Free Order on Motion for Discovery - District Court of Federal Claims - federal

Case 1:98-cv-00621-ECH

Document 324

Filed 05/17/2004

Page 1 of 2

In the United States Court of Federal Claims
No. 98-621C Into which has been consolidated No. 04-103C (E-Filed: May 17, 2004) _________________________________________ ) ) COMMONWEALTH EDISON COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) _________________________________________ ) ORDER The court has before it Defendant's Motion for Supplemental Fact Discovery (Def.'s Mot. or defendant's motion). Defendant requested additional fact discovery regarding (1) plaintiff's cost of capital, (2) property tax assessments for each of plaintiff's facilities from 1997 to present, (3) the costs of casks for dry storage, (4) an audit of the Zion Station's actual costs for 2003 and 2004 and (5) an audit of the Dresden Units 2 and 3 and Quad Cities Units 1 and 2 dry cask storage project costs incurred to date. Def.'s Mot. at 4-9. Plaintiff's position on items one through three of defendant's discovery requests is that the court should not issue a discovery order "because [plaintiff] is willing to produce additional documents . . . if there are any" relating to plaintiff's costs of capital, property tax assessments for each of plaintiff's facilities from 1997 to present and the costs of casks for dry storage. Exelon's Response to Defendant's Motion for Supplemental Fact Discovery (Pl.'s Resp.) at 1. At a hearing held on defendant's motion, plaintiff represented that it had produced documents regarding property tax records and cask costs. See Transcript of Hearing held on May 14, 2004 (Tr.) at 63 (plaintiff stating that it had "identified the property tax records that [it had] previously produced"); id. (plaintiff stating that "[it] think[s] [it has] produced all of [its] cask costs documents"). With

Case 1:98-cv-00621-ECH

Document 324

Filed 05/17/2004

Page 2 of 2

respect to discovery regarding the cost of capital, plaintiff stated that defendant's request for this information appeared to be based on the assumption that plaintiff's expert relied on cost of capital information generated by plaintiff when, in fact, he relied on information he received from third parties regarding plaintiff's cost of capital. Id. at 6364. Defendant requests that the court issue an order permitting this discovery because the parties are bound by the court's scheduling order, Defendant's Reply to Exelon's Response to Defendant's Motion for Supplemental Fact Discovery (Def.'s Reply) at 4, which closed fact discovery in this case on March 12, 2004, Order of Feb. 9, 2004. Defendant adds that it is willing to defer its supplemental discovery requests regarding plaintiff's weighted average cost of capital and the costs of casks for dry storage. Def.'s Reply at 13-14. Based on plaintiff's willingness to produce documents and the fact that fact discovery is officially closed, defendant's motion is GRANTED with respect to fact discovery on plaintiff's cost of capital, property tax assessments for each of plaintiff's facilities from 1997 to present and the costs of casks for dry storage. With respect to defendant's request that it be allowed to perform audits, plaintiff is willing to provide defendant with "reasonable additional access" to documents defendant deems necessary to perform its analysis if the documents are within the scope of previous fact discovery requests. See Pl.'s Resp. at 9 ("[T]o the extent [defendant] determines that, in order to perform its analysis, [defendant] desires additional fact documents which are within the scope of previously-served fact discovery requests, [plaintiff] is willing to provide reasonable additional access to documents."). Plaintiff objects, however, to "informal, off-the-record, ad hoc access to [plaintiff's] employees like an independent financial auditor retained by [plaintiff] would [have]." Id. at 10. At the direction of the court, the parties agreed to work out a mechanism for plaintiff to provide defendant with additional documents that would "avoid . . . informality" and provide "a very rapid turnaround." Tr. at 53-55. The parties are invited to contact the court to resolve any points of disagreement. Based on the foregoing, defendant's motion with respect to Zion Station's actual costs for 2003 and 2004 and Dresden Units 2 and 3 and Quad Cities Units 1 and 2 dry cask storage project costs incurred to date is MOOT. IT IS SO ORDERED. s/ Emily C. Hewitt EMILY C. HEWITT Judge

2