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Case 1:06-cv-00305-MBH Document 17 Filed 03/12/2007 Page 1 of 3

In the United States Court of Federal Claims

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CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC. &
SUBSIDIARIES,
Plaintiff,
v.
UNITED STATES,
Defendant.
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O R D E R

No. 06-305T
Filed: March 12, 2007

After receipt of the plaintiff’s March 8, 2007 motion for a protective order, the court
held a conference on the motion on March 9, 2007, with the parties appearing by
telephone. As agreed to with the parties, on or before Tuesday, March 20, 2007, plaintiff
shall file a revised motion for protective order, with greater specificity, in accordance with
discussions at the conference. On or before Monday, April 9, 2007, defendant shall file
its response to the plaintiff’s motion. On or before Friday, April 20, 2007, plaintiff shall file
its reply. At the conference, the defendant also indicated that several additional discovery
motions would be filed in the near future. As discussed at the conference, responses and
replies to the defendant’s motions shall be filed in accordance with RCFC 7.2(a), (b).

The remainder of the schedule in the above-captioned case remains unchanged.
Fact discovery shall close on Friday, June 22, 2007. The parties shall file a joint status
report on or before Friday, June 29, 2007, reflecting the completion of fact discovery and,
if appropriate, the possibility of settlement.

In addition, the status report shall indicate whether either or both of the parties
intend(s) to file a motion for summary judgment. If either party indicates the
appropriateness of a motion for summary judgment, the court first will schedule a status
conference. If, together with the parties, the court determines that a summary judgment
motion is appropriate, the parties shall file a joint stipulation of facts with a supporting
appendix, setting forth specific stipulations of agreed upon facts with appropriate citations
to documents in the appendix to identify whether there are disputed material facts in the
case. The parties also shall submit a joint statement of issues of law. For both
submissions, the parties are to separately identify, if necessary, any statement of fact or
issue of law which is not agreed upon by both parties, but which one party believes to be
at issue in the case, in order to assist the parties and the court to determine whether the

Case 1:06-cv-00305-MBH Document 17 Filed 03/12/2007 Page 2 of 3

case is ripe for summary judgment or whether there are material facts in dispute which
would preclude summary judgment. The joint stipulation of facts is to be filed instead of the
moving party’s proposed findings of uncontroverted fact and the opposing party’s response
to the proposed findings of uncontroverted fact. If neither party intends to file a dispositive
motion in this case, the parties shall so indicate in their June 29, 2007, joint status report.


If all matters in this case are not settled or previously resolved, the court
SCHEDULES a trial in the case to commence on Wednesday, October 17, 2007, at 9:00
a.m., (formerly scheduled to begin October 10, 2007), and to continue until all evidence is
taken, in electronic courtroom 6, located on the fifth floor of the Howard T. Markey National
Courts Building, 717 Madison Place, NW, Washington, DC. The Appendix A filings detailed
in the Rules of the United States Court of Federal Claims (RCFC), are modified, as
described below. The filings with the court are to include:

a. Witness List. On or before Friday, August 10, 2007, the parties shall file a joint
statement setting forth a list of witnesses to be called at trial, other than those to be used
exclusively for impeachment. As to each witness, the parties shall indicate the party for
which the witness will be testifying, the specific topics to be addressed in the expected
testimony and the time needed for direct examination. The parties also shall indicate
whether or not they are willing to take overlapping witnesses who are to be called for both
the plaintiff and the defendant, at one sitting.

b. Issues of Fact and Law. On or before Friday, August 10, 2007, the parties shall
file a joint statement of the issues of fact and law to be decided by this court. The
statement of issues shall control the admissibility of evidence at trial and evidence will be
deemed to be irrelevant unless it pertains to one or more of the issues.

c. Stipulations. On or before Friday, August 10, 2007, The parties shall file a joint
stipulation of facts containing separately numbered paragraphs covering all matters to
which the parties have been able to stipulate during the course of proceedings. The court
urges the parties to achieve joint stipulations to the fullest extent possible in order to reduce
the time required for trial.

d. Joint Trial Exhibit List. On or before Friday, August 10, 2007, the parties shall

file a joint trial exhibit list divided into the following five sections:

(1) Joint stipulated exhibits, to be numbered starting with 1-99 or 1-999, as needed.
The court urges the parties to achieve as many joint exhibits as possible in order to reduce
the time required for trial.

(2) Plaintiff’s exhibits, to be numbered starting with 100-199, or 1000-1999, the
number sequence to begin following the completion of the sequence of numbers used for
the joint exhibits;

(3) Defendant’s exhibits, to be numbered 200-299 or 2000-2999, the number

Case 1:06-cv-00305-MBH Document 17 Filed 03/12/2007 Page 3 of 3

sequence to begin following the completion of the sequence of numbers used for the
plaintiff’s exhibits;

(4) Plaintiff’s objections to defendant’s exhibits, including the basis for each

objection; and

(5) Defendant’s objections to plaintiff’s exhibits, including the basis for each

objection.

The actual exhibits shall not be submitted to the clerk’s office or to chambers, but
shall be brought to the trial by the parties in sufficient copies, including one copy for the
witness, one copy for the court and the official copy to be submitted to the court reporter.
The exhibits shall be bound or placed in a loose leaf notebook(s) with each exhibit
sequentially numbered, and all pages of each exhibit sequentially numbered, starting with
page one of the first exhibit through the last page of the last exhibit. Loose submissions,
such as maps, photographs, physical evidence and charts, may be submitted. Reduced
copies of charts and photographs should be included in the bound volumes, if possible.

e. Deposition Testimony. On or before Friday, August 10, 2007, any party
intending to present substantive evidence by way of deposition testimony, other than as
provided by Federal Rule of Evidence 801(d), shall serve and file a separate motion for
leave to file the transcript of this testimony. The motion shall show cause why the
deposition testimony should be admitted and identify specifically the portion of the transcript
the party intends to use at trial. The opposing party may file a response to this motion.
Sufficient copies of proposed deposition pages for use at trial must be brought to the trial
by the party intending to use such deposition testimony.

f. Responses. The parties are expected to confer and cooperate in the preparation
of the above described documents. Any responses to matters raised by the opposing party
should, therefore, be included in each party’s initial submission. However, if anything new
or unexpected is discovered, it may be addressed in a brief response which must be filed
under cover of a motion for leave of the court to file the response, immediately upon
making the discovery.


The court previously SCHEDULED a pre-trial conference for Tuesday, September
11, 2007 at 10:30 a.m. Counsel for both parties may appear by telephone. Unless
otherwise notified, the court will contact plaintiff’s counsel at (312) 701-7216 and
defendant’s counsel at (202) 616-3448. On or before Monday, September 10, 2007, at
12:00 p.m., the attorneys of record shall advise chambers personnel, at (202) 357-6580,
of the names and telephone numbers of any other participants in the pre-trial conference.

IT IS SO ORDERED.

s/ Marian Blank Horn
MARIAN BLANK HORN
Judge