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

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

No. 00-697C

PLAINTIFF'S PRETRIAL MOTION REGARDING EXHIBITS Wisconsin Electric Power Company ("WE") files this motion to identify certain exhibit issues that potentially can be resolved at the August 29, 2007 Pretrial Conference or prior to trial. By resolving these issues prior to trial, WE's hope is that trial proceedings in this matter will be streamlined. I. BACKGROUND

On December 18, 2006, WE filed its Appendix A, Paragraph 16 Exhibit List ("WE's December 18 Exhibit List"). WE's December 18 Exhibit List included 1003 exhibits, which, pursuant to Paragraph 16, were identified as either "will call" or "may call." On January 26, 2007, the Government filed its objections to WE's December 18 Exhibit List. Appendix ("App.") 1-102. For all exhibits designated in WE's December 18 Exhibit List, the Government provided a response. When the Government did not have an objection to an exhibit, it stated "No Objection." App. 3-102. The Court's June 7, 2007 Order granted the parties leave to file amended pretrial submissions. Thereafter, on June 13, 2007, WE filed a Revised Appendix A, Paragraph 16 Exhibit List, which included 1042 exhibits ("WE's Revised Exhibit List"). Of the 1042 exhibits, 1003 were already described in WE's December 18 Exhibit List. The Government

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never filed any objections to the thirty-nine exhibits in WE's Revised Exhibit List that were not in WE's December 18 Exhibit List.1 On August 16, 2007, WE wrote to the Government requesting agreement that the Government withdraw certain objections to WE Exhibits. ("WE August 16 Letter"). App. 103-107. The Government responded on August 22, 2007 and agreed to withdraw certain objections ("Gov't August 22 Letter"). App. 108-110. Numerous objections, however, remain. II. WITHDRAWAL OF CERTAIN WE EXHIBITS

WE continues to attempt to streamline the issues for trial. Accordingly, WE withdraws the following WE Exhibits: 244, 372, 396, 458, 473, 580, 581, 698, 718, 738, 741, 761, 783, and 784. III. A. EXHIBIT ISSUES FOR RESOLUTION

WE's Exhibits To Which There is No Objection WE requests that the Court admit into evidence WE's exhibits to which the

Government did not object. Of the 1042 exhibits on WE's Revised Exhibit List, the Government has not objected to 663 of these exhibits, and the Government has withdrawn its objections to 12 exhibits. App. 108-110. Thus, WE requests that the Court admit into evidence the 675 WE Exhibits, in total, to which there is no objection.2

1 Any Government attempt to file objections to those thirty-nine exhibits at this time would be untimely. See RCFC 7.2 ("Unless otherwise provided in these rules or by order of the court, responses or objections to written motions shall be filed within 14 days after service of the motion."). In the more than two months since WE filed its Revised Exhibit List, the Government has not raised any objections.

By this motion, WE requests that objections to many other exhibits be overruled. If the Court grants WE's requests and overrules the Government objections identified in this motion, 64 exhibits will no longer be objected-to on any grounds. Where appropriate in this motion, WE requests that the Court also admit into evidence those exhibits to which there would no longer be any objections if the Court overrules the Government's objections.
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No sound reason exists for delay in admission of these exhibits to which the Government has not objected. The admission of these exhibits now will streamline trial proceedings. Further, during a February 9, 2007 telephonic conference regarding trial exhibits, counsel for the parties indicated their intentions to seek the Court's permission to enter into evidence, at the beginning of trial, all exhibits to which there was no objection. As a result, WE has been preparing its case for months based on the expectation that the Government would agree to the admission of exhibits to which there was no objection prior to trial. Assuming that these 675 WE Exhibits are admitted into evidence, WE does not object to the admission of Government exhibits to which WE raised no objection. B. Exhibits That Are On the Exhibit Lists of Both Parties The Government objected to certain WE exhibits even though the same documents are on the Government's exhibit list. WE recently requested that the Government withdraw its objections to these exhibits. App. 105-06. While the Government agreed to withdraw its objections to some of these common exhibits, the Government maintains its objections to ten common exhibits. App. 109. The Government states that its "objections must stand until a witness authenticates and lays a proper foundation for admission of each document as evidence." Id. We see no reason for the Court and the parties to engage in the Government's authentication and foundation exercise, especially when the Government has conceded that other common exhibits need not meet these evidentiary hurdles. WE does not object to these exhibits on the Government's Exhibit List. Therefore, these documents will be exhibits in any event and we see no sound purpose for the Government's insistence that WE establish authentication and foundation for these exhibits.

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Therefore, WE requests that the Court admit into evidence WE Exhibits 701, 743, 755, 756, 762-766 and 772. The corresponding Defendant exhibit numbers are noted here: Plaintiff Exhibit 701 743 755 756 762 763 764 765 766 772 C. Corresponding Defendant Exhibit 337 (the Government's exhibit includes one additional page, WISC 00070314) 389 341 272 322 340 335 321 330 165

Exhibits Provided to the Government in June 2007 The Government objected to certain WE Exhibits by stating: "Document Not

Produced ­ Reserve All Objections." App. 19, 22, 33, 46-47, 50, 59, 63-66, 69-70, 74-76 and 81. Many of these exhibits are Government documents. In any case, WE produced to the Government electronic files of all Plaintiff's 1042 trial exhibits by June 6, 2007. It has been almost three months since WE produced these exhibits to the Government. Therefore, we submit that the Government has waived its right to object to these exhibits. See RCFC 7.2. Accordingly, WE requests that the Court admit following 30 exhibits: 153, 184, 303, 444, 446, 452, 455, 481, 571, 610, 611, 617, 618, 625, 626, 634, 636, 641, 669, 671, 676, 680, 681, 682, 684, 719, 720, 721, 727, and 789. D. Certain Allegedly Incomplete WE Exhibits WE requests that the Court overrule the Government's incompleteness objection to certain Plaintiff's exhibits that WE expressly identified as "excerpts," "portions" or "without

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attachments."3 The Government argues that its incompleteness objections are viable based on the authority of Federal Rule of Evidence 106 that "an opposing party may require the introduction of a complete document whenever a portion of that document is introduced by the other party." Fed. R. Evid. 106; App. 108. The Government, however, fails to consider that Fed. R. Evid. 106 only requires complete copies of documents if the complete copy "ought in fairness to be considered contemporaneously with [the portion introduced.]" Fed. R. Evid. 106. Three of the WE exhibits at issue ­ 550, 561, and 578 ­ are Government pleadings in other spent nuclear fuel matters. These documents are Government filings and, to the extent that the Government desires to see complete copies of these pleadings, it has full access to them. WE does not possess full copies of these documents. Further, the portions of these exhibits that were selected by WE relate to the relevant issues in this matter. Therefore, WE requests that the Court overrule the Government's incompleteness objection to WE Exhibits 550, 561 and 578. Recently, WE was able to locate complete copies of three other WE Exhibits: 562, 567 and 623. WE has now provided those complete exhibits to the Government and expects the Government to withdraw its incompleteness objection to these exhibits. However, if the Government does not withdraw its incompleteness objection, WE requests that the Court overrule this objection to these exhibits. WE's Exhibit 57 is an excerpt from an enormous document. It is the Proceedings of the 1983 Civilian Radioactive Waste Management Information Meeting. The full document is 413 pages. WE has selected the first twelve pages of the document as relevant in this case. WE believes that it would be wasteful to provide full sets of this huge exhibit. That is

The Government has already agreed to withdraw its objections as to the incompleteness of Plaintiff's exhibits for which WE provided a revised bates range in WE's Revised Exhibit List. See App. 108, in which the Government removes objections as to incompleteness for Plaintiff's exhibits 244, 301, 493, 614, 631 and 632.
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especially true given that the entire document is already Government trial exhibit 493. WE requests that the Court overrule the incompleteness objection to WE Exhibit 57. In sum, WE requests that the Court overrule the Government's incompleteness objection to WE Exhibits 57, 550, 561, 562, 567, 578, and 623. A relevance objection remains to WE Exhibit 623, but no other objections remain to WE Exhibits 57, 550, 561, 562, 567, and 578. Therefore, WE moves for admission of WE Exhibits 57, 550, 561, 562, 567, and 578. E. The Government's "Not a Proper Exhibit" Objection The Government objected to certain Plaintiff's exhibits as "not a proper exhibit." We do not believe that this is a proper evidentiary objection under the Federal Rules of Evidence. Despite WE's request that the Government withdraw this objection, the Government retains this objection to six WE exhibits: 562, 567, 578, 614, 631, and 632. App. 105, 109. These exhibits are all Government pleadings filed or served in other spent nuclear fuel cases. The Government contends that they have "reservations as to the relevance of legal briefs, proposed findings of fact, and notices of depositions from other spent nuclear fuel cases." Id. The Government, however, never objected to the relevance of these documents and the time for any such relevance objection has long passed. See RCFC 7.2. WE requests that the Court overrule the Government's "not a proper exhibit" objection. WE then moves for admission of WE Exhibits 562, 567, 578, 614, 631 and 632. F. Certain WE Ancient Exhibits The Government objected on hearsay and authenticity to certain WE Exhibits that are older than twenty years. By letter, WE requested that the Government withdraw its objections to WE Exhibits 63, 64, 65, and 68. App. 106. These four exhibits are all more than twenty years old. WE Exhibits 63, 64 and 65 were produced by the Government on its production website. WE Exhibit 68 was not produced by the Government, but is a publicly available document, namely, a letter from Michael Lawrence, Manager, DOE Richland

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Operations Office, to Ben Rusche, the Director, DOE Office of Civilian Radioactive Waste Management. Under Fed. R. Evid. 803(16) and 901(b)(8), the age of the documents, coupled with the fact that they were produced in good condition by the Government or are Government public records, indicate that the Government's objections as to hearsay and authenticity should be overruled. Fed. R. Evid. 803(16), 901(b)(8). See State Financial Bank v. City of South Milwaukee, No. 00-1530, slip op., 2006 WL 2691604 at *5 (E.D. Wis. 2006) (holding that documents older than twenty years were admissible over authenticity and hearsay objections when the "documents were produced and responsive to discovery requests, located in files at City Hall and the [agency]"); LensCrafters, Inc. v. Wadley, 248 F.Supp. 2d 705, 739-740 (M.D. Tenn. 2003) (holding that documents older that twenty years were admissible over authenticity and hearsay objections). Accordingly, WE requests that the Court overrule the hearsay and authenticity objections to WE exhibits 63, 64, 65 and 68. Other objections remain to these exhibits, so WE does not move to admit these exhibits into evidence at this time. G. Newspaper Articles The Government objects to the authenticity of two newspaper articles, WE Exhibits 63 and 64, on the grounds that they lack authenticity. Newspaper and periodical articles, however, are self-authenticating under Fed. R. Evid. 902(6) which provides: "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (6) Printed materials purporting to be newspapers or periodicals." See also Snyder v. Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988) (upholding district court's admission of a magazine article into evidence over an authenticity objection because "Fed. R. Evid. 902(6) dispenses with 'extrinsic evidence of authenticity' for printed articles from periodicals."); Orloff v. Cleland, 708 F.2d 372, 378, n.6 (9th Cir. 1983) (holding that district court correctly found that the newspaper articles were admissible over authenticity objections because newspaper articles are self-authenticating under Fed. R. Evid. 902(6)).
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WE Exhibit 63 is an Associated Press article. WE Exhibit 64 is a Washington Post article. Both are identified as such. WE requests that the Court overrule the Government's authenticity objection to WE Exhibits 63 and 64. Other objections remain to these exhibits, so WE does not move to admit these exhibits into evidence at this time. We note that the Government withdrew its objections to other newspaper articles. App. 109-11. We can only assume that the Government is picking and choosing the newspaper articles to which it continues to object because newspaper articles are detrimental to the Government's position. See, e.g., WE Exhibit 63 ("Rusche said the primary purpose of revising the contracts was to assure utilities that they will not have to build more 'swimming pools' for temporarily storing the wastes beyond 1998."). H. Public Records and Reports WE requests that the Court overrule the Government's objections as to authenticity and hearsay of certain WE Exhibits that are public records or reports. Many WE Exhibits were authored by DOE or the NRC, or come from the records maintained by DOE or the NRC. Under Fed. R. Evid. 901(b)(7), a "purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept," and is therefore authentic. WE obtained all of these documents from DOE's and the NRC's records. Many were produced by DOE as part of its mass production of documents through its electronic production website. Others are available on the NRC's public website. The documents at issue include DOE reports, internal letters between DOE personnel, DOE correspondence with third parties, DOE presentations, DOE requests for proposals, internal DOE memoranda, printouts from NRC electronic dockets, NRC presentations and NRC certificates of compliance. Such documents clearly fall within Fed. R. Evid. 901(b)(7). See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 548-49 (D.Md. 2007) (admitting over authentication objections "computer stored public records," and even noting that "there is no need to show that the computer system producing the public records was reliable or the records accurate.")
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Under Fed. R. Evid. 803(8), the following are "not excluded by the hearsay rule": "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the officer or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report." The exhibits at issue clearly fall within Fed. R. Evid. 803(8). They include DOE reports, memoranda and correspondence regarding implementation of the Standard Contract, NRC reports and correspondence regarding the regulatory licensing of storage casks, and NRC correspondence regarding regulatory compliance. Such documents clearly fall within Fed. R. Evid. 803(8). Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007) (admitting over a hearsay objection a report of the Department of Transportation's Office of Inspector General regarding a discrimination claim as a public record under Fed. R. Evid. 803(8)); Christopher Phelps & Associates, LLC v. Galloway, No. 05-2266, slip op., 2007 WL 1933594 at *8 (4th Cir. 2007) (admitting over a hearsay objection county tax assessments offered to prove the value of a property because the documents "represent[ed] the outcome of a governmental process and were relied upon for non-judicial purposes"); and Pacific Gas & Elec. Co. v. United States, 73 Fed. Cl. 333, 438 (2006) (following authority from Yankee Atomic Elec. Co. v. United States, No. 98-126C, 2004 WL 2450874, at *1-8 (Fed. Cl. Sept. 17, 2004), that "documents generated or collected by the national government in the course of its public functions," such as "documents produced by and from the government files as categorized by the Bates stamps," satisfy the requirements of Fed. R. Evid 803(8)(A) as documents of a public nature that can overcome hearsay objections). Accordingly, WE requests that the Court overrule the Government's authenticity and/or hearsay objections to the following WE Exhibits: 68, 175, 181, 192-94, 215, 223, 230, 241, 249, 306, 315, 323, 330, 361, 377, 435, 469, 564, 593, 687, 725, 746, 768, 769, 774, 912, 915, 917, 919, 922, 923, 928, 929, 931, 936-40, 941, 949-51, 953, 954, 969, and 978. Other objections remain to many of these exhibits. No objections, however, remain to WE

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Exhibits 241, 377, and 954. Therefore, WE moves for admission of WE Exhibits 241, 377, and 954. If the Court overrules the authenticity and hearsay objections here, and if the Court overrules the foundational objections outlined in the next section, no objections will remain to WE Exhibits 175, 181, 194, 230, 249, 323, 330, 564, 687, 725, 746, 941, 949, and 950. WE moves for admission of these WE Exhibits pending the Court's rulings. I. The Government's Foundation Objection To Exhibits The Government asserts numerous foundation objections to WE exhibits. We believe that a foundation objection to an exhibit is improper. Instead, the foundation objection pertains to oral testimony. According to Fed. R. Evid. 602, an objection as to foundation is properly raised when "evidence is [not] introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602 (emphasis added). The rule goes on to explain that "[e]vidence to prove personal knowledge may, but need not, consist of the witness' own testimony." Id. (emphasis added). Inherently, foundation, or personal knowledge, is established by a person through their live testimony. See also 27 Charles Alan Wright & Victor J. Gold, Federal Practice and Procedure, Evid. 2d § 6027. The Government's foundation objections to WE's exhibits are inappropriate. If, during the trial testimony of a witness, the Government believes that WE has not established foundation with regard to an exhibit, the Government may so object at that time. Accordingly, WE requests that the Court overrule the Government's foundation objections to WE's Exhibits.

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IV.

CONCLUSION

For the foregoing reasons, WE respectfully requests that, prior to trial, the Court provide the specific relief requested above, namely, the overruling of certain Government objections to certain, identified WE Exhibits and the admission of certain, identified WE Exhibits. Dated: August 28, 2007 Respectfully submitted, s/Richard W. Oehler by s/Emily C.C. Poulin Richard W. Oehler Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101-3099 (206) 583-8419

Of Counsel: Donald J. Carney Mary Rose Hughes Perkins Coie LLP 607 Fourteenth Street, N.W. Washington, D.C. 20005 (202) 434-1675

Attorneys for Plaintiff WISCONSIN ELECTRIC POWER COMPANY

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CERTIFICATE OF SERVICE
I certify under penalty of perjury that, on August 28, 2007, I caused a copy of the foregoing "Plaintiff's Pretrial Motion Regarding Exhibits" to be 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/ Emily C.C. Poulin Emily C.C. Poulin

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