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Case 1:06-cv-00305-MBH Document 38 Filed 06/11/2007 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: June 11, 2007

The court held a status conference in the above-captioned case on June 6, 2007, with
the parties appearing by telephone. Defendant’s motion for a protective order was
PARTIALLY GRANTED in a bench ruling. After in camera review, the court identified
specific, limited, additional portions of the Appeals Settlement Guidelines for disclosure.
Furthermore, after in camera review, defendant’s first motion to compel was GRANTED in a
bench ruling. The court concluded that the plaintiff’s documents sought by defendant did not
meet the test of preparation in anticipation of litigation, and were not protected from disclosure
under the attorney work-product privilege. The tax risk letter, the tax change letter, and the
in-house memorandum at issue shall be disclosed to defendant. The court’s rationale for both
rulings is more fully developed in the transcript of the June 6, 2007 proceedings.

On June 7, 2007, the court received the parties’ Joint Stipulated Proposed Scheduling
Order. With the parties’ proposed input, the court establishes the following SCHEDULE. Fact
discovery shall close on or before Friday, August 31, 2007. Expert discovery shall close on
or before Friday, September 14, 2007. A joint stipulation of facts shall be filed on or before
Friday, August 31, 2007, with a supporting appendix, setting forth specific stipulations of
agreed upon facts with appropriate citations to documents in the appendix. 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 a Friday,
September 7, 2007, joint status report, the parties shall indicate whether either proposes
to file a motion for summary judgment. If either party indicates the appropriateness of a
motion for summary judgment, the court will schedule a status conference prior to any
motions being filed.

If all matters in this case are not settled or previously resolved, as previously
scheduled, the trial in the case will commence on Wednesday, October 17, 2007, at 9:00
a.m., and continue until all evidence is taken, in electronic courtroom 6, located on the fifth

Case 1:06-cv-00305-MBH Document 38 Filed 06/11/2007 Page 2 of 3

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 Wednesday, September 19, 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 previously have
agreed that overlapping witnesses who are to be called for both the plaintiff and the
defendant will be examined at one sitting.

b. Issues of Fact and Law. On or before Wednesday, September 19, 2007, the
parties shall file a joint statement of the issues of fact 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. As prescribed
above, a joint statement of issues of law shall be filed on or before Friday, August 31,
2007.

c. Stipulations. As prescribed above, on or before Friday, August 31, 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, even if motion practice is not indicated, in order to reduce the time required for
trial.

d. Joint Trial Exhibit List. On or before Wednesday, September 19, 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
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.

Case 1:06-cv-00305-MBH Document 38 Filed 06/11/2007 Page 3 of 3

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, two copies 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 also should be included in the bound volumes, if possible.

e. Deposition Testimony. On or before Wednesday, September 19, 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 SCHEDULES a pretrial conference for Wednesday, September 26, 2007
at 10:30 a.m. EDT (in lieu of the September 11, 2007 conference). 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 Tuesday,
September 25, 2007, at 12:00 p.m. EDT, 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. The RCFC Appendix A filings, and any other matters
preparatory for trial, will be discussed at the pretrial conference.

IT IS SO ORDERED.

s/ Marian Blank Horn
MARIAN BLANK HORN
Judge