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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 1 of 20

EXHIBIT A-4

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 2 of 20

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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Case No.: 06-305 T

Hon. Marian Blank Horn

PLAINTIFF'S THIRD SUPPLEMENT TO RESPONSES TO
UNITED STATES' FIRST SET OF INTERROGATORIES

Pursuant to Rule of Court of Federal Claims ("RCFC") 3 3, 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

Plaintiffs Responses to United States' First Set oflnterrogatories.

Plaintiff

is continuing to review the matters subject to this proceeding and

reserves the right to supplement and/or amend its responses as necessar.

THIRD SUPPLEMENTAL RESPONSE

INTERROGATORY NO. 12: If

Plaintiff executed a tax indemnity agreement, set forth

the terms of each such agreement, explaining the reasons for entering the agreement.

RESPONSE: Plaintiff

incorporates its initial response to Interrogatory No. 12,

which stated:

2083922 i

A copy of the Tax Indemnity Agreement was provided as

par of

Plaintiffs Rule 26(a) disclosure. The Tax

Indemnity Agreement was entered into to address the
matters set forth therein. Plaintiff objects to this
Interrogatory to the extent it seeks legal advice concerning
the reasons for entering into the Tax Indemnity Agreement.

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 3 of 20

Plaintiff further states that it entered into the Tax Indemity Agreement based
this advice is

its counsel, Shearman & Sterling. The substance of

upon the advice of

protected by the attorney client privilege and/or work-product immunity. Plaintiff

believes that Shearman & Sterling may have negotiated the terms of

Agreement with White & Case, which advised South Holland Electric. Plaintiff does not
recall receiving advice regarding the Tax Indemnity Agreement from Cornerstone
Financial Advisors.

the Tax Indemnity

INTERROGATORY NO. 16: State the basis for your decision to form a trust to enter

into the Lease Transaction.

RESPONSE: Plaintiff incorporates its initial response to Interrogatory No.1 6,

which stated:

The use of ownership trusts is a standard and customary
practice in the leveraged leasing industry. Con Edison
objects on the grounds of attorney-client privilege to the
extent that this Interrogatory requests legal advice provided
to Con Edison concerning the legal reasons for forming a
trust.

Plaintiff further states that it entered into an ownership trust based upon the

advice of its counsel, Shearan & Sterling. The substance of this advice is protected by
the attorney client privilege and/or work-product immunity.

Dated: March 15, 2007

Respectfully submitted by:

THOMAS C. DURHAM
Attorney of Record
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, Ilinois 60606
Telephone: (312) 701-72 i 6

By:~~JL~~ .,

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

20839221

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 4 of 20

CERTIFICA TE OF SERVICE

I, Nicole M. Bielawski, hereby certify that on this 15th day of March, 2007, I

caused the foregoing Plaintiffs Third Supplement to Responses to the United States'

First Set of Interrogatories to be served upon the United States of America by overnight

delivery, to the following:

David N. Geier
U.S. Department of Justice
Tax Division, Room 79 I 9
555 Fourth Street, N.W.
Washington, D.C. 20001

L-f~ clcl~

NICOLE M. BIELAWSKI
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

2083922 i

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 5 of 20

DE CLARA TION

I, hereby declare, under penalties of

perjury, that Plaintiffs foregoing Third

Supplement to Responses to the United States' First Set of Interrogatories is true and

complete to the best of my knowledge.

\-,v~-l

'Scher

Andrew

Assistant General Counsel
Consolidated Edison Company of New York, Inc.

20839221

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 6 of 20

EXHIBIT A-5

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 7 of 20

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON COMPANY
OF NEW YORK INC. & SUBSIDIARIES,

Plaintiff,

v.

THE UNITED STATES OF AMRICA,

Defendant.

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)
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)
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Case No.: 06-305 T

Hon. Maran Blan Horn

PLAINTIFF'S RESPONSES TO

UNITED STATES' FIRT REOUEST FOR PRODUCTION

Pursuant to Rule of Cour of

Federa Claims ("RCFC") 34, Plaintiff, Consolidated

Edison Company of

New York, Inc. & Subsidiares ("Con Edison"), provides the

following respnse to the United States' Firt Request for Production, subject to the

objections and limitations specified.

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

reseres the right to supplement and/or amend its responses as necessar.

GENERA OBJECTIONS

i. Con Edison objects to the United States' First Request for Production to

the extent that the Requests call for the production of documents that are subject to any

claim of privilege or protection or that were prepared in anticipation of litigation. This

includes, without limitation, the attorney-client privilege or the work-product protection.

The inadverent production by Con Edison of any document protected by the attorney-

client privilege, the work-product protection or any other privilege shall not constitute a

waiver of

the applicable privilege or protection as to that document or any other related

documents.

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 8 of 20

2. Con Edison objects to the United States' First Request for Production to

the extent that the United States purorts to impose any requirement or discover

obligation other than or beyond those set fort in the RCFC or other applicable rules.

3. Con Edison objects to the United States' Firt Request for Production to

the extent that the Requests cali for documents already known to be in the United States'

possession.

4. Con Edison objects to the United States' First Request for Production to

the extent that the Requests seek immateral and/or irrelevant docuents. By producing

documents, Con Edison does not concee that the documents produced are materal

and/or relevant to any claims or defenses, or even that such docuents are reasonably

calculated to lead to the discover of admissible evidence.

5. By producing documents in response to the United States' First Request

for Production, Con Edison does not waive any of its objections and expressly reseres

its right to object to the admssibilty of the documents produced.

6. Con Edison objects to the United States' Definitions in its First Request

for Production to the extent that the Definitions define words to have something other

than their ordinar meaning or employ gramar, syntax and usage different from

ordinar English grammar, syntax and usage. Con Edison wil not speculate as to the

meaning of vague language within the First Request for Production and will assume that

the United States has wrtten the questions they intend to ask.

Con Edison hereby incorporates each of the foregoing General Objections into

each of

the following responses to the United States' First Request for Production, and

provides each response subject to and without waiving these General Objections.

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 9 of 20

RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMETNS

REOUEST NO.1: All documents identified, described, mentioned or referenced to in

your response to the Interogatories sered concurently herewith.

RESPONSE: Con Edison produces, to the extent not previously produced in its

Rule 26(a) disclosures and to the extent not privileged, the documents reference in its

responses to Intergatories No. 1 though 16. These documents are bates stamped #

PF005521 though 7333.

With respect to Interogatory No.2, subject to and without waiving its objecions,

the following is a paral list of documents included in Plaintiffs Rule 26(a) disclosure

identifyng other lease-in, leae-out transactions considered by Plaintiff: Bates

## PF004250-87, 4288-4323, 4525-4558, 5504-07, and 6438-89.

With respect to Interrogatory No. 14, subject to and without waiving its

objections, Bates # PF004426-48 identifies some of

the infrastrctue projects reviewed

by Con Edison. Con Edison Development, Inc. regularly reviewed infrastrctue projects

and a compilation of a complete list of such projects would be unduly burdensome.

Interrogatories 7 and 15 are overlapping, and the majority of

the documents

produced in response to Request for Production No. 1 are responsive to both

Interogatory 7 and 15. Bates # PF006492 though 7321 includes workpaper utilzed by

Deloitte & Touche in their appraisal.

REOUEST NO.2: All documents relied upon or reviewed by you in preparng your

responses to the Interrogatories sered concurrently herewith.

RESPONSE: To the extent that Request No.2 seeks the production of

documents which Con Edison reviewed but did not rely upon in responding to the United

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 10 of 20

States' Interogatories No.1 though 16, Con Edison objects to the Request as overbroad

and unduly burdensome, immateral and irrelevant and not reasonably calculated to lead

to the discover of admissible evidence. The fact that Con Edison did not rely upon a

parcular document indicates that the document was not relevant to its responses to the

Interrogatories, notwithstanding Con Edison's review of

that document in preparng its

responses.

(Remainder of Page Intentionally Blank)

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Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 11 of 20

Subject to and without waiving its objection, Con Edison has produced all documents it

relied upon in preparg its responses to Interogatories No.1 through 16 in response to

Dated: November 3, 2006

Request No.1.

Respectlly submitted by:

THOMAS C. DURHAM

Attorney of

Recrd

Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, Ilinois 60606
Telephone: (312) ?01-7216

By. ~(J~l,

NICOLE M. BIELA WS I
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

DAVID F. ABBOIT
Mayer, Brown, Rowe & Maw LLP
i 675 Broadway
New York, New York 10019-5820
Telephone: (212) 506-2642

5

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 12 of 20

CERTIFICATE OF SERVICE

I, Nicole M. Bielawski, hereby cerify that on ths 3rd day of

November, 2006, I

caused the foregoing Plaintiffs Resnses to the Goverent's First Request for

Production to be sered upon the United States of Amerca by hand, to the following:

David N. Geier
U.S. Deparent of Justice
Tax Division, Room 7919
555 Four Strt, N.W.
Washington, D.C. 20001

THOMAS C. DURHAM
Attorney of Recrd
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, TIinois 60606
Telephone: (31~) 701-7216,1 . If

BY:~~'

NICOLE M. BIELA SKI
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

6

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 13 of 20

EXHIBIT A-6

..

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 14 of 20

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 06-305 T

Hon. Marian Blan Horn

PLAINTIFF'S FIRST SUPPLEMENT TO RESPONSES TO
UNITED STATES' FIRST REQUEST FOR PRODUCTION

Pursuant to Rule of

Cour of

Federal Claims ("RCFC") 34, Plaintiff,

Consolidated Edison Company of

New York, Inc. & Subsidiares ("Con Edison"),

provides the following supplement to its Responses to the United States' First Request

for Production. This supplement is provided subject to the general objections and

limitations set forth in Plaintifls Responses to United States' First Request for

Production.

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

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

FIRST SUPPLEMENTAL RESPONSE

REQUEST NO.1: All documents identified, described, mentioned or referenced to in

your response to the Interrogatories sered concurrently herewith.

RESPONSE: Con Edison produces, to the extent not previously produced in its

Rule 26(a) disclosures and its Response to the United States' First Request for Production

..

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 15 of 20

. .

and to the extent not privileged, the documents referenced in its responses to

Interrogatories No.1 through 16. These documents are bates numbered PF#07334

through 7842.

Dated: November, 17 2006

Respectfully submitted by:

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

By:~) ßl'LQ~-

NICOLE M. BIELA WSKl
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

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

..,

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 16 of 20

CERTIFICATE OF SERVICE

I, Nicole M. Bielawski, hereby certify that on this 1 ih day of

November, 2006, I

caused the foregoing Plaintiffs First Supplement to Responses to the United States' First

Request for Production to be served upon the United States of America by courier, to the

following:

David N. Geier
U.S. Deparent of Justice
Tax Division, Room 7919
555 Four Street, N.W.
Washington, D.C. 20001

Lw~lLQr~'

NICOLE M. BIELAWSKI
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-1101
Telephone: (202) 263-3452

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 17 of 20

EXHIBIT A-7

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 18 of 20

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CONSOLIDATED EDISON CaMP ANY
OF NEW YORK, INC. & SUBSIDIARIES,

Plaintiff,

v.

THE UNITED STATES OF AMERICA,

Defendant.

)
)
)
)
)
)
)
)
)
)

Case No.: 06-305 T

Hon. Maran Blan Horn

PLAINTIFF'S SECOND SUPPLEMENT TO RESPONSES TO

UNITED STATES' FIRST REOUEST FOR PRODUCTION

Pursuat to Rule of

Court of

Federal Claims (URCFC") 34, Plaintiff, Consolidated

Edison Company of

New York, Inc. & Subsidiares ("Con Edison"), provides the

following supplement to its Responses to the United States' First Request for Production.

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

Plaintiffs Responses to United States' First Request for Production.

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

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

FIRST SUPPLEMENTAL RESPONSE

REOUEST NO.1: All docuents identified, described, mentioned or referenced to in

your response to the Interrogatories served concurrently herewith.

RESPONSE: Con Edison produces, to

'the extent not previously produced in its

Rule 26(a) Disclosures and First Supplement thereofand its Response to the United

States' First Request for Production and First Supplement therf and to the extent not

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 19 of 20

privileged, the documents referenced in its responses to Intergatories No. I though 16.

These documents are bates numbered PF#07843 through 9624,

Dated: December 13, 2006

Respectfully submitted by:

THOMAS C. DURHAM
Attorney of Record
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, Ilinois 60606
Telephone: (3 i 2! 70 i - :~ 6 -1 .

By: I1L¿.l-t:/:.~'
NICÓLE M_ BIELAWSKI
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Wasington, D.C. 20006-1101
Telephone: (202) 263-3452

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

Case 1:06-cv-00305-MBH Document 22-5 Filed 04/04/2007 Page 20 of 20

CERTIFICATE OF SERVICE

I, Nicole M. Bielawski, hereby cerfy that on this 131b day of

Decembe, 2006, I

caused the foregoing Plaintiffs First Supplement to Responses to the United States' First

Request for Production to be sered upon the United States of America by courer, to the

following:

David N. Geier
U.S. Deparment of Justice
Tax Division, Room 7919
555 Fourh Street, N. W.
Washington, D.C. 20001

lg~~i/~(.

~I OLE M. BIELAWSKI
Mayer, Brown, Rowe & Maw LLP
1909 K Street, N.W.
Washington, D.C. 20006-ILOL
Telephone: (202) 263-3452