Free Motion for Authorization of Service 100+ Miles - District Court of Federal Claims - federal

Case 1:98-cv-00488-SGB

Document 308

Filed 03/21/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SACRAMENTO MUNICIPAL UTILITY DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 98-488C (Judge Braden)

DEFENDANT'S MOTION FOR AUTHORIZATION OF SERVICE OF A SUBPOENA, AND MOTION FOR EXPEDITED CONSIDERATION Pursuant to RCFC 45(b)(2) and 45(e), and as discussed with the Court earlier today during trial, defendant, the United States, respectfully requests that the Court authorize the issuance of a subpoena to compel Mr. Robert Jones, a current employee of plaintiff, Sacramento Municipal Utility District ("SMUD"), and Mr. Daniel Keuter, a former SMUD employee, to travel more than 100 miles to testify at the trial of this matter in Washington, D.C. Defendant's counsel has prepared a draft order, a copy of which is appended to this motion. Further, because the two witnesses who are the subject of this motion will be scheduled to testify during the week of March 28, 2005, defendant respectfully requests that the Court expedite consideration of this motion. The two-week trial in this case began earlier today. One of the individuals who defendant included on the witness list that it filed on February 28, 2005, was Mr. Daniel Keuter, SMUD's former Chief Nuclear Engineer, who, as we identified in our witness list, is expected to testify regarding SMUD's decision to transfer its spent nuclear fuel ("SNF") to dry storage and regarding issues relating to SMUD's decommissioning efforts. SMUD originally included Mr. Robert Jones, a SMUD employee, in SMUD's witness list, and, although SMUD has now apparently

Case 1:98-cv-00488-SGB

Document 308

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elected not to call him to testify, the Government expressly reserved in its February 28, 2005 witness list "the right to call any witness appearing upon plaintiff's February 17, 2005 witness list." Both of these individuals possess relevant information regarding the issues in this case. Nevertheless, both of these individuals reside more than 100 miles from the place of trial: Mr. Keuter resides in Jackson, Mississippi, and Mr. Jones resides in California. At the depositions of both Messrs. Keuter and Jones, attorneys for SMUD represented that the law firm of Arnold & Porter represented both of these individuals. Because SMUD had listed Mr. Jones on its witness list as a "will call" witness, we assumed that SMUD would be calling him at trial and, as a result, did not previously file a motion seeking leave to require his attendance at trial. Similarly, because we understood that Arnold & Porter was representing Mr. Keuter, we did not anticipate that we would need to obtain an order requiring his attendance at trial. However, we recently learned that SMUD would not be calling Mr. Jones as a witness at trial. Accordingly, to bring his testimony to the Court, the Government must call him. We have been informed that, although Arnold & Porter will accept a subpoena for Mr. Jones, it will not be paying for him to travel to attend trial. To ensure that service of a subpoena by the United States Marshals Service (or an alternative process server, should that method of service become necessary) is enforceable, we need to obtain an order from the Court authorizing us to require Mr. Jones to travel more than 100 miles to the place of trial. Further, we were also recently informed that Arnold & Porter cannot agree to accept a subpoena upon Mr. Keuter's behalf or represent him for purposes of the trial. Again, to ensure that we are able to enforce our subpoena to Mr. Keuter, we need the Court to authorize us to require Mr. Keuter to travel more than 100 -2-

Case 1:98-cv-00488-SGB

Document 308

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miles to the place of trial. Under these circumstances, good cause exists for the issuance of a subpoena to each of these individuals. The Government expects to pay the costs of these witnesses' travel. Accordingly, defendant respectfully requests the Court to authorize the issuance of a subpoena to require these individuals to travel more than 100 miles to the place of trial. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Russell A. Shultis RUSSELL A. SHULTIS Trial Attorney 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: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

March 21, 2005

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Case 1:98-cv-00488-SGB

Document 308

Filed 03/21/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SACRAMENTO MUNICIPAL UTILITY DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ORDER Upon motion of defendant, this Court hereby authorizes the defendant to issue subpoenas requiring the attendance of Mr. Robert Jones, a current employee of plaintiff, and Mr. Daniel Keuter, a former employee of plaintiff, at trial in Washington, D.C., during the week of March 28, 2005, and continuing until completion of trial, notwithstanding distance of travel. It is so ORDERED. ) ) ) ) ) ) ) ) )

No. 98-488C (Judge Braden)

SUSAN G. BRADEN Judge Dated: March , 2005

Case 1:98-cv-00488-SGB

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Filed 03/21/2005

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CERTIFICATE OF FILING I hereby certify that on this 21st day of March, 2005, a copy of foregoing "DEFENDANT'S MOTION FOR AUTHORIZATION OF SERVICE OF A SUBPOENA, AND MOTION FOR EXPEDITED CONSIDERATION" 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.