Free Motion for Extension of Time to Complete Discovery - District Court of Federal Claims - federal

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APPENDIX

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FILED
SOUTHER~ NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, GEORGIA POWER COMPANY, Plaintiffs, NOV 2_002 8
U.S, COURT OF FEDERAL CLAIMS

THE UNITED STATES, Defendant.

ORDER Plaintiffs' motionfiled October30, 2002, seeks a scheduling.conference the for purpose of scheduling all remainingproceedingsin the case. By Order, filed November 2002, completion of briefing on defendant's 8, partial summary judgmentmotions filed November December,2001 was scheduled. Rulings on these motions could have an impact on the nature and extent of future proceedings.Accordingly, maybe moreefficient if pretrial activity, in wholeor in it part is deferred to await rulings on pending dispositive motions or keyed to continenceafter these rulings. Whether,in the discovery undertakento date, the initial disclosures required by RCFC 26(a) have occurred is within the knowledge counsel, but, if not, these of disclosures should nowoccur.

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For the damages disclosure required by RCFC 26(a)(1)(C) and, subsequently, for exhibits proposed in accord with ~ 13(a) Appendix the following procedures A, shall be followed: (a) Anyand all items and figures from books of account or other records, which are to be introduced in evidence in this matter, and any calculations or estimates derived therefrom, shall be set forth on separate schedules or summaries and so provided and disclosed to opposing counsel pursuant to RCFC 26(a)(1)(C) during the damages discovery period; (b) Anyschedule or summary provided pursuant to (a) shall be accompanied by a statement describing the source(s) for the items or figures listed (ledgers, journals, payrolls, invoices, checks,time cards, etc.), the location(s) of the source(s), the time, during the damagesdiscovery period, whenthe source(s) maybe examined or audited by the opposingparty, the nameand address of the person(s) whoprepared each schedule or summary whoshall be madeavailable to the opposing party and during an examination or audit of the source material to provide information and explanationsrequired for verification of the listed items or figures; (c) Upon receipt of a schedule or sunzunarypursuant to (a) receiving counsel shall provide for a completeexamination audit of the source material, preferably or by a person or persons available to provide testimony in any ensuing evidentiary proceedings, and thereafter receiving counsel shall provide opposingcounsel with a statement, during the damages discovery period, admitting or denying the accuracy or admissibility of each schedule or summary portion thereof) submitted (or opposingcounsel, whichstatement shall address each item and figure submitted and reflect and set forth the results of the examinationor audit of the source material from whichthe submissions were derived and shall set forth the reason(s) for any denial of accuracyas to specific items or figures, citing generally acceptedaccounting principles or regulations where applicable, and the reason(s) for any denial admissibility as to specific items or figures, keyedto the applicable Federal Rule(s) of Evidence; (d) Proposed trial exhibits exchangedpursuant to ¶ 13(a), AppendixA listed pursuantto ~ 16, Appendix shall include schedulessetting forth all items and A, figures from books of account or other records, and calculations and estimates derived therefrom, whicha party proposesbe introduced in evidencewith appropriate -2A.002

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identification of those specific scheduleditems, figures, calculations and estimates thereon which, on the basis of pretrial examinations or audit and exchanges are contested as to accuracyor admissibility, so that evidentiary proceedingsas to items and figures shall thereafter be limited to those identified as contested. Prior to the court scheduling a conference or issuing an order pursuant to RCFC 16(b) and ~ 7, AppendixA, counsel are expected to meet to formulate, and then submit a proposed plan(s) for accomplishing the disclosures, exchanges and pretrial submissions contemplated by RCFC and AppendixA. 26 Accordingly, it is ORDERED: (1) Counselshall confer for the purpose of formulating a proposedplan(s) accomplish the disclosures, exchanges and submissions required by RCFC and 26 Appendix A; (2) Onor before January10, 2003, counselshall file a Joint PreliminaryStatus Report, pursuant to AppendixA, ~] 4, which shall include the proposed plan(s) formulated pursuant to (1); (3) "Items" and "figures" evidenceshall be disclosed, scheduled, verified and set forth as detailed above; (4) Except as herein GRANTED, plaintiffs' conference at this time is, otherwise, DENIED. motion for a scheduling

~(mes F. Merow Senior Judge

-3A.003

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tl)e ~niteb ~tate~(~ourt of ffeberal ~laima
........ ' ~ No. 98-614C ~:: -" ~7~~: ~.FiledApril 7, 2004)

FILED
APR ?.004 7
U.S, COURT OF FEDERAL CLAIMS

SOUTHE~ ~CLEAR OPE~T~G COMPANY, ALABAMA PO~R COMPA~, GEORGIA POWER COMPANY, Plaintiffs,

* * * * *

THE UNITED STATES,

* Defendant. *

ORDER The Order, filed April 7, 2004, provided rulings on all pending dispositive motions. It is necessary to issue a schedulingorder for the pretrial proceedingsnow required. The January 10, 2003 Joint Preliminary Status Report proposed schedules in this regard, but an updatedsubmission(s)is needed. The Order, filed November 2002, established a procedure for the pretrial 8, listing and verification of all financial, accountingor summary data, or estimates or calculations derived therefrom to be employedas evidence in this matter. As an initial pretrial step, plaintiffs shall disclose to defendantall specific damage sums claimed and all record support for the claimed sumsin the form of schedules (often in the form of proposed exhibits) setting forth the information required by the November 2002 Order. Defendantthen, as a part of the pretrial process, shall 8, schedule the audit or examinationsrequired for verification and prepare and furnish to plaintiffs the requiredreport as to results thereof. In short, the procedures required by the November 2002 Order shall be included in the schedule for the pretrial 8, proceedings and submissions set forth in AppendixA.

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Accordingly,

it is ORDERED:

(1) That counsel confer with a goal of reaching agreement on a proposed schedule for the pretrial proceedings in this matter and the submissions set forth in Appendix A, including therein compliance with the procedure set forth in the November 8, 2002 Order; (2) On or before May7, 2004, counsel shall file their proposed pretrial schedule(s) so that an appropriate scheduling order maythereafter be issued; (3) Defendant's time to file an answer in this matter is enlarged to and including May7, 2004.

/~l~mes F. Me'~ow Senior Judge

-2-

A.005

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No. 98-614C (Filed June 21, 2004)

SOUTHERN NUCLEAR OPERATING COMPANY, ALABAMA POWER COMPANY, GEORGIA POWER COMPANY, Plaintiffs,

* * * * *

THE L~ITED STATES, Defendant.

* * DRDER

The pre-trial schedule positions submitted by the parties have been reviewed and it is noted that there exists disagreementwitla respect to the point at whichthe "audit" activity required by the November 2002 Order can most efficiently be undertaken. 8, The purpose for the scheduling and verification of items and figures to be introduced in evidence, during the pre-trial process, is to obviate most so-called "book and records" evidence at trial. Items and figures that are needed by either party for trial evidence are subject to this procedure. For example, should plaintiffs' asserted damages include labor costs based on amounts recorded in books and records, computer tapes, etc., the costs cla'uned are to be scheduled, together with supporting source information. Defendant, by means of a person(s) qualified to present testimony, is to examine or audit the source, with the assistance of a qualified person(s), provided by plaintiff, who will have knowledge of the record systems(s) involved, and report the results of its examination or audit by noting agreement or disagreement that the source provided supports the items or figures scheduled. Should defendant wish to submit alternative items and figures obtained through discovery or otherwise, defendant is also required to follow the same procedure and obtain a report from plaintiff refiecting the results of plaintiffs' source examinationor audit. It is obviously in the interests of both parties to save time and moneyby

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cooperating in the verification procedure for those items and figures which either party proposes to be introduced in evidence. This procedure is somewhat akin to the practice long followed with good success in Court of Claims litigation. See L. Rosenman Corp. ~. United States, 203 Ct. C1. 727, 728 (1974). It is not intended that verification that a cited source supports a specified item or figure also meansthat the item or figure so verified is recoverable as damages. A verification will obviate the need for a party to introduce the supporting source material and resulting testimony. Trial evidence will be needed only for items and figures not verified after examination or audit during pretrial. Accordingly, it is assumed that plaintiff is generally aware of the items and figures from its records that it will wish to introduce in evidence. It is assumedthat defendant mayalso be aware of items and fi~es from records, public or otherwise, that it maywish to introduce in evidence. It was contemplated that the exchange of such schedules could occur throughout the pre-trial period as the need arises. The end result, however, will be exhibits (schedules) introduced, or to be madethe subject of stipulations, which fully disclose verified items and figures together with any contested items and figures whichwill be the subject of trial evidence. Considering that plaintiffs will proceedfirst at trial, it is concluded that pla'mtiffs shall so proceed in pretrial and .initiate the audit process by providing defendant's counsel at the beginning of fact discovery, with a schedule(s) of the items and figures from plaintiffs' records which are to be utilized to support its claimed damages. This maybe supplemented to an extent consistent with fi~y accomplishing the verification process during the pretrial period. Any schedule(s) submitted by defendant are subject to this same restriction. If counsel cannot agree on a schedule submission cutoff date in this respect, as pre-trial goes forward, court assistance in this regard shall be promptly requested. Accordingly, the following pre-trial schedule, other than for the "audit" process, is established: September 1, 2004 ~ Fact Discovery shall commence.±

±~Asnotedabove,plaintiff'shall also con~nence separate"audit"process submitt'mg the by its (continued...) -2-

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2.

December31, 2004 Fact discovery shall be completed. January 31, 2005 Plaintiffs' expert reports submitted. February 29, 2005 Defendant'sexpert reports submitted. April 1, 2005 Completion expert discovery. of Remaining schedule in accord with the parties' proposed pre-trial schedule, with trial to commence August 29, 2005.

s/James F. Merow

James F, Merow Senior Judge

!1(...contir~ued) schedule(s) pursuant to the November 2002 Order, on or before September1, 2004. 8, -3-

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DepartmentofJustice

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CivilDivision PDK : DMC : HDL : JEkman 154-98-614 Telephone: (202) 353-0897
Washington, D.C. 20530

December VIA FACSIMILE AND UNITED STATES MAIL

23,

2004

M. Stanford Blanton Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, Alabama 35203 Re: Southern Fed. Dear Mr. CI. ~uclear No. Operating Co. v. United States,

98-614C

Blanton:

Based upon the Court's order dated December 20, 2004, we are writing to request an update of Southern Nuclear's damages claim. Currently, Southern Nuclear has only identified its alleged damages through 2010. Not only do we not know the amount of damages sought post-2010, based upon pre-2010 breaches by DOE, we do not know the categories of damages that you anticipate seeking at trial. To complete fact discovery, we need to know this information immediately. Please 4supplemental meantime, call. advise damages have me as soon categories any questio as possible and .~s, when we can In expect the to

calculations. please

if you

do not hesitate

/

Trial Attorney Commercial Litigation

Branch

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BALCH & BINGHAM LLP

Attorneysand Counselors 1710Sixth Avenue North EO. Box306 (35201-0306) Birmingham,AL35203-2015 (205) 251-8100 (205) 226-8798 Fax www.balch.com (205) 488-5879 (direct [email protected]

M. Stanford Blanton (205) 226-3417

December29, 2004

VIA FEDERALEXPRESS and FACSIMILE MarianE. Sullivan Trial Attorney U. S. Department Justice of Civil Division CommercialLitigation 1100 L Street N.W. Washington, D.C. 20530 John C. Ekman Trial Attorney U. S. Department Justice of Civil Division CommercialLitigation 1100 L. Street N.W. Washington, D.C. 20530 Re: Southern Nuclear Operating Co. v. U. S., No. 98-614C, Court of Federal Claims Dear Marian and John: This is in response to Marian's letter December20, 2004 and December23, 2004. of December21, 2004, and John's letters of

As to the depositions requested in Marian's letter, we have reviewed the Government's notice of deposition under RCFC 30(b)(6) and will designate a witness, or witnesses, after first of the year. As we noted in our correspondence of December 2004, we have not waived 2, the limit on the numberof depositions set forth in the RCFC and, as a result, the depositions requested in Marian's letter exceed the maximum numberallowed. Further, we do not believe it is appropriate for the Governmentto insist on an open-ended numberof depositions, as is suggested by Marian's letter. We wilt consent to a total of 13 fact witness depositions, with the 30(b)(6) counting as one unless the designee is another named deponent, if that is acceptable the Government. Otherwise, we will object to offering morefact witnesses for deposition than are allowedby the rules of the Court.

A.010

Case 1:98-cv-00614-JFM BALCH & BINGHAM LLP

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MarianE. Sullivan John C. Ekman December 29, 2004 Page 2

As to John's letter of December20, our agreement to extend the period for the completionof fact discovery is based expressly on the understandingthat the extension wilt not affect the August,2005trial date. Further, in an effort to cooperate with the Government its in audit of our costs, we would also consent to an audit procedure whereby the Government responds to alleged inadequacies in Southern Nuclear's accounting systems or procedures, allocations, and to the reasonableness of categories of costs included in Southem'sdamages disclosures by January 14, 2005, with challenges to the factual support for expenses claimed to comenot later than February 29, 2005. To be clear, we do not agree that the proper subjects of expert testimony are limited to the items or categories of items to be delivered on January 14th, but webelieve this process provides a reasonable basis for the completionof the expert reports. To the extent the Government raises issues that are properly the subject of expert testimony subsequentto January I4, 2005, SouthernNuclearreserves the right to update its expert report or to present expert rebuttal testimonyon the subjects raised. Finally, as we madeclear in our letter of September1, 2004 accompanying damages our disclosures, Plaintiffs' future damageswill be the subject of expert testimony and will be disclosed in our expert witness reports, due January 31, 2005. The categories of furore damages set forth in the expert witness reports shouldbe similar if not identical to the categories of past damagesdisclosed in our September1, 2004 submission. Wedo not agree that the Government's ability to complete fact discovery is compromisedby the schedule for discovery of expert witness testimony. Sir~e/~, ly, ,

MSB:dc

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Handy-V~litman TrendsOf Electric Ufilit3' Construction Cost Nuclear Production Plant 1965 To Ju{y I, 2004 (AverageOf All Regions)

Production Plant Index Number 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 200~ 2002 2003 2004 ~ 66 68 71 73 77 82 89 95 I00 114 130 140 151 162 ~178 ,~,~195 [213 228 237 242 245 247 254 265 L276 Ea5"284 293 302 314 ]288 -~-'324 86330 345 349 ] 339 ~363 ~375 ~97 ~386 409 ~ Escalation Rate

Improvements Index Number Escalation Rate

Equipment Index Number Escalation Rate

3.03o 2.82%-~ 6.49°,~ 8.54%q~ 6.74%"~ 74 78 84 90 96 7.53~ 100 114 130 142 7.460/g~ 151 9.03%~ 162 " 10.19o/03 2-.176 9.83%8" ~t/193 7.37°,~ 211 4.41%'~ 227 2.74%-ff 1.78%'~ 241 246

271 2.5 l%q~ _-283 2.45 */~76"29 l

o.8o~/,~f 296
4.69°,~ 306 4.85~ 316 " 2A9% .,-326 3.39%~t .64Y~ [ .29°A~ 4.14oA~ t~ 3.67% I~, ~ 2.950/~ ] 1.72%~- [ 3.94oA~-/~ 338 342 348 358 368 377 384 397

Average(1965-2004) Average(Past 5 Years) Average(Past 20 years) Average CPast 30 Years)

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Southern Nuclear v DOE SouthernNuclear Historical and Projected Discharges 1998 TSLCC Rates RW859-2002All Plants LE 104 -

Plant Name HATCH1 HATCH1 HATCH1 HATCH1 HATCH1 HATCH1 HATCH1 HATCH1 HATCH 1 HATCH1 HATCH1 HATCH1 HATCH I HATCH1 HATCH1 HATCH1 HATCH1 HATCH I HATCH 1 HATCH t HATCH 1 HATCH 1 HATCH I HATCH 1 HATCH 1 HATCH1 HATCH t HATCH 1 HATCH 1 HATCH 1 HATCH1 HATCH 1 HATCH 1 HATCH1 HATCH 1 HATCH 1 HATCH 1

# Assemblies

MTU Discharge

Date

188

~35,25 ~ ~

790422

10~

19,1~

821009

84og29
851127 870422

910918 930316

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971011 990301 1000928 1040213 1060210

~o8o2os
1140215 1180215

j.20o2~
1220215 1280215 1320215

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