You're viewing Docket Item 73 from the case CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES v. USA. View the full docket and case details.

Download this document:




Case 1:06-cv-00305-MBH Document 73 Filed 11/05/2007 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OF NEW YORK, INC &
SUBSIDIARIES,

CONSOLIDATED EDISON COMPANY )
)
)
)
)
)
)
)
)
)
)

UNITED STATES,

Defendant,

Plaintiff,

v.

No. 06-305 T
Judge Marian Blank Horn

PLAINTIFF’S MOTION FOR LEAVE TO SUBMIT ITS MEMORANDUM

REGARDING PROBABLE EVIDENTIARY DISPUTES THAT WILL ARISE WITH

RESPECT TO THE GOVERNMENT’S SPOLIATION OF EVIDENCE CLAIM

Plaintiffs, Consolidated Edison Company of New York, Inc. & Subsidiaries (“Con Ed”),

respectfully submit this motion for leave to file a memorandum regarding evidentiary disputes

that are likely to arise with respect to the government’s spoliation of evidence claim. That

memorandum, which (per usual practice) is being attached to this submission, relates to issues

that Con Ed expects will be raised during government counsel’s anticipated examination of Mr.

Andrew Scher, which is scheduled to begin later this week (on either Wednesday or Thursday

November 7-8).

Mr. Scher is an in-house, Con Ed attorney who is being called as a witness by the

government during defendant’s case-in-chief. In the attached memorandum, Con Ed

demonstrates that the government cannot lay a proper foundation for several of its anticipated

inquiries during Mr. Scher’s testimony—and/or that those inquiries are irrelevant. Although

plaintiff could appropriately present its evidentiary objections when irrelevant questions or

questions lacking proper foundation are posed by government counsel, Con Ed respectfully

submits that judicial efficiency will be enhanced if plaintiff is permitted to provide notice and a

Case 1:06-cv-00305-MBH Document 73 Filed 11/05/2007 Page 2 of 2

brief discussion of these issues to the Court prior to Mr. Scher’s testimony. Submission and

consideration of the attached brief will permit sufficient consideration of the legal issues

presented by the government’s anticipated inquiry, and of the objections Con Ed will present.

Among other issues, Con Ed demonstrates in the attached memorandum that the

government’s spoliation claim, as it has been described to date, is inconsistent with an important,

prior ruling of this Court regarding application of the “work product doctrine” to several Con Ed

documents. Per the Court’s June 6, 2007 order, those documents were produced during

discovery. That ruling—and its underlying findings and rationale—is now “law of the case,” and

defense counsel should not be permitted to probe areas that are foreclosed by the Court’s

previous findings.

Because judicial efficiency will be promoted by full consideration of the issues addressed

in the attached memorandum prior to the beginning of Mr. Scher’s testimony, we respectfully

ask that the Court accept this submission at this time.

Respectfully submitted,

s/ David F. Abbott
___________________________________
DAVID F. ABBOTT
MAYER BROWN LLP
1675 Broadway
New York, NY 10019-5820
Tel (during trial): (202) 280-2421
Fax (during trial): (202) 347-0404

Of Counsel:

MARCIA G. MADSEN
LUKE LEVASSEUR
MAYER BROWN LLP
Washington, D.C.
Counsel for Plaintiff
November 5, 2007

-2-