ML19319C316
| ML19319C316 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 05/02/1975 |
| From: | Goldberg R, Hjelmfelt D, Oldak M CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130837 | |
| Download: ML19319C316 (34) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATOR Y COMMISSION ATOMIC SAFETY AND LICENSING BOARD BEFORE THE SPECIAL MASTER In the Matter of )
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The Toledo Edison Company )
The Cleveland Electric Illuminating )
Company ) Docket No. 50-346A (Davis-Besse Nuclear Power Station, )
Unit 1) )
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The Cleveland Electric Illuminating )
Company, et al. , ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )
To The Honorable Marshall Miller, Esquire, Special Master CITY OF CL-EVELAND'S REPLY BRIEF TO THE SPECIAL MASTER ON THE ISSU.E OF ASSERTION OF PRIVILEGE The brief of the Applicants has raised certain issues of law and fact which merit a reply.
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. . -2 I. ATTORNEY-CLIENT PRIVILEGE A. THE CONTROL GROUP TEST PROPERLY REFLECTS THE PRINCIPLES INHERENT IN THE ATTORNEY-CLIENT PRIVILEGE.
The City in its Memorandum of Law urged the Special Master to use the logie f the control group test for the purpose of determining which persons within The Cleveland Electric Illuminating Company (CEI) and Duquesne Light Company (Duquesne) should be able to claim attorney-client privilege.
Without reiterating the entire argument, it is important to remember the basic principle upon which the attorney-client privilege and control group test were premised; to facilitate the communication between attorney and client by removing "the apprehension of compelled disclosure by the legal adviso r s. " 1I The cost of this privilege, of untestable worth, is the obstruction of the investigation of truth and the hindrance of the Board in making a reasoned aecision based upon all the relevant and pertinent facts from whatever source.
Accordingly Dean Wigmore has suggested that this privilege be " strictly confined within the narrowest possible limits consistent with its principle. " 2_/
The courts have adopted this suggestion and have placed a heavy burden of proof upon the party seeking to keep relevant information from the courts through assertions of privilege.
1,/ 8 Wigmore, Evidence, $ 2291; see also United States v. Louisville &
N. R. R. , 236 U. S. 318, 336 (1915).
2_/ 8 Wigmore, Evidence, $ 2291, at 554.
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- 1. Application of the Attorney-Client Privilege to Corporations Justifies its Restriction.
i In the modern corporation the daily routine of business produces hundreds o- documents from control and non-control group members to corporate officials and to the legal counsel. Unlike the situation of a single human client who may be deposed, the investigation into matters in issue may be extremely hindered by the necessity to interview numerous employees, currently and previously employed. Equally important is the fact that the recollections of these employees are not the best evidence of what may have transpired in previous years. This is especially true in an antitrust pro-ceeding where the corporate intent and policy, nebulous concepts in them-selves, are the items which must be proven. In addition, fear c' employer reprisals may lead to further lapses in total recall.
Under the attorney-client privilege principles the communication must have been intended to be confidential. The extension of the privilege to a corporation raises the question of whether the confidentiality of docu-ments can be maintained, to the extent envisioned by the privilege, as those documents are oftentimes routed thr.ough third persons. Since some of these documents are, by the very nature of the corporate structure, passed through many hands, "the degree of confidentiality of the corporation's communica-tions is often doubtful," and consequently"the usefulness of the privilege as an incentive to make these communications can also be doubted. " M 3_/ Note, Attorney Client Privilege for Corporate Clients: The Control Group Test, 84 Harv. L. Rev. 424, 428 (1970).
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' Another consideration is the fact that attorneys for corporations, especially attorney-executives, are sent information which involves both the business and legal aspects of the corporation (the legal aspects possibly being covered by the privilege, while the business aspects are not covered).
It seems plausible to assume thn.t when the non-legal reasons for communi-
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cating the information to the attorney are sufficient "the communication would occur regardless of privilege, [therefore,] the privilege cannot be 4
justified as an inducement to communicate. " / It seems even more reasonable to assume "when corporate executives have sufficient need for the information to have it communicated to counsel regardless of privilege, lower level (non-control group] employees are not likely to withhold information because of fear of communicating in the absence of privilege. " 5/
When these factors are placed in the balance of principle versus justice the equilibrium which was present for the human client, and needed as an incentive, is lost when the privilege is applied to a corporation's non-control group.
- 2. The Extension of the Attorney-Client Privilege to Non-Control Group Employees Dispropor-tionately Restricts the Ability of The Board to Reach a Reasoned Determination.
The case of Harper & Row Publishers, Inc. v. Decker t / and the cases which follow its precedent represent a view which clearly ignores the principles which are the basis of the attorney-client privilege. The Harper 4/ Ibid.
5/ Ibid. ;
6/
423 F. 2d 4E 7 (7th Cir. 1970), aff'd by equally divided court, 400 U. S.
348 (1971).
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& Row case which extends the privilege to non-control group employees never suggests that the extension of the privilege to those employees of the corporation would remove their subjective fear of repercussion from dis-clo sure. Briefly restating the argument made in our initial brief, the non-control group employees would more likely be deterred "by the fear that management will be displeased when it learns of their conduct than the fear of disclosure to opposing litigants. "7 / The use of this extension further restricts the ability of the court to come to a reasoned determination based upon all the facts without any countervailing benefit to which the privilege rightfully addresses itself.
The detrimental effect on justice is disproportionately larger when the extension is applied to non-control group members than when it is applied to control group members. This is due to the fact that the non-control group members are closer to the actual operative facts and daily operation of the corporation. Consequently, discovery of these facts from other sources is even more difficult, if not impossible, than when the privilege is applied to the control group. Furthermore, the extension is attempted to be made without any additional benefits to balance out the further obstruction of justice.
Accordingly, the City submits that when the desire for an informed Board and a decision based upon all the relevant facts is balanced against the desire to improve the attorney-client communication, the scales must not be tipped by the extension of the attorney-client privilege to non-ct.atrol group employees.
7/ Note, Attorney Client Privilege for Corporate Clients: The Control Group Test, aupra, at 429.
, B. THE OHIO STATE LAW ON PRIVILEGE IS OF LITTLE WEIGHT IN THIS PROCEEDING.
Applicants in their brief state that the Ohio Revised Code has appli-cation to all of CEI's documents now under in camera scrutiny. The Appli-cants have offered no authority to show that the Ohio law should be applicable in this proceeding. To the contrary, Dean McCormick states that prior to 1946 receipt of evidence in federal administrative proceedings was limited only by general constitutional requirements of fairness and privilege together with vague direction implicit in the standard for judicial review developed 8
by appellate courts or written into agency enabling acts. / In 1946 the Administrative Procedure Act (APA) was adopted by Congress codifying the case law by providing that "[a]ny oral or documentary evidence may be received" in an adnunistrative hearing.1/
The Supreme Court has expressly recognized that the exclusionary rules of evidence are not applicable to federal administrative proceedings.
In Opp Cotton Mills v. Administrator 10/ the court said:
The argument of petitioners is . . . that this class I of evidence must be ignored because not competent in a court of law. But it has long been ruled that the techni-cal rules for the exclusion of evidence applicable in jury trials do not apply to proceedings before federal admin-istrative agencies in the absence of a statutory require-i ment that'such rules are to be observed.
In F. T. C. v. Cement Institute, 333 U.S. 683, 68 S. Ct. '73, 92 L. Ed.
1010 (1947), the Court expounded on the reasons for not applying the rules
- 8,/ McCormick on Evi.tge_, Chapter 37, S 349, p. 838.
,9,/ 5 _U. S. C. A. , 5 556(d).
10 / 312 U. S. 126, 155, 85 L. Ed. 624 (1940).
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of exclusion in federal administrative proceedings. In Cement Institute, supra, the Court refused to apply " rules which bar certain types of evidence,"
stating that in admmistrative proceedings -
. . . the effect of the Commission's order is not to punish or to fasten liability on respondents for past conduct but to ban specific practices for the future in accordance with the peneral mandate of Congress.
[ emphasis added] E This indicates the Court's belief that in the balancing of privilege and disclosure the ends sought must weigh in the scales. In criminal cases where the ends sought include reprisals, the evidentiary privilege must be given full force, but as in the instant case where the ends sought include the public interest in providing reliable and reasonably priced power in the future, disclosure is mandated.
In addition the Federal Rules of Evidence evince the intent of Congress that federal law should apply. In the Conference Committee Report 93-1597 which discusses FRE Rule 501 on privileges they state," where a claim or defense is based upon federal law . . . federal privilege law will apply to such evidence relevant to the federal claim or defense. See Sola Electric Q. v. Jefferson Electric Co. , 317 U. S. 173 (1942). "
H/ 323 U. S. at 706, 92 L. Ed. at 1037.
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-8 C. THE APPLICANTS HAVE NOT MET THE BURDEN OF PROOF REQUIRED FOR THE ATTORNEY-CLIENT PRIVILEGE.
The burden of proof in cases involving attorney-client privilege is upon the person claiming the privilege. This is an extremely heavy burden because it is the price which must be paid for the restriction on the ability of the Board to come to a reasoned determination based upon all the facts.
As a result the Applicants, as claimants of the privilege, must establish "the existence of the privilege" 12 / by the preponderance of the evidence and not by " mere conclusory or ipse dixit assertions. " EI While the Appli-canta have attempted to meet these burdens in their initial brief, they have accomplished nothing more than the recital of self serving "ipse dixit" assertions which are not sufficient to carry the burden imposed.14/
In paragraph 8 of the Applicants' brief they state that they -
. . . have undertaken a careful screening of the material submitted to the Master for in_ camera examination in an effort to insure that the claim of privilege has been asserted only with respect to thoi - communications made by the client or the lawyer t) in the context of a continuing confidential relationship between the company and its house counsel, acting as such, or outside counsel, (2) on matters known by both parties to be of a sensitive nature which the client does not wish to be disclosed, and (3) with respect to which legal advice is being (or has been) sought directly, or, alternatively, with respect to which there is a clear understanding between the client and the lawyer based on the nature of the subject matter (i. e. ,
pending litigation involving the company), and the estab-lished practice with regard thereto, that continuous legal counselling on that matter if desired 'oy the client.
M/ 8 Wright & Miller, Federal Practice and Procedure, $ 2016 at 126 (1970);
United States v. Johnson, 465 F. 2d 793 (5th Cir. 1972).
M/ In re Bonanno, 344 F. 2d 830, 833 (2d Cir. 1965).
14_/ Ibid.
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If these statements were intended to carry the burden of proof that the 1
1 Applicants complied with the requirement. discovery must be had, for 1 these are a prime example of the "ipse dixit" assertions which the courts have sought to avoid.
In a similar situation the Applicants would have us believe they have met their burden of showing that the attorney-executives were acting with regard to confidential communications in their capacity as attorneys by mere statements in their brief asserting that their screening of the docu-ments insures that the documents were prepared by the attorney-executives in their capacity as atterneys rather than executives.
Paragraph 11 of the Applicants' brief makes the assertion that "all of the identified 'in house' councel at Duquesne and CEI act primarily 'as attorneys giving legal advice, . . . not as business advisors or officers of
[the client] . . . . ' " The use of this statement to show that the attorneys were rendering legal rather than business advice and therefore were acting within their legal capacity with respect to those communications must likewise be held insufficient to meet the burdens imposed upon the claimants of the privilege.
Important and fundamental to the attorney-client privilege is the requirement that the client intend the communication be confidential. Con-sequently, it has been held that where confidentiality has not been maintained, the privilege is lost, El even though disclosure may be inadvertent. El 15/ Cafritz v. Koslow, 167 F. 2d 749 (D. C. Cir. 1948); 8 Wigmore, Evidence, S 2311, at 600; see also the City's Memorandum of Law, Part I. F. , at 12.
16/ Fratto v. New Amsterdam Fire Insurance Co. , 359 F. 2d 842 (3d Cir. 1966).
The Applicants claim in paragraph 18 of their brief that the voluminous material which they seek to shield from discovery "has at all times been carefully segregated and retained separately in the files of the Corporate Solicitor's office. " Applicants simply state the communications have been carefully guarded, and, to their "best knowledge . . . only those persons named in the interrogatory answers as having read or seen the documents, have been party to the discreet dissemination of this material. " These statements do not approach the required preponderance of the evidence and raise more questions than they answer. Are we to believe that these broad allegations include, and more importantly prove, that the documents from their inception were " carefully segregated and retained in the Corporate Solicitor's office," even though some documents either originated in offices or were transmitted to offices other than that of the Corporate Solicitor ?
The very most that this statement suggests is that at one time these docu-ments were held by the Corporate Solicitor in a separate file folder in their filing cabinets.
Significant to the credibility of the Applicants' offers of proof is the fact that while the Applicants claim that the documents were at "all timer . . .
carefully segregated and retained separately in the files of the Corporate Solicitor's office," t$1ey do not know when that time started. In numerous instances, on the prepared lists submitted in response to interrogatory No. 1, the Applicants are unable to furnish the dates on which these documents were procuded and on which their burden of maintaining the separation and segregation c.f these documents began. Yet it is claimed that the documents 4 were at all times carefully segregated.
. Additionally, the Applicants state that their care in segregating and retaining these documents separately is a " matter of record. " Review of the record in this cr.se reveals no evidence other than Applicants' own statements to support these allegations.
The Applicants have stated in paragraph 19 that, as to external dis-tribution:
. . . such distribution has occurred only insofar as co-counsel to one of the CAPCO companies has received a copy of a privileged communication, either in connection with the present antitrust litigation or with recard to the joint CAPCO proiect. (emphasis added]
It is well settled that the attorney-client privilege applies only to communi-
' cations where the attorney was acting in his capacity as professional legal adviso r. Communications which the Applicants claim relate, not to the present litigation, but to the joint CAPCO project, unouestionably a business transaction, are in absolutely no manner privileged. While the Apalicants may show the necessity for the lawyers for each of the five CAPCO mem-bers to engage in extensive consultation, these matters of "a highly confidantial nature" are not protected by the privilege. Extension of the privilege to a project whose stated goal is the " coordinated planning, con-s ruction and operation of large, more efficient generating units and related transmission facilitie's" does little to " secure subjective freedom of mind for the client in seedng legal advice" 17/ (emphasis in the original). There is little' doubt that " communications involving business, rather than legal, advice" El H/ 8 Wigmore, Evidence, $ 2317(2), at o19.
g/ Jack Winter, Inc. v. Koratron Co. , Inc. 54 FRD 44, 47 (N. D. Cal. 1971).
12 are not included in the privilege. Consequently, while the Applicants rely upon the case of Schwartz v. Broadcast Music 12./ to show that consultation among counsel on behalf of their clients is entitled to privilege, the joint effort in that case was a lawsuit, not a business venture and is therefore not applicable.
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1 19,/ 16 F. R. D. 31 (S. D. N. Y. 1954).
D. LISTS SUPPLIED BY THE APPLICANTS LN REPLY TO INTERROGATORY NO. 1 REVEAL MANY DOCUMENTS WHICH ON THEIR FACE ARE NOT SUBJECT TO THE PRIVILEGE.
The Applicants, pursuant to interrogatory No. 1, have supplied a listing of th documents, which they claim as privileged, delineating the applicable basis for the claim of privilege for each document. It seems obvious from the law as expounded by the City and the Applicants that any document which,1) does not recite confidential communications from a client to an attorney; 2) does not express an opinion, analysis or statement by a lawyer which applies rules of law to confidential information supplied by a client; and 3) does not exhibit an intent to keep that information confi-dential, does not meet the legal requisites of privilege and accordingly cannot be withheld from discovery. Accordingly, those documents to which the Applicants have simultaneously answered "no", "N/A", or have failed in their burden of proof by stating they " Don't know", to the above questions have been listed in Appendix A and should be produced.
In other cases the Applicants have stated that the authorship of the i
doctunent was unknown. This claim is similar to that made in Natta v.
Hogan. E/ In that case a claim or work product was made as to " materials prepared by an attorney during his consideration of a legal problem. " 21/
The court held that such materials might be within the work product rule but were not entitled to protection because "they were not identified as having 20/ 392 F. 2d 686 (10th Cir. 1968).
21/ Id. at 693.
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been written by any particular attorney. The author [was] not specified. "S/
The court held that as to the documents which consisted of the handwritten notes of a " named attorney [, i]ts disclosure would invade the mental pro-cesses of an attorney working on a legal problem. " 23,/ In Natta the court applied the prin.:1ple behind the work product doctrine to remove any sub-jective fear that the attorney's " thoughts and information will be invaded by his adversary if he records them[. ]" 24/ The attorney-client privilege is based upon a similar feeling that protects the client's subjective fear of disclosure of his confidential communications. The court in the Natta case seems to have balanced the privilege when applied to an unknown attorney with the need for an informed court and decided that the principles and therefore the law when applied to an unknown attorney were not applicable.
It follows directly that if the author of a document is unknown the reasons for invoking the privilege are also outweighed by the need for an informed court. Accordingly, the privilege should not be applied to those documents i listed in Appendix B which are by an unknown author. Included in Appendix B is a list of those documents in which a law firm or legal staff was named l as author. It is not sufficient for the Applicants, when an attorney is unknown, to name a " law firm" or " legal staff" as the author since these non-human entities, just as unknown authors, have no subjective fears worthy of pro-te ction.
22 / Id. at 694.
23/ Id. at 694.
23/ Republic Gear Co. v. Borg-Warner Corp. , 381 F. 2d 551, 557 (2d Cir. I 1967).
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In other cases the distribution of the documents was unknown. As stated in the City's memorandum of law, section I. F. , the intent to keep a communication confidential must be clear from all the circumstances; and the presence of a third person or intent to transmit the information have been held to destroy the privilege. The burden of proof that sufficient precautions were taken to avoid the disclosure of the contents of each document and that this was actually achieved can never be met if the dis-tribution of the document is unknown. This is equally true when the addressee is unknown or when the person assisting the author in the preparation of the document is " unknown" or "probably none. " The docu-ments which fall within this category and subsequently are not privileged are listed in Appendix C.
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e m E. PRINCIPLES AND ELEMENTS OF THE ATTORNEY- T CLIENT PRIVILEGE WHICH MUST BE CONSIDERED.
The Men.orandum of Law, prepared by the City of Cleveland, suggests that there are certain elements of the attorney-client privilege that must be considered individually as to each document claimed to the exempt from 9
disclosure to opposing parties and this Board.
For the convenience of the Special Master, a summary of these elements follows:
- 1. Information which an attorney learns from sources other than his client is not barred by the privilege.
- 2. Documents which are not prepared by the client for the purpose of communicating confidential information to his attorney or by the attorney to record his client's confidential communications are not privileged.
- 3. Documents prepared prior to an attorney's involvement are not privi-leged.
- 4. Documents which are not prepared by or in behalf of the client for the purpose of confidential communication to the attorney do not become privileged by the transmission (funneling) to an attorney.
- 5. Communications from an attorney to his client are protected to the extent that they disclose the privileged communication from the client.
. . 6. Confidential communications made to an attorney, while he is not acting in his legal capacity as to that communication, are not privileged.
- 7. An attorney rendering business, rather than legal, advice is not acting in his-legal capacity with respect to those communications and they are
'herefore not privileged.
- 8. Where an attorney is acting as a business advisor or actively partici-pating in the business itself, the claimant of the privilege has the additional burden of showing that the attorney was acting in his legal capacity with respect to the communication claimed to be privileged.
- 9. Only communications to or from the " control group" should be permit-ted to become privileged.
- 10. A member of the " control group" should be defined as one "in a position to control or even to take a substantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority . . . " (City of Philadelphia v. Westinghouse Electric Co. ,
210 F. Supp. 483 (E. D. Pa. 1962)). !
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- 11. Cnly communications which were intended to be confidential at their inception may be privileged until that intent ceases.
- 12. Intention of a communication to be confidential must be clear from the circumstances and cannot be presumed merely from the attorney-client relationship.
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- 13. Disclosure .of privileger* communications, even inadvertently, to a third person not in the " control group" or privileged relatio iship destroy ,
the privilege.
- 14. Communications made in the course of seeking legal assistance for illegal ends are not subject to the privilege.
These rules cannot be applied to each of the documents claimed as privileged without regard to the principios inherent in the attorney-client p rivilege. The Special Master should bear the following principles in mind:
- 1. The privilege is intended to promote the communication of confidential information from the client to the attorney by the removal of the client's subjective fear of disclosure.
- 2. The investigation of truth and the enforcement of testimonial duty requires that all pertinent it. formation be made available to the trier of fact and all parties.
- 3. The need for attorney-client communication of confidential information must be balanced against the need for an informed court and reasoned decision. This requires that the privilege be " strictly confined within the narrowest possible limits consistent with its principle" (S Wigmore, Evidence, $' 2291, at 554).
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19 II. WORK PRODUCT DOCTRINE A. THE WORK PRODUCT TEST AS EXPRESSED BY HICKMAN v. TAYLOR AND RULE 26(b)(3)
PROPERLY REPRESENTS THE MAJORITY OPINION.
CEI, the only one claiming the work product privilege, has relied upon the case of Duplan Corp. v. Moulinage et Restorderie de Chavonoz, 487 F. 2d 480 (4th Cir. 1973) (referred to by them as the Dunlap [ sic]
decision), in an effort to expand the applicability of the work product test to litigation which has been completed. The policy behind the work product rule is very similar to that of the attorney-client privilege. It differs in that the rule is directed at removing any subj'ective fear of an attorney, that his thoughts and information will be invaded if he records them. The courts have balanced the need for an infornned court and decision based upon all the relevant facts and the need to remove any fear an attorney might have that an adversary would discover his thoughts and information.
, This rule, as with any rule which hinders full discovery and consequently I
the rendering of justice, must be narrowly applied and kept in balance with the need for full disclosure. The extension of the rule to materials prepared for prior litigation which has been completed increases tremendously the probability that relevant facts will never come to light while removing fear, which is slight at best, that some future and unanticipated adversary, not his present one, might have access to information he has obtained for, and his thoughts relating to, the pending litigation. This impact on effective legal representation is consequently likely to be slight at best. These same
s principles are equally applicable to work product prepared in anticipation of one particular lawsuit after that suit had terminated and another com-menced, and unanticipated suits between the same parties as long as the
! second suit arose out of a different set of operative facts.
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B. CEI HAS NOT MET THE BURDEN OF PROOF REQUIRED FOR THE WORK PRODUCT DOCTRINE.
As with any restriction on the admissibility of relevant evidence, the burden of proving that the privilege applies is upon the person claiming under the privilege. Since obstruction to full discovery may be just as great under the work product doctrine as under the attorney-client privilege, accordingly, the same heavy burden of proof must apply.
The brief of CEI falls far short of meeting even the simplest burden of proof, let alone the burden imposed when discovery is to be refused.
The Applicants' attempt at meeting their burden is characterized by the use of "ipse dixit" assertions as in their attempt at meeting the burden of proof with regard to their claim of attorney-clienc privilege.
Once again the City finds itself arguing the application rules of law to a set of documents it has never seen. To a certain extent these documents do represent the best evidence of their content, reasons for origination and affinity to anticipated litigation. But there are other factors which must be considered and upon which CEI has provided no tangible evidence.
To begin, -CEI must prove that these documents were all prepared, under 10 CFR 2. 740, "in anticipation of or for the hearing. " The Special Master must satisfy himself that each document was so prepared and that it was not " assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation. " :5 / Since the privilege is J
2 / Advisory Committee on Civil Rules, Proposed Amendments of the Federal Rules of Civil Procedure Relating to Discoverv, 48 F. R. D.
487, 501 (1970).
intended to protect e.n attorney's " impressions," this is probably the most important element in that, if this standard is not met, the privilege will not attach to the " mental impression, conclusion, opinion, or legal theories" of the attorney.26 / It must be remembered that in an industry which is required to submit to litigation with respect to each application for a license, many documents are " gathered with the knowledge that [they] might be used in some future litigation. " 27/ The rule applies only to information gathered for a specific litigation contingency. The Special hiaster must assure him-self that these documents relate directly to the possible litigation and not accept CEI's assertions that they pertain to "Present" litigation. Also,
" Pertain [ing] To" present litigation must not be confused with "peepared in a_nticipation of or for the hearing. "
Secondly, the documents must have been prepared "by or for another party's representative," which is the more limited requirement of 10 CFR
$ 2.740(b)(2) than that of Federal Rules of Civil Procedure $ 26(b)(3) which also includes documents made by or for "another party." If follows that CEI must show that any document listed as privileged under the work product doctrine which were not prepared by their " representative" were prepared for him.
In light of the fact that CEI has failed to provide any tangible evidence of requests by these representatives, the Spe:ial Master must find from the documents themselves sufficient facts to meet this burden of proof or else deny the protection of the privilege.
26 / 10 C. F. R. $ 2. 740(b)(2), i 1/
2 Thill Securities Corp. v. New York Stock Exchange, 57 F. R. D. 133 (E. D. Wisc. 1972).
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C. PRINCIPLES'AND ELEMENTS OF THE WORK PRODUCT DOCTRINE WHICH MUST BE CON-SIDERED The Memorandum of Law, prepared by the City of Cleveland, suggests that there are certain elements of the work product doctrine that must be con-sidered individually as to each document claimed to the exempt from dis-closure to opposing parties and this Board.
For the convenience of the Special Master, a summary of these elements follows:
- 1. Materials assembled or prepared in the ordinary course of business, or pursuant to public requirements unrelated to litigation, are not prepared "in anticipation of litigation or for trial" within the meaning of Rule 26(b)(3) and 10 CFR S 2. 740.
- 2. A document can be " prepared in anticipation of litigation or for trial" only if (1) the possibility of litigation is more than the " remote possi-bility of litigation such as surrounds nearly every act of the office attorney" and (2) it relates directly to that possible litigation.
- 3. When no attorney is involved in the origination and preparation of a document, it is conclusively presumed to have been prepared in the ordinary course of business and not in anticipation of litigation. But the fact that an attorney requested the preparation or even participated in its preparation does not establish that it was prepared in anticipation of litigation.
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. . 4. The attorney must have been involved with a particular document in his role as attorney preparing for litigation and not as a corporate executive involved in the policy decisions of the corporation.
- 5. The fact that a document was routinely transmitted (funneled) through an attorney does not entitle that document to a claim of immunity.
- 6. Routine reports containing business or financial advice are not within the scope of the protection.
- 7. The qualified immunity for material prepared in " anticipation" of litigation or trial does not preclude discovery of a lawyer's memoranda, prepared during a prior case, in a subsequent action between different parties.
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s III. APPLICATION OF ANY EVIDENTIARY RULE MUST BE THOUGHTFULLY APPLIED.
The parties in this proceeding have furnished briefs to the Special Master which enunciate and analyze every relevant element of the two privileges claimed to be applicable. Summation again at this point would be merely repetition and add little weight to our arguments. But one item is worthy of expansion at this point and that is the application of the rules espoused, to these documents, with regard to this proceeding. This type of application analysis seems to be mandated by Justice Douglas in the Cement Institute case mentioned earlier. 28/ To reiterate, Justice Douglas felt that the rules of evidence, which bar introduction of certain types of evidence, should be construed and applied to different cases based upon the ends sought to be achieved.
There can be little doubt that the applicable rules and principles of 9
evidence suggest unencumbered discovery r 9/ and also that the privileges claimed have deep roots in our judicial system. The application of these rules through the balancing of justice and privilege must now be done with 28/ See page 6 of this brief.
H/ The Administrative Procedure Act, 5 U.S. C. A. 5556(d) states "[A]ny oral or documentary evidence may be received. " Wigmore suggests
"[T]he investigation of truth and the enforcement of testimonal duty demand the restriction, not the expansion of these privileges",
8 Wigmore, Evidence, $2192, at 73 (McNaughton rev. 1961); cited with' approval in Falsone v. United States, 205 F. 2d 734 (5th Cir. ),
cert. denied. 346 U. S. 864 (1953). The Federal Rules of Civil Procedure, 28 U. S. C. A. Rule 43(a) states, "the statute or rule which favors the reception of the evidence governs. "
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regard to the documents in this proceeding. While the City has not seen the documents, it can be presumed that they will fall somewhere between the I
following characterizations. In one extreme are documents which represent the pur est application of the principles involved. For the attorney-client privilege this would include the confidential admission by the client that he was in fact guilty as charged. In the case of the work product doctrine, an attorney's own notes to himself, which represent his mental thoughts in regard to a case in which he is currently involved, would be included. On the other extreme are the cases which represent more of the application of practice then of the principles involved.
When the Special Master applies these rules to these documents he unquestionably will bear in mind the ends sought to be achieved in this case.
We are dealing with the future needs of the public for power at reasonable cost. The public interest demands that monopoly power not be used to constrict and eliminate competition. This Board has the obligation to protect and provide for the future needs of the public and consequently must make a decision based upon all the relevant facts with regard to energy and com-petition. In light of Justice Douglas' mandate, it is evident that the case law developed is not a limitation in administrative hearings; El that the ends sought to be achieved are not punitive but are in the strict pursuit of J
the public interest; and that the documents provide the best means of dis-covering the true corporate intent and policy.
30/ F. T. C. v. Cement Institute, 333 U. S. 683, 68 S. Ct. 793, 92 L. Ed.
1010 (1947).
4 .
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-27 Res ctfully submitted, th&
- Reuben Goldberg Oc.
David C. Hjel elt
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Michael D. Oldak Coldberg, Fieldman sc Hjelmfelt
, 1700 Pennsylvania Avenue, N. W.
Washington, D. C. 20006 Telephone (202) 659-2333 Attorneys for City of Cleveland, Ohio l James B. Davis Director of Law Robert D. Hart Assistant Director of Law
-City of. Cleveland 213 City Hall Cleveland, Ohio 44114 May 2, 1975 i
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CERTIFICATE OF SERVICE I hereby certify that service of the foregoing City of Cleveland's Reply Brief To The Special Master On The Issue Of Assertion Of Privilege has been made on the following parties listed on the attachment hereto this 2nd day of May, 1975, by depositing copies thereof in the United States mail, first class or air mail, postage prepaid, i
0 0 hi David C. Hjelpifelt /
h i
A ttachment
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ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.
U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palrner Washington, D. C. 20555 Suite 777 1700 Pennsylvania Avenue, N. W.
Mr. Frank W. Ka ras, Chief Washington, D. C. 20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuc1 car Regulatory Commission AMP-O, Inc.
Washington, D. C. 20555 Municipal Building 20 High Street Douglas V. Rigler, Esq. Chairman Hamilton, Ohio 45012 Atomic Safety and Licensing Board Foley, Lardner, Hollabaugh Melvin C. Berger, Esq.
and Jacobs Joseph J. Saunders, Esq.
Schanin Building Steven Charno, Esq.
815 Connecticut Avenue, N. W. Antitrust Division Washington, D. C. 20006 Department of Justice Post Office Box 7513 John H. Brebbia, Esq. Washington, D. C. 20044 Atomic Safety and Licensing Board Alston, Miller & Gaines William T. C*abault, Esq.
1776 K Street, N. W. David A. Leckie, Esq.
Washington, D. C. 20006 Department of Justice Post Office Box 7513 John M. Frysiak, Tsq. Washington, D. C. 20044 Atomic Safety and L. ensing Board U. S. Nuclear Regulatory Commission Ge rald Charnoff, ~Esq.
Washington, D. C. 20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.
Benjamin H. Vogler, Est Washington, D. C. 20006 Joseph Rutberg, Esq.
Office of the General Counsel Frank R. Clokey Usq.
Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Towne House Apartments Washington, D. C. 20555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq. Thomas J. Muns ch, Jr. , Esq.
Roy P. Les sy, Jr. . Esq. General Attorney Office of the General Counsel Duquesne Light Company Regulation 435 Sixth Avenue U.S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20555 David McNeil Olds, Esq.
Abraham Braitman, Esq. John McN. Cramer, Esq.
Office of Antitrust and Indemnity Reed,' Smith, Shaw & McClay U. S. Nuclear Regulatory Commission 747 Union Trust Building Washington, D. C. 20555 Pittsburgh, Pennsylvania 15219 w
, m Pege 2 ATTACHMENT (Continuad)
John R. White, Esq. Leslie Henry, Esq.
- Vice President and General Counsel Fuller, Henry, Hodge & Snyder
?
Ohio Edison Company 300 Madison Avenue
- 47 North Main Street Toledo, Ohio 43604 2
Akron, Ohio 44308 John Lansdale, Jr. , Esq.
i Pennsylvania Power Company Cox, Langford & Brown 1 Ea; ' Washington Street 21 Dupont Circle, N. W.
New Ostle, Pennsylvania 16103 Washington, D. C. 20036 I Lee C. Howley, Esq. Donald H. Hauser, Esq.
Vice President and General Counsel Corporate Solicitor The Cleveland Electric Illuminating Co. The Cleveland Electric Illuminating Co.
Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U. S. Nuclear Regulatory Commis sion U.S. Nuclear Regulatory Commission
}
Washington, D. C. 20555 Washington, D. C. 20555 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commission Wa shington, D. C. 20555 Washington, D. C. 20555 Dr. Lawrence K. Quarles D r. W. Reed Johnson
! Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
i U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Edward A. Matto Deborah Power Highsmith Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East Broad Street, 15th floor Antitrust Section Columbus, Ohio 43215 30 East Broad Street, 15th floor Columbus, Ohio 43215 Howard K. Shapar, Esq.
Executive Legal Direc? >r U. S. Nuclear Regulat sry Commission Washington, D. C. 20.i55 i
4
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APPENDIX A 31(a) 188 616, 19, 22, 25, 44, 45 703, 13, 16, 40, 41, 49, 55 832, 54 2002, 4, 5, 13, 37, 53, 66, 68-71, 73, 78-80, 83, 85, 90, 91, 92, 96, 97, 99 2100, 2, 6-16, 21/21A, 30, 38-41, 43-46, 52, 54 3033, 44-46, 58, 59, 65
, m APPENDIX B Author - Unknown 2157/2157A 2108-12 Author - JDZ 2117 Author - Legal Staff, law firm, etc.
10 124, 5 653, 9 706, 9, 65 803, 7, 24, 73 2025, 31, 32, 36, 83 2105, 30, 34, 35, 52, 54, 55, 56 Author not stated 2119, 20 I
l l
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s m APPENDIX C Assistant - Unknown 82 107, 8, 13-18, 21, 24-26, 62, 66, 68, 70 2025, 54, 71, 72, 76-79, 01, 83, 84, 85, 89, 92, 93, 98 2105,19, 20, 30, 34-36, 52-56, 57/57A 3007, 10, 11, 15
.; Assistant - Probably none 2038, 39, 63-65, 67, 68, 73, 74, 86-89, 94-97,99-104 2106-14, 17,18, 21/21A-29/29A, 31-33 1
.l Addressee - Unknown 163 2047, 83 2108-12 Addressee - None 2155 "None (Note 2064)"
i 2156 "None (Note 2165)'-
Distribution - Unknown i 32,102 (Not stated)
- 107, 8, 10, 11, 12, 24, 25, 46 2047, 73 -
3011 4
Distribution - Probably None 2025, 31, 32
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