Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01282-JJF Document 44 Filed 1 1/18/2005 Page 1 of 3
RICHARD R. WIER, JR., P.A.
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November 18, 2005
BY HAND
The Honorable Joseph J. Farnan, Jr.
United States District Court for the
District of Delaware
844 North King Street
Wilmington, Delaware 19801
Re: AES Puerto Rico, L.P. v. ALSTOM Power Inc.
Case No. 04-12882
Dear Judge Farnan:
We are co-counsel for ALSTOM Power Inc., the defendant in this case. The purpose of
this letter is to request that the Court schedule a conference as soon as the Court’s schedule
perinits, by telephone or in person, to address important discovery issues. We take the unusual
step of requesting such a conference because these issues will affect the extent to which the
Court will be able to meaningfully resolve discovery disputes at the discovery dispute hearing
currently scheduled for December 7, 2005 and, ultimately, the effectiveness of the mediation
scheduled before Magistrate Judge Thynge on January 30, 2006. The subjects for discussion at
the proposed conference would include the following:
The failure by plaintiff AES Puerto Rico, L.P., to respond to ALSTOM’s motion to
compel the production of electronic data within the time prescribed under the Cour1’s Local
Rules;
AES Puerto Rico’s failure to provide a corporate designee for deposition with regard to
the nature and extent of relevant electronic data and paper documentation in sufficient time to
address fully the deficiencies in the production of such electronic data and documentation at the
discovery dispute hearing on December 7;
ALSTOM’s request to reschedule the discovery dispute hearing in the event that the
corporate desi gnee’s deposition cannot be timely completed; and
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Case 1:04-cv-01282-JJF Document 44 Filed 11/18/2005 Page 2 of 3
The Honorable Joseph J. Farnan, Jr.
November 18, 2005 l
Page 2
The potential impact of these discovery issues on the Court’s Scheduling Order.
BACKGROUND
ALSTOM has seryed multiple discovery requestson AES Puerto Rico, calling for the
production, among other things, of substantial electronic data, including electronic mail and other
electronic data relating to the operations of the power plant and pollution control equipment that
are the subject of this case. The electronic data that is responsive to such requests is essential
evidence in this matter. Nevertheless, despite the seryice of comprehensive discovery requests
and multiple, informal follow—up requests calling for production of this data, AES Puerto Rico
has produced only a fraction of the electronic mail and very little of the electronic data regarding
plant and pollution control operations that is responsive to ALSTOM’s discovery requests.
As a result ofAES Puerto Rico’s failure ofproduction, ALSTOM filed a motion to
compel the production of electronic data and seryed the motion on AES Puerto Rico on October
24, 2005. Under the Local Rules ofthis Court, AES Puerto Rico’s response to ALSTOM’s
motion to compel was due on November 7, 2005. As of this date, however, AES Puerto Rico has
not responded to that motion.
Similarly, on October 28, 2005, ALSTOM gave notice ofits intention to take the
deposition of AES Puerto Rico’s corporate designee with regard to the nature and extent of
electronic data and paper documentation on November 15, 2005. ALSTOM scheduled this
deposition well in advance of the discovery dispute hearing so as to be in a position to assess
fully the deponent’s testimony regarding AES Puerto Rico’s production of electronic data and
paper documents, attempt to resolve disputes with AES Puerto Rico regarding its production,
and, if necessary file an additional motion to compel before the discovery hearing.
To date, AES Puerto Rico has refused to produce a corporate designee for this deposition
before December 2, 2005, a date that is more than two weeks after the date on which ALSTOM
planned to take the deposition and only one business day before ALSTOM must submit
memoranda in advance of the discovery dispute hearing on December 7. Such a delay in
completing this deposition will preclude ALSTOM from evaluating the testimony in light of AES
Puerto Rico’s current production of electronic data and paper documents prior to the hearing.
Accordingly, ALSTOM has filed a motion to compel the corporate designee’s deposition at or
about the time that it was originally scheduled or, alternatively, to reschedule the discovery
dispute hearing to permit completion ofthat deposition in sufficient time to permit ALSTOM to
obtain and evaluate the testimony prior to the hearing.
The failures of discovery by AES Puerto Rico are profound and have substantially
interfered with the discovery process in this case. By failing to comply with discovery requests,
AES has prevented ALSTOM from obtaining and analyzing critical evidence in the case.
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Case 1:04-cv-01282-JJF Document 44 Filed 11/18/2005 Page 3 Of 3
The Honorable Joseph J. Farnan, Jr.
November 18, 2005
Page 3
Further, to avoid having to hold open depositions pending the receipt of full production of
electronic data and paper documents by AES Puerto Rico, ALSTOM has been forced to delay
scheduling substantive depositions.
Moreover, based on AES Puerto Rico’s failure of discovery, ALSTOM’s ability to
evaluate AES Puerto Rico’s claims prior to the mediation before Magistrate Judge Thynge that is
currently scheduled for January 30, 2006 is being compromised, so much so that mediation
potentially could be rendered far less useful. Accordingly, ALSTOM respectfully requests that
the Court schedule a conference with counsel for the parties to address these and other discovery
issues.
We appreciate your consideration of this matter.
Respectfully yours,
/s/ Richard R. Wier, Jr.
Richard R. Wier, Jr.
cc: ALSTOM Power Inc.
James E. Edwards, Jr., Esquire
Anthony F . Vittoria, Esquire
John S. Spadaro, Esquire
Daniel D. Williams, Esquire
Clerk of the Court (via electronic filing)
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