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

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EXHIBIT

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UNITED STATES COURT OF FEDERAL CLAIMS
YANKEE ATOMI C ,

Plaintiff,
Docket No.
UNITED STATES,

98- 126

Pages:

1 through 100

Place:
Date:

Washington, D. C
June 29, 2004

HERITAGE REPORTING CORPORATION
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THE

UNITED

STATES

COURT

FEDERAL

CLAIMS

YANKEE ATOMIC,

Plaintiff,
Docket No.
UNITED STATES,
Courtroom 8 National Courts Building

98- 126

717 Madison Place, N. Washington, D. C .

Tuesday,
June 29, 2004

The parties met

pursuant to notice of the
m.

Court, at 2: 00 p.
BEFORE:

HONORABLE JAMES MEROW

Judge

APPEARANCES:

For the Plaintiff:

Washington ,

ROBERT L. SHAPIRO, Esquire PETER J. SKALABAN, Esquire JERRY STOUcK, Esquire Spriggs & Hollingsworth 1350 I Street, N.
D. C.

(202) 898- 5800

20005

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the construction of this

facility.

And as I said, we

do have some other photographs as well that I think
will be instructive.
Deposi tion designations, as Mr. Lester

mentioned, we did submit on Friday
THE COURT:

- - no, yesterday -Rule 32,

MR. STOUcK:

Right. - - designations under

and I think our position on this is we are also

aware,

as I mentioned before, and I assume the Court is, of
this recent decision by Judge Lettow in the

Globe case

which addresses the utility of Rule of Evidence
801 (d) (2)

as being able to submit deposition

designations.
We are considering, in light of that

ruling,

considering some additional designations, but the ones
that we submitted on Monday, yesterday, under Rule 32

are, we believe, as we said in the motion, you know,

consistent with the rule.
We also may have some rebuttal designations
from the depositions on issues that really are not

part of our case, like Dcss and whatnot.

But I think

if the government is planning to make use of the rules

to similarly designate deposition testimony as

evidence, we would like that to be done , I think it' appropriate that that be done in advance of trial so

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that we can deal with any issues they may raise
through our witnesses or through our trial

preparation, and not be surprised by that. But it' s actually my understanding

from some

of the correspondence was that the government

understanding was - - we can hear from them today
was that they were not planning to do
THE COURT:
unpublished decision that I issued in the

this.
Huqhes case

To be totally fair, I have an

that I am trying now , and probably should have a copy

of it.

Yes, sir, please.
MR. STOUcK:

Thank you.

It'

s unpublished?

THE COURT:

It'

s unpublished.

But anyway,

it deals with relatively the same subject, so I would

probably be consistently right or wrong, depending on

how you look at

it.
Would you like a preview or?

(Laughter. )
MR. STOUcK:
THE COURT:

Well, those over 100 miles

situation.
MR. STOUcK:

Okay.

Well, we ll take a look

at it.
THE COURT:

So on use of depositions.

But

yes, I think really there should be before trial

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designations if either side intends to designate any

further.
MR. LESTER:

Actually, Your Honor, I am a

little disturbed at the moment because I just heard
Mr. Stouck say they are going to designate more.

The stack that we got last night, I mean, we

haven '

t

even gotten through this, I mean, I didn '

t see

it until this morning because it was filed after close
of business.

But I can tell you from what I have seen

through here there are lots of

obj ections in

the

middle of the testimony that' s

been designated.

So we re going to have to go through with

the Court all of these obj ections.

The Court is going

to have to rule on all these obj ections.
THE COURT:

Well, let me shorten that

substantially by saying that , and you will hear this

all during the trial, I am a great advocate of post-

trial findings of fact, and briefing it post-

trial.

And so I don t make sticklers on terms of evidence
rulings during the

trial.

m liable to kick it down

the alley to the post- trial situation on the theory

that if you have it in the record, you can propose a
finding on it later , and the other side can argue that

it'

s not appropriate because there is an

obj ection

it and so on and so

forth.

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So that applies mainly to written stuff, so
that I think that that' s the sort of thing that we

don t have to worry about pre- trial, in other words.
MR. LESTER:

With all due respect, Your

Honor, I think that this is actually an important
issue because this will affect what the government has

to do in terms of developing a response in its portion
of the case.
If we ve got to respond to -- let me use Ms.

Klein

s deposition as an example.
THE COURT:

Okay.

She is testifying as a

30 (b) (6)

deponent.
THE COURT:

Right.
A lot of these questions and a

MR. LESTER:

lot of the obj ections over things that are circled are

outside the scope of that 30

(b) (6) deposition.

The

effect of the testimony given that - - you know , the

Court' s rul ing

on whether or not it was wi thin the

scope of the deposition , the level of reliance that

the Court can have on the deposition transcript, those
are all very important factors for us in determining

whether or not we have to call Ms. Klein to get up on
the stand.

Some of these questions are about what does

she understand the Nuclear Waste Policy Act to
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You know, things like that, do we really have to put
people on the stand to testify as to what the act

says?
doesn

You know, we have to then

if the Court

t make a ruling on whether or not that type of

testimony is admissible, then we have got to go put on

a whole bunch of needless testimony perhaps, and I am trying to avoid that, because it just unnecessarily

lengthens the trial, but it also makes it very
unpredictable as to what it is we .

are really

fighting

against.
Are we really fighting the
trying to

develop factual findings, or are we having people
testify as to what the law is?

And I really want

to,

to the best I can, stay away from

that, but if all

that comes in then I have to try to figure out what to
do in response.
THE COURT:

Supposing she does testify as to

what the law is, it certainly wouldn t be binding to

me.
MR. LESTER:
Your Honor.

Well, this is the question,

You know , they are saying she is

testifying under Rule 30

(b) (6) witness.

Does that

have a different effect than
THE COURT:
MR .

It doesn t bind the Court.

LESTER:

Well, we have to then try to

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make - - another issue on -THE COURT:

She may have a view of what the

law is, and that' s her view.

MR. LESTER:

Well, Your Honor , another issue

she is going to be, beyond these designations, and you can see, I mean , this is a pretty substantial

designation, each one of these pages has designated

testimony on it.
thi s ,

We have got to now read through all

and even though
. THE COURT:

Well, you may want to add other

passages too, so you do have a view from that

standpoint.
MR. LESTER:

And we may have to add
all of this

wi tnesses to respond to all of these

testimony.

There is a lot of stuff in

here.

And I am

hearing now that we re going to have more deposition
designations potentially.

You know , where does it

stop?

And how much of this becomes then a paper, an

administrative record as opposed to a trial with live

wi tnesses?
THE COURT:

Sounds like the District

Court.

MR. LESTER:

Well, I mean , obviously this

case though is not an APA review

case.

This is

supposed to be a trial with
THE COURT:

It happens to everybody in the
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District Court.

MR. LESTER:
THE COURT:

With APA review,

yes, but --

, also with witnesses who are

more than 100 miles away.
MR. LESTER:

Well, that'

s true, but we have

witnesses that are available that can actually provide

1 i ve test imony, and we re going to have

I mean, we

have a huge -THE COURT:

I am sure, Mr. Lester, that you

can deal with it, so I' m not a least little worried

about it.
MR. LESTER:

Well, Your Honor , I guess then

we need a deadline, not just for the government but
for the Plaintiff so we can see what it is that'

going to be designated so we can identify designations
in response.

THE COURT:

That'

s what we are talking

abou t .

What deadline do you think is
MR. LESTER:

appropriate?

Well, I would have thought that
what' s been given to us, what we

gi ven the breadth of

got late last night, I' m

very concerned that this

should have been given to us awhile

ago.

I don '

t

know

what deadline, but we need one pretty quickly because
I need to know what we re up against here because this

is really beyond what I could have even imagined was

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going to be designated.
THE COURT:

Mr. Stouck, when are you going

to -MR. STOUcK:

Well, Your Honor, we raised at

the May 13 conference our perception of a need for a

deadline, and you know, we weren t able to work that
out with the government, so we didn t want to wait.
much longer.

too

And as far as the breadth and depth of the
stack of papers, I would just point out that it' s the

government'

s witnesses that have provided that

testimony before

trial.
designations.
Rule 32, as you know, limits

Let me talk about the further

There are two issues.
the designations to 30

(b) (6) witnesses, or generally
That'
s what we

senior government officials.

submi t ted .
Judge Lettow s ruling suggests that under
801 (d) (2), the rule on admissions , the non~hearsay

nature of admissions, it would be appropriate, it is
appropriate to designate additional

testimony.

There

are lots of other government witnesses who have said

lots of things that are very consistent with our

case,
admit

and very support i ve of our case.

And if those are

admissible evidence, we would certainly like to

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those, and we are willing to live by a deadline that
am proposing, which is the pretrial.

Secondly, there is also a lot of government

testimony in the depositions about DCSs, APRs, all of

that stuff. That is no part of our case. We think that' s all irrelevant. The Court' s rul ed that that' irrelevant. It' s, you know , planning purposes, and
nobody is really planning for
I think the Court is

familiar with the issue.
If the word
trial, that would fine by

That is no part of our

case.

"Des" didn

t come up in this

us.

We expect though that

the government is going to raise those issues in their

case, about how the process is binding or whatever may
survive the Court'
s adoption of the

Commonwealth

Edison ruling.
If that occurs, then we would like to, and I think it would be appropriate and important that we
submit to the Court the deposition testimony from the

government'

s own witnesses , the government' s own

wi tnesses that the Court has seen in it summary
judgment briefing that the Des process was not

binding.

They never understood it to be binding.

one understood it to be binding.

And so forth as a responsive point to the
you know, again, it' s similar, I guess maybe this is

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the mirror image of at least part of what the
government is saying about their witnesses.

We don

know what they are going to

say.

But if they do say

some things that their own witnesses have disavowed in their depositions, we would want to have the

opportunity to submit
THE COURT:

those.
You re talking about rebut

tal, I

assume then.
MR. STOUCK:
THE COURT:

Rebuttal.
Okay.
m sorry, Your Honor.
I am

MR. LESTER:

actually very disturbed by this.

You know, we

prepared our defense based on the witnesses that the

Plaintiffs identified in their witness

list.
snide-

Why in the world are we going to have a

whole bunch of deposition testimony from little

bits of various depositions when all those witnesses
are available to testify?
What is the fear about
t they

having these ' people testify? And why weren
they wanted to present testimony from these

listed on the Yankee s witness list to start with if

folks?
- - before

Neither were the excerpts identified earlier

in these proceedings when the government was

the government prepared its responses -- its defensive

case, and so the government

- - you know,

we haven

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potentially prepared a response to identify deposition
testimony that the Yankees may now try to bring into

this case without calling actual witnesses who again

were not listed on their witness

list.

. I would

hate to be in a position where then

we have got to like try to add people to our witness
lists that are not even on there now to try to respond

to paper deposition testimony that wasn '

t previously

identified as a part of this
THE COURT:

case.

Well, the depositions that

the excerpts that are listed, were these particular
individuals listed as a part of the Plaintiff' s case
as witnesses?
MR. LESTER:

Not as part of the Plaintiff'

case.
on - -

Now, the government has put those three people

we had those three people on our witness

list.
Two

Well, only one of them is currently a will of them are may

call.

calls.

But my understanding is none

of these people were actually on the Plaintiff'

witness list.
MR. STOUCK:

Your Honor, in response to the

Court'

s question, our witness lists, as I think I have

mentioned at the last conference, did announce that we
would reserve the opportunity to call anyone that the
government named.

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THE COURT:

Right.
But the live testimony

MR. STOUCK:

point, I

think, goes nowhere.

We are complying with the
This is their

Court'

s rules.

It'

s called Rule 32.

witnesses, their sworn testimony that happens to

support our case. That'
like about

s what Mr. Mr. Lester doesn

it.
I think each party said that

THE COURT:

they would - I recall.

on their witness lists they also

included the witnesses listed by the opposing party as

So I would be concerned if there was no
I mean,

indication at all that these persons would
if they came out of the blue, it would be a

problem.

But the fact there are depositions indicate that there

was some knowledge that they would be witnesses in the

case.
MR. LESTER:

Well, Your Honor, with all due

respect, I think there was an indication that they
were being deposed.

But when they weren t placed then

on witness lists, why in the world would we develop a

defense to testimony that wasn '
at the trial?

t

going to be presented

You know, I have no idea what else they are
intending to designate because we haven t been told

that.
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THE COURT:

Well, I assume that -- I haven

looked at the witness list, but I seem to recall that
each party reserved the right to call any witness that
the other didn

't

call that they listed, and so it

wouldn t be an objection if you didn t call Mr. Kadak
or something if the Plaintiff called him in that
respect, because you re on notice that any of the

people you list,

but then don t call, can be called by

the opposing party.

So maybe you all wouldn t do that , but
Defendant also reserves the right to call all
witnesses listed on Plaintiff' s witness list, so on

your own witness list you reserve the right to call
all the witnesses listed on the Plaintiff' s witness

list, and I think
MR. STOUCK:

I believe we did the same.

MR. LESTER:
THE COURT:
did likewise.
MR .

Sure.
I think probably the Plaintiff

LESTER:

Sure, and I don t dispute

that,

Your Honor.

What I am saying is there actually were a

lot of people deposed that aren t on anybody
THE COURT:

s lists.

Yes.
I am just sitting here guessing

MR. LESTER:

as to what we re going to get from the
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Plaintiff.

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THE COURT:

Well, I would be concerned if

somebody tries to present deposition testimony from
somebody who nobody has listed as proposed witness.
That would be a problem.

If it has prejudice

aspects,

well, that would be a definite problem because my
pretrial does indicate that you have to designate all

the witnesses that you intend to

call.

You have to.

give the other side notice so that it would be a

definite problem if that
I don t think

occurred. that' s the current situation.

MR. LESTER:

Well, quite frankly, Your

Honor, I have no idea because I have for the first time here today heard that there is going to be
potentially more deposition designations.
I don '

t

know how extensive these are going to be or when we

going to get them, or what the Yankees are
THE COURT:

intending.
12th.

All right, that' s what we are

talking about.

I mean, the trial starts on the

MR. LESTER:
THE COURT:

And Your Honor -So there isn t a lot of time

left before trial, but I would think definitely that
you would need designations by no later than the 7th
or 8th.

MR. STOUCK:

Eighth is fine with us, Your

Honor, if the government can make that
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MR. LESTER:

Well, Your Honor , actually, I

would be very - -

I would very much like to have all

designations before that

time.

I mean, if they are

going to be as extensive or even more extensive than

what we have already gotten, I mean, the stack that we

. got late

last night is going to take us a significant

amount of time to get through, particularly in
of all the objections that are in the circled

light

testimony.
You know , if we get more testimony on the

8th or

9th, and it'

s this thick or thicker, you know,

we' re not going to have any time to go through it
before the trial begins, and I would ask that we
because then we are going to have to try to go through
and identify other testimony in those depositions that

we might need to tag to explain or put in context the

testimony that'

s been circled, and to identifying any

other objections that we might have to

it.

I f' we are going

to have to be prepared on

the 12th to respond to all of

it, it' s a pretty big

burden if we re talking about incredibly thick
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deposi tion

designations.
I'll just throw this out for

THE COURT:

counsel to think about, what about if they are
admitted for all non- objected to questions with the

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objected to questions reserved for future briefing

issues?
MR. LESTER:

Again, Your Honor, I think that

puts us in a position where then we have to put
evidence in in our responsive case to respond to it

because we don t know what the admissibility rulings

on the testimony are going to be.
If we take a risk and don t put on

responsive testimony, and the Court finds
admissible, then we haven t responded to

it' s

it.

If we go

ahead and respond to it, and the Court finds it wasn ' t
admissible, we have apparently
potentially we have

put the evidence into the case anyway even though it

shouldn

t have properly been there, or wouldn t have

properly been there in the Plaintiff' s case.
MR. STOUCK:

Your Honor, could I get some

clarification on what the government'

s position is

here?
I mean , they want to respond to this

stuff.

I haven '

t

heard any suggestion of a time when

counter-

designations would be

due, so that' s

one issue.

I mean, but is there any dispute that Rule

32 is in force in this case?
MR. LESTER:

Mr. Stouck, I think I would

like to talk to the Judge since we re in Court rather

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than you -MR. STOUCK:

No, I'

m trying to find out what

we are arguing

about.
-- having conversations with

MR. LESTER:

me.
MR. STOUCK:

I have asked for a deadline

prior to trial for submission of designations, and we

are willing to live with the 8th, or we would even
consider perhaps an earlier

date.

I mean, it'

s not

much time, but there is some very important, as you
can tell not to emphasize the point too much, but I

think as you can tell here there is some very
important testimony from the government' s witnesses

that squarely powerfully supports our case.

It was given under

oath.

In the case of Ms.

Klein, it was given by a witness who was put up by Mr.

Lester as a 30(b) (6) witness.

I think the rule

permits that to be admitted in evidence, and we would
like to have it admitted.
THE COURT:
is a huge issue on obj

Well, I' m ections.
point.

not so sure that there
I mean, there are a

lot of issues that arise that are kind of wipe-out

when you get down to the

But if in fact you

raise obj ections,

if there are obj ections to any

testimony designated, and that you feel definitely

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have to be resolved, then raise those issues and
look at them, and it can be done.

I'll

But I do think that all designations should

be in by no later than

well, I would say by

Wednesday the 7th actually by both sides, and then we
will worry about cross- designations hopefully within a

reasonable time thereafter, but preferably with a goal

toward by the 12th.
MR. LESTER:

And Your Honor, just for the
Klein

10'

record regarding Mr. Stouck' s comment about Ms. and the 30 (b) (6) nature, you are going to see a
they were beyond the scope of the 30

lot of

the questions that were asked were obj ected to because

(b) (6) .

Ms. Klein

was not put up for a lot of the questions that were
asked, so she was not speaking as a government

representative for a lot of the questions that they
are attempting to designate her as a 30

(b) (6) witness

after the fact for.
So I also would just like to point out Mr.
Stouck has said that all this testimony they are going

to designate apparently is, you know , crucial and
strongly supports their

case.

They want to put that

in.

If that' s the case, I don t understand why they

haven '

t

called any of those witnesses.

Apparently it' s strong on paper but it'
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strong, I guess, if they call the witness to actually
testify, and I think this is a real problem with just

wholesale admissions of deposition
THE COURT:

transcripts.

Well, it'

s not going to be

wholesale.
MR. LESTER:

Well, it'

s pretty extensive at

least what we have so far, and I' m very concerned
about what we re going to get by the
THE COURT:

7th.

Well, we will deal with it if we
Well, they have a right to

get wholesale submissions.

do it so we will just make the best that we can in the

time that we have, and I will, to the extent

possible,

make rulings on the obj ections
raised to me.

if in fact they are

MR. STOUCK:

Thank you, Your Honor.

The next issue -- actually, just for the
record we, of course, believe that the questions were
all within the scope of the designation 30

(b) (6), but

we can hash that out some other

time.

Proposed findings as stipulated, I believe
the parties actually, my understanding, my
recollection is that the parties actually agree that

the -THE COURT:

Yes.
stipulations that we

MR. STOUCK:

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100
REPORTER' S CERTIFICATE

DOCKET NO. :

98- 126
Yankee Atomic v. United States
June 29, 2004

CASE TITLE:
HEARING DATE:
LOCATION:

Washington, D. C.
I hereby certify that the proceedings and

evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the
above case before the United States Court of Federal

Claims.

Date:

July 5,

2004

Charity Davis

Official Reporter Heritage Reporting

Corporation
Suite 600
1220 L Street, N.

Washington, D. C .
Heritage Reporting Corporation
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