ML19319B320

Motion to Quash or Modify Per 10CFR2.720 or for Protective Order Per 10CFR2.740 Re Dj Oloughlin Subpoena.City of Cleveland,Oh 760707 Complaint Against Utils Filed in Us District Court for Northern District of Oh Encl

ML19319B320
Person / Time
Site:	Perry, Davis Besse
Issue date:	07/07/1976
From:	Gallagher M SQUIRE, SANDERS & DEMPSEY
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19319B321	List: ML19319B320 ML19319B322 ML19319B323 ML19319B324 ML19319B325 ML19319B326 ML19319B347 ML19319B367
References
NUDOCS 8001150776
Download: ML19319B320 (61)

Text

{{#Wiki_filter:* s. v N cd 4 4 S Ge' 7 IO76 > UNITED STATES OF AMERICA f." L NUCLEAR REGULATORY C01-211SSION ,..,+., ry g s-b Before the Atomic Safety and Licensing Board A 1 In the Matter of ) ~5_ ) THE TOLEDO EDISON COMPANY and ) Docket Nos. 50-346A - THE CLEVELAND ELECTRIC ILLUMINATING COMPANY ) 50-500A (Davis-Besse Nuclear Power Station, ) 50-501A Units 1, 2 and 3) ) ) THE CLEVELAND ELECTRIC ILLUMINATING ) Docket Nos. 50-440A COMPANY, et al. ) 50-441A (Perry Nuclear Power Plant, Units 1 and 2) ) j HOTION OF SQUIRE, SANDERS DEMPSEY TO QUASH OR' MODIFY PURSUANT TO C.F.R. SECTION 2.720 OR FOR A PROTECTIVE ORDER PURSUANT TO C.F.R. SECTION 2.740 Now comes Squire, Sanders and Dempsey and respectfully moves the Special Board for an Order providing alternatively as follows: 1. That the application for the subpeona to be served on Daniel J. O'Loughlin be denied..or that the subpoena be quashed; .2. That the duces tecum feature of said subpoena be quashed;

3. ~ That the duces tecum feature of said subpeona be modified so as to require compliance only with Paragraph 5 thereof.

M Michael R. Gallagher [ Attorney for Squire, SancJdrs & Dempsey 630 Bulkley Building Cleveland, Ohio 44115 (216-241-5310) i 800115077d n /

,9 ' 6 s . i CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Motion and Suppurting Memorandum have been served by mailing the original and twenty (20) copies to the Secretary, U.S. Atomic Energy Commission, Washington, D.C. 20545, Attention: Chief Docketing and Service Section, and by mailing one copy to each of the persons listed on the attached service list, regular United States Mail, First Class, Postage Prepaid on this 2nd day of July 1976. L.s Michael R. GalIagher // I

. j SUPPORTINC MEMORANDUM The City of Cleveland (City) has applied to the Reconstituted Special Board (Special Board) for a subpoena requiring the appearance of Daniel J. O'Leughlin for deposition and commanding that he produce the volumiaous docu-ments identified in the duces tecum feature of that subpoena. At the pre-hearing conference held on Monday, June 28, 1976, Squire, Sanders and Dempsey (SS&D) was given to July 6,1976 to file the attached motion and the City, together with the Staff, was given to July 12, 1976 to respond thereto. I. This Motion to Quash is based upon C.F.R. Section 2.720(f) and Section 2.740(b) and (c). C.F.R. Section 2.720(f) in pertinent part provides: "On motion made promptly,... the presiding officer . may (1) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (2) condition denial of the motion on just and reasonable terms." C.F.R. Section 2.740(b)(1) provides in part: "In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding.. ] (emphasis added) C.F.R. Section 2.740(c) provides in part: " Protective order. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the presiding officer may make any order which justice requires to protect a party or person from anncyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation o,f the time or place; (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matters;...."

s a _4_ II. ) Prior Discovery of Parties and Prior Rulings of the Licensing Board, First Special Board and District Court .l a. Prior Discovery While this disqualification matter is new to the Special Board it is not new to the parties. There have been extensive hearings before the Licensing Board, the First Special Board and the Appeal Board. Lengthy briefs have been filed by the parties and an occasional brief by the Staff. The depositions of all of SS&D's witnesses have been taken by the City as on cross-examination. The depositions of all of the City's witnesses have been taken by counsel for SS&D. In addition, all of the parties' wit-nesses have been subject to direct and cross-examination on a three day trial in the District Court on a Motis ' to Disqualify pending before it. That case is identified as City ' eveland v. CEI, Docket No. C75-560 in f the District Court for the Northern District of Ohio, Eastern Division. A copy of the Complaint charging antitrust violations by CEI against the City is attached hereto and marked Exhibit A. The issues in the District Court antitrust case are either essentially the same or broader than those in the NRC proceeding. The evidence in the NRC proceeding has been circumscribed both as to time (there is a January 1,1965 remoteness cutoff date) and as to issues (for example, Chairman Rigler's exclusion of evidence relating to the 1972 Bond Ordinance and council hearings). In the trial before the District Court on the City's Motion to Disqualify SS&D (which motion and ' supporting brief and. attached exhibits are virtually identical to the motion and supporting attachments filed.efore the NRC), b voluminous exhibits were of fered by both sides and received into evidence supplementing the live testimony of the witnesses. The trial commenced on

June 14, 1976 and extended through June 16, 1976. A ruling on the Motion is anticipated momentarily. This Board should be mindful that in addition to the discovery relating to the City's motions for disqualifdcation there has been extensive discovery in the NRC. proceeding and in the District Court en the merits of the anti-trust proceedings. B. Prior Rulings 1. Licensing Board Pursuant to a demand for production by the City, the Licensing Board reviewed in camera the documents alleged to be connected with SS&D's repre-sentation of CEI and determined that those documents were privileged and further that they offered no evidence to support the City's Mo: ion for Dis-qualification.1/ 2. Special Board Subpoenas duces tecum were servsd upon John LansdaleEI, John Brueck 1 ! and Daniel J. O'Loughlin.b/ The First Special Board quashed the duces tecum feature of the subpoenas. The ruling appears in the Transcript at page 4274.5l-1! xhibit B '[ Licensing Board's] Order Certifying Ruling in Special Section E 2.713 Proceeding, p. 8 E! xhibit C E 2/ xhibit D E I e do not have a copy of this subpoena in our files; undoubtedly, the City W can make a copy available to the Board. 1/ xhibit E E

9 . 3. District Court The City made a document demand prior to filing its Motion for Disquali-fication. CEI made several objections thereto but nevertheless turned over to Judge Krupansky four cartons of documents for the Court's in camera in-spect. tori. Judge Krupansky examined more than 600 specifically enumerated documents and denied the City's document request.S/ The City subsequently filed subpoenas duces tecum on John Lansdale, John Brueckel and Daniel J. O'Loughlin in connection with their pending Motion for Disqualification.2! SS&D moved to quash the subpeonas and the motion was granted as to the duces tecum features thereof.S! On June 14, 1976, the opening day of trial in the District Court on the Motion for Disqualification, the City again served subpoenas duces tecur on SS&D's lawyers.S/ The Court quashed those subpoenas as well. Attached heretc are pages of the Transcript of.the proceedings be-fore Judge Krupansky relative to his ruling and we commend their careful reading to this Board.E It is submitted to this Special Board that the City has abused the pro-cess of the District Court and the process of the NRC and that it has engaged in harassment of SS&D,and of its lawyers. It is submitted that the City has had all reasonable discovery through its document production on the merits in 2 6/ daibit F, Order of Judge Krupant'/ datet lebri :y 23, 1976 E 2/ or example, see Exhibit G Subpoena.Dut F s. cum served on Daniel J. O'Loughlin for his deposition on February 11, 1976 S/ xhibit H, Order of Judge Krupansky dated Februfry IS,1976 E '9/ or example,'see Exhibit I, Subpoena Duces Tecum served on John Brueckel -F dated June 10, 1.976. IS/ xhibit J. Transcript of Disqualification Proceedings before the E Honorable Robert B. Krupansky commencing Monday, June 1/,1976, pp. 228-239 O ~.n

. both the District Court and before the NRC, through the depositions of SS&D's witnesses taken as on cross-examination and through the full evidentiary hearing conducted on the City's Motion for Disqualification in the Diatrict Court. The City's application should be denied, or the subpoena, if already issued, should be quashed. III. For the convenience of the Special Board, a copy of the Subpeona Duces Tecum applied for is attached hereto and marked Exhibit K. It seeks records in discrete categories, each of which will be considered separately. 1. Paragraph 1 of the duces tecum feature asks for all SS&D files pertaining to " notes and bonds or other debt instruments for the City of Cleveland including the Division o' 'Aght and Power." This request is not relevant to any issues before thu antitrust board. The request, as it relates to the City of Cleveland generally, is not relevant because is does not aid in establishing "a substantial relation-ship" between SS&D's prior representation of MELP and its continuous and current representation of CEI. That a substantial relationship must be es-tablished has been accepted by the -Jcensing toard, the First Special Board and the Appeal Board as the applicable law. Insofar as the request relates to MEL'P it is not relevant because it does not relate to an issue in the antitrust proceedings before the Licensing Board. MELP bond matters consist of the 1972 bond ordinance and partty bond issues which preceded January 1,1965. As respects the parity bond issues, records with respect to them are irrelevant because January.1, e 1965 is the remoteness cutoff date set by the Licensing Board. Evidence of

. matters prior to that date have been held by the Board as too remote to be raterial to the proceedings before it. This leaves then only the 1972 bsnd ordinance. With respect to it, Chairman Rigler of the Licensing Board has specifically ruled that it is not an issue in the antitrust proceeding and Chairman Rig 3er has stricken from the antitrust proceedings record all evidence relating thereto. The Spec'ial Board's attention is respectfully directed to his ruling as it appears in the Transcript.11/ The parity bond issues being immaterial because they preceded the Licensing Board's remoteness cutoff date and the 1972 bond ordinance being irrelevant because it ' relates to no issue in the antitrust proceedings, the City's request with respect to them should be denied. 2. Paragraph 2 in its several parts requests all SS&D files " referring to" (a), (b) and (e) MELP; (c) Department of Public Utilities; (d) Utilities Committee of City Council; (f), (i) and (j) MELP rates, professional consul, tants, equipment and facilities; and (g) 1972 bond ordin'ance. This request is overly broad and oppressive. In seeking undifferentiated privileged matter and matter clearly irrelevant, it asks for all files simply referring to the categories enumerated. It is a fishing expedition in the clearest sense of tha't term and one which would require months to comply with. There is no way at this juncture to estimate the volume of files involved other than to say it would be great. The City apparently is operating on the theory that if one asks for something often enough it will either wear down its opponent or find a tribunal which will grant its request. II/ xhibit L, Transcript, pp. 7473-7475, 7492 and 7449-7500 E

- ~- f 3.-4. Paragraphs 3 and 4 of the duces tecum seek all' financial docu-ments referred to "in performing legal services for the City of Cleveland." Paragraph 3 seeks documents originating from the City.of Cleveland and para-graph 4 seeks documents or,iginating from other sources. These rsquests should be denied for the reason that they relate to legal services performed for the City of Cleveland and not for MELP. They thus will not, aid in establishing the " substantial relationship" requirement in disqualification matters. More-over, referring as they do to all financial documents, they are oppressive. The Special Board should understand that bond issues for the City of Cleveland handled by SS&D relate to a variety of purposes. These include sewage, recreation, airport and many others. Obviously, these are entirely irrelevant to the issues before the Licensing Board in the antitrust proceeding involving MELP. The requests contained in paragraphs 3 and 4 of the duces tecum feature should be denied. 5. Paragraph 5 requests a letter dated August 12, 1963 from SS&D to CEI to the attention of Mr. Howley. CEI has found a copy of this letter in 1 its files and will make a copy available to the City voluntarily and without l the need for the issuance of a subpoena to Mr. O'Loughlin. 6. Paragraph 6 of the City's request seeks memoranda or opinions of SS&D prepared for CEI relating to MELR prior to the ' City's Petition to Intervene in 1971. This should be denied for the request on its face seeks privileged information. The City is not entitled to discover privileged matter. C.F.R. Section 2.740(b)(1). ~7. Paragraph 7 of the requested duces tecum seeks written documenta-tion of intra-office meetings or telephone conversations of SS&D personnel v- . -..,..-.- - -~.,. --m-- w

1 . relating in any way to MELP. This reuqest should be denied. It is again a fishing expedition. It fails to distinguish between privileged and un-privileged matter. It fails to relate the request in any way to any issues in the antitrust proceeding. It is essentially repetitive of the requests made to the District Court and the prior boards considering disqualification. 8. Paragraph 8 requests a file together with its contents captioned "Re: MELP Sales" referred to in a Lansdale memorandum of October 26, 1966. At the time of the filing of this motion we have been unable to find the file referred to and, therefore, we cannot comment in detail with respect to it. However, it would seem fairly to fall within the objectionable as-pects of the other paragraphs of the City's requested subpoena; particularly, in this instance, it is objectionable on the grounds of privilege and rele-vance to issues before the Antitrust Board. e b I I

. CONCLUSION The deposition of Daniel J. O'Loughlin has al' ready been taken as on cross-examination by the City. He has already testified in the Federal District Court on direct and cross-examination in the disqualification pro-ceedings before that tribunal. All of the SS&D lawyers who will be called to testify before this Special Board have similarly been deposed by the City and have similarly been examined on both direct and cross in the District Court proceedings. The depositions of the City's witnesses have also been taken. Discovery in the disqualification proceedings has been extensive and, indeed, more complete than that found in most important trials on their merits. A further deposition of Mr. O'Loughlin constitutes harassment and is oppressive in character. The application for a subpoena to issue to him should be denied, or if a subpeona has been issued, it should be quashed. As respects the documents sought, prior NRC boards, and the District Court on three occasions, have ruled against the production which the City now seeks with cosmetic changes. The City should not be pernitted by in-portuning this board to avoid the rulings of the prior boards and of the District Court. The duces tecum feature of the subpoena should be quashed for the fur-ther reason that it is overly broad, oppressive in character, lacks the necessary differentiation of relevant and irrelevant matters and privileged and unprivileged matters and, finally, is not oriented t:) the issues before the Antitrust Licensing Board. To illustrate, SS&D's file's referring to the [ l ~

~ e . Public Utilities Department (Subpoena paragraph 2(c)) would' require months of effort to examine and would involve many other clients of SS&D. As respects request number 5, the letter therein identified will be turned over to the City voluntarily if the subpoena is quashed or the ap-plication therefor denied. Respectfully submitted, Michael R. Gallagher // Attorney for Squire, SanBers & Dempsey 630 Bulkley Building Cleveland, Ohio 44115 (216-241-5310) e G 0

r- - - SERVICE LIST Vincent C. Campanella, Esq. Director of Law City of Cleveland 213 City Hall ' Cleveland, Ohio 44114 Robert D. Hart, Esq. First Assistant. Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 James B. Davis, Esq. Special Counsel Hahn, Loesser, Freedheim, Dean & Wellman National City - E. 6th Building Cleveland, Ohic 44114 William J. Kerner, Esq. Office of the General Attorney 1he Cleveland Electric Illuminating Co. P. O. Box 5000 Cleveland, Ohio.'44101 Douglas.V. Rigler, Esq. Chairman Atomic Safety.& Licensing Board Pane'l Foley, Lardner, Hollabaugh & Jacobs 815 Connecticut Avenue, N.W. Washington, D.C. 'Ivan W.' Smith, Esq. -Atomic Safety & Licensing Board Panel U.S.' Nuclear Regulatory Commission Washington, D.C. 20555 John'M. Frysiak, Esq. ~*, Atomic Safety & Licensing Board Panel ~ U.S. ' Nuclear Regulatory Commission Washington, D.C. 20555 ' Gerald Charnof f, Esq. - Wm. ~ Brad ford ' Reynolds, ' Esq. Shaw, Pittman, Potts & Trowbridge 1800:M. Street, N.W. Washington, D.C. 20036' Mr. Chn.;c R. Stephens Docketing & Sers Lee Section U.S. Nucle:'r Regulatory Commission '1717 H Street, N.W. Washington, D.C. 20555' c e-w e py w a --4-u

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u Donald 11.11auser, Esq. Corporate Solicitor The Cleveland E1cetric Illuminating Company Post Office Eox 5000 Cicveland, Ohio 44101 John Lansdale, Jr., Esq. Cox, Langford & Brotm 21 Dupont Circle, U.U. Unshington, D. C. 20036 Reuben Coldberg, Esq. David C. Hjelmfelt, Esq. 1700 Pennsylvania Avenue, N.W. Suite 550 liashington, D. C. 20006 Alan S. Posenthal, Chairman Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Co=sission ..-c. Washington, D. C. 20555-Dr. John H. Buck 3 Dr. Lawrence K. Quarles Atomic Safety and Licensing Appeals Board U.S. Nuc1 car Regulatory Co=aission

: > = r., = i n.. n i Washington, D. C. 20555 Howard K. Shapar, Esq.

Executive Legal Director U.S. Nuclear Regulatory Consission . Washington, D. C. 20555 Mr. Frank U. Karas, Chief Public Proceedings, Branch Office of the Secretary U.S. Nucicar Regulatory Cocaission Uashington, D. C. 20555 mm 0 O Abraham Braituan, Ecq. ooE office of Antitrust & Indesaity }f U.S. Nuc1 car Regulatory Co=sission D Uachington, D. C. 20555 .b 3 .s Jerome E. Sharfman, Esq. Atomic Safety & Licensing Appeals Board U.S., Nuclear Regulatory Commission Vashfngton, D.C. 20555

- ~ ~ ~ --- - - - ~ . Frank R. Clokey, Esq. s Special Assistant Attorney Concral Towne House Apartments, noo:n 219 Harrisburg, Pennsylvania 17105 Edward A. Matto, Esq. Assistant Attorney General Chief, Antitrust Section m /.,.,. 30 East Broad Street, 15th Floor Columbus, Ohio 43215 Richard S. Salcman, Chairman Atotaic Safety and Licensing Appeals Board U.S. Nucicar Regulatory Cocmission Washington, D. C. 20555 -i O. ~ Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board U.S. Nuc1 car Regulatory Cor=21ssion - vashington, D. C. 20555 - - - ~ O Andrew F. Popper, Esq. Office of the Executive Legal Director U.S. Nucicar Regulatory Cor:sission Washington, D. C. 20555 Benjamin H. Vogler, Esq. Joseph Rutberg, Esq. Robert J. Verdisco, Esq. Roy P. Lessy, Pe., Esq. Office of the General Counsel Regulation U.S. Nuclear Regulatory Cormaission Washington, D. C. 20555 lielvin C. Berger, Esq.. Joseph J. Saunders, Esq. Steven !!. Cliarno, Esq. David A. Lechic, Esq. Janet R. Urban, Esq., D g'iM Ruth Grconspan Ec11, Esq. g g }l Antitrust Division Departracnt of Justice p' ,, 9 } g D Post Office Bo:: 7513 ,j_1 Uach).ngton, D. C. 20044 s u--

i h r R. Schraff, Esq. .Christop e, Attorneys General Assistant Enviro::: ental Law Section 361 East Broad Street, 8th Floo:- Columbus, Chio 43215 Thomas J. Hunsch, Jr., Esq. General Attorney Duquesne Light Ccapany 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 Joseph Pdeser, Esq. Reed, Smith, Shaw & McClay Suite 440 1155 Fifteenth Street, U. U. Washington, D. C. 20005 Terrance H. Benbow, Esq. Winthrop, Stinson, Putnan & Roberts 40 Wall Street New York, Itew York 10005 Wallace L. Dencan, Esq. Jon T. Brown, Esq. 'Duncan, Brown, Heinberg & Pcimer 1700 Pennsylvania Avenue, U.U. Washington, D. C. 20006 Robert P. Mone, Esq. George, Greek, King, McMahon & McConnaughey Columbus Center '100 East Broad Street Columbus, chio 43215 David Mei!cill Olds; Esq. John McM. Crs=er, Esq. Uilliam S. Lerach, Esq. Reed, Smith, Shau & McClay m 91 Post Office Box 2009 D Pittsburgh, Pennsylvania' 15230 Gw m, q <~ A _. ]L _a e I

3 ~ John C. Engle, President MIP-0 Inc. 11unicipal Buildi.ng 20 li?.th Street Itamilton, Chio 45012 Victor F. Greensinde, Jr., Esq. Principal Staff Counsel The CJ.cypland Electric Illt=rinating Conpany Post office Box 5000 Cicycland, Ohio 44101 Lee A. Rau, Esq. Joseph A. Rieser, Jr., Esq. ..need, Salth, Shav & licClay Suite 404 11adison Du'ilding Was.hington, D. C. 20005 ' Leslie IIenry, Esq. Michael 11. Eriley, Esq. ... u c,..... ,,s .2 d

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.,u.... Roger P. Klee, Esq.. Tuller, IIenry, IIodge & Snyder 3001!adison Avenue , Toledo, Ohio 43604 ~ .. Pennsylvania Power. Company .u...,.,...,. _,m,,,,.,,y,,,,, One East Washington Street - 1!ew Castle, Pennsylvania 15103 ~ Elizabeth S. 'Bokers, Esq.. Chairman Atomic Safety & Licensing Board U.S. Nucicar Regulatory,' Conraission Washington, D. C. 20555 . Edward Luton, Esq., Member ~ ?- Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commissioh Washington, D.C. 20555 I pe Thomas U. Heilly, Esq., Member D DJ Atomic Safety & Licensing Board e.; c.I U.S. Nuclear Reguintory Connicnf on U shington, D. C. 20555 0 g-f v _s Q Secretary U. S. Nucicar Regulatory Commission Uashtndton, D. .'20355 Attn: Chief, Docketing and Service Section A

6-Robert M. Lazo Esq. Chairman Atomic Safety G Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Andrew C. Coodhope, Esq. Member Atomic Safety & Licensing Board 3320 Estelle Terrace Wheaton, Maryland 20906 Daniel M. Head, E.<q. Member Atomic Safetyl & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 9 b e eoi bb5 4 u r

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L' CITY OF CLEVELAND, ) --CIVIL COMPIABIT No. ) Plain.iff, ) e ) s .,s- ) RILED ) Tim QLEVELAlm ELECTRIC ) ILLUMBIATING CO:TANY, ) DUQUESNE LICHT CGTANY, ) OHIO EDISON COMPANT, '*)- ~ PLAINTIFFS DHfAND A' JURY TRIAL PENNSYLVANTA PG.'ER COMPA:IY, ) THE TOLEDO EDIS0:1 CatTA!!Y, )

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., ~ ~r! ' ' '~ .w;C. ; r =.;- COMPLADIT ,., g cg 55 '.". The City of Cleveland, Ohio, a municipal corporation of the State 'of Ohio, plaintiff, by its, attorney, brings this action against the defentniits named herein, and, demanding a jury trial, complains and alleges as follows: g JURISDICTION END VE ME' \\ 1. This complaint is filed and this action instituted against defendants under Sections 4 and 16 of the Act of Congress of October 15,1?74, L as amended (15 USC' 5515, 26), cot:rionly known as the Clayton Act, in order. g to provide compensation to the plaintiff for past and continuing violations 0, of, and to restrain the defendants from future violations of Sections 1 and 2 of the Sherman Act (l', 3SC 551, 2). 2. The violations of law herein described for the most part have been and arc being entried out within the Ncethern Distrlet of the Stetc of Ohio tihere the defendants transact business and are found. Three of the defendantn, na=cly The Cicycland Elcetric Illuminating Cotapany The I

-6 a. f 4 C ( Toledo Edison Company and Ohio Edison Company taintain their principal offices in the Northern District of Ohio. All the defendants frequencly participate in scotings of the CApCO orCanization (referred to below) held within the Northern District of Ohio. The acts complained of affect business 4 within the Northern District of Ohio. 3. The defendants' acts alleged in this complaint vere authori cd, ordered, or, done by the t.icers, directors, agents, employees, or repre-OA D sentatives of the defendants while they were actively engaged in the manage-D QQ 4 ment, direction or control of their affairs. .n - g-k J1_. 2. 7 g / g i Ird a .b . 'hDEFINITIONS " ' ~ f. 9 D "..# d..A. sus.edherein: r 7120.Mr.t /.. 4 imw'r, z.;(--.. a) *Eim pear"mnans pasar intended to have assured availability ..to the customer as might be experienced from a system of two or more ther-41 mal generators of a given size with an.erpected continuity of supply greater .. u..,, ..g.o...- than expected from a single thermal generator, of the same size, considering - the likelihood' of mechanical or electrical breakdowns and need for routine , 1Baintenance.. ( , (b)., "Reserveh" means the planned.or actual. difference between.the insount of dependable generating capacity and load requiring firm power service used to meet predictable contingencies such as forced outage of gen-erating units, maintenance outage of generating units and load predicting inai: curacies. (c) " Bulk power supply system" means a system of two or more generating units at. a single generating station joined by conductors, or a I system'of two or more generating units at two or more generating statiocs 0 joined by transmission lines, to operate as a supply of fim powcr in bulk and associated energy. (d) "Normally-in-parallclh means operation of bulk powcr supply .) facilitics of two or more clectric utilitics, normally cicctrically connected 'so that the rotating turbine r.cncra' tors of onp bulk power cupply cynten ar'c electromagnetically interlocked with those of anothcr or others and emergency ~. e.. 6,,, '.. ?:, {y;.

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g for interruptions of continuity in service to firm power customers. Operatio r "in-parallel" is sometines referred to as operation in synchronism or cyn-4 chronous operation. (e) " Reserve sharing", means a plan of coordination of operations o two or more electric utilities to.s'upply each otiter with emergency power when available (to the. suppliers thereof) to take advantage of expected diversities. in forced outage, and need fok maintaining generating units of the participating systems, so as to obtain benefits of reduced reserves or 1 97 D ' O the economics of larger size generating units or to benefit from enhanced i 6 @a-p continuity of service or any co=bination thereof. FQ { Qr ii g (f) 9

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" Coordinated development of generation" means a joint planning w.. r.' ' s a .s v d ..arran e .t _.. _g ment-for the development of new generating facilit;ies of two or more .* w s...r.. c ~ d Lppr.licipating systems so as to pool their ' anticipated load growth and meet y . :rs. a. 3 - the pooled need with larger', more economical generating units (consistent h ..'with reducing excess reserves) through one of several types of contractual e h arrangements. y ( (g) " Coordinated developme.se of transmission" means a joint plannin n h .arrangem'ent-for the development of new t, ismission to 'take advantage of J ' economies of scale available from :the ur

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(h) " Wheeling" means an arrangement in which one electric titility ,I uses the surplus transmission facilities of another to obtain pser from a h source not directly connected to the system of.the former.. p (i) " Integration" means obtaining the benefits of various kinds of I coordination 'of bulk power supply facilities and bringing them under a common t' y( ownership; the term " integrated" is applied to an electric utility which has i don's so. 3 i (j) " Power cxchange narket" means a market for the various types + 4 of service availabic fron coordinating utilitics, such as emergency or ^ maintenance power and energy under a plan of rescrve sharing, power and energy from a specific unit under a plan o'f coordinated development, wheelic:; i scrvices, opportunitics for investment in joint gcnaration of transmission s facilities, and the like. '-3 + h,. .M .m*. . en s

e ~.- -. 2.. C c (k) " Loan transfer arrangement" ecans on arrangement for supply of power between two utilitics not operating nornally-In-paralici, by switching so,as to separato sc c portien of load supply systen and connecting such loads with another system. " Live load transfer" neans an arrangement for temporary synchronous operation prior to the load transfer so that 'no interruptions in service are necessary for the load thus trans-ferred. " Dead load transfer" ceans disconnection of loads from one generating source prior to connecting them to another source thus necessitaticg + temporary interruptions in service. (1) "D'iscribution systen" means a systes of conductors or cables m m1 0 ~~

• j and appurtenant facilitics operating at voltages lower than usual D

b*r'- ..,,..u.,w p.,- gy: ( w-ctranamf asion voltages utilized.to subdivide a bulk power supply for delivery ~ or IT, A' I :i- ~ * ~ D i.; sad, sale.co a number of smaller. loads.in a co=munity or portion therof - ~l 3 ~~ or a. local rural area.

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• *. Bulk firm power barket" ceans a market for the purchase and

~ ,.(m) .. 4;211-i sale or supply of firm power' and energy in bulk to a distribution system for- . resale. (7 . '= [E' ' f i ' \\ ~ (n), ".r, etail fitu power market" means a market for the purchase R i and sale-of; firm power to the ultimate users thereof. I (o). '"Contro1' area" means an electric system within which a no=ent to noment balance between power resources and load is maintained. If such electric' system is int'creonnected to another electric system control area, such normal operating mosentary balance of resources to loads includes i scheduled interchange of power in and out of the control area. (p) " Boundary tie" is a point of interchange where power flows t between two control areas as ubnitored. I (q) " Isolated system" means a bulk power supply systes not big enough to be' a power exchange itself, and-not having access to a power cxchange narhet. Such systc=s are restricted to using==all ccale units j and forced to carry large percentages of idic generating capacity. 5. Unicss inappropriate in the contei:c. references to transmission,- { saic, marketing, or delivery of c1'cetric power V 1 include clectrical !a energy associated.thcrcuith. n

• 9*

YO~..,

9 ( III PLAINIITF 6. Plaintiff is a nunicipal corporation organized and existin; under and by virtue of the. constitution and laws of the State of Ohio and the Charter cdopted by its people.

• 7.

Plaintiff has for pany years engaged in the electric utility business both in the supply of fim power in bulk for use in its local distribution facilities, and in the retail sale of electric power from those facilitics in and about the City of Clueland. Plaintiff has operated and continues to operate an isolated bulk power supply systen, with three i' exceptions: (a) certain low voltage connections incident to temporary, .,, * ]{,,.,j".. emergency purchases.of a portion of 'its bulk electric power an +

• 3 re'~uirements obtained by load transfer arrangements with The Cleveland g

,Dl-l.q D 1 nt FEl'e~ctric I11 urinating Company (hereinafter referred to as CEI) necessitating v w JL - s.'. dead lo.ad transfers, (b) a temporary 69 Ky non-synchronous interconnection 0 t A ,,itaCirforthesu,,17 of energency power by Ctr to,1aintiff over which V -s JL Q .a live load transfers were physically possibl.e,but defendant CEI refused .,. - q , f .t..... permission to synchronize prior to the transfer, insisting on dead load 1 transfer with the intent and anticipated effect of causing p1aintiff's retail

• customers to be dissatisfied with their electric service and to seek CEI's

-< service instead, and (c) a 138 Kv snychrono(s interconnection with CEI for. the sup* ply of emergency power only by CEI to plaintiff on terms unsuited to meet plaintiff's present n'eeds. Load transfer arraegments over,the low voltage connections were terminated by CEI and the 69,Kv temporary inter-connection was dis' continued on or about May 2,1975, when the 138 Kv interconnection became operative on that date. The 69 Kv.and 133 Ky inter-connections were directed to be established by tile Tcderal. Power Co=missicn a in an order issued March 8,' 1972 and in Opinion Nos. 644 and' 644A i cued January 11, 1973, and March 9,1973, respectively, in FPC Docket No. E-7631, et al., City of Cleveland, Ohio.v. C1cveland E1cetric T11uminatine Connanv. W I .t -s .m.m . Yl9,.r.m Y - f %-,,,,,.,r =w--~~-e==~- ,,, f

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wqy _c (. . $~ IV DEFE!!DANTS 8. CEI, named a defendant.herein, is a private corpo:ction organited and existing under the laws of the State of Ohio and has its principal of fice in C1cveland, Ohio. CEI is c.n c1cceric utility engaged in bulk fim power supply and retail distribution of fim power in and about the City of Cleveland and in surrounding areas, and in. the purchase and sale of power exchange services in the power exchange market; CEI supplics retail fim . power in a 1700 square mile area in Northeastern Ohio. Its 1972 peak load A }hr or B and generating capacity were, respectively, 2822 Mw and 3395 IN. , megawatt is equal to 1000 Kw or kilowatts. Thus, CEI had generating capacity e.. J, tota ms 3,395,000 kilowatts. .,.,..w..%.. #._ .4 p. .~ h = u;r et.49.* ,CEI and the City of Cleveland compete at retail in the sale

j 'and. distribution of electric power and energy to existing customers and for I

mo O E a new loads in a substantial area of the City of Cleveland; the City municipal WO

,. light system serves approximately 20% of electric customers within the city

.at present. Repeated interrup io s ser i e t plaintiff's retail 0

• f

-customers as a result of the dead load transfers have assisted CEI in this ~c, s.... W@..i.3 3. i.;r%.. -.. . *..,,.. o E e. ;rp *:&;*r.. ; ' ; - .z. n....;. .: regard. '. '. :. ;.,, Q ': qJ.. *(j.. : {:y,,.g.

10. CEI has also sought to market fim power in bulk at wholesale to 4 the City of Cleveland, thus displacing the City of Cleveland {s prog' ram to expand its own bulk power supply systen to meet its load growth.

11. CEI has an integrated bulk power supply system of generation s

and transmission which is interconnected and-coordinated with adjacent I bulk' power supply systems owned and operared by, others, including direct interconnections with those of the Ohio Edison Company, Ohio' Power Cor.;any,, and Pennsylvania Electric Ccmpany.

12. Duquesne Light Conpany, named a defendant herein, is a private corporation owning and operating electric utility facilitica consinti n of..

.singic integrated systen for the su -ly of firm power in bulk' and at retail in 'an area of 800 square miles in Northwestern Pennsylvania, in and about Its 1972 peak Pittsburgh, and buys and cells in the power exchange earhet , 1.-4 and generating capacity were, respectively, 2075 ffw and 2176 Mw. - -.1..,- .**'**=*-*e*Me*=--+--..w-. ,,s, E 8. ** '/ d t* F). '.,-

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13. 0hio L113on Company, and its wholly owned subnidiary',

Pennsylvania Power Company, coch naned as a defendant herein, own and operate a singic integratcd w;r: ten supplying firn power in bulk and at retail in generally contiguous arca: of Central and Northcostern Ohio and Western Pennsylvania and purchase and sell in the pove'r exchange market. Their integrated system load and generating capacity as of 1971 vere, respectively, 3328 Mw and 3899 }!w. 14. The Toledo Edison Ccepany, named defendant herein, is a private corporation engaged in the public utility function of marketing fitu power in bulk and at retail in an area encompassing 2500 square miles to the I West, South and East of and including the City of Toledo, Ohio, and I purchases and sells in the power exchange ma'rhet. Its 1972 peak load and

• u.-.

= . geherating ca'padity'ssie;' respectively,1096 IN and 129319. l ,5. befendants are interco:nected}by high-voltage or extra high-

• '~ ti),e*I Eanmission'dir6ctly o'r"ind'irecE13 and have foi many years, 'a't f-vo t

t least since February,1955, operated norm 11y-in-parallel and engaged in , limited power exchange arrange =ents s.ith each other and ' adjacent utilitics i (except plaintiff and other smaller systems actually,or potentially in com-9T'fO D petition with them). w&S

16. In and after 1967, defendants have pooled their sutatantial Q'

0 s O\\ L - financial 8nd Power 'reiodices 't'hrough'an organiiation 1movn as CAPC0'and g u u through a number of contracts co=enced to carry out more intensive forms of reserve sharing and coordinated development of generation and transmiss, ion. CAPCO is an acronym for Central Area Power Coordinating' Group.

17. Members of CAPCO can withstand significant forced outages of generating capacity without curtailing supply of electricity at retail; they, have greater flexibility in scheduliny, maintenance of generating units as a l;

result of the CAPCO arrangement. 18. The generating capacity and load of each of the defendants' integrcted bulk power supply cyntent is cubstantially larger than that of plaintiff's system.

19. To the best of plaintiff's knowledre m d belicf. the centined generatang capacity and load of all the defendants as of 19f1 was, ri :pectivcty, 10,315 IN id 9,147 !!w with ruacrve; of only 13% cocpared to M #

.q ^' 3.. generatinn capacity and 121 W of Iond for plaintiff'n inolat'ed Luik power supply system in 1973, a roughly conparable period. 20. Defendants by pooling their annual load growth through CApCO are abic to achieve pooled load growth of 650-1000 Mw in annual inercrents and are presently planning, or haee under construction, generating units in sizes ranging from 600 to 1200 lu, but nonethc1 css plan capacity installa-tions to maintain installed reserves of approxicately only 15-20% as a per-centage of peak load. In ec paris:,n, as a result of its isolation from the power exchang'e market, plaintiff's largest generating unit is 85 Mu and it has been maintaining as much as 80" installed reserves. V . TRADE AND COMMERCE '. f .g...I '21.- The electric power industry is comprised of three product .s'.

.

= L. i markets: the retail firm power market, the bulk firm power market, and the i ' h o E exchange market. Using generators which convert into electric power -energy obtained from the co=bustion of fossil fuels, from accmic reaction, or from the kinetic energy of water, electric utilities conbine two or more _ sources of such generation into systems of bulk power supply capable of I g D supplyin;; power with,a reasonabic continuity of service so that it is uv.c . marketable as firm power, either through integration of several' such sources OP 9 g g iunder common ownership,.or the coordination of sources under one ownership O. with those of another through high voltage '(or extra high voltage) transmission g a w ' lines. i

22. High voltage or extra high voltage transmission lines serve as the integrating or coordinating nedium, combining diverse sources of gen-erstion into a firm power supply, integrating ur coordinating load conters to car'ry out programs of coordincted developecnt. Transmission lines also serve to receive c1 stric po::c frer. a bulk po:cr supply systeh and supply Power to load centers. Transmissica facilities owned and operated by others nay be utilized to carry out any ene or more of these functions. Electric utilities owning systens of distribution facilitics sell power at retail-to the ultimate consunces of such power and energy. Many modern day utility

systens are not only integrated n

.d coordinated bulk pouct suppliers but are also ver.tically in tegrated pouce suppliers and dist'ributors of c1cccric w

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.. s. e.,,. -~ b encrgy at recall. Each of the defendants is so vertically integrated. 23(a) Where actual or potential competition in the retail narhets exists, both price and quality of the available bulk fim power service, particularly 'scrvice continuity, cre i=portant detcrainants of who will pre-vail in such competition. There are substantial.cconomics of s ale for base load generating units which are the source of the major portion of kilowatt hours generated and sold by an ele:tric utility. Thus it is vital for any conpetiits electric utility to obtain sobe part of its power supply from large size base load generating units while maintaining a reasonable icyc1 of re-serves (e.g.,12% - 25%) and yet previding sufficient reserves so* that the . ' risk of interruption of service continuity does not exceed a reasonable level. - (b), Absent interconnectica normally-in-parallel and arrangements I, f. g.res*erve.. sharing coordi. nation., as. isolated utility 1::ust self-insu.r.e by .r... .Eafataining reserves at least equal to its l'argest generating unit. ~ (c) Absent coordinated development it must install small scale 1 new generation limited by small' increments in load growth. Access to the group insuran.:e of reserve sharing and to coordinated development will increase s g.- the size of generating units economically availabic to a bulk power supplier . permitting use of them with'out drastic increases in reserve requirements Q OI inevitable under, isolated operations. ' ', '. ~. D g gg, ',(d) In the power exchange market a reasonable premiun by way of Q' g ' @ } -installed reserve require =ents is a percentage of pea load to L'e maintained [_ ] by each participant wh'ich e sures that the power pool as a whole can adequately protect against r'.sks of forced outs te and enhanced risk 1cvels caused by maintenance outages. Benefits available from t!ic pooling of risk and dealing with it ' collectively are al' located in an equitabic canner by a fair share of the costs of dealing with such risk. I m (c) Other savinga from p:;rcr pooling include savings from an i economic dispatch of generating units based on fuels costs and generating l efficiencies so that the Icast cost combination of generating units availabic at any time to either of the power c.:: change participants in utiliced for supply With the r:aving: normally split be:veen the p irtIcc. This can also he accc - . T*]~l.?YE a. ~.T c,--,--- _. I. 5 a.' % ~. ; '\\.' ' * ',. YU- - - ~ ~ ~, ~ *. - * ".. M WGE-l * .?,,.. .e

• rk'O o.

- ~ ~ - - ~ ~ 4.g, p . c. plished by economy encrcy transactions between two or inore u> stems af ter each has carried out its own econo =ic dispatch. (f) Under-utilized trans=ission capacity can sometines be coro ~ fully utilized where bargains in generating capacity bccome availabic to a bulk power supplier having access to the power exchange rarket. tatile distance cay make it unfeasible to build sna11 scale transnission to such a low cost source of power, surplus capacity in large scalo facilities of ten . sids in establishing feasibility of. arrangements of that kind. VI DTIERSTATE CO:CIERCE

24. Each defe,ndant, with the exception of Ohio Edison and l

f Pennsylvania Power, operates as a single control area; defendants Chio Edison and Pennsylvania Power, operate jointly as, a single control area.

25. The foreloing control areas are interconnected and operate cormally-in-parallel with each other and with a great a ny other such control

. areas extending from the eastern seaboard of the United States and westward ,at lea'st to the Pocky Mountains, south to the Gulf. Coast and points in Texas, and north to points in Canada. L-c. 26. Defendants operate u$ der a method of area control known as " tie-

line bias cc..strol" under which aute=atic pool 'ssistance is automatically a

provided to areas of need, ordinarily without interrupting continuity"of service. To the best of plaintiff's knowledge and belief,' each defendant is a member of Nortis American Power Systems Interconnection Co=nittee (NAPSIC) eo D D

p..

and adheres to the NAPSIC operating principles and gu' ides. v v,

27. The facts referred to in the paragraphs 24 through 26 pemit g-m[

_[g each defendant to enter into scheduled bulk power supply transfers with any' m system'with which it is interconnected, either directly or indirectly, af ter arranging for any intervening transnission.

28. By their interconne:: ions, defendants are connected directly or indirectly to some 100 private corporation cicctric utility systems, to the Tennessee Valicy Authority, three federal power natheting agencies, and

• - come ICC'C nunicipal nad rural cle: ric. cooperative syntre. s operating prin-cipally outside Ohio in.so o 39 states.

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29. Ordinariry, defendants arrange transfers only with the nearest of these. to avoid cicetrical losses and because of the need to arrange for the use of intervening transmission.

30. A teletype nachine at each control area gives each of the de-fcadants access to daily status reports on the generation and loads of e

others in the so-called "ECAn" group so as to know who has surplus power and who y be deficient. ECAR is an acronyn for the East Central Arca Reliability Coordination group, a reliability organization which includes all CAPCO members, the subsidiaries of the American Elcetric Power Systen -and a number of others in the East Central area of the United States.

31.. The defendant, Toledo Edison,, frequently schedules interstate l.transfersacrossthe.chio-Michiganstate,line.

t [,,_,. d32. ' The,defenda6ts, CEI, Ohio Edison (and Pennsylvania Power), and ~ puguesne flight Company, frequently schedule transfers to and from Ohio g

Power Company. Ohio Power is part of the American Electric Power system.

..and thus, is a part of a control area covering poz:tions of seven states, power scheduled to and from Ohio power by each of the foregoing defendants may originate or be used in any of the states of Ohio, Indiana, Michigan, e b

• Virginia, West Virginia, Kentucky or Tennessee.
• 33. As a result of the cathod of operation utilized by each defendant I7 as prescribed in the UAPSIC' operating guides and principles, auto =atic pool assistance originating anywhere in at least 39 states in proportion to the

" bias" commitments of each dysten, is utilized by each defendant to pre-serve continuity of its retail service and in turn each of the defendants has committed itself to provide its fair share of outc=atic pool assistance to aid others located elsewhere on the entire interconnection of systems. ~ am m. D

34. As a result of the electromagnetic ine. rlock and the free flowing.

OQ characteristics of bulk power supply systens operating nornally-in parallci, Q f L generation utilized by one systen =ay have originated on any other system O and vice versa. The control area cathod of regulation does not attempt to V block flows on' specific boundary ties, but. for control arcas uhich have tuo . or noro boundary tics generation is dicpatched based on the. net flow of the.

tico. Thus, energy may be flowing in over one tic, and out on another, even

• i y

7 ' - a uT.'. . = ~~ :,. s.~ n, .:,.. m --~, w:.=-x y.;

o p* ** p.#, "- .C c though no transfer of encrgy is scheduled. Each defendant's control arca has two or inore boundary tics.

35. The elcetric system of the plaintiff is surrounded by the transmission'and distribution systc= of CEI. Defendants' transmission syste:s are intet:onnected with each ochar cad through such interconnected syste:s, defendents dominate and control a: cess to c1cceric pouce systens other than those of defendants in the sale and purchase of cicetric power in the bulk

~ firm power,and power exchan~,c markets. Plaintiff thus must rely on one or cort of the defendants or on all of the defendants jointly for obtaining transmission of bulk firn electric power and energy' sold by plain' tiff to J other electric systems, or purchased by plaintiff from others for resale k,-toi its rcsala customers or for access to a power exchange market. s.

2. L

- *:.. : m.. . . r u g JURISDICTION OF ADENISTRATIVE BODIES

36. Each defendant is a public utility uhider the laws of the state in wh'ich it is located. To the best of plaintiff's knowledge and belief, each is also "a public utility" vithin 'th'e meaning of the Federal Power Act (16 USC 791(e)) and su*i,ect to the jurisdiction of the Federal Power Commission. Neither the state' ce=nissions of Ohio and Pennsylvania nor the Federal Power Commissiod have either exclusive or comprehensive jurisdiction over these entities. None of these commissions h'as any jurisdiction over,

nor authority to remedy most of the acts complained of herein; for example, neither the state co= missions, nor the Federal Power Co= mission has any authority' to compel wheeling, prevent boycotts in progra=s of coordi-nated development, or remedy wholesale-retail price squeezo. Plaintiff has ~already invoked the jurisdiction of administrative agencies which can D** D '*li've it fr m s me Portion of ths acts complained of herein. og

37. Each defendant.has also been subject to the licensing 4

"g jurisdiction of the Nuclear Regulatory Commission (formerly the Atomic Energy y Q Coc: mission) in constructin's and ope:ating nuclose sencrating units. u That agency has authority to determine whcther "activitics under [a] license woulr* crease or maintain a situatics inconsistent vith the antitrust lava" (42 USC 5 2135 (c)) and uust condition a license to remedy such situations in the future. The R.: 1 cad Tnulatory Comniosion does not hape -1:_ 7"****N-- .,w,p,_. _we= a we.== e.eu. _

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C C .1.. 1 jurisdiction to determine violations of the antitrust'Inws nor to award damages for past violation. Such actions are expressly preserved by 42 USC 52135 (a). VIII 0;-TCSIS CDaGD A. Conspiracies .fS. Beginning at least es early as 1965 and continuing thercafter up to and including the date of this conpleint, defendants have engaged in continuing unicuful combinations ani conspiracies unreasonchly to re's' train . and monopolize interstate trade and con =erce in the power cxchange market, k in',the bulk power supply of fim electric power in the wholesale market, = E and retail distribution of fim electric power in its own service area, in i j violation of SerHan=.1 ar.d 2 oEthe Sheman Act.

39. The aforesaid combications and conspiracies have consisted, inter alia, of continuing agree:nents, understandings, and concert of actions between 'and among the defendants, the sbstantial tems of which have been:

.. ~ ~ (a) To refuse to wheel or to allow the transdssion of ' electric power and energy ' fro:2 other power suppliers to plaintif.f, or frc:2 plaintiff to any other electric ' y.t111ty systen which is an actual.or. potential c.ma. competitor of any of the defendants, over transmission lines owned or controlled by the defendants.or any of them. a (b) To boycott and refuse'to deal with. plaintiff and others in the power exchange market, except on tems that would maintain domination and exclusive control by the def&ndants over electric bulk power supply in the area served by each, and that would be harmful to the interest of the plaintiff and other actual and potential conpetitors at wholesale or retail. (c) To refuse to admit plaintiff to membership in CAPCO or to otherwise pemic plaintiff to have access to j Q! 9 0 the benefits of cecrdinated operations and development or eny other 3enefie of power pooling or poyer exchange services. V, q' g' ~ (d) To engage in other activitic:: for the purpose and e O k with the effect of restraining and clininating ,AJ competition in electric power and energy, e w 40. For the purpo.4e of effectuating and carryin7. out the aforesaid combinations and conspiracies, the. defendants have done those things which as dcccribed Jn paragraph 39 cf *his comp!nint th / acrsad to do. _. ~..,. . - - - - ~. . y ' Q y, $, u ' N A L g @ ;).'.i' h *'.$,,h, - !.!<;. Q.--

• ?F.'

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3 ( ( 7 3. Attempts to ttonopolize and rtonopolization_

41. Beginning at least as early as 1963, and continuini: thereafter to and including the date of filing this cenplaint, defendants have engaged in a continuing attc6pt to monopolize and have monopolized interstato trade

.and commerce in power exchange services, firm bulk power supply, and firs retail power in substantial areas of 1.'estern Pennsylvania cnd North-eastern Ohio, in violation of Section 2 of the Sherman Act.

42. Pursuant to and in furtherance of the aforesaid attempt to nonopolize and monopolization, defendants have prevented the City of Cleveland from:

,(a) - Obtaining an interconnection for operation-normally-in parallel; 2 ' n ~. .v (b) purchasing power and energy f*ns sources other ,u than..CEI;. r e..wr-r., (c) maintaining its generating units in good operating condition;., .(d) expanding its own generation with bulk power s_upply ~ which participates 16 economies of scale available from access to the power exchange market; 1(e) competing for industrial loads; t,.... ? v '(f) issuing bonds to finance improvements and extensions o,f ..its system; 7.. (g) ' ut[1hing the only available transmission grid to obtain fire electric power in bulk fron* sources other than defendants; (h) utilizing the only.available transmissfon grid to participate in th.e power exchange market; (i) constructing transsission lines to interconnect its system uith the electric syste=s of the Citics of Painesville and Orville to.effect the linited pover exchange arrange =ents available thereby; (j) providing continuous service to its customers with D @,@ ]0, CEI's 1nowledge of the anticipated and actual effect of service interruptions on the ability of the City hJJ to retain its custo=ers uhile CEI held itself out to provide servica with few intcrruptieng to these sane _'Q"y 1 D n customers; d

,,- [ ;

g - (k) retaining as its customers 's substantial nus.ber of retail industrial and large en=nercial custo-ers who switched their patrenage to CEI as a result of frequent sc.rvice interruptiens; (1) achieving the growth in load it would have achieved absent any anticonpetitive restriction in power exchange cervices. ' lYy~~ ~

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43. Each defendant, because of its integration of h. ilk power supply over past years, has achieved a significant degree of economic market power,in the electric power exchango market in its own area and through exercise of such power CEI, in violation of Section 2 of the Sherman Act, has been able to prevent plaintiff at least as early as 1960 and continuing thereaf ter until 19',5 from obtaining a co :petitivo supply of poect exchcnge services uhich tould have permitted plaintiff to compato with full vigor in the bulk firm power supply and retail firm power t

. markets; cach of the defendants has accomplished the same result against -s=a.11er actual anc potential competitors in its own market. The conduct - following 1965 referred to in the preceeding paragraphs, reflects the exercise . of substantial market power available to each defendant fro:2 its own _ ~.... ..... + -... integration.,.a.s m. a..gnif.ied.t.hree o,r...fou.r. fo.ld. by. addit.i.o,nal.m.a.rket power of a 3 ( simila.r kind as a result d CAPCU coordination.

44. Pursuant to and in furtherance of said attenpt, early in the 1960's CEI set forth as the corporate policy of its management its s

.: ~ .s continuing intent and objective "to reduce.and ultimately eliminate" its last two remaining competitors in the sale of retail firm power from .a c.entral sta.tions..,. plaintiff and.the City of. Painesvil.le, O.hio, and to. implement' .r., ... rA ..r s.... .w_. v. that objectiva 'a) by preventing expansion of their facilities, (b) by ( preventing interconnection between them, and (c) by prcmoting interconnection of plaintiff and Painesville only with CEI thus leaving CEI in substantial control over the terms,and conditicas,thereof, the nature and 'the extent,of ace'ess by pla'intiff and Painesville to power exchange services, and permitting ~ CEI to seek ariticompetitive restrictions on plaintiff as a condition of QQ t 0 ^ 1 45. Pursuant to and in furtherance of the aforesaid attenpt by 9 g ~{ ~ ictter of september 17, 1962, Cn1 offered voluntarily to interconnect with u}J ,JL. ] Plaintiff's bulk power supply systes for limited power exchange but only on the condition that plaintiff raine itu prices for retail nervice so pinintiff's rates would be no Icwcr than those of CCI thuu climinating retail price cc petition between CCI and plaintiff. es eh * .i. 9

gr,.e ( ( a

46. Pursuant to the aforesaid attempt and nonopoli:stion, by Iceter of August 30, 1973, CEI refused to wheel power availo'ile fren P.m.-(

(Power Authozity of the State of New York) for the reason that availability of such power would enhance plaintiff's chility ta compete with CCI in the retail fire power market.

47. The aforesaid offenses may continue unless relief hereinafter prayed for is granted.

II EFFECTS

48. The aforesaid offenses have had, among other things,' the

.o s. following effects: L -' (a)" DefendanEs, individually and in co=bination, have i* ~?" -"-' r,n' been able to impose unreasonable restraints on r trade and c,o=serce in electric power in Northeast. Ohio and Western Pe:'nsylvania; (b) CEI, individually, and in co=bination with named defendants has been able to preserve and expand a monopoly position in the trade and co..erce in electric power in 1;ortheast Ohio; >e s.. (c) Defendants, individually and in combination, have been able to restrain competition in the retail and wholesale markets for electric firm power in

• -d+ - J: g' Northeast Chio and Festern Pennsylvania; F**

~(d) Plaintiff is being denied the opportunity to perform. needed maintenance of its generating units; (c) Plaintiff is being denied the benefit of lower co'st power, enhanced continuity of bulk power supply, and the profits of increased efficiency and operation and expanded sales which, but for activities of the defendants, would have been availa'ble to plaintiff; D1.m' O (f). Plaintiff's custoners are forced to pay rates higher than they would pay absent the restrictions herein O g' Y complained of and are cuffering repeated, unnecessary interruption: in the sqply of their electric power m" ' e 0 l f at retail with the result that many of then have g been lost to CEI; ,v (c) Plaintiff has suctsined and continues to sustain [ losses in the valua cf its business and property. }';

49. As a direct and pr:::inate result of the unlawful conduct 4,j hereinbefore alleged, plaintiff has incurred and continues to incur excessive U

-f. co:ts and cxpcases it otherviz.c vould not have.had, has lost sales it w.

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otherwit:c would have nado and has sustained anj continuco to sustain loss in the value of its business. Plaintiff has not finally ascertained the dollar amount,of said d r. ages which are continuing but believes them to total in excess of $109,889,003. *tnen the c ount of danages has been more fully ascertained, af ter conpletion of discovery in this action, plaintiff will ask' leave to a=end this ce= plaint by inserting said unount heroin. I PPJ.YER FOR RELIEF WHEREFORE, the plaintiff, City of Cleveland, prays that' judgnent be granted in its fairor and a* gainst the defendants and each of them in an amount of not less than $109,859,000 trebled, together with interest from the date of judgment, expenses of litigation,'and reasonable attorneys fees, and '. that defendants be permanently enjoined from engaging in, carrying out, or ~.g. ;. w.. ' renewing any contracts, agreenents,Jpo11cies, practices, or understandings or claiming any rights thereender having the purpose or effect of continuing, . f, . reviving or renewing the aforesaid violations,of the Sherman and Clayton Acts . c.l; '. or any contract, agr,eement, policy, practice or understanding having like or . nimflar purpose or effect and that the City o'f Cleveland be granted such other .%. i n .a er:: ..,?. :. '. ' e J. r and further relief as the Court may deem just and proper. , Respectfully submitted,, l s JJCIES B. D VIS Director of Law By:. m) E03ERT D; HAH 7

• First Assistant Director of Law m{ o m) 0 0

t Room 213 - City Hall V Q Cleveland, Ohio 44114 + g-(216) 694-2717 U - k) Attorneys for Plaintiff, Q V City of C1cveland P s y---..~...~._- .1 ' . : k.,.;... ~.. -1.. . m

e il ~ E o s g S- ? 6gy g 7 THE UNITED OTAIES DISTRICT COUR; i L i-h. 2 7 + (." d 11 ,,L ,i THE MORT!!ER:! OISTRICT OF OH20 211

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\\ iL p e., EASTE?.:. DIVISIO:1 i _, (, .. u :.:a r.:..r.a. : 1. CITY OF CLEVELAND, ) CIVIL ACTICli 00. C75-560 Plaintiffs ), I ll ) v. ) 't ) N 2 CLEVELAND ELECTRIC ) ,, ILLU;4IIIATING CO;4PANY, et al., ) if ) f Dofendants ) !.'E:40RA!!D'DI AMD ORDER KRUPANSKY, J. 1 i l Defendant Cleveland Electric Illuminating Company n (CEI) responded to the January 7, 1976 document requests of plaintiff City, complying in part and objecting in part to X "said requests. In conjunction uith its several objections, l j defendant CEI' submitted to the Court for in camera inspec-I tion, four cartons of documents subject to claimed pr: vilege. 1 Eighteen da'ys subsequent to defendant CEI's objections, and I the Court's admonishment to diligently pursue this particu-I l lcr discovery demand, plaintiff filed its' I4otion to Compel i Discovery, which is the subject of this Order. l In an extensive fifty page brief, plaintiff chal-i

lensen defendant's objecticns to document F.equest lio. 95, I

n" g D which requested the production of more than 600 specifically v C/ d. ]' enu.nerar.ed documents. Because the nature and content of the 0l9d]

• ' 1' f i

cuments subject to claimed priv11ct;e are u:.i:nown to plcin- .l

.. f; the neucient tone of its brict in support.of the v

! Ilotion to Compel is understandabic. 'The Court, on the other .i l hand, has devoted considerable time to the examination and I cvaluation of the <tocersents rubnitted for in cancra inspec- ..1 i i; ion and, upon thorough review of the questioned documents, 0 i

l U 'N 'u-ii ,' finds them properly excluded from discovery as the subject p 't - 5 of attorney-client and war;: product priv1'eGe. This ruling l .is in accord with the Court's ycbruary 18 rulin; on the ' Motion of defendant CEI for a Protective Order as to the a Il identical documents consider?d therein. In addition, plair.;.ff filed on Fctruary 17, a l Supplement'to the Brief in Support'of its *!a' ion to Compel, il '} 3.to which defendant duly res;:nded. Plaintiff's assertions, 'I however, are directed more :crards the document requests , served upon the law firm of Squire, Sanders & Dempsey via I 4 . subpoena duces tecum, than to document Request No. 95, l i served upon defendant CEI. Therein, plaintiff places great I reliance upon the following proposition of law: when the same attorney ac'ts for two.tarties having a common interest, and each part'y communicates with hict, the communications ar'e not privileged in a controversy between the two original parties, inasmuch as the com: on interest and employment forbid concealment by the attorney of the ccumunications of l either from the other. While this proposition of law, thoroughly discuss'ed at VIII ~?igmore on Evidence $2312 (McNau'ghton Revision 1961), is correctly paraphrased in plaintiff's brief, plaintiff's reliance thereon is mis-j placed. The above principle is premised upon the prior P '0 l 0 b I) common interest of the now adtorso parties, and their joint i o employnent of an attorney t: r2present that common interest i O 'Q~ p 4gij.in the same matter. As stated by !11gmore, in auch instances 'l v J communications between each party and the attorney ares not i j privileged "since there was no secrecy between {the parties] l at the time of the communicttion.)' rel. at 606. A brief examination of the several hypothetical situations discussed t I 9 o i

g. u -a ~ 2. '5 il 5 t by *elignore, supra, and a more careful review of the factual -1 lcircumstancesofthecasescited.inplaintiff'sbrief, i e .l ',will reveal to plaintiff its.disapplication of'the above i . principle to tha facts of this case. l '1hile it is true that the law fira of Squire, Ec.rders & Dempsey has,~in th2 past, represented both the

City of Cleveland and the Cleveland Electric Illuminating

] Ccapany, the parties were nc co-clients in the sense that they jointly retained Squire, Sanders for the mutual repre-sentation of their common in:erests. Consequently, communi-cations between Squire, Sanders and each of the separate ! parties are privileged as between those two parties, now. adversaries. In the concluding paragraphs of its brief, styled I "Other Matters", plaintiff discusses generally, the objections of defendant CEI to document Requests Nos. 61, 62, 911 and f. i l 100. Although not clearly stated in plaintiff's brief, the Court assumes that these additional matters are also the subject of' plaintiff's Motion to Compel and will treat them i accordingly. Document Request Mc. 94 requests production of all documents produced in response t6 Department of Justice _t i Civil Investigative Demand (CID) No. 1629 Due to the statutory duty.of se'erecy imposed upon the Department of i'l ! Justice by the Antitrust Civil Process Act, 15'U.S.C. 51313 OO l (c), plaintiff has no knowledge of the documents produced by g cuk [ defendant CEI in compliance < tith CID Uo. 1629 In effect. D a.- , plaintiff requents the production of documents without [ ~~ ]~

i A

knowledco=of'the nature of the documents it reqdents, and

• I t:ithout knowledge of the relovency of said dccuments, if any,

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-- s, l 8 r. .4 as ' required by Rule 26, Fed. 2. Civ. P. Morcever, as defen-I jdantCEIindicatesinitsot' action,manyofthedocuments n scusht in Request-No. 94 are, unbeknownst to plaintiff, the i same dccuren:s sought in plaintiff's other requests. Accord-4 ' Ingly, Request No. 94 is deemed improper and disclosure [thercundesisnotrequired. C Request No. 100 involves a sin;1e.enorandum } ? drafted by an attorney euployed by defendant CII. Quite Lobviously, the attorney-client and work product privileges claimed by CEI sustain defendant's objection thereto. As to Request No. 62, defendant CEI indicates that all documents therein requested have been produced, sav.e one, which this Court has already reviewed in camera and excluded from discovery on the basis of attorney-client l privilege. I Finally, defendant OII has submitted to the Cou' '; for.in camera review, documents sought by plaintiff under - Request No. 61. I Defendant claims that pursuant to the I Supreme Codrt decisions in Eastern Railroad ? residents Con-ference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) I ! and United Mine Workers of America v. Pennington, 381 U.S. ! 657 (1965), the documents sought under Request No. 61 are not relevant and subject to the work product and atterney-I D [ _D) l client privileges. Upon thorough examination and review of U n ss J Ll the documents submitted by defendant CEI, the Ccurt does not t-D p chave defendant's view. U - 'i]"-}c~n~ t "d The Court is not convinced that the information .'contained in these documents is irrelevant or will not lead t (to other discoverable evidence. Even' assuming that the 1 author of these documents is an attorney, the contents-of 'd

g 3.- 1 these memorandums are not confidential and merely recount I' i l i

! matters of public knowledge and concern.

oreover, it is l

quits obvicus from a reading of these cocorant:Os that they were not prepared "in antici;1 tion of' litigation." Peterson 't ^ v. United States, 52 F.R.D. 317 (S.D. Ill, 1971). Conse-( quently, the documents sous: in Request ::c. $1 are not subject to privilege. Altheurh the produ:ti n of those i' docunents is ordered, the C:ur; impresacs therc0n its Pro-j tective Order, restricting disclosure of s. aid documents to n 2 attorneys of record in this case, specifically excluding secretarial personnel, clerks, law students and other non-lawyers employed by,the parties. Accordingly, the C:urt enjoins discovery of docu-d cents sought from defendant II in plaintiff's January 7, t 1976 Requests Nos. 62, 94, 95 and 100. Furthermore, the 5 -( , Court allows discovery of the documents se'esht in plaintiff's !g Request No. 62, subject to this Court's Protective Order as , outlined above, n I iT IS SO ORDERED. 2 E I M tti Sifatbs 012cric: Ju @ l l i D (? CS D'i cusuSY m 1 q-A i A N Q + .\\ j 4 ) l I

$ x. ;~,u_... a,.,.s,,c -

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-,..n,- r - --....es-p Mutteh $1utes Bistrict Gaurt rom THz E:3rf.!;;r'*. C017!!I 07 Z'IO Dd 3 DNb*4 Cavek AcTto,e Fits No. C-75-560 o City of Cleveland g 4 ) LY;'7* The Cleveland ElectrIs.c Illuminating Comneny, etal. J /M.* TO Daniel O'Loughlin k, s c/o squire, Sanders se Dempsey,1800 Union Commerce Bldg. Cleveland, Ohio // YOU ARE COMMANDED to appear at Room 213 City Hall c' in the city of Cleveland, Ohio on the lith dayFebruary,1976, at 9:30 o' clock A. M. to testify on behalf of the Plaintiff, City of Cleveland at the taking of a depositfor. In the above entitled action pending in the United States District Court for the Northern District of Ohio, Eastern Div. and bring with you t g (See attached Ducem Tecma) OO' WW gc 1 Jn L.n.a .m

• ..: 19

~- Dated _- _ % v f Esq. JGO Robert _D. Hart Au.r ,f, Pl51nt'iff ,j* Crect. Boom.2.11 C1.ty. Hall. By-c D r ~. C eveland, Ohio Any subpoenaed organization not a party to this suit is hereby admonish'ed-pursdant to Rule 30 (b) (6), Federal Rules of Civil Procedure to 61e a designation with the court specifying one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and shall set forth, for each person designated, the matters on which he will testify or produce documents or things. The persone so designated shall testify as to matters known or reasonably available to the .{, organization. .E..'.*.." ".'f*i.M O..u,"'*0'~ A*Y. O' ".,.T.'" '".'* *.'.dE ' " T._".*.I.O*.**w" **M* 21^ '* t "3 L 1 . n RETURN ON SERVICE Received this subpoena at on l and on at l served it on the within named 9 by delivering a copy to h and tendering to h the fee for one day's attendance and the mileage 'k allowed by law.' o Dated: .... 19.. Service Fees By-Travel... 3 .. Serr':es Totai __ Subscribed and sworn to before me, a this day of 19

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^ T'. ( ( A f, SUBPOENA DUCES TECUM i Bring with you all of the following items in the possession or a control of Squire, Sanders & Dempsey which originated in the period January 1, 1960 to the date of receipt of this subpoena duces tecum. 1. Copies of all drafts of the Affidavits attached to the brief of Squire, Sanders & Dempsey filed in these proceedings C-75-560, 2. Copies of all documents, opinions, notes, memoranda, recordings, or minutes of meetings or telephone conversations between yourself and other members or employees of Squire, Sanders & Dempsey relating in any way to Cleveland's Municipal Electric Light Plant (MELP). 3. Copies of all memoranda, reports or analyses prep.ared by you or under your direction for use directly or indirectly by The k Cleveland Electric Illuminating Company (CEI). 4. Copies of all notes, opinions, memoranda, minutes or record-ings of neetings or telephone conversations between you and officers, i directors or employees of CEI relating in any way to MELP. 5. Copies of all documents relating to the preparation, amendment or passage of Cleveland Ordinance No. 2104-72. 6. Copies of all documents prepared by you or under your super-vision or reviewed by you or with respect to which you were ' consulted dealing with the proceedings before the Nuclear Regulatory Commission. i 7. Copies of all documents referred to by you or relied upon by you in preparing your Affidavit dated December 10, 1975 and filed in these proceedings or in preparing to testify in these proceedings. l ) t

.. ~, C ( 8. Copies of daily di*. ries, time sheets, or' appointment calen-dars showing meetings or appointments with officers, directors or em-ployees of CEI or members or employees of Squire, Sanders & Dempsey who have or do provide legal services for CEI. 9. Copies of all memoranda or opinions prepared by Squire, Sanders & Dempsey for The Electric Illuminating Company (CEI) relating in any way to MELP. 10. Copies of all memoranda, opinions, notes, minutes or record-ings or letters referring to or merwrializing meetings or telephone conversations between yc,urself and other mambers or employees of Squire, Sanders & Dempsey with employees, officers or directors of CEI relating in any way to MELP. 11. Copies of daily d!. aries, logs or app 6&ntment calendars showing meetings or appointments with mer.bers or employees of Squire, Sanders & Dempsey who have at any time performed or supervised the performance of wor.4 being done for MELP. 12. Copies 'of all memoranda, opinions, briefs, reports, research notes or routing slips sent' to you by members or employees of Squire, Sanders & Dempsey relating in any way to MELP. 13. Copies of all documents originating from City of Cleveland (Clanland) to which you have referred, relied or examined since 1960. I 14. Copies, opinions, briefs, reports, research notes or routing slips concerning all materials appearing in the file or files in which the memo marked City Exhibit E in the above encaptioned case and identified as "HEMO TO FILE RE: MELP RATES" appears or is referred to. e

.l ( ( .l _3_ i 15. Copies, opinions, briefs, reports, research notes and routing slips referring to, and all copies of materials contained in any file marked or referring to 1. "MELP" 2. Division of Light and Power 3. Department of Public Utilities - City of Cleveland 4. City of Cleveland Council Utilities committee (Division of Light and Power) S. Members of the Utilities Committee 6. MUNI LIG11T at any time since 1960. 16. Copies, opinions, briefs, reports, research notes and r. cing slips referring to, and all copies of materials contained in any file marked or referring to any Director of Finance, Director of Public p Utilities, Director of Law, Assistent Director of Law, or f*mmiesioner of Light and Power of the City of Cleveland since 1960. 17. Copies, opinions, briefs, reports, research notes and routing slips referring to, and all copies of materials contained in any file marked or referring tot any Engineer, Consultant, Auditor, Accountant, or Attorney employed by the' Division of Light and Power or in any way connected with the Division of Light and Power or the City of Cleveland since 1960. 18. Copies, opinions, briefs, reports, research notes and routing slips referring to, and all copies of materials contained in any file marked or referring to: any equipment or facilities owned or operated by tne Divisicn of Light and Power (MELP) from 1960 until the present. 4 a

\\ i l l (~ ( 'o _4_ i 19. Copy of the Letter of August 12, 1963, from Squire, Sanders +l & Dempsey to CEI, Attn.: Mr. Hewley,znantioned on page 30 of the 1 Little Hoover Report which issued January 25, 1967. 20. Copies of all documents contained on the attached list and marked with an asterisk. 1 1 l l i i t l l 1 1 l [ 1 a l l

f,. 1'*j ~ ~ Dato'of Author Person (u, Assisting Addrousco P.:rcons 1%,cimcat nic'.r: b

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Document Author In Preparation To Other Tr.an Adressee (N' g, 4-17-74 J.'Lansdale None D. Hauser J. P. Murphy * ( J. Lansdale D. I!auser 3. 4-18-74 J. P. Murphy None 6. 6-17-74 J. Lansdale None ,D. Hauser None

7. k 5-21-74

7. Brueckel None J. Lansdale D. 0; Loughlir. ', s.

M. Knopf 9. 6-11-74 E. Durkin None D. Hauser Non'e D. Hauser None 10. 6-11-74 SS&D 11. 3-9-74 J. P. Murphy None J. Lansdale D. Itauser 27 2-20-74 L. C. Howley None K. Rudolph R. Ginn, H., Williams, D. Davidson, V. Greenslade C. Loshing, J. Lansdale 28. 2-27-74 R. F. Dacek Hone. E. Durkin D. Hauser 30. 1-25-74 J. Landsale None L. Ilowley D. Hauser ". Houley None K. Rudolph R. Ginn, II. Willia:::s, 34. 2-14-7.4 L L. Davidson. C. Loshing, m J. Lansdale, D..Sausc'r 82. 5-3-74 D. Hauser Unknown W. Bingham D. Davidson V. Greenslade C. Loshing W. Masters

• R.

Schuergerit. ~ G. Charnoff - _.a L. Ilonry T. Kayuha J. Lansdalo 1 7: ~ ~ i l - (.\\ ~ ~ Y

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F I-P:ga 2 7 { ' [ No. Document Date or Author Person (s) Assisting Addressco Persons Dccur, ant Distribu Document Author In Preparation - To other Than Addressee 171. 8-27-71 J. Murphy None G. Moore R. Dacek, C. Loshing, {[-l D. !!auser -210 10-27-66 J. Lansdale None D. Hauser None 3 211* 10-26-66 J. Lansdale None File D. Ilauser, R. Bessa,. K. Rudolph 2036. 12-30-69 SS&D J. Lansdale, A. Buch-R. Besse D. Hauser man 1"' 2114 8-27-71 J. Murphy Probably none G.. Moore R. Dacok, C. Loshing, D. Ilausar 2029 2-25-72 A. Obormeyer D. O'Loughlin L. Ilowley D. Hauser 3022 10-27-66 J. Lansdale Not Known D. Ilausar R. Croy, Ernst & Ernst, ~' K. Rudolph, n. Desse,.*. K. Bprkowski 3024 4-li.-73 & A. Buchmann Not Known 'C. Leshing A. Wright. JJ Fitzgernl!. R. Millor for C.

Chopp, R. Kalal for underlying C. Loching of r.ci;os 4-17-73 memoa 4-17-73 memo 4-24-73 memo 1

4-17-73 R. Kompor of C. Loshing for L 4-20-73 4-24-73 memo 4-24-73 nemo 4-24-73 C. Moore of W. Bingham for 4-20-73 4-20-73 i 3069 2-20-74 L. Howley Nona K. Rudolph R. Ginn, H. Hilliams, y D. Davidson, V. Greensic C. Loshing, J. Lta*.sdr.le 3075 7-1-7d J. Lansdalo Not Known D. Hauser W. Kerner {i and underly' ing memo of A. Buchmann j =' sh .f ,o G w S

s' -DOCUMENTS SUBJECT TO WORK PRODUCT RULE For the Rencen Thit Th2se Documents Ricita Preta' Relative to Litigation, Opinions of Counsel or Both. Persons Assisting Persons' Document Distributed to Other Subject of Document Date of Author in Prepara-Than Addressee Document Number Document Author tion of Document Addressee D. H. Ha' user James Murphy Antitrust lessi ,1 April 7, 1974 John Lansdale* memo. Draf t on Ohio C. Charnoff 2 Sept. 9, 1974 Leslie Henry J. Lansdale con'titutional T. Munsch provisions re EK;:r participation in D. Hauser CAPCO. R. Spetrino J. Edgerly V. Creenslade Draf t of itr on V. Greenslade 3 Nov. 8, 1974 Leslie Henry municipal parti-T. J. Munsch cipation consti-R. J. Spetrino tutional pro-J. R. Edgerly hibition. John Lansdale CEI. Amp Ohio 4 Aug. 15, 1973 J. P. Murphy Wheeling power. j PASXY-Sale of .j,5 April 18, 1974 J. P. Murphy John Lansdale power to neighbor 94 states.. 6 June 17, 1974 John Lansdale D. H. Hauser CEI ability to contract with MEU) John Lansda'le J. O'Loughlin Same as C. l ,- 7 Nay 21, 1974 J. B. Brueckel M. E. Knopf ,8 July 2, 1974 John Lansdale Brad Reynolds D. H. Hauser Constitutional linitations on municipality operating on elec. utility. O e S * -ma a. s

• • 5 M
• W e em+

^e,ww a g ema swe.meup 1 W

DOCUMENTS SUBJECT TO ATTORNEY-CLIENT PRIVILECE / For tha Rerson That. Thmo Documexta Cive c:a Opicion er Analy:f o cr Statement By a Lawyer Which. Applies a Rule of Law To Confidential Information Supplied By Client. Persons Docuacnt Persons Assi' sting Distributed To . Subject of Document Date of Author in Prep-Number Document Author aration of Document Addressee Other than Addressee Document 1 April 17, 1974 J. Lansdale None Don Hauser J. P. Hurphy Lagal theories instant case. 2.. Sept. 9, 1974 L. Henry None C. Charnoff None ' Draf t of letter concerning Chio L. Lansdale Constitutional T. Munsch D. Hauser Provisions con-cerning municipal R. Spetrino participation in J. Edgerly CAPCO units. V. Creenslade l 3 Nov. 8, 1974 L. Henry None V. Creenslade. D. Hauser Draf t of letter concerning Ohio J. J. Munsch Constitutional R. J. Spetrino Provisions concern-J. R. Edgerly ing municipal par-J. Lansdale ticipation in CAPCO units. 5 April 18,1974 J.'P. Murphy Hone J. Lansdale D. Hauser Memorandum of Law ~ concerning lagai-ity of Sale of Power by PASNY to

-[

neighboring States ~ ,c, % i's No'ne Letter transmitt-v. D. Hauser 6 June 17,1974 J. Lansdale None ing legal acao-randum. 7 May 21, 1974 J. B. Brueckel None J. Lansdale D. J. O'Loughlin Status of HELP to M. E..Knopf make contracts in its own name. 9 June 11, 1974 E. Dutkin None D. Hauser None Letter trans-mitting Legal Memoranda. f A e l

j s i l 'g i i e Y g-I Ir*6 (' il 9 THE UNITED STATES DISTRICT COURT F l L E D , I! THE NCRTHERN DISTRICT OF OHIO [iB l-J J ls d,,/$ ) EASTERN DIVISION j w.n.:.:......x;r.;r o,.so ) [' CITY OF CLEVELAND, ) CIVIL ACTION NO. C75-560 ) -l Plaintiff ) l l ) i v. ) l ) ) , THE CLEVELAND ELECTRIC ) ILLUMINATING COMPANY, et al., ) ) Defendants ) MEMORANDUM AND ORDER i KRUPANSKY, J. In a matter collateral to the anti-trust action I brought by the City of Cleveland, plaintiff City has served i I subpoenas duces tecum upon three attorneys of the law firm Squire, Sanders.& Dempsey, which represents defendant CEI in the primary action. On schedules and lists appended to the subpoenas, plaintiff demands production of innumerable documents in terms and language partly specific, but mostly ambiguous. ThNa'ttorneys subject to subpoena, responding by ,1 ~, and through outside counsel, move for a protective order ~ quashingsaidsubpoendsintheirentirety,orquashingthe ) duces tecum features thereof, or ordering production of those documents deemed relevant by the Atomic Safety and Licensing Board. At a hearing on February 11, 1976, the Court entertained oral argument on the Motion for Protective r' ! ' Order. Upon consideration,.the Motion for a Protective Order is granted, quashing only the duces tpcam features of I the subpoenas in question. l l Rule 285, Fed. R. Civ. P., providing for the issuance of subpoenas duces' tecum, is construed in_ pari e 1

i U i 3 materia with Rules 26 and 34, Fed.,R. Civ. P., which provide 4A j generally for discovery and the production of documents. I Moore's Federal Practice 134.02Cl] (2d ed. 1975); Tiedman v. American Pigment Corporation, 253 F.2d 803 (4th Cir. 1958). / The scope of <*iscovery and procedure for requesting produc-tion of documents via subpoena duces tecum is, then, governed I jbyRules26and34. ~ Prior to the 1970 Amendments to the Federal Rules of Civil Procedure, considerable controversy developed with respect to the interpretation of the Rule 34 requirement that documents requested be " designated". Disagreement over the degree of specificity required produced two schools of thought. The strict view, represented by Juage Woolsey's opinion in United States v. American Optical Company, 2 F.R.D. 534 (S.D. N.Y. 1942), required the movant to specify with i absolute particularity, each document requested. The more liberal view, however, deemed it " sufficient if the documents [were] designated by categories,,as.long a's the categories i j themselvet were-sufficiently defined." 4A Moore's Federal l Practice 134.07, at 34-50 (2d ed. 1975). See, United States j

v. National Steel Corporation, 26 F.R.D. 607 (S.D. Tex.

1960). Both views are now reflected in the amended Rule 34, l which states, in subsection (b), that the request for pro-l duction of documents "shall set forth the items to be inspected either by individual itent or by category, 6 il describe each item and category with reasonable partit. i larity." The degree of required specificity in a categorical l designation and the reason therefor was accurately expressed lI in Dynatron Corporation v. United States Rubber Company, 27 F.R.D.'480 (D. Conn 1961): \\ I, l

I j. j 3-5 i' [T]here must be at least a designation i by categories and the categories must be i defined with sufficient particular1.ty'(1) to enable the opposing party intelligently p to state any grounds of objection it may have to the requested production and (ii) to enable j the ')urt intelligently to rule on such objec-h tio. Id. at 481. 1 A thorough revi,ew of plaintiff's categorical document , requests appended to the subpoenas duces tecum herein, il discloses a general absence of reasonabl'e particularity. In a series of vague and ambiguous requests, plaintiff demands production of all items "in the possession or control of Squire, Sanders & Dempsey, which originated in the period January 1, 1960 to the date of receipt of this a subpoena duces tecum", relating in any way to the Municipal Electric Light Plant (MELP). The enumerated categories, I taken as a whole, demand production of copies of all materials, drafts, documents, opinions, notes, memoranda, recordings, I minutes of meetings and telephone conversations, briefs, reports, research notes, routing slips, analyses, letters, entries in. daily diaries, logs or ap'pointment calendars, ' ~. _ files, correspondence, etc. prepared by or involving the attorneys subpoenaed,"and other members or employees of Squire, Sanders & Dempsey"; " prepared by you or under your i supervision"; " reviewed by you or.with respect to which you were consulted"; "to which you have referred, relied or examined"; " relating in any way to MELP". i e l In these broad, indefinite and all-inclusive docu-ment requests, plaintiff seeks production, of virtually l anything and everything, without the slightest regard for I the relevancy requirement of Rule 26(b), Fed. R. Civ. P. j Moreover, many, if not most, of the documents requested of 4 1 e

i. { i I l the law firm of Squire, Sanders & Dempsey are doubtlessly privileged in one way or another. In the absence of suffi-cient specificity, the Court is confronted by a list of ] document requests that has no beginning, nor any apparent t. end. Even under the more liberal view of discovery espoused by this Court, the document requests in question do not meet I," the " reasonable particularity requirement of Rule 34. I Paradoxically, plaintiff also appended to its subpoenas duces tecum, detailed schedules of specific, numbered documents sought in addition to its general requests. The documents therein requested are the very same documents solicited by plaintiff in Request No. 95, filed with this Court on January 7,1976 as a part of the normal discovery process. Defendant CEI, responding thereto, objected to production of a substantial number of such documentp, I claiming attorney-client and work product privilege, and t \\ submitted to the Court four cartons of questioned documents for in camera inspection. To facilitate the Court's review of these d0cuments, defendant CEI also submitted a series of ~. Indices relating each numbered document to the privilege claimed. Each page of these several indices boldly pro-claims the nature of the privilege claimed. These very same indices prepared by defendant CEI, are the identical detailed lists of documents which are now appended to the subpoenas in question. The Court, anticipating an b=nediate or at least timely Motion to Compel Production following defendant CEI's objections to Request No. 95, filed on January 7, 1976, l committed untold hours from its daily administrations and I 2 1

j 5-I 4 l N l its personal time in examining, reviewing and evaluating the $ emsnded documents. d Such Motion to Compel did not materiai- '.; ize until the eighteenth day subsequent to defendant's objec-e f tions, even though the Court earlier directed plaintiff's l atten:1on to its failure to diligently pursue this parti- !culardiscoveryJemand. Now, as a result of the subpoenas it ! herein, the documents in question have become the subject of a Motion for a Protective Order, which the Court is disposed 4 to grant. Upon exhaustive examination and review of the documents subject to claimed privilege, and upon comparison of the documents lists appended to the subpoenas duces tecum and those submitted to the Court by defendant CEI for in camera inspection, the Court finds the lists to be Adentical and that the do'uments therein requested are privileged and e may not be disclosed to plaintiff. i Accordingly, the Motion for Protective Order is ~ granted and the duces tecum features of the subpoenas in ' ~. _ question are hereby quashed. b ';. -IT IS SO ORDERED. .y W ited stateT Dhtrict J ~~ I e e

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Etnitch States Bistrict Enurt mm Wrtiprn District of Ohio. Eastern D:uision Cavss. AcrION FILs NO.. C75-560 City of Cleveland OTD D Fle.intiff No. os. s v D n7 Cleveland Electric Illuminating Co., et al. c, E f Defendants [ 7 G76 > O O JUL John B. rueckel .y Squire Sanders & Dempsey e f.7 % y s s-1800 Union Commerce Building g Cleveland. Ohio 44115 p ,N e t YOU ARE HEREBT COMMANDED to appear in the United States DIEHet CM for the Northern District of Ohio M.r E at Federal Court House in the city of Cleveland, Ohio -~ 9 en i the leth day of June 19 76 at 9:30 [ebek {," A.3E. to testify on behalf of The City of Cleveland upon crose-,tamination }.. jj la the above entitled actics and bring with you the documents and thf rigs se.t forth}.on Exhibit A attached hereto and made part hereof. i I*ll1,/> o d ..MAELSCHMC' f "' .b W D W 8 M & b*no~e eternsy terPlaintif f N *E"12 * '. ma, - National City-East 6th Bldg. By. b ) Cle'v D, chio 44114 ~ " , k, RETURN ONSERVICE j', / /(l l.i ~ 3-b- Received this subpoena at on and on at i served it on the within named by delivering a copy to h and tendering to h the fee for one day's at+=adeaaa and the van.se. allowed by law.'

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Dated: By Service Fees Travel h *:0 m 0.. m.tJ ar ;;. 3 0. O o M *** ... i. e., y. "Jf, *.Y. !

• this Subscribed and sworn to before me,,

day of . Ib a yees ese analeese seed set be tendered to the vitaeas upes servlee of a subposee leanse la beteN of the ITettee $mtes er em eSeer er agener thesest. 38 USClaaL NNAf".datit remured ordy if service la made by a persos other thas a CaJted 5:m:se Starst.e er h!s darvty. e

) SUBPOENA DUCES TECUM i Bring with you all of the following items in the possesgion or control of Squire, Sanders & Dempsey,which originated in the period January 1,1960 6 to the date of receipt of this subpoena duces tecum. 1. Copies of all drafts of the Affidavics attached to the bricf of Squire, Sanders & Dempsey filed in these proceedings C-75-560. 2. Copies of ali documents, opinions, notes, memoranda, recordings, or minutes of meetings or telephone conversations between yourself and other members or employees of Squire, Sanders & Dempsey relating in any way to Cleveland's Division of Light and Power or Municipal Electric Light Plant (hereinafter collectively MELP). i 3. Copies of all memoranda, opinions, reports or analyses prepared by you or under your direction for use directly or indirectly by The Cleveland ' Electric Illuminating Company (CEI) relating in any way to MELP. l- - 4. Copies of all notes,' opinions, memoranda, minutes or recordings of meetings or telephone conversation, between you and officers, directors or employees of CEI relating in any way to MELP. 5. Copies of all documents relating to the preparation, amendment or passage of Cleveland Ordinance No. 2104-72. Lj. < '~ 6. Copies of all documents referred to by you or relied upon by you in preparing your Affidavit filed in these proceedings or in preparing to testify in these proceedings. 7. Copies of daily dairies, time sheets, or appointment calendars showing meetings or appointments with officers, director's or employees of ~ CEI or members or employees of Squire, Sanders & Dempsey who have or do l' provide legal services for CEI. 8. Copies of all memoranda, opinions, briefs, reports, research notes or routing slips sent to you by members or employees of Squire, Sanders & Dempsey ralatJng in any way to MELP. EXHIBIT A e t

' ~. 9.' Copies of all financial documents originating from City of Cleveland (Cleveland) to which you have referred, relied or examined since 1960 in performing legal services for Cleveland or NELP. 10. Copies of all memoranda or opinions prepared by Squire, Sanders & Dempsey for The Cleveland Electric Illuminating Company (CEI) relating in any way to MELP.

11. Copies of all memoranda, opinions, notes, minutes or recordings or letters referring to or memorializing meetings or telephone conversations between yourself and other members or employees of Squire, Sanders & Dempse) with employees, officers or directors of CEI relating in any way to MELP.

12. Copies of daily diaries, logs or appointment calendars showing meetings or appointments with members or employees of Squire, Sanders & Deepsey who have at any time performed or supervised the performance of i work being done for MELP.

13. Copies of all proposed Affidavit (s) or Statement (s) by Howard Holton presented to the Nuclear, Regulatory Commission and to the Federal District i.

Court in Case No. C-75-560.

14. Copies, opinions, briefs, reports, research notes or routing slips v

concerning a'11 materials appearing in the file or files in which the meno marked City Exhibit E in the above encaptioned case and identified as " MEMO .TO FILE RE: MELP RATES" appears or is referred to. tt' 15. Copies, opinions briefs, reports, research notes and routing slips N referring to, and all copies of materials contained in any SS&D file marked or referring to: 1. "MELP" 2. Division of Light and Power 3. Department of Public Utilities - City of Cleveland 4. City of Cleveland Council Utilities Committee a (Division of Light and Power) i 5. Menbers of the Utilities Committee 6.. MUNI LIGHT at any time since 1960. 16. Copies, opinions, briefs, reports, research notes and routing slips referring to, and all copies of materials contained in any file. marked or referring to: 'any Director of Finance, Director of Public Utilities, Director-, / /

i i 1 of Law, Assistant Director of Law, or Commissioner of' Light and Power of L. the City of Cleveland since 1960.

17.. Copiee_ opinions, briefs, reports, research notes and routing slips referring to, and all copies of materials contained in any file marked or referring to: any Engineer, Consultant Auditor, Accountant, or Attorney 6

employed by the Division of Light and Power or.in any way connected with the Division of Light and Power or the City of Cleveland since 1960.

18. Copies, opinions, briefs, reports, research notes and routing slips referring to', and all copies of materials contained in any file marked or referring to: any equipment or facilities owned or operated by the Divison of Light and Power (MELP) from 1960 until the present.

20. Copy of the letter of August 12, 1963, from SS&D to CEI, Aten.:

Mr. Howley, mentioned on page 30 of the Little Hoover Report which issued January 25,. 1967.

21. Copies of all documents contained on the attached list.

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DOCUMEUTS SUnJCCT Tb WORK PR6 DUCT Rdtt ~ For the Reason That These Documents Recita Facts' Relative to Litigation, Opinions of Couns.el or Both. Persons Assisting Persons Document Docu=ent Date of Author in Prepara-Distributed to Other Subject of t'u:ber Document Author tion of Document Addressee Than Addressee Uccurent .1 April 7, 1974 John Lansdale' - D. H~ Ha' user James Murphy Antitrust 1 Ss1 CQts. 2 Sept. 9, 1974 Leslie Henry C. Charnoff Draf t on Ohio J. Lans'da.le contitutienal T. Munsth ' pro fist:.s re IT."Y D, Hausbt. p:rticipation in R. Spottibo CA?CO. J. Edgetit V. Crectiklade* i 3 Nov. 8, 1974 Leslie Henry

v. Creenslade draf t of it; on T. J. Hunsch cunici al parti-R. J. Spetrino cipation consti-J. R..Edgerly Lucional pro-John Lansdale hibition.

4 Aug. 15, 1973 J. P. Hurphy CEI-Amp Ohio rr.eeling power. 5 April 18, 1974 J. P. Murphy John ~Lansdale PASNY-Sale of / power to r.eighbeda states.. I q. ,6 June 17, 1974 John Lansdala i D. H. Hauser CII ability to { contract with NZ'J i 7g'.-7 }by 21,1974 J. 3. Brueckel John Lansdaia, D.J.O'Loughli$ Saee as 6. M. E. Knopf ,8 July 2, 1974 John Lansdals Brad Reynolds D. H. Hauser Constitutional 11=:t-:1:n3 cs

. : :':1; c;cratin :n c*ct.

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/ DOCUHI*NTS SUDJECT TO ATTORNCY-Cf. TENT PRIVILECC Tof the Reason That Thenc Documents Give an Opinion cr Analysis or Statement By a Lawyer Which. Applies'n Rule of Last To Confidential Information Supplied By Client. Persons Assisting Persons Docu=ent Document Date of Author in Prep-Distributed To Subject of Number Docueent Author aration of Document Addreocce Other than Addressee Doce:ent Legal theories 1 April 17,1974 J. Lansdale None Don Hauser J. P. Murphy instant case. 2 Sept. 9, 1974 L. Henry None C. Chatcoff None Draf t of letter L. Lansdale concerning Ohio T. Hunsch Constitutional D. Hauser Provisiens cen-R. Spctrino ecrninl; tunicir:1 J. Edgerly partici;ati:n in V. Creenslade CA?CO units. 3 Nov. 8, 1974 L. Henry None V.'Creenslade D. Ilauser Draft of letter J. J. Hunsch cer.ecrning Chio ) R. J. Spctrino Ct ns t i t t::icnal J. R. Edgerly . ovicicna cenectn-J. Lansdale ing cucicipal par-ticipation in CA?CO units. 5 April 18, 1974 J. P. Hurphy None J. Lansdale D. Nauser - Memorandes of Las concerning legal-ity of Sale of Pc.er by PASNY to neighboring States 6 June 17, 1974 J. Lansdale None D. Hauser None Letter trans=itt-ing Icgs1 =e a-randus. 7g Hay 21, 1974 J. B. Brueckel Hone J. Lansdale D. J. O'Loughlin 5:atus of 22LF t: M. T.. Knopf .de

n:rar:s in 1:s a : sne.

9 June 11, 1974 E. Durkin None D. Hauser None

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Date of Author' Person (s). Assicting 'Addrcusco P e r n or..- ideenc.t LLL*.:.b l.} k to other T:.an Ad:ccr.cc

,,.cnt Author In Preparation Document-J. P. Murphy

• g_J'f D. Ilauser 4-17-74 J. Lansdalo Nons 2.

J. Lansdaic D. Hauser 4-18-74 J. P. Murphy lione ((I] 8. 3 None ,D. Hauser 6-17-74 J. Lansdale None F-~ J. Lansdale D. 0;Loughlin,. T S-21-74 J. Drueckel-None II. Kncpf ~ 7. J D. Hauser None 9. 6-11-74 E. Durkin None D. Hausor None 10, 6-11-74 SS&D J. Lansdale D. Ilauser I 11. 3-9-74 J'. P. 14urphy None K. Rudolph R. Ginn, H., Williams,' 2-20-74 L. C. Howley None D. Davidsca, V. Greenslafa f 27 C. Leshing, J. Lansdala w E. Durkin D. !!auncr H-28. 2-27-74 R. F. Dacok lione L. Ilowley D. 11auser 'l 30. 1-25-74 J. Landsale None K. Rudolph R. Gina,!!. Uillic s, 34. 2-14-74 L. Howley None L. Davidsen. C. Leshing, J. Lansdale, D. Eaucer, h[~,"j ' ~ W. Bingham 42. 5-3-74 D. Hauser Unknown D. Davidcon {~~ j, V. Greenslade C. Loshing W. Masters r-~* R. Schucrger.~ 1 G. Charnof f - L, L. lienry ? T. Knyuha .9 J J. Lansdale 1 . [L } t L . r 5 \\ d i- -. .-~- ..m. sa, a

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