Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:98-cv-00614-JFM

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APPENDIX

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INDEX TO APPENDIX

Letter from John C. Ekman M. Stanford Blanton, to dated January 28, 2005 .......................................... Letter from M. Stanford Blanton to John C. Ekman, dated February 3, 2005 ................................................ Letter from John C. Ekman M. Stanford Blanton, to dated February 7, 2005 .......................................... Notice of Depositionof Christopher Kouts, dated January 26, 2005 .......................................... Notice of Deposition of DavidZabransky, dated January 26, 2005 .........................................

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U.S. Department of Justice Civil Division PDK : DMC : HDL : JEkman 154-98-614 Telephone: (202) 353-0897
Washington, D.C. 20530

January VIA FACSIMILE AAK] UNITED STATES MAIL

28,

2005

M. Stanford Blanton Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, Alabama 35203 Re: Southern Fed. C1. Blanton: Nuclear Operating No. 98-614C Co. v. United States,

Dear

Mr.

We are writing in response to your notices of deposition for David Zabransky and Christopher Kouts. As you may know, Mr..Zabransky has been deposed over ii days and provided testimony at the Yankee trial. Likewise, Mr. Kouts has been deposed over four days and provided testimony at the Yankee a~d Indiana Michiqan trials. Since your clients were parties to the coordinated discovery, you had the opportunity to depose both of these Government employees. Prior to producing these witnesses, we need an explanation concerning the issues to be covered in the depositions, as it is improper to re-depose these witnesses upon issues that have been or could have been covered in prior depositions or that are irrelevant to this litigation. While we will be reasonable in discussing further depositions for Mssrs. Kouts and Zabransky to the extent that new or unique issues are raised in this litigation, at this time we are unable to identify any such new or ttnique issues here that would require additional deposition discovery from these witnesses. The purpose of the coordinated discovery was to limit the time that Government witnesses needed to sit for depositions and to avoid unnecessary and costly repetition. The attempts that we have seen by every plaintiff - including,

A.O01

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-2now, Southern Nuclear - to depose these individuals in each case defeats the entire purpose of the coordinated discovery. Please contact me as soon as possible to discuss this matter. If no resolution is possible, we will need to take appropriate action to place the issue before the Court. Sincerely,

Trial Attorney Commercial Litigation

Branch

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BALCH & BINGHAM u.1,

~ Stanford Blanton (205) 226-3417

(205),~8~-5879 (direc! fax) ~blamon~balch,com

February 3, 2005 BY FACSIMILE (202) 307-2503 ANDU.S. MAIL John C. Ekman Trial Attorney U. S. Department Justice of Civil Division CommercialLitigation Branch 1100L. Street N.W. 8th Floor Washington, D.C. 20530 Re: Dear John: This is in response to your letter of January 28, 2005. Contraryto the assertion in your letter, Mr. Koutswas not deposedin the coordinateddiscovery proceedings, and discovery in our case had not begun whenhe was deposed in other cases, so we could not participate in those depositions. Moreover,Mr. Zabransky'sdeposition in the coordinated proceeding was limited to schedule issues (as that term was defined for purposes of those coordinated proceedings) and covered only the time period prior to April of 2002. Sigrfificam events have occurred in the DOE program since that time, whichrelated directly to the Government's defenses in this matter, and we are entitled to depose Mr. Zabransky about those areas. Similarly, wedo not believe that our ability to take discoveryin our case shouldbe limited by the trial tactics of other counsel You can be assured we have no interest in rsplowing old ~otmd with either Mr. Zabranskyor Mr. Kouts. Beyondthat, however, we do not beJieve we are required to describe for you in advancethe areas of inquiry we maypursue. Please confirm that Messrs. Kouts and Zabransky will be available to be deposed on February21, 2005in accordancewith the January 26, 2005notices. Southern Nuclear Operating Co. v. U.S., 98614C the Court of Federal Claims in

~ton MSB:dc A.003

TOTAL

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U.S. Department of Justice Civil Division PDK : DMC : HDL : JEkman 154-98-614 Telephone : (202) 353-0897
Washington, D.C, 20530

February VIA FACSIMILE AND UNITED STATES MAIL

7, 2005

M. Stanford Blanton Balch & Bingham LLP 1710 Sixth Avenue North Birmingham, Alabama 35203 Re : Southern Fed. CI. Blanton: Nuclear Operating No. 98-614C Co. v. United States,

Dear

Mr.

We are writing in response to your February 3, 2005 letter concerning the depositions of David Zabransky and Christopher Kouts. Although we are willing to discuss producing Mssrs. Zabransky and Kouts for depositions, we cannot do so solely based upon your representation that you "have no interest in replowing old ground" with either witness. As you know, Mssrs. Zabransky and Kouts have been deposed repeatedly in this litigation, and it is unfair to expect them again and again to interrupt their demanding schedules dealing with Yucca Mountain issues to sit for depositions. We have made available to you the extensive depositions that both individuals have given. Because a large number of plaintiffs have yet to begin their own damages discovery in these cases, we are concerned about statements, like that in your February 3, 2005 letter, that every plaintiff should be entitled to take fresh depositions of Mssrs. Zabransky and Kouts, as well as other witnesses. Under the discovery rules, and particularly in light of the circumstances of these cases, we cannot simply permit repeated depositions of any individuals by each plaintiff, absent a showing that the information is not already available.

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-2Based upon our analysis of potential issues upon which Mssrs. Zabransky and Kouts have not been deposed, we are willing to produce these witnesses concerning the 2004 Ax~nual Capacity Report. However, we cannot identify any other topics germane to your claims or to the Government's defense upon which significant deposition and trial testimony has not been elicited. We disagree with your contention that you are not required to describe, in advance, the areas of inquiry you wish to pursue with these witnesses. Indeed, any motion for protective order based upon the extensive discovery to which these witnesses already have been subject will require you to identify the reasons that the prior testimony is insufficient here. In any event, while resolution of this dispute is possible, it is not possible without information concerning the topics you wish to pursue. Finally, though you may not be "limited by the trial tactics of other counsel," we are entitled to know why the prior extensive testimony elicited by other counsel is insufficient. We fully anticipate that you will seek to use the earlier testimony - both deposition and trial - elicited by "other counsel" outside of the coordinated discovery at the trial of this matter. This is consistent with what attorneys have done in the other cases and highlights the reasons why these two witnesses should not be subject to repeated questioning upon identical topics. We are preparing a motion for protective happy to discuss a resolution of this matter motion. order, but would be short of filing that

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-3-

Finally, we have been receiving certain facsimiles from your office sent to a fax machine located upon the 10th floor of our building. Any facsimiles sent to that machine are not received in a timely manner. Please direct all future correspondence to (202) 307-2503.

igat

ion Br~nch

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THE UNITED

STATES

COURT OF FEDERAL

CLAIMS

SOUTHERNNUCLEAd~ OPERATING CO. INC., ALABA1VIA POWER COMPANY, AND GEORGIA POWER COMPANY, Plaintiffs, No. 98-614C (Senior Judge Merow) THE UNITED STATES, Defendant. NOTICE OF DEPOSITION Please take notice that plaintiffs, Southern Nuclear Operating Co. Inc., Alabama Power "Southern"), will take the deposition

Company, and Georgia PowerCompany (collectively

Christopher Kouts upon oral examination before an officer attthorized by law to administer oaths, for the purposeof discovery, or for the purposeof trial, or for both purposes, commencing February 2l, 2005. at Arnold & Porter, 555 Twelfth Street, N.W., Washin~on, D.C. 20004-

1202, commencing 9:00 a.m. until 6:00 p.m., or at a time and place agreed upon between at counsel for the parties, and continuing from day ro day until completed.

Dated: January 26, 2005

Balch & Bingham LLP 1710 Sixth AvenueNorth Birmingham, AL 35203 Telephone: (205) 226-3417 Facsimile: (205) 226-8798

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COUNSEL OF RECORD FOR PLAINTIFFS Of Counsel: Ed R. H:aden K. C. Hairston BALCH& BINGFIAMLLP 1710 Sixth Avenue North Birmingham, AL 35203 Telephone: (205) 251-8100 Facsimile: (205) 226-8798 Ronald A. Schechter Jeffrey L. Handwerker ARNOLD& PORTER 555 Twelfth Street, N.W. Washington, D.C. 20004-1202 Telephone: (202) 942-5777 Facsimile: (202) 942-5999

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IN

THE UNITED

STATES

COURT OF FEDERAL

CLAIMS

SOUTH_ElaN NUCLEAROPERATINGCO. INC., ALABA2VIA PO~VER COMPANY, AND GEORGIA PO'~VER COMPANY, Plaintiffs, No. 98-614C (Senior Judge Merow) THE UNITED STATES, Defendant. NOTICE OF DEPOSITION Please take notice that plaintiffs, Southern Nuclear Operating Co. Inc., Alabama Power

Company,and Georgia Power Company (collectivdy "Southern"), will take the deposition DavidZabranskyuponoral examinationbefore an officer authorized by law to administer oaths, for the purpose of discovery, or for the purpose of trial, or for both purposes, commencing

February 21, 2005, at Arnold & Por~er, 555 Twelfth Street, N.W., Washington,. D.C. 200041202, comrnencingat 9:00 a.m. until 6:00 p.m., or at a time and place agreed upon between counselfor the parties, and continuingfromday to ¢/ay until complete.d.

Balch & Bingham LLP 1710 Sixth AvenueNorth Birmingham, AL 35203 Telephone: (205) 226-3417 Facsimile: (205) 226-8798

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COUNSEL OF RECORDFOR PLAINTIFFS Of Counsel: EdR.l-l~den K. C. Hairston BALCH B1NGHAM & LLP 1710 Sixth AvenueNorth Birmingham, AL 35203 Telephone: (205) 251-8100 Facsimile: (205) 226-8798 Ronald A. Schechter Jeffrey L. Handwerker A2.NOLD PORTISIi & 555 Twelf~hStreet, N.W. Washington, D.C. 20004-1202 Telephone: (202) 942-5777 Facsimile: (202) 942-5999

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