Free Motion to Compel - District Court of Federal Claims - federal

Case 1:06-cv-00305-MBH

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EXHIBIT A-4

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
CONSOLIDATED EDISON COMPANY OF NEW YORK, INe. & SUBSIDIARIES,
) )
)

Plaintiff,
v.

) )
)

Case No.: 06-305 T

)

Hon. Marian Blank Horn

THE UNITED STATES OF AMERICA,
Defendant.

)

) )

PLAINTIFF'S THIRD SUPPLEMENT TO RESPONSES TO UNITED STATES' FIRST SET OF INTERROGATORIES
Pursuant to Rule of Court of Federal Claims ("RCFC") 3 3, Plaintiff, Consolidated
Edison Company of

New York, Inc. & Subsidiaries ("Con Edison"), provides the

following supplement to its Responses to the United States' First Set of Interrogatories.

This supplement is provided subject to the general objections and limitations set forth in

Plaintiffs Responses to United States' First Set oflnterrogatories.
Plaintiff

is continuing to review the matters subject to this proceeding and

reserves the right to supplement and/or amend its responses as necessar.

THIRD SUPPLEMENTAL RESPONSE
Plaintiff executed a tax indemnity agreement, set forth

INTERROGATORY NO. 12: If

the terms of each such agreement, explaining the reasons for entering the agreement.
RESPONSE: Plaintiff

incorporates its initial response to Interrogatory No. 12,

which stated:

A copy of the Tax Indemnity Agreement was provided as par of Plaintiffs Rule 26(a) disclosure. The Tax Indemnity Agreement was entered into to address the matters set forth therein. Plaintiff objects to this Interrogatory to the extent it seeks legal advice concerning the reasons for entering into the Tax Indemnity Agreement.
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Plaintiff further states that it entered into the Tax Indemity Agreement based its counsel, Shearman & Sterling. The substance of this advice is protected by the attorney client privilege and/or work-product immunity. Plaintiff believes that Shearman & Sterling may have negotiated the terms of the Tax Indemnity Agreement with White & Case, which advised South Holland Electric. Plaintiff does not recall receiving advice regarding the Tax Indemnity Agreement from Cornerstone
upon the advice of

Financial Advisors.

INTERROGATORY NO. 16: State the basis for your decision to form a trust to enter
into the Lease Transaction.

RESPONSE: Plaintiff incorporates its initial response to Interrogatory No.1 6,
which stated:

The use of ownership trusts is a standard and customary practice in the leveraged leasing industry. Con Edison objects on the grounds of attorney-client privilege to the extent that this Interrogatory requests legal advice provided to Con Edison concerning the legal reasons for forming a trust.
Plaintiff further states that it entered into an ownership trust based upon the advice of its counsel, Shearan & Sterling. The substance of this advice is protected by the attorney client privilege and/or work-product immunity.

Dated: March 15, 2007
Respectfully submitted by:

THOMAS C. DURHAM Attorney of Record Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, Ilinois 60606
Telephone: (312) 701-72 i 6

NICOLE M. BIELAWSKI 1909 K Street, N.W.

By:~~JL~~ .,

Washington, D.C. 20006-1101
Telephone: (202) 263-3452

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CERTIFICA TE OF SERVICE
I, Nicole M. Bielawski, hereby certify that on this 15th day of March, 2007, I

caused the foregoing Plaintiffs Third Supplement to Responses to the United States'
First Set of Interrogatories to be served upon the United States of America by overnight
delivery, to the following:

David N. Geier U.S. Department of Justice Tax Division, Room 79 I 9
555 Fourth Street, N.W.
Washington, D.C. 20001

L-f~ clcl~
NICOLE M. BIELAWSKI Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Washington, D.C. 20006-1101 Telephone: (202) 263-3452

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DE

CLARA TION

I, hereby declare, under penalties of

perjury, that Plaintiffs foregoing Third

Supplement to Responses to the United States' First Set of Interrogatories is true and
complete to the best of my knowledge.

Andrew

\-,v~-l 'Scher

Assistant General Counsel Consolidated Edison Company of New York, Inc.

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EXHIBIT A-5

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY OF NEW YORK INC. & SUBSIDIARIES,
Plaintiff,
v.

) ) )
)

) )

Case No.: 06-305 T
Hon. Maran Blan Horn

THE UNITED STATES OF AMRICA,
Defendant.

)
) )

)

PLAINTIFF'S RESPONSES TO UNITED STATES' FIRT REOUEST FOR PRODUCTION
Pursuant to Rule of Cour of

Federa Claims ("RCFC") 34, Plaintiff, Consolidated

Edison Company of

New York, Inc. & Subsidiares ("Con Edison"), provides the

following respnse to the United States' Firt Request for Production, subject to the
objections and limitations specified.

Plaintiff is continuing to review the matters subject to this proceeding and

reseres the right to supplement and/or amend its responses as necessar.

GENERA OBJECTIONS
i. Con Edison objects to the United States' First Request for Production to

the extent that the Requests call for the production of documents that are subject to any

claim of privilege or protection or that were prepared in anticipation of litigation. This
includes, without limitation, the attorney-client privilege or the work-product protection.

The inadverent production by Con Edison of any document protected by the attorneyclient privilege, the work-product protection or any other privilege shall not constitute a
waiver of

the applicable privilege or protection as to that document or any other related

documents.

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2. Con Edison objects to the United States' First Request for Production to

the extent that the United States purorts to impose any requirement or discover
obligation other than or beyond those set fort in the RCFC or other applicable rules.
3. Con Edison objects to the United States' Firt Request for Production to

the extent that the Requests cali for documents already known to be in the United States'
possession.
4. Con Edison objects to the United States' First Request for Production to

the extent that the Requests seek immateral and/or irrelevant docuents. By producing
documents, Con Edison does not concee that the documents produced are materal
and/or relevant to any claims or defenses, or even that such docuents are reasonably

calculated to lead to the discover of admissible evidence.

5. By producing documents in response to the United States' First Request
for Production, Con Edison does not waive any of its objections and expressly reseres

its right to object to the admssibilty of the documents produced.
6. Con Edison objects to the United States' Definitions in its First Request

for Production to the extent that the Definitions define words to have something other

than their ordinar meaning or employ gramar, syntax and usage different from
ordinar English grammar, syntax and usage. Con Edison wil not speculate as to the
meaning of vague language within the First Request for Production and will assume that
the United States has wrtten the questions they intend to ask.

Con Edison hereby incorporates each of the foregoing General Objections into
each of

the following responses to the United States' First Request for Production, and

provides each response subject to and without waiving these General Objections.

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RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMETNS
REOUEST NO.1: All documents identified, described, mentioned or referenced to in

your response to the Interogatories sered concurently herewith.
RESPONSE: Con Edison produces, to the extent not previously produced in its

Rule 26(a) disclosures and to the extent not privileged, the documents reference in its
responses to Intergatories No. 1 though 16. These documents are bates stamped #

PF005521 though 7333.

With respect to Interogatory No.2, subject to and without waiving its objecions, the following is a paral list of documents included in Plaintiffs Rule 26(a) disclosure

identifyng other lease-in, leae-out transactions considered by Plaintiff: Bates
## PF004250-87, 4288-4323, 4525-4558, 5504-07, and 6438-89.

With respect to Interrogatory No. 14, subject to and without waiving its
objections, Bates # PF004426-48 identifies some of

the infrastrctue projects reviewed

by Con Edison. Con Edison Development, Inc. regularly reviewed infrastrctue projects

and a compilation of a complete list of such projects would be unduly burdensome.
Interrogatories 7 and 15 are overlapping, and the majority of

the documents

produced in response to Request for Production No. 1 are responsive to both

Interogatory 7 and 15. Bates # PF006492 though 7321 includes workpaper utilzed by
Deloitte & Touche in their appraisal.

REOUEST NO.2: All documents relied upon or reviewed by you in preparng your
responses to the Interrogatories sered concurrently herewith.

RESPONSE: To the extent that Request No.2 seeks the production of
documents which Con Edison reviewed but did not rely upon in responding to the United

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States' Interogatories No.1 though 16, Con Edison objects to the Request as overbroad

and unduly burdensome, immateral and irrelevant and not reasonably calculated to lead

to the discover of admissible evidence. The fact that Con Edison did not rely upon a
parcular document indicates that the document was not relevant to its responses to the
Interrogatories, notwithstanding Con Edison's review of

that document in preparng its

responses.

(Remainder of Page Intentionally Blank)

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Subject to and without waiving its objection, Con Edison has produced all documents it

relied upon in preparg its responses to Interogatories No.1 through 16 in response to
Request No.1.
Dated: November 3, 2006

Respectlly submitted by:

THOMAS C. DURHAM
Attorney of

Recrd

Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, Ilinois 60606
Telephone: (312) ?01-7216

NICOLE M. BIELA WS I Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Washington, D.C. 20006-1101

By. ~(J~l,
Telephone: (202) 263-3452

DAVID F. ABBOIT Mayer, Brown, Rowe & Maw LLP
i 675 Broadway

New York, New York 10019-5820
Telephone: (212) 506-2642

5

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CERTIFICATE OF SERVICE
November, 2006, I

I, Nicole M. Bielawski, hereby cerify that on ths 3rd day of

caused the foregoing Plaintiffs Resnses to the Goverent's First Request for
Production to be sered upon the United States of Amerca by hand, to the following:

David N. Geier

U.S. Deparent of Justice Tax Division, Room 7919
555 Four Strt, N.W.
Washington, D.C. 20001

BY:~~'
NICOLE M. BIELA SKI
Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Washington, D.C. 20006-1101

THOMAS C. DURHAM Attorney of Recrd Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, TIinois 60606

Telephone: (31~) 701-7216,1 . If

Telephone: (202) 263-3452

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EXHIBIT A-6

..

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES,
Plaintiff,
v.

) )
) )

)
) )

Case No.: 06-305 T

THE UNITED STATES OF AMERICA,
Defendant.

Hon. Marian Blan Horn

)
)

)

PLAINTIFF'S FIRST SUPPLEMENT TO RESPONSES TO UNITED STATES' FIRST REQUEST FOR PRODUCTION
Pursuant to Rule of Cour of

Federal Claims ("RCFC") 34, Plaintiff,

Consolidated Edison Company of

New York, Inc. & Subsidiares ("Con Edison"),

provides the following supplement to its Responses to the United States' First Request

for Production. This supplement is provided subject to the general objections and

limitations set forth in Plaintifls Responses to United States' First Request for
Production.

Plaintiff is continuing to review the matters subject to this proceeding and
reserves the right to supplement and/or amend its responses as necessary.

FIRST SUPPLEMENTAL RESPONSE
REQUEST NO.1: All documents identified, described, mentioned or referenced to in
your response to the Interrogatories sered concurrently herewith.
RESPONSE: Con Edison produces, to the extent not previously produced in its

Rule 26(a) disclosures and its Response to the United States' First Request for Production

..

..

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and to the extent not privileged, the documents referenced in its responses to

Interrogatories No.1 through 16. These documents are bates numbered PF#07334
through 7842.

Dated: November, 17 2006

Respectfully submitted by:

THOMAS C. DURHAM Attorney of Record Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, ilinois 60606
Telephone: (312) 701-7216

By:~) ßl'LQ~NICOLE M. BIELA WSKl Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Washington, D.C. 20006-1101

Telephone: (202) 263-3452

DA VID F. ABBOTT Mayer, Brown, Rowe & Maw LLP 1675 Broadway New York, New York 10019-5820
Telephone: (212) 506-2642

..,

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CERTIFICATE OF SERVICE
November, 2006, I

I, Nicole M. Bielawski, hereby certify that on this 1 ih day of

caused the foregoing Plaintiffs First Supplement to Responses to the United States' First
Request for Production to be served upon the United States of America by courier, to the
following:

David N. Geier

U.S. Deparent of Justice Tax Division, Room 7919 555 Four Street, N.W.
Washington, D.C. 20001

NICOLE M. BIELAWSKI Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W. Washington, D.C. 20006-1101
Telephone: (202) 263-3452

Lw~lLQr~'

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EXHIBIT A-7

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CONSOLIDATED EDISON CaMP ANY OF NEW YORK, INC. & SUBSIDIARIES,
Plaintiff,
v.
) )

THE UNITED STATES OF AMERICA,
Defendant.

) ) ) ) ) ) )
)

Case No.: 06-305 T
Hon. Maran Blan Horn

PLAINTIFF'S SECOND SUPPLEMENT TO RESPONSES TO UNITED STATES' FIRST REOUEST FOR PRODUCTION
Pursuat to Rule of Court of

Federal Claims (URCFC") 34, Plaintiff, Consolidated

Edison Company of

New York, Inc. & Subsidiares ("Con Edison"), provides the

following supplement to its Responses to the United States' First Request for Production.

This supplement is provided subject to the general objections and limitations set fort in
Plaintiffs Responses to United States' First Request for Production.
Plaintiff is continuing to review the matters subject to this proceeding and reserves the right to supplement and/or amend its responses as necessary.

FIRST SUPPLEMENTAL RESPONSE
REOUEST NO.1: All docuents identified, described, mentioned or referenced to in
your response to the Interrogatories served concurrently herewith.
RESPONSE: Con Edison produces, to

'the extent not previously produced in its

Rule 26(a) Disclosures and First Supplement thereofand its Response to the United
States' First Request for Production and First Supplement therf and to the extent not

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privileged, the documents referenced in its responses to Intergatories No. I though 16.
These documents are bates numbered PF#07843 through 9624,

Dated: December 13, 2006

Respectfully submitted by:

THOMAS C. DURHAM Attorney of Record Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, Ilinois 60606
Telephone: (3 i 2! 70 i - :~ 6 -1 .

By: I1L¿.l-t:/:.~'
NICÓLE M_ BIELAWSKI Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Wasington, D.C. 20006-1101

Telephone: (202) 263-3452

DA VID F. ABBOTT Mayer, Brown, Rowe & Maw LLP 1675 Broadway New York, New York 10019-5820 Telephone: (212) 506-2642

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CERTIFICATE OF SERVICE
Decembe, 2006, I

I, Nicole M. Bielawski, hereby cerfy that on this 131b day of

caused the foregoing Plaintiffs First Supplement to Responses to the United States' First

Request for Production to be sered upon the United States of America by courer, to the
following:

David N. Geier

U.S. Deparment of Justice Tax Division, Room 7919
555 Fourh Street, N. W.
Washington, D.C. 20001

~I OLE M. BIELAWSKI Mayer, Brown, Rowe & Maw LLP 1909 K Street, N.W.
Washington, D.C. 20006-ILOL

lg~~i/~(.

Telephone: (202) 263-3452