Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 1 of 7

IN THE UNITED STATES COURT OF FEDERAL CLAIMS COMMONWEALTH EDISON COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. )

Case No. 98-621 C (Judge Hewitt)

PLAINTIFF'S UNOPPOSED MOTION TO AMEND JULY 22, 2003 SCHEDULING ORDER TO EXTEND TIME TO SUBMIT INITIAL EXPERT DISCLOSURES Plaintiff Commonwealth Edison Company ("ComEd")1, pursuant to Rule 6(b) of the Rules of the Court of Federal Claims, respectfully moves this Court for the entry of an order amending the Court's July 22, 2003 scheduling order ("July 22 Order") by: (1) extending ComEd's deadline for initial Rule 26(a)(2) expert disclosures by 20 days to April 15, 2004; and (2) adjusting other interim deadlines so that the additional 20 days is removed exclusively from ComEd's time period (previously 7 weeks) to make rebuttal Rule 26(a)(2) expert disclosures, thereby leaving unchanged the current trial date and pretrial conference material submission deadlines, and the Government's allotted time periods under the July 22 Order.

On January 23, 2004, ComEd filed a motion to add Exelon Generation Company, LLC as a plaintiff. The Government has not filed a response and ComEd's motion remains pending. To the extent appropriate, this motion is also made on behalf of Exelon Generation Company, LLC.

1

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 2 of 7

In support of this Unopposed Motion, ComEd states: 1. On July 22, 2003, this Court entered an order setting a schedule for discovery and

trial in this action. Among other things, the July 22 Order set the following deadlines: Close Of Fact Discovery: ComEd Initial Expert Disclosures: Government Responsive Expert Disclosures: ComEd's Rebuttal Expert Disclosures: February 27, 2004 March 26, 2004 June 11, 2004 July 30, 2004

It was therefore contemplated that ComEd would have approximately one month after the close of fact discovery to make its expert disclosures. 2. The parties have worked diligently to complete fact discovery ­ there have been

extensive document productions; ComEd has made available 17 witnesses for personal and 30(b)(6) depositions; and the Government has made available 7 witnesses for personal and 30(b)(6) depositions. However, as Your Honor knows, on February 3, 2004, the Government requested an additional 14 days, to March 12, 2004, to complete fact discovery. ComEd did not oppose that request and, on February 9, 2004, the Court extended fact discovery until Friday, March 12, 2004, without modifying any other deadlines. 3. ComEd now respectfully asks to "borrow" 20 days from its rebuttal expert

disclosure time period, add that 20 days to its initial expert disclosure period, and preserve all other subsequent deadlines leading to trial. ComEd makes this request for two primary reasons: a. First, due to the extension in the fact discovery cutoff, ComEd is not

currently allotted the one-month period to prepare expert disclosures after the close of discovery originally contemplated by Your Honor's July 22 Order. Moreover, there was substantial fact

2

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 3 of 7

discovery activity in the last (additional) two weeks of fact discovery that prevented counsel from devoting substantial attention to expert matters.2 b. Second, while the Government has made significant productions of

documents in response to ComEd's November 18, 2003 document requests in January and February of this year, ComEd is advised by the Government that the Government's production is not yet complete. ComEd believes it is entitled to have at least the lion's share of the documents which the Government will produce sufficiently in advance of expert disclosure deadlines to permit ComEd and its experts to consider those documents in making disclosures. 4. As the Court knows, ComEd desires very much to proceed to trial on the

November 2004 date set in the July 22 Order, and ComEd has not previously requested an extension of the expert disclosure deadline (or any other deadline set in that Order). Consequently, ComEd proposes to maintain the overall trial schedule by shortening the period currently allotted to ComEd for rebuttal expert disclosures (currently about seven weeks) dayfor-day with the requested lengthening of ComEd's initial expert disclosure deadline. With ComEd's proposed extension, the rebuttal expert disclosure deadline, and all subsequent dates, will not change, but certain other interim dates ­ including the Government's time periods to take all actions before the rebuttal expert disclosure deadline ­ will be adjusted. The details of all changes requested by ComEd are explained in the prayer for relief below. 5. During the week of March 8, 2004, David Jiménez-Ekman, one of the counsel for

ComEd, and Sharon Snyder, one of the counsel for the Government, spoke about ComEd's

In addition to the extensive discovery already taken of ComEd fact witnesses, two depositions of ComEd fact witnesses are being rescheduled, pursuant to the agreement of the parties, to after the fact discovery close deadline. The rescheduling was necessary to accommodate the other discovery already set during the week of March 8, 2004 and the birth of a child to one of ComEd's counsel.

2

3

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 4 of 7

proposal. Ms. Snyder subsequently informed Mr. Jiménez-Ekman by voicemail message that the Government does not object to the relief requested by this Unopposed Motion.

4

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 5 of 7

WHEREFORE, ComEd respectfully requests that this Court enter an order amending the Court's July 22, 2003 scheduling order as follows: 1. Plaintiff's expert report(s) shall be submitted on or before Thursday, April 15, 2004, and defendant's responsive expert reports shall be submitted on or before Thursday, July 1, 2004. The date for the plaintiff's submission of rebuttal expert report(s), Friday, July 30, 2004, shall not change. 2. Defendant shall file any motions regarding supplemental fact discovery on or before Monday, April 26, 2004. Plaintiff's response shall be filed on or before Monday, May 3, 2004 and defendant's reply shall be filed on or before Friday, May 7, 2004. Plaintiff shall file any motions regarding supplemental fact discovery on or before Monday, July 12, 2004. Defendant's response shall be filed on or before Monday, July 19, 2004 and plaintiff's reply shall be filed on or before Friday, July 23, 2004. 3. All other dates and provisions of this Court's July 22, 2003 Order not expressly modified by this Order shall remain in full force and effect. Dated: March 17, 2004 Respectfully submitted, By: _s/ David A. Handzo_(by /s Christopher Tompkins) DAVID A. HANDZO Jenner & Block LLP 601 Thirteenth Street, N.W. Suite 1200 South Washington, D.C. 20005 (202) 639-6000 telephone (202) 639-6066 fax COUNSEL FOR PLAINTIFF COMMONWEALTH EDISON COMPANY, on its own behalf and on behalf of MidAmerican Energy Company, successor-in-interest to Iowa-Illinois Gas and Electric Company

5

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 6 of 7

Of Counsel: Donald R. Cassling Norman M. Hirsch David Jiménez-Ekman Christopher Tompkins Jenner & Block LLP One IBM Plaza Chicago, IL 60611 (312) 222-9350 Thomas S. O'Neill Exelon Nuclear Cornerstone II 5th Floor 4300 Winfield Road Warrenville, IL 60555 (630) 657-3770

6

Case 1:98-cv-00621-ECH

Document 289

Filed 03/17/2004

Page 7 of 7

Certificate of Filing, And Certificate of Service I hereby certify that on this 17th day of March 2004, a copy of the foregoing "Plaintiff's Unopposed Motion To Amend July 22, 2003 Scheduling Order To Extend Time To Submit Initial Expert Disclosures" 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/ Christopher Tompkins Christopher Tompkins