ML19319C332

Reply Memorandum on Applicants'Claims of Privilege. Privilege Applies Only to Confidential Communications Between Attorney & Client & to Documents Prepared in Anticipation of Hearing.Certificate of Svc Encl

ML19319C332
Person / Time
Site:	Davis Besse, Perry
Issue date:	05/03/1975
From:	Berger M, Charno S, Urban J JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002130850
Download: ML19319C332 (45)

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$ UNITED STATES 0? AMERIC A' NUCLEAR REGULATORf COM.iiSSION BEFORE TdE ATOMIC SAFETY AND LICENSING GOARD In the Untter )

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-The Toledo Edison Company )

The Cleveland Electric Illuminating ) D' .S< e t No. 50-34GA Company )

, (Davis-3 esse 11uclear Power Station) )

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The Cleveland Electric Illuminating ) Docket Mos. 50-440; Company, et al. ) and 50-441A (Perry Plant, Units 1 and ,2) )

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REPLY MEMORANDUM 0;'

^ THE DEPARTMENT OF JJSPICE Od APPLICANTd' CLAIMS OF PRIVILEGE I. Introduction Pursuant to the Order of the Atomic Safety and Licensing Scard

< ' t. Decemoer 10, 1974, all documents for whica claims of privi-lege . ware asser ted were submitted to a Master , the Honorable r Marst.all E. Hiller, for in camera exaaination and determination of the .cl aims of pr ivilege, Memoranda in support of tne respective parties' claims of privilege were filed on April 25, 1975,

, and reply memoranda challancing these claims of privilege are to be suomitted on May 2, 1975.

1 This memorandum discusses the rules of law governing attorney-4 8 0 02130 {g

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ch'ert pr ivilege and attorneys ' wor k product , and applies these rules of law to Applicants' claims of privilege. Attachments A-F set for th , by category, those documents for which the .

Applicants have not met the burden Nf proving privilege. The Department submits that these documents are, therefore, subj ect to production. I

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Attorney-Client Privilege j l Part I The classic statement of the attorney-client privilege was made by Judge Wyzanski in United States v. United Shoe Machinery Corp., 89 E. Supp. 357, 358-59 (D. Mass. 1950):

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication 1 was made (a) is a member of tha har of a court, or his subordinate and (b) in connection witn this communication is acting as a lawyer; (3) the com-munication related to a fact of which the attorney was informed (a) oy nis client (b) without the i presence o'f stre.ngers (c) for the purpose of securing r primarily either (i) an ooinion on law or (ii) legal services.or (iii) assistance in some legal proceedings, and not (d) for purposes of committing a crime or tort; and (4) the privilege has been (a) claimed and

(b) not waived by the client.

These individual elements of the privilege and their appli-cation to a corporate client are discussed at length below.

l Dean Wigmore has authoritatively summarized the history i

and purpose .of tne privilege: 1/

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1/ 8 Wigmore, Evidence S2290, at 554 (Mcnaughten rev. 1961)

Thereinafter cited as "Wigmored).

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the existence or nonexistence of the privilege will not be determinative of the amount of information communicated by that employee. On the other hand, since the lower level employee is most often aware of and involved in the day-to-day activities which form the basis of the litigat.on, the applica-

' tion of the privilege to his communications would remove an i

essential and irreplaceable source of necessary facts. In short, in regards to the lower level non-control group employee, the.need for a full examination of J.ie facts outweighs the possible advantages of protecting his disclosures to counsel.

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Even if the holding in Farner & Row were to be accepted as controlling, it should be emphasized that its cest pro-tects communications frca noncontrol group employees only when the co=munication is about the performance of their duties and only when it has been directed by their superiors.

Applicants have made no showing that those documents from employees not within the control group were written at the direction of the employee's superior and were made concern-ing the performance of his duties. If an examination of the challenged documents does not show that the writers or recipients claimed tc be " clients" were within the control group, or alternatively have met the test of Harner &

Row, those documents should be ordered p~roduced.

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A E. The Protected Communication Must Be Made To An Attorney Who Is Acting As An Attorney In Relation To It In order to be protected, the communication must have been '

made to an attorney, or to an agent of the attorney, for the purpose of securing advice from the attorney. Wigmore, $2301, at 583. A law student is not considered an attorney for purposes i

of the privilege. Wigmore, 52300, at 581. While only communica-tions to an attorn~cy are privileged, it does not follow that

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every such conmunicacitn is protected.

One requisite for the finding that such a cc-- ':ation

, is within the privilege is that it was made (i) in cue course I

of obtaining legal advice, (ii) from a professional legal advisor in his capacity as such. Wigmore, 02292, at 554.

In a corporation, it is not unlikely that some attorneys will 1

be acting as both legal advisors and business advisors. Only those communications which seek lecal advice (as opp u J to business advice) will be protected. This has frequently been expressed in the statement that a communication to a lawyer can be privileged only when he is acting like a lawyer in relation to the cocaunication. Georzia-Pacific Plvwood Co. v. United States Plvwood Co., 18 F.R.D. 463 (S.D. N.Y. 1956); 2enith Radio

v. Radio Corp. of America, 121 F. Supp 792 (D. Del. 1954).

Acting like a lawyer has been defined as " receiving and apply-ing rules of law to confidential information received frot '

the client. Paper Convertinz Machine Co. v. FMC Coro., 215 F. Supp. 249, 259 (E.D. Wis. 1963). Where the attorney is s

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acting in his capacity as a business advisor, no privilege will atbach'to those conmunications seeking or conveying businass advice. United States v. Rosenstein, 474 F.2d 705 (2d Cir.

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1973); Lowv v. Conmissioner, 262 F.2d 809 (2d Cir. 1959).

In applying this rule to communications to or from house counsel of a corporation, one must determine the purpose of the communication to the attorney. The fact that an attorney received a copy of a document does not establish that that copy, ,

or all other copies of the document, are privileged. Pacer Convertinc Machine Co. v. FMC Corn., 215 F. Supp. 249 (E.D. Wis 1963). Nor does the fact that an attorney was present at a

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corporate =ceting make all discussions at er minutes of the I

meeting privileged. Air Shield. Inc. v. Air Reduction Co., 46

" " D. 96 (N.D. Ill. 1968) ; United States v. Brown, 349 F. Supp.

.,4 d (N.D. Ill. 1972).

We agree with Applicants that a document may contain both a privileged legal communication and a nonprivile business communication. In such a case, the portion of the document which deals with unprotected business matters should be produced.

Garrison v. General Motors Corcoration, 213 F. Supp. 515, 520, (S.D. Cal. 1963) (The Court ordered produu.3.d "commun4. cations or portions thereof" which were not within the privilege);

i-United States v. United Shoe Machinerv Corn., 89 F. Supp. 357 (D. Mass. 1950).

While Applicants liave stated broadly in their Brief in Support of Claims of Privilege that the attorney-client privilege 16 i 1

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was claimed only for those documents which sought legal advice, this claim has not been substantiated with respect to the indi-vidual documents by' Applicants' Answers to Interrogatories.

Thus, those documents which, on their face, do not contain 4

requests for legal advice or clear statements that they were written in response to requests for legal advice should be ordered produced.

F.

The Communi' cation Must Have Been Intended To Be And Have Remained Confidencial Because the attorney-client privilege exists to encourage the client to reveal those f acts which he would not reveal i f 4 he believed they would be disclosed, it is tre essence of the privilege that it apply only to those commur tcations which were intended to be confidential and which have remained so.

As the Court said in' United States v. Tellier, 255 F.2d 441, l 447 (2d Cir.) cert. denied, 353 U.S. 231 (1953): 1 It .f the essence of the attorney-client pr i' ..ege that it is limited to those communica- ,

I tions whica are intended. to be confidential.

"The moment confidence ceases," said Lord I Eldon,

• privilege ceases." [ citations omitted.]  !

' Thus it is well established that communica-tions between an attorney and his client, though made privately, are not privileged if it was understood that the information communi-cated in the conversation was to be conveyed to others. 1 l

Accord: United States v. Mcdonald, 313 F.2d 832 (2d Cir.

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2 1963); United States.v. Kelsev-Hayes Wheel Co., 15 F.E . 461 (E.D. Mich. 1954); Wigmore, S2311, at 599.

It is not enough that the communications concern " matters known by both parties (the attorney and the client) to be o f a sensitive nature which the client does not wish to be dis-closed" (Applicants' Brief, cage 6). The communication which I the privilege protects must, in and of itself, be confidential.

For example, Applicants may consider an interpretation of a contract clause as "censitive" and wish that such interprecation not be disclosed. :le ve r thele s s , if the contract is not confi-2 ,

dential, and the legal opinion interpreting it contains no other .

' confidential information communicated to the attorney by the 2

client, the document is not protected by the attorney-cliant i;

p-ivilngs. 5/

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• • [T]he cere relation of attorney and client does not raise a precuaption of confidentiality, and the circumstances are . to indicate whether by implication the communication was of a sort intended to be confidential ." Wigmore, 52311 at 600.

Where the cocaunication occurred in the presence or hearing of a third person not the agent of the attorney or client, it l has been held not to be privileged. United States v. Simoson, 475 F. 2d 934 (D.C. Cir. 1973); Cafritz v. Koslow, 161 F. 2d i .

5/ See Section II. G., infra, for a discussion of the applica-tion of the privilege 'to communications from an attorney, i8

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N 749 (D.C . Cir . 194 3 ) . Nor is legal advice, otherwise deriva-tively privileged, protected where it was intended that it should be communicated to third persons. United Ststes v.

Tellier, 255 F. 2d 441 (2d-Cir. 1953); United States v.

Broun, 349 F. Supp. 420 (N.D. Ill. 1972). Disclosure of the i substance of an otherwise privileged communicatior, either j purposely or accidently, bars a subsequent claim of privilege.

Fratto v. New Amsterdam Fire Insurance Cc.,

359 F. 2d 842 4

, (3d Cir . 1966); United States v. Kelse r-dayes Wheel Co. , 15 l

461 (2.D. Mich. 1954).

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F.R.D.

When dealing with a corporation, it is therefore necessary to decocai ne not only whether the communication was revealed to third persons outside of the corporation, but also whether employees of the corporation had knowledge of the contents of i

the document and if so , whether that knowledge destroys the  ;

required confidentiality. Where the control group test is used to determine which corporate employees may be said to 4

l speak for the corporation, it is clear that any dissemination of the communication outside that group destroys the privilege.

Natta v. Hogan, 392 F. 2d 686 (10th Cir- 1958). The Department of Justice has challenged those documents which, because they were distributed to those persons outside the control group, i do not meet the requisite test of confidentiality.

In applying the test of confidentiality to a corporation,

the court in United States v. Kelsey-Hayes Wheel Co., 15 F.R.D.

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m 461, 465 (E.D. Mich. 1954) concluded that:

One measure of their [the documents! continuing confidentiality is the degree of care e:<hibited in their keeping, and the risk of insufficient precautions must rest with the party claiming the privilege.

Thus, as with all other elements of the privilege, the par ty claiming privilege must chow that the test of confiden-tiality nas been met. Where, as is the case with a number of documents claimed as privileged by Applicants, the claiming party is unaole to determine who has actually seen t:.a docu-ments, it i= e' ear th at no ef fort has been made to maintain the ragaisi te confidentiality. Since Applicants have not s ho&;n f actually tn at those'docaments actually wer? kept con-fidential it has not met its burden of proof and the documents chould be produced.

G. Cornunications From An Attorney To A Client ;re Oerivativelv Privileced 1

Heretofore the discussion has dealt primarily with communi- l cations from a client to an attorney. While communications from an attorney to a client may be within the privilege, United j States v. Silverman, 430 F. 2d 106 (2d Cir. 1970); Natta v.

Hogan, 392 F.2d 686 (10th Cir. 1968), the privilege belongs to the client and thus derives from the protections af forded him.

(as stated in Section II E, supra, a law student is not con-sidered an attorney for purposes of the privilege) It does not 20

- o apply to every communication from an attorney to a client, but only to those communications which, if disclosed, would reveal a confidential communication from the client. United States v. Silverman, 430 F. 2d 106 (2d Cir. 1970); iligmore, 1 52321, at 629. Nor does it apply to an atterney's advice based on information other than his client's confidential disclosures. Soerti Products, Inc. v. Coca-Cola Co., 262 F. Supp. 148 (D. Del 1966); American Cyanamid Co. v. Hercules Powder Co., 211 F. Supp. 85 (D. Del. 1962); United States v.

United Shce !!achinery Co. , 89 F. Supp. 357 (O. Mass. 1950).

Therefore, a document from an attorney is privileged only where it meets all the elementc of the privilege and can alco be choun to contain information which would reveal a confidential communi-cation from a client.

Applicants have claimed as privileged numerous documents which, according to Applicants' Answers to Interrogatories, do not contain confidential communications from a client. From Appl i carit s ' brief description of the subject matter of the docu- -

ments, many of these consist of legal opinions based on non-privileged information. These documents, unless in camera examination should reveal a heretofore unmentioned reference to a -confidential communication from a client, are clearly outside the privilege.

Further, it is a well recognized policy that.where a 21 i

01cument contains botn privileged and non-privileged infor-mation, the privileged portions should be excised and the

- rest of the document pr od uced . Garrison v. General ilotors Corcoration, 213 F. Supp. 515 (S.D. Cal. 1963). See also,

! United _ States v. United Shoe Machinery Coro., 39 F. Supp. 357, 3 59 (D. Mass. 1950): "It follous that insofar as these letters to or from independent lawyers were prepared to solicit or give an opinion on law or legal services, such carts of them are orivilaced as contain, or_have_coinions cased on i n fo r ma t ion furnished by an officer o'r employee of ehe defendant in confidence i

and without the gresence of third persons." (emphasis added).

j H. Communications Made For The Purpose of Committing A Crime Or Other Illegal Act Arc :;ot Protected __

Since the Ottorney-clien* privilege is based on the policy 7

objective of promoting f r ee attorney-client communicacions, it must take second place to the overriding policy of preventing and discouraging the commission of fraudulent or illegal acts.

1 Thus, communications made for the purpose of committing such i an act are outside the protections of the privilege. United States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973); United States v. Shewfelt, 455 F.2d-836 (9th Cir. 1972); Wigmort, S2293, at'572-73. As stated by Mr. Justice Cardozo in Clark v. United States, 289 U.S. 1, 15 (1933):

A client who consults an atto.ney for advice th at will serve him in the commission of a 22 l

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fraud will have no help from the law. He must let the truth be told.

In order to compel production of otherwise privileged documents, a prima facie showing, independent of the document, must be made establishing that the communication was made in the course of perpetrating an i?1.egal act. Clark v. United States, 289 U.S. 1 (1933); United States v. Shewfelt, 455 F.ls 825 (9th Cir. 1972). Production can be ordered at any time during the proceeding when the Court becomes satisfied that cuch a prima facie showing has been made. Matta v.

Zletz, 41S F. 2d 633 (7th.Cir. 1969).

In the present proceeding, the Depart =cnt has alleged that applicants have engaged in anticcmpetitive conduct of such a nature as to constitute violations of Sections 1 and 2 of the Sherman Antitruct Act. If, upon in carora inspection, it is found that any communications between the client corporntions and their attorneys have been made in the furtherance of such illegal acts, those communications must be immediately disclosed.

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III. Attorney's Work Product Any discussion of the work product privilege cust neces-sarily begin with an examination of Hickman v. Taylor, 329 U.S.

495 (1947), the leading case on the subject. In that case plaintiff sought discovery of all written statements taken by defendant counsel from witnesses to the accident which was the basis of the claim, and discovery of memoranda of plaintiff's counsel relative to said accident. 329 U.S. at 498-499.

After stating that the basic question was whether the federal disccvery rules "may be used to inquire into materials collacted by an adverse party's counsel in the course of preparation for possible litigation," 329 U.S. at 505, the Court went on to a discussion of procedural rules and the problems thereunder.

The rulec, Ltte Cour t said " arc to L= accorded a broad and liberal treatment" but, " discovery, like all canters of procedure, has ulti= ate and necessary boundaries." 329 U.S. at 507.

Here is simply an attempt, without purported necessity or justification, to secure wriccen statenents , private metoranda and personal recollections prepared or fo=ed by an adverse party's counsel in the course of his legal duties. As such it falls outsid the arena of discovery and contravenes the pa tic policy undarlying the orderly prosecuti:n and defense of legal claims. . . . In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion from opposing parties and their counsel. ' roper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and need-less interference. 329 U.S. at 510-511, 24

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But.this quasi-privilege is not unqualified:

We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where rele-vant and non-privileged facts remain hidden in an Attorney's files and uhere production of ,

these facts is essential to the orcoaration of

' one's case, discovery may proper'ly be had.

329 U.S. at 511.

A. The Rules Of The Muclear Reaulatorv A2ency Discovery in hearings before the Nuclear Regulatory Com-mission is gcVerned by the Nuclear Regulatory Commission Rules i

f of Practice, 10 C.F.R. 52.1 et sec . . Section 2. 740 (b) (2) , which I concerns trial preparation materials, reads as follows:

Tri11 crenaration materials. A party may obtain discovery of cocuments anc tangible things .

otherwise discoverable under subparagraph (1) of i this para 3raph and prepared in anticipation of or for the hearing by or for another parcy's repre-sentative (including his ctrorney, consultant, surety, indemnitor, insurer, or agent) only upcn a showing thar the party seeking discovery h'as sub-stanti'al need of the-materials in the preparation of his case and that he is unable without undue hard-ship to obtain the subsrantial equivalent of the materials by other ceans. In ordering diccovery of such materials when the required showing has been made, the presiding officer shall protect against i disclosure of the mental impressiens, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.

While in large part the same as Rule 26(b)(3) of the Federal Rules of Civil Procedure, there is one significant

. difference between Section 2.740(b)(2) and the Federal Rule.

-Rule 26(b)(3) defines the privilege as protecing documents and other tangible things " prepared in anticipation of 4

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litigation or for trial" [e:phasis addad] while Sectica 2.740 (b)(2) protects only those materials "prcpared in anticipation of or for the hearinz." [e:phasis added] While this difference in language appears to be insignificant, uhen examined in light of the current debate on the extent of the protection afforded attorneys' work product, it beco:ce entremely important.

The language of Rulo 26(b)(3) which limits the pret2ction of the privilege to documents " prepared in anticipaten of liti-gation or for trial" does not define whether only materials prepared for the litigation in which disecvery is sought are protected, or whether the protecticn extends to caterials pre-pared for prior litigation. Currently , r.hcre are three points of vicw on the quastion. The first holds that matarials pre-parsa_ :c. p.;.v; cu.,:s arc procucav,ie t

La uti tater 1.4tigation.

hano'.*er Shce , Inc. v. United Shoe ":chinery Coro., 207 F. Supp.

(M.D. Pa. 1962); Fcar., ell. Inc. v. Pinar Aircraft Coro., 30 F.R.D. 117 (M.D. P2. 1970). The sccend view is less strict, and holds that materials prepared for prior suits are protected only when the two suits are closely related. Midland Inv. Co.

v. Van Alstyne, Noel & Co., 59 F.R.D. 134 (S.D. N.Y. 1973);

Philadelchia Elec. Co. v. Anaconda American Brass Co., 275 F. Supp. 146 (E.D. Pa. 1967). Finally, some Courts have held that the work product of any litigation is forever protected.

Duclan Coro. v. Moulinate et Retorderie de Chavanez, 437 F.2d 480 (4th Cir. 1973).

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A comparison of the language of Rule 26(b)(3) with that of Section 2.740(b)(2) makes it clear that the promulgators f

of the Nuclear Regulatory Commission Rules of Practice

~ deliberately limited the work product exclusion only to materials prepared in connection with the hearing at which discovery is sought, that is, the current hearing.

Thus, those documents which Applicants claim to be work product relating to " active matters which are still pending,

- and concern disputes between the City of Cleveland and CEI . . ."

(Applicants' 3rief, p. ~19) should be ordered produced.

B. The Work Product Privilece Does '.iot Acolv To Documents erscarea In the Ordinary Course of Business It is clear that under Hickmap3 v. Taylor and Rule 26(b)(3) ,

1 documents prepared in the ordinary course of business, rather than for litigatica, are not within the privilege. Thomas Orcan Co. v. ., adransda Stobodna Plcridba, 54 F.R.D. 367 (N.D. Ill 1972). The more limited language of Section 2.740(b)(2) does not change this, but simply defines which litigation the documents must be prepared for. The limitation of work product protection.co trial preparation materials is consistent with the policy behind the rule -- to encourage through trial prepara-n tion by an. attorney, without the fear that his work will then be used by opposing counsel. Thus, where litigation is not antici-pated'and discovery not feared, there is no reason to extend the privilege. It is assumed that such materials will be prepared i- 27

. 1, thorouf.ly, whether or not they are subject to discovery in later, uncnticipated litigation.

It is not necessary thet the litigation have commenced but only that there is a reasonable anticipation of its occur-ring. Arney-v. Gao. A. hormel & Co., 53 F.R.D. 179 (D. Minn.

1971). The prospect of litigation must, however, be more than the "remete possibility of litigation such as surrounds nearly every act c' the office attorney." Zenith Radio Coro. v. Radio Coro. of Anerica, 121 F. Supp. 792 (D. Del. 1954). See also Thomas Orcan Co. v. -Jadranska Slobodna Plovidba, 54 F.R.D. 367 (N.D. Ill. 1972); Scourtes v. Fred W Albrecht Grocerv Co.,

15 F.R.D. 55 (N.D. Ohio 1953); Abel Investment Co. v. United States .

5 3 F. R. D . 485 (D . Neb . 19 71.) .

Where, as here, claimaat is a corporation, care should be taken to insu,ra that documents for which work product protection is claimed uhera prapared for .chis hearing and not just as part of the continuous paper flow of any large corporation or con- i 1

sortium of companies. I While it is clear under both Rule 26(b)(3) and Section

2. 740 (b) (2) that a document prepared by someone other than an attorney'may be protected as work product, attorney involvement remains relevant in determining whether the document was pre-pared for litigation or in the ordinary course of business.

For example, it was held that a sales manager's " chronological history of certain contractual dealings' was not prepared in l

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4 anticipation of litigatiott, where no showing had been-made that the document had been requested by or prepared for an attorney, or that it otherwise reflected the~ employment of an attorney's legal expertise. Universal Vendors, Inc. v. Candicat Co. of America, 16 F.R. Serv. 1329 (E.D. Pa. 1972). And, in Thomas Organ Co. v. Jadranska Slobodna Plovidba. 54 F.R.D. 367 (N.D.

Ill. 1972), the . absence of attorney involvement in the origina-l tion and preparation of a document was held to create a conclusive a

presumption that the document was prepared in the ordinary ccurse of business.

Thus, where examination of a document claimed as privileged by Applicants reveals that it was not prepared by an attorney and it was not requested by or prepared under the supervision of an- l attorney, it should not be protected as werk product. Such a document must be considered as being prepared in the ordinary course of business and therefore producible.

While lack of attorney participation may remove a docu= ant i

j from the protection of the privilege, it does not follow that 1

j all documents prepared under the supervision ~of lauyers are pro-tectad. In Zenith Radio Coro. v. Radio Coro. of America, 121

j. F. Supp. 792, 795 (D. Del. 1954), the Court said:

The extension (of work product protection a to the results of nonlawyers' pretrial preparation].does not automatically-immunire the work of entire ~decartments

-or staffs of-corporations whos'e chiefs i are attorneys.

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s a See also Thomas Crean Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367'(N.D. Ill. 1972).

'IV. SIDD9.RY AND' CONCLUSION In conclusion, the-Department urges that the following principles be applied in determining which documents claimed as privileged by Applicants must be produced.

Attornev-Client

1. The party claiming privilege has the burden of placing in the record sufficient facts to show that every communication for which privilege is claimed meets the re-

-quirements of the privilege.

2. The privilege applies oniv to confidential communi-cations.made to an attorney by a clisnt for the purpose cf securing legal advice.

3. The privilege does not apply to pre-existing docu- t ments or to information obtained by the attorney independent of  !

the client. j 1

4. The privilege does not apply to communications made for the purpose- of ' obtaining nonlegal business advice.

5. Only communications from a member of the corporate Econtrol group can be considered as from a client and thus within the privilege.

6. Only communications which were intended to be confi-

. dential and which have remained so are protected.

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7. The party claiming privilege must show that confi-dentiality was maintained.

8. Communications from an attorney to a client are pro-tected cnly where necessary to protect a confidential ccmmunica-tion frca a~ client.

9. Where a document contains privileged and nonprivileged information, the nonprivileged information must be prcduced.

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> Attorrev's Work Product

1. Only documents prepared for or in anticipation of this hearing are protected under the Nuclear Regulatory Commission Rules of Practice.

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2. Documents prepared in the ordinary course of business are not protacted under the work product exclusion.

3. While documents not prepared by an attorney may be pro-i tected under the work product privilege, attorney involvement

! plays a significant role in determining whetner a document was prepared in the ordinary course of business. Where a document I was not prepared by an attorney, or in response to a request frcm-i or under the supervision of an attorney, it should be produced.

Respectfully submitted, i ,

STEVEN M. CHARNO

$4Wmn f)b%n MELVIN G. BERGER JANET R. URBAN.

Attorneys, Department of Justice Washingcca , . D. C. 20530 ve ~ - r

ATTACHIIENT A The Department of Justice challenges the follcuing docu-mencs for which the at torney-client" pr ivilege is cl aimed by CEI because they do not contain a confidential comr.unication and are therefore not privileged.

1 94 119 1 37 157 2 96 120 138 153 3 99 121 1 39 139 5 100 122 140 160 6 101 1 23 141 161 7 102 124 142 162 9 1 03 1 25 1 43 163 10 104 126 144 164 11 107 126(a) 145 165 12 '108 126('o) 146 166 27 1 09 1 27 1 47 167 28 110 12S 148 163 30 1 11 1 29 1 49 169 31(a) 112 130 150 170 34 113 131 151 171 35 114 132 152 172

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4 3 ATTACH:!C:Fr 3 The Department of Justice challenges the following docu?ents for 'ehich the attorney-client privilege is claimed by CEI becauct.neither the writer nor the recipient was an attorney. Because tnec 'urden of proving factually that every doce:.uat claimed as privileged meets all the ele-ments of the privilege the Departcent has challenged those doca?.ents for wnich neither tne author nor recipient was known or fo r unich A?pliccat did not supply sufficient in f or ma t ion to d s c e cai ne that aither the writer or the recipient was an a t t a r r.e y .

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ATTACliMENT C The following focuments by or to ar. attorney for wnich Applicant CEI claims attorney-client pri vilege are challenged t'cause the non-attorney w-iter or r ec i:J ient is not within the control group and therefore not a client. This category includes those docuT.en ts for which Applicant did not include i

informacion sufficient for a determination of the position of the employee.

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ATTACHeiE::T D The Department of Justice challenges the documents listed below wnich were claimed as protected by Applicant CEI under the attorney-client privilege because they have not met the recuired test of confidentiality. This category includes documents which were distributed outside the control group or for wnich distribution was not known.

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ATTACill!ENT E The Department of Justice challenges the following documents claimed as privileged as attorney's work product because they were not written for or in anticipation of this hearing.

98 105 106 2143 2150 2153 l

ATTACHc1EST F The Decartment of Justice cht'lengen the following docur.ents for which attornev.-client privilege was claimed by Applicant Duquesne Light Ccapany because they do not contain a confi-dential ca uunicction.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY CO : MISSION BEFORE THE ACOMIC SAFETY AND LICENSING PsOARD In the Matter of )

)

The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-34EA Ccmpany )

(Davis-Sesse Nuclear Power Station) )

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Ccmpany, et al. ) and 50-441A (Perry Plant, Units 1 and 2) )

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I hereby certify that copies of P2 PLY ME::ORANEU:: OF THE DE"ARTMENT OF JUSTICE ON APPLICANTC' CLA!:'S OF PRIVILEGE ha'l been sarved upon all of the parties listed on che attachment hereto by deposit in the United States mail, first class or airmail, with the e: ceptica of Honorable Marshall E. Miller and counsel for the Applicants, whose copies were delivered by hand, this 2nd day of May, 1975, i.

, Janet R. Urban i Attorney Department of Justice Antitrust Division 1

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. . ATTACHMENT.

i Honorable Marshall E. Miller- Reuben'Goldberg, Esquire Master David C. Hjelmfelt, Esquire Atomic Safety tnd Licensing' 1700 Pennsylvania Avenue, N.W.

Board Suite 550 Nuclear Regulatory Commission Washington, D.C. 20006 Washington, D.C. 20555 Benjanin H. Vogler, Esquire Douglac Rigler , Esquire Roy P. Lessy, Jr., Esquire Chairman' Office of the General Counsel AP.omic Safety and Licensing- Nuclear Regulatory Commission Board .

Washington, D .C . 20555 Foley, Lardner, Hollabaugh

& Jacobs- Gerald Charnoff, Esquire 815 Connecti.::t Ave., N.W. William Sredford Reynolds, Esquire Washington, D.C. 20006 Shaw, Pittman, Potts a Troubridge 910 Seventecn:h Street, N.W.

1 John H. Drebbia, Esquire Washington, D.C. 20006

. Atomic Safety and Licensing i Board Lee C. Howley, Esquire Alston, Miller & Gaines Vice President & General Counsel 177 6 .* Str ee t , N.W. The Cleveland Electric Washington, D.C. 20006 Illuminating Company Post Office 30:: 5000 John M. Fryslak, Escuire Cleveland, Ohio 44101 Atomic Saf ety and Licensing Board Donald H. v.auser, Esquire Nuclear Regulator y Com.nission Corporate Sulicitur

-Washington, D.C. 20555 Tne Cleveland Cisctric Illuminstina Concanv Post Office 357. 5000 '

Atomie Safety and Licensing Board Panel Cleveland, Chio 44101 Nuclear- Regul:.tcry Commlasion Washington , D.C. 20555 John Lcnsdal?, Jr., Esquire.

Cox, Langford & 3rown Frank W. Kar as 21 Dupont Circle, N.d.

Chief, Public Proceedings Washing ton , D.C. 20036 Staff Of fice of the Secretary Chris Schraff, Esquire Nuclear-Regulatory Commission Of fice of Attorney General Washington, D .'C . 20$55~ State of Ohio 1 State House Abraham Brairman Columbus, Chio 43215 Office of Antitrust and Indemnity Deborah Powell Highsmith, Esquire Nuclear Regulatory Commissicn Assistant Attorney General Washington , D.C. 20555 Antitrust Section 30 East Broad Street Herbert R.~Whitting, Esquire 15th Floor

-Robert D. Hart, Esquire Columbus , Ohio 43215 Law Department

. City Hall.

Cleveland, Chio~.44114- ,

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m Leslie Henry, Esa.uire .

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.~ u l l e r , Henry, Hodge ' Snyder

• 300 :1-dison Avenue .

Tolede, Ohio 43604 Thomas A. Kayuha, Esguire E:<ecutive Vice President Ohio Edison Company '

47 :!ortn Main Street Akron, Chio 44303 David M. Olds, Erguire Reed, Smith, S h a .- & : cClay 747 Union Trust B u i l d i:ig Pittsburgh, 2ennsylvania 15219 Mr. Raymond hudukis Director of Utilities Cit / cf Cleveland I?03 Lakeside Avenue Cleveland, Onio 44114 Wallace L. Cuncan, Eccuire Jon T. Brown, Esquire D u n c a. a , 3rown, .?inberg

& Pa l:,;er 1700 i'enncylfaaia Avenue, N.N.

Washingtcn. D.C. 20006 Edw>.rd A. r" tto, Escuire n- -.~ ;. m .er. . . . , ., n .s .,, .on_. . 3 . m, l Cnief. Antitruct Section 7

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15tn Fl oo r Columbus, Onio 43213 Richard M. Firestone Assiscant Attorney General Antitrust 3 action 30 East Becad Street 15th Floor Columbus, Chio 43215 l

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