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

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EXHIBIT A-3

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IN TH UNITED STATES COURT OF FEDERAL CLAIMS

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

)
)
)

)

)

Case No.: 06-305 T
Hon. Marian Blank Horn

)
)
)

THE UNITED STATES OF AMERICA,
Defendant.

)
)

PLAINTIFF'S SECOND SUPPLEMENT TO RESPONSES TO UNITED STATES' FIRST SET OF INTERROGATORIES
Pursuant to Rule of Court of Federal Claims ("RCFC") 33, 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

Plaintiff's Responses to United States' First Set of Interrogatories. Plaintiff is continuing to review the matters subject to this proceeding and

reserves the iight to supplement and/or amend its responses as necessary.

SECOND SUPPLEMENTAL RESPONSE
INTERROGA TORY NO.1: Identify all individuals who have knowledge of the Lease
Transaction, including each person's involvement in the promotion, recommendation,
planning, approval, or implementation of any of the leases, and the nature and substance
of the facts known (or believed to be known) by each person.

RESPONSE: Con Edison objects to Interrogatory No. 1 as overbroad and
unduly burdensome. Con Edison is not aware of all individuals that had knowledge of

the Lease Transaction. The Lease Transaction involved multiple entities, and Con Edison
cannot determine all individuals at each entity who had knowledge regarding the Lease

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Transaction. Further, the Lease Transaction was widely known at Con Edison and Con
Edison cannot, even after a diligent review, represent under oath all of its current and
fOlmer employees who had any knowledge of the Lease Transaction.

In addition, Interrogatory No.1 is not limited to a single discrete subject as
required by RCFC 33(a). Rather, Interrogatory NO.1 impeimissibly attempts to elicit

information concerning several distinct subject matters, including the promotion (if any).

the recommendation, the planning, the approval, and the implementation of the Lease

Transaction. Con Edison is not compelled to respond to a compound request, such as

Interrogatory No. i Moreover, when the implicit subparts of Interrogatory No.1 are
considered, the United States' request likely exceeds the limit of 25 intelTogatories set
forth in RCFC 33(a).

Interrogatory No. I fuither requires Con Edison to set forth a detailed narrative. and thus, the Interrogatory is overly broad and unduly burdensome. The inclusion of the
word "all" renders IntelTogatory No. 1 vague and ambiguous, as welL. The legal basis

supporting Con Edison's objection is set forth in more detail in response to Interrogatory
No.

15.

Con Edison also objects to the Interrogatory as immaterial and irrelevant. The
fact that an individual has knowledge of the Lease Transaction does not mean that the
individual has discoverable information regarding the transaction.

Subject to and without waiving its objections, Con Edison identified five current
employees of Con Edison whom it may rely upon to support its claims and/or defenses in
the instant proceeding in its Rule 26(a) Disclosures and First Supplement thereto. Con

Edison further identified the nature of each individual's involvement in the Lease

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Transaction and the general substance of the facts believed to be known by each in its

Response to the United States' First Set of Interrogatories. In such Response, Con
Edison also identified four additional former and current Con Edison employees and
sixteen additional individuals associated with third-party entities and the nature of each
indi vidual's involvement in the Lease Transaction and the general substance of the facts

believed to be known by each.
On October i 3, 2006, the United States produced a list of indi viduals it claimed

were identified in documents regarding the Lease Transaction. The United States,
however, did not identify the "subject of the information" possessed by these individuals.
It appears that some of

the individuals identified in the list attached to the United States'

October 13,2006 cOITespondence were included solely hecause their names were on a

Distribution List ("the Distribution Lise). In its initial Response to Interrogatory No. i,
Con Edison stated its belief that the individuals identified in the list attached to the
United States' correspondence of October 13, 2006 "may have information regarding
their respective institution's role in the Lease Transaction." (emphasis added). Con

Edison has undertaken its own review of the individuals listed in the United States'
October 13,2006 correspondence. As noted below, Con Edison, after a review of the

relevant documents, believes that some of the individuals identified on the United States'
list had no significant connection with the Lease Transaction.
Con Edison's information regarding the nature of each of these indi vidual's

involvement in the Lease Transaction and the general substance of the facts believed to
be known by each is contained in Con Edison's business records regarding the Lease

Transaction. Con Edison produced such records in accordance with RCFC 33(d).

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Although Con Edison does not believe that it has an obligation to summarize the

information contained in those business records, Con Edison wil provide a summary of
the nature of each individual's involvement in the Lease Transaction and the general

substance of the facts believed to be known by each, in an effoit to assist the United
States and facilitate the discovery process.

Many of the individuals identified on the list attached to the United States'

coii-espondence of October 13,2006 are referenced briefly in the documents regarding
the Lease Transaction; some were only identified on the Distribution List regarding the

Lease Transaction. Con Edison has limited information regarding what, if any,

involvement these individuals had. Con Edison, in an attempt at full disclosure,
referenced these individuals in response to Interrogatory No. i and now provides further information regarding the identified individuals. This reference and information should
not be construed as a representation by Con Edison that each or these individuals has
discoverable information, but rather that they may have discoverable information.

This response supplements, but does not replace, Con Edison's initial response to

United States' Interrogatory No.1. Con Edison cautions the United States that the
information provided in its Response to United States' Interrogatory No. l and this
supplement hereto represents Con Edison's belief regarding each individual's involvement in the Lease Transaction and the general substance of the facts known by

each. Con Edison is not in a position to certify under oath as to each individual's
involvement in the Lease Transaction or the general substance of the facts known by each
individual.

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l. A. Hoyte de long Jan Trapman
N. V. Electriciteitsbedrijf Zuid-Holland (EZH)
Von Geusaustraat 193

2270 AX V oorsburg The Netherlands
Phone: 011-31-70-3820028

Con Edison believes that Masters de long and Trapman were involved, through

their advisors and counsel, in negotiating the terms of the Lease Transaction on behalf of

South Holland Electric. The initial proposal letters were addressed directly to Mr. de
long, and he accepted the proposal letter and provided representations on behalf of South

Holland Electric. Con Edison further believes that Mr. de long was also involved in due
diligence regarding the RoCa3 Facility and negotiations regarding the letter of credit.
Con Edison believes that Masters de long and Trapman may have had information

regarding South Holland Electric and its business and the RoCa3 Facility.
Anton Zauner

Gregory Fulljames Roger Liberman Phillp Mintun Margaret Morrow Anna E. Endres
Louis DeCarlo
Capstar Partners, Inc.
40 East 520d Street, 1th Floor

New York, NY 10021
Phone: (212) 339-4200

Con Edison believes that Masters Zauner, Fulljames, Liberman, Mintun and
DeCarlo and Ms. Morrow and Endres were associated with Capstar Partners, which reviewed and advised South Holland Electric on the terms and economics of the Lease

Transaction. Con Edison believes that these individuals may have been familar with due

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diligence performed.by South Holland Electric and the letter of credit it obtained in
connection with the Lease Transaction.
Edwin Noomen Credit Suisse Financial Products 1 Cabot Square, 4lh Floor London, E14, 4QJ
Phone: 44-17 i -888- i 724

Con Edison believes that Mr. Noomen, like Mr. Snouck Hurgronje who was

previously identified, was associated with Credit Suisse, which provided opinions regarding the commercially reasonable interest rate for certain of the interest bearing
instruments in the Operative Documents. Can Edison believe that Mr. Noomen is not

listed on any document other than the Distribution List and is not aware of his specific
role, if any, in connection with the Lease Transaction.
Ben Wojciehowski Credit Suisse First Boston
Fi ve World Trade Center 7th Floor

New York, New York 10048

Con Edison believes that Mr. Wojciehowski was associated with Credit Suisse

First Boston, which was a custodian pursuant to the Custody Agreement.

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Marianne Rosenberg
Robeit Thorton Smith

Philip McCarthy Francois Bardonnet Paul Alfaks Marc Mangum Kimberly Delfino White & Case
1155 A venue of the Ameiicas

New York, NY 10036
Phone: (212) 819-8380

Con Edison believes that Masters Smith, McCarthy, Bardonnet, Alfaks, Mangum, and Ms. Rosenberg and Delfino, were associated with White & Case, which provided
legal advice to South Holland Electric regarding United States legal issues in connection

with the Lease Transaction. Con Edison believes that these individuals may have
reviewed and negotiated ceitain terms of the Lease Transaction on behalf of South

Holland Electric.

Jim Donahue Mike Mattasits Banc One Leasing Corporation
1 I 1 Monument Center Bank One Center
Suite 1931

Indianapolis, IN 46204
Phone: (317) 321-8044

Con Edison believes that Masters Donahue and Mattasits were associated with

Bane One Leasing Corporation ("Banc One"), which negotiated and entered into a
transaction with South Holland Electric in which it acquired an undivided leasehold

interest in the RoCa3 Facility at or around the time of the Lease Transaction. Con Edison
believes that certain aspects of Banc One's transaction and the Lease Transaction were
negotiated with South Holland Electric at or around the same time. Con Edison believes.

that Masters Donahue and Mattasits may have had knowledge regarding the negotiation

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and terms of the transaction entered into between Banc One and South Holland Electric

and the negotiation and certain terms of the Lease Transaction. Con Edison also believes
that Mr. Mattasits may have had information regarding due diligence conducted on the
RoCa3 Facility.

John M. Sykes
Joonmoo Lee

Andrew Levy
John Kramer

Patricia landoli Jerome Mounier Colin Chang
Michael Apelt

Dan Kiely Shearman & Sterling 599 Lexington Avenue New York, NY 10022-6069
Phone: (202) 848-4000

Con Edison believes that Masters Sykes, Lee, Levy, Kramer, Mounier, Chang,

Apelt, and Kiely and Ms. Iandoli, like Masters Flowers and Stevenson who were
previously identified, were associated with Shearman & Sterling, which provided legal

advice to Con Edison with respect to the Lease Transaction, including the terms of and
proper Federal income tax treatment for the Lease Transaction.
David Strupp Roger Wise Kim Werderman Siri Thomas Davis Polk & Wardell 450 Lexington Avenue New York, NY 10016
Phone: (212) 450-4800

Con Edison believes that Masters Strupp, Wise, and Thomas and Ms. Werderman

were associated with Davis Polk & Wardell, which provided legal advice to Bayerische Landesbank Girozentrale, Luxembourg Branch, in connection with a letter of credit

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obtained by South Holland Electric in favor of Con Edison and Wilmington Trust Company and also provided legal advice to Hollandsche Bank-Unie N.V. regarding
United States law in connection with the Lease Transaction.
A. Rene Citroen Tjepco van Voorst Vader Louis Bouchez Daphne Brinkhuis
Ken Breken

Nanette Rutgers Cli fford Chance
Apollolaan 171

1077 AS Amsterdam The Netherlands
Phone: OLL-31-20-577-7222

Con Edison believes that Masters Citroen. van Voorst Vader, Bouchez, and
Breken and Ms. Brinkhuis and Rutgers were associated with Clifford Chance, which

provided legal advice to South Holland Electric regarding Dutch legal issues in
connection with the Lease Transaction.

Dr. Michael Weller Clifford Chance Oberlindau 54-56 0-60323 Frankfurt AM-Main Germany

Con Edison believes that Dr. Weller was associated with Clifford Chance, and
may have provided legal advice to South Holland Electric regarding the letter of credit it

obtained in connection with the Lease Transaction. Dr. Weller also provided a legal
opinion to Con Edison and Wilmington Trust Company.

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Paul Stenrink Gerald Wentink
Loyens & V olkmaars

Tripolis 300 P.O. Box 71170 1008 BD Amsterdam
Phone: Oll-31-20-578-5785

Con Edison believes that Masters Stenrink and Wentink were associated with

Loyens & Volkmaars, which provided legal advice to South Holland Electric regarding
the proper tax treatment of the Lease Transaction under Dutch law.
Femke Bierman

Loeff Clayes Verbeke Apollolaan 15, P.O. Box 75088 1070 AB Amsterdam The Netherlands
Phone: 01 l-31-20-574-1507

Con Edison believes that Mr. Bierman, like Masters Meesters and Magnin who
were previously identified, were associated with Loeff Clayes Verbeke, which provided

legal advice to Con Edison regarding Dutch law in connection with the Lease
Transaction.
Michael Ledyard

Moo'is James Hitchens & Willams
222 Delaware Ave.

P.O. Box 2306 Wilmington, DE 19899

Con Edison believes that Mr. Ledyard may have provided legal advice to the

Trustee, Wilmington Trust Company, regarding the Lease Transaction. Con Edison
believes that Mr. Ledyard may have had infonnation regarding the formation of the Trust
and its role in the Lease Transaction.

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Don MacKelcan Wilmington Trust Company Rodney Square 1100 N. Market Street, Suite 2201 Wilmington, DE 19890
Phone: (302) 651-1118

Con Edison believes that Mr. MacKelcan was an employee of Wilmington Trust

Company, which facilitated the Trust that participated in the Lease Transaction on behalf

of Con Edison Development. Con Edison believes that Mr. MacKelcan may have had
information on the formation of the Trust and its involvement in the Lease Transaction.
Mark J. DeTrempe Tom Malia Jay Sill Donald Roback
Cornerstone Financial 'Advisors L.P. Three Parkway North

Deerfield, IL 60015
Phone: (847) 444-1000

Con Edison believes that Masters DeTrempe, Malia, Sill, and Roback of

Cornerstone Financial Advisors L.P. ("Cornerstone"), like Robert Holzman who was
previously identified, may have provided advice regarding the economics and the

implementation of the Lease Transaction. Mr. Holzman was Con Edison's primary
contact at Cornerstone.
Austin Godfrey

Marlene Motyka Deloitte Financial Advisory Services 2 World Financial Center New York, NY 10281
Phone: (212) 436-2000

Con Edison believes that Mr. Godfrey and Ms. Motyka, like Masters Ellsworth,
Renock and Liu who were previously identified, were associated with Deloitte Financial

Advisory Services, which prepared a valuation of the RoCa3 Facility. Neither

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Mr. Godfrey nor Ms. Motyka, however, are identified on any documents, other than the

Distribution List, regarding the Lease Transaction. Con Edison is not familiar with any
involvement of Mr. Godfrey and Ms. Motyka in the preparation and/or review of the
appraisal for the Lease Transaction.
K. L. Schoppink

Moret Ernst & Young
Wassenaarseweg 80

2596 CZ The Hague Phone: 31-70-328-6666

Con Edison believes that Moret Ernst & Young may have provided accounting

services for South Holland Electric. Con Edison is not familiar with the specific
involvement, if any, of Mr. Schoppink in connection with the Lease Transaction.
Sheldon Mittler Duke Engineering & Services
One Huntington Quadrangle, Suite ISOl

Melville, NY 11747

Con Edison believes that Mr. Mittler, like Masters Radini, Foley, Gonzalez, and DeCristofaro who were previously identified, was associated with Duke Engineering &

Services, which prepared an engineering valuation of the RoCa3 Facility. Con Edison is
not familiar with the involvement, if any, of Mr. Mittler in the preparation and/or review
of the report.

Richard Norbruis

Elizabeth van Schilfgaarde Nauta Dutilh 1 Rockefeller Plaza New York, NY 10020

Con Edison believes that Mr. Norbruis and Ms. van Schilfgaarde were associated
with Nauta Dutilh, which provided legal advice to the Lender and the Deposit Bank,

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including legal advice regarding due diligence associated with real property and
mortgages, in connection with the Lease Transaction.
Nancy Dahl

First Security Bank, N.A. 79 South Main Street, 3rd Floor

Salt Lake City, UT 84111
Phone: (80l) 246-5208

Con Edison is uncertain of the nature of the involvement of Ms. Dahl and/or First

Security Bank, N.A. in or the general substance of the facts known by either regarding

the Lease Transaction. First Security Bank is listed as a permitted successor trustee in the
Participation Agreement.
Dr. Peter Hein Alan & Overy
Taunustor 2

603 i I Frankfurt AM-Main Germany

Con Edison is uncertain of the nature of involvement of Dr. Hein and/or Alan & Overy in or the general substance of the facts known by either regarding the Lease

Transaction. Con Edison believes Dr. Hein and/or Alan & Overy are not named on any
document other than the Distribution List.
Wan-en Wegener

Marsh & McLennan
500

West Monroe, 22nd Floor

Chicago,IL 60661

Phone: (312) 627-6628

Con Edison believes that Mr. Wegener, like Mr. Harding who was previously
identified, was associated with Marsh & McLennan, which performed insurance due
dilgence with respect to the RoCa3 Facility. Con Edison is not familiar with the

involvement, if any, that Mr. Wegener had in connection with the Lease Transaction.

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Hans Nieuwenhuis Tauw Mileu
P.O. Box L33

7400 AC Deventer The Netherlands
Phone: 011-31-570-699-829

Con Edison believes that Mr. Nieuwenhuis was associated with Tauw Mileu,

which performed environmental due diligence of the RoCa3 Facility and prepared a
report of such due diligence. Con Edison believes Mr. Nieuwenhuis was involved in the
preparation of the report.

J. D. Dykstra

M. ten Cate ABN AMRO Bank N.V.
Foreign Credit Services

Foppingadreef 22

P. O. Box 283 1000 EA Amsterdam The Netherlands Phone: (31) (20) 628743

Masters Dykstra and/or ten Cate signed various documents as attorneys-in-fact for

ABN AMRO Bank. Con Edison believes they may have had information regarding ABN
AMRO's participation in the Lease Transaction.

J.D. Dykstra M. ten cate Hollandsche Bank-Unie N. V. Coolsingel 104 P.O. Box 249 3000 AE Rotterdam The Netherlands
Masters Dykstra and ten Cate signed various documents as attorneys-in-fact for

Hollandsche Bank-Unie N. V. Con Edison believes they may have had information
regarding Hollandsche's participation in the Lease Transaction.

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Alexander Kohnot Bayerische Landesbank Girozentrale, Luxembourg Branch 3, rue Jeanne Monnet L2180 Luxembourg
Phone: 352.42.434.3399

Con Edison believes that Mr. Kohnot may have had information regarding
Bayerische Landesbank Girozentrale's furnishing of a letter of credit in connection with
the Lease Transaction.

Additional individuals at Con Edison who had peripheral involvement in the

Lease Transaction are referenced in response to Intenogatory No. 15.

INTERROGATORY NO. 15: Identify all individuals and entities, including third
parties and employees, officers and members of the Board of Directors of Plaintiff, with whom you communicated aboiit the Lease Transaction prior to entering into the

transaction, setting forth the contents of the communications and identifying the documents mentioning, discussing, referring to or constituting the communications.

RESPONSE:
In its Response to the United States' First Set of lntenogatorics, served on
November 2, 2006, Con Edison objected to Interrogatory No. 15 as overbroad and
burdensome. In paricular, Con Edison explained that it is not possible for Con Edison to

identify all individuals with whom it communicated or to set forth the contents of all such

communications, many of which were of a routine administrative nature. The Lease
Transaction was a business transaction and, as such, subject to normal business review

procedures. Employees of unrelated entities were also involved in reviewing the Lease
Transaction.

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There are several discrete bases suppotting Con Edison's objection on this

ground. First, Interrogatory No. 15 is a multi-patt request, requiring Con Edison to
identify all individuals at Con Edison involved with the Lease Transaction and "all individuals," whether associated with Con Edison or third-party entities, with whom such
individuals communicated about the Lease Transaction, as well as the contents of all

communications by and between such individuals on any subject associated with the

Lease Transaction and every document relating to such communications. Interrogatory
i 5 is not limited to a single discrete subject as required by RCFC 33(a). See also Fed. R.
Civ. P. 33(a) (containing identical language) and Safem olAm. 1'. Rawstron, LSL F.R.D.

44 1,443 (CD. Cal. 1998) (interrogatories often contain subparts that "are implicit and
not separately numbered or lettered"). Rather. Interrogatory No. l 5 impermissibly
attempts to elicit information concerning several distinct subject matters. Con Edison is
not compelled to answer an interrogatory in compound form. such as Inten'ogatory No.
15. See Pogue v. Diabetes Treatment Ctr. of

Am., Inc., 235 F.R.D. 521, 525 (D. D.C.

2006) (a party "will not be compelled to provide an answer" to an interrogatory in the

"compound form"). Moreover, when each implicit subpart is considered, Interrogatory
No. 15 evades the limit of 25 interrogatories set forth in RCFC 33(a). See, e.g., Johnson
v. Kraji Foods N. Am., 2006 WL 3143930 (D. Kan. Oct. 31, 2006) (stating that the
"extensive use of subparts, whether explicit or implicit" may render the numerical

limit in

Rule 33 "meaningless") and Bujnicki v. Am. Paving and Excavating, Inc., 2004 WL

1071736, *9 (finding a blanket request for the interrogated party to set forth the facts

supporting each defense to be an "attemptn to evade the presumptive limitation set forth
in" Rule 33(a)).

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Second, Interrogatory IS requires Con Edison to provide a detailed narrative
outlining the contents of communications between individuals associated with Con

Edison and third-party entities and thus, is both overly broad and burdensome. See, e.g.,
Smith v. City of

New York. 2006 WL 2516479, * i (E.D.N.Y. Aug. 29, 2006) (where

"intellogatories are improperly worded and seek long nan'atives," the party "need not

engage in long narratives in response"); Tunier v. Moen Steel Erection, Inc., 2006 WL
3392206 (D. Neb.) (an interrogatory is overly broad and unduly burdensome "if it seeks 'all facts' suppoiting a claim or defense, such that the answering party is required to
provide a narrative accounl of its case"); Hilt v. SFC fIiC., 170 F.R.D. 182, 188 (D. Kan.

1997) (an interrogatory requesting "a running nam\tive or description of the entire case,

together with identifications of all knowledgeable persons and supporting documents" is

overly broad and burdensome); Piling v. Geii. Motors Corp., 45 F.R.D. 366,370 (D.
Utah 1968) (stating that although "the listing of details concerning every (responsive)
publication could be unreasonable, the specification of representative publications, if any,
and the general descriptions of such other publications, if any, would not be"); City

of

Witcliita, Kansas v. Aero Holdings. Inc., 2000 WL 33170895 (D. Kan.) (finding

interrogatories asking the interrogated party to "list all facts" and "identify all persons
having knowledge" about a transaction were overbroad).

Third, the use of the word "all" in Interrogatory No. 15 also renders the request
vague and ambiguous, as well as overbroad; the request does not adequately advise Con
Edison of the specific information sought. See, e.g., Stovall v. Gulf and S. Am. Steamship

Co., 30 F.R.D. 152, 154 (S.D. Tx. 1961) ("(h)ow can the court make enforceable orders

with reference to 'all' of anything?"); Sheffeld Corp. v. George F. Alger Co., 16 F.R.D.

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27,29 (S.D. Ohio 1954) (condemning interrogatories which use the word "all"); Aero

Holdings, 2000 WL 33170895.

Interrogatory No 15. requires Con Edison to identify (i) all persons associated with Con Edison involved in the Lease Transaction, (ii) the individuals with whom they
disciissed the Lease Transaction, whether associated with Con Edison Of a third-party
entity_ (iii) the contents of all disciissions regarding aiiy subject matter associated with the

Lease Transaction, and (iv) all documents relating to such communications. Con
Edison's effort in evaluating lease transactions in general and entei;ng into the Lease
Transaction consumed almost a year, and, as a result, Interrogatory No. 15 requests that

Con Edison create a "running narrative" of events which occurred over this extended

period. Further, the request that Con Edison identify "all" communications renders the
intelTogatory ambiguous as well as overly broad. Interrogatory No. 15 is clearly objectionable, as established by the authorities set foith above, and Con Edison is not
obligated to respond.

Con Edison has produced extensive documentation setting forth its

communications regarding the Lease Transaction. For the reasons described below, this
documentation provides a more comprehensive description of the communications
regarding the Lease Transaction than is possible in the context of an Interrogatory
response.

Depositions would be a more effective tool for gathering the type of detailed
information requested by Interrogatory No. 15, especially information regarding oral

communications. As the Ninth Circuit has stated, "(w)ritten interrogatories are not
designed" to "plumb the depths of a witness' recollection," rather "a deposition" should

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be used "when the goal (of) discovery" is to extract "a witness' recollection of

conversations." Shoen v. Shoen, 5 F.3d 1289, 1297 (1993); see also Static Control
Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431, 435 (M.D.N.C. 2001) (stating

that when conversations were not recorded, depositions are "clearly a superior" tool for
gathering the "full details of the conversations"); Hilt v. SFC Inc., 170 F.R.D. at 187

(stating "in many instances depositions, rather than intellogatories, will better serve the
purpose of obtaining detailed facts); Bryers Theaters. Inc. v. Murphy, I F.R.D. 286, 28889 (W.D. Va. 1940) (concluding

that depositions provide "for a more comprehensive

examination" than interrogatories, and interrogatories are not "suited for a 'thorough

inquiry into the vital and highly controversial phases of the case").

Con Edison further objects to the Interrogatory as immaterial and irrelevant. The
routine business communications of Con Edison employees and the communications of third-parties of which Con Edison was not aware are not relevant to a determination of
the proper tax treatment of the Lease Transaction.

Con Edison is neither able, nor obligated, to respond to Interrogatory No. 15. In
order to assist the United States and facilitate the discovery process, however, Con

Edison has provided: (i) a list of the individuals associated with Con Edison who were
involved in the Lease Transaction, (ii) a list of the individuals, whether associated with

Con Edison or third-party entities, with whom they communicated regarding the Lease
Transaction, and (iii) a summary of the general subject matter

of such communications

based upon interviews with the relevant individuals at Con Edison. Con Edson has

further provided all documents concerning such communications in its Response to the

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United States' First Request for Production and Supplements thereto. This response is
provided by Con Edison subject to and without waving its objections. Con Edison expects that the recollection of the individuals listed below may be refreshed as the case moves forward and Con Edison conducts trial preparation.
A. Brian DePlautt

Mr. DePlautt is no longer employed at Con Edison, and therefore Con Edison no
longer exercises "control" over Mr. DePlautt. See Gell. Dynamics Corp. v. Selb Mfg. Co.,
481 F.2d 1204, 1210 (8th Cir. 1973). In the spirit of

cooperation, however, Con Edison

interviewed Mr. DePlautt, by telephone on December 22,2006, for purposes of
responding to IntelTogatory No. 15.

The information contained in this response is based on this conversation. Since
Mr. DePlautt is no longer employed by Con Edison, Con Edison has limited access to

Mr. DePlautt, In view of Con Edison's limited access to Mr. DePlautt and the number of
documents associated with this case, Con Edison has not attempted to refresh

Mr. DePlauts recollection through the use of such documents. Con Edison expects that
Mr. DePlautt may be able to provide additional detail if and when his recollection is
refreshed by viewing relevant documents.

Mr. DePlautt originally contacted Mr. Holzman to obtain more information

concerning lease transactions, including the risks and benefits of such transactions. Their
discussions related to these subjects, including discussions of the profit associated with

lease transactions and the accounting treatment of the profit. Mr. DePlautt initiated these
discussions because he believed that leases involving power projects might be consistent

with Gramercy Development, Inc.'s business objectives. These discussions began in

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early 1997, during the formation of

Gramercy Development, Inc. After several months of
DePlautt to the possibility of entering into a

such discussions, Mr. Holzman alerted Mr.

leasing transaction with South Holland Electric. Prior to Con Edison Development's
decision to enter into the transaction with South Holland Electiic, Mr. DePlautt had
extensive discussions with Mr. Holzman conce11ing the details of the South Holland

Electiic transaction. Many of these discussions related to the rules for leveraged lease
accounting as they would relate to the Lease Transaction. Mr. DePlautt had discussions with individuals at Con Edison, including Charles Muoio, Joan Freilich, Mary Jane McCartney, Kevin Burke, Peter Irwin, and Andrew

Scher, related to the Lease Transaction. In these discussions, the individuals reviewed
the details of the Lease Transaction and the pros and cons of Con Edison entering ilito the

Lease Transaction. These discussions included the potential profit associated with the
Lease Transaction and how the profit would be accounted for under the rules applicable

to leveraged lease accounting. Mr. DePlautt and these individuals also discussed whether
the Lease Transaction was consistent with Con Edison Development's business plans, the

legal and tax aspects of the Transaction, and the ancilary benefits of entering into the
Lease Transaction, such as lea11ing more about European energy markets. These

communications would have taken place at Board of Trustee meetings, other meetings, in

written memoranda, and in phone calls. Mr. DePlautt also kept Paul Kinkel informed of
issues associated with the Lease Transaction, but Mr. Kinkel played a less active role in
reviewing the Lease Transaction.

Mr. DePlautt provided Harry Morrson with an overview of the Lease Transaction

in connection with Mr. Morrson's review of the RoCa3 Facility. Mr. DePlautt discussed

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the technical aspects of the RoCa3 Facility with Mr. MOllison. These discussions would
have taken place, in part, during a site visit to the RoCa3 Facility.

Mr. DePlautt communicated with the accounting, treasury, tax, and corporate
planning departments at Con Edison in order to provide them with an overview of the

transaction. Mr. DePlautt does not currently recall the individuals with whom he had
such disciissions.

Mr. DePlautt communicated with Rick Ellsworth and George Renock at Deloitte & Touche regarding the appraisal of the RoCa3 Facility Mr. DePlautl communicated with Richard Radini at Duke Engineering regarding
engineering issiies related to the RoCa3 Facility.

Mr. DePlautt believes he may have communicated with Aidan O'Mahony

regarding Standard and Poor's review of South Holland Electric's credit risk.
Mr. DePlautt believes he may have communicated with individuals at Tauw
Milieu concerning the environmental review of the RoCa3 facility.

Mr. DePlautt communicated with Karen Kubiak at Arthur Andersen regarding the

accounting treatment of the Lease Transaction. He does not currently recall whether he
also communicated with Ben Neuhuasen.

Mr. DePlautt communicated with Jim Dewey at Price Waterhouse regarding the
accounting treatment of the Lease Transaction.

Mr. DePlautt communicated with J. A. Hoyte de Jong and Jan Trapman at South
Holland Electric regarding South Holland Electric, its business activities, the RoCa3

Facility, and Netherlands energy markets. Mr. DePlautt also communicated with the

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plant manager of the RoCa3 Facility concerning the quality of the RoCa3 equipment
during a site visit to the RoCa3 Facility.

Mr. DePlautt communicated with Anton Zauner, Gregory Fulljames, and Phillip
Mintun of Capstar Partners, Inc. regarding South Holland Electric.
Mr. DePlautt communicated with Jim Donahue of Banc One Leasing Corporation

regarding Banc One's participation in a separate lease of an undivided interest in the
RoCa3 Facility.

Mr. DePlautt communicated with Mr. Flowers and Mr. Stevenson at Shearman & Sterling regarding legal advice they provided in connection with the Lease Transaction,
including the possibility of litigation or other disputes with the Internal Revenue Service as a result of entering into the Lease Transaction.

Mr. DePlautt communicated with Bart Meesters and Femke Bierman at Loeff
Claeys Verbeke regarding Dutch legal issues associated with the Lease Transaction. The individuals identified by Mr. DePlautt were those at each entity with whom

he had the majority and most significant conversations. It is possible that Mr. DePlautt
had conversations with others or that others participated in the conversations he

identified, which he may recall, upon further review of the Lease Transaction. The

response to this Interrogatory is based upon Mr. DePlautts currnt recollection, and
Mr. DePlautt will likely review the transaction in more detail during discovery, and such
review may refresh his recollection on further details.
B. .Joan Freilch

Ms. Freilich was the Chief Financial Officer of Con Edison and a member of the

Board of Directors of Consolidated Edison Development ("Con Edison Development")

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during the consideration and implementation of the Lease Transaction. She

communicated with Brian DePlautt, Kevin Burke, Mary Jane McCaltney and Charles

Muoio concerning the Lease Transaction. She may have also communicated with Eugene McGrath, the chairman of Con Edison. Much of these communications would
have taken place at Con Edison Development Board of Director meetings and
Consolidated Edison Company of New York, Inc. Board of

Trustee meetings. These

discussions related to the advantages and disadvantages of the Lease Transaction,
including its impact upon Con Edison's financial statements and its relationship to Con

Edison Development's business plan. Ms. Freilich believes that the discussions at Board
of Trustee and Board of Director meetings also included risks associated with the Lease Transaction, including the risks associated with Con Edison's interest in the RoCa3

property, and Con Edison's ability to operate the RoCa3 property. Ms. Freilich further
believes that the discussions included the legal and tax aspects of the Lease Transaction.

Ms. Freilich believes she spoke with employees in Con Edison's corporate
planning department and/or accounting department in order to understand the financial

accounting for the Lease Transaction. She does not currently recall the individuals with
wbom she had such discussions.
C. Marv Jane McCartnev

Ms. McCartney had discussions with Mr. DePlautt concerning the details of the Lease Transaction, including the amount of Con Edison's investment and the economic

return from the Lease Transaction. She also had discussions with Mr. DePlautt
concerning the business and regulatory environment in the Netherlands, the qualifications
of Con Edison's advisors, the role of the Lease Transaction in Con Edison

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Development's portfolio, and the legal and tax aspects of the Lease Transaction. She also
had discussions with Ms. Freilich and Mr. Muoio concerning some of these subjects,

primarily at Con Edison Development Board of Trustee meetings. Ms. McCarthy may
have provided updates on the Lease Transaction to Mr. Souter and/or Mr. McGrath.

Ms. McCaltney also met with Robeit Schwartz, the chairman of Consolidated

Edison Company of New York, lnc.'s Finance Committee. The purpose of this meeting
was to review with Mr. Schwartz the White Paper prepared with respect to the Lease

Transaction. Ms. McCartney also believes she reviewed the Lease Transaction with
Mr. McGrath.

D. Kevin Burke
Mr. Burke was Con Edison's vice-president for corporate planning at the time of

the Lease Transaction. He communicated with Mr. DePlautt concerning the economics
of the Lease Transaction, including the rental payments and other payments to be made

pertaining to the lease agreements. He also communicated with Ms. Freilich and
Ms. McCartney on these subjects.

Mr. Burke communicated with Mr. Muoio concerning the Lease Transaction and

its fit within Con Edison Development's overall strategy. He also communicated with
Ms. Freilich and Ms. McCartney on this subject.

The discussions related to the Lease Transaction also related to the advantages of
learning about the energy business in foreign countries and also related to the quality of

the RoCa3 Facility and the risks associated with an interest in the Facilty.

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E. Andrew Scher
Mr. Scher, a member of Con Edison's law department, was assigned as in-house

legal counsel to review documents and provide legal advice with respect to the Lease
Transaction. He communicated with Mr. DePlauu in this capacity. Mr. Scher

communicated with Mr. Holzman and potentially Mr. Culp of Cornerstone regarding the
economics of the Transaction.

Mr. Scher also communicated with Brian Cray, who assisted in the review of
documents. Mr. Scher also communicated with Shearman & Sterling, which was

primarily responsible for the drafting of the documents from Con Edison's point of view.

Mr. Scher communicated with Mr. O'Shea (the General Counsel of Con Edison) and
Mr. Irwin regarding his review.

Mr. Scher communicated with Marianne Rosenberg of White & Case concerning
the in-hoiise coiinsel opinion Con Edison delivered to South Holland Electric,

Hollandsche, and Wilmington Trust Company at the closing. Mr. Scher also communicated with Mr. Strupp of David Polk & Wardwell concerning comments to the transaction documents.

Mr. Scher also communicated with representatives of Clifford Chance concerning
the opinions prepared by them to be delivered to Con Edison.

Mr. Scher also communicated with representati ves of Loeff Clayes Verbeke

concerning their legal advice provided to Con Edison.

Mr. Scher also may have communicated with Michael Ledyard, counsel for

Wilmington Trust Company. He also may have responded to questions posed by
Mr. Dewey of Pricewaterhouse.

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F. Peter Irwin

Mr. Irwin was a member of Con Edison's law department. His principal role with
respect to the Lease Transaction was to callY out the process of obtaining necessary

corporate approvals for the Transaction. He communicated with Mr. DePlautt in order to

obtain an overview of the Transaction for this purpose. He also attended Board of
Trustee meetings at which the Lease Transaction was discussed. He also communicated

with Mr. Scher and Mr. O'Shea regarding the Transaction.

Mr. Irwin also participated in the interview of Shearman & Sterling which led to their retention as legal counsel in connection with the Lease Transaction.

Dated: January 5, 2007
Respectfully submitted by:

TLe£1~
Attorney of Record Mayer, Brown, Rowe & Maw LLP 71 South Wacker Drive Chicago, Ilinois 60606
Telephone: (312) 701-7216

NICOLE M. BIELAWSKI 1909 K Street, N.W. Washington, D.C. 20006-1101
Telephone: (202) 263-3452

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

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DECLARATION
I, hereby declare, under penalties of

perjury, that Plaintiffs foregoing Second

Supplement to Responses to the United States' First Set oflnterrogatories is tre and
complete to the best of my knowledge. ,"\ 'i --. r.

~)§

Andrew Scher Assistant General Counsel
Consolidated Edison Company of

New York, Inc.

28