Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 1 of 23
EXHIBIT
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 2 of 23
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
Official Reporters 1220 L Street , N. W. , Suite 600 Washington , D. c. 20005- 4018 (202) 628- 4888 hrc~coHcentric. net
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 3 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 4 of 23
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
Heri tage Reporting Corporation
(202) 628- 4888
-Case 1:98-cv-00126-JFM Document 856-2 Filed 09/03/2004 Page 5 of 23
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
Heritage Reporting Corporation
(202) 628 - 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 6 of 23
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.
Heritage Reporting Corporation (202) 628-4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 7 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
say.
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 8 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 9 of 23
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
(202) 628- 4888
Heritage Reporting Corporation
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 10 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 11 of 23
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
Heri tage Reporting Corporation
(202) 628- 4888
-Case 1:98-cv-00126-JFM Document 856-2 Filed 09/03/2004 Page 12 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 13 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 14 of 23
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.
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 15 of 23
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.
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 16 of 23
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
(202) 628- 4888
Plaintiff.
Heri tage Reporting Corporation
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 17 of 23
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
(202) 628- 4888
deadline.
Heritage Reporting Corporation
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 18 of 23
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
, 22
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
Heri tage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 19 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 20 of 23
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
Heritage Reporting Corporation
(202) 628- 4888
-Case 1:98-cv-00126-JFM Document 856-2 Filed 09/03/2004 Page 21 of 23
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'
Heritage Reporting Corporation
(202) 628- 4888
s not
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 22 of 23
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:
Heritage Reporting Corporation
(202) 628- 4888
Case 1:98-cv-00126-JFM
Document 856-2
Filed 09/03/2004
Page 23 of 23
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
(202) 628- 4888
20005- 4018