Opinion
1:00CV1262
November 3, 2003
ORDER
Defendant Duke Energy Corporation ("Duke Energy") has filed a motion for leave to file a supplemental memorandum in support of its motion for reconsideration. The events leading up to this motion are as follows.
On April 11, 2003, the Court issued an order granting the plaintiff United States of America's motion to compel discovery and denying Duke Energy's motion for a protective order. United States v. Duke Energy Corporation. 214 F.R.D. 383 (M.D.N.C. 2003). Thereafter, Duke Energy filed a number of motions, including a motion for reconsideration. In addition, the Utility Air Regulation Group ("UARG"), an association which includes power companies and some trade associations, also attempted to intervene in the discovery controversy and filed a number of motions. The Court ruled on those motions on October 22, 2003. United States v. Duke Energy Corporation, ___ F.R.D. ___, 2003 WL 22434498 (M.D.N.C. Oct. 22, 2003). The instant motion relates to Duke Energy's motion for reconsideration of the April 11, 2003 Order. Unfortunately, that motion was decided on October 22, 2003, prior to the instant motion's submission for ruling.
Because the Court has already ruled on the motion for reconsideration, the instant motion to supplement the memorandum is moot. Even though the motion is now moot, the Court will review the motion to see if it would have any effect on the Court's October 22, 2003 ruling.
In the instant motion to supplement, Duke Energy seeks to bring to the undersigned's attention the summary judgment ruling of District Judge Bullock on August 26, 2003. This case involves a contention as to whether Duke Energy's renovation projects were routine maintenance, repair and replacement ("RMRR"). In the Summary Judgment Opinion, the Court rejected plaintiff's proposed test of what constituted a RMRR project, and instead, found the test to be "whether Duke Energy's projects were routine maintenance, repair, and replacement as defined relative to the industrial category and whether Duke Energy's projects caused an increase in annual net emissions, assuming constant hours and conditions of operation." (Sum. Jud. Opinion at 81) Duke Energy now alleges that because of that decision, there is no issue as to whether it had fair notice of the government's interpretation of the pertinent RMRR regulations at the time it conducted the repairs and maintenance. It claims that its fair notice defense is now irrelevant. Because plaintiff sought the documents in order to counter Duke Energy's fair notice defense, Duke Energy asserts the discovery is no longer needed.
Plaintiff disagrees. It states that Duke Energy has not disclaimed fair notice as a defense under all circumstances. For example, it states that Duke Energy may seek to employ the defense should the Court find some of Duke Energy's projects were not routine under the "WEPCo" test. A review of Duke Energy's brief does not clarify whether Duke Energy will, in fact, forego using the fair notice defense, not just with respect to the EPA'S current interpretation, but also with respect to the "WEPCo" test itself. However, even if this ambiguity were clarified, that would not end the matter.
Plaintiff argues that it wants the opportunity to request the Court to reconsider its summary judgment interpretation of what constitutes routine maintenance, repair, and replacement. It is hopeful for reconsideration because it points out that this Court acknowledged that its summary judgment interpretation was contrary to the holding of two other district courts which apparently did defer to the EPA's interpretation of the RMRR issue. Plaintiff points out that should this Court change its decision, the documents then would become relevant with respect to the fair notice defense.
Plaintiff points out that the documents are not only relevant for a motion for reconsideration, but that the documents would have been helpful to help convince the Court, in the first instance, that the Environmental Protection Agency's current interpretation is not materially different than that set forth in "WEPCo." Plaintiff contends that the documents are relevant because they "will reveal Duke's current argument concerning the PSD emissions test to be a recently contrived attempt to avoid liability for activities Duke and the rest of the industry knew were likely subject to PSD review." (Pl.'s Br. at 7)
Duke Energy retorts that the Court should reject plaintiff's reconsideration argument because the "law of the case" doctrine forbids reconsideration. While reconsideration may be highly unlikely, Duke Energy fails to cite a case holding that this Court may not reconsider its summary judgment decision under the right circumstances. To the contrary, the "law of the case" doctrine is not a jurisdictional matter which would forbid correction of even a legal erroneous ruling, but instead, is a concept which is "more a matter of proper judicial administration which can vary with the circumstances." Hill v. BASF Wyandotte Corp., 696 F.2d 287, 290 n. 3 (4th Cir. 1982); Edwards v. Johnston County Health Dept., 885 F.2d 1215, 1218 n. 10 (4th Cir. 1989). In a situation where the prospect of reconsideration and/or appeal is present, Duke Energy may not simply opine that the documents "likely" may not reveal admissible information in light of the Court's summary judgment ruling. Discovery will be granted unless the potential relevance is so far afield that it can be said with some assurance that the discovery could not reasonably be calculated to either produce or lead to admissible evidence. Fed.R.Civ.P. 26(b)(1). The discovery here may serve multiple purposes and there is some chance that it may be helpful in future court proceedings, whether it be for reconsideration, appeal, or the new purposes now advanced by plaintiff as set out below.
Plaintiff next argues that the Court's Summary Judgment Opinion ironically now makes the sought after documents even more important. It claims that these documents will now be directly relevant to determining industry maintenance practices. Duke Energy contests this assertion and claims that none of the documents have anything to do "with specific maintenance, repair, or replacement activities." However, it does not say that the documents have nothing to do with all maintenance, repair, or replacement activities. Furthermore, to the extent that Duke Energy argues that plaintiff can rely on other documents and does not need the documents in order to determine what type of projects are routine within the utility industry, the argument misses the point. Nothing requires any litigant to merely rely on publicly filed documents from a party.
Finally, Duke Energy argues that the Court, in its April 11, 2003 Order, relied on a document entitled, "Hennen Memorandum," which was rejected as hearsay with respect to the ruling on the summary judgment motion. First, as the Court explained in the October 22, 2003 Order, the Court reviewed such documents in order to help determine the nature of the UARG, not necessarily for the truth of the matter asserted. Furthermore, even if the document were deemed hearsay, that would not make it improper for consideration with respect to proof of preliminary facts in order to determine attorney — client privilege or work product. Fed.R.Evid. 104(a); 24 Charles Alan Wright and Kenneth W. Graham, Jr., Federal Practice and Procedure § 5507, at 569 nn. 32 33 (1986); In re Grand Jury Subpoena, 884 F.2d 124, 127 (4th Cir. 1989).
For all the above reasons,
IT IS ORDERED that Duke Energy's motion for leave to file a supplemental memorandum (docket no. 237) is denied on the grounds that it would not change the decision of the Court's October 22, 2003 Order.