Subject: Status Report
From: [email-masked]
To: [email-masked], [email-masked], [email-masked], [email-masked], [email-masked], [email-masked]
Cc: [email-masked], [email-masked]
Date: Wed, 6 Dec 2000 10:17:00 -0800 (PST)

Privileged and Confidential
Attorney Client Communication
Attorney Work Product

Here is my status report on today's activities:

Attorney General Investigation

 Mike Day, Enron's outside counsel that does work before the PUC
called me late tonight to tell me that he was contacted by another attorney
that has done work for Enron in the past.  This other attorney received a
call from the California State Attorney General's office, Richard Rothman
(phonetic) stating that the AG was going to be sending out preservation of
documents letters to market participants including Enron and that they were
going to be issuing subpoenas in the very near future.

California Energy Oversight Board

 Some recipients of this email may not have been included on the list
that got copies of the subpoena requests to the California ISO and
California PX so I will duplicate them here.

 <<7-21EOB4.pdf>>  <<Confiden.pdf>>  <<EOBoard0.pdf>>  <<EOBoard1.pdf>>

Enron Investigation in Canada FYI

 <<dowjones.11.21.00.PDF>>
EPMI  Western Trading Desk Organization Chart

 <<Organizational chart.PDF>>
Change of Venue Research by Peter Meringolo

 Here's preliminary analysis of change of venue:

 The court may change the venue of a trial "where there is reason to
believe that an impartial trial cannot be had therein."  C.C.P. o 397(b).
The party requesting a change of venue must show actual "widespread"
prejudice "extending over a long period of time."  Nguyen v. Superior Court,
49 Cal. App. 4th 1781, 1791 (1996).  Whether such a showing has been made is
left to the discretion of the trial court.  Id.

 Case law provides little guidance regarding how much evidence is
enough for a party to show actual prejudice.  As Witkin states, this
"challenge is so vague and difficult to sustain."  3 Witkin, Cal. Procedure,
Actions, o 871 (4th ed. 1996).  In fact, a change of venue on these grounds
has been granted in very few reported cases, the most recent of which was in
1938.  See People v. Ocean Shore R.R., 24 Cal. App. 2d 420 (1938); San
Joaquin and Kings River Canal and Irrigation Co. v. Stevinson, 179 Cal. 533
(1919).

 Ocean Shore was an eminent domain proceeding against 32 defendant
land owners to acquire lands to build a state highway, one defendant's
motion for change of venue was granted.  People v. Ocean Shore R.R., 24 Cal.
App. 2d 420 (1938).  The defendant filed nearly 200 affidavits, which
referenced newspaper articles, reports from civic meetings, and statements
by citizens showing a widespread prejudice against the defendants and its
cause extending over a long period of years.  Id. at 427-28.  The Court
affirmed the trial court's discretion, noting that the affidavits show that
"it would at least make it extremely doubtful whether an impartial trial
could be had before a jury in that county."  Id. at 428.

 San Joaquin was a condemnation action for the use of waters of a
river for the benefit of landowners on the west side of the river.  San
Joaquin and Kings River Canal and Irrigation Co. v. Stevinson, 179 Cal. 533
(1919).  In that action, the defendant operated an irrigation system for the
benefit of the landowners on the east side of the river.  Plaintiff filed
one affidavit showing that the people on the east side of the river felt
widespread prejudice against plaintiff and people on the west side of the
river were disqualified as jurors because they were using defendant's
irrigation system.  Id. at 537-38.  Defendant filed 22 affidavits in
opposition.  According to the Court, "if numbers of affiants or of
affidavits were the determining factor in questions of this character the
defendant herein would have been entitled to prevail upon said motion; but .
. . this is not the rule."  Id. at 538.  Rather, the question is whether the
trial court abused its discretion, and the Court held that it did not.

 These cases are contrasted with two case reported since 1938 in
which change of venue motions were denied.  See Riverside County Flood
Control and Water Conservation Dist. v. Joseph W. Wolfskill Co., 147 Cal.
App. 2d 714 (1957); Nguyen v. Superior Court, 49 Cal. App. 4th 1781, 1791
(1996).

 Riverside County was an eminent domain proceeding, where plaintiff
was seeking to condemn property for the purposes of flood control.
Defendants moved for a change of venue by presenting evidence that the
advantages of the flood control project was widely publicized, the
newspapers portrayed defendants as trying to prevent flood controls, that
the cost of purchasing defendant's property was to come from county funds
and therefore every taxpayer was adverse to defendant.  147 Cal. App. 2d at
716.  Plaintiff's affidavit contradicted these facts.  The trial court
denied the motion, and this decision was affirmed on appeal.  Id. at 717.

 In Nguyen, the State brought a suit against business owners in order
to shut down a red light district in San Mateo.  The defendant businesses
moved for a change of venue.  Defendants' evidence consisted of two
newspaper articles reporting the raid on the businesses, that the city spent
over $5000 investigating, and one affidavit of an employee of defendants'
lawyer.  The trial court denied the motion because the evidence fell "far
short of proving actual prejudice."  49 Cal. App. 4th at 1791.  Moreover,
the trial was to be a court trial, not a jury trial, and defendants showed
no prejudice by the court.  Id.

 Ross v. Kalin, 53 Cal. App. 616 (1921), although an extreme case,
exemplifies that a change of venue motion most likely requires a high
standard of proof.  In Ross, plaintiff's motion for change of venue was
denied.  Plaintiff filed numerous affidavits, in which uncontroverted facts
showed that, as a result of plaintiff's "crusade against vice conditions' in
the City of venue, plaintiff was assaulted by a mob, beaten, tarred and
feathered, and chained to a tree.  Id. at 617.  The local newspaper
published editorials approving the mob action.  Id.  Plaintiff's attorney
was also assaulted and beaten, and banned from two organizations.  Id.  Of
the 8000 to 12000 potential jurors, between 30 and 300 were prejudiced
against the plaintiff at some point in time.  Id. at 619.  The appellate
court affirmed, holding that the trial court did not abuse its discretion in
finding that this prejudice against the plaintiffs did not outweigh the
defendants' right to have their case tried in the county where they reside
and their witnesses reside.  Id.

Summary of Business & Professions Code 17200 Cases
I sent a two volume set to each of you with a summary of the California
17200 cases.  (Dave and Mike, I know this may be superfluous for you but I
thought you should see what I sent to everybody.)  While the cases do not
break out cleanly, I tried to divide the cases  into those that defined
unfair, preemption, the filed rate doctrine, conspiracy and damages.

Sampling of Tapes
I spoke with Steve Hall today (Stoel Rives).  He has listened to
approximately 2 hours of tapes.  He said they are best described as using
colorful language.  There is some chit chat about what the participants
guess the price might be or what they heard the price might be and some
discussion about a line that may have gone down.

Projects Underway

Data Resolution - No progress today
Fact Memo - I received Steve Hall's memorandum and will incorporate with the
materials I have for distribution tomorrow.
Contracts - We hope to have that package sent out tomorrow.
PUC- No contact from Harvey Morris (PUC in house counsel.)

Thanks
Gary

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 - 7-21EOB4.pdf
 - Confiden.pdf
 - EOBoard0.pdf
 - EOBoard1.pdf
 - dowjones.11.21.00.PDF
 - Organizational chart.PDF