Free Motion to Amend/Correct - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

Document 854

Filed 08/15/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

YANKEE ATOMIC ELECTRIC COMPANY

Plaintiff
No. 98- 126 C

(Senior Judge Merow)

UNITED STATES OF AMERICA
Defendant.

Filed electronically: August 15 , 2004

RUSSELL A. MELLOR' S MOTION TO MODIFY SUBPOENA

Pursuant to RCFC 45(c)(3)(A)(iv) and 45(c)(3)(B)(iii), Russell A. Mellor moves the

Court to modify a subpoena by moving the appearance date from August 16 to August 31.
copy of the subpoena is attached.

Although Mr. Mellor is on the government's witness list , he was not included among the

group of witnesses the government indicated would definitely be called. In

fact ,

the government

only indicated that it would definitely want testimony from Mr. Mellor after the Court session

adjourned on August 11. A subpoena was served on his counsel on August 13 following the trial
session that day. The subpoena calls for Mr. Mellor s attendance on August 16 , although the
accompanying cover letter indicates that an appearance on August 17 would also be satisfactory
to the government.

I This Motion should also be deemed applicable to

Connecticut Yankee Atomic Power Co. and Maine Yankee Atomic Power Co. v.

United States Case No. 98- 154C,

United States No. 98-

Indiana Michigan Power lists Case No. 98- 486C , which is Although this listing appears to be a typographical error , the failure to list v. United States. Co. the docket number of the relevant action means that the subpoena does not meet the requirements and Yankee Atomic of RCFC 45(a)(1)(B). Although Mr. Mellor is only listed as a witness in the since Maine Yankee cases , this motion should also be deemed applicable to Connecticut Yankee
474C. The government's subpoena

the cases have been consolidated for trial.

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Although plaintiffs ' counsel telephoned Mr. Mellor on August 13 in an effort to secure

his attendance at trial the week of August 16 , it has become apparent that an appearance in

Washington on any date earlier than August 31 would be unduly burdensome for Mr. Mellor. As
the Court is aware , Mr. Mellor is currently President of the West Valley Nuclear Services

Company (" WVNSC" ), which manages , operates and decommissions the West Valley Nuclear

Center in West Valley, New York. Tr. 2588 (July 26). A recent incident at the West Valley
Nuclear Center requires Mr. Mellor s attendance at his workplace on the days currently sought

for his attendance by the government. In that incident , a worker jackhammered through an
electrical conduit with a live 480-volt cable inside. WVNSC filed an Occurrence Report with

DOE regarding this incident. Mr. Mellor needs to be in West Valley next week to lead his staff
through the ongoing evaluation of this incident.

In addition , as we have previously apprised the Court and the government, Mr. Mellor has had plans to travel to Kiev , Ukraine as part of an International Atomic Energy Agency

mission to address the decommissioning ofthree units at the Chemobyl plant. Tr. 4970 (August
12).

Mr. Mellor , whose residence , place of employment and place where he regularly

transacts business is more than 100 miles from the Court , is willing to travel to Washington
immediately upon his return from that important trip so that he can appear for testimony on

August 31. Under these circumstances , it would be unduly burdensome for Mr. Mellor to be
required to appear in Washington prior to that time , and he should not be required to do so.
Modifying the subpoena to require attendance on August 31 should work no hardship on

the government. First , although RCFC 45(c)(3(B)(iii) contemplates that a party seeking to
require a person to travel more than 100 miles should show " a substantial need for the testimony

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. . . that cannot be otherwise met without undue hardship, " to date , the government has made no

showing that it truly needs Mr. Mellor s testimony. Indeed , the government has not provided

any explanation beyond the cryptic and vague description in its witness list as to what testimony

it will seek from Mr. Mellor ?

Second,

the dates on which the government seeks Mr. Mellor

testimony, August 16 or 17 , have otherwise previously been slated for testimony from Mr.
Abbott. Third ,

trial is expected to run at least well into the week of August 23; thus , there should

be little , if any, gap between the conclusion of other testimony and Mr. Mellor s appearance on
August 31. In fact , the Court has reserved the courtroom currently being used for trial through

August 31; thus, the parties would not even have to move materials or change courtrooms in
order to accommodate Mr. Mellor.

For the foregoing reasons, Russell Mellor respectfully requests that the subpoena for his
appearance be modified to provide for an appearance date of August 31.
Dated: August 15 , 2004

Respectfully submitted
sf Jerry Stouck

JERRY STOUCK

Spriggs & Hollingsworth 1350 I Street, N. , Ninth Floor Washington , D. C. 20005 (202) 898- 5800 (202) 682- 1639 (facsimile)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:

Robert L. Shapiro SPRIGGS & HOLLINGSWORTH
2 The witness list description states that he " will testify concerning the management of Yankee Atomic and Connecticut Yankee , their decisions concerning fuel storage , and other related matters.

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Case 1:98-cv-00126-JFM

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S. Department of Justice
Civil Division
PDK: DMC : HDL ; MESu11 i van

Telephone:
Washington,

154- 98- 126

(202) 307- 6288
D. C.

20530

August 13, 2004
BY HAND

Jerry Stouck Spriggs & Hollingsworth 1350 I Street, N. Ninth Floor Washington, D. C. 20005- 3305

Re:

Yankee Atomic Electric Co. v. United States, No. Connecticut Yankee Atomic Power 98-126C (Fed. CI. ) States, No. 98- 154C (Fed. CI. )j Maine Co. v. United Yankee Atomic Power Co. v. United States , No. 98- 474C

(Fed. Cl.
Dear Mr. Stouck:

Enclosed is a subpoena for Mr. Russ Mellor I s appearance at trial on Monday, August 16, 2004. We can also schedule Mr. Mellor' s testimony on Tuesday, August 17, 2004, if that day is more convenient for Mr. Mellor.

Sincerely,

MARIAN E. SULLIVAN Trial Attorney Commercial Litigation Branch

Enclosure

Case 1:98-cv-00126-JFM

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UNITED S TATES COURT OF FEDERAL CLAIMS
YANKEE ATOMIC ELECTRIC COMPANY et al.

SUBPOENA
Plaintiff,
No. 98-486C

THE UNITED STATES OF AMERICA,

(Judge Hodges)

Defendant.
TO:

Mr. Russ Mellor
c/o Jerry Stouck, Esq.
Washington, D. C.

Spriggs and Hollingsworth 1350 I Street, NW, 9th Floor
20005

PLACE OF TESTIMONY United States Court of Federal Claims

COURTROOM: Courtroom 5

717 Madison Street, NW Washington, DC

DATE AND TIME Monday, August 16, 2004 ~ 9:00am

0 YOU ARE COMMANDED to appear at the place, date , and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION

I Mm~TIME
, date 0 YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place and time specified below (list documents or objects):
PLACE

I DA~ANDTIME:
0 YOU ARE COMMANDED to permit inspection of the following premises at the dated and time specified below.
TBAND TIME

PREMISES
I DA

Any organization not a party to this suit that is subpoenaed for the taking of a deposition shall designate one or more officers , the matters on or managing agents , or other persons who consent to testify on its behalf, and may set forth, for each person designated Claims rule (RUSCFC) 30(b)(6). which the person will testi . u.S. Court of Federal
ISSUING OFFICER SIGNATURE AND TITLE (Indicate
' Atto

, directors

DATE

August 13, 2004

Attorney for Defendant
ISSUING OFFICER' S NAME. ADDRESS AND PHONE NUMBER:

Marian E. Sullivan, Trial Atty., DOJ, Civll Division, 1100 L Street, NW, Wash. DC, 20005. Telephone #: 202-307-

0365

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3Jn tbe Wniteb ~tates (!Court of jfeberal
No. 98- 126 C

(!Claims

(Filed July 9 , 2004)

YANKEE ATOMIC ELECTRIC COMPANY, Plaintiff

THE UNITED STATES, Defendant.

ORDERJI

Defendant' s Motion for Authorization of Service of a Subpoena, and Motion for Expedited Consideration filed June 29, 2004 , is GRANTED in part. Pursuant to RCFC 45 , defendant may issue subpoenas requiring the attendance of the witnesses listed hereinafter to travel more than 100 miles to testify at the trial of this matter in Washington, DC, which will commence on July 12 2004 , and continue thereafter until completed. Counsel for defendant shall , however, give as much notice as possible to counsel for plaintiffs prior to service of these subpoenas for those persons also represented by plaintiffs ' counsel. Moreover , as plaintiffs ' counsel agreed to accept
. service of

subpoenas for several of these individuals whose names are marked with

asterisks , service on those individuals shall be fully accomplished by delivering the subpoenas to plaintiffs ' counsel. If plaintiffs ' counsel is authorized to accept service on any of the others , plaintiffs ' counsel shall immediately notify defendant in writing. and service on those additional individuals shall be fully accomplished by delivery of the subpoena( s) to plaintiffs ' counsel. Likewise , if plaintiffs ' counsel is not authorized to accept service on any of those asterisked , plaintiffs ' counsel shall immediately

notify defendant's counsel in writing.

JlTh.is should also be deemed applicable in

Connecticut Yankee

v.

United States,

No. 98- 154'

.

and

Maine Yankee

v. United States,

No. 98- 474.

..

Case 1:98-cv-00126-JFM

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Thomas H. Isaacs (Lawrence Livermore , California) Michael Lawrence (West Richland, Washington) Robert L. Morgan (Bend, Oregon) Robert Rosselli (Richland, Washington) Benard Rusche (West Columbia, South Carolina)
Thomas Bennet (AubUrn, Massachusetts)****

John Buchheit (Marlboro , Massachusetts)**** Edward M. Davis (Alpharetta, Georgia) Ruby Grube (Westwood , Massachusetts)**** Frank J. Helin (Keene , New Hampshire) Andrew Kadak (Barrington , Rhode Island)****
Thomas LaGuardia (Bridgewater, Connecticut) Russell Mellor (East Hampton, Connecticut)*"'*'"
Dr. E. E. Pilat (Bolton, Massachusetts)""""""'"

Paul Plante (Wiscasset, Maine)""""""
Frank Quinn (Bolton, Massachusetts)""""""

Weslie Boyea (Stoughton , Massachusetts) Charles Lepisto, III (Baton Rouge , Louisiana) Michael Meisner (Wiscasset, Maine)"""""" Michael E. Thomas (Wiscasset , Maine)**** C. Shyloski (Las Vegas, Nevada) G. Douglas Whittier*"'**
It is so

ORDERED.

sl

James F

ero

James F. Merow Senior Judge

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