Free Memorandum - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC CaMP ANY

Plaintiff
No. 98- 126C

(Senior Judge Merow)

UNITED STATES OF AMERICA
Defendant.

YANKEE ATOMIC' S BENCH MEMORANDUM ADDRESSING THE ADMISSIBILITY OF CERTAIN EXHIBITS PREPARED BY CONTRACTORS.
Yankee Atomic respectfully submits this bench memorandum in response to the Court'

request for legal authority regarding the admissibility of " data or statements made by an entity or
individual under contract or other legal relationship with DOE or another government agency.
Order of July 8 , 2004 at 2 (" Order
). During a July 7 ,

2004 meeting between the parties

government counsel identified the exhibits it objected to on the basis of (1) relevance and (2)

hearsay because they were prepared by DOE contractors. A chart identifying these exhibits , with
other pertinent information on each document , is provided at Exhibit 12 .
The Court has

requested legal authority on the admissibility of these documents "pursuant to Fed. R. Evid.
80 1 (d) (2)

or otherwise. "

These

exhibits are plainly relevant and they are admissible under

multiple hearsay exceptions.

This bench memorandum should also be deemed applicable to Connecticut Yankee v. United States No. 98- 154C and Maine Yankee v. United States No. 98- 474C. 2 Yankee Atomic notes that two of the challenged exhibits , PX659 and PX856 , were not prepared by contractors and therefore are admissible on grounds in addition to those set forth in this memorandum.

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The Documents are Relevant.
The government objects to all of the exhibits identified in Exhibit 1 on the basis of
relevance. Pursuant to the Federal Rules of Evidence
having any tendency

(r)elevant evidence ' means evidence

to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the
evidence. " FRE 401
(emphasis added). Although " (e)vidence

which is not relevant is not
Oddzon

admissible, " FRE 402 , the Rule 401 standard for relevancy presents a " low threshold.

Prods. , Inc. v. Just Toys, Inc. 122 F. 3d

1396 ,

1407 (Fed. Cir. 1997). Indeed , as the Court has

noted in this case objections as to relevancy are not favored if there is any relationship to an
issue(s) in litigation. " Order at

These exhibits clear relevancy s " low threshold" by a wide margin. Indeed , plaintiff

placed these exhibits on its streamlined "will-use " exhibit list precisely because each exhibit is

probative of one or more disputed issues in the case. Both from the face of the documents and
testimony, it is readily apparent that the documents were produced at the request of DOE in the
course of its planning for the operation of its Spent Fuel Program or other relevant DOE
activities.

See, e.

Ex. 2 (Wood 5/8/02 tr. at 54:11 -

55:21 (PXOI52);

McDuffie 3/19/02 tr. at

309:9 - 310:14 (PX0617)).
Most importantly, the challenged exhibits concern matters that this Court has previously

stated are within the broad scope of relevant evidence. For example , the exhibits are probative of
the rate of acceptance in the non- breach world (e.
exchanges PXOI72), shutdown priority

(e.

PXOI52),

(e.

PX0745), and GTCC waste

(e.

PXI908), all issues that this Court has

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identified as relevant its prior Orders in this litigation. ) For all of the forgoing reasons , the

government's relevance objections should not be permitted to stand.

II.

The Documents are Not Hearsay.
The contractor- produced documents are admissible under multiple exceptions to the

hearsay rule.

A. The documents are public records of DOE and therefore admissible pursuant to
FRE 803(8).

Rule 803(8) ofthe Federal Rules of Evidence excludes from the hearsay rule all
(r)ecords , reports , statements , or data compilations, in any form , of public offices and agencies
setting forth (A) the activities of the office or agency. . .. "
meet these criteria they should be admitted into evidence.

Because the

challenged documents

See McGonigle v. Combs 968 F.

810 825 (9th Cir. 1992) (affirming trial court' s ruling allowing file memorandum prepared by
member of staff of state Director of Securities into evidence pursuant to FRE 803(8)).

See also

Butkin Precision Mfg. Corp. v. United States 544 F.2d 499 506 (Ct. Cl. 1976) (citing FRE

803(8) and allowing Renegotiation Board finding into evidence , concluding that finding was

based on reports by Government officials to the Renegotiation Board in the regular course of
their and its business

June 26, 2003 Order at 2 (" The determination of the rate of acceptance , to the extent this See will impact on the amount of damages claimed , is thus in dispute and must be resolved by evidentiary proceedings. ), 3 (" There are disputes over material facts underlying the bases for the use of ' exchanges ' with other utilities having older SNF in order to obtain an earlier assumed pick-up for damage measurement purposes. ), & 4 (" However, even if it were to be determined that the contract at issue does not cover GTCC , the issue of the defendant's policy(ies) concerning GTCC removal is still relevant to the damage determination required in this case. 4 Alternatively, the Court may elect to allow these documents in as " business records " pursuant See, e. g., United States v. Frazier 53 F. 3d 1105 , 1110 (lOth Cir. 1995) to FRE 803(6). (admitting report prepared by independent contractor at direction of Department of Labor into
evidence pursuant to FRE 803(6)).

g.,

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As the location numbers identified in Exhibit 1 show , most ofthe challenged " contractor
documents were produced from the files of DOE (those documents with the production tags HQR or YMP) or from Pacific Northwest National Laboratory (those with the production tag
PNL). See

Ex. 3 (identifying sources of government production by code). Those documents

from DOE' s files , and others which on their face have been kept as records by DOE see, e.

PX1157 , constitute "records , reports , statements , or data compilations " of a public agency.

Similarly, Pacific Northwest National Laboratory (PNNL), like other national laboratories , is a
part of DOE
see

Ex. 4 (webpage from PNNL' s official website), and its records should be

considered DOE' s records. The fact that these documents may have been prepared by a

contracting party (albeit working for DOE) is irrelevant to their admissibility as.public records.

See Air Land Forwarders, Inc.

v.

United States

172 F. 3d 1338, 1343 (Fed. Cir. 1999)

(concluding that similar business records exception FRE 803(6) "does not require that the
document actually be prepared by the business entity prof erring the document"

Moreover , the challenged documents plainly reflect the activities of DOE -

namely

planning or studies for the future operation of the Spent Fuel Program - which DOE

accomplishes in large measure through its contractors. DOE had conducted the Spent Fuel
Program largely through contractors , including both an overall " management and operations

contractor to perform most program tasks and other individual contractors with specialized
expertise for certain other tasks.

See Westinghouse Elec. Corp. v. United States

No. 93- 445C

93- 446C , 1997 WL 1068204 at *2 (Fed Cl. June 4 , 1997) (" Unlike a typical Government

contract through which the Government obtains products and services to assist it in carrying out
its mission, DOE uses the M & a contract to
conduct its mission.

. . . DOE uses the M &

contracts for the operation , maintenance , or support of Government-owned or Government-

);

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controlled research , development , special production , or testing facilities wholly or principally
devoted to one or more major DOE programs. ) (emphasis added). DOE should not be

permitted to exempt its reports , records and statements from admission into evidence under FRE
803(8) simply by delegating their creation to contractors who for all intents and purposes
function as DOE.

Finally, it should also be noted that " (b)ecause public records are presumed to be
trustworthy, ' (t)he burden of proof concerning the admissibility of public records is on the party
opposing their introduction. ", See Columbia First Bank, FSB v.

United States 58 Fed. Cl. 333

339 (Fed. Cl. 2003) (quoting Weinstein s Federal Evidence g 803. 10(2)). The government has failed to offer any evidence tending to show that the challenged exhibits should not be admitted

as public records. For all the forgoing reasons , this Court should find the exhibits referenced in
Exhibit 1 admissible pursuant to FRE 803(8).

B. The documents are authorized by DOE and therefore admissible pursuant to
FRE 801(d)(2)(C).

The challenged exhibits - mostly studies -

are also

admissible because DOE authorized

its contractors to make the statements contained in them , rendering them admissible under FRE
801 (d)(2)(C).

FRE 801(d)(2)(C) provides that statements offered against a party are not

inadmissible hearsay if made " by a person authorized by the party to make a statement
concerning the subject."

See also Glendale Fed I Bank, FSB v~ United States 39 Fed. Cl. 422

424 (l997) (stating that " FRE 801 (d)(2)(C) applies to a person who is not an agent but is
authorized' to speak"
Reid Bros. Logging Co. v. Ketchikan Pulp Co. 699 F. 2d
1292 , 1306-

th Cir. 1983) (allowing into evidence report prepared by non-employee of defendant on the

basis that it was " authorized"

by defendant).

'"

g.,

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On the face of each of these studies , it is readily apparent that DOE authorized the
contractors to produce the study or document
i. e.

authorized (the contractor) to make a

statement (the study) concerning the subject." For example , PXO169 states explicitly on its
inside cover that " (t)his report was prepared as an account of work sponsored by an agency of

the United States Government." Clearly, this language demonstrates that this " account of work"
was authorized by DOE. See also

Ex. 1 (citing document language supporting conclusion that

DOE authorized the documents). Moreover , extensive deposition testimony supporting the same
conclusions has been gathered and identified. See Ex. 2 (citing,

Wood 5/8/02 tr. at 54:11 the extensive supporting record

55:21; McDuffie 3/19/02 tr. at 309:9 -

310:14). Even absent

amassed in the attached Exhibits , it is simply not credible to assume that these studies , reports
and papers were published

sua sponte without the DOE' s authorization. Accordingly, the

challenged exhibits should be deemed admissible pursuant to FRE 801 (d)(2)(C).

C. The documents are admissible as admissions by agents of DOE pursuant to FRE
801( d)(2)(D).

The challenged documents are also admissible pursuant to Rule 801(d)(2)(D), which provides that statements offered against a party are not hearsay if made " by the party s agent or
servant concerning a matter within the scope of the agency or employment , made during the
existence of the relationship. "
Although the

authors of the documents at issue are contractors
Rotec Industries,

an agency relationship can be created by contract. . . .
Corp. 215 F. 3d
1246 ,
1256 (Fed. Cir. 2000) (quoting

Inc. v. Mitsubishi

Chemtool, Inc.

v. Lubrication

Technologies, Inc. 148 F.3d 742 , 745 (7th Cir. 1998)).

See also Paul v. Federal Mine Safety

and Health Review Comm '

812 F. 2d 717 , 718 (D. C. Cir. 1987) (describing Battelle Memorial

Institute , which prepared some challenged contractor documents in this litigation , as " agent" of

DOE). To determine whether a contract creates an agency relationship, the court must examine

)). "

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the level of control that is exercised over the manner in which the representative accomplishes
its assigned task.
Condus v.

Howard Savings Bank 986 F. Supp. 914 , 916 (D.

J. 1997)

(distinguishing between "agent independent contractors " and " non-agent independent
contractors
In

the majority of cases , (PXOI48 , PXOI52 , PXOI62 , PXO163 , PXO169 , PXOI72

PXOI73 , PXOI75 , PXOI80 , PX0209, PX0617 , PX0641 , PX0696 , PX0745 , PX0806 , PX0845

PX0968 , PX1157 , PX1604, PX1610 , PX1690 , PXI914), the contractor(s) who prepared the

challenged exhibits are DOE management and operations or " M & A" contractors.
(Pollog 5/22/02 tr. at 594:25 4/17/02 tr. at 7:23 595:6 (Martin Marietta

See

Ex. 5

Energy Systems , Inc. )); Ex. 6 (Newman

8:8 (Battelle

Memorial Institute)); Ex. 7 (Zabransky 4/18/02 tr. at 258:16-

259:1 (TRW Environmental and Safety Systems)); Ex. 8 (DOE News Release 8/16/98 at
http:/ /newsdesk.inel.gov/press releases/1998/prrecompete2. html (Lockheed Martin Idaho
Technologies Co.

The DOE M & a contract is unique

Westinghouse Elec. Co. 1997 WL

1068204 at *2 , and is characterized by:

(1) use of Government-owned or Government-controlled facilities; (2) DOE' s need to maintain a special, close relationship with the contractor and contractor personnel; (3) work that is wholly or substantially separate from the contractor s other business , if any; and (4) the close relationship with DOE' s mission and the need for a long-term continuing arrangement.
Id. See also

Ex. 4 (stating that Battelle Memorial Instutite operates PNNL , but that PNNL is
). Accordingly, those contractors should be

managed by DOE' s Office of Science

considered

agents of DOE and their statements deemed admissible pursuant to FRE 801(d)(2)(D).

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D. Certain documents are ancient and therefore admissible pursuant to FRE
803(16).

Finally, in addition to the bases for admissibility set forth above , two of the challenged
documents, PX0641 and PX0968 , are independently admissible pursuant to the ancient

documents rule ofFRE 803(16). That rule allows into evidence " (s)tatements in a document in
existence twenty years or more the authenticity of which is established. " FRE 803(16). The
twenty- year period is measured back from the date that the exhibit is offered into evidence.
See

Columbia First Bank 58 Fed. Cl. at 336 (rejecting argument that period be measured " from the
creation of the document to the date the controversy arises ). Accordingly, PX0641 , prepared
February 29 , 1984 , and PX0968 , prepared April 27 , 1984 , should be deemed admissible , subject

to resolution of the government' s challenge to the authenticity ofPX0641.

III.

Conclusion.
For the reasons set forth above and in the exhibits to this memorandum , Yankee Atomic

respectfully requests that this Court reject the government' s evidentiary objections to the

documents prepared by contractors identified in Exhibit 1.

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Date: July 12

2004

JE Y TOUCK

Spriggs Hollingsworth

1350 I reet , N. , Ninth Floor Washington, D. C. 20005 Tel. (202) 898- 5800

Fax (202) 682- 1639

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC CaMP ANY
Of Counsel:
Robert L. Shapiro

Peter J. Skalaban

SPRIGGS & HOLLINGSWORTH