Tubbs Fire Map

Burn area of the Tubbs Fire and two nearby wildfires. 

San Francisco Superior Court Judge Teri Jackson is considering issuing a gag order in the Tubbs Fire case in order for "both sides to receive a fair trial."

Lawyers representing Pacific Gas & Electric on Oct. 1 said the news media has been broadcasting too many theories about what started the Tubbs Fire and that those theories, when heard by the public, will have "severe impacts on the jury pool."

"Our concern is, given the immense media focus on this case, that this case needs to be litigated in this courtroom, not through the media," PG&E lawyer Kevin Orsini said.

"You're essentially asking for a gag order," Jackson said to Orsini. "I will be more than happy to look at it and consider it."

Wildfire victims' lawyers indicated a gag should go both ways, however. Victims' lawyers said PG&E over the last year has been widely broadcasting a report from the California Department of Forestry and Fire Protection that says a private electrical system started the Tubbs Fire, not PG&E's equipment, and that this message could be affecting potential victims' knowledge of whether they could seek damages against PG&E.

"There has been a lot of publicity by PG&E that they have no liability for the Tubbs Fire and that the Cal Fire report says there's no causation. That is not what the Cal Fire report says," wildfire victim lawyer Frank Pitre said.

"There is public education that has to go into this in making sure people understand what a Cal Fire report says, but more importantly, what it does not say, so that people can have the opportunity to consult with lawyers as to whether or not to file a claim," he said.

PG&E's statements come days after a new expert report suggested that the Tubbs Fire was caused by trees contacting two PG&E power lines and not by a private electrical system, as Cal Fire's report found.

"The more you talk about the case, the harder it's going [to be] to find a jury," Jackson said. "I know the goal of everyone is to try to get this case done efficiently and as fast as possible, but fairly, in order for resolution to be brought about in a federal court and in bankruptcy."

Jackson said she will review a gag-order request in the coming weeks.

Separately, Jackson in court on Oct. 1 approved a proposal to split the Tubbs Fire jury trial into two parts: the first to determine who and what caused the fire and the second to determine associated injury and damages.

Lawyers for both PG&E and the wildfire victims supported the proposal to split the trial in two. According to the parties, the bifurcation would help PG&E move more efficiently through its bankruptcy and estimation court cases and aid in the investor-owned utility's goal of exiting bankruptcy by June 2020.

In the first phase of the trial, neither party will be able to present evidence of harm or damages suffered by wildfire victims, and this will "enable the expeditious resolution of Tubbs liability that PG&E so desperately needs and which the bankruptcy court desires," victims' lawyers said.

Splitting the trial would not only help speed the process along, but would also "help the jury to better understand and decide this complex group of cases," PG&E lawyers said.

PG&E lawyers argued that the two phases should be heard by different jury panels due to the complexity of the case, while wildfire victims' lawyers said the same jury is fully capable of hearing both phases.

Jackson issued a tentative decision to keep both phases heard by the same jury, but added that she would review PG&E's argument later this week on why two jury panels are necessary.

The jury trial is set to start Jan. 7 and is scheduled to last eight weeks.

Staff Writer

David Krause is an energy reporter covering the California Energy Commission and Air Resources Board. He writes about transportation, climate change, utilities, and wildfires. He has an MFA in Writing, an MA in English, and a BS in Civil Engineering.