Silver State Solar Power South, LLC v. United States

• Court: United States Court of Federal Claims
• Decided: October 19, 2020
• Docket: 18-266
• Status: Unpublished

Opinion

In the United States Court of Federal Claims No. 18-266T Filed: October 19, 2020 1

SILVER STATE SOLAR POWER SOUTH, LLC, Plaintiff, v.

THE UNITED STATES, Defendant.

ORDER TAPP, Judge. On June 5, 2020, the United States filed a Motion in Limine (Def.’s Mot. in. Lim., ECF No. 51) seeking to exclude various portions in 13 of the 16 declarations used as appendices to Silver State’s opposition to the United States’ Motion for Summary Judgment (Pl.’s Resp. Summ. J., ECF No. 46). For the reasons stated below, United States’ Motion is GRANTED-IN- PART and DENIED-IN-PART. The United States objects to Silver State’s reliance on fact witness testimony presented in declarations submitted with its opposition to the United States’ motion for partial summary judgment. See RCFC 56(c)(2) (providing that, in response to summary judgment briefing, “[a] party may object that material cited to support . . . a fact cannot be presented in a form that would be admissible in evidence”). The purpose of a motion in limine is to “to prevent a party before trial from encumbering the record with irrelevant, immaterial or cumulative matters. Such a motion enables a court to rule in advance on the admissibility of documentary or testimonial evidence and thus expedite and render efficient a subsequent trial.” INSLAW, Inc. v. United States, 35 Fed. Cl. 295, 302–03 (1996); see also Dairyland Power Coop. v. United States, 123 Fed. Cl. 220, 222 (2015). The United States asserts that Silver State’s declarations contain statements which purport to offer expert opinion by a lay witness, as well as statements that purport to explain, analyze, or decide legal concepts. The Court will address those arguments in turn.

1 This Order was originally filed under seal on September 18, 2020, (ECF No. 54). The Court provided parties the opportunity to review this opinion for any proprietary, confidential, or other protected information and submit proposed redactions no later than October 19, 2020. The Joint Status Report of October 19, 2020 (ECF No. 56), indicates that the parties propose no redactions. Thus, the sealed and public versions of this Order are identical, except for the publication date and this footnote. I. Acceptable testimony under Federal Rule of Evidence 701 The United States repeatedly objects to statements of lay witnesses based on perceptions gathered in the course of their business. The jurisprudence concerning lay witness testimony offered by employees within a particular industry warrants a more comprehensive discussion. Generally, Federal Rules of Evidence (Fed. R. Evid.) 701 and 702 govern the admissibility of opinion testimony offered by lay witnesses and expert witnesses respectively. While the line between lay witness opinion testimony and expert witness testimony is not always clear, drawing such a distinction is vital in ensuring disclosure requirements are properly applied. The United States’ arguments relate specifically to witnesses who are offering expert opinion as lay witnesses. Rule 701 provides: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on a witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Fed. R. Evid. 701. If a witness’s testimony fails to meet any one of the three foundational requirements, it is inadmissible. See id. In contrast, Rule 702, which governs the requirements of expert testimony, states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. In United States v. Henderson, the 11th Circuit held that the “essential difference” between expert and lay opinion witnesses is the expert's ability to answer hypothetical questions. 409 F.3d 1293, 1300 (11th Cir. 2005) (internal alteration, quotation marks, and citation omitted). “The burden is on the proponent to provide adequate foundation for the testimony.” United States v. Freeman, 730 F.3d 590, 595–96 (6th Cir. 2013) (citing United States v. Grinage, 390 F.3d 746, 749 (2d Cir. 2004)). Thus, many declarations are constrained by the requirements of Rule 701—that a lay witness is only permitted to give their opinion or interpretation of an event when they have some personal knowledge of that incident. The objective of such testimony

2 is to put “the trier of fact in possession of an accurate reproduction of the event.” Id. at 595 (quoting Advisory Committee Notes to Fed. R. Evid. 701). Said differently, lay opinion testimony is permitted under Rule 701 because it has the effect of describing something that the fact finder could not otherwise experience for themselves by drawing upon the witness’s sensory and experiential observations that were made as a first-hand witness to a particular event. Id. at 597 (quoting United States v. Jayyousi, 657 F.3d 1085, 1120 (11th Cir. 2011) (Barkett, J., concurring in part and dissenting in part)). This recognizes the reality that “eyewitnesses sometimes find it difficult to describe the appearance or relationship of persons, the atmosphere of a place, or the value of an object by reference only to objective facts.” United States v. Garcia, 413 F.3d 201, 211 (2d Cir. 2005). Accordingly, Rule 701 permits witnesses “to testify to their personal perceptions in the form of inferences or conclusory opinions.” Id. (citing Advisory Committee Notes on 1972 Proposed Rules and on 2000 Amendments and 4 Weinstein's Federal Evidence § 701.03[4][b]). The 2000 Advisory Committee Notes to Rule 701 state: “[T]he distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.’” (internal citation omitted). Sometimes, lay witness testimony about specialized matters may display the hallmarks of testimony normally offered by experts. This issue has been addressed in other cases before this Court. For instance, DataMill, Inc. v. United States, 91 Fed. Cl. 722 (2010), involved testimony by lay witnesses gained through their day-to-day experiences in the field. There, the Court concluded: The general application of Rule 701 indicates that a lay witness may testify about facts within his or her range of generalized knowledge, experience, and perception.” The opinion “must have a rational connection to those facts.” Where the testimony is based upon personal knowledge of the facts underlying the opinion and the opinion is rationally related to the facts, a lay witness may, “under certain circumstances[,] express an opinion even on matters appropriate for expert testimony. 91 Fed. Cl. at 736 (internal citations omitted). The statements at issue here elicit the declarants’ personal observations based upon their experience within the solar power development industry. This type of lay testimony is permissible under Rule 701. The fact that a witness has specialized knowledge does not necessarily preclude the witness from testifying under Rule 701, but the testimony must not be “rooted exclusively in [the witness’s] expertise . . .” Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171, 181 (2d Cir. 2004) (excluding testimony of an employee assigned to investigate defendant when the testimony reflected the employee's specialized knowledge in international banking rather than knowledge gained in the course of his investigatory work); Teen–Ed, Inc. v. Kimball Int’l, 620 F.2d 399, 402–03 (3d Cir. 1980) (explaining “[t]he fact that [the witness] might have been able to qualify as an expert witness on the use of accepted accounting principles in the calculation of business losses should not have prevented his testifying on the basis of his knowledge of appellant’s records about how lost profits could be calculated from the data contained therein”). The Federal Circuit, in Union Pacific Resources Co. v. Chesapeake Energy Corp., recognized that lay opinion testimony based upon extensive experience in an industry is admissible under Rule 701 and permitted eight witnesses with experience in the drilling industry

3 to testify based on their own personal experiences as employees of major oil drilling companies. 236 F.3d 684, 693 (Fed. Cir. 2001); see also Farner v. Paccar, Inc., 562 F.2d 518, 529 (8th Cir. 1977). More recently, in RP1 Fuel Cell, LLC v. United States, 120 Fed. Cl. 288 (2015), the Court ruled that the testimony of lay witnesses for companies seeking investment tax credit grants for equipment associated with fuel cell power plants was admissible, since witnesses did not testify outside of the range of their personal knowledge and work experience as employees and owner of companies. RP1 Fuel Cell discusses the multitude of other cases within the Court of Federal Claims that analyzed the same issue, including DataMill: In Global Computer Enterprises, Inc. v. United States, a decision by the United States Court of Federal Claims, the court discussed whether or not lay witness opinion testimony “‘from individuals with decades of experience’” working in information technology would be acceptable. See Global Computer Enter., Inc. v. United States, 88 Fed. Cl. at 65. The judge concluded that, “[a]s the Federal Circuit recognized in Union Pacific Resources Co., lay opinion testimony based upon extensive experience in an industry is admissible under Rule 701.” Id. at 67 (citing Union Pac. Res. Co. v. Chesapeake Energy Corp., 236 F.3d at 693). The Global Computer Enterprises court allowed lay opinion testimony from the experienced professionals, noting that “[a]ll of the proffered opinions . . . are based upon circumstances they have observed or encountered within the industry and reflect a general knowledge of their work.” Id. In BPLW Architects & Engineers v. United States, another judge of this court reiterated that a lay witness can testify on his or her “perception,” as long as it is connected to their personal knowledge. See BPLW Architects & Eng’rs, Inc. v. United States, 106 Fed. Cl. 521, 545 (2012) (citing DataMill, Inc. v. United States, 91 Fed. Cl. at 734; and 1 McCormick on Evidence § 10 (6th ed. 2006) (“[A] witness may testify to an event or occurrence that he has seen himself, but not one that he knows only from the description of others.”)). 120 Fed. Cl. at 319. Here, both parties cite RP1 Fuel Cell but disagree as to its implication. The United States argues that lay witnesses (versus expert witnesses) are not permitted to rely on specialized knowledge or offer testimony that touch on “specialized topics” such as “valuation, identification of intangible assets, power purchase agreements, EPC agreements, accounting methods, and renewable energy transactions.” (Def.’s Mot. in. Lim. at 4). In addition, the United States distinguishes RP1 Fuel Cell from this case, noting that RPI Fuel Cell involved a post-trial challenge to lay witness testimony, where the lay witnesses’ testimony already had been admitted into the record at trial and opposing counsel had the opportunity to object to the live testimony. (Def.’s Rep. at 11, citing RP1 Fuel Cell at 290–91). The Court finds that this distinction immaterial. As Silver State correctly observes, RP1 Fuel Cell indicates that the industry-based testimony of Plaintiff’s fact witnesses is permissible under Rule 701. In coming to the same conclusion as RP1 Fuel Cell, the Court follows the numerous other jurisdictions that have reached the same conclusion. See, e.g., Merritt Hawkins & Assocs., L.L.C. v. Gresham, 861 F.3d 143 (5th Cir. 2017) (holding lower court did not abuse its discretion by 4 allowing company president to testify as lay witness regarding training expenses since training expenses for employees was routine matter within witness's personal knowledge as company president); Accurso v. Infra-Red Servs., Inc., 169 F. Supp. 3d 612 (E.D. Pa. 2016) (holding lay opinion of employer’s officer regarding former employee’s damages was admissible; testimony was based on officer’s perception, would be susceptible to cross-examination, and officer had 35 years of experience in industry); Craig Outdoor Advert., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001 (8th Cir. 2008) (holding testimony of railroad employee regarding his understanding of relationship between railroad and its site leasing agent was relevant, and thus admissible since employee had personal knowledge of railroad billboard industry, his testimony was helpful to understanding of facts and issues in case, and testimony did not involve specialized scientific or technical knowledge); United States v. Munoz-Franco, 487 F.3d 25 (1st Cir. 2007) (holding bank officers did not testify beyond scope of personal knowledge by expressing lay opinion based on knowledge of business operations and practices acquired during employment).

II. Legal Conclusions and Opinions, Hearsay, and Foundation

Under Rule 704, witnesses are expressly permitted to offer their opinions on ultimate issues. However, no witness, whether a fact or expert witness, is permitted to offer his or her own legal interpretation because it usurps the province of the Court to determine the law. See Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1212 (D.C. Cir. 1997) (“Expert testimony that consists of legal conclusions cannot properly assist the trier of fact in either respect, and thus it is not ‘otherwise admissible.’” (internal citation omitted)); Sparton Corp. v. United States, 77 Fed. Cl. 1, 6 (2007) (“Plaintiff is not entitled to present its legal arguments from the witness stand in the guise of expert testimony and the weight of authority recommends exclusion of the testimony under these circumstances.”). Matters of law are ultimately reserved for the Court. As such, any statement purporting to explain, analyze, or decide legal concepts, which are matters for the Court to decide, must be excluded.

Hearsay, which “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Fed. R. Evid. 801(c), is not admissible unless an exception applies. Fed. R. Evid. 802; see also Fed. R. Evid. 803-804 (enumerating hearsay exceptions). Ultimately, statements not based upon a declarant’s personal knowledge or contain hearsay are not admissible. See, e.g., Vesom v. Atchison Hosp. Ass’n, 279 Fed. App’x 624, 632-34 (10th Cir. 2008) (affirming the district court’s determination to strike two affidavits because they were not based upon personal knowledge, contained inadmissible hearsay, or consisted of conclusory statements); Amie v. El Paso Indep. Sch. Dist., 253 Fed. App’x 447, 452 (5th Cir. 2007) (determining that the district court did not abuse its discretion by striking an individual’s affidavit that contained “no factual support for her personal knowledge”); cf. Ryco Constr., Inc. v. United States, 55 Fed. Cl. 184, 196 (2002) (striking portions of a declaration that contained legal conclusions but declining to strike portions pertaining to factual issues where the declarant had participated in discussions and made statements based upon personal knowledge). The Court will not consider statements based on hearsay unless it is readily apparent that an exception applies.

For testimony to be admissible, proper foundation must be laid as to the witness’s personal knowledge, observations, and experience. Pursuant to Rule 602, a witness may testify to

5 a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. Fed. R. Evid. 602. The Court will not consider statements which lack a factual foundation.

III. Rulings

1. Roger Bredder

Roger Bredder has been employed at First Solar, Inc. (“First Solar”) since April 2011. (Pl.’s Resp. Summ. J., Ex. A at 41). Bredder’s current title is Director, Business Origination Eastern United States; during the relevant time period for the Silver State Solar Power South (“SSSPS”) project, Bredder was Director, N.A. Business Development. (Id.). Responsibilities of that position include client coverage and sales, selling solar modules, buying and selling development assets, and selling EPC services. (Id.).

Statement Objection Ruling Rationale “SSSPS was not engaged Expert Opinion; Overruled. As to whether this in any business activities Legal Conclusion statement qualifies as an when we sold all of the expert opinion, this membership interests in statement was made by an SSSPS to NextEra in May employee based on 2014.” (Id. at 48). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“There was no way Foundation Overruled. As to the adequacy of NextEra would have paid foundation prior to this

6 hundreds of millions of statement, the Court finds dollars to First Solar unless that proper foundation has and until they got been laid as to Declarant’s appropriate value in return role in the subject . . ..” (Id. at 53). transaction or industry allowing this statement to be admissible.

“. . . the project company Legal Conclusion; Overruled. As to whether this was not engaged in any Expert Opinion. statement qualifies as an business activities.” . . . “A expert opinion, this business did not exist.” (Id. statement was made by an at 54). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“Plaintiff’s counsel has Legal Opinion, Overruled. This statement was made asked me to respond to the Expert Opinion by an employee based on question whether the perceptions from their purchase price for the course of business. Since project assets transferred employee had personal under the MIPSA was knowledge of this intentionally set at cost so industry, their statement is that any excess value in helpful to clear those assets was paid understanding of facts and under the EPC Agreement. issues presented in case The answer is no. As far as and does not involve

7 I know, the MIPSA specialized scientific or purchase price was always technical knowledge. As going to be set as a to whether this qualifies as reimbursement of our a legal conclusion, the development costs. This Court finds that this had been industry practice statement is based on the for many years.” (Id.). declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. However, the Court also finds that this statement requires an assessment of credibility of the declarant. Thus, while otherwise admissible, the Court will not consider its substance for purposes of summary judgment.

“I would add that it was Expert Opinion, Overruled. As to whether this very important, perhaps Foundation statement qualifies as an more so for NextEra, that expert opinion, this the two agreements reflect statement was made by an payment for the specific employee based on items being delivered and perceptions during their for the specific obligations course of business. Since being assumed.” (Id. at employee had personal 55). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to

8 be admissible. However, the Court also finds that this statement requires an assessment of credibility of the declarant. Thus, while otherwise admissible, the Court will not consider its substance for purposes of summary judgment.

“The buyer, on the other Expert Opinion, Overruled. As to whether this hand, would have a Foundation statement qualifies as an different view. They would expert opinion, this not be so much concerned statement was made by an about our costs, but employee based on making sure that what they perceptions during their were paying for, when course of business. Since they were actually paying employee had personal for it, had the value to knowledge of this them that was being industry, their statement is reflected in those helpful to clear schedules. From NextEra's understanding of facts and standpoint, they did not issues presented in case want to pay too much, too and does not involve soon and be exposed if specialized scientific or there was a default on the technical knowledge. As contract.” (Id. at 58–59). to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to be admissible.

“In my experience, the Expert Opinion; Overruled. As to whether this model was standard for a Foundation 2 statement qualifies as an self-developed project like expert opinion, this Silver State South – it is statement was made by an standard for First Solar and employee based on

2 This statement is listed twice in Defendant’s objections. Because it appears to be a scrivener’s error, the Court will address it once. 9 also in the industry.” (Id. perceptions during their at 60). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to be admissible.

“In the [Investment Tax Expert Opinion Overruled. This statement was made Credit] space, my by an employee based on understanding is the perceptions during their treatment of a project course of business based specific [Power Purchase on their personal Agreement] was fairly understanding. Since understood and settled.” employee had personal (Id. at 61). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I do not agree with the Expert Opinion Overruled. As to whether this suggestion that a PPA has statement qualifies as an separate value apart from expert opinion, this the power plant.” (Id. at statement was made by an 63). employee based on perceptions during their course of business. Since employee had personal knowledge of this

10 industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. Further, the Court finds that because this statement is applicable to the subject transaction as opposed to the industry, it will therefore be considered in that narrow sense.

“So I would not view the Expert Opinion Sustained. As to whether this PPA as having any statement qualifies as an material value when we expert opinion, this closed the sale of the statement describes project.” (Id. at 64). “material value” and therefore involves specialized scientific or technical knowledge which must be testified to by an expert witness.

2. Max Gardner

Max Gardner was employed at First Solar from 2010 through April 3, 2020 and involved in the negotiations and transactions with NextEra regarding Silver State. (Pl.’s Resp. Summ. J., Ex. B at 1–2). Most recently, Gardner’s title was Vice President of Financial Planning and Corporate Development, but Gardner was previously Manager of Project Finance, Director of Project Finance, and Vice President of Americas, Project Finance. (Id.).

Statement Objection Ruling Rationale “NextEra’s goal was to Foundation Sustained. As to the adequacy of achieve the lowest possible foundation prior to this prices under the MIPSA statement, the Court finds and the EPC Agreement that an adequate foundation and to shift risk under has not been laid allowing those contracts to First this statement to be Solar.” (Id. at 7). admissible. This declarant cannot testify to the goals or thoughts of a company he was not employed by.

11 “The EPC Agreement is a Legal Conclusion Sustained. As to whether this qualifies mixed supply and services as a legal conclusion, the contract.” (Id. at 9). Court finds that this statement, insomuch as it classifies types of contracts, purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“There is nothing Legal Conclusion, Sustained. As to whether this qualifies extraordinary about this Expert Opinion as a legal conclusion, the provision in the MIPSA . . . Court finds that this The EPC Agreement was statement, insomuch as it in fact signed on the classifies whether the closing date but this does MIPSA and EPC not mean that the MIPSA Agreement were part of a and the EPC Agreement single transaction, purports were part of a single to explain, analyze, or transaction.” (Id. at 10). decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“That is, no party other Expert Opinion Sustained. As to whether this than First Solar could have statement qualifies as an taken on the scope, risk, expert opinion, this and timing elements of the statement involves EPC Agreement.” (Id. at specialized scientific or 11). technical knowledge which must be testified to by an expert witness.

“The fact that the MIPSA Expert Opinion; Sustained. As to whether this qualifies included adjustment Legal Conclusion as a legal conclusion, the information relevant to the Court finds that this EPC Price does not, in my statement purports to view, make the two explain, analyze, or decide separate agreements a legal concepts which must single transaction.” (Id. at be determined by the Court 12). after consideration of all facts and evidence. Specifically, whether the

12 MIPSA and EPC Agreement were a part of a single transaction is an issue that must be decided by the Court. “The MIPSA and the EPC Legal Conclusion Sustained. As to whether this qualifies Agreement were separate as a legal conclusion, the contracts that had separate Court finds that this purposes and timing.” (Id.). statement purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence. Specifically, whether the MIPSA and EPC Agreement were a part of a single transaction is an issue that must be decided by the Court.

“A Project Model is a Expert Opinion Overruled. As to whether this common tool in the solar statement qualifies as an industry that is used to expert opinion, this objectively adjust the EPC statement was made by an Price after the parties have employee based on reached agreement on the perceptions during their EPC Price and the return course of business. Since (“internal rate of return” or employee had personal “IRR”) required by the knowledge of this industry, purchaser of the solar their statement is helpful to project.” (Id. at 14). clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“The acquisition was Legal Conclusion Sustained. As to whether this qualifies exempted, however, as a legal conclusion, the because substantially all of Court finds that this the assets held by SSSPS at statement attempts to apply the closing date and that or explain federal were being acquired were regulations and purports to exempt ‘unproductive real explain, analyze, or decide property’ pursuant to 16 legal concepts which must C.F.R. § 802.2(c).” (Id. at be determined by the Court

13 18). after consideration of all facts and evidence.

“The only amount that Expert Opinion Overruled. As to whether this NextEra paid on account of statement qualifies as an the PPA was the $84,857 expert opinion, this amount allocated to the statement was made by an PPA in Exhibit T to the employee based on MIPSA.” (Id. at 20). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“NextEra paid only Expert Opinion Overruled. As to whether this $84,857 on account of the statement qualifies as an PPA under the MIPSA, expert opinion, this which was the agreed-upon statement was made by an cost that the parties employee based on allocated to the PPA under perceptions during their Exhibit T to the MIPSA.” course of business. Since (Id. at 28). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“First Solar did not view Expert Opinion Overruled. As to whether this the PPA as an ‘above statement qualifies as an market’ contract.” (Id. at expert opinion, this 29). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts

14 and issues presented in case and does not involve specialized scientific or technical knowledge.

“As I testified in my Expert Opinion; Overruled. As to whether this deposition, the Legal Conclusion statement qualifies as an interconnection agreement expert opinion, this was not a source of statement was made by an revenue for the project. It employee based on represented an ongoing perceptions during their liability to the ultimate course of business. Since project owner (here, employee had personal NextEra).” (Id. at 32). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“The LGIA for Silver State Foundation; Expert Overruled. As to the adequacy of South had similar terms as Opinion; Legal foundation prior to this other interconnection Conclusion statement, the Court finds agreements entered into by that proper foundation has First Solar and other been laid as to Declarant’s developers during this role in the subject period.” (Id.). transaction or industry allowing this statement to be admissible. As to whether this statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee

15 had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

3. Jaime Scarff

Jaime Scarff has been employed at NextEra Energy Resources, LLC, and its predecessor, FPL Group (“NextEra”). (Pl.’s Resp. Summ. J., Ex. C at 276). Scarff is currently Director of Development—Mergers and Acquisitions Distributed Generation. (Id.). At the time of the Silver State Project, Scarff was Project Director, Business Development. (Id. at 277).

Statement Objection Ruling Rationale “The MIPSA and the EPC Foundation; Expert Overruled. As to the adequacy of Agreement were separately Opinion; Legal foundation prior to this negotiated and had separate Conclusion statement, the Court finds terms and conditions. They that proper foundation has were not intended to and been laid as to Declarant’s did not represent one role in the subject project sale transaction, as transaction or industry I understand the Defendant allowing this statement to is arguing. The two be admissible. As to agreements represent two whether this statement market contracts. They are qualifies as an expert the same types of opinion, this statement was agreements used in other made by an employee acquisitions undertaken by based on perceptions NextEra and that are during their course of common in wind and solar business. Since employee transactions.” (Id. at 280). had personal knowledge of this industry, their statement is helpful to clear understanding of facts and

16 issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“There was nothing unique Expert Opinion Overruled. As to whether this about this adjustment.” (Id. statement qualifies as an at 281). expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“The MIPSA purchase Legal Conclusion Overruled in As to whether this qualifies price and the EPC price part and as a legal conclusion, the were separately negotiated sustained in Court finds that the first and represented separate part. sentence is based on the pricing. The parties declarant’s opinion intended that the prices developed through the under the two contracts be regular course of business separately determined and and does not purport to there was no total pricing explain, analyze, or decide or combined pricing.” (Id.). legal concepts. However, the Court finds that the second sentence (“The parties intended that the prices under the two contracts be separately determined and there was

17 no total pricing or combined pricing”) purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“The Financial Model was Expert Opinion Overruled. As to whether this typical for solar energy statement qualifies as an projects like Silver State expert opinion, this South. There was nothing statement was made by an unique about the Financial employee based on Model that we used for perceptions during their Silver State South.” (Id. at course of business. Since 282). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“It is typical in transactions Expert Opinion Overruled. As to whether this like Silver State South . . .” statement qualifies as an (Id. at 283). expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I have been advised by Foundation; Expert Overruled. As to the adequacy of Plaintiff's counsel that the Opinion; Legal foundation prior to this Defendant has asserted that Conclusion statement, the Court finds the EPC price was that proper foundation has determined using the been laid as to Declarant’s

18 Financial Model. That was role in the subject not the case. The EPC transaction or industry price was separately and allowing this statement to independently negotiated be admissible. As to by our E&C group, namely whether this statement Mr. Brannen, and then qualifies as an expert presented to First Solar as opinion, this statement was our offer for their EPC made by an employee work. The EPC price was a based on perceptions negotiated number between during their course of the parties. Once the business. Since employee parties agreed to an EPC had personal knowledge of price, the Financial Model this industry, their was used to capture statement is helpful to clear assumptions underlying the understanding of facts and EPC price, and make issues presented in case adjustments to the EPC and does not involve price as we completed our specialized scientific or diligence and made technical knowledge. As to changes to the facility's whether this qualifies as a design, output and legal conclusion, the Court underlying assumptions. In finds that this statement is general, the adjustments based on the declarant’s under the Financial Model opinion developed through caused a reduction in the the regular course of EPC price. I would add business and does not that from NextEra's purport to explain, analyze, perspective, we were or decide legal concepts. interested in only one number in the Financial Model - the single cell that included the adjusted EPC price which was the amount we would have to pay to First Solar to build the power plant. For the avoidance of doubt, the Financial Model was not used to determine the EPC price as a function of a rate of return, but limited to determining EPC price adjustments as described above. We had our own internal model that calculated NextEra's return

19 information and was more relevant for our purposes than First Solar's Financial Model.” (Id. at 283–84).

“I also have been advised Expert Opinion Overruled in As to whether this that the Defendant has part and statement qualifies as an asserted that the Financial sustained in expert opinion, this Model reflected Silver part. statement was made by an State South's "use of both employee based on tangible and intangible perceptions during their assets." I am not sure what course of business. Since that even means. If the employee had personal suggestion is that the knowledge of this industry, Financial Model included their statement is helpful to revenues for power sold clear understanding of facts under the PPA, every and issues presented in financial model in the case and does not involve industry includes this same specialized scientific or information. The Financial technical knowledge. Model related to the power However, the portion plant that was to be built at stating, “every financial Silver State South and the model in the industry return generated by that includes this same plant. The purpose of the information,” involves Financial Model was not to specialized scientific or value the PPA or to reflect technical knowledge which the “use” of the PPA.” must be testified to by an (Id.). expert witness. As such, that portion will not be considered by the Court.

4. Gregory Schneck

Gregory Schneck has been employed by NextEra since 1998. (Pl.’s Resp. Summ. J., Ex. C at 587). Schneck’s current title is Vice President, Business Development Services; during the relevant transaction, Schneck was Vice President, Business Development, with responsibilities focused on developing solar energy properties. (Id. at 588).

Statement Objection Ruling Rationale “There was nothing Expert Opinion Overruled. As to whether this uncommon from my statement qualifies as an perspective about the expert opinion, this MIPSA and the EPC statement was made by an Agreement with respect to employee based on Silver State South.” (Id. at perceptions during their

20 591). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I understand from Expert Opinion. Overruled. As to whether this Plaintiff’s counsel that the statement qualifies as an Defendant has asserted that expert opinion, this the MIPSA and the EPC statement was made by an Agreement for Silver State employee based on South were really one perceptions during their transaction that transferred course of business. Since the Silver State South employee had personal project to NextEra. I knowledge of this industry, disagree with that their statement is helpful to characterization. I clear understanding of facts considered them to be two and issues presented in separate transactions for a case and does not involve number of reasons.” (Id. at specialized scientific or 592). technical knowledge. Based on the inapplicability of the specific objection, the statement is admissible. This ruling does not preclude objections made during the pendency of trial.

“The MIPSA is a common Expert Opinion Overruled. As to whether this transaction and the terms statement qualifies as an of the MIPSA transaction expert opinion, this in the case of Silver State statement was made by an South were consistent with employee based on other project acquisitions perceptions during their by NextEra- whether course of business. Since NextEra also hired the employee had personal seller of the project as its knowledge of this industry, EPC contractor (as was the their statement is helpful to case with Silver State clear understanding of facts South) or not.” (Id. at 593). and issues presented in

21 case and does not involve specialized scientific or technical knowledge.

“The reimbursement Expert Opinion Overruled. As to whether this method used in the MIPSA statement qualifies as an for Silver State South was expert opinion, this similar to other project sale statement was made by an transactions that I have employee based on worked on. This method perceptions during their was common.” (Id. at 594). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I understand that the Expert Opinion Overruled. As to whether this Defendant has pointed to statement qualifies as an the Project Financial expert opinion, this Model used to set the EPC statement was made by an Price as evidence that the employee based on MIPSA and EPC perceptions during their Agreement represented course of business. Since one, combined purchase employee had personal price for the project. I do knowledge of this industry, not agree that the Project their statement is helpful to Financial Model had this clear understanding of facts significance.” (Id. at 595). and issues presented in case and does not involve specialized scientific or technical knowledge.

“I also understand that the Legal Conclusion Overruled. As to whether this qualifies Defendant has asserted that as a legal conclusion, the the Renewable Power Court finds that this Purchase and Sale statement is based on the Agreement (“PPA”) declarant’s opinion between Southern developed through the California Edison regular course of business Company (“SCE”) and the and does not purport to project company should be explain, analyze, or decide treated as a separate legal concepts. Based on

22 intangible asset and that the inapplicability of the additional value should be specific objection, the assigned to it over and statement is admissible. above that assigned to it in This ruling does not the MIPSA. I disagree with preclude objections made the Defendant’s assertion during the pendency of for multiple reasons.” (Id. trial. at 596).

“In my experience, buyers Expert Opinion Overruled. As to whether this would pay what we paid statement qualifies as an for the bundle of safe expert opinion, this harbor modules, contracts, statement was made by an and permits that was employee based on transferred under the perceptions during their MIPSA.” (Id. at 597). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I disagree with this Expert Opinion Overruled. As to whether this assertion.” (Id.). statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“All projects have risks, Expert Opinion Overruled. As to whether this but Silver State South was statement qualifies as an more complicated than expert opinion, this most projects.” (Id. at 598). statement was made by an employee based on

23 perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“In order to mitigate this Foundation Overruled. As to the adequacy of risk, NextEra attempted to foundation prior to this shift the Section 1603 risk statement, the Court finds to First Solar, as the that proper foundation has developer of the project. been laid as to Declarant’s The Section 1603 risk was role in the subject similar to other risks transaction or industry associated with the Silver allowing this statement to State South project that the be admissible. parties negotiated and allocated between the owner and the developer/contractor. In this circumstance, First Solar agreed to accept a portion of the risk related to the Section 1603 grant – up to a $100 million cap – in the form of an indemnity. NextEra remained at risk for the remaining amounts of the grant for the project.” (Id. at 603).

“Tax indemnities are Expert Opinion Overruled. As to whether this typical in the renewable statement qualifies as an energy industry. The risk expert opinion, this allocation that the parties statement was made by an agreed upon in the Silver employee based on State South deal was not perceptions during their uncommon.” (Id.). course of business. Since employee had personal knowledge of this industry, their statement is helpful to

24 clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. 5. Garth Henderson

Garth Henderson has been employed as an accountant for NextEra since June of 2002. (Pl.’s Resp. Summ. J., Ex. B at 62).

Statement Objection Ruling Rationale “NextEra’s financial Expert Opinion; Overruled. As to whether this accounting books and Foundation statement qualifies as an records show that there is expert opinion, this not an excess of total statement was made by an consideration over the employee based on aggregate book value of perceptions during their the tangible and intangible course of business. Since assets purchased in employee had personal NextEra's acquisition of knowledge of this industry, Silver State South.” (Id. at their statement is helpful to 65) (emphasis in original). clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to be admissible.

“Applying ASC 805 and Expert Opinion Overruled. As to whether this the principles above, I statement qualifies as an concluded that NextEra' s expert opinion, this purchase of Silver State statement was made by an South was not a business employee based on combination because Silver perceptions during their State South was not a course of business. Since business as of May 23, employee had personal 2014, the date that the sale knowledge of this industry, of Silver State South their statement is helpful to closed. Specifically, at the clear understanding of facts

25 time of its acquisition on and issues presented in May 23, 2014, construction case and does not involve of the Silver State South specialized scientific or solar facility had not technical knowledge. started; Silver State South was not capable of providing a return or other economic benefits to NextEra and would not be capable of providing a return or other economic benefits until construction of the solar facility was completed (not for another two years until 2016); and neither NextEra nor any other market participant would be capable of conducting or managing the assets acquired from First Solar as a business as of the May 23, 2014 acquisition date. As a result of my conclusion that Silver State South was not acquired as a business, the Silver State South sale was accounted for as an acquisition of a bundle of assets under ASC 805-50, Business Combinations - Related Issues.” (Id. at 67– 68).

“The total consideration is Expert Opinion Overruled in As to whether this comprised of two amounts part and statement qualifies as an . . . For GAAP accounting sustained in expert opinion, the first purposes, contractual part. portion of the statement liabilities are treated as part was made by an employee of the total consideration based on perceptions under certain during their course of circumstances.” (Id. at 69– business. Since employee 70). had personal knowledge of this industry, their statement is helpful to clear understanding of facts and

26 issues presented in case and does not involve specialized scientific or technical knowledge. However, the Court finds that the second portion (“For GAAP accounting purposes, contractual liabilities are treated as part of the total consideration under certain circumstances.”) involves specialized scientific or technical knowledge which must be testified to by an expert witness. That portion of the statement will not be considered by the Court.

“ . . . Those assets include Expert Opinion; Overruled. As to whether this both the tangible and Legal Conclusion statement qualifies as an intangible assets acquired expert opinion, this in the acquisition but do statement was made by an not include any goodwill or employee based on going concern value.” (Id. perceptions during their at 70). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“The PPA did not meet the Expert Opinion Overruled. As to whether this

27 first criterion above statement qualifies as an because it was not expert opinion, this separable.” (Id. at 71). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“None of the total Expert Opinion; Overruled in As to whether this consideration was allocated Legal Conclusion part and statement qualifies as an to goodwill or going sustained in expert opinion, this concern value because part. statement was generally goodwill and going made by an employee concern value did not exist based on perceptions in the acquisition of Silver during their course of State South. As stated business. Since employee above, NextEra treated the had personal knowledge of acquisition of Silver State this industry, their South as the acquisition of statement is helpful to clear a bundle of assets. NextEra understanding of facts and did not treat the acquisition issues presented in case of Silver State South as a and does not involve business combination specialized scientific or involving the acquisition of technical knowledge. a business. Therefore, there However, the portion in the was no goodwill or going second sentence stating, concern value recorded or “or recordable,” involves recordable in NextEra's specialized scientific or financial accounting books technical knowledge which and records.” (Id. at 71– must be testified to by an 72). expert witness. As such, that portion will not be considered by the Court. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the

28 regular course of business and does not purport to explain, analyze, or decide legal concepts.

“NextEra’s financial Expert Opinion. Overruled. As to whether this accounting books and statement qualifies as an records reflect a bargain expert opinion, this purchase . . . There was no statement was made by an goodwill or going concern employee based on value reflected in perceptions during their NextEra’s financial course of business. Since accounting books or employee had personal records.” (Id. at 72). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Further, I am aware that Hearsay; Sustained. As to whether this Bill Brannen, who was Foundation; Expert statement constitutes NextEra’s lead negotiator Opinion inadmissible hearsay, the in the EPC negotiations, Court finds that this expressly disagreed with statement encompasses an this statement.” (Id. at 75). out-of-court statement and is offered to prove the truth of the matter asserted. Further, as to the adequacy of foundation prior to this statement, the Court finds that an adequate foundation has not been laid allowing this statement to be admissible.

“I have no reason to Hearsay; Expert Overruled. As to whether this disagree with Mr. Opinion statement constitutes Brannen’s testimony or his inadmissible hearsay, the analysis of the EPC Court finds that this is not Agreements for Silver offered to prove the truth State South and McCoy of the matter asserted. Solar.” (Id.).

6. William Brannen

29 William Brannen recently retired from NextEra after having been employed there since 1979. (Pl.’s Resp. Summ. J., Ex. A at 1). Brannen was the lead negotiator for NextEra on the Engineering, Procurement, and Construction Agreement (“EPC Agreement”). (Id.).

Statement Objection Ruling Rationale “Those Assets have limited Expert Opinion Overruled. As to whether this value without the statement qualifies as an construction of the expert opinion, this associated power plant.” statement was made by an (Id. at 6). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Thus the adjustment to the Expert Opinion Overruled. As to whether this MIPSA was consistent statement qualifies as an with the parties’ agreement expert opinion, this and is typical for a MIPSA statement was made by an transaction . . . It is typical employee based on for the mechanics of the perceptions during their adjustment here. . ..” (Id. at course of business. Since 12). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Few, if any, were able to Expert Opinion Overruled. As to whether this offer production guaranties statement qualifies as an like First Solar.” (Id. at expert opinion, this 13). statement was made by an employee based on perceptions during their course of business. Since employee had personal

30 knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“The fundamental Expert Opinion Overruled. As to whether this misconception in the statement qualifies as an Defendant’s view is that expert opinion, this once the development stage statement was made by an is complete, the EPC risks employee based on are minimal, and a project perceptions during their necessarily will get course of business. Since constructed. This view is a employee had personal gross mischaracterization. knowledge of this industry, The consequences (what their statement is helpful to can be lost) in the clear understanding of facts development stage are low and issues presented in - hundreds of thousands of case and does not involve dollars. The consequences specialized scientific or in the EPC stage are technical knowledge. hundreds of millions and maybe a billion dollars.” (Id. at 17).

“There is a well-known Expert Opinion Overruled. As to whether this risk management concept statement qualifies as an known as “Low expert opinion, this Probability, High Impact” statement was made by an or “LPHI” events that employee based on could happen. The perceptions during their allocation of risk course of business. Since associated with LPHI employee had personal events is one of the most knowledge of this industry, critical aspects of the their statement is helpful to negotiations with an EPC clear understanding of facts contractor. Any one of and issues presented in several possible case and does not involve occurrences presented specialized scientific or LPHI risks that could have technical knowledge. resulted in catastrophic cost and schedule impacts. These LPHI events can occur in the development

31 stage of the project, and their impact might result in termination of the project, but at a point where relatively little investment was at risk. Once the construction phase under the EPC Agreement begins, on the other hand, high-dollar commitments are at risk” (Id.).

“As an illustration, the Expert Opinion Overruled. As to whether this Defendant’s focus on the statement qualifies as an PPA as a separate asset of expert opinion, this extraordinary value ignores statement was made by an that the PPA cost about employee based on $85,000 – if the project perceptions during their does not get built, the course of business. Since developer or owner is out employee had personal $85,000. Compare that to knowledge of this industry, some of the examples that I their statement is helpful to highlighted in my clear understanding of facts deposition where NextEra and issues presented in ended up with a $60 case and does not involve million loss on a solar specialized scientific or thermal plant because of a technical knowledge. nine-month delay in construction. $85,000 versus $60 million brings some focus to the realities of development-stage risks versus the genuine EPC- stage risks.” (Id. at 17–18).

“In the EPC business, there Expert Opinion Sustained. As to whether this can be big swings, statement qualifies as an depending on what you expert opinion, this discover, even with statement testifies to the something that seems as EPC industry as a while straightforward as a PV and involves specialized solar facility.” (Id. at 20). scientific or technical knowledge which must be testified to by an expert witness.

32 “Labor is a serious factor Expert Opinion Overruled. As to whether this in the success or failure of statement qualifies as an a project . . ..” (Id.). expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Defendant’s ‘trade or Expert Opinion; Overruled. As to whether this business’ contention Legal Conclusion statement qualifies as an assumes that Silver State expert opinion, this South facility would statement was made by an necessarily be built when employee based on NextEra closed on the sale perceptions during their of the project company and course of business. Since the development assets.” employee had personal (Id. at 20–21). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“Moreover, ‘shovel ready’ Expert Opinion Overruled. As to whether this does not equate with the statement qualifies as an absence of risk. . ..” (Id. at expert opinion, this 21). statement was made by an employee based on

33 perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Second, the EPC Price Expert Opinion Overruled. As to whether this had to stand on its own and statement qualifies as an reflect standard terms and expert opinion, this conditions and market- statement was made by an based pricing.” (Id. at 22). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Third, the MIPSA and the Expert Opinion; Overruled. As to whether this EPC Agreement had Legal Conclusion statement qualifies as an independent substance . . expert opinion, this ..” (Id.). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s

34 opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. “Defendant appears to have Expert Opinion Overruled. As to whether this a fundamental statement qualifies as an misunderstanding of a expert opinion, this fixed price EPC statement was made by an Agreement.” (Id. at 23). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“This is a common Expert Opinion Overruled. As to whether this construction industry statement qualifies as an practice.” (Id. at 24). expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“ . . . This is the nature of a Expert Opinion; Overruled. As to whether this fixed price EPC Legal Conclusion statement qualifies as an Agreement.” (Id.) expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry,

35 their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“For this reason, the PPA Expert Opinion; Overruled. As to whether this contract itself involves a Legal Conclusion statement qualifies as an relatively low-risk expert opinion, this investment.” (Id. at 26). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“It is well known in the Foundation; Expert Overruled. As to the adequacy of industry that many of the Opinion; Hearsay foundation prior to this projects with those statement, the Court finds executed PPAs, at a very that proper foundation has high percentage, failed been laid as to Declarant’s

36 with no power ever being role in the subject generated or sold.” (Id.). transaction or industry allowing this statement to be admissible. As to whether this statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this statement constitutes inadmissible hearsay, the Court finds that this statement does not encompass an out-of-court statement and is not offered to prove the truth of the matter asserted.

“The EPC Price did not Expert Opinion; Sustained. As to whether this qualifies include any payout for the Legal Conclusion as a legal conclusion, the PPA – either stated or Court finds that this implied.” (Id.). statement purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence. Whether the EPC Price included payout for the PPA is a determination reserved for the Court.

“ . . . Mr. Henderson’s use Expert Opinion; Overruled. As to whether this of the McCoy Solar project Legal Conclusion statement qualifies as an . . . was not a valid market expert opinion, this reference . . .” (Id. at 27). statement was made by an

37 employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“There have been Foundation; Expert Overruled. As to the adequacy of numerous times, in my Opinion foundation prior to this experience, where the statement, the Court finds accountants’ that proper foundation has characterization of been laid as to Declarant’s transactions is different role in the subject than the realities of those transaction or industry transactions.” (Id. at 28). allowing this statement to be admissible. As to whether this statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

38 “. . . typically there is a Expert Opinion Overruled. As to whether this range of EPC prices.” (Id. statement qualifies as an at 29). expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Considering this Legal Conclusion; Sustained in As to whether this information, there is Expert Opinion part and statement qualifies as an independent confirmation overruled in expert opinion, this by qualified parties that the part. statement was made by an EPC Price was a market employee based on price for Silver State perceptions during their South. If the EPC Price for course of business. Since Silver State South was at employee had personal market for the EPC knowledge of this industry, services First Solar was their statement is helpful to providing under the EPC clear understanding of facts Agreement, it is not clear and issues presented in to me how anyone could case and does not involve contend that NextEra was specialized scientific or paying for something else technical knowledge. As to under that agreement, whether this qualifies as a namely some amount for legal conclusion, the Court an “above market” PPA finds that the first portion that was acquired under a of this statement is based separate contract.” (Id. at on the declarant’s opinion 30). developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. However, the Court finds that the latter portion of the second sentence (“. . . namely some amount for an “above market” PPA that was

39 acquired under a separate contract.”) purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence. This ruling does not preclude objections made during the pendency of trial.

“The Cash Grant Expert Opinion; Overruled. As to whether this Agreement in no way Legal Conclusion statement qualifies as an reflects a view by NextEra expert opinion, this that any part of the EPC statement was made by an Price was a payment for employee based on the PPA or any other perceptions during their intangible asset.” (Id. at course of business. Since 31). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

7. Beth Deane

Beth Deane is Chief Counsel, Project Development at First Solar and provided legal support for development of the Silver State Solar project. (Pl.’s Resp. Summ. J., Ex. A at 122).

Statement Objection Ruling Rationale “In other words, SSS could Legal Conclusion Overruled. As to whether this qualifies not claim to have a firm as a legal conclusion, the and contractually- Court finds that this recognized source of statement is based on the

40 revenue until declarant’s opinion [(Commercial Operation developed through the Date)] was achieved.” (Id. regular course of business at 124). and does not purport to explain, analyze, or decide legal concepts.

“Notwithstanding the Legal Conclusion; Sustained. As to whether this qualifies deadline for achieving Expert Opinion as a legal conclusion, the COD, the PPA required Court finds that this SSS to complete key statement purports to development and explain, analyze, or decide transmission-related legal concepts which must activities well in advance be determined by the Court of the COD deadline . . ..” after consideration of all (Id.). facts and evidence. This statement ultimately describes a document that speaks for itself. Contract interpretation is left to the discretion of the Court.

“Notwithstanding the COD Legal Conclusion Sustained. As to whether this qualifies deadline in the PPA, under as a legal conclusion, the Section 2.04(c)(v) of the Court finds that this PPA, SCE’s ‘Procurement statement purports to Group’ had the right to explain, analyze, or decide terminate the PPA if the SS legal concepts which must project was not energized be determined by the Court by December 31, 2016.” after consideration of all (Id.). facts and evidence. This statement ultimately describes a document that speaks for itself. Contract interpretation is left to the discretion of the Court.

“The rights of SCE’s Legal Conclusion Sustained. As to whether this qualifies Procurement Group to as a legal conclusion, the terminate the PPA were not Court finds that this affected by the obligations statement purports to of SCE’s Transmission explain, analyze, or decide group to deliver legal concepts which must transmission upgrades . . be determined by the Court ..” (Id.). after consideration of all facts and evidence. This

41 statement ultimately describes a document that speaks for itself. Contract interpretation is left to the discretion of the Court. “. . . SCE’s Transmission Expert Opinion; Sustained. As to whether this qualifies Group was only required to Legal Conclusion as a legal conclusion, the use ‘reasonable efforts’ to Court finds that this meet those deadlines; there statement purports to was no impact on SCE if explain, analyze, or decide the deadlines were missed legal concepts which must and no remedies for SSS if be determined by the Court SCE’s Transmission group after consideration of all failed to deliver the facts and evidence. This upgrades consistent with statement ultimately the estimated describes a document that interconnection schedule.” speaks for itself. Contract (Id. at 125). interpretation is left to the discretion of the Court.

“To be transformed into Legal Conclusion; Overruled. As to whether this qualifies actual revenue, various Expert Opinion as a legal conclusion, the risks that SSS did not Court finds that this control and that could have statement is based on the resulted in termination of declarant’s opinion the PPA, had to be developed through the eliminated. Only then regular course of business could SS become a revenue and does not purport to generating business.” (Id.). explain, analyze, or decide legal concepts. As to whether this statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

42 “In addition to fundamental Legal Conclusion; Sustained. As to whether this qualifies conditions, such as having Expert Opinion as a legal conclusion, the transmission facilities built Court finds that this to allow the plant to be statement purports to energized, the PPA also explain, analyze, or decide required the following legal concepts which must conditions be met to be determined by the Court achieve COD . . ..” (Id. at after consideration of all 126). facts and evidence. This statement ultimately describes a document that speaks for itself. Contract interpretation is left to the discretion of the Court.

“Beyond the requirements Expert Opinion; Sustained. As to whether this qualifies to achieve COD, the PPA Foundation; Legal as a legal conclusion, the imposed other conditions Conclusion Court finds that this on SSS before SSS could statement purports to become a revenue explain, analyze, or decide generating business. Most legal concepts which must notably, to lawfully make a be determined by the Court sale of energy at the after consideration of all negotiated price set forth in facts and evidence. This the PPA, SSS had to obtain statement ultimately approval from the [FERC] . describes a document that . . Any failure by SSS to speaks for itself. Contract comply with this obligation interpretation is left to the was an event of default discretion of the Court. under Section 6.01(c)(vii) of the PPA.” (Id.).

“In addition, there were Legal Conclusion Overruled in As to whether this qualifies other potential hurdles that part and as a legal conclusion, the had to be overcome before sustained in Court finds that the first SSS could become a part. statement statement is revenue generating based on the declarant’s business . . .. In other opinion developed through words, the business of the regular course of selling power under the business and does not SCE PPA did not become purport to explain, analyze, viable for SSS until it or decide legal concepts. obtained FERC’s approval However, the Court finds to sell power at ‘market- that the second statement based’ rates, as reflected by (“In other words, the the negotiated PPA rate.” business of selling power

43 (Id. at 127). under the SCE PPA did not become viable for SSS until it obtained FERC’s approval to sell power at ‘market-based’ rates, as reflected by the negotiated PPA rate.”) purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“Finally, with respect to Expert Opinion; Overruled. As to whether this evaluating the value of the Legal Conclusion statement qualifies as an PPA, it is important to expert opinion, this understand that PPAs are statement was made by an typically specific to the employee based on project site and electric perceptions during their generating facility course of business. Since described in detail in the employee had personal PPA.” (Id. at 128). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“That meant that the SSS Expert Opinion; Sustained. As to whether this qualifies PPA, like other SCE PPAs Legal Conclusion as a legal conclusion, the could not be transferred to Court finds that this another site or project or statement purports to sold to an entity that did explain, analyze, or decide not control the SSS site or legal concepts which must project . . .. [T]he PPA be determined by the Court would be have been after consideration of all

44 worthless.” (Id.). facts and evidence. This statement ultimately describes a document that speaks for itself. Contract interpretation is left to the discretion of the Court.

“Moreover, First Solar Expert Opinion; Overruled. As to whether this tested the provision in a Foundation statement qualifies as an typical SCE PPA that expert opinion, this restricts sellers from statement was made by an changing sites. In employee based on particular, First Solar had a perceptions during their favorable PPA for a site course of business. Since located on land to be leased employee had personal from a tribe in the knowledge of this industry, Southwestern United their statement is helpful to States. It turned out that the clear understanding of facts land was not suitable for and issues presented in construction of the project, case and does not involve due to hydrology and other specialized scientific or issues. In an effort to technical knowledge. As to preserve the PPA, First the adequacy of foundation Solar tried to move the prior to this statement, the project to an adjacent area Court finds that proper within the tribe's foundation has been laid as reservation, but was not to Declarant’s role in the successful in convincing subject transaction or SCE to change the site. industry allowing this First Solar allowed the statement to be admissible. PPA to be terminated because the site could not be changed to make the project viable.” (Id.).

8. Steven Robertson

Steven Robertson was employed at First Solar, having previously served as Tax Manager, Tax Director, and interim head of tax in the tax department before becoming Vice President, Tax. (Pl.’s Resp. Summ. J., Ex. C at 1). During Robertson’s tenure, Robertson’s responsibilities included aspects of tax compliance and tax accounting. (Id.).

Statement Objection Ruling Rationale “Parties responding to the Hearsay; Legal Overruled. As to whether this Section 1603 grant Conclusion statement constitutes program were uncertain inadmissible hearsay, the

45 regarding the IRS’s and Court finds that this Treasury’s intentions of the statement does not tax treatment of PPAs.” encompass an out-of-court (Id. at 4). statement and is not offered to prove the truth of the matter asserted. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“I did not view the Expert Opinion Overruled. As to whether this proposed Silver State statement qualifies as an South transactions to expert opinion, this involve the same fact statement was made by an pattern as the projects that employee based on had prompted NextEra’s perceptions during their concerns.” (Id.). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“First Solar was compelled Expert Opinion; Overruled. As to whether this by Treasury to follow this Hearsay statement qualifies as an approach because of the expert opinion, this positions Treasury was statement was made by an taking in this time period – employee based on whether First Solar agreed perceptions during their with those positions or not. course of business. Since Although First Solar was employee had personal disappointed with this knowledge of this industry, result, I believe that First their statement is helpful to Solar had done exactly clear understanding of facts what we were and issues presented in recommended to do by Ms. case and does not involve

46 Neubauer.” (Id. at 6). specialized scientific or technical knowledge. As to whether this statement constitutes inadmissible hearsay, the Court finds that this statement does not encompass an out-of-court statement and is not offered to prove the truth of the matter asserted.

“As my March 21, 2014 Expert Opinion; Overruled. As to whether this report to Mr. Widmar . . . Legal Conclusion statement qualifies as an indicates, KPMG’s expert opinion, this conclusion regarding the statement was made by an expected cost basis to employee based on calculate the Section 1603 perceptions during their grant for Silver State South course of business. Since came within the guidelines employee had personal that other tax practitioners knowledge of this industry, were seeing approved by their statement is helpful to the Treasury.” (Id.). clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“To my knowledge, no one Foundation Overruled. As to the adequacy of at First Solar ever took the foundation prior to this position or came to the statement, the Court finds conclusion that the Silver that proper foundation has State South PPA been laid as to Declarant’s represented a separate role in the subject intangible asset as a matter transaction or industry of tax law.” (Id. at 6–7). allowing this statement to be admissible.

47 “It was my understanding, Legal Conclusion Overruled. As to whether this qualifies the PPA was a market PPA as a legal conclusion, the when it was executed, and Court finds that this the pricing under the PPA statement is based on the was fixed. . . I did not declarant’s opinion agree with the suggestion developed through the that lowering construction regular course of business costs equates with and does not purport to intangible asset value explain, analyze, or decide attributable to a fixed-price legal concepts. PPA.” (Id. at 7).

“During my time at First Legal Conclusion; Sustained. As to whether this qualifies Solar, its position, in Expert Opinion as a legal conclusion, the general, was that Internal Court finds that this Revenue Code Section statement purports to 1060 did not apply to the explain, analyze, or decide sale by First Solar of legal concepts which must projects such as Silver be determined by the Court State South that had not after consideration of all started construction. facts and evidence. The Section 1060 applies only application of IRC 1060 to an “applicable asset and applicable asset acquisition,” which is acquisition must be defined as an acquisition of determined by the Court. a group of assets that constitutes a trade or business. A project like Silver State South that has not started construction is not a trade or business.” (Id.).

“I understand from Foundation; Overruled. As to the adequacy of Plaintiff's counsel that the Hearsay; Legal foundation prior to this Defendant continues to rely Conclusion statement, the Court finds upon certain statements in that proper foundation has the KPMG report as been laid as to Declarant’s evidence that First Solar role in the subject determined Section 1060 transaction or industry applies to the Silver State allowing this statement to South transactions with be admissible. As to NextEra.” (Id.). whether this statement constitutes inadmissible hearsay, the Court finds that this statement does not

48 encompass an out-of-court statement and is not offered to prove the truth of the matter asserted. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“From my perspective I Expert Opinion; Overruled. As to whether this wasn’t engaging KPMG to Legal Conclusion statement qualifies as an prepare a Section 1060 expert opinion, this analysis. Ms. Neubauer statement was made by an never mentioned Section employee based on 1060 in her correspondence perceptions during their with Mr. Nelson, and my course of business. Since view and Mr. Nelson’s employee had personal view was very clear that knowledge of this industry, Section 1060 could not their statement is helpful to apply to the Silver State clear understanding of facts South transaction or similar and issues presented in transactions.” (Id. at 8). case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. Based on the inapplicability of the specific objections, the statement is admissible. This ruling does not preclude objections made during the pendency of

49 trial.

“As I discussed in my Hearsay; Legal Overruled. As to whether this deposition, I advised Conclusion statement constitutes KPMG upfront that I did inadmissible hearsay, the not believe Section 1060 Court finds that this applied because Silver statement does not State South did not involve encompass an out-of-court the sale of a trade or statement and is not business.” (Id.). offered to prove the truth of the matter asserted. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. Based on the inapplicability of the specific objections, the statement is admissible. This ruling does not preclude objections made during the pendency of trial.

“Among other things, I Expert Opinion; Overruled. As to whether this noted that IRC Section Legal Conclusion statement qualifies as an 1060 did not apply to the expert opinion, this sale of the Silver State statement was made by an South project to NextEra . . employee based on ..” (Id.). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court

50 finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

9. Michael O’Sullivan

Michael O’Sullivan recently retired from NextEra after having been Senior Vice President of Development. (Pl.’s Resp. Summ. J., Ex. B at 151).

Statement Objection Ruling Rationale “Question: What did Foundation; Expert Overruled. As to the adequacy of Energy Resources pay for Opinion foundation prior to this the Silver State South statement, the Court finds project company and the that proper foundation has project assets held by the been laid as to Declarant’s project company? role in the subject transaction or industry Answer: Energy allowing this statement to Resources 3 paid be admissible. As to approximately $92 million. whether this statement This payment represented qualifies as an expert an amount roughly equal to opinion, this statement was costs and expenses made by an employee previously paid by First based on perceptions Solar to develop the project during their course of through the closing date.” business. Since employee (Id. at 153). had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Question: When Energy Expert Opinion; Overruled. As to whether this Resources acquired Silver Legal Conclusion statement qualifies as an State South, was the expert opinion, this

3 This particular declarant refers to NextEra Energy Resources, LLC as “Energy Resources.” The Court will continue to refer to this company and its subsidiaries collectively as “NextEra.” 51 project company engaged statement was made by an in any business activities? employee based on perceptions during their Answer: No. The project course of business. Since company was not engaged employee had personal in any business activities. knowledge of this industry, Any activity by the project their statement is helpful to company at this stage was clear understanding of facts pre-business, early and issues presented in development activity.” (Id. case and does not involve at 153–54). specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“When the project Expert Opinion; Overruled. As to whether this company was acquired, it Legal Conclusion statement qualifies as an was years away from expert opinion, this engaging in any active statement was made by an business.” (Id. at 154). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

52 “Question: Is there a Expert Opinion Overruled. As to whether this market for PPAs? statement qualifies as an expert opinion, this Answer: No. There is no statement was made by an market for PPAs as employee based on standalone perceptions during their documents/assets.” (Id.). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Question: Did Energy Foundation; Legal Overruled. As to the adequacy of Resources view the SCE Conclusion; Expert foundation prior to this PPA for Silver State South Opinion statement, the Court finds as an ‘above-market PPA’? that proper foundation has been laid as to Declarant’s Answer: No. The PPA was role in the subject competitively bid at the transaction or industry time and was the subject of allowing this statement to a bilateral negotiation be admissible. As to between First Solar’s whether this qualifies as a predecessor and SCE. legal conclusion, the Court After signing the PPA, finds that this statement is SCE presented the PPA for based on the declarant’s approval to the California opinion developed through Public Utilities the regular course of Commission (“CPUC”). business and does not The CPUC’s approval was purport to explain, analyze, required before SCE could or decide legal concepts. recover its costs from As to whether this ratepayers. The CPUC statement qualifies as an approved the PPA, expert opinion, this establishing that the PPA statement was made by an was not “above market.” employee based on (Id.). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts

53 and issues presented in case and does not involve specialized scientific or technical knowledge.

“Question: Did Energy Expert Opinion Overruled. As to whether this Resources pay a premium statement qualifies as an on account of the PPA (i.e., expert opinion, this a premium above the cost statement was made by an of negotiating the PPA)? employee based on perceptions during their Answer: No.” (Id.). course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Question: Did Energy Expert Opinion; Overruled. As to whether this Resources agree to pay any Legal Conclusion statement qualifies as an portion of the fixed price expert opinion, this under the EPC contract as a statement was made by an premium for the PPA or employee based on any of the development perceptions during their assets held by the project course of business. Since company? employee had personal knowledge of this industry, Answer: No.” (Id. at 154– their statement is helpful to 155). clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

54 “Question: Are PPAs Expert Opinion Overruled. As to whether this comparable? statement qualifies as an expert opinion, this Answer: No.” (Id. at 155). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

10. Daniel Nelson

Daniel Nelson was formerly Vice President, Tax and Trade, at First Solar, serving as the global head of tax and managing the company’s tax department. (Pl.’s Resp. Summ. J., Ex. B at 116).

Statement Objection Ruling Rationale “Section 1603 grants were Legal Conclusion Sustained. As to whether this qualifies provided in lieu of tax as a legal conclusion, the credits and was to follow Court finds that this the United States federal statement purports to income tax rules – in explain, analyze, or decide particular, the rules legal concepts which must applicable to the be determined by the Court investment tax credit after consideration of all ([ITC]).” (Id. at 118). facts and evidence. The application of Section 1603 and similar tax rules are reserved for determination by the Court.

“The ITC and tax basis Expert Opinion; Overruled in As to whether this rules were well-settled and Legal Conclusion; part and statement qualifies as an understood by tax Foundation sustained in expert opinion, this practitioners and industry part. statement was made by an participants. The employee based on administrators of the perceptions during their Section 1603 program at course of business. Since Treasury, on the other employee had personal hand, did not have tax knowledge of this industry,

55 expertise and, to my their statement is helpful to knowledge, did not utilize clear understanding of facts the IRS’s tax expertise. and issues presented in Treasury, instead, relied on case and does not involve advisers with little if any specialized scientific or background in relevant tax technical knowledge. As to matters.” (Id. at 119). whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing the first sentence of this statement to be admissible. However, as to the second sentence (“The administrators of the Section 1603 program at Treasury, on the other hand, did not have tax expertise and, to my knowledge, did not utilize the IRS’s tax expertise. Treasury, instead, relied on advisers with little if any background in relevant tax matters.”), the Court finds that an adequate foundation has not been laid allowing this statement to be admissible.

“During my time at First Expert Opinion Overruled. As to whether this Solar, there were a number statement qualifies as an of areas where Treasury expert opinion, this diverged from these well statement was made by an

56 settled and understood ITC employee based on and tax basis rules and perceptions during their developed their own course of business. Since internal views.” (Id.). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“One of the principal areas Expert Opinion; Overruled. As to whether this of divergence between the Legal Conclusion; statement qualifies as an Treasury administrators, on Foundation expert opinion, this the one hand, and the IRS statement was made by an and industry participants, employee based on on the other hand, involved perceptions during their the identification of course of business. Since intangible assets for United employee had personal States federal income tax knowledge of this industry, purposes and, specifically, their statement is helpful to whether a PPA was a clear understanding of facts separate intangible asset and issues presented in that was not eligible for the case and does not involve Section 1603 grant.” (Id.). specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to be admissible.

57 “Priv. Ltr. Rul. 201214007 Expert Opinion; Sustained. As to whether this qualifies was not remarkable to me Legal Conclusion; as a legal conclusion, the because it merely Foundation; Court finds that this confirmed what tax Hearsay statement purports to practitioners already explain, analyze, or decide understood based on well legal concepts which must settled and understood tax be determined by the Court principles, namely that after consideration of all location-specific real estate facts and evidence. Tax leases are not stand-alone principles and rulings intangibles but represent surrounding them are the value of the underlying within the purview of the real estate being leased.” Court’s interpretation. (Id. at 120).

“Later in 2012, the IRS Foundation; Expert Overruled in As to the adequacy of published a second ruling Testimony; Hearsay part and foundation prior to this (201249013) withdrawing sustained in statement, the Court finds Priv. Ltr. Rul. 201214007, part. that proper foundation has apparently at Treasury's been laid as to Declarant’s insistence . . .. This role in the subject approach created transaction or industry uncertainty in the industry allowing the first part at a time when participants statement to be admissible. were making substantial As to whether the first part investments under the of the statement qualifies Section 1603 mandate.” as an expert opinion, this (Id. at 120). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether the latter portion of the statement (“. . .apparently at Treasury's insistence . . .. This approach created uncertainty in the industry at a time when participants

58 were making substantial investments under the Section 1603 mandate.”) qualifies as an expert opinion, this statement involves specialized scientific or technical knowledge which must be testified to by an expert witness. As to whether either part of the statement constitutes inadmissible hearsay, the Court finds that this statement does not encompass an out-of-court statement and is not offered to prove the truth of the matter asserted.

Throughout this period, I Legal Conclusion; Sustained. As to whether this qualifies was of the firm view that a Expert Opinion as a legal conclusion, the plant-specific PPA should Court finds that this not be treated as a separate statement purports to intangible from the explain, analyze, or decide associated power plant. legal concepts which must The relationship between a be determined by the Court power plant and a plant- after consideration of all specific PPA can be facts and evidence. Tax analogized to the principles and acquisition of property implementation of the IRC (e.g., a building) subject to are within the purview of a lease. The tax code, the Court’s interpretation. Internal Revenue Code (“IRC”) Section 167(c)(2), provides that if property is acquired subject to a lease no portion of the cost is allocated to the leasehold interest. Instead, the entire cost is taken into account in determining the cost basis and depreciation deduction with respect to the property subject to lease. This IRC provision was enacted consistent

59 with decades of court precedent, including a decision of the United States Supreme Court. These cases effectively hold that the income generating ability of an asset, such as real estate, is an inherent attribute of the tangible asset, not a separate intangible. This was not only my view; the IRS relied upon Section 167(c)(2) in Priv. Ltr. Rul. 201214007. This also was consistent with how leases and PPAs were treated, generally, for United States federal income tax purposes and, specifically, for ITC and depreciation purposes. (Id. at 120–121).

“I also formed a view on Expert Opinion; Sustained. As to whether this qualifies whether a facility-specific Legal Conclusion as a legal conclusion, the PPA is a ‘customer-based Court finds that this intangible’ under IRC statement purports to Section 197 while it explain, analyze, or decide remains a mere executory legal concepts which must contract . . .. There are two be determined by the Court reasons why a facility- after consideration of all specific may not meet this facts and evidence. Tax definition . . ..” (Id. at 121). principles and implementation of the IRC are within the purview of the Court’s interpretation.

“This position was not only Expert Opinion; Sustained. As to whether this qualifies consistent with the existing Legal Conclusion as a legal conclusion, the guidance from the IRS . . . Court finds that this it was consistent with my statement purports to understanding . . .. I explain, analyze, or decide continue to believe this is legal concepts which must the correct tax treatment of be determined by the Court the PPA.” (Id. at 122). after consideration of all facts and evidence. Tax

60 principles and treatment of the PPA are within the purview of the Court’s interpretation.

“I repeat several of my Prior Consistent Overruled. As to whether this is comments to the KPMG Statement objectionable as a “prior report here which are consistent statement,” the relevant to the issues Court finds that the addressed in the objection is improper for Defendant's summary purposes of summary judgment filing: judgment and must be 2. Page 1 - they refer to overruled. Section 1060. I think they should footnote that this is not a 1060 transaction but that 1060 is referenced in the report for purposes of defining FMV for tax purposes. *** 4. Page 2 - PPA - The description of the PPA should clearly address whether it's location- specific, and whether there are purchase options. As we know, location-specific PPA's mean that PPA is of nominal value until such time as the required facility is completed. *** 6. Page 2/3 - The bullets should include reference to the fact that the PPA is facility-specific, and should ideally suggest that, accordingly, any "value" of the PPA is an inherent value of the Facility. Economic reference should ideally be made to leases and real estate, where the value of real estate is a function of the price of

61 underlying leases. My comments (# 4 and # 6) are consistent with my perspective and research as discussed above. I discuss the application of IRC Section 1060 in the separate section below.” (Id. at 124–25).

“IRC Section 1060 is the Legal Conclusion; Sustained. As to whether this qualifies tax code section that Expert Opinion as a legal conclusion, the addresses the allocation of Court finds that this purchase price in the case statement purports to of the acquisition or sale of explain, analyze, or decide a going concern or active legal concepts which must trade or business . . .. [i]t is be determined by the Court well known to most tax after consideration of all practitioners.” (Id. at 125). facts and evidence. Tax regulations are within the purview of the Court’s interpretation.

“As I explained in my Prior Consistent Overruled. As to whether this is deposition in the Desert Statement; Expert objectionable as a “prior Sunlight matter, I was very Opinion consistent statement,” the firm on the application of Court finds that the IRC Section 1060. On objection is improper for occasion, a seller or buyer purposes of summary would propose to add a judgment and must be provision to the agreements overruled. As to whether to the effect that IRC this statement qualifies as Section 1060 applied, as an expert opinion, this they liked the optical value statement was made by an of having an agreed-upon employee based on seller-buyer valuation. I perceptions during their philosophically disagreed course of business. Since that IRC Section 1060 employee had personal applied or could apply in knowledge of this industry, circumstances where First their statement is helpful to Solar was selling an clear understanding of facts unconstructed project. For and issues presented in that reason, I (or my team case and does not involve members at First Solar) specialized scientific or would strike provisions in technical knowledge. draft agreements, in those

62 circumstances, that referenced IRC Section 1060. My recollection is that counterparties would almost always agree to drop the reference, as they well understood that Section 1060 was not applicable to these transactions. That said, they seemed to like the Section 1060 allocation in Agreements as they liked the optics that "agreed upon" buyer seller allocations have upon IRS audit.” (Id. at 126).

“This treatment of IRC Expert Opinion; Overruled in As to whether this Section 1060 was Legal Conclusion part and statement qualifies as an particularly true of Silver sustained in expert opinion, this State South, where part. statement was made by an construction had not even employee based on started when it was sold to perceptions during their NextEra. There was not course of business. Since and could not be an active employee had personal trade or business at this knowledge of this industry, point in time. There was no their statement is helpful to power plant or any means clear understanding of facts to generate electricity and and issues presented in revenue. With the case and does not involve exception of the KPMG specialized scientific or report discussed above, I technical knowledge. As to do not recall any whether this qualifies as a discussion between First legal conclusion, the Court Solar and NextEra finds that, with one regarding the application of exception, this statement is IRC Section 1060 to Silver based on the declarant’s State South. We did not opinion developed through view that provision as the regular course of applicable.” (Id. at 126). business and does not purport to explain, analyze, or decide legal concepts. However, the Court also finds that the portion stating, “[t]here was not

63 and could not be an active trade or business at this point in time,” purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence. As such, that portion of the statement will not be considered by the Court.

“With respect to the Foundation; Expert Overruled. As to the adequacy of KPMG report, my Opinion; Relevance foundation prior to this September 22, 2013 statement, the Court finds comments with respect to that proper foundation has KPMG’s report speak for been laid as to Declarant’s themselves. I stated role in the subject specifically that “this is not transaction or industry a 1060 transaction”. It is allowing this statement to consistent with First be admissible. As to Solar’s general position whether this statement with respect to IRC Section qualifies as an expert 1060, in this same time opinion, this statement was period. I understood that made by an employee KPMG was not reaching based on perceptions any conclusions in its during their course of report regarding the business. Since employee application of IRC Section had personal knowledge of 1060. Rather, they were this industry, their referencing IRC Section statement is helpful to clear 1060 “for purposes of understanding of facts and defining FMV for tax issues presented in case purposes.” If KPMG had a and does not involve different view, I do not specialized scientific or believe that view was ever technical knowledge. As to conveyed to First Solar. I whether the statement is can state unequivocally relevant, the Court finds that I did not make a that the statement is of determination that IRC probative value and tends Section 1060 applied to the to make a proposition of Silver State South legal consequence more or transactions. I also do not less probable. believe that Mr. Robertson or anyone else at First Solar made such a

64 determination.” (Id. at 126–27).

“I do not think that Foundation; Expert Sustained. The Court finds that an Treasury was relying upon Opinion; Relevance adequate foundation has IRC Section 1060 to not been laid allowing this reallocate tax basis to statement to be admissible. PPAs in this time period . . ..” (Id. at 127).

11. Kenneth Stein

Kenneth Stein has been a Manager of Environmental Permitting at NextEra since 2009. (Pl.’s Resp. Summ. J., Ex. D at 1). In that role, Stein oversees environmental permitting for various energy development projects, including the acquisition of Silver State. (Id. at 1–2).

Statement Objection Ruling Rationale “Delay would have been Expert Opinion Overruled. As to whether this catastrophic to Silver State statement qualifies as an South. . . . Additionally, expert opinion, this while there were statement was made by an environmental issues that employee based on were resolved before perceptions during their closing, the inherent course of business. Since environmental risk employee had personal associated with Silver State knowledge of this industry, South remained present their statement is helpful to through Commercial clear understanding of facts Operation Date (COD).” and issues presented in (Id. at 3). case and does not involve specialized scientific or technical knowledge.

“Removing this Expert Opinion Overruled. As to whether this transparency into statement qualifies as an mitigation measures expert opinion, this created ill-will among the statement was made by an environmental groups. It employee based on also increased the risk that perceptions during their a public dispute would course of business. Since arise requiring Silver State employee had personal South to defend knowledge of this industry, potentially—and their statement is helpful to inevitably—costly legal clear understanding of facts action.” (Id. at 5). and issues presented in case and does not involve

65 specialized scientific or technical knowledge.

“In my view, a batched BO Expert Opinion Overruled. As to whether this is not ideal because it statement qualifies as an increases the likelihood expert opinion, this that a final BO will be re- statement was made by an opened due to some type of employee based on triggering event (e.g., perceptions during their wildlife injured, artifacts course of business. Since uncovered).” (Id. at 7). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“But Silver State South Expert Opinion Overruled. As to whether this was not like other projects. statement qualifies as an The “take” during the expert opinion, this construction period was statement was made by an four adult tortoises; and employee based on only three adults during the perceptions during their operating period.” (Id. at course of business. Since 8). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“The situation was ripe for Expert Opinion; Sustained. As to whether this qualifies a Preliminary Injunction Legal Conclusion as a legal conclusion, the filing.” (Id. at 9). Court finds that this statement purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence. Ripeness and principles surrounding a Preliminary

66 Injunction are left to the interpretation of the Court.

“The environmental issues Expert Opinion; Overruled. As to whether this with the Ivanpah project— Legal Conclusion statement qualifies as an a physically huge project expert opinion, this that had tortoise and avian statement was made by an impacts—had left a bad employee based on impression. It was highly perceptions during their unlikely litigation would course of business. Since not be sought by employee had personal environmental knowledge of this industry, organizations.” (Id. at 11). their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“There were many Expert Opinion Overruled. As to whether this significant risks with Silver statement qualifies as an State South- among others, expert opinion, this outstanding litigation, statement was made by an ongoing cultural risks, and employee based on of course, the substantial perceptions during their environmental issues. course of business. Since Some, but not all, of the employee had personal development risks knowledge of this industry, associated with Silver State their statement is helpful to South were resolved before clear understanding of facts NextEra closed on the and issues presented in acquisition. Some risks case and does not involve were specifically allocated specialized scientific or to First Solar under the technical knowledge. separate Engineering, Procurement, and Construction agreement

67 between the parties. However, NextEra inherited many of these risks- the ongoing litigation and inherent risks associated with owning a solar facility in the development and construction phase.” (Id. at 15).

12. Robert Stephens

Robert Stephens has been a tax specialist in NextEra’s tax department since 1999 and is currently Senior Tax Counsel. (Pl.’s Resp. Summ. J., Ex. F at 1). Stephens’ responsibilities include tax research, transaction work, tax work related to development activities and project acquisitions, tax compliance, and the Section 1603 grant. (Id.).

Statement Objection Ruling Rationale “The IRS’s conclusion in Legal Conclusion; Overruled. As to whether this qualifies Private Letter Ruling . . . Expert Opinion as a legal conclusion, the was consistent with Court finds that this NextEra’s longstanding statement is based on the position regarding unit- declarant’s opinion contingent PPAs . . .. developed through the [analysis of Treasury regular course of business paper].” (Id. at 4). and does not purport to explain, analyze, or decide legal concepts. As to whether this statement qualifies as an expert opinion, this statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Treasury’s position was Expert Opinion; Overruled in As to whether this

68 never clearly defined, and Legal Conclusion part and statement qualifies as an there was no legal support sustained in expert opinion, this provided.” (Id.). part. statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that the first portion of this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. However, the Court finds that the second portion (“. . . and there was no legal support provided.”) purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“Treasury’s position Expert Opinion; Sustained in As to whether the first created confusion and Legal Conclusion part and sentence of this statement uncertainty among market overruled in (“Treasury’s position participants and was part. created confusion and inconsistent with the uncertainty among market applicable tax rules. At the participants and was end of the process, inconsistent with the Treasury issued generic applicable tax rules.”) award letters that did not qualifies as an expert provide any meaningful opinion, this statement explanation for reducing involves specialized grants. There was no scientific or technical

69 administrative appeal knowledge which must be process like there is within testified to by an expert the IRS. Applicants were witness. As to whether the faced with the decision of remainder of this statement either accepting Treasury's qualifies as an expert reduction or litigating the opinion, this statement was reduction. NextEra and made by an employee other applicants had to based on perceptions navigate through this during their course of process in a number of business. Since employee cases.” (Id. at 5). had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts.

“NextEra’s unit-contingent Legal Conclusion Sustained. As to whether this qualifies PPA position was as a legal conclusion, the confirmed by the United Court finds that this States Court of Federal statement purports to Claims in Alta Wind I explain, analyze, or decide Owner-Lessor C et al. v. legal concepts which must United States, 12.8 Fed. Cl. be determined by the Court 702 (Fed. Cl. 2016). In after consideration of all Alta Wind, the Court of facts and evidence. Federal Claims concluded Interpretation and that PPAs should be treated application of case law are like land leases, which are legal concepts within the not treated as separate discretion of the Court. assets from the land, and that "the close nexus between the wind farm facilities and their respective PPAs means that

70 the PPAs cannot be viewed as separate intangible assets." 128 Fed. Cl. at 721. The Court of Federal Claims’ decision was consistent with the reasoning of Private Letter Ruling 201214007 and NextEra's position on unit- contingent PPAs. The Court of Appeals for the Federal Circuit vacated the Court of Federal Claims' decision, in July 2018, but did not address the unit- contingent PPA issue.” (Id. at 5–6).

“Moreover, the facts of Expert Opinion; Sustained. As to whether this qualifies Silver State South, in my Legal Conclusion as a legal conclusion, the view, compared favorably Court finds that this to the facts of Alta Wind statement purports to because NextEra purchased explain, analyze, or decide Silver State South as a legal concepts which must “greenfield project”— be determined by the Court before any construction after consideration of all had started and years facts and evidence. before it became Interpretation and operational. Treasury, application of case law are however, declined to legal concepts within the follow the Court of Federal discretion of the Court. Claims’ decision . . ..” (Id. at 6).

“Based on my experience Expert Opinion Sustained. As to whether this with the Silver State South statement qualifies as an transactions, and my expert opinion, this perspective as a tax statement ascribes value to specialist, I do not agree the transaction as a whole that there was any and therefore involves combined value or that the specialized scientific or parties ever intended to technical knowledge which agree to a simple price . . .. must be testified to by an I do not agree with expert witness. Treasury’s or Defendant’s characterization . . ..” (Id.

71 at 9).

“I further disagree that Expert Opinion Overruled. As to whether this NextEra paid a premium statement qualifies as an on account of the PPA or expert opinion, this that value was transferred statement was made by an from the MIPSA to the employee based on EPC . . ..” (Id.). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“As discussed above, Legal Opinion Overruled. As to whether this qualifies NextEra had several as a legal conclusion, the pending applications Court finds that this before Treasury when the statement is based on the negotiations with First declarant’s opinion Solar started in earnest in developed through the 2013. Treasury had started regular course of business raising issues regarding the and does not purport to pricing of projects and the explain, analyze, or decide valuation of PPAs. legal concepts. Treasury had developed certain internal benchmarks about what the development and construction costs and profit markups should be and applied those benchmarks to scrutinize Section 1603 grant applications. NextEra was experiencing, in this same timeframe in 2013, potential reductions in its grant awards (but nowhere even close to the magnitude that Treasury would later propose for projects like Silver State

72 South).” (Id. at 9).

“NextEra’s concern was Expert Opinion; Overruled. As to whether this focused on Treasury’s Foundation statement qualifies as an conduct . . .. The indemnity expert opinion, this provision was not intended statement was made by an as acceptance of Treasury’s employee based on position.” (Id. at 10). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to the adequacy of foundation prior to this statement, the Court finds that proper foundation has been laid as to Declarant’s role in the subject transaction or industry allowing this statement to be admissible.

“Trade or business is a Expert Opinion Overruled. As to whether this well-established concept statement qualifies as an under the tax law, and it is expert opinion, this a concept that pervades the statement was made by an day-to-day practice of tax employee based on departments like perceptions during their NextEra’s. In my course of business. Since experience, a development employee had personal stage, preconstruction knowledge of this industry, project like Silver State their statement is helpful to South cannot be a trade or clear understanding of facts business. NextEra did not and issues presented in acquire a trade or business case and does not involve when it acquired the Silver specialized scientific or State South project in May technical knowledge. 2014. For these reasons, Based on the we concluded that IRC inapplicability of the Section 1060 did not specific objection, the apply.” (Id. at 12). statement is admissible. This ruling does not

73 preclude objections made during the pendency of trial.

“Indirect costs are Legal Conclusion Overruled. As to whether this qualifies identified and allocated to as a legal conclusion, the the tangible property items Court finds that this in the cost segregation statement is based on the study on a pro rata basis in declarant’s opinion accordance with the cost developed through the capitalization rules under regular course of business IRC Section 263(a) and and does not purport to IRC Section 263A.” (Id. at explain, analyze, or decide 14). legal concepts.

“The Management Reports Expert Opinion Overruled. As to whether this are required by the statement qualifies as an independent accountant expert opinion, this examination procedures statement was made by an and were executed in employee based on exactly the form prescribed perceptions during their by those procedures (see course of business. Since Exhibit 3, page 3).” (Id. at employee had personal 15). knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“EY’s team included Expert Opinion Overruled. As to whether this several of the most statement qualifies as an reputable and highly- expert opinion, this experienced technical statement was made by an experts in renewable employee based on energy transactions and perceptions during their cost segregation analysis in course of business. Since the country . . ..” (Id.). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

74 “Those certifications are Expert Opinion Overruled. As to whether this provided in accordance statement qualifies as an with the AICPA attestation expert opinion, this procedures prescribed by statement was made by an Treasury.” (Id. at 16). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“Silver State South was a Expert Opinion; Overruled in As to whether this development stage, Legal Conclusion part and statement qualifies as an preconstruction project, sustained in expert opinion, this and not a trade or business part. statement was made by an to which goodwill or going employee based on concern value could under perceptions during their any circumstances attach.” course of business. Since (Id. at 17). employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that the first sentence is based on the declarant’s opinion developed through the regular course of business and does not purport to explain, analyze, or decide legal concepts. However, the Court finds that the portion containing “. . . not a trade or business to which goodwill or going concern value could under

75 any circumstances attach,” purports to explain, analyze, or decide legal concepts which must be determined by the Court after consideration of all facts and evidence.

“Based on my experience, Expert Opinion Overruled. As to whether this valuation is required in statement qualifies as an only two circumstances . . expert opinion, this ..” (Id. at 18). statement was made by an employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“However, after analyzing Expert Opinion; Overruled. As to whether this the circumstances in the Legal Conclusion statement qualifies as an paper, we determined that expert opinion, this Silver State South did not statement was made by an involve any peculiar employee based on circumstances that would perceptions during their require a valuation. course of business. Since Notably, there were no employee had personal affiliated parties or related knowledge of this industry, transactions (as described their statement is helpful to in Treasury's paper) present clear understanding of facts in the acquisition of Silver and issues presented in State South.” (Id.). case and does not involve specialized scientific or technical knowledge. As to whether this qualifies as a legal conclusion, the Court finds that this statement is based on the declarant’s opinion developed through the regular course of business and does not

76 purport to explain, analyze, or decide legal concepts.

“GAAP treatment of Expert Opinion; Sustained. As to whether this transactions and assets is Legal Conclusion statement qualifies as an often different from their expert opinion, this federal income tax statement interprets treatment. Specifically, tax Generally Accepted does not recognize a Accounting Principles and services contract like the involves specialized EPC Agreement as a scientific or technical liability.” (Id.). knowledge which must be testified to by an expert witness.

“Although SSSPS’s Expert Opinion; Sustained. As to whether this qualifies applications satisfied all of Legal Conclusion as a legal conclusion, the the requirements set forth Court finds that this in Section 1603 in order to statement purports to qualify for the full cash explain, analyze, or decide grant amounts requested, . . legal concepts which must ..” (Id. at 20). be determined by the Court after consideration of all facts and evidence. The application of Section 1603 and similar tax rules are reserved for determination by the Court.

13. Steven Wozniak

Steven Wozniak is currently Chief Engineer, PV Power Plant Development and Execution at First Solar and was previously a Senior Director and an Electrical Engineering Manager. (Pl.’s Resp. Summ. J., Ex. G at 1). Wozniak is responsible for project execution through the development period until “hand-over” to the customer in all phases of engineering, procurement, management & construction. (Id.).

Statement Objection Ruling Rationale “I have not identified any Expert Opinion Overruled. As to whether this amounts being invoiced or statement qualifies as an any payments being made expert opinion, this on account of any power statement was made by an purchase agreement. . .. employee based on Based on my examination perceptions during their of the invoices and course of business. Since associated documentation, employee had personal

77 I did not find any amounts knowledge of this industry, being invoiced or any their statement is helpful to payments being made on clear understanding of facts account of this PPA.” (Id. and issues presented in at 3–4). case and does not involve specialized scientific or technical knowledge.

“I did not find any amounts Expert Opinion Overruled. As to whether this under those change orders statement qualifies as an being invoiced or any expert opinion, this payments being made on statement was made by an account of the PPA.” (Id. at employee based on 4). perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I did not find any amounts Expert Opinion Overruled. As to whether this under those materials being statement qualifies as an invoiced or any payments expert opinion, this being made on account of statement was made by an the PPA.” (Id.). employee based on perceptions during their course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

“I did not find any amounts Expert Opinion Overruled. As to whether this under those materials being statement qualifies as an invoiced or any payments expert opinion, this being made on account of statement was made by an the PPA.” (Id.). employee based on perceptions during their

78 course of business. Since employee had personal knowledge of this industry, their statement is helpful to clear understanding of facts and issues presented in case and does not involve specialized scientific or technical knowledge.

Relevant statements of the sustained objections will not be considered for purposes of the pending motion for summary judgment. Should the declarants be produced at trial, they should be instructed that those specific statements are inadmissible.

The Court has filed this ruling under seal. The parties shall confer to determine proposed redactions to which all the parties agree. By no later than October 19, 2020, the parties shall file a joint status report indicating their agreement with the proposed redactions, attaching a copy of those pages of the Court’s ruling containing proposed redactions, with all proposed redactions clearly indicated. The parties also shall, by the same date, file any redacted versions of documents they filed under seal in this case to the extent such redacted versions have not already been filed. IT IS SO ORDERED. s/ David A. Tapp DAVID A. TAPP, Judge