Case 1:98-cv-00126-JFM
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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.
YANKEE ATOMIC'S REPLY TO THE DEFENDANT'S RESPONSE TO THE MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT TO THE COURT'S AUGUST 25 , 2003 ORDER; AND YANKEE ATOMIC'S REQUEST FOR EXPEDITED CONSIDERATION OF ITS MOTION
Yankee Atomic Electric Company ("Yankee Atomic ) respectfully files this Reply to the
government's March 30 2004 " Response to Plaintiffs Motion to Compel Production of
Documents Pursuant to the Court' s August 25 , 2003 Order
Response
! Yankee Atomic also
seeks expedited consideration of the Motion because of upcoming depositions in which the
documents at issue could be relevant.
The government Response relies exclusively on its privilege log and the Court' s August
, 2003 Order to justify its excessive redactions of potentially important Greater- Than- Class-
Waste (" GTCC" ) evidence. The government , in its Response , seems to miss the point: out
the scores of documents that the government was ordered to produce , Yankee Atomic s Motion
concerns three - and only three - documents that on their face
appear to be excessively redacted
! This Reply should also be deemed applicable to
Connecticut Yankee
v. United States Case No.
98- 154C , and Maine Yankee v. United States
No. 98- 474C.
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and/or not
in fact
privileged. Neither this Court nor Yankee Atomic had these documents in
hand previously, with or without redactions , but now that these documents are in hand , there is a
substantial basis for believing that the documents are not privileged and/or were excessively
redacted. At a minimum , these doubts warrant the Court' s review of this small subset of three
documents. Moreover , prior to approaching the Court for relief, Yankee Atomic made sincere
efforts - four times , in fact , - to resolve its concerns directly with the government , but to no
avail. Motion at 1The government's high- pitched defensiveness , asserting repeatedly and wrongly that the
integrity of the government' s lawyers is at issue , likewise misses the point. Yankee Atomic
Motion does not depend upon questioning the integrity and honesty of the government' s lawyers.
Yankee Atomic merely seeks the Court' s intervention to ensure that the Department of Justice
has not made overly liberal claims of privilege in their defense of the government. It is a truism that capable and honest lawyers sometimes advance positions that turn out to be erroneous. This
litigation involves important issues , and it is entirely appropriate to question whether the
government' s redactions have been overly broad. This is especially true when an examination of
the face of the documents calls into question the government's privilege assertions.
1. Importantly,
Yankee Atomic called the Court' s attention to only three out of scores of
2003 Order. With respect to
see
documents produced by the government pursuant to the August 25
two of these documents , the December 13 , 2001 note by Lake Barrett
the October 22 , 2001 e-mail by James Kennedy,
id.
Motion at -,r 2. , and
at -,r 2.
, Yankee Atomic demonstrated that
the unredacted contents of the documents and the context in which the government made its
redactions strongly suggest that the government may have over-redacted important evidence.
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See
Motion at 2- 5.
Accordingly,
Yankee Atomic has demonstrated sufficient good cause for an
in camera
inspection by the Court.
Conversely, although the government has the burden to sustain its claims of privilege
see, e. g., First Fed. Sav. Bank of Hegewisch v. United States 55 Fed. Cl. 263 , 267 (2003), the
government failed to sustain that burden in its Response. Rather than substantiating its privilege
claims over these two documents , the government simply asserts that Yankee Atomic is
engaging in "baseless
speculation. " Response
at 4. That assertion is untrue , as shown by
Yankee Atomic s Motion and further demonstrated below.
The situation is somewhat different , but ultimately even more compelling, with respect to
the third document in question
see
Motion , Ex. J , a chart first produced by the government (with
2003. See
substantial redactions) on September 30
Response at 8. The government' s newly-
minted " privilege log " for those redactions , which by the government' s own admission appears
for the first time
on page 9 of its Response , appears to be directly contradicted by explicit
unredacted language in the chart. The relevant portion of the "privilege log " entry states
Redacted material and pages contain budget information regarding programs
unrelated to
OCRWM or GTCc."
Response at 9- 10 (emphasis added). However , a simple examination of
the chart on page HQR2360030 of Exhibit J to Yankee Atomic s Motion shows that the fourth
row
Activity, " reads " Greater than Class C Waste " and the " Description " reads "Under the
LL W Policy Act , DOE has a responsibility to dispose of higher activity level ' Greater than Class
C' commercial waste. DOE has not met this responsibility, and an Environmental Impact
Statement/NEP A must be completed for disposition of GTCc." Motion at Ex. J. The redacted
columns for this GTCC entry are " Associated Funding,
these entries are
FTE' " and " Transfer.
Id.
Clearly,
related - explicitly - to GTCC waste and DOE' s " responsibility" for its
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disposal. As such , there appears to be little question, and Yankee Atomic submits there can be
no question ,
that the redacted material is relevant to this case. See
Order of June 26 , 2004.
(Denying government motion for partial summary judgment on GTCC waste issue , because
inter alia
(t)here are material disputes of fact concerning the Department of Energy s policy, or
The
lack of policy, concerning its LLRWPA obligation to assume custody ofGTCc." )
government's seemingly inaccurate " privilege
log "
description of the redacted portion of the
GTCC" entry on the chart - an inaccuracy that appears plain from the unredacted portions of
the chart in question - warrants in camera
of the redacted material in that chart.
2. Contrary to
the government' s main argument , there is no "baseless speculation
involved in the government's apparently inaccurate " privilege log " description of the redacted
portions of the chart discussed above. That Yankee Atomic has not engaged in "baseless
speculation" is further supported by two other examples of government overzealousness. First
the Court already rejected the government's prior interpretation of what documentary material
concerning GTCC waste could be withheld as privileged in its August 25 2003 Order. In that
Order , the Court rejected the government's claim (no doubt a product of the government's
interpretation of how caselaw applied to the documents it sought to protect) that many of its
documents could be withheld pursuant to the deliberative process privilege. Order of August 25
2003 at 2- 3. Second , the extent to which the government will go in attempting to avoid
disclosure of GTCC waste documents is also shown by the government's citation in its Response
to wholly inapposite cases to support its argument that in camera
review of three discrete
documents cannot be had.
See
Response at 6- 7. The government cites numerous cases for the
Id.
proposition that
in camera
review is " exceptional."
FOIA
at 6. The government' s cases , however
context in camera
are all FOIA cases , which merely hold that in the
review should be
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undertaken only after attempting to resolve a production dispute by other means.
See, e. g., Jones
v. Federal Bureau of Investigation 41 F. 3d 238 243 (6th Cir. 1994). The government's cases
however , note that even in the FOIA context courts do undertake
in camera
inspections of
Id.
documents when there is doubt as to the government' s claims of exemption.
at 243. As the
Sixth Circuit stated
(N) 0 other party
or institution is available to ensure that the
(emphasis added).
(government s) assertions are reliable. " Id.
Contrary to the government's position , it is well established that " (t)he court. . . may
require that documents
. . . be submitted to it for preliminary examination in camera
to assist the
court in determining whether to order (production)." 8A , Wright , Miller & Marcus , Federal
Practice and Procedure: Civil2d , ~ 2214 at 440. This is true even in FOIA cases like those cited
by the government. Closer to home , the Federal Circuit has specifically approved the use of
camera
inspection of documents to resolve privilege disputes
see Dorf
Stanton Comm. Inc. v.
Molson Breweries 100 F. 3d 919 923- 24 (Fed. Cir. 1996), and this Court has employed
camera
review to resolve privilege disputes and to " accurate(ly) assess() the Government'
Coast- to- Coast Fin. Corp. v. United States 45 Fed. Cl. 796 , 799 (2000).
privilege assertions
Indeed , it is axiomatic in our system of justice that this Court - and not the government'
litigation counsel - has the authority, and the responsibility, to ensure that the government has
properly redacted information.
3. The government's concern that this Court could somehow
be tainted by an
in camera
review of the withheld GTCC waste documents
see
Response at 7, is likewise baseless and
fundamentally wrong. The possibility that the fact- finder will be exposed to inadmissible
evidence , which is always present in a bench- trial context , is of minimal concern in that context
because unlike many juries , the Court is fully capable of disregarding inadmissible evidence.
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The possibility of "taint" certainly did not prevent approval of
Circuit in Dorf
in camera
review by the Federal
Stanton , supra
or this Court in
Coast- to- Coast, supra.
4. Ultimately, the
government's oversensitivity and defensiveness in its Response
William Shakespeare
suggests that it " doth protest too much. "
Hamlet III , ii , 239 (1601). The
government states , for example: (a) " (T)he Yankees are accusing the Government's attorneys of
spoliation of evidence " Response at 2; (b) " (T)hey do not trust the Government. . . the Government's attorneys , as officers of this Court , have misrepresented the contents. . . ,
id.
5; (c) " (T)he Yankees ' irresponsible representations about the Government's motives in this
litigation are outrageous
rebuke(d)."
id.
at 7. The government even suggests that Yankee Atomic be
Id.
None of the government's assertions are true. Yankee Atomic has not alleged spoliation
or misrepresentation , and is not questioning the government's motives. Nor does Yankee
Atomic s Motion question the integrity of the government's attorneys. Rather , Yankee Atomic
simply questions the government's claims of privilege underlying its redactions
- a
straightforward and typical legal dispute that has nothing to do with counsel' s motives or
integrity.
The government , through its protests , seems to want both the Court and Yankee Atomic
to simply surrender to the government' s interpretation of what is and is not privileged
information. The Court should firmly reject the government's suggestion that it should abdicate
its role as the appropriate arbiter of privilege disputes - particularly, as here , where redacted
documents indicate on their face - in unredacted passages - that the redactions may be
inappropriate or excessive.
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5. Finally, because of fast-approaching scheduled depositions for which the unredacted
versions of the three documents may be relevant , Yankee Atomic requests the Court to review
the briefing in this matter as expeditiously as possible.
Conclusion
For the reasons set forth above , Yankee Atomic respectfully requests the Court to order
the government to produce the documents listed in Exhibit A of the March 12 2004 Motion to
Compel in their entirety and without redactions as expeditiously as possible for
in camera review
and determination whether the government's claims of privilege and irrelevance are valid. .
Respectfully submitted
s/Jerrv Stouck
Date: April 9 , 2004
JERRY STOUCK
Spriggs & Hollingsworth 1350 I Street , N. , Ninth Floor Washington , D. C. 20005 (202) 898- 5800 (phone) (202) 682- 1639 (fax)
COUNSEL FOR PLAINTIFF YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:
Robert L. Shapiro
Peter J. Skalaban
Vivek K. Hatti SPRIGGS & HOLLINGSWORTH
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CERTIFICATE OF SERVICE
I certify that I caused a copy of the foregoing " Yankee Atomic s Reply to Defendant' Response to the Motion To Compel Production Of Documents Pursuant To The Court' s August
2003 Order; And , Yankee Atomic s Request for Expedited Consideration of Its Motion " to
be served electronically through the Court of Federal Claims Electronic Filing System on April
2004 upon the following:
Harold D. Lester , Jr. Assistant Director Commercial Litigation Branch Civil Division
u.S. Department of Justice
Classification Unit , Eighth Floor 1100 L Street , N. Washington , D. C. 20530 Tel. (202) 307- 6288 Fax (202) 307- 2503
Attorney for the
United States
s/Jerry Stouck Jerry Stouck