Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on June 13, 2008) ) ) ) ) ) ) ) ) ) ) ) ) )

PSEG NUCLEAR, L.L.C. and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant.

No. 01-551C (Judge Futey)

JOINT MOTION FOR ENTRY OF E-MAIL PRESERVATION ORDER Pursuant to RCFC 7(a), Plaintiffs PSEG Nuclear, L.L.C. and Public Service Electric and Gas Company and Defendant the United States jointly move for entry of the attached e-mail preservation order (Attachment 1). The proposed order is, for all intents and purposes, substantively identical to the requirements of the e-mail preservation order entered by Judge Sypolt on November 8, 2001 in the coordinated discovery proceedings. As this Court may be aware, when Judge Sypolt entered her e-mail preservation order on November 8, 2001, she did not create separate language specifying the parties' obligations, but instead simply granted "defendant's plan for the production of e-mail." See Coordinated Discovery Order (Attachment 2). The operative provisions of "defendant's plan for the production of e-mail" are contained at pages 9-10 of Defendant's Motion for the Court to Adopt Defendant's E-Mail Plan dated October 26, 2001 (Attachment 3).

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On March 5, 2002, Judge Turner (then the presiding Judge in the instant case), entered an order stating: This case is declared to be subject to the coordinated discovery proceedings in this court involving cases alleging breaches of the "Standard Contract For The Disposal Of Spent Nuclear Fuel And/or High-Level Radioactive Waste," and further discovery proceedings in this matter shall be those required or allowed under such coordinated discovery (now under the supervision of Judge Diane Sypolt). March 5, 2002 Order (Attachment 4). The parties viewed Judge Sypolt's order (which in turn granted the Government's motion for entry of an e-mail preservation order) as applicable to this case. However, after reviewing the existing orders in this case now that it has become active, the parties agree that the express applicability of the e-mail preservation order to this particular case is unclear, given that this case is not identified in the case caption of that order. Accordingly, to make the record clear, the parties agree that a new order restating the operative provisions of the coordinated discovery order would be appropriate. To this end, in the proposed order attached hereto as Attachment 1, the parties have restated what they agree are the operative provisions of the Defendant's October 26, 2001 motion, as adopted by Judge Sypolt on November 8, 2001. For the foregoing reasons, the parties respectfully request that this Court enter the attached e-mail preservation order.

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Dated: June 13, 2008 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax)

Respectfully submitted, s/ Alex D. Tomaszczuk by s/ Daniel S. Herzfeld Alex D. Tomaszczuk PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiffs PSEG Nuclear, L.L.C. and Public Service Electric and Gas Company GREGORY G. KATSAS Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Andrew P. Averbach ANDREW P. AVERBACH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 353-0527 Fax: (202) 305-7643 Attorneys for Defendant

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

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ATTACHMENT 1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 01-551C (Filed on June __, 2008) ) ) ) ) ) ) ) ) ) ) ) ) ) ORDER For good cause shown, the Court hereby orders the adoption of the salient provisions of the E-mail Plan utilized in the coordinated discovery proceedings, as follows: 1. Except as noted in paragraph 2 below, the parties agree that no preservation or retention requirements with respect to e-mail and electronic evidence apply to any of the parties. 2. The parties agree to preserve any e-mail backup tapes that exist from the 1988-1996 time frame which may potentially contain relevant information. DOE will only have to preserve such tapes to the extent that they are from the Office of Civilian Radioactive Waste Management ("OCRWM"). 3. The parties agree evenly to share the costs of any searches of any of the backup tapes preserved pursuant to paragraph 2, which costs should not exceed $15,000 for each tape. It is so ORDERED.

PSEG NUCLEAR, L.L.C. and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Plaintiffs, v. THE UNITED STATES, Defendant.

Bohdan A. Futey Judge

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ATTACHMENT 2

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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ATTACHMENT 3

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tHnifeb State~ Court of TtberaI Q a i m
March 5, 2002 NO. 01-551 C
:

PSEG NUCLEAR LLC, Plaintiff, versus UNITED STATES OF AMERICA, Defendant.

ATTACHMENT 4

ORDER MEMORIALIZING EVENTS AT HEARING, FILING AMICUS BRIEF, REFERRING MATTER FOR COORDINATED DISCOVERY AND SUSPENDING PROCEEDINGS IN PART

Oral argument pertaining to (a) defendant's motion filed on December 17, 2001 for removal from ADR Pilot Program and assignment to coordinated discovery and (b) plaintiff Is motion filed on January 18, 2002 to defer briefing on defendant Is three pending dispositive motions, and a general status conference pursuant to RCFC 16 pertaining to all other pending motions was conducted this date. For reasons set forth at the hearing (which will be reflected in a transcript), (a) defendant's said motion for removal from ADR Pilot Program and assignment to coordinated discovery is GRANTED, and (b) plaintiff's said motion to defer briefing on defendant's three pending dispositive motions is also GRANTED. Based on the foregoing, it is ORDERED as follows: 1. This case is hereby removed from the court's ADR Pilot Program. Accordingly, the order dated November 28, 2001 concerning ADR Pilot procedures is RESCINDED. 2. This case is declared to be subject to the-coordinated discovery proceedings in this court involving cases alleging breaches of the "Standard Contract For The Disposal Of Spent Nuclear Fuel And/or High-Level Radioactive Waste," and further discovery proceedings in this matter shall be those required or allowed under such coordinated discovery (now under the supervision of Judge Diane Sypolt).
3. All further proceedings in this civil action are SUSPENDED This for all purposes other than such coordinated discovery.

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suspension covers, inter alia, all further briefing pertaining to three currently pending dispositive motions by defendant (filed on November 27,.November 28 and November 30, 2001, respectively) and any further activity concerning plaintiff's matured motion filed on December 20, 2001 for summary judgment. This suspension shall expire at the conclusion of such coordinated discovery; the parties are requested to advise of such conclusion by joint status report and to further advise of suggested proceedings for resolution of merits issues (which may include referral to an ADR judge).

It is further ORDERED that the motion filed on February 11, 2002 by non-parties Southern Nuclear Operating Company, Alabama Power Company and Georgia Power Company (the "amiciU) for leave to file an amicus curiae brief is GRANTED. Accordingly, it is ORDERED that the amicus curiae brief which accompanied said amici motion shall be filed forthwith.

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Jame
T. Turner