Georgia Power Company v. United States, 14-167

Background

Consolidated damages trial for Georgia Power Co. and Alabama Power Co. vs. United States ran Feb–Mar 2020; evidentiary record left open for post-trial rulings and the court issued an evidentiary order on Nov. 4, 2020.
Both parties moved for reconsideration of the Nov. 4 evidentiary rulings on Dec. 4, 2020; the court later ordered supplemental briefing on business-records issues for documents prepared in anticipation of litigation.
Central evidentiary disputes involved: testimony of plaintiffs’ dry-storage manager Clay Channell (cask delivery delays), pages 3–5 of Pls.’ Ex. 138 and Pls.’ Ex. 145 (business‑records vs. hearsay/residual exception), Pls.’ Ex. 139, and Chalmer Myer’s testimony tied to Ex. 139.
The government argued key documents and some testimony were inadmissible hearsay or litigation-created records not covered by FRE 803(6); plaintiffs argued witnesses had personal knowledge and that documents qualified as business records or fit FRE 807.
The court recognized the utilities have been forced into successive litigation by the government’s continuing breach (ongoing duty to store spent fuel), but found Supreme Court precedent limits applying FRE 803(6) to documents prepared for litigation; nonetheless it admitted some documents under the residual exception (FRE 807).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Channell testimony re cask delivery delays (Issue 2)	Channell has personal knowledge as dry‑storage program manager	Testimony derived entirely from out‑of‑court emails = inadmissible hearsay	Denied reconsideration; testimony admissible based on witness's personal knowledge
Admission of Pls.’ Ex. 138 pp.3–5 & Ex. 145 under FRE 803(6) (Issues 3 & 11)	Records are business records because utilities were forced into continuous litigation, so these are regular business documents	Records prepared for litigation cannot qualify as business records under Palmer/Melendez‑Diaz	Grant limited reconsideration: documents NOT admitted under FRE 803(6)
Admission of same documents under FRE 807 (residual hearsay)	Unique, ongoing‑breach circumstances justify residual‑exception admission	FRE 807 should not apply; disagreement but no binding precedent to compel exclusion	Denied reconsideration on this point: documents admitted under FRE 807
Plaintiffs’ Ex. 139 (Issue 13)	Plaintiffs argued at trial it was a business record	Government objected; plaintiffs failed to brief admissibility in post‑trial submissions as the court ordered	Plaintiff’s reconsideration denied; Ex. 139 excluded for failure to timely substantively brief
Myer testimony tied to Ex. 139 (Issue 15)	Myer’s testimony was independent and should stand even if document excluded	Testimony was a proffer conditioned on the document and is inextricably linked	Reconsideration denied; testimony excluded because it depended on excluded document

Key Cases Cited

Palmer v. Hoffman, 318 U.S. 109 (1943) (distinguishes records made for regular business from those prepared incidentally or for litigation)
Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (notes Palmer’s rule that documents produced for trial generally are not business records)
Biery v. United States, 818 F.3d 704 (Fed. Cir. 2016) (standards for motions for reconsideration)
Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004) (extraordinary‑circumstances standard for reconsideration)
Continental Baking Co. v. United States, 281 F.2d 137 (6th Cir. 1960) (admission of document where author testified to same facts)
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) (motion for reconsideration cannot relitigate matters or raise arguments that could have been raised earlier)
Maine Yankee Atomic Power Co. v. United States, 225 F.3d 1336 (Fed. Cir. 2000) (background on partial breach and successive suits)
Indiana Michigan Power Co. v. United States, 422 F.3d 1369 (Fed. Cir. 2005) (successive actions for continuing breach and accrual of damages)