Given the Federal Energy Regulatory Commission s (FERC) recent commencement of investigations relating to February s cold weather grid emergency,[1] and the potential for many more, it is important for market participants to be mindful of FERC s obligations to provide parties involved in Section 1b investigations with exculpatory
Brady materials[2]. FERC policy requires that it disclose any evidence or other information that is exculpatory or potentially exculpatory, and material to either the guilt of, or punishment for, the subject. As recent court rulings confirm, this obligation should extend, in certain circumstances, to require FERC to affirmatively search for evidence in the files of other agencies. However, FERC has never clearly stated it will do so. This alert explores that tension.