Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:00-cv-00697-JFM

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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 REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME Defendant, the United States, submits this reply to plaintiff's opposition to defendant's motion for an enlargement of time of four weeks, to and including Friday, October 21, 2005, within which to serve its answers and objections to plaintiff's third set of interrogatories. Plaintiff's opposition is based, in large part, upon its claim that it will be "materially prejudiced" if the Court grants our enlargement request because it will only have two weeks remaining in the discovery period for additional "follow-up discovery". Pl. Opp. at 1. Despite this assertion, plaintiff

has not provided any explanation as to why any such additional discovery will be needed, or as to why, if such a need exists, it cannot be accomplished within the remaining two weeks of the discovery period. At this point, any such need or prejudice is As such, there is no reason for the Court to

purely speculative.

deny our request for an enlargement for a period that does not exceed the fact discovery deadline to respond to plaintiff's

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interrogatories.

In short, the "material prejudice" asserted by As

plaintiff in response to our motion does not exist.

established in our moving brief however, a denial of our requested enlargement would prejudice the Government's ability to fully respond to plaintiff's discovery request. Plaintiff attempts to downplay the prejudice to the Government by referring to the "substantial discovery" we have been pursuing in this case. Pl. Opp. at 2. By citing to our

pursuit of our affirmative discovery, plaintiff contends that the Government is ignoring one set of responsibilities in favor of another. Id. It is true that analyzing the large volume of

document production made by plaintiff over the last two months has also added to the work load of counsel for the Government. However, our reasons for the need for an enlargement in responding to plaintiff's interrogatories are those stated in our motion, and are not based upon some hidden agenda. Indeed,

plaintiff's argument simply makes our point that based upon the extensive work facing the Government in this and other spent nuclear fuel cases, our requested enlargement is appropriate. Finally, plaintiff argues that we "cannot reasonably" argue the need for an enlargement because of the temporary unavailability of the supervisory attorney for all of the spent nuclear fuel cases, Harold D. Lester. Id. As noted in our motion

the Government's need for Mr. Lester's participation in the

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preparation of our interrogatory answers is based upon the unique role he plays in the spent nuclear fuel litigation, rather than upon manpower needs. As the person at the Department of Justice

responsible for all of the spent nuclear fuel litigation, Mr. Lester is uniquely qualified to coordinate and oversee all of the Government's discovery in this matter, particularly since, as noted in plaintiff's opposition, plaintiff's discovery relates to the timing and method of DOE's acceptance of spent nuclear fuel. Pl. Opp. at 1-2. Therefore, Mr. Lester's participation is

indispensable, and the requested enlargement will allow him a reasonable amount of time after his return to the office on October 12, 2005, to provide it. For the foregoing reasons, we respectfully request that the Court grant our motion for an enlargement of time, to and including October 21, 2005, within which to respond to plaintiff's third set of interrogatories. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

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s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Kevin B. Crawford KEVIN B. CRAWFORD 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 October 11, 2005

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

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CERTIFICATE OF FILING I hereby certify under penalty of perjury that, on October 11, 2005, a copy of this "DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME" 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. the Court's system. Parties may access this filing through

s/ Kevin B. Crawford