Free Memorandum in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF

Document 98

Filed 03/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AES PUERTO RICO, L.P., Plaintiff, v. ALSTOM POWER INC., Defendant. * * * * * * * * * * * * * * * * * * C.A. No. 04-1282-JJF

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO FILE A SURREPLY IN OPPOSITION TO DEFENDANT'S SECOND MOTION TO COMPEL PRODUCTION ELECTRONIC DOCUMENTS OR, IN THE ALTERNATIVE, FOR SANCTIONS

Richard R. Wier, Jr. (#716) Daniel W. Scialpi (#4146) RICHARD R. WIER, JR., P.A. Two Mill Road, Suite 200 Wilmington, Delaware 19806 (302) 888-3222 James E. Edwards, Jr. Anthony F. Vittoria Michael A. Schollaert OBER, KALER, GRIMES & SHRIVER A Professional Corporation 120 East Baltimore Street Baltimore, Maryland 21202-1643 (410) 685-1120 Fax: (410) 547-0699 Counsel for Defendant ALSTOM Power Inc. Date: March 28, 2006

Case 1:04-cv-01282-JJF

Document 98

Filed 03/28/2006

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ALSTOM Power Inc. ("ALSTOM"), defendant, by its counsel, hereby files this Opposition to Plaintiff's Motion to file a Surreply in Opposition to ALSTOM's Second Motion to Compel Production of Electronic Documents or, in the Alternative, for Sanctions. The Court should deny Plaintiff's Motion to File a Surreply for two reasons. First, Plaintiff is simply wrong when it asserts that ALSTOM raised new matters in its Reply. The law cited by ALSTOM in its Reply was in direct response to the case law cited by Plaintiff in its Opposition. Indeed, despite Plaintiff's contention to the contrary, as set forth in ALSTOM's opening paper, Rule 37 provides this Court with all of the authority and discretion it needs to impose the sanctions requested by ALSTOM. Further, ALSTOM does not argue that Second Circuit law is controlling. Rather, in its Reply, ALSTOM referred the Court to an analogous Second Circuit case because the Court may find the rationale set forth in that decision to be instructive. Thus, ALSTOM did not raise any new matters in its Reply and there is no basis for AES's Surreply. Second, the filing of a surreply is extraordinary in the context of a discovery motion. Moreover, the filing of the surreply could delay resolution of ALSTOM's motion to compel and thereby increase the prejudice to ALSTOM, should the Court grant ALSTOM's motion and compel further discovery. This is particularly true where, as here, discovery has closed and trial is less than 60 days away. For these reasons, ALSTOM respectfully requests that the Court deny AES's Motion to File a Surreply.

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Case 1:04-cv-01282-JJF

Document 98

Filed 03/28/2006

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ALSTOM POWER INC.

/s/ Daniel W. Scialpi Richard R. Wier, Jr. (#716) Daniel W. Scialpi (#4146) RICHARD R. WIER, JR., P.A. Two Mill Road, Suite 200 Wilmington, Delaware 19806 (302) 888-3222 James E. Edwards, Jr. Anthony F. Vittoria Michael A. Schollaert OBER, KALER, GRIMES & SHRIVER A Professional Corporation 120 East Baltimore Street Baltimore, Maryland 21202-1643 (410) 685-1120 Fax: (410) 547-0699 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this 28th day of March, 2006, copies of the foregoing Opposition To Plaintiff's Motion To File A Surreply In Opposition To Defendant's Second Motion To Compel Production Electronic Documents Or, In The Alternative, For Sanctions and proposed Order were filed with the Court using CM/ECF, which will send copies of those documents to: John S. Spadaro, Esquire, Murphy Spadaro & Landon, 1011 Centre Road, Suite 210, Wilmington, Delaware 19805. In addition, courtesy copies were served, via first-class mail, upon Daniel D. Williams, Esquire, Williams & Connolly LLP, 725 Twelfth Street, N.W., Washington, D.C. 20005.

/s/ Daniel W. Scialpi Daniel W. Scialpi (#4146)

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Case 1:04-cv-01282-JJF

Document 98

Filed 03/28/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AES PUERTO RICO, L.P., Plaintiff, v. ALSTOM POWER INC., Defendant. * * * * * * * * * * * * * ORDER * * * * * C.A. No. 04-1282-JJF

Upon consideration of Plaintiff's Motion to file a Surreply in Opposition to ALSTOM's Second Motion to Compel Production of Electronic Documents or, in the Alternative, for Sanctions and Defendant's Opposition thereto, the Motion is DENIED. ORDERED, this _____ day of __________, 2006.

__________________________ Judge Joseph J. Farnan, Jr. United States District Court for The District of Delaware

cc:

John S. Spadaro, Esquire Richard R. Wier, Jr., Esquire Daniel W. Scialpi, Esquire