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Case 1:06-cv-00305-MBH Document 83 Filed 11/15/2007 Page 1 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OF NEW YORK, INC &
SUBSIDIARIES,

CONSOLIDATED EDISON COMPANY )
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Defendant,

Plaintiff,

v.

UNITED STATES,

No. 06-305 T
Judge Marian Blank Horn

PLAINTIFF’S RCFC 52(c) MOTION SEEKING A

JUDGMENT ON PARTIAL FINDINGS, DISMISSING THE
GOVERNMENT’S SPOLIATION OF EVIDENCE CLAIM

Pursuant to RCFC 52(c), plaintiffs, Consolidated Edison Company of New York, Inc. &

Subsidiaries (“Con Edison”), respectfully submit this motion for judgment on partial findings

and dismissal of the government’s spoliation of evidence claim.

After the government confirmed that it has called its last fact witness in its case-in-chief,

including therefore its spoliation claim, Nov. 14 (Rough) Tr. at 85:7-20, Con Edison orally made

three motions for Judgment on Partial Findings (Nov. 14 (Rough) Tr. 85:22-25). Con Edison

presented these motions both to frame the actual issues in dispute and because of the

Government’s complete failure of proof with regard to its spoliation claim. Con Edison also

preserved its right to present a rebuttal case, if necessary, depending upon the Court’s ruling on

Con Edison’s motion for judgment pursuant to RCFC 52(c). The Court deferred the need for an

immediate decision regarding Con Edison’s potential rebuttal case (see Con Edison’s

memorandum regarding potential testimony from Luis E. Arritola, being filed

contemporaneously with this motion), and set a separate briefing schedule with respect to the

Case 1:06-cv-00305-MBH Document 83 Filed 11/15/2007 Page 2 of 3

Government’s spoliation contention.1 Con Edison’s substantive briefing in support of this

motion will be presented pursuant to the Court’s schedule. As instructed by the Court, we

present below only a brief statement of Plaintiffs’ three Rule 52(c) motions for the record.

First, we indicated that the first of Con Edison’s RCFC 52(c) motions was a request for a

complete statement of the government’s spoliation claim, which has not been presented to date.

In describing the anticipated contents of a brief the Government is required to file this morning

(November 15), the Court made clear that the Government was to provide such a statement,

including statements as to dates or the time period of the claimed spoliation, so we hope that this

issue will be resolved. Orally, the Government stated that its spoliation claim was based upon

only an assertion of destruction of emails along with any possible attachments, not any other

types of documents.

Second, Con Edison is entitled to judgment with respect to the Government’s spoliation

of evidence claim because the Government has failed in their burden of proof by failing to

provide evidence that a party in Con Edison’s position would have reasonably anticipated

litigation at the relevant time set forth in the stated claim resulting from First above. A party

only has a duty to preserve evidence, which is a necessary element of a spoliation claim, if it

could reasonably anticipate litigation. The evidence makes clear that Con Edison could not have

reasonably anticipated litigation until years after the November 2000 conclusion of the period

covered by the Government’s claim (as specified by Government counsel, Nov. 14 (Rough) Tr.

at 124:7-12). The Government principally has relied orally on a brief filed regarding a discovery

dispute filed in April 2007, and a subsequent declaration in support of that brief, to attempt to

1 The Government will file its initial brief by December 13, 2007, in which it will set forth

its spoliation evidence and legal argument. Con Edison’s response is due on January 3, 2008.
And the Government’s reply, if any, will be due January 11, 2008, with oral argument to be set
shortly after that date.

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Case 1:06-cv-00305-MBH Document 83 Filed 11/15/2007 Page 3 of 3

support its assertion that Con Edison anticipated that this matter would be litigated in court. But

that reliance is misplaced and flawed in numerous respects, as we will demonstrate in the

appropriate briefing. As Con Edison did not reasonably anticipate litigation until well after

November 2000, the spoliation claim should be dismissed.

Third, Con Edison is entitled to judgment with respect to the Government’s spoliation

claim because the Government failed in their burden of proof by failing to elicit any testimony—

or provide any other evidence—showing that any electronic communications purportedly lost

would have been favorable to the Government and therefore any such destruction caused harm or

prejudice to the Government’s ability to present its case. Putting aside (for a moment) the fact

that the Government has failed to establish that relevant documents were lost, it is required to

demonstrate that any purported loss of electronic documents (which are the subject of the claim)

harmed its ability to present its case in a specific manner. The Government failed to elicit any

testimony to provide a foundation for this element of its claim. As there is a complete failure of

proof on this issue, the spoliation of evidence claim should be dismissed.

For the reasons identified above, and for the reasons to be provided pursuant to the

briefing schedule established by the Court, we respectfully ask that the government’s spoliation

of evidence claim be dismissed.

Respectfully submitted,

s/ David F. Abbott
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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

November 15, 2007

Counsel for Plaintiff

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