Free Motion for Extension of Time - District Court of Federal Claims - federal

Case 1:01-cv-00249-CFL

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Filed 01/19/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) TENNESSEE VALLEY AUTHORITY, ) ) Plaintiff, ) ) v. ) No. 01-249 C ) (Judge Lettow) UNITED STATES, ) ) Defendant. ) __________________________________________)

DEFENDANT'S MOTION FOR AN ENLARGEMENT OF TIME FOR THE SUBMISSION OF EXPERT REPORTS BY DEFENDANT Pursuant to Rule 6(b) of the Rules of the United States Court of Federal Claims, defendant, the United States, respectfully requests a six-week enlargement of time for the submission of its expert reports. The Government's expert reports are currently due on February 15, 2005. The extension would bring the date for submission of the reports to March 29, 2005. This is defendant's first request for an enlargement of time for this purpose. In conjunction with this enlargement, the Government also asks that the Court consider enlarging all of the dates in its July 8, 2004 scheduling order by six weeks so that none of the remaining time periods will be unduly compressed as a result of the Government's enlargement of time. In addition, the Government seeks an order directing plaintiff, Tennessee Valley Authority ("TVA"), to complete its production of documents no later than January 31, 2005. Counsel for TVA has advised that it does not oppose an enlargement of time of three weeks for the submission of the Government's expert reports, but it opposes a six-week enlargement of time, either for the submission of the Government's expert reports, or for the schedule as a whole.

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In support of this motion, defendant states as follows. Defendant served requests for production of documents on TVA on September 13, 2004 and November 29, 2004. While TVA has produced approximately 32,000 pages of documents in response to those requests, it has not produced anywhere near all of the responsive documents that it intends to produce. Rather, it anticipates that it has more than twice that number remaining -- approximately 75,000 pages of documents. Most of the documents relating to Browns Ferry Nuclear Plant and many documents relating to Sequoyah Nuclear Plant have yet to be produced. TVA recently advised the Government that it would substantially complete its production of accounting documents relating to the Sequoyah Nuclear Plant by Friday, January 14, 2005; that it will substantially complete its production of accounting documents related to Browns Ferry Nuclear Plant and will complete its production of documents related to "reracking" or using "baby racks" in the spent fuel pools at that plant by Friday January 21, 2005; and that it will complete all remaining production by the end of January. In accordance with its intended schedule, TVA has produced six-and-a-half boxes of documents in the last week. While the Government has not yet completed its review of these documents, it has some concern that this production and TVA's upcoming productions may not be as complete as TVA believes them to be. The Government has found what appear to be disparities between what TVA has previously indicated that it has produced and what the Government's accountants have determined through their review. See Letter from Crawford to Shea of 1/18/05 (attached hereto as Exhibit 1). For this reason, and because the maintenance of TVA's intended schedule is critical to the Government's proposed schedule, the Government asks that the Court order TVA to produce all documents responsive to the Government's two requests 2

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no later than January 31, 2005. Because of the anticipated volume of TVA's production, and TVA's schedule for that production, the Government will require additional time to file its expert reports. For the Government attorneys and experts to all have access to TVA's documents, the Government will either have to scan and code these documents for electronic access or make multiple paper copies of the 75,000 pages. It generally takes the Government's administrative support at least three weeks to scan and code a small production for electronic access. However, the Government anticipates that it will take longer to scan and code a production of 75,000 pages, not only due to the volume, but also because of pressing administrative constraints. Once these documents are copied or processed and available to the attorneys and experts, the Government and its experts will require sufficient time to review this extensive production. After these documents are reviewed, the Government will need to take certain depositions that it has delayed because it has not had sufficient documents to take the depositions. In addition, the Government may potentially need to notice additional depositions the need for which it is not currently aware to gain an understanding of certain documents from the new production. The Government's experts will then require time to review this deposition testimony prior to filing their expert reports. For the foregoing reasons, defendant respectfully requests that the Court grant an enlargement of time for defendant to submit its expert reports up to and including March 29, 2005, correspondingly enlarge all of the dates in its July 8, 2004 scheduling order by six weeks, and order plaintiff, TVA, to complete its production of documents no later that January 31, 2005.

PETER D. KEISLER Assistant Attorney General

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DAVID M. COHEN Director

s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

OF COUNSEL

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

s/ Sonia M. Orfield SONIA M. ORFIELD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 353-0534 Fax: (202) 307-2503

SHARON A. SNYDER KEVIN CRAWFORD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530

January 19, 2005

Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that, on this 19th day of January 2005, a copy of the foregoing "Defendant's Motion for an Enlargement of Time for the Submission of Expert Reports by Defendant" 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/ Sonia M. Orfield

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