Free Memorandum in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF

Document 97

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 MOTION TO COMPEL "AESC.COM" E-MAIL AND ASSOCIATED ELECTRONIC DOCUMENTS

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

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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 Defendant's Motion To Compel "Aesc.Com" E-Mail And Associated Electronic Documents ("Motion to File a Surreply"). The Court should deny Plaintiff's Motion to File a Surreply for several reasons. First, Plaintiff's Motion is based upon a false premise. Contrary to Plaintiff's contention, ALSTOM did not claim in its Reply that it was seeking "aesc.com" e-mail from the Fall of 2002. Rather, ALSTOM's Reply simply pointed out the inconsistency of Plaintiff's claim that it is entitled to rely on written and oral communications allegedly given by ALSTOM's subcontractor regarding the equipment at issue that took place before November 28, 2002 ­ the date Plaintiff took over commercial operation of the plant ­ but that ALSTOM is not entitled to discovery of electronic communications that occurred prior to that date. (See Plaintiff's Opposition at 7.) To the contrary, if the Plaintiff is to be allowed to present evidence regarding its reliance on oral and written instructions allegedly given by ALSTOM's subcontractor in the Fall of 2002, it is imperative that the Court have before it all of the evidence of the relevant knowledge of the parties ­ including information obtained or exchanged in 2000 and 2001 ­ as evidence of whether Plaintiff's alleged reliance on those communications was justifiable. Second, Plaintiff's complaint about the alleged new matter raised in ALSTOM's Reply is a subterfuge. The true purpose of Plaintiff's proposed Surreply is to address deficiencies in Plaintiff's affidavit that were exposed by ALSTOM in its Reply. Any discussion of the alleged new matter raised by ALSTOM is secondary to Plaintiff's argument concerning the affidavit. Finally, 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

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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 Plaintiff's Motion to File a Surreply. 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

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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 Motion To Compel "Aesc.Com" E-Mail And Associated Electronic Documents 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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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 "Aesc.Com" E-Mail And Associated Electronic Documents 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