Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:98-cv-00621-ECH

Document 301

Filed 04/13/2004

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMONWEALTH EDISON COMPANY ) and EXELON GENERATION COMPANY, LLC, ) ) Plaintiffs, ) ) v. ) ) ) THE UNITED STATES, ) ) Defendant. )

No. 98-621C, consolidated with No. 04-103C (Judge Hewitt)

DEFENDANT'S MOTION FOR LEAVE TO SERVE ONLY A REDACTED REPLY BRIEF AND APPENDIX UPON HOLTEC INTERNATIONAL Defendant, the United States, respectfully requests that the Court grant defendant leave to serve a non-party to this action, Holtec International ("Holtec"), with only a redacted copy of "Defendant's Reply To Holtec International's And Plaintiff's Responses To Defendant's Motion To Compel The Production Of Documents From Holtec Interational" and accompanying appendix, which are being filed with the Court today, and not to serve Holtec with the unredacted version of that reply brief and appendix. The reply brief that we are filing under seal with the Court today contains material that the plaintiff in this case, Commonwealth Edison Company ("ComEd"), or the plaintiff and/or the Court in Indiana Michigan Power Co. v. United States, No. 98-486C (Fed. Cl.), have designated as material subject to the protective order that the Court has entered in many of the spent nuclear fuel cases.1 Because neither the non-party that filed an objection to our motion to compel, Holtec International ("Holtec"), nor Holtec's counsel is a party to the protective order, we cannot provide Because the reply brief and appendix contain information subject to the protective order, we are filing it with the clerk's office in paper form, pursuant to the instructions governing ECF case filings. Because this motion does not contain any protected material, we are filing it as an electronic filing.
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Case 1:98-cv-00621-ECH

Document 301

Filed 04/13/2004

Page 2 of 4

Holtec or counsel for Holtec with information subject to that protective order. So that we may maintain our obligations under the protective order, but because we are required to serve Holtec with a copy of our reply to its response to our motion to compel production of documents from Holtec, we respectfully request that the Court grant us leave not to serve counsel for Holtec with the unredacted reply brief and appendix that we filed today. To provide Holtec with as much of our reply briefing as possible, we have prepared a redacted copy of our reply brief and appendix, copies of which are being filed with the Court along with our unredacted reply brief and appendix.2 Some of the material in the redacted briefing is still subject to the protective order, but, because the only protected material in the redacted version of the reply briefing and appendix is a copy of and information from a contract between Holtec and ComEd, material that Holtec already possesses, we believe it appropriate to provide Holtec with that information in a redacted filing. Nevertheless, the redacted filing itself should be filed under the provisions of the protective order to protect the information relating to Holtec and ComEd's contract. We will work with counsel for ComEd to determine whether any additional portions of the unredacted reply briefing and appendix may be provided to Holtec without violating the terms of the protective order. For the foregoing reasons, defendant respectfully requests that the Court grant defendant leave to serve Holtec with only a redacted version of its April 13, 2004 reply brief and appendix.

To the extent that we need to request leave of the Court to file both an unredacted and a partially redacted version of our reply brief and appendix with the Court, both under seal, we respectfully request that the Court grant us leave to do so.

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Case 1:98-cv-00621-ECH

Document 301

Filed 04/13/2004

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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 Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 305-7562 Fax: (202) 307-2503 Attorneys for Defendant

OF COUNSEL: MARTHA CROSLAND JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

April 13, 2004

Case 1:98-cv-00621-ECH

Document 301

Filed 04/13/2004

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CERTIFICATE OF FILING I hereby certify that on this 13th day of April, 2004, a copy of foregoing "DEFENDANT'S MOTION FOR LEAVE TO SERVE ONLY A REDACTED REPLY BRIEF AND APPENDIX UPON HOLTEC INTERNATIONAL" 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.