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

Case 1:06-cv-00305-MBH

Document 95-2

Filed 01/11/2008

Page 1 of 3

REPLY EXHIBIT 1

Case 1:06-cv-00305-MBH

Document 95-2

Filed 01/11/2008

Page 2 of 3

MAYER BROWN ~~_..~-_._-

ROW E ~_.__..-

& MAW
August 2, 2007
Mayer, Brown, Rowe & Maw LLP
New York, New

1675 Broadway York 10019-5820

Main Tel (212) 506-2500

David N. Geier

Main Fax (212) 262-1910
WN.mayemrownrowe.com

Joseph A. Sergi Adam R_ Smar

David F. Abbott
DirectTel (212) 506-2642
Direct Fax (212) 849-5642 dabbott (j mayerbro'Mrowe.com

U.S. Deparment of Justice Tax Division 555 Fourth Street, N.W. Room 7919
Washington, D.C. 20001
Re: Consolidated Edison Companv of

New York, Inc. & Subsidiares v. The United States. Docket No.
06-305 T

Dear David, Joe, and Adam:

This is in response to your e-mail of August 1 regarding the Consolidated Edison joint
defense arangements. The disclosed notes (PF300257) obviously constitute protected work

product since they were prepared in 2003, long after the IRS had made it clear that it intended to litigate LILO issues. In fact the notes specifically refer to the IRS's intention to litigate LILO
cases. I would also point out that these notes do not contain any privileged legal advice; rather

they concern the statements of an IRS official and the reactions to those comments. Since these notes are protected by work product, their production to you does not waive protection on any other matcrial.
In addition, the production of these notes was inadvertent due to an apparent malfunction in our database program. These notes, along with several other items, had been identified and marked as protected audit/litigation preparation material in our database. Since the notes were marked as audit/litigation material, they should have been excluded from the production request made in the database. While the production request correctly excluded all other items tagged as audit/litigation materal, these items were not excluded, even though they were properly tagged
in the database. These items are:

PF282289-90 PF300291
PF300259-70 (duplicates of

or documents similar to 300257-58)

Since these itcms were produced due to a malfunction in the database program, after they had been properly marked as protected audit/litigation material, their production falls under the

Berlin Brussels Charlotte Chicago Cologne Frankfurt Hong Kong Houston London Los Angeles New York Palo Alto Paris Washington, D.C.
Mayer, Brown, Rowe & Maw LLP operates in combination with our associated English limited liability partnership in the offices listed above.

Case 1:06-cv-00305-MBH
Mayer, Brown, Rowe & Maw LLP
David N. Geier
Joseph A. Sergi

Document 95-2

Filed 01/11/2008

Page 3 of 3

Adam R. Smar August 2, 2007
Page 2

rules regarding inadvertent disclosure. See National Helium Corp. v. United States, 219 Ct. Cl.
612 (1979). This is paricularly tre given the large volume of material involved and the short

time frame for production. Accordingly, we request that you sequester this material and return it
to us.

Very truly yours,

~a~lid r2lbd+/~
David F. Abbott