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Case 1 :04-cv-01282-JJF Document 59 Filed 12/06/2005 Page 1 of 4
Murphy Spadaro & Landon
ATTORNEYS
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`| spadarofisnrsl lavr-;._g_1pi
December 6, 2005
BY ELECTRONIC FILING
The Honorable Joseph J. Farnan, Jr.
United States District Court Judge
United States District Court
844 King Street
Wilmington, DE 19801
RE: AES Puerto Rico, L.P. v. Alstom Power, Inc.
C.A. No.: 04-1282JJF
Dear Judge Faman:
I represent plainti 0`AES Puerto Rico, L,P. ("AES-PR") in this matter.
After 4:00 p.m. on Monday, December 5, 2005, detbndant ALSTOM tiled two motions to
compel, one seeking production of documents and a second seeking to compel a further response
to an interrogatory. ALSTOM’s motions violate this Court’s Scheduling Order. That Order
provides that parties are to tile "Memoranda on any disputes with Responses by December 5 ."
Oct. 7, 2005 Order at 2 (Tab A). The clear import of that Order was that motions were to be
filed sufficiently in advance of December 5 such that the opposing party could file a Response by
the December 5 deadline. ALSTOM instead tiled its motions in a manner so as to prevent AES-
PR an opportunity to file Responses. There is no justification for ALSTOM to have done so —-
the facts presented in ALSTOM`s motions took place weeks and months ago. Because
ALSTOM failed to comply with this C0urt’s Scheduling Order and filed its motions in a manner
that denied AES-PR a full opportunity to respond, the motions should be denied. In addition, a
brief review of a number of` ALSTOM’s complaints shows that they are factually baseless and, at
the very least, premature. For that additional reason, the Motions should be denied.
In its motion to compel production of documents, AL-STOM lists nine categories of
documents that it claims AES-PR either failed to produce or, in ALSTOM’s view, only partially
produced. AES-PR strongly disputes ALSTOM’s assertions for the reasons outlined below.
1. CDS Outlet and Flue Gas Temperature Readings
First, ALSTOM complains that, in response to a request seeking documents related to
CDS outlet temperature readings and flue gas temperature readings, "AES has produced a
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Case 1:04-cv-01282-JJF Document 59 Filed 12/06/2005 Page 2 of 4
The Honorable Joseph J. Faman, Jr.
December 6, 2005 _
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limited amount of documents, including a CD labeled ‘CDS 'l`emp,’ and other anecdotal
references, all of which contain the requested infomation, but only for limited date ranges?
In fact, the CD in question contains over 1400 Excel spreadsheets of CDS operating data,
including flue-gas-temperature and CDS-outlet-temperature readings, each representing a
specific day of readings from September 20, 2002 through late November 2004 (thc time at
which the infomation was produced)- or over two years ofdaily operating data. See Examples
of Spreadsheets (Tab B). In addition to the thousands of pages of CDS operating data produced
on that CD, AES-PR has produced electronically countless "Shift Reports," such as the examples
collected at Tab C, that also log CDS operating temperature. Moreover, AES-PR has produced
over 1000 CDS temperature readings logged inthe °‘CDS Nozzle Cleaning Logs" discussed
below. See Examples of Logs (Tab D). AES-PR believes it has produced all nonprivileged,
hardcopy CDS temperature-related documents. Moreover, as explained above, ALSTOM’s
representation to the Court about what AES-PR has produced is demonstrably inaccurate.
2. Water Chloride Content Readings
Next, ALSTOM complains that, in response to a request seeking documents relating to
the chloride content ofthe water used in the CDS, AES-PR has produced only a single log book
entitled CDS Makeup Water Samples.
This complaint is incorrect on several fronts. First, contrary to ALS'l`OM’s
characterization, the "single log book" referenced by ALST OM actually contains over 1000
daily water-chloride readings for the CDS in Units I and II from October 5, 2003 through
September 29, 2004. Sec Examples of Logs (Tab E). Second, in addition to the log book, AES-
PR has produced electronically a large number of "Shift Reports," such as the examples
collected at Tab F, which log water-chloride readings from at least August 2004 through as
recently as October 2005. AES-PR has not yet located any responsive documents from earlier
periods. ALSTOM also complains specifically that AES-PR failed to produce a water sample
log book that ALSTOM observed during a recent visit to the Plant. AES-PR believes that that
log book contains records that are largely duplicativc of water-chloride readings that AES-PR
already has provided to ALSTOM, but AES-PR nonetheless is preparing to make the log book
available to ALSTOM. Thus, ALSTOM’s motion is premature with respect to that log book.
3. CDS Nozzle Cleaning and Maintenance Information
ALSTOM complains that, in response to a request seeking documents relating to CDS
nozzle cleaning and maintenance, AES-PR has produced only a single log entitled "CDS Nozzle
Cleaning Log: Unit 1 / Unit 2."
First, contrary to ALSTOM’s characterization, thc "single log book" referenced by
ALSTOM contains over 200 pages and over 1000 entries related to the cleaning and maintenance
of the CDS nozzles from January 2003 through November 2004. See Examples of Logs (Tab D).
Second, in addition to the log book, AES-PR has produced electronically a large number of
"Shift Reports," such as the examples collected at Tab G, which track CDS nozzle maintenance
from at least mid-2003 through as recently as September 2005. ALSTOM also complains
speciiically that AES-PR failed to produce a nozzle cleaning lo g book that ALSTOM observed
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The Honorable Joseph J. Farnan, Jr.
December 6, 2005
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during a recent visit to the Plant. AES·PR has confirmed that that log already has been
produced. ‘ ‘
4. Distributed Control System Data
ALSTOM’s complaints about documents relating to the Distributed Control System Data
("DCS") are equally baseless. As ALSTOM correctly notes, AES-PR objected to ALSTOM’s
original request for "[a]ny and all documents related to the Distributed Control System" as
"overly broad." The DCS is the central computer system for the Plant- it is not practical to
download all of the infomation in that system, nor would the vast majority of that information
be remotely relevant to the issues in this lawsuit. Nevertheless, on several occasions, AES-PR
has offered to meet and confer with ALSTOM regarding AES-PR’s objections to ALSTOM’s
First Requests. ALSTOM has never taken AES-PR up on that offer.
Recently, ALSTOM propounded a much more focused request relating to the DCS in its
Second Set of Requests for Production. AES—PR currently is gathering all DCS data requested in
ALSTOM’s focused Request, and expects to have it ready to produce shortly.
S. Air Permitting and Exceedance information
ALSTOM also asserts — without any support whatsoever -- that AES-PR’s production
"rcgarding air emissions and the EPA . . . is incompletc." Again, ALSTOM is incorrect. First,
AES-PR has produced over 150 pages of EPA pemiitting information to ALSTOM, including.
for example, the correspondence attached at Tab H. Second, AE-S-PR has produced
electronically a large number of "Shift Reports," such as the examples collected at Tab I, which
log opacity exceedances. Third, AES-PR has produced electronically faxes it sent in compliance
with US EPA and Puerto Rico regulations to notify the Puerto Rico Environmental Quality
Board of opacity exeeedances. See Examples of Faxes at Tab J. Third, although AES-PR
believes it has produced all nonprivileged, hardcopy documents in its possession relating to air
permitting and opacity exceedances, ALSTOM’s Motion is premature because AES-PR may
produce additional air permitting and exceedance-related documents as part of its continued
rolling production of electronic documents. indeed, after receiving ALSTOM’s Motion, AES-
PR performed a quick electronic search of the not-yet-reviewed documents in its electronic-
document database and located an over 300-page document listing opacity exceedances for Units
I and II in 2003 and 2004. As a courtesy, AES-PR produced that document to ALSTOM within
hours of receiving ALSTOM’s motion yesterday. See Portion of Document (Tab K).
6. Calibration Records
ALSTOM also complains that, in response to a Request seeking "all documents which
constitute, pertain or relate in any way to AES’ maintenance guidelines and records for the CDS
and/or ESP equipment, or the Water Treatment System," AES-PR has failed to produce
calibration records. Until AES-PR received ALSTOM’s last-minute filing yesterday, it had not
understood this Request to call for the production of calibration records. Had ALSTOM written
or called counsel for AES—PR to request calibration records specifically, AES—PR wottld have
undertaken a search to gather all such records in its possession. A motion is an inappropriate
forum to make such a request for the first time, particularly when it is filed in such a manner as
to prevent the opposing party from responding.
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Case 1:04-cv-01282-JJF Document 59 Filed 12/06/2005 Page 4 of 4
· The Honorable Joseph J. Farnan, Jr.
December 6, 2005
Page 4
7. Categories for Which ALSTOM Claims AES-PR Produced No Documents
Al.-STOM’s final complaint — that AES-PR has failed to produce documents responsive
to eleven of ALSTO.M’s First Requests — is equally baseless. First, for some of ALSTOM’s
requests, such as Requests 2, 3, 4, 5, and 6 relating to, among other items, tile-naming
conventions and diskette-labeling standards, AES-PR simply does not have responsive
documents. Second, ALSTOM is correct that, in an effort to make its hardcopy document
production more user-friendly, AES-PR grouped its hardcopy documents according to
ALS'l`OM’s requests. Given that ALSTOM`s requests substantially overlapped and the nature of
the documents in question, many (if not most) documents were responsive to more than one
category of request. AES-PR was not required to place a document that was responsive to
multiple requests in each and every category to which it may have been responsive.
8. lnterrogatorv No. 2
Finally, ALSTOM complains in a separate motion to compel about the sufficiency of
AES-PR’s response to ALSTOM lnterrogatory No. 2. AES-PR properly objected to ALSTOM’s
interrogatory as grossly overbroad because it sought the identities of all persons with any
knowledge whatsoever of three of the plant’s major components. But rather than simply stand
on its objection, AES-PR then provided the names of 13 persons of which it is aware with
information that is relevant to this lawsuit. ALSTOM does not explain why that is insufficient,
or whether ALSTOM in fact seeks, for example, the names of all AES-PR employees who work
at the Plant, and therefore would have some passing knowledge of these systems, as well as the
names of any and all vendors with only a passing knowledge of these systems. Nor would that
discovery be relevant. AES—PR has employed a reasonable interpretation of this interrogatory
and has answered it- any additional information ALSTOM seeks can be gleaned from an
examination of the documents AES-PR has produced already, a more targeted interrogatory, and
depositions in this matter.
l ` 1%* 'Ir 17: ·k ‘k •k
Because ALSTOM filed these motions after the deadline established by this Court (and
prejudiced AES-PR’s_ability to respond appropriately) and because ALSTOM`s complaints lack
merit, this Court should deny ALSTOl\/[’s motions. Alternatively, if this Court decides to
entertain the motions‘ALSTOM filed yesterday, AES—PR should be given an opportunity to
research thoroughly the factual issues presented and prepare formal responses to them.
Respectfully,
fsf John S. Spadaro
John S. Spadaro
J SS/slr ·
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