On July 2, 2012, FERC’s Office of Enforcement petitioned the U.S. District Court for the District of Columbia to order J.P. Morgan Ventures Energy Corp. (“JP Morgan”) to show cause why the court should not enforce a subpoena against JP Morgan.  At issue are 25 emails that JP Morgan has refused to produce in an ongoing FERC investigation into potential manipulation of the California and Midwest energy markets.  JP Morgan has asserted that the emails are protected by the attorney-client privilege, a claim FERC’s Office of Enforcement rejects.

FERC’s Office of Enforcement is conducting a formal, non-public investigation into possible market manipulation by JP Morgan in the energy markets run by the California Independent System Operator, Inc. and the Midwest Independent Transmission System Operator, Inc.  As part of that investigation, the Office of Enforcement issued data requests, and subsequently subpoenas, to JP Morgan for communications related to the investigation.  In its document production, JP Morgan identified certain emails that it refused to produce on grounds of attorney-client privilege. 

The Office of Enforcement disputes the privilege claim because many of the emails are between non-attorneys only or where attorneys are only listed as “cc” recipients. FERC investigators also dispute JP Morgan’s claim that entire email “chains” are protected by the privilege if some emails in the chain contained or sought legal advice.  FERC enforcement staff also claims that JP Morgan’s recent production of 28 additional emails for which JP Morgan originally asserted privilege shows that the remaining contested emails are unlikely to contain privileged content.

The Court has given JP Morgan until July 13 to respond to the FERC petition.

A copy of the Petition is available here, and a copy of the supporting memorandum is available here.