Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

Document 372

Filed 12/10/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-697C (Senior Judge Merow)

DEFENDANT'S UNOPPOSED MOTION REGARDING TESTIMONY DESIGNATIONS Defendant, the United States, respectfully requests that the Court allow the Government to withdraw its designation of the deposition testimony of Mr. Alan Brownstein, which the Government submitted to the Court on November 9, 2007. Counsel for the Government has discussed this matter with counsel for the plaintiff, Wisconsin Electric Power Company ("WEPCO"), which does not oppose our request. In addition, the Government respectfully requests that the Court take note of the fact that testimony designations that the Government submitted on November 9, 2007 relating to Messrs. Loring Mills and Robert Morgan are duplicative of testimony that WEPCO had already submitted to the Court as part of Plaintiff's Exhibit No. 1052. DISCUSSION I. Testimony Of Mr. Brownstein On August 16, 2007, the Court issued an order regarding, among other things, the designation of deposition and trial testimony in this case. The order provided that the designations of witnesses who testified at trial would be disregarded. Mr. Alan Brownstein testified at trial on October 9, 2007. On November 9, 2007, pursuant to the Court's August 16,

Case 1:00-cv-00697-JFM

Document 372

Filed 12/10/2007

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2007 order, the Government designated trial and deposition testimony to become part of the record of the trial in this case. We inadvertently included past testimony from Mr. Brownstein in the filing. Counsel for WEPCO subsequently notified us regarding our error. Consequently, in accordance with the Court's August 16, 2007 order, we should not have submitted Mr. Brownstein's past testimony. We respectfully request that the Court allow us to withdraw it from the record of this case. II. Testimony Of Messrs. Mills And Morgan Included within the November 9, 2007 submissions, as the parties had agreed, was Mr. Robert Morgan's trial testimony in Northern States Power Company v. United States, No. 98484C (Fed. Cl.), in its entirety, as well as WEPCO deposition and trial testimony designations and the Government's counter-designations of Mr. Morgan's testimony. The parties also agreed that Mr. Loring Mills' trial testimony in Northern States, Yankee Atomic Power Company v. United States, No. 98-126C (Fed. Cl.), Pacific Gas & Electric v. United States, Nos. 04-0074, 0075C (Fed. Cl.), and System Fuels, Inc/Entergy Arkansas v. United States, No. 03-2623C (Fed. Cl.), would be submitted in its entirety as well. Further, the Government submitted the counterdesignations to Mr. Thomas Pollog's testimony as requested in our motion filed on October 15, 2007.1 Since our November 9, 2007 submission, we learned that WEPCO previously submitted Mr. Mills' and Mr. Morgan's testimony to the Court (but not Mr. Pollog's) as part of Plaintiff's Exhibit 1052. Thus, the testimony designations for Mr. Mills and Mr. Morgan that we filed on

The Government does not object to WEPCO's request to submit its counterdesignations to Mr. Thomas Pollog's deposition testimony as Plaintiff's Exhibit No. 1052.1. -2-

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Case 1:00-cv-00697-JFM

Document 372

Filed 12/10/2007

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November 9, 2007, were already part of the trial record. Because the submission of the Mills and Morgan testimony is duplicative of that already in the record, we do not believe it necessary to strike it. However, we request that the Court, in dealing with Messrs. Mills' and Morgan's testimony, refer to Plaintiff's Exhibit 1052, rather than our November 9, 2007 filing, so that it will have a complete set of the submitted testimony. CONCLUSION For these reasons, the Government respectfully requests that the Court allow the Government's to withdraw its designation of past testimony of Mr. Alan Brownstein. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Sharon A. Snyder by s/ Russell A. Shultis SHARON A. SNYDER Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Phone: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

December 10, 2007

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Case 1:00-cv-00697-JFM

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Filed 12/10/2007

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that, on December 10, 2007, a copy of "DEFENDANT'S UNOPPOSED MOTION REGARDING TESTIMONY DESIGNATIONS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Russell A. Shultis