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 THE APPENDIX Document Pa~e

Letter from M. Sullivan, Departmentof Justice, to M. Stanford Blanton, Balch & Bingham, dated November 24, 2004 ....................................................... Letter from M. Stanford Blanton to M. Sullivan, dated December2, 2004 ................. Letter from M. Stanford Blanton, dated November 12, 2004 ............................

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Case 1:98-cv-00614-JFM

Document 260-2 Department Justice Page 3 of 15 U.S. Filed 12/03/2004 of

Civil Division
PDK : DMC : HDL : MESullivan 154-98-614 Telephone: (202) 307-6288
Washington, D.C. 20530

November VIA FACSIMILE AND U.S. MAIL

24,

2004

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

Dear

Mr.

The purpose of this letter is to address several outstanding discovery matters. I look forward to discussing these matters with you at your earliest convenience. As I indicated in my voicemail message earlier today, I will be in the office on Friday, November 26, 2004, as well as Monday, November 29, 2004. Southern Nuclear's Pendinq RCFC 30(b} (6} Notice

By letter dated November 12, 2004, you served upon behalf of Southern Nuclear a RCFC 30(b) (6) notice for the deposition of a DOE representative or representatives on five very broad topics. Four of these topics seek information regarding DOE's plans for waste acceptance beginning in 2010, including DOE's efforts to meet the 2010 date and the transportation planning activities that DOE will undertake. The fifth seeks speculative testimony from a DOE representative about matters that were never formalized for performance by DOE in 1998. The Government does not understand Southern Nuclear's need for these depositions, given Southern Nuclear's current position that it does not intend to litigate the issue of whether DOE will meet the 2010 date or seek any damages at trial arising from DOE's failure to meet this date. In fact,

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pursuant to Southern Nuclear's currently pending motion, Southern Nuclear seeks to defer trial proceedings for any damages arising from DOE's failure to perform in 2010. Sere Southern Nuclear's Motion For An Order Regarding Subsequent Damages Actions. Moreover, Southern Nuclear seeks to take depositions about topics, such as DOE's plans for transportation, that are still being developed. DOE has not entered into any contracts with cask or container vendors (Topic Ic.). As DOE witnesses recently testified at trial in Yankee Atomic Electric Co. v. United State_______~s, No. 98-126C, DOE has not determined how or whether it will accept canistered fuel from utilities (Topic id.). The Government simply cannot see the relevance of "the Government's plan for acconm~odating Yucca Mountain's capacity limitations" to Southern Nuclear's current damages claims (Topic if.). While DOE is aware of the current statutory capacity limit upon the repository, this limit will be a matter for Congress to address. Topic 5 on Southern Nuclear's RCFC 30(b) (6) notice presents different concern. Topic 5 seeks to depose an individual on "the physical characteristics of equipment, including canisters, casks and overpacks, that would-have-been used, had the Government begun performance in 1998. This topic is improper because it asks for a fact witness to speculate upon what DOE would have done in 1998. The only relevant inquiry is what DOE was required to do and this issue may be answered by reference to the contract. Please call me at your earliest convenience to discuss these deposition topics further. Without further explanation as to how these deposition topics are proper and relevant, the Government is prepared to seek a protective order from the Court to preclude the depositions. Decision Documents

As you may recall, when we spoke on October 28, 2004, we raised a concern that we had not found among the documents Southern Nuclear had produced any "decision documents." Since our call, we have continued to review the documents produced by Southern Nuclear, but still have not found any documents that reflecting the decisions and authorizations to rerack the wet pools and/or construct the dry storage facilities, the costs of which efforts Southern Nuclear now seeks as damages. For

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example, we have not received meeting minutes from any board of directors or documents from management authorizing re-racking and/or construction efforts. Based upon our experience in other SNF cases, we know that decisions to incur significant expenditures generally require management or board of directors approval (and, sometimes, both) and we have been provided with documents reflecting those board or management approvals. Here, we have been unable to locate similar documents. Therefore, please provide us with all decision documents requested in discovery or identify by bates number where such documents are found among the documents Southern Nuclear has produced to date. Obviously, we would like to avoid having to re-depose senior managers based upon the delayed production of this category of documents. Audit Remuests

As you know, by letter dated October 29, 2004, I served upon you our audit requests seeking additional documentation of Southern Nuclear's claims. When we spoke during the week of November I, 2004, you indicated that Southern Nuclear was working to gather the documentation that the Government's auditors had requested. Please provide a date by which we may expect to receive this material. Deposition Schedulinq

The Government anticipates that it will require approximately 20 depositions of Southern Nuclear personnel to address the schedule and damages issues to be litigated. We would like to depose Mr. Bruce E. Hunt, Mr. J.P. Reynolds and Ms. Susan Hoxie-Key during the week of December 13, 2004, in Birmingham, Alabama. Please advise me as to whether these individuals will be available. As we finalize our list of deponents, we will notify you for the purpose of scheduling depositions. We expect that the depositions of Mr. Hunt and Mr. Ronald Cocherell will both require two days because of the areas of responsibility and the lengthy tenures of both of these gentlemen at Southern Nuclear. Please let me know whether Southern Nuclear will consent to this extension or whether the Government should seek leave of the Court. We currently expect that we will be

5

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able to conduct set for in RCFC Problems With

the remaining 30(d)(2). Production

depositions

within

the

time

limits

Recent

We have identified three technical problems with Southern Nuclear's production of documents on November 8, 2004. First, although one of the CDs was labeled with a bates range SNCRFP 000001-008851, we found images on the disk with the bates ranges SNCRFP 002755-008851 and SNCRFP 015139-017892. We found no images that bear the bates numbers SNCRFP 000001-002754. Two, although another CD was labeled with the bates range SNCRFP 015139-015185, the images on this CD were not endorsed with bates numbers and are different from the images provided on the first CD. Three, the document bates numbered SNCRFB 017193-017386 (located in the 002Fldr in 001935.tif) did not convert correctly, so we are unable to print or process these images. Please advise me at your earliest convenience as to how Southern Nuclear proposes to address these problems. December 31,... 2004 Close Qf ~act Discovery

The Government still has not yet received a response to our request that the fact discovery deadline be moved from December 31, 2004, to April i, 2005, the date upon which expert discovery closes. As we have previously discussed, the December 31, 2004, deadline is not practicable given the amount of information we need to review, the number of depositions needed given claims by three separate facilities, the amount of information that still has not been produced, the status of the audit process, and the schedules of the attorneys involved in this case. More specifically, in preparing for depositions, we have engaged in a time-consuming review of tens of thousands of documents produced by Southern Nuclear. Through that process, we have identified nearly 20 potential deponents from three separate facilities. As you know, we still are missing documents that are responsive to our discovery and audit requests - including documents from the three facilities reflecting the decisions to rerack and/or construct dry storage. These documents are critical to any effective and efficient deposition process. Finally, three out of four of the attorneys involved in this case are key members of the team that defended, at trial this summer,

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the claims brought by the Yankee Merow. As you likely are aware, engaged findings in the preparation of fact. of an

utilities before Senior Judge since trial, we have been extensive post-trial brief and

Our proposal will not affect the trial date set for August 30, 2005. Instead, it merely coincides the close of fact and expert discovery. Given the significant claims brought by Southern Nuclear, this change in schedule to an internal deadline seems reasonable. Please advise me as to Southern Nuclear's position on this matter so that we may bring this matter before Senior Judge Merow upon a timely basis, if necessary.

Please contact me at these matters further.

(202)

307-0365,

so

that

we may

discuss

MARIAN E. SULLIVAN Trial Attorney Commercial Litigation

Branch

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BALCH &. BINOHAM

M, St~ford BLluton (205) 226-3417

December 2, 2004 BY FACSIMILE (202) 514-8640 AND BY U.S. MA~ Marian E. Sullivan Trial Attorney U. S. Department Justice of Civil Division CommericalLitigation 1100 L Street N,W. Washin~on, DC 20530
Re:

Southern Nuclear Operating Co. v. United States Fed. Cl. No. 98-614C

DearMadan: I amin receipt of your letter dated November 2004, in which you address several 24, discovery related matters. Becauseof the number issues raised, I felt that it wouldbe more of productive to respondin writing. As to our deposition notice under RCFC rule 30(5)(6), it maybe accurate that, if Court grants our MotionRegardingFuture Damages, maymootseveral of these topics for the it purposeof this litigation, principally those related to the Government's plans for the acceptance of spent nuclear fueI stored in dry casks at the time of acceptance. Inasmuch the Government as has objected to our motion, and has argued that Southern maynot recover as daraages in future litigation future costs associated with breaches for which damagesare awardedin the present litigation (i.e. the Government's "claim splitting" argumenton pages 31-33 of the response to our motion and motion for partial summary judgmentregarding damages), it is necessary for us to conduct discovery nowinto any costs that maybe imposedon Southern in connection with DOE'sacceptance of the spent nuclear fuel stored in dry casks. If the Court were to rule favorably on our motion prior to the taking of the 30(5)(6) depositions it maybe that some these subjects wouldnot be necessary. Subject to that, we must conduct discovery assumingwe ~vill be requiredto provethese mattersat trial. Other matters listed in the 30Co)(6) notice, such as type of canister and/or cask Goven-a-nent wouldhave utilized had it performedper the con,:act, as well as the factual basis for the acceptance rate identified in the DOE's2004 Annual Capacity Report, are dearly legitimate issues for trial in this cause and the Government no basis for objecting to this has discovery. Pleas~ let us know whena witness will be available.

Case 1:98-cv-00614-JFM BALCH & BINGHAM LLP MarianE. Sullivan December2, 2004 Page 2

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As to the Depositions you have requested, it was disappointing to see that the Government delayed until the end of November notify us that it desires to take 20 fact has to depositions, Southern does not consent to the Government'staking twice the minimum number of depositions allowable under Rule 29 of the RCFC. al~o note that the Government had I has substantial discovery from Southern from the joint coordinated discovery proceedings which wouldhave allowed it to commence depositions on the acceptance rate issues far in advance may of 17 days prior to the scheduledend of fact discovery. Weare prepared to makeMr. Hunt available on December as requested. Mr. Reynolds 13 no longer works for Southern Company we will need to inquire as to his availability. Ms. and Hoxie-Keyis in training du.Omgthe week of the December13, 2004. She can be avariable on December20 or 21. Southern is diligently working on the Government'saudit requests, which we received almost two monthaafter providing the Government with Southem'sinitial damagesdisclosures. The responses to these voluminous requests should be available soon and we will begin providing you with responsesas soonas they are available. As to the so-called "decision documents,"we have confu-med that documentsthat relate to the decision to add storage capacity at the subject plants wereincluded in our initial responses to the Government's discovery requests. I have attached the first pages of six such documents, indicating their Bates numbers,to this letter, with the understanding that youhaveagreed that the Government will showSouthern similar courtesy in the event we are unable to locate documents in the Govarament's production to us. In addition, we a.re oonducting supplementalsearches of Southem's documentsto determine whether there are additional documentsof r~s nature that have not been produced. If we discover any such documents,they will be promptly forwarded to you.. I understand that we have forwarded new CDsto you to resolve the issue you raised regarding the missing bates numbers. As to your requested extension of fact discovery, we wouldbe amenableto discussing an extension provided there are adequate protections agair~t any additional requests for extensions by the Government, there is firm agreementthat any extension wiI1 not affect the trial date, and wecan reach agreement a process that protects the ability of our experts to have the benefit of on fact discoveryin the preparationof their reports.

Case 1:98-cv-00614-JFM BALCH & BINGHAM ntv Marian E. Sullivan December 2, 2004 Page 3

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Don'thesitate to call if youhaveanyquestions concerning forego~g. the

MSB:dc Attachments

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BALCH & BINGHAM LLP

Attorneys ~ Coumelors 1710 Sixth Avenue North EO. Box306 (35201-0306) Birmingham,AL35203-2015 (205) 251-8100 (205) 226.8798Fax www.haleh.com (205) 488-5879 (direct RLX) sblanton@balch,com

M. Stanford Blanton (205) 226-3417

November12, 2004

BY FEDERAL EXPRESS AND BY FACSIMILE Ms. MarianE. Sullivan, Esq. Departmentof Justice CommercialLitigation Branch Civil Division 1100 L Street, N.W. Washington, D.C. 20530 Southern Nuclear Operating Co., b~c. v. United States Court of Federal Claims Case No. 98-614C Dear Marian: Enclosed please find Southem's Notice of Rule 30(b)(6) depositions for Government'sdesignated representative(s). The depositions are nowscheduled to begin December 2004, at the law offices of Amotd& 2, Porter in WashingtonD.C. Please let us know if an alternate date is necessary. " If wecan be of any further assistance, ptease do not hesitate to call. Since/r~,

MSB:dc Enclosures Mr. Ronald A. Schechter Mr. Jeffrey L. Handwerker

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SOUTHERNNUCLEAR OPERATING CO. INC., ALABAMA POWER COMPANY, AND GEORGIA POWER COMPANY, Plaintiffs, No. 98-614C (Senior Judge Merow) THE UNITED STATES, Defendant. PLAINTIFFS' RULE 30(1])(6) NOTICE OF DEPOSITION

Please take notice that, pursuant to Rule 30(b)(6) of the Rules of the Court of Federal Claims, plaintiffs, Southern Nuclear Operating Co. Inc., AlabamaPowerCompany, Georgia and

PowerCompany (collectively "Southern"), will take the deposition of the Departmentof Energy ("DOE"or °°Government"), or a person or persons designated by the Governmentupon oral examination before an officer authorized by law to administer oaths, commencing December 2, 2004, at Arnold & Porter, 555 Twelfth Street, N.W., Washington, D.C. 20004-t202,

commencing 9:00 a.m. until 6:00 p.m., or at a time and place agreed uponbetweencounsel for at the parties, and continuing from day to day until completed. Pursuant to Rule 30(b)(6), the Governmentshall designate the most knowledgeable person or personsto testify uponits behalf as to the followingsubject matter. The Government's plans for accepting delivery of spent nuclear fuel stored in dry casks on Southern'sreactor sites, including but not limited to: a. The Government'splans, if any, regarding potential interim storage

option(s) prior to the availability of Yucca Mountain (e.g., alternative sites

]©

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near YuccaMountain,elsewhere, the Government taking title to spent fuel at onsite (at reactor), ISFSIs,etc.). Thephysical characteristics of the equipment facilities, and including but

not limited to and to the extent applicable, canisters, casks, and overpacks, the Government plans to use to accept spent nuclear fuel from Southem's reactor sites and transport the spent fuel to the Yucca Mountain repository. Theexistence of any contracts with cask and/or container vendors, as well as any other vendors, related to the acceptance and disposal of commercial spent nuclear fuel; and
do

TheGovernment's plans relative to the acceptance of spent nuclear fuel in canisters purposes. The Government's projections of spent nuclear fuel discharges for and/or casks purchased by Southern Nuclear for storage

Southern (factoring in the Government'sassumptions, if any regarding capacity factors, bum-up rates, etc.). The Government's plan for accommodatingYucca Mountain's capacity limitations. The Government's plans for accepting delivery of spent nuclear fuel stored in dry casks on awayfromreactor independentspent fuel storage installations. The Government's plan for the commencementof operations at the Yucca

Mountain repository, including but not limited to schedule milestones, actual and projected performance against such milestones, prior and current budget requests, and funding requirements. The basis for the spent nuclear fuel acceptance rate utilized in the DOE's 2004 Annual Priority Rankingand Annual Capacity Report.

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5.

The physical characteristics

of equipment, including canisters,

casks and

overpacks, that would-have-been used, had the Governmentbegun performance in 1998.

Dated: November12, 2004 Balch & Bingham LLP 1710 Sixth AvenueNorth Birmingham, AL 35203 Telephone: (205) 226-3417 Facsimile: (205) 226-8798 COUNSEL OF RECORDFOR PLAINTIFFS Of Counsel: Ed R. Haden K. C. Hairston BALCH BINGHAM &; LLP 1710 Sixth AvenueNorth Birmingham, AL 35203 Telephone: (205) 251-8100 Facsimile: (205) 226-8798 Ronatd A. Schechter Jeffrey L. Handwerker ARNOLI~ PORTER & 555 Twelfth Street, N.W. Washington, D.C. 20004-1202 Telephone: (202) 942-5777 Facsimile: (202) 942-5999

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CERTIFICATE OF SERVICE I herebycertify under penalty of perjury, that on this 12 day of November, 2004, I caused to be served by United States mail and facsimile a copy of the foregoing Plaintiffs' Rule30(b)(6) Notice of Deposition addressed as follows: MarianE. Sullivan, Esq. Departmentof Justice CommercialLitigation Branch Civil Division 1100 L Street, N.W.