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When the discovery of dangerous cracks in the Acela express trains shut down service along the northeastern corridor during spring 2005, Amtrak’s inspector general told Congress that the railroad company had narrowly averted a disaster. But nearly two years later, Amtrak and the two companies that oversaw the trains’ maintenance are still battling over documents the inspector general’s office wants for its investigation into whether the problems were known before Amtrak first discovered them during a routine check in April 2005. The inspector general has accused the companies — Bombardier Inc. and Alstom Transportation Inc. — of stalling the government investigation, going so far as to raise questions over two years of e-mails the companies say were lost. Just last week the government brought the companies into the U.S. District Court for the District of Columbia to ask Magistrate Judge Deborah Robinson to intervene in their dispute. The two companies deny dragging their feet, and earlier this month, they fired back in an unusual way: detailing how many hours their lawyers have devoted to responding to the inspector general’s request and demanding reimbursement for their efforts. The total tab since 2005: $1.6 million by Bombardier to Pillsbury Winthrop Shaw Pittman and Jones Day, and $360,000 by Alstom to Winston & Strawn. Bombardier’s lead attorney, Philip Douglas, billed his work at $700 an hour. Alstom’s lead, Timothy Broas, has asked for an hourly rate of $475. DOCUMENT DUMP Amtrak and the maintenance companies have fought testy legal battles before. Delays in the companies’ 1996 contract to bring 20 Acela trains onto the market turned into a bitter lawsuit in which Bombardier accused Amtrak of hindering the companies’ ability to deliver on the contract because it failed to upgrade its tracks. The case was settled in 2004. The current dispute dates back to September 2005, when Inspector General Fred Weiderhold asked the court to enforce four subpoenas issued in June 2005, two to Bombardier and two to Northeast Corridor Maintenance Services Co., the entity created by Bombardier and Alstom to handle the Acela contract. The subpoenas sought all documents and e-mails relating to the cause of the cracks found in the spokes of the Acela trains, who knew about them, and whether anyone should have been aware of risks to the trains. The subpoenas asked the companies to provide computer disks and tapes, to index all material as they had been kept in the course of business, and to explain the reasons for any documents withheld. In an August 2006 filing, lawyers for the inspector general laid out their troubles with the companies. They said that although the companies sent more than 600,000 documents by summer 2005, the documents were not properly organized. And, lawyers wrote, the companies produced fax copies of documents that were not identical to the original electronic documents. What’s more, they are skeptical of the companies’ claims that two years of e-mails were lost on May 30, 2005, when an air-conditioner outage on Northeast Corridor Maintenance Services’ server led to a computer system breakdown. The companies said that, in the following three days, they contracted with computer consultant Kroll Ontrack Inc. to try to recover the e-mails, but the consultant was unable to recover them and said the e-mails had not been transferred to backup tapes. “The interest only increased as it became more apparent that the significant documentary loss resulted from a relatively modest overheating of the computer facility,” the inspector general wrote in the 2006 filing, noting that a company memo a few days after the outage failed to note the service problem. The inspector general’s office turned their search to the consultant, Kroll, and asked for any reports or communications about the outage. Kroll’s response: Bombardier and Alstom had said all of the 94 e-mails and five documents relating to the outage were privileged. Meanwhile, Bombardier and Alstom have continued to push back against the government’s initial subpoenas. In court filings, they said the requests are overly broad and they have worked diligently to go through more than 1.3 million pages since the investigation began. In a Feb. 7 court filing, Jones Day’s Douglas wrote in an affidavit that after receiving the subpoena, lawyers interviewed 20 employees before asking the inspector general to narrow his request. When the inspector general would not trim down his demands, lawyers spoke with 40 more people and produced more than 1 million documents. And to prove that the company was cooperating, lawyers filed affidavits from five company officials stating they had no warning about the cracks. But the inspector general was not convinced and continued to push for the court to step in. On Feb. 12, the parties appeared before Robinson to argue about the scope of the subpoenas. Robinson didn’t believe the two sides had exhausted their resources, and instead of listening to arguments right away, she told them to take a brief recess and give negotiations one more try. BACK AND FORTH It was nearly 3 p.m. when Robinson headed back to chambers, and the more than half-dozen attorneys gathered around a courtroom table, the government attorneys on the left, the companies’ crew on the right. David Sadoff, lead attorney for the inspector general, began with a dispute over the documents from the computer consultant. Bombardier and Alstom had just given him a list of all the Kroll documents relating to the computer failure with an explanation of why they were withheld. Along with that list, the companies also included three of the listed documents that the companies decided were not privileged. Reviewing the list of explanations, Sadoff turned to the defense team. “I was troubled by quite a number of aspects,” he said. Douglas wouldn’t budge on any of the government’s complaints. “We offered to let you read them all, but we couldn’t agree on language,” he said. Sadoff continued looking through the privilege log. “What did Kroll do?” he said. “That’s a fundamental question that hasn’t been answered.” Where was the report? Where was the contract with Kroll? How are those privileged? he wanted to know. They’re privileged, Douglas explained, just like his contract with his law firm. Sadoff pointed to the three documents. “How come you didn’t just give us the three documents?” Douglas shot back, “They were not our documents. . . . If you’d contacted us directly, we could have dealt with this like gentlemen.” By the end of the afternoon, the two parties hadn’t made much progress and are expected back in court next month, this time for formal arguments before Robinson.
Emma Schwartz can be contacted at [email protected].

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