Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-01282-JJF Document 108-3 Filed O4/07/2006 Page 1 014
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Case 1:04-cv-01282-JJF Document 108-3 Filed 04/07/2006 Page 2 of 4
LAW OFFICES
WILLIAMS {:3 CONNOLLY LLP
725 TWELFTH STREET, NW.
EDWARD BENNETT WILLIAMS (l920~I9B8)
PAUL PL CONNOl.LY 09224978)
<2o2> 434-5263 (202) 434-5000
[email protected] FAX (202) 434-5029
February 27, 2006
VIA E-MAIL & U.S. MAIL
James E. Edwards, Jr., Esq.
Ober, Kaler, Grimes & Schriver
120 East Baltimore Street
Baltimore, MD 21202-1643
Re: AES Puerto Rico, LP v. ALSTOM Power, Inc;
Dear J im:
Over the past four days events have transpired that has forced AES-
PR to doubt the sufficiency of ALSTOM's document production. On Saturday,
February 25, 2006, ALSTOM mysteriously produced thousands of "misc. emails"
and also has failed to produce certain clearly responsive and relevant documents
(discussed below).
I. February 25, 2006 Production
On Saturday, Mike Schollaert sent me a letter and a DVD. The letter
claimed that the DVD contained three groups of documents: 1) documents from Ed
Bulewich and Fred Campbelllg 2) an "overlay" document for the Tom Barber
production; and 3) a "limited number" of emails that ALSTOM had previously
withheld as privileged but "out of an abundance of caution" is producing now, less
than two weeks before the period for fact discovery closes.
This third category of documents comprises almost 16,000 pages of
ALSTOM’s 20,000-page February 25 production. We cannot fathom why ALSTOM
1 We are of course still waiting for documents from Steve Francis, which you have
represented would be produced weeks ago.

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WILLIAMS Es CONNOLLY LLP
James E. Edwards, Jr., Esq.
February 27, 2006
Page 2
has not previously produced these documents. We have looked at the privilege logs
you have produced in this litigation, and neither includes any of these documents.
Thus the explanation in Mr. Schollaert’s letter that these were documents ALSTCM
previously had asserted privilege on cannot be squared with ALSTOM’s own
representations about the documents it was withholding on the basis of privilege.
Moreover, a quick sampling of these documents shows there does not
appear to be any basis for any claim of privilege on many of the documents. For
example:
• JARV -— EMAIL - 076265-076265. This is an email from William Jarvis to
Linda Rothe, sent on January 21, 2004. The email recounts a conversation
between ALSTOM employees and AES—PR regarding the ESP corrosion. On
the second page of the letter, William Jarvis is charged with insuring that
EEC's surety, Liberty Mutual, is aware of its liability on this issue.
• PAN O — 005973. This is an email from William Jarvis to Karl Hognefelt and
Lief Lindau, with others cc’d, dated February 3, 2004. In this email William
Jarvis discusses ALSTOM's awareness of EEC's operating instructions and
the fact that those instructions were inconsistent with the CDS designs.
• JARV — EMAIL — 07 6819-07682]. This is an email from Tim Maidenford to
William Jarvis and others with an August 17, 2003, Daily Commissioning
Report attached.
In addition, ALSTOM’s production includes literally hundreds of photographs and
Excel spreadsheets. There is no plausible reason that ALSTOM could have been
withholding any of these documents on the basis of privilege.
There is simply no justification for withholding these documents until
the eve of William J arvis’s deposition. We request that ALSTOM confirm when it
will complete its production of electronic documents. Moreover, we now must insist
on a continuance of Mr. J arvis’s deposition so that we have an appropriate
opportunity to review the documents in advance of his deposition, and so that we
have an assurance that ALSTOM will not be producing additional electronic
documents after the deposition.

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WILLIAMS 8 CONNOLLY LLP
James E. Edwards, Jr., Esq.
February 27, 2006
Page 3
II. Project Review Slides
During the 30(b)(6) deposition held on Friday, February 24, 2006,
ALSTOM's corporate designee, Ray Hickey, testified regarding a February 4, 2004
email from Barbara R. Rohrbach. See ROTH — EMAIL — 010519—010520. According
to Mr. Hickey, Ms. Rohrbach was the administrative assistant for ALSTOM’s
supervisor of project managers. Mr. Hickey further testified that these Project
Review slides were requested by the project managers' supervisor, and produced
every month by the project managers for each site that ALSTOM was constructing a
Boiler or other equipment. As you can see from the e—mail referenced above, Ms.
Rohrbach also specifically asks for Mr. Jarvis to provide the monthly slides for AES
Puerto Rico. The email also identifies the network location for these monthly
Project Reviews: "O:PB\Qtrreview\2004\Feb04.."
An exhaustive review of ALSTOM's document production in this
litigation has revealed that ALSTOM has not produced a single monthly Project
Review presentation. ALSTOM’s privilege log contains an item described as "AES
Puerto Rico Project Review." But if this is one of these monthly Project Review
slides requested by the manager of Project Managers, then clearly it was not
requested by counsel and it must be produced immediately along with all the other
AES-PR project Review slides.
AES-PR requests that ALSTOM immediately produce all of the
monthly Project Review slides for each month from November 2002 to the present,
and any other responsive document related to these slides. These presentations will
be crucial for our preparation for the deposition of William J arvis. If any of the
monthly Project Review slides have been destroyed, please provide a thorough
explanation for their disappearance.
Sincerely, %
Daniel Williams