Free Motion in Limine - District Court of Federal Claims - federal

- -- ---- --- - --- -- -- --- ---- ----------- -- ----- ---- - - -- ---- ---Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPOSmON

Document 815-6
May 3, 2004

Filed 06/01/2004

Page 1 of 18
Yankee Atomic v. USA

Page 1

In the United States Court of Federal Claims

Yankee Atomic Electric
Compan y

: NO. 98- 126C

Uni ted States of America

May 3, 2004

DEPOSITION OF:
Kenneth W. Blair

a wi tness, called
cornrnenclng at

by counsel pursuant to

notice,

9: 30 a. m., which was taken at Spriggs

and Hollingsworth , 1350 Eye St., NW, Washington, DC

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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Page 2 of 18
Yankee Atomic v. USA

Page 61

from Judge Merow to have a report done by the middle
of February.

We complied with that

requirement.

Those are the kinds of communication I would get from staff relative to what it is the Department

of Justice was interested

in.
Mark this as exhibit

MR. SHAPIRO:

one.
(Whereupon the proffered item was

marked as exhibit number 1.

Mr. Blair, you ve been handed what we

marked as exhibi t
Yes,
What

one to your

deposition.

Do you recognize this document?

do.

it?
the summary
opinlon that was

It'

prepared, signed on February 18, 2004 relative to
delay issues on the three atomic power

plants.

Did you prepare this summary of opinion

yourself?
The staff and I drafted this document.
What was your role in drafting this

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPOSmON

Document 815-6
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Yankee Atomic v. USA

Page 62

document, exhibit one?

The process took place, the actual
drafting of the document took place during the month
of January.

I was involved with Frank Caputo, Kelly Heuer and we would look at the results of our work
papers, the analysis, and we put together the
document that'

s before you.

Who was responsible for actually drafting
the prose in exhibit one?

I have overall responsibility for the

report.
My question is who wrote it?
Who wrote it?

Kelly Heuer and I.

Did Kelly Heuer have the maj or role in
actually writing the words that we see in exhibit

one?
MR. SHULTIS:
characterization of maj

Obj ection,

or role.

She typed it because she can type but she
and I went back and forth on the draft of this

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

Page 63

document and she and I -- we co- authored it as far

as I' m concerned.
You are saYlng Ms. Heuer typed

it.

Did

you provide her with a longhand handwritten document
that she typed?

It evolved over

time.

It evolved over a

period of a couple of

weeks.
My question is

That'

s not my question.

did you provide Ms. Heuer a handwritten document

that she simply typed up that became exhibit one?

No.
Was there any part of exhibit one that you
actually wrote the words of yourself?

The wording in here was In many cases my

language.

What percentage of it I originally

authored so that she typed it, I can t say, but we

passed the draft several times and I would write

things down,
together.

she would type them, she would offer

some statements and so forth and we would do it

MR. SHULTIS:

d like it noted for

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

Page 64

the record that we provided you with the draft of

the report.
MR. SHAPIRO:

ll get to

that.
if you

Thank you.
Maybe it would

help, Mr. Blair ,

could describe the process for me a little bit

more.

When it

carne time to

actually draft the report, what

did you do?

At that point in time we had the work

papers, we had the number of months of

delay,

causation and so forth and we put into writing

wi thin the time constraint that we had the results
of that analysis that was set forth in our work

papers, and Ms. Heuer and I drafted the

You and Ms. Heuer discussed

report. the findings

and then Ms. Heuer went off and typed up the first

draft?
I don t recall.

She may very well have

done that.

She did the typing so she obviously
yes.

typed it,

Did you provide her with a written outline

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

Page 65

that she used to type up the report?

I drafted parts of

it.
her.

I don t recall

what percentage I provided to

I don t recall

giving her an outline.
The format of the report she and I discussed
at length.

That outline format was

discussed, as I

understand, with counsel and we finished the

report.

You said that you drafted portions of
exhibi t

one.

What portions did you yourself draft?

I don t recall.

MR. SHULTIS:

Obj ection , asked and

answered.
Do you recall what percentage of exhibit
one that you yourself drafted?
MR. SHULTIS:

Obj ection,

as ked

and

answered.
I don t recall what percentage I drafted,

no.
If you don t type, in what format did you

provide Ms. Heuer , who was doing the typing, with

the parts of exhibit one that you did draft?

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

Page 66

One, I do

type.

A marked up copy of the
I just don

draft and faxed it to her, perhaps.

recall how she got

it.

She carne

to Mount Laurel occasionally.

went to New York occasionally.

How many times did you mark up drafts of

the report and communicates comments to Ms. Heuer?
I don t recall.

Was it more than
MR. SHULTIS:

five?
Objection, asked and

answered.

Probably.
More than ten?
MR. SHULTIS:
I don t know.

Same obj ection.

Somewhere between

five

and -- I don t know.

I just don t recall.

worked on it together and sometimes you wouldn
even call it

a draft.

I would talk to her about

it.

Do you consider that a draft?

How many different times do you recall

communicating written comments on the drafts of

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KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

Page 67

exhibi t one to Ms. Heuer?

I don t recall.

I just don t recall.

There may be one paragraph she didn t like
or I didn t like or we wanted to refine and I would

re-do that paragraph or add a word in that

paragraph.
There are just numerous

scenarios.

wasn t always page one through whatever page it
page 20, that we went from beginning to
done by nuclear power plant.

is,

end.

It was

Do you know what happened to the drafts of

what' s now exhibit one that you looked at prior to
signing a version of this on February 18?
MR. SHULTIS:

Obj ection, vague and

asked and answered.

She kept the electronic copy on the server

or on her

laptop.

It superseded the earlier

version.

The hard copies I would discard in the

normal course of reviewing

them.

What about your written comments on the
prior drafts?

What happened to those?

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KENNETH W. BLAIR DEPosmON

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Yankee Atomic v. USA

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Those would be

discarded.

Why were the electronic drafts written
over instead of preserved?
I don t think I' ve ever preserved a copy

of a report.

Are you aware in this case that the court
has ordered the parties to produce from their
experts drafts of their expert wi tnes s

reports?

Other than the draft that we submitted to

the Department of

Justice, no.

No one ever communicated to you that you
needed to preserve your drafts of your expert

wi tness report?
No.
Did anyone ever communicate to you a need
to preserve your work product in preparing your
expert witness report?

m aware of no special requirements other

than what I'

ve done over the years and that work

product is preserved.

Did you preserve all of your work product

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

Document 815-6
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in preparing your expert witness report or did you
end up discarding some of it?
Some of it was discarded.

What work product did you discard?

I sketched diagrams and so forth and they

were transferred to work product that you probably
have in front of you and in the normal course of the
analysis that was not unusual and I' ve done that for

many, many years.
You re saying the sketched diagrams would

have been discarded?
MR. SHULTIS:

Obj ection,

mischaracterizes his

statement.

I did not save every piece of paper that I

sketched on,

no.

What' s your recollection of what work
product was discarded?
Depends on how you define work product.

define work product as that which I turned over to

you.

The evolution of that work product is an

earlier version of it and I discarded paper that

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Case 1:98-cv-00126-JFM
KENNETH W. BLAIR DEPosmON

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Yankee Atomic v. USA

wrote on.
So you made preliminary sketches of the

Page 70

diagrams that had been turned over to us as part of

your work product in this case and those preliminary
sketches would have been discarded?

Yes.
Other than those preliminary

sketches,

would you have discarded anything else that you
would have created in your work in the three Yankee

cases?
I took notes of conversations and once
finished doing what I was supposed to do I would
discard the notes.

There are computer databases that result in

chronological databases.
to add documents to that

We didn t save every

version that existed because we would be continuing

chronology.

So in a strict definition , we did not save

at the end of every day every version of the

chronology that we

had.

You say you took notes of

conversations.
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KENNETH W. BLAIR DEPosmON

Document 815-6
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Yankee Atomic v. USA

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What notes did you take conversations of?

Conversations that I would have with Kelly
or Frank or George

Zacharki.
ve done

If we wanted to do something or have

something done, it' s a normal thing that I'

for years but once I finished it, that task or

followup or whatever the note said, I would discard

those notes.
Did you take notes in your initial

conversations with individuals at Navigant as to

what your tasks were to be in the three Yankee

cases?
Yes.
You discarded those notes as well?

That'

s correct.

Did you take notes during your

conversations with

Mr. Abbott and Mr.

Brewer?

Yes.
You discarded those notes?

Yes.
Did you take notes of your conversations

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KENNETH W. BLAIR DEPosmON

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Yankee Atomic v. USA

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with Mr. Shultis?
MR. SHULTIS:

Obj ection, seeking

attorney work product.

Don t answer

that.
day, a draft

Mr. Shultis mentioned a while ago, and we may well get to it in the course of the

of your summary of opinion that was turned over to

us.
What' s your understanding as to why that
particular draft was turned over to us?

That was a draft that we turned over to the Department of Justice for review the end of

January, if I recall correctly.
What about the other drafts that you
referred to that were not turned over to the
Department of Justice?

Those were discarded.
to keep them.

Obviously, I didn

believe there was any need to keep them or direction

Were any of those drafts that were

discarded turned over to the Department of Justice?

No, not that I' m aware of.
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KENNETH W. BLAIR DEPosmON

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Did you recelve comments on the draft that

was turned over to the Department of Justice?
I don t recall receiving any comments from

the Department of

Justice.

Do you know if Ms. Heuer received any
commen t s ?
MR. SHULTIS:

Objection ,

calls for

speculation.
I don t recall her sharing with me any

comments from anyone at the Department of

Justice.

Ul timately you made changes from that

draft that was turned over to the Department of

Justice and your February 18 summary of opinion

that'

s exhibit

one.

Why did you make changes?

We continued to read

documents.

continued with the analysis during that time

frame.

Some of the changes were English form, if you will.
So a combination for all those reasons that

we worked up to -- I don t know the exact date, but
up until the time we turned in the final report of
revising it and trying to formalize it and make sure

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KENNETH W. BLAIR DEPosmON

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Yankee Atomic v. USA

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in forming your opinions.

Did you review the complete pretrial submissions of each party in this case?
I don t know if it was complete or

not.

What parts did you review?

Stipulations, 1999 and 2003, the Wise
reports, Mr. Abbott' s earlier reports.
I don

recall anything

else.

Mr. Blair, I want to draw your attention
now to the last two sentences in section Roman

numeral three on page two of exhibit one, maybe last
three sentences.

You say:

I have identified and

requested information that I understand exists but
has not yet been provided by the

plaintiffs.
three.

Such
If this

information is included in appendix

or other additional information becomes available to

me, I reserve the right to revise this report and
the opinions stated herein as necessary.

Do you anticipate revising your opinions?

It'

s possible, depending on if we get any

of this information and if, in

fact, it'

s relevant

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KENNETH W. BLAIR DEPosmON

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to the analysis or other information becomes

available.
Are the opinions that you

ve offered in

exhibi t one reliable

if you don t receive any

addi tional information?
They are reasonable based on the

information I

reviewed, yes.

Are you drawing a distinction between
reasonable and reliable?
I would say reliable.

You are saying even if you don t recel

any other documents in this case that the opinions
that you ve offered in exhibit one are reliable?

Depends on what the other information out

there is. I f there
there.

s something I just didn

anticipate, I can t speculate on what might be out

re looking at additional information

during the month of May.
that yet.

We haven t totally done

We just got Framatone

documents, for

example.
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KENNETH W. BLAIR DEPosmON

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m the one right now who is speculating

but I' m

hoping you can help me

out.

You say if this

or other additional information becomes available
reserve the right to revise my opinions and
What possible revisions are you

report.

anticipating?
MR. SHULTIS:
Obj ection

mischaracterizes the prior

testimony.

I really don t know specifically but it

hasn

t been unusual in my career to find that

documents show up to cause me to change my opinion
in some cases.

It may be minor.
is possible.

Rarely is it maj

or, but it

For example, concerning Yankee Atomic, you
have opined there is an eleven month delay to the

planned completion of fuel

transfer.

Yes.
Do you think that additional documents

might cause you to alter that opinion?

It'
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KENNETH W. BLAIR DEPosmON

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What documents might cause you to alter
that opinion?

Any one of a number of different types of
documents, schedules,

correspondence, letters.

At what point would you feel that you have
enough documents -- let me as k it this way.

What further documents do you feel you need
such that you could say that your opinion about an eleven month delay at Connecticut Yankee would not

be subj ect to possible change if you received yet
further documents?

I think if we got the documents that we
requested in the back, that would be the documents

would like to see in order to draw that

conclusion,

appendix three.
So without the documents listed in
appendix three you don t feel confident that you can say that the opinions you re offering in exhibit one

about the length of the delays that you identified would not change if you received further

documents?
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