Free Scheduling Order - District Court of Federal Claims - federal

Case 1:98-cv-00621-ECH

Document 338

Filed 06/01/2004

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In the United States Court of Federal Claims
No. 98-621C Into which has been consolidated No. 04-103C (E-Filed: June 1, 2004) _________________________________________ ) ) COMMONWEALTH EDISON COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) _________________________________________ ) ORDER The court has before it Defendant's Motion to Compel Production of Documents from Holtec International and the responsive briefing of Holtec International and plaintiff. Holtec International and the parties shall submit supplemental briefing on defendant's motion as outlined below. Holtec shall file a brief with the court addressing the following issues on or before Tuesday, June 8, 2004: 1. Should the court construe Brief of Non-Party, Holtec International, in Opposition to Defendant's Motion to Compel Production of Documents as a motion to quash the subpoena issued to Holtec by defendant? See, e.g., Transcript of Oral Argument held on May 14, 2004, at 12 (Holtec stating that it "believe[s] that the entire subpoena should be quashed"); id. at 35 (Holtec requesting that "the subpoena . . . be quashed") Rule 45(c)(3)(B) allows a court to quash a subpoena that requests "confidential . . . commercial information." RCFC 45(c)(3)(B)(i). Address whether the information defendant seeks constitutes "commercial information," see, e.g., Diamond State

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Case 1:98-cv-00621-ECH

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Ins. Co. v. Rebel Oil Co., 157 F.R.D. 691, 697 (D. Nev. 1994) ("Confidential commercial information is information which, if disclosed, would cause substantial economic harm to the competitive position of the entity from whom the information was obtained."), and, if so, provide a detailed explanation of why the information sought is confidential, see, e.g., Am. Standard Inc. v. Pfizer Inc., 828 F.2d 734, 741 (Fed. Cir. 1987) ("One seeking a protective order under [Rule 26(c)(7)] must establish that the information sought is confidential.").1 Address whether disclosure of the information sought by defendant would be harmful to Holtec. See, e.g., id. at 740-41 ("Having shown the information sought to be confidential, one seeking a protective order must then demonstrate that disclosure might be harmful."). Plaintiff and defendant shall respond to Holtec's brief on or before Tuesday, June 15, 2004. In addition to any issues that plaintiff and defendant wish to address in response to Holtec's brief, plaintiff and defendant shall address the following issues. 1. Defendant and plaintiff dispute whether the information defendant seeks is relevant to plaintiff's damages claim. Defendant suggests that it will use the information from Holtec to determine whether plaintiff's claimed damages are "reasonable[]." Defendant's Reply to Holtec International's and Plaintiff's Responses to Defendant's Motion to Compel Production of Documents from Holtec International at 5. What is the legal basis for allowing defendant to examine the reasonableness of plaintiff's overall damages claim? Plaintiff, in arguing that the information that defendant seeks is not relevant, focuses on whether the information defendant seeks is relevant to "whether [plaintiff] took `reasonable' steps to reduce its damages." Plaintiff's Response to Defendant's Motion to Compel Production of Documents from Holtec International at 4. Is the information that defendant seeks relevant to plaintiff's overall damages claim, versus the portion attributable to plaintiff's mitigation efforts (or is plaintiff's entire damages claim attributable to its mitigation efforts)?

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Holtec International shall fax a courtesy copy of its brief to chambers and to the parties by 5:00 p.m. EDT on Tuesday, June 8, 2004. Plaintiff and defendant shall fax

Rule 45(c)(3)(B)(i), allowing a court to quash or modify a subpoena, tracks the provisions of Rule 26(c)(7) and is "largely repetitious" of Rule 26(c)(7). See Fed. R. Civ. P. 45 advisory committee's note to 1991 amendments ("Clause (c)(3)(B)(i) . . . corresponds to Rule 26(c)(7)."). As currently advised, the court believes that the precedents under Rule 26(c) provide guidance when deciding whether to quash a subpoena under Rule 45(c)(3). 2

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Case 1:98-cv-00621-ECH

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courtesy copies of their briefs to Holtec International by 5:00 p.m. EDT on Tuesday, June 15, 2004. IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

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