumers Energy is referring to in this question. Objection by: Counsel Response by: Matthew S. White Date: January 4, 2016

21 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-6. See page 7, lines of Mr. White s testimony in this proceeding. Provide actual examples of any RESA members offerings for the provision of GCC gas supply service which include a renewable product or carbon off-sets (for purposes of this discovery answer the gas commodity price may be redacted). Explain how a renewable product or carbon offsets are tied to the provision of gas commodity service in the Consumers Energy GCC program. Objection: RESA objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. Subject to these objections, see response below. Response: The MPSC Choice comparison website indicates Ardent Energy is offering a renewable product in Consumers Energy's GCC program in which according to the website Ardent will purchase Carbon credits equal to the carbon you produce through your gas usage. See, Objection by: Counsel Response by: Matthew S. White Date: January 4, 2016

22 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-7. See page 7, lines of Mr. White s testimony in this proceeding. Provide actual examples of AGS offerings for the provision of GCC gas supply service which include airline miles or hotel rewards points after remaining on the produce for a period of time. For purposes of this discovery answer the gas commodity price in the offer may be redacted. Objection: RESA objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. Subject to these objections, see response below. Response: I am aware that IGS customers receive fuel rewards with their natural gas products. Objection by: Counsel Response by: Matthew S. White Date: January 4, 2016

23 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-8. See page 7, lines of Mr. White s testimony in this proceeding. Provide actual examples of AGS offerings for the provision of GCC gas supply service which include a product which offers a free or subsidized home services contract for the duration of [the GCC customer s] tenure with their supplier. For purposes of this discovery answer the gas commodity price may be redacted from the offer. Objection: RESA objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. Subject to these objections, see response below. Response: I am aware that customers who receive natural gas service from IGS are eligible for discounts off their home warranty products when they call in to enroll in home warranty service with IGS. Objection by: Counsel Response by: Matthew S. White Date: January 4, 2016

24 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-9. Provide copies of the free or subsidized home services contract[s] referenced on page 7, lines of Mr. White s testimony in this proceeding. Objection: RESA objects to this request to the extent that it seeks to require responses or impose obligations beyond or inconsistent with those required by the Michigan Court Rules. RESA objects to this request to the extent that it seeks information outside the scope of RESA's knowledge and requires it to conduct discovery from third parties in order to answer. Subject to these objections, see response below. Response: The price discount to home warranty products referenced in my testimony is reflected in a reduced price offer when the customer enrolls, but is not included in the contract terms. Objection by: Counsel Response by: Matthew S. White Date: January 4, 2016

25 RETAIL ENERGY SUPPLY ASSOCIATION U Retail Energy Supply Association's Responses to Consumers Energy Company s First Discovery Requests CE-RESA-10. See page 8, lines 5-6 of Mr. White s testimony in this proceeding. Specify the bases for Mr. White s assertion that Consumers GCR clause is [a] regulatory mechanism designed to mitigate fluctuations in market prices. Response: Consumers GCR is a natural gas pricing mechanism made possible by Michigan statutory law and regulated by the Michigan Public Service Commission. Rather than fluctuate with market prices, the GCR factor is capped each year and any over or under recoveries are reconciled at the end of each year and rolled into future GCR factors. Response by: Matthew S. White Date: January 4, 2016

26 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of ) CONSUMERS ENERGY COMPANY for ) authority to increase its rates for the ) Case No. U distribution of natural gas and for other ) relief ) ) CERTIFICATE OF SERVICE Angela R. Babbitt hereby certifies that on the 19 th day of January, 2016, she served the Retail Energy Supply Association s Response to Consumers Energy Company's Motion to Strike and this Certificate of Service on the persons identified on the attached service list via electronic mail. Angela R. Babbitt

27 Service List for U Administrative Law Judge via U.S. mail aslo Honorable Mark D. Eyster Michigan Public Service Commission 7109 W. Saginaw Hwy. Lansing, MI Counsel for Consumers Energy Company H. Richard Chambers Bret A. Totoraitis Kelly M. Hall James D. W. Roush Robert W. Beach Gary A. Gensch, Jr. Anne M. Uitvlugt One Energy Plaza Jackson, MI Counsel for Association of Businesses Advocating Tariff Equity Robert A.W. Strong Clark Hill 151 S. Old Woodward Ave., Ste. 200 Birmingham, MI Michael J. Pattwell, Esq. Clark Hill 212 E. Grand River Ave. Lansing, MI

28 Counsel for MPSC Staff Lauren D. Donofrio Bryan A. Brandenburg Meredith R. Beidler 7109 W. Saginaw Hwy., 3 rd Fl. Lansing, MI [email protected] [email protected] [email protected] Counsel for Attorney General John A. Janiszewski, Esq. 525 W. Ottawa St., 6 th Floor Williams Bldg. PO Box Lansing, MI [email protected] Counsel for Midland Cogeneration Venture Limited Partnership David R. Whitfield, Esq. Warner Norcross & Judd, LLP 111 Lyon St. NW, Ste. 900 Grand Rapids, MI [email protected] 3