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United States v. Duke Energy Corp.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


August 31, 2006

UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
DUKE ENERGY CORPORATION, DEFENDANT.
UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
OHIO EDISON COMPANY, ET AL., DEFENDANTS.
UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, DEFENDANT.
UNITED STATES OF AMERICA, ET AL., PLAINTIFFS,
v.
CINERGY CORPORATION, PSI ENERGY, INCORPORATED, CINCINNATI GAS & ELECTRICAL COMPANY, DEFENDANTS.
UNITED STATES OF AMERICA, ET AL., PLAINTIFFS, AND STATE OF NEW YORK, ET AL., PLAINTIFF-INTERVENORS,
v.
AMERICAN ELECTRICAL POWER SERVICE CORPORATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Paul L. Friedman United States District Judge

Civil Action No. 1:00 CV 1262 United States District Court for the Middle District of North Carolina

Civil Action No. C2-99-1181 United States District Court for the Southern District of Ohio

Civil Action No. IP99-1692-C-M/F United States District Court for the Southern District of Indiana

Civil Action No. IP99-1693 C-M/S 1:00 CV United States District Court for the Southern District of Indiana

Civil Action No. C2-99-1182; C2-99-1250 United States District Court for the Southern District of Ohio

MEMORANDUM OPINION AND ORDER

This matter is before the Court in these consolidated cases for consideration of Magistrate Judge Alan Kay's Report and Recommendation [Docket No. 57 in ms02-480] of March 30, 2005.*fn1 The United States objected to the March 30, 2005 Report on April 18, 2005 [58]. Non-party Utility Air Regulatory Group ("UARG") responded to the government's objections [59], and the government replied [60].

Under 28 U.S.C. § 636(b)(1), Rule 72(a) of the Federal Rules of Civil Procedure and Local Civil Rule 72.3(b), an aggrieved party may file objections to or seek reconsideration of a magistrate judge's ruling or report and recommendation regarding non-dispositive matters within ten days of the issuance thereof. Upon consideration of such objections, the district court may modify or set aside any portion of the magistrate judge's order or recommendation if it is "clearly erroneous or contrary to law." Rule 72(a), Fed. R. Civ. P.; see also LCvR 72.2(c); In re United Mine Workers of America Employee Benefit Plans Litigation, 159 F.R.D. 307, 308 (D.D.C. 1994); FSLIC v. Commonwealth Land Title Insurance Co., 130 F.R.D. 507, 508 (D.D.C. 1990).

In his earlier Reports and Recommendations, Magistrate Judge Kay set out a procedure for review of assertedly privileged documents by a Special Master. This Court adopted the previous Reports from Magistrate Judge Kay on January 3, 2005 [55]. The documents were then reviewed by a Special Master who was agreed on by the parties, Judge Richard A. Levie (Retired). The Special Master prepared a report dated March 7, 2005, which was reviewed in camera by Magistrate Judge Kay. As a result of this review, Magistrate Judge Kay recommends in his March 30 Report that: (1) the Special Master's Report and Recommendation be adopted by this Court and the privilege be upheld with respect to the documents withheld from production; (2) the Special Master's Report be unsealed and turned over to the parties since it does not disclose the actual substance of and communications deemed to be privileged or protected; and (3) the Government's motion to compel [Docket No. 1 in Duke Energy and Docket No. 1 in Cinergy] be denied, with the government and UARG each to bear their own costs.

Upon careful consideration of the Report and Recommendation of Magistrate Judge Kay, a review of Judge Levie's report, and the entire record in this matter, it is hereby

ORDERED that the Report and Recommendation [57]of Magistrate Judge Alan Kay is ADOPTED and APPROVED: it is

FURTHER ORDERED that the report of the Special Master be unsealed and made available to the parties; it is

FURTHER ORDERED that the Special Master's Report and Recommendation is adopted by this Court; it is

FURTHER ORDERED that the United States' motions to compel compliance with subpoenas [Docket #1 in ms02-0480; Docket #1 in ms04-0065] are DENIED; and it is

FURTHER ORDERED that all other pending motions are DENIED as moot.

SO ORDERED.


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