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Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 1 of 29

EXHIBIT A-3

Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 2 of 29

IN TH UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC. & SUBSIDIARIES,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Case No.: 06-305 T

Hon. Marian Blank Horn

PLAINTIFF'S SECOND SUPPLEMENT TO RESPONSES TO

UNITED STATES' FIRST SET OF INTERROGATORIES

Pursuant to Rule of Court of Federal Claims ("RCFC") 33, Plaintiff, Consolidated

Edison Company of New York, Inc. & Subsidiaries ("Con Edison"), provides the

following supplement to its Responses to the United States' First Set of Interrogatories.

This supplement is provided subject to the general objections and limitations set forth in

Plaintiff's Responses to United States' First Set of Interrogatories.

Plaintiff is continuing to review the matters subject to this proceeding and

reserves the iight to supplement and/or amend its responses as necessary.

SECOND SUPPLEMENTAL RESPONSE

INTERROGA TORY NO.1: Identify all individuals who have knowledge of the Lease

Transaction, including each person's involvement in the promotion, recommendation,

planning, approval, or implementation of any of the leases, and the nature and substance

of the facts known (or believed to be known) by each person.

RESPONSE: Con Edison objects to Interrogatory No. 1 as overbroad and

unduly burdensome. Con Edison is not aware of all individuals that had knowledge of

the Lease Transaction. The Lease Transaction involved multiple entities, and Con Edison

cannot determine all individuals at each entity who had knowledge regarding the Lease

Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 3 of 29

Transaction. Further, the Lease Transaction was widely known at Con Edison and Con

Edison cannot, even after a diligent review, represent under oath all of its current and

fOlmer employees who had any knowledge of the Lease Transaction.

In addition, Interrogatory No.1 is not limited to a single discrete subject as

required by RCFC 33(a). Rather, Interrogatory NO.1 impeimissibly attempts to elicit

information concerning several distinct subject matters, including the promotion (if any).

the recommendation, the planning, the approval, and the implementation of the Lease

Transaction. Con Edison is not compelled to respond to a compound request, such as

Interrogatory No. i Moreover, when the implicit subparts of Interrogatory No.1 are

considered, the United States' request likely exceeds the limit of 25 intelTogatories set

forth in RCFC 33(a).

Interrogatory No. I fuither requires Con Edison to set forth a detailed narrative.

and thus, the Interrogatory is overly broad and unduly burdensome. The inclusion of the

word "all" renders IntelTogatory No. 1 vague and ambiguous, as welL. The legal basis

supporting Con Edison's objection is set forth in more detail in response to Interrogatory

No.

15.

Con Edison also objects to the Interrogatory as immaterial and irrelevant. The

fact that an individual has knowledge of the Lease Transaction does not mean that the

individual has discoverable information regarding the transaction.

Subject to and without waiving its objections, Con Edison identified five current

employees of Con Edison whom it may rely upon to support its claims and/or defenses in

the instant proceeding in its Rule 26(a) Disclosures and First Supplement thereto. Con

Edison further identified the nature of each individual's involvement in the Lease

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Transaction and the general substance of the facts believed to be known by each in its

Response to the United States' First Set of Interrogatories. In such Response, Con

Edison also identified four additional former and current Con Edison employees and

sixteen additional individuals associated with third-party entities and the nature of each

indi vidual's involvement in the Lease Transaction and the general substance of the facts

believed to be known by each.

On October i 3, 2006, the United States produced a list of indi viduals it claimed

were identified in documents regarding the Lease Transaction. The United States,

however, did not identify the "subject of the information" possessed by these individuals.

It appears that some of

the individuals identified in the list attached to the United States'

October 13,2006 cOITespondence were included solely hecause their names were on a

Distribution List ("the Distribution Lise). In its initial Response to Interrogatory No. i,

Con Edison stated its belief that the individuals identified in the list attached to the

United States' correspondence of October 13, 2006 "may have information regarding

their respective institution's role in the Lease Transaction." (emphasis added). Con

Edison has undertaken its own review of the individuals listed in the United States'

October 13,2006 correspondence. As noted below, Con Edison, after a review of the

relevant documents, believes that some of the individuals identified on the United States'

list had no significant connection with the Lease Transaction.

Con Edison's information regarding the nature of each of these indi vidual's

involvement in the Lease Transaction and the general substance of the facts believed to

be known by each is contained in Con Edison's business records regarding the Lease

Transaction. Con Edison produced such records in accordance with RCFC 33(d).

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Although Con Edison does not believe that it has an obligation to summarize the

information contained in those business records, Con Edison wil provide a summary of

the nature of each individual's involvement in the Lease Transaction and the general

substance of the facts believed to be known by each, in an effoit to assist the United

States and facilitate the discovery process.

Many of the individuals identified on the list attached to the United States'

coii-espondence of October 13,2006 are referenced briefly in the documents regarding

the Lease Transaction; some were only identified on the Distribution List regarding the

Lease Transaction. Con Edison has limited information regarding what, if any,

involvement these individuals had. Con Edison, in an attempt at full disclosure,

referenced these individuals in response to Interrogatory No. i and now provides further

information regarding the identified individuals. This reference and information should

not be construed as a representation by Con Edison that each or these individuals has

discoverable information, but rather that they may have discoverable information.

This response supplements, but does not replace, Con Edison's initial response to

United States' Interrogatory No.1. Con Edison cautions the United States that the

information provided in its Response to United States' Interrogatory No. l and this

supplement hereto represents Con Edison's belief regarding each individual's

involvement in the Lease Transaction and the general substance of the facts known by

each. Con Edison is not in a position to certify under oath as to each individual's

involvement in the Lease Transaction or the general substance of the facts known by each

individual.

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l. A. Hoyte de long
Jan Trapman
N. V. Electriciteitsbedrijf Zuid-Holland (EZH)
Von Geusaustraat 193
2270 AX V oorsburg
The Netherlands
Phone: 011-31-70-3820028

Con Edison believes that Masters de long and Trapman were involved, through

their advisors and counsel, in negotiating the terms of the Lease Transaction on behalf of

South Holland Electric. The initial proposal letters were addressed directly to Mr. de

long, and he accepted the proposal letter and provided representations on behalf of South

Holland Electric. Con Edison further believes that Mr. de long was also involved in due

diligence regarding the RoCa3 Facility and negotiations regarding the letter of credit.

Con Edison believes that Masters de long and Trapman may have had information

regarding South Holland Electric and its business and the RoCa3 Facility.

Anton Zauner
Gregory Fulljames
Roger Liberman
Phillp Mintun
Margaret Morrow
Anna E. Endres
Louis DeCarlo
Capstar Partners, Inc.
40 East 520d Street, 1th Floor
New York, NY 10021
Phone: (212) 339-4200

Con Edison believes that Masters Zauner, Fulljames, Liberman, Mintun and

DeCarlo and Ms. Morrow and Endres were associated with Capstar Partners, which

reviewed and advised South Holland Electric on the terms and economics of the Lease

Transaction. Con Edison believes that these individuals may have been familar with due

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diligence performed.by South Holland Electric and the letter of credit it obtained in

connection with the Lease Transaction.

Edwin Noomen
Credit Suisse Financial Products
1 Cabot Square, 4lh Floor
London, E14, 4QJ
Phone: 44-17 i -888- i 724

Con Edison believes that Mr. Noomen, like Mr. Snouck Hurgronje who was

previously identified, was associated with Credit Suisse, which provided opinions

regarding the commercially reasonable interest rate for certain of the interest bearing

instruments in the Operative Documents. Can Edison believe that Mr. Noomen is not

listed on any document other than the Distribution List and is not aware of his specific

role, if any, in connection with the Lease Transaction.

Ben Wojciehowski
Credit Suisse First Boston
Fi ve World Trade Center
7th Floor
New York, New York 10048

Con Edison believes that Mr. Wojciehowski was associated with Credit Suisse

First Boston, which was a custodian pursuant to the Custody Agreement.

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Marianne Rosenberg
Robeit Thorton Smith
Philip McCarthy
Francois Bardonnet
Paul Alfaks
Marc Mangum
Kimberly Delfino
White & Case
1155 A venue of the Ameiicas
New York, NY 10036
Phone: (212) 819-8380

Con Edison believes that Masters Smith, McCarthy, Bardonnet, Alfaks, Mangum,

and Ms. Rosenberg and Delfino, were associated with White & Case, which provided

legal advice to South Holland Electric regarding United States legal issues in connection

with the Lease Transaction. Con Edison believes that these individuals may have

reviewed and negotiated ceitain terms of the Lease Transaction on behalf of South

Holland Electric.

Jim Donahue
Mike Mattasits
Banc One Leasing Corporation
1 I 1 Monument Center
Bank One Center
Suite 1931
Indianapolis, IN 46204
Phone: (317) 321-8044

Con Edison believes that Masters Donahue and Mattasits were associated with

Bane One Leasing Corporation ("Banc One"), which negotiated and entered into a

transaction with South Holland Electric in which it acquired an undivided leasehold

interest in the RoCa3 Facility at or around the time of the Lease Transaction. Con Edison

believes that certain aspects of Banc One's transaction and the Lease Transaction were

negotiated with South Holland Electric at or around the same time. Con Edison believes.

that Masters Donahue and Mattasits may have had knowledge regarding the negotiation

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and terms of the transaction entered into between Banc One and South Holland Electric

and the negotiation and certain terms of the Lease Transaction. Con Edison also believes

that Mr. Mattasits may have had information regarding due diligence conducted on the

RoCa3 Facility.

John M. Sykes
Joonmoo Lee
Andrew Levy
John Kramer
Patricia landoli
Jerome Mounier
Colin Chang
Michael Apelt
Dan Kiely
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Phone: (202) 848-4000

Con Edison believes that Masters Sykes, Lee, Levy, Kramer, Mounier, Chang,

Apelt, and Kiely and Ms. Iandoli, like Masters Flowers and Stevenson who were

previously identified, were associated with Shearman & Sterling, which provided legal

advice to Con Edison with respect to the Lease Transaction, including the terms of and

proper Federal income tax treatment for the Lease Transaction.

David Strupp
Roger Wise
Kim Werderman
Siri Thomas
Davis Polk & Wardell
450 Lexington Avenue
New York, NY 10016
Phone: (212) 450-4800

Con Edison believes that Masters Strupp, Wise, and Thomas and Ms. Werderman

were associated with Davis Polk & Wardell, which provided legal advice to Bayerische

Landesbank Girozentrale, Luxembourg Branch, in connection with a letter of credit

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obtained by South Holland Electric in favor of Con Edison and Wilmington Trust

Company and also provided legal advice to Hollandsche Bank-Unie N.V. regarding

United States law in connection with the Lease Transaction.

A. Rene Citroen
Tjepco van Voorst Vader
Louis Bouchez
Daphne Brinkhuis
Ken Breken
Nanette Rutgers
Cli fford Chance
Apollolaan 171
1077 AS Amsterdam
The Netherlands
Phone: OLL-31-20-577-7222

Con Edison believes that Masters Citroen. van Voorst Vader, Bouchez, and

Breken and Ms. Brinkhuis and Rutgers were associated with Clifford Chance, which

provided legal advice to South Holland Electric regarding Dutch legal issues in

connection with the Lease Transaction.

Dr. Michael Weller
Clifford Chance
Oberlindau 54-56
0-60323
Frankfurt AM-Main
Germany

Con Edison believes that Dr. Weller was associated with Clifford Chance, and

may have provided legal advice to South Holland Electric regarding the letter of credit it

obtained in connection with the Lease Transaction. Dr. Weller also provided a legal

opinion to Con Edison and Wilmington Trust Company.

9

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Paul Stenrink
Gerald Wentink
Loyens & V olkmaars
Tripolis 300
P.O. Box 71170
1008 BD Amsterdam
Phone: Oll-31-20-578-5785

Con Edison believes that Masters Stenrink and Wentink were associated with

Loyens & Volkmaars, which provided legal advice to South Holland Electric regarding

the proper tax treatment of the Lease Transaction under Dutch law.

Femke Bierman
Loeff Clayes Verbeke
Apollolaan 15, P.O. Box 75088
1070 AB Amsterdam
The Netherlands
Phone: 01 l-31-20-574-1507

Con Edison believes that Mr. Bierman, like Masters Meesters and Magnin who

were previously identified, were associated with Loeff Clayes Verbeke, which provided

legal advice to Con Edison regarding Dutch law in connection with the Lease

Transaction.

Michael Ledyard
Moo'is James Hitchens & Willams
222 Delaware Ave.
P.O. Box 2306
Wilmington, DE 19899

Con Edison believes that Mr. Ledyard may have provided legal advice to the

Trustee, Wilmington Trust Company, regarding the Lease Transaction. Con Edison

believes that Mr. Ledyard may have had infonnation regarding the formation of the Trust

and its role in the Lease Transaction.

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Don MacKelcan
Wilmington Trust Company
Rodney Square
1100 N. Market Street, Suite 2201
Wilmington, DE 19890
Phone: (302) 651-1118

Con Edison believes that Mr. MacKelcan was an employee of Wilmington Trust

Company, which facilitated the Trust that participated in the Lease Transaction on behalf

of Con Edison Development. Con Edison believes that Mr. MacKelcan may have had

information on the formation of the Trust and its involvement in the Lease Transaction.

Mark J. DeTrempe
Tom Malia
Jay Sill
Donald Roback
Cornerstone Financial 'Advisors L.P.
Three Parkway North
Deerfield, IL 60015
Phone: (847) 444-1000

Con Edison believes that Masters DeTrempe, Malia, Sill, and Roback of

Cornerstone Financial Advisors L.P. ("Cornerstone"), like Robert Holzman who was

previously identified, may have provided advice regarding the economics and the

implementation of the Lease Transaction. Mr. Holzman was Con Edison's primary

contact at Cornerstone.

Austin Godfrey
Marlene Motyka
Deloitte Financial Advisory Services
2 World Financial Center
New York, NY 10281
Phone: (212) 436-2000

Con Edison believes that Mr. Godfrey and Ms. Motyka, like Masters Ellsworth,

Renock and Liu who were previously identified, were associated with Deloitte Financial

Advisory Services, which prepared a valuation of the RoCa3 Facility. Neither

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Mr. Godfrey nor Ms. Motyka, however, are identified on any documents, other than the

Distribution List, regarding the Lease Transaction. Con Edison is not familiar with any

involvement of Mr. Godfrey and Ms. Motyka in the preparation and/or review of the

appraisal for the Lease Transaction.

K. L. Schoppink
Moret Ernst & Young
Wassenaarseweg 80
2596 CZ The Hague
Phone: 31-70-328-6666

Con Edison believes that Moret Ernst & Young may have provided accounting

services for South Holland Electric. Con Edison is not familiar with the specific

involvement, if any, of Mr. Schoppink in connection with the Lease Transaction.

Sheldon Mittler
Duke Engineering & Services
One Huntington Quadrangle, Suite ISOl
Melville, NY 11747

Con Edison believes that Mr. Mittler, like Masters Radini, Foley, Gonzalez, and

DeCristofaro who were previously identified, was associated with Duke Engineering &

Services, which prepared an engineering valuation of the RoCa3 Facility. Con Edison is

not familiar with the involvement, if any, of Mr. Mittler in the preparation and/or review

of the report.

Richard Norbruis
Elizabeth van Schilfgaarde
Nauta Dutilh
1 Rockefeller Plaza
New York, NY 10020

Con Edison believes that Mr. Norbruis and Ms. van Schilfgaarde were associated

with Nauta Dutilh, which provided legal advice to the Lender and the Deposit Bank,

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including legal advice regarding due diligence associated with real property and

mortgages, in connection with the Lease Transaction.

Nancy Dahl
First Security Bank, N.A.
79 South Main Street, 3rd Floor
Salt Lake City, UT 84111
Phone: (80l) 246-5208

Con Edison is uncertain of the nature of the involvement of Ms. Dahl and/or First

Security Bank, N.A. in or the general substance of the facts known by either regarding

the Lease Transaction. First Security Bank is listed as a permitted successor trustee in the

Participation Agreement.

Dr. Peter Hein
Alan & Overy
Taunustor 2
603 i I Frankfurt AM-Main
Germany

Con Edison is uncertain of the nature of involvement of Dr. Hein and/or Alan &

Overy in or the general substance of the facts known by either regarding the Lease

Transaction. Con Edison believes Dr. Hein and/or Alan & Overy are not named on any

document other than the Distribution List.

Wan-en Wegener
Marsh & McLennan
500 West Monroe, 22nd Floor
Chicago,IL 60661
Phone: (312) 627-6628

Con Edison believes that Mr. Wegener, like Mr. Harding who was previously

identified, was associated with Marsh & McLennan, which performed insurance due

dilgence with respect to the RoCa3 Facility. Con Edison is not familiar with the

involvement, if any, that Mr. Wegener had in connection with the Lease Transaction.

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Hans Nieuwenhuis
Tauw Mileu
P.O. Box L33
7400 AC Deventer
The Netherlands
Phone: 011-31-570-699-829

Con Edison believes that Mr. Nieuwenhuis was associated with Tauw Mileu,

which performed environmental due diligence of the RoCa3 Facility and prepared a

report of such due diligence. Con Edison believes Mr. Nieuwenhuis was involved in the

preparation of the report.

J. D. Dykstra
M. ten Cate
ABN AMRO Bank N.V.
Foreign Credit Services

Foppingadreef 22
P. O. Box 283
1000 EA Amsterdam
The Netherlands
Phone: (31) (20) 628743

Masters Dykstra and/or ten Cate signed various documents as attorneys-in-fact for

ABN AMRO Bank. Con Edison believes they may have had information regarding ABN

AMRO's participation in the Lease Transaction.

J.D. Dykstra
M. ten cate
Hollandsche Bank-Unie N. V.
Coolsingel 104
P.O. Box 249
3000 AE Rotterdam
The Netherlands

Masters Dykstra and ten Cate signed various documents as attorneys-in-fact for

Hollandsche Bank-Unie N. V. Con Edison believes they may have had information

regarding Hollandsche's participation in the Lease Transaction.

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Alexander Kohnot
Bayerische Landesbank Girozentrale, Luxembourg Branch
3, rue Jeanne Monnet
L2180
Luxembourg
Phone: 352.42.434.3399

Con Edison believes that Mr. Kohnot may have had information regarding

Bayerische Landesbank Girozentrale's furnishing of a letter of credit in connection with

the Lease Transaction.

Additional individuals at Con Edison who had peripheral involvement in the

Lease Transaction are referenced in response to Intenogatory No. 15.

INTERROGATORY NO. 15: Identify all individuals and entities, including third

parties and employees, officers and members of the Board of Directors of Plaintiff, with

whom you communicated aboiit the Lease Transaction prior to entering into the

transaction, setting forth the contents of the communications and identifying the

documents mentioning, discussing, referring to or constituting the communications.

RESPONSE:

In its Response to the United States' First Set of lntenogatorics, served on

November 2, 2006, Con Edison objected to Interrogatory No. 15 as overbroad and

burdensome. In paricular, Con Edison explained that it is not possible for Con Edison to

identify all individuals with whom it communicated or to set forth the contents of all such

communications, many of which were of a routine administrative nature. The Lease

Transaction was a business transaction and, as such, subject to normal business review

procedures. Employees of unrelated entities were also involved in reviewing the Lease

Transaction.

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There are several discrete bases suppotting Con Edison's objection on this

ground. First, Interrogatory No. 15 is a multi-patt request, requiring Con Edison to

identify all individuals at Con Edison involved with the Lease Transaction and "all

individuals," whether associated with Con Edison or third-party entities, with whom such

individuals communicated about the Lease Transaction, as well as the contents of all

communications by and between such individuals on any subject associated with the

Lease Transaction and every document relating to such communications. Interrogatory

i 5 is not limited to a single discrete subject as required by RCFC 33(a). See also Fed. R.

Civ. P. 33(a) (containing identical language) and Safem olAm. 1'. Rawstron, LSL F.R.D.

44 1,443 (CD. Cal. 1998) (interrogatories often contain subparts that "are implicit and

not separately numbered or lettered"). Rather. Interrogatory No. l 5 impermissibly

attempts to elicit information concerning several distinct subject matters. Con Edison is

not compelled to answer an interrogatory in compound form. such as Inten'ogatory No.

15. See Pogue v. Diabetes Treatment Ctr. of

Am., Inc., 235 F.R.D. 521, 525 (D. D.C.

2006) (a party "will not be compelled to provide an answer" to an interrogatory in the

"compound form"). Moreover, when each implicit subpart is considered, Interrogatory

No. 15 evades the limit of 25 interrogatories set forth in RCFC 33(a). See, e.g., Johnson

v. Kraji Foods N. Am., 2006 WL 3143930 (D. Kan. Oct. 31, 2006) (stating that the

"extensive use of subparts, whether explicit or implicit" may render the numerical

limit in

Rule 33 "meaningless") and Bujnicki v. Am. Paving and Excavating, Inc., 2004 WL

1071736, *9 (finding a blanket request for the interrogated party to set forth the facts

supporting each defense to be an "attemptn to evade the presumptive limitation set forth

in" Rule 33(a)).

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Second, Interrogatory IS requires Con Edison to provide a detailed narrative

outlining the contents of communications between individuals associated with Con

Edison and third-party entities and thus, is both overly broad and burdensome. See, e.g.,

Smith v. City of

New York. 2006 WL 2516479, * i (E.D.N.Y. Aug. 29, 2006) (where

"intellogatories are improperly worded and seek long nan'atives," the party "need not

engage in long narratives in response"); Tunier v. Moen Steel Erection, Inc., 2006 WL

3392206 (D. Neb.) (an interrogatory is overly broad and unduly burdensome "if it seeks

'all facts' suppoiting a claim or defense, such that the answering party is required to

provide a narrative accounl of its case"); Hilt v. SFC fIiC., 170 F.R.D. 182, 188 (D. Kan.

1997) (an interrogatory requesting "a running nam\tive or description of the entire case,

together with identifications of all knowledgeable persons and supporting documents" is

overly broad and burdensome); Piling v. Geii. Motors Corp., 45 F.R.D. 366,370 (D.

Utah 1968) (stating that although "the listing of details concerning every (responsive)

publication could be unreasonable, the specification of representative publications, if any,

and the general descriptions of such other publications, if any, would not be"); City

of

Witcliita, Kansas v. Aero Holdings. Inc., 2000 WL 33170895 (D. Kan.) (finding

interrogatories asking the interrogated party to "list all facts" and "identify all persons

having knowledge" about a transaction were overbroad).

Third, the use of the word "all" in Interrogatory No. 15 also renders the request

vague and ambiguous, as well as overbroad; the request does not adequately advise Con

Edison of the specific information sought. See, e.g., Stovall v. Gulf and S. Am. Steamship

Co., 30 F.R.D. 152, 154 (S.D. Tx. 1961) ("(h)ow can the court make enforceable orders

with reference to 'all' of anything?"); Sheffeld Corp. v. George F. Alger Co., 16 F.R.D.

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27,29 (S.D. Ohio 1954) (condemning interrogatories which use the word "all"); Aero

Holdings, 2000 WL 33170895.

Interrogatory No 15. requires Con Edison to identify (i) all persons associated

with Con Edison involved in the Lease Transaction, (ii) the individuals with whom they

disciissed the Lease Transaction, whether associated with Con Edison Of a third-party

entity_ (iii) the contents of all disciissions regarding aiiy subject matter associated with the

Lease Transaction, and (iv) all documents relating to such communications. Con

Edison's effort in evaluating lease transactions in general and entei;ng into the Lease

Transaction consumed almost a year, and, as a result, Interrogatory No. 15 requests that

Con Edison create a "running narrative" of events which occurred over this extended

period. Further, the request that Con Edison identify "all" communications renders the

intelTogatory ambiguous as well as overly broad. Interrogatory No. 15 is clearly

objectionable, as established by the authorities set foith above, and Con Edison is not

obligated to respond.

Con Edison has produced extensive documentation setting forth its

communications regarding the Lease Transaction. For the reasons described below, this

documentation provides a more comprehensive description of the communications

regarding the Lease Transaction than is possible in the context of an Interrogatory

response.

Depositions would be a more effective tool for gathering the type of detailed

information requested by Interrogatory No. 15, especially information regarding oral

communications. As the Ninth Circuit has stated, "(w)ritten interrogatories are not

designed" to "plumb the depths of a witness' recollection," rather "a deposition" should

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be used "when the goal (of) discovery" is to extract "a witness' recollection of

conversations." Shoen v. Shoen, 5 F.3d 1289, 1297 (1993); see also Static Control

Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431, 435 (M.D.N.C. 2001) (stating

that when conversations were not recorded, depositions are "clearly a superior" tool for

gathering the "full details of the conversations"); Hilt v. SFC Inc., 170 F.R.D. at 187

(stating "in many instances depositions, rather than intellogatories, will better serve the

purpose of obtaining detailed facts); Bryers Theaters. Inc. v. Murphy, I F.R.D. 286, 288-

89 (W.D. Va. 1940) (concluding

that depositions provide "for a more comprehensive

examination" than interrogatories, and interrogatories are not "suited for a 'thorough

inquiry into the vital and highly controversial phases of the case").

Con Edison further objects to the Interrogatory as immaterial and irrelevant. The

routine business communications of Con Edison employees and the communications of

third-parties of which Con Edison was not aware are not relevant to a determination of

the proper tax treatment of the Lease Transaction.

Con Edison is neither able, nor obligated, to respond to Interrogatory No. 15. In

order to assist the United States and facilitate the discovery process, however, Con

Edison has provided: (i) a list of the individuals associated with Con Edison who were

involved in the Lease Transaction, (ii) a list of the individuals, whether associated with

Con Edison or third-party entities, with whom they communicated regarding the Lease

Transaction, and (iii) a summary of the general subject matter

of such communications

based upon interviews with the relevant individuals at Con Edison. Con Edson has

further provided all documents concerning such communications in its Response to the

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United States' First Request for Production and Supplements thereto. This response is

provided by Con Edison subject to and without waving its objections.

Con Edison expects that the recollection of the individuals listed below may be

refreshed as the case moves forward and Con Edison conducts trial preparation.

A. Brian DePlautt

Mr. DePlautt is no longer employed at Con Edison, and therefore Con Edison no

longer exercises "control" over Mr. DePlautt. See Gell. Dynamics Corp. v. Selb Mfg. Co.,

481 F.2d 1204, 1210 (8th Cir. 1973). In the spirit of

cooperation, however, Con Edison

interviewed Mr. DePlautt, by telephone on December 22,2006, for purposes of

responding to IntelTogatory No. 15.

The information contained in this response is based on this conversation. Since

Mr. DePlautt is no longer employed by Con Edison, Con Edison has limited access to

Mr. DePlautt, In view of Con Edison's limited access to Mr. DePlautt and the number of

documents associated with this case, Con Edison has not attempted to refresh

Mr. DePlauts recollection through the use of such documents. Con Edison expects that

Mr. DePlautt may be able to provide additional detail if and when his recollection is

refreshed by viewing relevant documents.

Mr. DePlautt originally contacted Mr. Holzman to obtain more information

concerning lease transactions, including the risks and benefits of such transactions. Their

discussions related to these subjects, including discussions of the profit associated with

lease transactions and the accounting treatment of the profit. Mr. DePlautt initiated these

discussions because he believed that leases involving power projects might be consistent

with Gramercy Development, Inc.'s business objectives. These discussions began in

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early 1997, during the formation of

Gramercy Development, Inc. After several months of

such discussions, Mr. Holzman alerted Mr.

DePlautt to the possibility of entering into a

leasing transaction with South Holland Electric. Prior to Con Edison Development's

decision to enter into the transaction with South Holland Electiic, Mr. DePlautt had

extensive discussions with Mr. Holzman conce11ing the details of the South Holland

Electiic transaction. Many of these discussions related to the rules for leveraged lease

accounting as they would relate to the Lease Transaction.

Mr. DePlautt had discussions with individuals at Con Edison, including Charles

Muoio, Joan Freilich, Mary Jane McCartney, Kevin Burke, Peter Irwin, and Andrew

Scher, related to the Lease Transaction. In these discussions, the individuals reviewed

the details of the Lease Transaction and the pros and cons of Con Edison entering ilito the

Lease Transaction. These discussions included the potential profit associated with the

Lease Transaction and how the profit would be accounted for under the rules applicable

to leveraged lease accounting. Mr. DePlautt and these individuals also discussed whether

the Lease Transaction was consistent with Con Edison Development's business plans, the

legal and tax aspects of the Transaction, and the ancilary benefits of entering into the

Lease Transaction, such as lea11ing more about European energy markets. These

communications would have taken place at Board of Trustee meetings, other meetings, in

written memoranda, and in phone calls. Mr. DePlautt also kept Paul Kinkel informed of

issues associated with the Lease Transaction, but Mr. Kinkel played a less active role in

reviewing the Lease Transaction.

Mr. DePlautt provided Harry Morrson with an overview of the Lease Transaction

in connection with Mr. Morrson's review of the RoCa3 Facility. Mr. DePlautt discussed

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the technical aspects of the RoCa3 Facility with Mr. MOllison. These discussions would

have taken place, in part, during a site visit to the RoCa3 Facility.

Mr. DePlautt communicated with the accounting, treasury, tax, and corporate

planning departments at Con Edison in order to provide them with an overview of the

transaction. Mr. DePlautt does not currently recall the individuals with whom he had

such disciissions.

Mr. DePlautt communicated with Rick Ellsworth and George Renock at Deloitte

& Touche regarding the appraisal of the RoCa3 Facility

Mr. DePlautl communicated with Richard Radini at Duke Engineering regarding

engineering issiies related to the RoCa3 Facility.

Mr. DePlautt believes he may have communicated with Aidan O'Mahony

regarding Standard and Poor's review of South Holland Electric's credit risk.

Mr. DePlautt believes he may have communicated with individuals at Tauw

Milieu concerning the environmental review of the RoCa3 facility.

Mr. DePlautt communicated with Karen Kubiak at Arthur Andersen regarding the

accounting treatment of the Lease Transaction. He does not currently recall whether he

also communicated with Ben Neuhuasen.

Mr. DePlautt communicated with Jim Dewey at Price Waterhouse regarding the

accounting treatment of the Lease Transaction.

Mr. DePlautt communicated with J. A. Hoyte de Jong and Jan Trapman at South

Holland Electric regarding South Holland Electric, its business activities, the RoCa3

Facility, and Netherlands energy markets. Mr. DePlautt also communicated with the

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plant manager of the RoCa3 Facility concerning the quality of the RoCa3 equipment

during a site visit to the RoCa3 Facility.

Mr. DePlautt communicated with Anton Zauner, Gregory Fulljames, and Phillip

Mintun of Capstar Partners, Inc. regarding South Holland Electric.

Mr. DePlautt communicated with Jim Donahue of Banc One Leasing Corporation

regarding Banc One's participation in a separate lease of an undivided interest in the

RoCa3 Facility.

Mr. DePlautt communicated with Mr. Flowers and Mr. Stevenson at Shearman &

Sterling regarding legal advice they provided in connection with the Lease Transaction,

including the possibility of litigation or other disputes with the Internal Revenue Service

as a result of entering into the Lease Transaction.

Mr. DePlautt communicated with Bart Meesters and Femke Bierman at Loeff

Claeys Verbeke regarding Dutch legal issues associated with the Lease Transaction.

The individuals identified by Mr. DePlautt were those at each entity with whom

he had the majority and most significant conversations. It is possible that Mr. DePlautt

had conversations with others or that others participated in the conversations he

identified, which he may recall, upon further review of the Lease Transaction. The

response to this Interrogatory is based upon Mr. DePlautts currnt recollection, and

Mr. DePlautt will likely review the transaction in more detail during discovery, and such

review may refresh his recollection on further details.

B. .Joan Freilch

Ms. Freilich was the Chief Financial Officer of Con Edison and a member of the

Board of Directors of Consolidated Edison Development ("Con Edison Development")

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during the consideration and implementation of the Lease Transaction. She

communicated with Brian DePlautt, Kevin Burke, Mary Jane McCaltney and Charles

Muoio concerning the Lease Transaction. She may have also communicated with

Eugene McGrath, the chairman of Con Edison. Much of these communications would

have taken place at Con Edison Development Board of Director meetings and

Consolidated Edison Company of New York, Inc. Board of

Trustee meetings. These

discussions related to the advantages and disadvantages of the Lease Transaction,

including its impact upon Con Edison's financial statements and its relationship to Con

Edison Development's business plan. Ms. Freilich believes that the discussions at Board

of Trustee and Board of Director meetings also included risks associated with the Lease

Transaction, including the risks associated with Con Edison's interest in the RoCa3

property, and Con Edison's ability to operate the RoCa3 property. Ms. Freilich further

believes that the discussions included the legal and tax aspects of the Lease Transaction.

Ms. Freilich believes she spoke with employees in Con Edison's corporate

planning department and/or accounting department in order to understand the financial

accounting for the Lease Transaction. She does not currently recall the individuals with

wbom she had such discussions.

C. Marv Jane McCartnev

Ms. McCartney had discussions with Mr. DePlautt concerning the details of the

Lease Transaction, including the amount of Con Edison's investment and the economic

return from the Lease Transaction. She also had discussions with Mr. DePlautt

concerning the business and regulatory environment in the Netherlands, the qualifications

of Con Edison's advisors, the role of the Lease Transaction in Con Edison

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Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 26 of 29

Development's portfolio, and the legal and tax aspects of the Lease Transaction. She also

had discussions with Ms. Freilich and Mr. Muoio concerning some of these subjects,

primarily at Con Edison Development Board of Trustee meetings. Ms. McCarthy may

have provided updates on the Lease Transaction to Mr. Souter and/or Mr. McGrath.

Ms. McCaltney also met with Robeit Schwartz, the chairman of Consolidated

Edison Company of New York, lnc.'s Finance Committee. The purpose of this meeting

was to review with Mr. Schwartz the White Paper prepared with respect to the Lease

Transaction. Ms. McCartney also believes she reviewed the Lease Transaction with

Mr. McGrath.

D. Kevin Burke

Mr. Burke was Con Edison's vice-president for corporate planning at the time of

the Lease Transaction. He communicated with Mr. DePlautt concerning the economics

of the Lease Transaction, including the rental payments and other payments to be made

pertaining to the lease agreements. He also communicated with Ms. Freilich and

Ms. McCartney on these subjects.

Mr. Burke communicated with Mr. Muoio concerning the Lease Transaction and

its fit within Con Edison Development's overall strategy. He also communicated with

Ms. Freilich and Ms. McCartney on this subject.

The discussions related to the Lease Transaction also related to the advantages of

learning about the energy business in foreign countries and also related to the quality of

the RoCa3 Facility and the risks associated with an interest in the Facilty.

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Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 27 of 29

E. Andrew Scher

Mr. Scher, a member of Con Edison's law department, was assigned as in-house

legal counsel to review documents and provide legal advice with respect to the Lease

Transaction. He communicated with Mr. DePlauu in this capacity. Mr. Scher

communicated with Mr. Holzman and potentially Mr. Culp of Cornerstone regarding the

economics of the Transaction.

Mr. Scher also communicated with Brian Cray, who assisted in the review of

documents. Mr. Scher also communicated with Shearman & Sterling, which was

primarily responsible for the drafting of the documents from Con Edison's point of view.

Mr. Scher communicated with Mr. O'Shea (the General Counsel of Con Edison) and

Mr. Irwin regarding his review.

Mr. Scher communicated with Marianne Rosenberg of White & Case concerning

the in-hoiise coiinsel opinion Con Edison delivered to South Holland Electric,

Hollandsche, and Wilmington Trust Company at the closing.

Mr. Scher also communicated with Mr. Strupp of David Polk & Wardwell

concerning comments to the transaction documents.

Mr. Scher also communicated with representatives of Clifford Chance concerning

the opinions prepared by them to be delivered to Con Edison.

Mr. Scher also communicated with representati ves of Loeff Clayes Verbeke

concerning their legal advice provided to Con Edison.

Mr. Scher also may have communicated with Michael Ledyard, counsel for

Wilmington Trust Company. He also may have responded to questions posed by

Mr. Dewey of Pricewaterhouse.

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F. Peter Irwin

Mr. Irwin was a member of Con Edison's law department. His principal role with

respect to the Lease Transaction was to callY out the process of obtaining necessary

corporate approvals for the Transaction. He communicated with Mr. DePlautt in order to

obtain an overview of the Transaction for this purpose. He also attended Board of

Trustee meetings at which the Lease Transaction was discussed. He also communicated

with Mr. Scher and Mr. O'Shea regarding the Transaction.

Mr. Irwin also participated in the interview of Shearman & Sterling which led to

their retention as legal counsel in connection with the Lease Transaction.

Dated: January 5, 2007

Respectfully submitted by:

TLe£1~

Attorney of Record
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, Ilinois 60606
Telephone: (312) 701-7216

NICOLE M. BIELAWSKI
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

DA VID F. ABBOTI
Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, New York 10019-5820
Telephone: (212) 506-2642

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Case 1:06-cv-00305-MBH Document 22-4 Filed 04/04/2007 Page 29 of 29

DECLARATION

I, hereby declare, under penalties of

perjury, that Plaintiffs foregoing Second

Supplement to Responses to the United States' First Set oflnterrogatories is tre and

complete to the best of my knowledge. ,"\ 'i --. r.~)§

Andrew Scher
Assistant General Counsel

Consolidated Edison Company of

New York, Inc.

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