Free Motion to Unseal Document - District Court of Federal Claims - federal

Case 1:98-cv-00621-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMONWEALTH EDISON COMPANY and EXELON GENERATION COMPANY, LLC, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) Nos. 98-621C, 04-103C ) (Judge Hewitt) ) ) )

DEFENDANT'S MOTION TO LIFT THE SEAL UPON DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUPPLEMENTAL FACT DISCOVERY Defendant, the United States, respectfully challenges plaintiff's designation of the total amount of its damages claim in this litigation as "protected material" pursuant to the protective order entered in this case, requests that the Court find that the total amount of plaintiff's damages claim is not subject to the protective order, and requests that the Court designate "Defendant's Reply To Exelon's Response To Defendant's Motion For Supplemental Fact Discovery," filed on May 10, 2004, as publicly available. As the Court is aware, on May 10, 2004, the Government filed its reply in support of its motion for supplemental fact discovery, which identified the total amount of damages that plaintiff, Commonwealth Edison Company ("ComEd"), is claiming in this case and the total amount of estimated operating and maintenance ("O&M") costs that ComEd is claiming in this case. ComEd quickly contacted the Government, via electronic mail, and informed us of its position that the amount of its damages claim was asserting that the total amount of its damages was "proprietary and confidential" material and that the Government violated the protective order entered in this case by identifying the amount of ComEd's total alleged damages. See App. 1. In

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response to ComEd's e-mail, we immediately requested that the Court seal our reply brief to attempt, as best we could, to ensure that the integrity of the protective order was preserved. However, we cannot agree with ComEd that the total amount of its damages claim or the total amount of its present and anticipated future O&M costs for spent nuclear fuel dry storage, numbers that do not identify any details of the manner in which those damages figures are calculated, can somehow constitute "proprietary and confidential" information. Generally, the public has a First Amendment right to access judicial records and documents. See Washington Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) ("[t]he first amendment guarantees the press and the public a general right of access to court proceedings and court documents unless there are compelling reasons demonstrating why it cannot be observed"). This right of access "may be abrogated only in unusual circumstances." Stone v. University of Maryland Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir. 1988).1 Generally, the party seeking to protect information as confidential has the burden of establishing that good cause exists to maintain information under seal, see Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (for a protective order not to offend the First Amendment, it must "be entered on a showing of good cause"), a burden that the protective order that Judge Sypolt entered in this case on May 9, 2002, expressly places on ComEd: Nothing in the foregoing provisions of this agreement and protective Order shall be deemed to preclude plaintiffs or the United States from objecting to the designation of documents or Generally, before a court may seal filings, it must "(1) provide public notice of the request to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic alternatives to sealing the documents, and (3) provide specific reasons and factual findings supporting its decision to seal the documents and for rejecting the alternatives." Ashcroft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000). -21

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other discovery material as Confidential Material. In such event, the party designating the documents or other discovery materials as Confidential Material shall have the burden to file a motion for a protective order with the Court demonstrating that there is good cause to designate the documents or materials as such and that they properly are subject to treatment under this agreement and protective order. Agreement And Protective Order ¶ 9 (May 9, 2002) (emphasis added). A showing of good cause "requires specific findings; the First Amendment right of public access is too precious to be foreclosed by conclusory assertions or unsupported speculation." In re Providence Journal Co., Inc., 293 F.3d 1, 13 (1st Cir. 2002). Further, this Court gives heightened status to the right of public access. Crane Helicopter Services, Inc. v. United States, 56 Fed.Cl. 313, 327 (2003). In this case, the public's right of access to court documents clearly overrides ComEd's desire to maintain the confidentiality of the total amount of the alleged damages that it is seeking to recover from the United States. In fact, ComEd has never explained the basis upon which disclosure of this information could somehow affect its business competitiveness or otherwise is "proprietary" or "confidential." ComEd's mere desire not to disclose this information to the public is clearly insufficient to override the public's right of access to court documents. As one of the Federal appellate courts explained in Citizens First Nat'l Bank v. Cincinnati Insurance Co., 178 F.3d 943 (7th Cir. 1999), parties may not simply seal any information that they want, and the Court must act as the "primary representative of the public interest" in ensuring public access to court records: The determination of good cause [to seal court documents] cannot be elided by allowing the parties to seal whatever they want, for then the interest in publicity would go unprotected unless the media are interested in the case and move to unseal. The judge is the primary representative of the public interest in the judicial -3-

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process . . . . He may not rubber stamp a [request] to seal the record. Id. at 945. Although this Court issued a protective order in the coordinated discovery proceedings that applies to this case, that order does not require ComEd's total alleged damages to be subject to protection under seal. See Agreement and Protective Order ¶ 1 (May 9, 2002) ("[t]he term 'Confidential Material' shall refer to confidential, financial, trade secret, privileged, or competitively-sensitive information"). Although the protective order agreement does not define the term "confidential," it has previously been defined as meaning "[i]ntrusted with the confidence of another or with his secret affairs or purposes; intended to be held in confidence or kept secret; done in confidence." Black's Law Dictionary 269 (5th ed. 1979). The protective order expressly permits the Government to challenge ComEd's designation of material as "confidential." Id. ¶ 9. ComEd's contention that its allegation regarding the total amount of its damages is a non-public matter or is somehow "secret" or "confidential" lacks merit. ComEd seeks to recover from the United States a substantial sum of money. ComEd apparently believes that it can preclude any public knowledge of the total amount of money that it seeks to recover from the United States simply because, without any support, it asserts it to be a confidential figure. Yet, we cannot identify any manner in which, once this Court issues a judgment in this case, the United States could legitimately keep the amount of that judgment "confidential" or pay potentially enormous sums of money to ComEd without telling Congress or the general public through the appropriations process necessary to pay such a judgment. Similarly, we suspect that

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ComEd, in its role as the generator of electricity that it sells to public ratepaying customers, will not be able to withhold the amount of any judgment from its state regulatory or electricity fee rate-setting body, given that, we presume, the amounts that ratepayers will have pay for electricity will be affected by any judgment in ComEd's favor by this Court. Given that it seems highly unlikely that this Court could issue a "confidential judgment" in which the public is never made aware of the amount of money that the United States has been ordered to pay ComEd, we do not understand the basis upon which ComEd can assert that the amount of money that it is asking the Court to enter as a judgment in this case is somehow immune from public scrutiny. Further, the increased burden in maintaining this information under seal militates against granting ComEd's request to maintain the amount of its total alleged damages under seal. ComEd's request makes it extremely difficult for the Government to maintain accurate records regarding ComEd's damages requests. We routinely are required to identify the amounts of damages claims against the Government in cases pending before this Court in internal computerized records that allow the Government to track potential future liabilities, and that information may be used by various Government sources for various purposes. In periodic internal audits of potential liabilities, the Department of Justice is required to identify large potential liabilities and to identify the amount claimed by the plaintiffs in applicable cases, and such information may sometimes be made public or submitted to Congress or the General Accounting Office. Based upon ComEd's insistence that we keep the amount of its damages claim "secret" and "confidential," it appears that ComEd is attempting to preclude us from identifying this potential liability and its scope to Congress, to our auditors, to ComEd's ratesetting oversight body, or to any other outside source. Although documents containing -5-

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confidential business data or other proprietary information, the disclosure of which could harm one of the parties' business competitiveness, are properly protected under seal, there is simply no justification upon which to allow ComEd to withhold from public access the total amount of damages that it is seeking to require the United States to pay in this case. Such information should be public knowledge. For the foregoing reasons, we respectfully request that the Court grant this motion and remove the designation of "protected information" from the total amounts that ComEd has claimed as damages in this case. Respectfully submitted, PETER D. KEISLER Assistant Attorney General s/ David M. Cohen DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-7562 Fax: (202) 307-2503

May 14, 2004

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INDEX TO APPENDIX DOCUMENT PAGE

E-mail from David Jimenez-Ekman, counsel for plaintiff, to Harold D. Lester, Jr., and Sharon Snyder, Department of Justice, dated May 10, 2004 . . . . . . . . . . . . . . . . . . . . . . 1

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From: [email protected] Sent: Monday, May 10, 2004 7:01 PM To: Lester, Harv; Snyder, Sharon Cc: [email protected] Subject: Exelon SNF Case -- Reply In Support Of Fact Discovery Motion CONFIDENTIAL ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGED COMMUNICATION Dear Harv and Sharon: This afternoon, we received the Government's reply in support of its motion for supplemental fact discovery, and we wanted to raise an issue with you immediately. We were very surprised to see the references to the amount of Exelon's total damages claim in your reply at pages 9 and 12. To our knowledge, the amount of our damages claim has appeared only in Rule 26 disclosures and Mr. Emmert's report, each of which has been clearly labeled as subject to the protective order in force in this case. We believe this information is proprietary and confidential, and that it is covered by the protective order. Consequently, we do not think that it was proper for your reply to publicly reference the amount of Exelon's damages claim; while your original motion was filed under seal, as far as we can tell, your reply was not. We will greatly appreciate your advising us immediately whether the Government believes there was a basis for this public disclosure and, if not, what the Government intends to do to address this issue. Thanks for your attention to this. David David Jimenez-Ekman JENNER & BLOCK LLP One IBM Plaza Chicago, Illinois 60611 (312) 923-2683 (voice) (312) 840-7683 (fax)

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CERTIFICATE OF FILING I hereby certify that on this 14th day of May, 2004, a copy of foregoing "DEFENDANT'S MOTION TO LIFT THE SEAL UPON DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUPPLEMENTAL FACT DISCOVERY" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/Harold D. Lester, Jr.