Free Motion for Leave to File - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF Document 119-11 Filed O4/19/2006 Page 1 014
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Case 1:O4—cv-01282-JJF Document 119-11 Filed 'O4/19/2006 Page 2 of 4
LAW OFFICES
WILLIAMS E3 CONNOLLY LLP
725 TWELFTH STREET, NW.
C. EDWARD BENNETT WILLIAMS (1920-IQBB)
PAUL F.. CONNOLLY (l922-I97B)
(202) 434-5263 (202) 434-5000
[email protected] FAX (202) 434-5029
January 5, 2006
Via Email & U.S. MAIL
Anthony F. Vittoria, Esq.
Ober, Kaler, Grimes & Schriver
120 East Baltimore Street
Baltimore, MD 21202-1643
Re: AES Puerto Rico, LP v. ALSTOM Power, Inc.
Dear Tony:
This letter is in response to your letter of December 29, 2005.
Although I believe we addressed most of the issues in your letter on our discovery
call on Wednesday, this letter seeks to memorialize those communications and to
provide you with an update.
First, AES-PR continues to believe that it has collected all relevant
EPA information that it possesses. As you know, AES-PR produced over 1300 pages
of EPA-related information, including the EPA’s final permitting decision regarding
the 1998 permit. See AES-PR AESPR 076044 — 076179. However, next week Jeb
will be at the Plant and will re—confirm that we have produced all of the responsive
paper documents that can be located.
Second, as Jeb mentioned on the phone on Wednesday, on December
19, 2005, AES-PR produced the Ron McParland email and its attachments that
your letter claims AES-PR has not produced. As to the broader concern you express
regarding the adequacy of AES-PR’s efforts to retrieve documents in response to
ALSTOM’s requests, I can assure you that AES-PR has engaged in a systematic
process of gathering, reviewing, and producing responsive documents (both
hardcopy and electronic) and that those efforts fully conformed to the requirements
of the Federal Rules.

Case 1:04-cv-01282-JJF Document 119-11 Filed O4/19/2006 Page 3 of 4
WILLIAMS Es CONNOLLY LLP
Anthony F. Vittoria, Esq.
January 5, 2006
Page 2
As to the Daily Opacity Reports you mention, the data in those reports
is stored in the Plant’s GEMS computer system. We believe that the information
contained in those reports substantially duplicates the hundreds and hundreds of
pages of opacity data that AES—PR has already provided ALSTOM. As you know,
last month and again on Wednesday, we have offered to make the plant’s central
computer systems for operating data available to your technician to make a copy of
whatever data you believe you require. We have agreed to provide reasonable
access for you to do so at any time during fact discovery. In addition, we conferred
with our client following Wednesday’s call and discovered that a number of the
types of daily reports you described in your letter have been printed and are
available in paper format as well as from the GEMS system. I can make these
reports available to your copy service at the Plant at your convenience.
Third, I sent you an email listing the individuals for whom AES—PR
has collected central—server email and have agreed to collect email for all but one of
the individuals listed in your December 29 letter. We will be sending you a list on
Friday of around half a dozen ALSTOM employees for whom it appears ALSTOM
has not collected email and who should have responsive, nonduplicative email that
we would request you produce.
Fourth, as Jeb confirmed on the phone, AES—PR has collected,
reviewed, and produced documents from AES-PR’s shared drive.
Fifth, you ask that we confirm that AES—PR has produced all
documents “relating to AES’s imposition of a litigation hold to preserve documents
related to the AES Puerto Rico project." We have produced the memorandum
establishing a litigation hold for this litigation. Information concerning other
litigation to which Alstom was not a party is not relevant to this lawsuit and has
not been gathered or produced. Moreover, many of the communications concerning
other unrelated litigations are privileged.
Finally, I would like to re-confirm two issues we raised on Wednesday’s
call. First, we remain very troubled that ALSTOM has missed the court-imposed
deadline for producing its privilege log for electronic documents. Given that we
have serious questions about ALSTOM’s privilege log relating to hardcopy
documents (we’ll be sending a letter soon laying out those concerns), we are deeply
troubled that you indicated it could be as long as two weeks before we receive that
log —- nearly three weeks after the court-imposed deadline.

Case 1:O4—cv-01282-JJF Document 119-11 Fi|ec|,O4/19/2006 Page 4 of 4
WILLIAMS E5 CONNOLLY LLP
Anthony F. Vittoria, Esq.
January 5, 2006
Page 3
Second, we also remain concerned about ALSTOM’s failure to produce
all email documents for Mr. Barber, who is a central witness in this litigation, and
are equally concerned that you indicated it could be up to two weeks until We
receive those documents, which will put us receiving those documents after the
start of depositions in this matter. Given the importance of Mr. Barber to this
litigation, I trust that you will gather and produce his email as promptly as
possible.
Please don’t hesitate to call if you have questions before our next
scheduled discovery call.
Sincerely,
Daniel D. Williams