Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00115-SGB

Document 173

Filed 09/01/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed September 1, 2005) OMAHA PUBLIC POWER DISTRICT, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 01-115C (Judge Braden)

MOTION FOR LEAVE TO FILE EXPERT REPORTS UNDER SEAL AND REQUEST FOR ORDER PRESERVING POST-TRIAL DAMAGES Pursuant to RCFC 7, General Order No. 42a, ¶ 7, this Court's March 15, 2005 Order, and the May 9, 2002 Coordinated Discovery Protective Order ¶¶ 6-7 ("Protective Order"), Plaintiff Omaha Public Power District ("OPPD") respectfully requests leave to file under seal the following three expert reports: (1) Richard J. Sieracki & Kenneth P. Metcalf, "Assessment of Damages Resulting From The Department of Energy's Failure To Perform Its Contractual Obligations Regarding Omaha Public Power District's Spent Nuclear Fuel;" (2) Eileen M. Supko, "Expert Report Regarding Determination of the U.S. Department of Energy's Overall Spent Nuclear Fuel Acceptance Rate;" and (3) Eileen M. Supko, "Expert Report Regarding Spent Nuclear Fuel Acceptance Rights for Omaha Public Power District's Fort Calhoun Nuclear Power Plant." Additionally, because OPPD expects in this case only to seek damages up to the date of trial (July 10, 2006), it seeks an order preserving its ability to return to this Court to seek damages suffered after that date. I. MOTION FOR LEAVE TO FILE EXPERT REPORTS UNDER SEAL The Protective Order governing this case allows a party to request an order placing documents under seal and limiting access to the confidential material to only the Court, the

Case 1:01-cv-00115-SGB

Document 173

Filed 09/01/2005

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Court's employees, and counsel for the parties (and their agents). Protective Order ¶¶ 6-7. OPPD requests this protection and requests that the three expert reports be placed under seal, because they include descriptions of and references to OPPD's proprietary and confidential business information. Additionally, two of the expert reports authored by Ms. Eileen Supko include confidential and proprietary information of her firm Energy Resources International, Inc. Furthermore, General Order No. 42a, ¶ 7, notes that "documents to be placed under seal shall not be filed electronically unless and until authorized by the assigned judge." General Order No. 42a also states that "[a] motion to file documents under seal may be filed electronically, unless prohibited by law. The documents to be filed under seal shall not be attached to the motion, but shall be filed after the motion is granted." Id. Consistent with General Order No. 42a's language, OPPD files this motion for leave to file its three expert reports under seal and will await a Court order to file these three expert reports with the Court (although it has served the Government with a copy this date). To the extent that this Court prefers to file these documents under seal electronically (as opposed to physically over-the-counter in the Clerk's office), OPPD also requests leave to file electronic files exceeding 2 megabytes in size. See General Order 42a, ¶ 4. Thus, OPPD respectfully requests leave to file its three expert reports under seal. II. MOTION FOR ORDER PRESERVING OPPD'S RIGHT TO SEEK IN A FUTURE SUIT DAMAGES SUFFERED AFTER TRIAL OPPD requests that this Court issue an order preserving OPPD's right to bring a future suit for damages not covered by the three expert reports to be submitted under seal. In particular, OPPD has limited its damages claims in this law suit to those damages it will incur through the date of its trial, currently scheduled to commence on July 10, 2006.

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Case 1:01-cv-00115-SGB

Document 173

Filed 09/01/2005

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The Restatement (Second) of Judgments provides the Court with the ability to enter an order preserving OPPD's rights to bring a future case for damages incurred after a trial. In particular, the Restatement recognizes that the general rule of merger and bar "does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant" where "[t]he court in the first action has expressly reserved the plaintiff's right to maintain the second action." Restatement (Second) of Judgments § 26(1)(b). Judge Lettow has invoked this section of the Restatement (Second) of Judgments, inter alia, in other SNF cases, to allow other utility plaintiffs to return to this Court for any damages suffered after trial. See Tenn. Valley Auth. v. United States, 60 Fed. Cl. 665, 677-78 (2004); see also Sys. Fuels, Inc. v. United States, 65 Fed. Cl. 163, 176-77 (2005); Entergy Nuclear Indian Point 2, LLC v. United States, 64 Fed. Cl. 515, 525-26 (2005); Entergy Nuclear Generation Co. v. United States, 64 Fed. Cl. 336, 345-46 (2005). Additionally, this Court has entered a similar order in Sacramento Municipal Utility Dist. v. United States, No. 98-488C. (See Attachment 1). Thus, OPPD requests that the Court enter an order preserving OPPD's right to bring a future suit for damages suffered after the date of trial, which damages are not covered by the three expert reports.

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Case 1:01-cv-00115-SGB

Document 173

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CONCLUSION For the foregoing reasons, OPPD respectfully requests leave of this Court to file its expert reports under seal (either electronically or physically over-the-counter in the Clerk's office). Additionally, OPPD requests that the Court enter an order preserving OPPD's right to bring a future suit for damages suffered after the date of trial, which damages are not covered by the three expert reports. Dated: September 1, 2005 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037 (202) 663-8000 (202) 663-8007 (fax)
Document #: 1331017 v.2

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Daniel S. Herzfeld Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, VA 22102 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Omaha Public Power District

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