ML17209B116
| ML17209B116 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 05/30/1980 |
| From: | Davis A FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | U.S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA |
| Shared Package | |
| ML17209B115 | List: |
| References | |
| 79-5101-CIV-JLK, NUDOCS 8105290156 | |
| Download: ML17209B116 (7) | |
Text
li ATTA'CHMENT 4 i
q) +Oj<
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORXDA FLORZDA POWER
& LIGHT COMPANY,
)
TH" CITY OF GAZNESVXLLE AND THE
)
G¹NESVZLLE-ALACHUACOUNTY REGiONAL
)
UTILZTIES BOARD, THE LAKE WORTH
)
UTXLZTZES AUTHORXTY, THE UTILITIES
)
COMMISSION OF NEW'MYRNA BEACH, THE
)
SEBRXNG UTXLZTZES COMMISSION, THE
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C TlES OF ALACHUA, BARTOW, FT.
- MEADE,
)
HONEST~,
KXSSZMME, MOUNT DORA,
)
NEWBERRY, ST.
- CLOUD, STARKE, and
)
TALLAHASSEE, FLORZDA,
)
)
Plaintiffs,
)
I
)
Ve
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)
)
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Defendant
)
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Civil Action No.
79-5101-Civ-JLK MEMORANDUM OF FLORIDA POWER
& LiGHT COMPANY CONCERNZNG THE SCHEDULE FOR FURTHER PROCEEDINGS ZN THIS ACTZON Defendant Florida Power
& Light Company
("FPL" or the "Company" ) submits this Memorandum in response to Plaintiffs'otion for a Preliminary Pretrial Conference.
Although FPL has no matters to bring before the Court that would recuire a status conference at this time, FPL does not oppose the scheduling of a status conference in this action at the Court's convenience if the Court cons'ders it appropriate.
FPL does oppose plaintiffs suggestion that
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I he trial in this action be set for October of this yea The reasons FPL believes an October trial deadline cannot be met and would not be desirable are described below.
<</
Plaintiffs have suggested a conference during the week of June 9, and counsel for FPL would be able to attend a
conference held during that week.
8105290)5t'r
2 1.
The su estion for a trial this fall must be considered in the context of this litication.
Plaintiffs seek to put at issue in this action the propriety under the antitrust laws of virtually every aspect of the conduct of FPL's electric utility business over the past 30 years.
In brief, 14 individual plaintiffs allege that anti-competitive conduct by PL is responsible for theiz oresent dif iculties in pzoviding electric servi.ce to their customers at 'ow cost.
EPL denies that it has engaged in anti-compet'tive conduct or that it has any responsibility to assure that plaint' s
its self-styled competitors are able to provi.de inexpensive electric servi,ce to the'r customers.
Unless some or all of the claims at issue in this action can be resolved by motion, the t='l in this acti, on will be enormsly complex.
Such a tri.al would require an.
examination of the circumstances sur ounding not only FPL's decisions over the past 30 years to develop nuclear generat'ng facilities, to arrange for long-tern natural gas suppl'es and to otherwise develop an efficient and modern electric utility business.
It also would zequire exploration of the separate deci.sions of each of the 14 plaintiffs to 'nstall {or not to install) particular generat'ng facilities, to enter into par-ticular fuel supply arrangements (and not others),
and to develop (or refrain from developing) coooerative arrangements with other electric utilities.+
2.
FPL has moved oromotlv to invest ate the factual bases for laintiffs'laims and o
e lore whether dispositive legal defenses exist. with respect to an of the plaintiffs and an of the claims.
FPL filed its First Request This is not a class action.
The elec" ic utility business of each of the plaintiffs 's unique, and the power supply decisions made by each plaintiff ove the "elevant per'od will have to be evaluated in the'nicue contexts.
In essence, there are 14 separate antitrust act'ons before the Cour
3 for Production of Documents and First Set of Interrogatories on November 26, 3 979, within a month of the filing of the Complaint.+
Shortly thereafter, FPL filed a Motion to Dismiss Portions of the Complaint, as an initial effort to clarify the legal mattezs pzopezly at issue in this proceeding.
Because plaintiffs were unwi13.ing or unable to produce the documents responsive to FPL's request for inspec-tion and copying in Miami, FPL sent teams of lawyers, para-legals and professional employees of the Company to each of the 15 Cities,to inspect and physically copy the documents
%%/
being produced by each of the plaintiffs. That effort extended over six weeks and required the participation of two attorneys (617 man-hours),
two paralegals (540 man-houzs) and nine professional employees of the Company (1,502 man-hours),
and 2,360 hours0.00417 days <br />0.1 hours <br />5.952381e-4 weeks <br />1.3698e-4 months <br /> of clerical time.
Over 150,000 oages of documents were duplicated.
At plaintiffs'equest, FPL provided plaintiffs'ounsel with copies of 3.41,636 pages of the documents that FPL copied.
Plaintiffs served their Initial Interrogatories and Request for Production of Documents on January 8, 1980.
F?L thereupon undertook a comprehensive search of its own files.
(This search was conducted at the same time that Company teams were reviewing documents in each of the Cities.)
Two lawyers (384 man-hours),
28 Company professionals (4,868 man-hours) and four paralegals (688 man-hours) vere assigned to the Company search during the period January 25, 1980 to March 26, 1980.
All together, 243,000 pages of documents were copied and
=PL's first set of discovery mater'als was focused exclu-sively on issues of liability.
No discovery with respect to the enozmous camages plainti fs apparently claim, at least in the press, has occurred.
1*/
Ft. Pierce withdrew as a plaintiff after the inspection of its documents by FPL personnel.
available to plai.ntif s and an additional 75,000 pages remained to be copi.ed as of Hay 17, 1980.
3.
The tasks that remain in ozder to ozeoaze for tz'l aze numerous and will ze uire the substantial efforts of lawyers and gargle als.
FPL has expended 34 man-years of professional time on discovery matters since this action was commenced, surely evidence that the case has been handled on an expedi ed basis.
A subs antial port'on of this effozt has been pezfor.-..ed by persons with no legal training.
In compar-ison, the asks that must be undertaken from here on in order to ready th case for trial cannot be accomplished exceot by lawyers anc paralegals.
In response to initial discovery requests, the pazties have produced almost 500,000 pages of documentary t%/
material. There have also been extensive answers to a fi"st set of interrogatories.
At this stage of the case, the tasks to be performed'by legal personnel
'nclude review of this mass of documentary materials; resolution of issues raised by.. the responses to current d'covery;
-- preparation of and responses to additional a*a/
discovery requests (interrogatories, equests or admissions, and Rule 34 equests)
"/ Plaintiffs have noted on several occasions that they and FPL are not "stzangezs" in litigation.
As a result of the history of litigation, plaintiffs have had access to voluminous materials produced by FPL in regulatory proceedings.
Nevertheless, the discovery requests filed by plaintiffs in this action were comprehensive and zequi.red the Company to undertake a "top to bottom" sea ch of fi.les extending back over 30 years.
'*/ Plaintiffs'i.st of documents for which they have asserted priv'lege is 280 pages long.
FPL will be providing to pla'ntif s a list of documents it contends are privileged, and will seek a pzotective order before it produces highly confi-dential material that olainti fs aze seeking.
'"*/
The pa" ies have informally agreed, subject to the Court's
- approval, to waive the limitations of General Rule 10. I. 1 of this Cour with respect to interrocatories.
directed to liability issues, and initial discovexy requests dixected to damage questions; consultation wi,th engineexing and economic
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experts; ~
deposing City officials and third oarties with
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knowledge of the matte s at issue; analysis of the information yielded by this discovery.
FPL intends to puzsue these matters expeditiously, as it has done thus fax.
Nevertheless, F?L does not believe that, working diligently, it can complete the job of t ial prepar-ation by fall.
4.
FPL re uires this discovery in order to ze"a e
fox trial, because FPL has not had an previous opportunity for discovery fzom laintiffs.
Although there has been litigation between FPL and vaxious of the plaintiffs befoze, FPL never has had the opportunity for comprehensive discovery from any of the plaintiffs (other than Gainesville) before this action.
Zn comparison, plaintiffs have had access to massive productions of documents made by."PL ln regulatory proceedings, and plaintif s'ounsel have had the oppoxtu"..'y to cross>>examine FPL's top off'ials in a number of these proceedings.
Accordingly, as plainti fs'ounsel must realize, the scheduling of a prematuze t ial cate would confer a sub-stantial advantage on plaintiffs.
The interests of justice would not be served by zequiring one party to present its case at trial thus disadvantaged.
FPL anticipates that extensive engineering and economic analyses will be recuired in this case.
'*/
Xt is not possible to oredic the number of depos't'ons that will be taken.
- However, on the basis of FPL's analysis of the documents produced by the largest plain i"f, Tallahassee, to date, FPL intends to take the deposition of at least 10 officials of that plaint'ff.
t<e anticipate that this series of depositions will be taken in July.
6 5.'PL antic'tes that the discover efforts resentl underwav will allow for a further sortin out of the claims in this action b additional motions addressed to some of the issues and some of the plaintiffs.
FPL believes that certain, perhaps most, of the claims of the plaintiffs will not survive properly supported motions for summary judg-ment.
The discovery efforts already underway, which are described
- above, are designed to provide the factual basis for such motions.
FPL anticipates that the first motion could be filed by this fall.
Proceeding by mot'on will reserve for t ial only those claims, if any, that recuire trial claims as to which there is genuine dispute of material fact.
The procedures for stipulation of agreed-upon facts and spec'f'ca-tion of disputed issues employed by the District Court in the government's antitzust action against American Te)ephone a
Telegraph Company aze an example of the means that have been employed in a complex case:
"to produce agreement on and the eby to eliminate from the trial itself all those mat ers about which there is not or should not be any genuine d'sagreement and thereby reduce the scope and duration cf the trial, and
. to provide for an orderly pro-gression of the remainder of the case to a
definite, relatively early trial 4ate.
{footnote omitted)"
United States v.
No. 74-9 8
June 2,
979)
(s xp opinion, p.
- 9) {attached).Q See also United States
- v. American Telephone a Tele ra h Co.,
461 F. Supp.
- 1314, 1345-1346
{D.D.C. 1978);
Manual for Complex Lit'tion, $ 3. 60 ~
6.
FPL zecocnize's that.this litigation has been and will'be costly "or all Ne parties.
Plaintiffs took on the costs of a complex antitrust action when they filed an all-encompassing compla'nt to commence this action.
Consumers of electricity, whether sold by FPL or the plaintiffs, bear
'/
A copy of the Court's unreported ooinion iz attached.
The stipulation and spec'cat'on procedures are discussed at po. 3-17.
7 the expenses of this litigation, just as they bear the benefits and burdens of po~er supply decisions made by plaintiffs and A tzial in this action in the fall, before all documents have been reviewed and analyzed, before all witnesses have been interviewed and deposed, and before claims can be disoosed of on motion, will be more expensive and time-consuming for the Court and a jury as welL as for the litigants than the course that FPL is alzeady proceeding along and which it recommends to the Court.
Thu's a-the parties have moved expeditiously.
The trial cate suggested by plaintiffs ', given the magnitude and complexity of this case, simply unrealistic.
Respectfully submitted, STEEL HECTOR
& DAVIS 1400 Southeast Fizst National Bank Building Miami, Florida 33131 (305) i7 2835 By v n B. Davis LOWENSTEZN, 'NEWMAN~ REIS, A'.KLRAD & TOLL 1025 Connecticut
- Avenue, N.W.
Washington, D.C.
20036 COVINGTON
& BURLZNG 888 Sixteenth Street>
N.W.
Washington, D.C., 20006 Attorneys foz Defendant FLORIDA POWER
& LIGHT COMPANY CERTZFZCATE OF SERVZCE I HER"-BY CERTZFY that copies of the fozegoing were mailed, postage
- prepaid, to ERVIN, VARN, JACOBS, ODOM KITCHEN, P.O.
Box 1170, Tallahassee, Florida 32303 and to SPZEGEL
& McDIABMZD, 2600 Virginia Avenue, N.W., Washington, D.C.
20037 on May 30, 1980.
v'n S.
Davxs
~/
FPL's public utility obligation to minimize the rates that, 'ts customers must pay for elec ricitv is an important element in this case, because the ef ect of FPL's agreement to plaintiffs'emancs would be to provide plaint's'ustomezs with a free zice at the expense of FPL's c 'stomers.