Pacific Gas & Electric Co. v. United States

82 Fed. Cl. 474, 2008 U.S. Claims LEXIS 197
CourtUnited States Court of Federal Claims
DecidedJune 27, 2008
DocketNos. 04-74C, 04-75C
StatusPublished
Cited by19 cases

This text of 82 Fed. Cl. 474 (Pacific Gas & Electric Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacific Gas & Electric Co. v. United States, 82 Fed. Cl. 474, 2008 U.S. Claims LEXIS 197 (uscfc 2008).

Opinion

ORDER

HEWITT, Judge.

I. Background

This proceeding regarding sanctions or remedies arises from plaintiffs counsel’s failure to comply with an order of this court. The court’s order of May 14, 2006, Pacific Gas & Electric Co. v. United States, No. 04-74C, 2006 U.S. Claims LEXIS 418, at *1 (Fed.Cl. May 14, 2006) (Order Amending Protective Order), arose out of the substantive litigation in which plaintiff Pacific Gas & Electric Company (PG & E or plaintiff) filed two suits against the federal government (government or United States or defendant) for partial breach of contracts for the disposal of spent nuclear fuel (SNF) and/or high-level radioactive waste generated at plaintiffs nuclear electric utilities.1 Case No. 04-[476]*47674C, Plaintiffs Complaint, Jan. 22, 2004, 1 (Complaint or Compl.); Case No. 04-75C, Plaintiffs Complaint, Jan. 22, 2004, 1. The complaints in the two proceedings were substantially identical. Compare Case No. 04-74C, Plaintiffs Complaint with Case No. 04-75C, Plaintiffs Complaint. The cases were consolidated by court order on April 12, 2005. Order of Apr. 12, 2005, 1. References to the “Complaint” in this Order are to the complaint filed in ease number 04-74C. The court granted defendant’s motion for summary judgment with respect to two of the three counts that plaintiff had alleged in its Complaint. Pac. Gas & Elec. Co. v. United States (PG & E Summary Judgment Decision), 70 Fed.Cl. 766, 782 (2006). With respect to the remaining count, the court held a trial and issued its opinion on October 13, 2006. Pac. Gas & Elec. Co. v. United States (PG & E Trial Opinion), 73 Fed.Cl. 333 (2006). The court held that plaintiff was entitled to $42,765,453 in damages due to the government’s partial breach of its contracts. Id. at 432.

On April 21, 2005, during discovery in this case, the court issued a protective order governing the disclosure of protected material. See Protective Order, Docket No. 31, Apr. 21, 2005 (Protective Order). The Protective Order allowed confidential material to be used “solely for the purpose of conducting litigation in the SNF cases pending in the United States Court of Federal Claims.” Id. at 2. During discovery, plaintiff filed a motion to compel the production of documents that defendant had withheld based upon assertions of the deliberative process privilege by the Department of Energy and the Nuclear Regulatory Commission. Defendant’s Motion to Enforce the Terms of the Protective Order, As Amended by the Court’s Order Dated May 14, 2006 (Motion to Enforce or Defi’s Mot.) 2; see Pacific Gas & Electric Company’s Motion to Compel Discovery and Request for Expedited Hearing, Docket No. 37, Aug. 25, 2005. After reviewing those documents in camera, the court ordered the government to produce certain documents because plaintiffs need for the documents outweighed defendant’s concerns about disclosure. Pac. Gas & Elec. Co. v. United States (PG & E Order to Compel), 71 Fed.Cl. 205, 214-16 (2006). In that order, the court discussed some of the documents over which defendant had claimed privilege, using those documents as examples to identify the type of documents that defendant should produce. Id. at 211-16. The court provided this guidance “for the purpose of permitting the parties to analogize these examples to disputed documents not mentioned in this Order and thereby to resolve any further discovery disputes involving the deliberative process privilege that may arise.” Id. at 210. To the extent that the parties could not agree with regard to any of the remaining documents withheld under that privilege, the court stated that “plaintiff ... may ... move the court to compel production of any of the documents described in the affidavits, based on ‘a showing of evidentiary need ... that outweighs the harm that disclosure of such information may cause to defendant.’” Id. (citation omitted).

On May 11, 2006, plaintiff filed a new motion to compel defendant to produce the documents over which defendant continued to assert the deliberative process privilege. Pacific Gas & Electric’s Second Motion to Compel the Production of Documents Withheld Under the “Deliberative Process” Privilege (PG & E’s Second Motion to Compel), Docket No. 231, May 11, 2006. After further review of documents in camera, the court granted plaintiffs motion in part, holding that defendant must produce some of the documents in question but that defendant had rightly asserted the deliberative process privilege over others. Order Amending Protective Order, U.S. Claims LEXIS 418, at *13-14. In its Order Amending Protective Order, the court amended the Protective Order entered in the case to limit distribution and use of the documents. Id. at *5 n. 3. Specifically, the court stated:

Every document ordered to be produced by this Order shall be subject to the protective order issued by the Court on April [477]*47721, 2005. However, for the purposes of this Order, the Court AMENDS the Protective Order to limit the disclosure and/or use of all documents mentioned in this Order to the attorneys for the plaintiffs in this litigation only, rather than, as stated in the Protective Order, the “attorneys for plaintiffs in the spent nuclear fuel cases.”

Id. (emphasis in original). The Order Amending Protective Order therefore limited the use of the documents to “this litigation only,” that is, the PG & E consolidated cases. Id. In response to this order, the government produced 211 documents. Def.’s Mot. 6. Plaintiff added some of those documents to its exhibit list, but it did not seek admission of any of them at trial. Id. After the trial in this case concluded, the court issued its opinion and entered final judgment on October 13, 2006. PG & E Trial Opinion, 73 Fed.Cl. at 333. On December 22, 2006, the court denied plaintiffs motion for reconsideration. Pac. Gas & Elec. Co. v. United States (PG & E Denial of Reconsideration), 74 Fed.Cl. 779, 785 (2006). Plaintiff and defendant filed an appeal and cross-appeal, respectively, which are currently pending before the Court of Appeals for the Federal Circuit. Notice of Appeal, No. 04-74C (Fed.Cl. Jan. 18, 2007); Notice of Cross-Appeal, No. 04-74C (Feb. 20,2007).

Plaintiffs counsel in this ease also serves as counsel for Dairyland Power Cooperative (Dairyland), plaintiff in one of the approximately sixty-six other SNF cases, Dairyland Power Cooperative v. United States (Dairyland), No. 04-106C (Fed.Cl.). On January 18, 2007, plaintiffs counsel, acting as counsel to Dairyland, filed a motion to compel on behalf of Dairyland. Dairyland’s Motion to Compel Documents Withheld Under the “Deliberative Process” and Attorney-Client Privileges, Dairyland, No. 04-106C (Fed.Cl. Jan. 18, 2007) (Dairyland’s Motion). In Dairy-land’s Motion, plaintiffs counsel sought some of the same documents subject to the deliberative process privilege that this court had ordered produced in this case subject, however, to its Order Amending Protective Order. Compare Order Amending Protective Order with Dairyland’s Motion. The government opposed Dairyland’s Motion. See Defendant’s Response to Plaintiffs Motion to Compel Discovery and Motion for a Protective Order, Dairyland No. 04-106C (Fed.Cl. Jan. 18, 2007) (Dairyland Def.’s Resp.).

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Bluebook (online)
82 Fed. Cl. 474, 2008 U.S. Claims LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacific-gas-electric-co-v-united-states-uscfc-2008.