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

Case 1:98-cv-00126-JFM

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Filed 04/09/2004

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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.

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