You're viewing Docket Item 95.1 from the case CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES v. USA. View the full docket and case details.

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Case 1:06-cv-00305-MBH Document 95-2 Filed 01/11/2008 Page 1 of 3

REPLY EXHIBIT 1

Case 1:06-cv-00305-MBH Document 95-2 Filed 01/11/2008 Page 2 of 3

MAYER
BROWN
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ROW E
~_.__..-
& MAW

Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, New York 10019-5820

Main Tel (212) 506-2500
Main Fax (212) 262-1910
WN.mayemrownrowe.com

David F. Abbott
DirectTel (212) 506-2642
Direct Fax (212) 849-5642
dabbott (j mayerbro'Mrowe.com

August 2, 2007

David N. Geier
Joseph A. Sergi
Adam R_ Smar
U.S. Deparment of Justice
Tax Division
555 Fourth Street, N.W. Room 7919
Washington, D.C. 20001

Re: Consolidated Edison Companv of

& Subsidiares v. The United States. Docket No.
06-305 T

New York, Inc.

Dear David, Joe, and Adam:

This is in response to your e-mail of August 1 regarding the Consolidated Edison joint

defense arangements. The disclosed notes (PF300257) obviously constitute protected work
product since they were prepared in 2003, long after the IRS had made it clear that it intended to
litigate LILO issues. In fact the notes specifically refer to the IRS's intention to litigate LILO
cases. I would also point out that these notes do not contain any privileged legal advice; rather
they concern the statements of an IRS official and the reactions to those comments. Since these
notes are protected by work product, their production to you does not waive protection on any
other matcrial.

In addition, the production of these notes was inadvertent due to an apparent malfunction

in our database program. These notes, along with several other items, had been identified and
marked as protected audit/litigation preparation material in our database. Since the notes were
marked as audit/litigation material, they should have been excluded from the production request
made in the database. While the production request correctly excluded all other items tagged as
audit/litigation materal, these items were not excluded, even though they were properly tagged
in the database. These items are:

PF282289-90
PF300291

PF300259-70 (duplicates of

or documents similar to 300257-58)

Since these itcms were produced due to a malfunction in the database program, after they

had been properly marked as protected audit/litigation material, their production falls under the

Berlin Brussels Charlotte Chicago Cologne Frankfurt Hong Kong Houston London Los Angeles New York Palo Alto Paris Washington, D.C.

Mayer, Brown, Rowe & Maw LLP operates in combination with our associated English limited liability partnership in the offices listed above.

Case 1:06-cv-00305-MBH Document 95-2 Filed 01/11/2008 Page 3 of 3

Mayer, Brown, Rowe & Maw LLP

David N. Geier

Joseph A. Sergi
Adam R. Smar
August 2, 2007
Page 2

rules regarding inadvertent disclosure. See National Helium Corp. v. United States, 219 Ct. Cl.
612 (1979). This is paricularly tre given the large volume of material involved and the short
time frame for production. Accordingly, we request that you sequester this material and return it
to us.

Very truly yours,

~a~lid r2lbd+/~

David F. Abbott