Ruling on Discovery Disputes in “SolarCity” Cash Grant Litigation

Akin Gump Strauss Hauer & Feld LLP

On August 29, 2014, Judge Bruggink heard oral argument and ruled on plaintiffs’ motion to compel the production of documents and information requested from the Department of the Treasury (“Treasury”) regarding plaintiffs’ challenge to Treasury’s calculation of Section 1603 cash grant awards for solar projects. Plaintiffs, special-purpose entities that invested in cash-grant-eligible solar projects sponsored by SolarCity, filed a complaint in the Court of Federal Claims on February 22, 2013, challenging adjustments made by Treasury that resulted in reduced cash grant awards.

Background and early developments in the case are covered in blog posts of May 21, June 2, July 9, August 14 and September 20, the most recent of which concerns Judge Bruggink’s denial of the Department of Justice’s (DOJ) motion to dismiss the complaint. Since that time, discovery disputes have slowed the progress of the litigation, leading plaintiffs to file the motion to compel at issue in the hearing held last Friday.

The thrust of the parties’ dispute is whether certain information relating to other Section 1603 applicants and internal Treasury policies/guidelines is relevant to plaintiffs’ claims and is discoverable. At the hearing, the DOJ, arguing on behalf of Treasury, asserted that plaintiffs’ requests were overly broad and irrelevant, insofar as they sought information concerning approaches taken by Treasury with respect to other, unrelated applicants and the development of Treasury’s general screening policies and benchmarks used in evaluating and adjusting applications. While Judge Bruggink mainly agreed with the DOJ’s arguments, he also recognized the potential relevance of such information to how Treasury evaluated and adjusted plaintiffs’ cash grant awards, noting that even the DOJ’s explanation of Treasury’s approach to Section 1603 adjustments suggested a certain amount of imprecision in the process.

Accordingly, Judge Bruggink generally limited plaintiffs’ discovery requests to information and documents concerning what Treasury had done with respect to their applications, although he also ruled currently discoverable other applications used by Treasury as a basis of comparison to adjust plaintiffs’ awards and, with respect to Treasury benchmarks that were higher than the amounts claimed by plaintiffs, information concerning how such benchmarks were derived. He deferred making a final ruling on the other information and documents sought by plaintiffs until after this material had been produced and reviewed.

Fact discovery is currently scheduled to conclude by November 19, 2014 (which will be followed by expert reports and discovery), although Judge Bruggink expressed understandable doubt during the August 29 hearing that such discovery would indeed be complete by this date.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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