Free Motion to Compel - District Court of Federal Claims - federal

Case 1:98-cv-00126-JFM

Document 785-2

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Case 1:98-cv-00126-JFM

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Sprigg&iollingsworth

1350 I Street, NW Washington, DC 20005
tel. 202. 999. 5900 fax 202. 682. 1639 www. spriggs. com

Robert L. Shapiro 202. 898. 5879
rsha p irrnwspriggs. com

March 26 2004

Via Facsimile and Mail

Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch Civil Division United States Department of Justice Eighth Floor Mailroom 1100 L Street, N.
Washington, D. C. 20530

Re:

Yankee Atomic v. U. S.. Connecticut Yankee v. U. S.. Maine Yankee v. U.

Dear Harv:

Enclosed is Yankee Atomic s notice of depositions for the government' s experts. As you know, Jerry Stouck faxed a letter to you, Marian Sullivan and Kevin Crawford back on March noting our need to schedule these depositions in the second half of April and asking about the witness ' availability. Despite the passage of time and numerous follow-up telephone calls, we have received no availability information ttom the government. Therefore, we have little choice but to serve the enclosed notice. Nevertheless, we remain willing discuss alternative dates for these depositions if the dates set out in the notice are not convenient for the witnesses or counsel.
Sincerely,

Robert 1. Shapiro

Enclosure

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.

NOTICE OF DEPOSITIONSl

Yankee Atomic hereby provides notice that it will take the depositions of the
individuals set out below beginning on the following dates:

Kenneth W. Blair

April 15

2004

Edward C. Abbott

April 19

2004

R. Larry Johnson

April 26 , 2004.

Although we expect that Mr. Blair s deposition will be completed in one day and that the
depositions of Messrs. Abbott and Johnson will each require three days, each deposition shall

continue day to day until completed or be held at such other times and places as agreed to by

the parties. The depositions will be taken at the offices of Spriggs & Hollingsworth at the
address noted below, beginning each day at 9:30 a. m. The testimony will be recorded
stenographically.

1 This notice
should also be deemed applicable to Connecticut Yankee v.

States

United

No. 98- 154C

and

Maine Yankee

v.

United States No. 98- 474C.

Case 1:98-cv-00126-JFM

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Dated: March 26 , 2004

JERRYST UCK

Spriggs & ollingsworth
1350 I Street, N. W., Ninth Floor
Washington, D. C. 20005

(202) 898- 5800 (202) 682- 1639 (facsimile)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:
Robert 1. Shapiro

SPRIGGS & HOLLINGSWORTH

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CERTIFICATE OF SERVICE I certify that I caused a copy of the foregoing Notice of Depositions to be served by
facsimile and mail this 26th day of March 2004 on:

Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch Civil Division S. Department of Justice Classification Unit, Eighth Floor 1100 L Street, N. Washington, D. C. 20530

Robert 1. Shapiro

4-~

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Case 1:98-cv-00126-JFM

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prigg&iollingsworth

1350 I Street, NW Washington, DC 20005
tel. 202. 898. 5800 fax 202. 682. 1639 www.spriggs. com

Robert L. Shapiro 202. 898. 5879 rshapiroCWspriggs. com
April 7 ,

2004

Via Facsimile and Mail

Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch . Civil Division United States Department of Justice Eighth Floor Mailroom 1100 L Street, N. Washington, D. C. 20530
Re:

Yankee Atomic v. U. S.. Connecticut Yankee v. U. S.. Maine Yankee v. u.S.

Dear Harv:

Enclosed is Yankee Atomic s notice of depositions for James Carlson and David
Zabransky. In my March 23 , 2004 letter, we requested dates when these witnesses would be available. We have received no availability information from the government. Therefore, we

have little choice but to serve the enclosed notice. Nevertheless, we remain willing discuss alternative dates for these depositions ifthe dates set out in the notice are not convenient for the
witnesses or counsel.

Sincerely,

Enclosure

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- 126C

(Senior Judge Merow)

THE UNITED STATES OF AMERICA
Defendant.

NOTICE OF DEPOSITIONS
Yankee Atomic hereby provides notice that it will take the depositions of the individuals
set out below beginning on the following dates:
James Carlson

April 23, 2004 April 30, 2004

David Zabransky

Although we expect that each deposition will be completed in one day, each deposition shall continue day to day until completed or be held at such other times and places as agreed to by the

parties. The depoistions will be taken at the offices of Spriggs & Hollingsworth at the address
noted below, beginning each day at 9:30 a. m. The testimony will be recorded stenographically.

1 This notice should also be deemed applicable to
154C and Maine Yankee v. United States,

Connecticut Yankee

v.

United States No. 98-

No. 98-474C.

Case 1:98-cv-00126-JFM

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Dated: April 7, 2004

Respectfully submitted,

Jerry St

Spriggs Hollingsworth
1350 I Street, NW, Ninth Floor Washington, DC 20005 (202) 898- 5800 (202) 682. 1639 (facsimile)

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:

Robert S. Shapiro Spriggs & Hollingsworth

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CER TIFICA TE OF

SERVICE

I certify that I caused a copy of the foregoing Notice of Depositions to be served by
facsimile and mail this ih day

of April 2004 on:

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

Robert 1. Shapiro

fr/

Case 1:98-cv-00126-JFM

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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- 126C

(Senior Judge Merow)

UNITED STATES OF AMERICA,
Defendant.

YANKEE ATOMIC' S NOTICE OF DEPOSITIONS

Pursuant to Rule 30 of the Rules of the United States Court of Federal Claims , please

take notice that plaintiff, by counsel , will take the deposition upon oral examination of the

witnesses listed below on the dates specified below. The depositions shall begin at the times and
locations specified below, or at such other times and locations agreed upon by the parties and the

witness or ordered by the Court. The depositions shall be conducted before a notary public or
other officer duly authorized to administer oaths , shall be recorded by stenographic means , and shall continue from day to day until completed or shall continue at times agreed upon by the
parties.

Patrice Bubar (Office of Environmental Management)
Date & Time: May 5 , 2004 , 9:30 a.

Location: Spriggs & Hollingsworth
1350 I Street N. , Ninth Floor Washington DC 20005

This notice is also applicable to

Connecticut Yankee Atomic Power Co. v.

v.

States

United

No. 98- 154C

and

Maine Yankee Atomic Power Co.

United States No. 98- 474C.

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James Kennedy
(Nuclear Regulatory Commission)
Date & Time:
April 21 ,

2004, 9:30 a.m.

Location: Spriggs & Hollingsworth
1350 I Street N. W., Ninth Floor Washington DC 20005
Robert Campbell

(Office of Environmental Management)
Date & Time: April 26, 2004, 9:30 a.

Location: Spriggs & Hollingsworth
1350 I Street N. W., Ninth Floor Washington DC 20005

David Huizenga
(Department of Energy)
Date & Time: April 30 , 2004 , 9:30 a.

Location: Spriggs & Hollingsworth
1350 I Street N. W., Ninth Floor Washington DC 20005

Dated: April 6, 2004

Counsel for Plaintiff YANKEE ATOMIC ELECTRIC COMPANY
Of Counsel:
Robert Shapiro

Peter Skalaban

SPRIGGS & HOLLINGSWORTH

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Certificate Of Service

I certify that I caused to be served the foregoing Yankee Atomic s Notice of Depositions

by facsimile and first class mail on April 6 , 2004 on:
Harold D. Lester, Jr. Assistant Director Commercial Litigation Branch Civil Division S. Department of Justice Classification Unit , Eighth Floor 1100 L Street, N. Washington , D. C. 20530

Peter Skalaban

f7p

Case 1:98-cv-00126-JFM

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").
Case 1:98-cv-00126-JFM Document 785-2 APR-08-2004 17: DOl -SNF
S.

..
Filed 04/09/2004 Page 16 of 19

Department of Justice

Civil Division
PDK:DMC :HDL: HLH 154-98- 126

Telephone:
(202) 305-7562
Washington. D. C. 2QJJQ

April 8,
VIA TELECOPY AND FIRST CLASS MAIL Robert L. Shapiro Spriggs & Hollingsworth 1350 I Street, N. Washington, D. C. 20005-3305

2004

Re:

Yankee Atomic Electric Co. v. United States, No. 98- 126C (Fed. Cl. ); Connecticut Yankee Atomic Power Co. v. United States, No. 98-1S4C (Fed. Cl. Maine Yankee Atomic Power Co. v. United States,
No. 98-474C

(Fed. Cl.

Dear Mr. Shapiro:
The purpose of this letter is to respond to Mr. Stouck' letter dated March 1, 2004, your letter dated March 23, 2004, and the notices of depositions issued March 26, April 6 and April

2004.

The Court' s November 4, 1998 pretrial order provided for the
exchange by the parties of pretrial submissions. The Court' order further provided that " (t) he discovery period shall not extend beyond these exchanges except upon the filing of a motion Order at The for leave showing exceptional good cause. Court re-emphasized this concept in several subsequent orders, including those dated December 2, 1998 (" A~y discovery needed to respond to defendant' s case is required to be initiated before plaintiff submits its final materials ), and February 16, 1999 (" The discovery period terminates with the completion of pretrial exchanges. Given that the Government submitted its second and final se~ of pretrial submissions in February of this year, it is our understanding, based upon the Court s orders, that the discovery period is now closed, and further depositions are not to be taken absent an order from the Court.

5.

Case 1:98-cv-00126-JFM Document 785-2 DO.J -St-IF APR-08-2004 17:45

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-2 Despite the close of discovery, you have indicated your desire to take up to 16 additional depositions prior to the trial scheduled to begin July 12, 2004.
We understand that despite the limitations of the Court' November 4, 1998 and February 16, 1999 orders, the Court issued another order on August 25, 2003 that permits the plaint2ffs to Consistent with our take three of the proposed understanding of the Court' s August 25, 2003 order, we will make Messrs. Campbell, Huizenga and Kennedy available for deposition, solely for the purpose of answering questions that they were 2nstructed not to answer on the basis of privilege during their earlier depos2tions. We are in the process of confirming dates of availability for deposition, and will coordinate with you as soon as possible.

depositions.

You have also noticed the deposition of Mr. James Carlson. Recognizing that you extended Mr. Carlson the courtesy of postponing his deposition because of an illness in his family, we wlll also make Mr. Carlson available for deposition, and are in the process of confirming his availability.

In addition, we recognize ttat we have 2dentified a new expert witness in our most recent pre-trial submissions, Ken Because Mr. Blair is not a fact witness that the Yankees could have identified through prior proceedings and prior document productions, we will not object to the Yankees Unfortunately, Mr. Blair deposi tion of Mr. Blair prior to has informed us that he is not available for deposition until the week of May 3, 2004. We request that the Yankees reschedule Mr. Blair' s deposition for that week.

Blair.

trial.

With the exception of these five individuals (Messrs. Campbell, Huizenga, Kennedy, Carlson and Blair), we do not believe that the additional discovery that the Yankees have Therefore, with requested is contemplated by the Court' regard to your request to depose Ms. Bubar, Messrs. Abbott, Johnson, and Zabransky, and the Government' s Nuclear Regulatory Commission witness, these ~nd1 viduals w1ll not be made available for deposition absent an order from the Court.

s orders.

Case 1:98-cv-00126-JFM Document 785-2 DOJ -snF APR-08-2004 17:

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-3 With regard to Messrs. Boyea, Davis, Helin, Lepisto and Shyloski, you have asked that we confirm your understanding that these witnesses will testify primarily for the purpose of authenticating documents. Your understandi~g is correct. Therefore, pursuant to your letter, we will assume that you do not expect to pursue depositions of these individuals.

As you are aware, the seven-week trial of this matter has been set for July 12, 2004. Accordingly, the parties have a very Assuming short time in which to prepare their cases for the Yankees decide to seek an order from the Court granting permission to continue discovery, we are concerned that a significant portion of the Government' s trial preparation time Indeed, past will be spent defending lengthy experience reinforces this concern. David Zabransky, whose has already been deposed for deposi tion you noticed on April 7 over 40 hours in connection with the spent nuclear fuel litigation. After more than six days of depositions, it is unclear what additional information could possibly be sought from Mr. Zabransky. Similarly, the Yankees also previously deposed Mr. Abbot t for five days and deposed Mr. Johnson for three days. Robert campbell has been deposed for 20 hours by Yankee counsel While we recognize that the Court' s August 25, 2003 order provides for the continuation of Mr. Campbell' s deposition for the limited purpose of answering questions that he was previously instructed not to answer, we are particularly concerned about the Yankees' desire to continue Mr. Campbell' s deposition given that he is not designated as a trial witness 0 In light of these concerns, should you decide to move forward by seeking leave of Court to conduct further depositions in this case, we will request that the Court set time limits, consistent with those provided by the current rules of the Court of Federal Claims, upon any further depositions to be conducted in this case.

trial.

depositions.

alone.

We expect to have availability information for Messrs. Campbell, Huizenga, Carlson and Kennedy very shortly and will forward it to you as soon as we receive

it.

' '

~~~
Case 1:98-cv-00126-JFM
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-4 -

Sincerely,

Assistant Director Commercial Litigation Branch

TOTAL P. 05