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

Case 1:06-cv-00305-MBH

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No. 06-305 T (Judge Marian Blank Horn)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES Plaintiff v. THE UNITED STATES, Defendant

DECLARATION OF DAVID N. GEIER

I, David N. Geier, pursuant to 28 U.S.C. § 1746, declare and state to the best of my knowledge as follows: 1. I am employed as a trial attorney with the United States Department of Justice, Tax Division in Washington, D.C. I am assigned responsibility for representing the interests of the United States in the above-captioned case. I am familiar with the documents produced by the Internal Revenue Service from its administrative files pertinent to the above captioned case, and the portions produced to Plaintiff by the United States in discovery. I am also responsible for and familiar with the documents produced by Plaintiff during discovery in the above captioned matter. I make this declaration in support of the United States' Second Motion to Compel.

Case 1:06-cv-00305-MBH

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Discovery Responses 2. Attached hereto as Exhibit A-1 is a true and correct copy of the Plaintiff's

Response to the United States' Interrogatories, produced by Plaintiff on or about November 2, 2006. 3. Attached hereto as Exhibit A-2 is a true and correct copy of Plaintiff's First

Supplemental Response to the United States' Interrogatories, produced by Plaintiff on or about December 13, 2006. 4. Attached hereto as Exhibit A-3 is a true and correct copy of the Plaintiff's Second

Supplemental Response to the United States' Interrogatories, produced by Plaintiff on or about January 5, 2007. 5. Attached hereto as Exhibit A-4 is a true and correct copy of the Plaintiff's Third

Supplemental Response to the United States' Interrogatories, produced by Plaintiff on or about March 15, 2007. 6. Attached hereto as Exhibit A-5 is a true and correct copy of the Plaintiff's

Response to the United States' Request for Production, produced by Plaintiff on or about November 3, 2006. 7. Attached hereto as Exhibit A-6 is a true and correct copy of the Plaintiff's First

Supplemental Response to the United States' Request for Production, produced by Plaintiff on or about November 17, 2006. 8. Attached hereto as Exhibit A-7 is a true and correct copy of the Plaintiff's Second

Supplemental Response to the United States' Request for Production, produced by Plaintiff on or about December 13, 2006.

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Correspondence 9. Attached hereto as Exhibit B-1 is a true and correct copy of a letter dated

November 8, 2006, addressed to Plaintiff's counsel. 10. Attached hereto as Exhibit B-2 is a true and correct copy of a letter dated

November 13, 2006, addressed to David Geier, counsel for the Government. 11. Attached hereto as Exhibit B-3 is a true and correct copy of a letter dated

November 17, 2006, addressed to addressed to David Geier, counsel for the Government. 12. Attached hereto as Exhibit B-4 is a true and correct copy of a letter dated

December 12, 2006, addressed to Thomas Durham, counsel for Plaintiff. 13. Attached hereto as Exhibit B-5 is a true and correct copy of a letter dated

December 21, 2006, addressed to David Geier, counsel for the Government. 14. Attached hereto as Exhibit B-6 is a true and correct copy of a letter dated

February16, 2007, addressed to David Geier, counsel for the Government. Documents Produced in Discovery 15. Attached hereto as Exhibit C-1 is a true and correct copy of a document titled

"Minutes of a Meeting of The Board of Directors of Consolidated Edison Development, Inc.", dated December 18, 1997, produced in the course of discovery. 16. Attached hereto as Exhibit C-2 is a true and correct copy of a document titled

"Leasing White Paper," produced in the course of discovery, containing all redactions requested by Plaintiff.

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17.

Attached hereto as Exhibit C-3 is a true and correct copy of a letter dated October

21, 1997, attaching a document an exhibit titled "Pricing Assumptions," addressed to J.A. Hoyte de Jong, of EZH, produced in the course of discovery. 18. Attached hereto as Exhibit C-4 is a true and correct copy of a document titled Tax

Indemnity Agreement, produced in the course of discovery. 19. Attached hereto as Exhibit C-5 is a true and correct copy of a document titled

"Minutes of a Meeting of The Board of Directors of Gramercy Development, Inc.", dated July 23, 1997, produced in the course of discovery. 20. Attached hereto as Exhibit C-6 is a true and correct copy of a document titled

"Minutes of a Meeting of The Board of Directors of Consolidated Edison Development, Inc.", dated October 29, 1997, produced in the course of discovery. 21. Attached hereto as Exhibit C-7 is a true and accurate copy of the relevant excerpt

from a document titled "Con Edison Development, Inc. October 1998 Report to Board of Trustees," produced in the course of discovery. 22. Attached hereto as Exhibit C-8 is a true and accurate copy of a document titled

"Minutes of a Meeting of the Board of Directors of Consolidated Edison Development, Inc." dated September 25, 1998 produced in the course of discovery. 23. Attached hereto as Exhibit C-9 is a true and accurate copy of an internal Con Ed

memorandum with the subject heading, "Consolidated Edison Development MEGA Lease," dated September 29, 1998, including the attachments thereto, produced in the course of discovery.

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24.

Attached hereto as Exhibit C-10 is a true and correct copy of a document titled

ENECO White Paper 4, produced in the course of discovery, containing all redactions requested by Plaintiff. 25. Attached hereto as Exhibit C-11 is a true and accurate copy of an internal Con Ed

memorandum with the subject heading, "Consolidated Edison Development, Inc. ENECO Proposal," dated December 10, 1997, including the attachment page thereto, produced in the course of discovery. 26. Attached hereto as Exhibit C-12 is a true and accurate copy of the relevant

excerpt from a document titled "Con Edison Development, Inc. September 1998 Report to Board of Trustees," produced in the course of discovery. 27. Attached hereto as Exhibit C-13 is a true and accurate copy of a slide entitled

"1998 Leasing Investment Targets" from a presentation, entitled "ConEdison Development" dated January 28, 1998, produced in the course of discovery. 28. Attached hereto as Exhibit C-14 is a true and accurate copy of a spreadsheet

entitled "Current Project Development Opportunities: Europe Area" dated July 27, 1998, produced in the course of discovery. 29. Attached hereto as Exhibit C-15 is a true and accurate copy of a spreadsheet

excerpt entitled "Project List: Europe", produced in the course of discovery. 30. Attached hereto as Exhibit C-16 is a true and accurate copy of an email string to

Jeanette Li, dated January 21, 2001, produced to the IRS during the audit stage of the matter currently before this Court, and included within the portions of the IRS administrative file produced to Plaintiff during discovery.

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Unpublished Opinions 31. Attached hereto as Exhibit D-1 is a true an correct copy of the opinion issued on

January 1, 2007 by the Middle District of North Carolina in BB&T Corporation v. United States, case number 1:04-cv-00941. I declare under the penalty of perjury that the foregoing is true and correct. Executed this 4th day of April, 2007 in Washington D.C. s/ David N. Geier DAVID N. GEIER Trial Attorney, Tax Division U.S. Department of Justice

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