ML19319C332
| 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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e UNITED STATES 0? AMERIC A' NUCLEAR REGULATORf COM.iiSSION BEFORE TdE ATOMIC SAFETY AND LICENSING GOARD In the Untter
)
)
1
-The Toledo Edison Company
)
The Cleveland Electric Illuminating
)
D'.S< e t No. 50-34GA Company
)
(Davis-3 esse 11uclear Power Station)
)
)
i The Cleveland Electric Illuminating
)
Docket Mos. 50-440; Company, et al.
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and 50-441A (Perry Plant, Units 1 and,2)
)
l i
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 the burden Nf proving privilege.
Applicants have not met The Department submits that these documents are, therefore, subj ect to production.
I
(
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/
i i
1/ 8 Wigmore, Evidence S2290, at 554 (Mcnaughten rev. 1961)
Thereinafter cited as "Wigmored).
2
<s In order to promote freedom of consultation I
of legal advisors by clients, the apprehension of compelled disclosure by the legal advisors must be removed; hence the law must pronibit such dis-i closure except on the client's consent.
Such is the modern theory.
Encouragement of full disclosure by a client rests on the a
theory that claims and disputes which may lead to liti-gation can most justly and expeditiously be handled by practiced experts, namely lawyers, and that such exper ts can act effectively only if they are fully advised of the facts by the parties whom they represent.
McCormick, Evidence, S87, at 175 (2d ed.
1972).
l The fact that there are sound policy reasons for the e s tabl ish T.e nt of the privilege must not be allowed to obscure the fact that each application of the privilega is a limited exception to a general rule resting upon an equally sound i
basis.
Each time the privilege is applied it bars examin-i ation of relevhnt evidence bearing on the issue 1 under litigation.
Because the general policy requiring an open J
I examination of all relevant facts competes with the more restricted policy of encouraging unhampered attorney-client 4
communication, a balance must be struck.
Wigmore has sum-marized this need for balancing as follows:
Nevertheless, the privilege remains an excep-tion to the general duty to disclose.
Its benefits are all indirect and speculative; its obstruction is plain and concrete.
It is worth preserving for the sake of a general policy, but it is nonthe-less an obstacle to the investigation of the truth.
4 It ought to be strictly confined within the narrow-est possible limits consistent with its principle.
Wigmore, 52291, at 554.
3 f
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1 A.-The Federal Common Law Of Privilege Should Be Acplied In Federal Administrative Proceedinas Before discussing the various elements of the attorney-client privilege, it should be noted that the rule of law to be applied in this proceeding should be that established by the various federal courts.
Because a Court, in applying the rules of privilege, must balance the need to protect attorney-client communications with the need for full disclosure, those rules should be applied with a view towards f airness to all parties in a pro-ceeding.
Where, as here, an administrative agency must coal with parties from all parts of the country, it appears that l
the fairest and best reasoned decision would be to apply the fedaral common law of privilege, thuc assuring a ennsistent application of the law, regardless of the location of the Applicants or intervenors.
Any other rule would lead to an inconsistent and inequitable application of the law, based in each proceeding on the situs of the parties.
The problems at their worst arising from an application of the state law of privilege can be seen if one imagines a proceeding where-one Applicant is from State A and another from State B.
It is clear that an administrative ' agency, if it wishes, may apply the federal common law of privilege. In In re Albert Lindley Lee Memorial Hospital, 209 F.
'd 122, 123 (2nd Cir. 1953),
cert. denied, 347 U.S. 906 (1954), the Court of Appeals first held that the determination of what evidence is to be admissible 4
~
em in an' administrative investigation "is a matter to be decided according to federal law."
Accord:
Colton v. United States, 306 F. 2d 633 (2d Cir. 1962), cert. denied, 371 U.S. 951 (1962); Falsone v. United States, 205 F. 2d 734 (5th Cir. 1953),
cert denied, 346 U.S. 864 (1963).
In Gretskv v. Basso, 136 F. Supp. 640, 641 (D. Mass.1955),
the Court held that even if a privilege existed under state law, "this is a federal administrative proceeding and state evidentiary restrictions would not apply."
In Federal Trade Commission v. St. Recis Paner Co. 304 F. 2d 731 (7th Cir.1962) a proceeding to enforce a subpoena duces tecum issued by the Federal Trade Commission in an inves-tigation under the Clayton Act, the Court of Appeals (citing Falsore) held that the federal co==on law of privilege was controlling and the Commission and the District Court had not erred in refusing to apply what was a legitimate privilege under state law.
It is therefore both necessary and proper to reject Applicants' argument that Ohio State law concerning privilege should apply in this proceeding.
Clearly, such a claim would be rejected in any suit before the federal courts to which Applicants were a party.
B.
The Attorney-Client Privilege Is To Be Strictiv Construed Dean Wigmore's warning that the attorney-client privilege "ought to be strictly confined within the narrowest possible 5
.m limits consistent with its principle" has been relied upon in numerous cases.
Radiant Burners, Inc. v. American Gas Association, 320 F. 2d 314 (7th Cir.), cert. denied, 375 U.S.
929 (1963); UnitedStatesv.GoldfIrb, 328 F. 2d 280 (6th Cir.),
cert. denied 377 U.S. 976 (1964); Kearnev & Trocker Corn. v.
Giddines & Lewis, Inc., 296 F. Supp. 979 (E.D. Wis.1969).
A corollary of this need for strict construction is that the party claiming the privilege "has the burden of establishing the existence of the privilege."
8 Wright & Miller, Federal Practice and Procedure, 52016, at 126 (1970) ; United States v.
Johncon, 465 F. 2d 793 (5th Cir. 1972) ; Honeywell, Inc.
v.
Piper Aircra ft Co., 300 F.R.D. 117 (M. D. P a. 1970).
The party claiming the privilege must show that all the elements o f the privilege exist.
United States v. Gurtner, 474 F. 2d 297 (9th Cir. 1973) ; In re Bonanno, 344 F. 2d 830 (2d Cir.1965); Inter-national Pacer Co. v. Fireboard Corcoration, 63 F.R. D. 88 (M. D.
Pa. 1974).
A mere assertion that the privilege exists is not sufficient.
Rather, the claiming party must "show sufficient facts as to bring the identified and described document within the narrow confines of the privilege."
International Pa,er co.
- v. Fireboard Corocration, 63 F.R.D. at 94.
It is re.adily apparent that the Applicants have not met l
this burden of proof with respect to several elements of the privilege.
For example, in its answer to the Interrogatories of the Department of Justice, The Cleveland Electric Illuminating 6
es Company (hereinafter "CEI") stated that the distribution of a number of documents was "not known."
It is clear, therefcre, that with respect to those documents, CEI has not made the requisite showing of confidentiality. 2/ Applicants' failure to meet their burden of proof with respect to other elements of the privilege will be discussed in those sections dealing with the specific elements.
C.
Only Communications Between Attornev Anc Client Are Protected It is an essential element of the privilege that only communications between an attorney and a client are privileged.
Wigmore, $2292, at 554; United States v. United Shon Machinery coro., 39 F. Supp. 357, 358-359 (D. Mase. 1950).
As noted above, the purpose of the privilege is to encourage free and open dis-cussion between attorney and client.
Thus, only that infornation whi h the atto'rney would not cbtain other than through his client is protected.
Communications which an attorney receives from someone other than his client, or certain agents o f his cliet,., are not protected.
Hickman v. Tavlor, 329 U.S. 495, 508 (1947); United States v.
Goldfarb, 328 F. 2d 280 (6th Cir.),
cert. denied, 377 U.S. 976 (1964); Cafritz v. Koclow, 167 F. -2d 749 (D.C. Cir. 1948).
As Dean Wigmore wrote:
Since the privilege is designed to secure l
subjective freedom of mind for the client in 2/ See Section II. F., infra, for a discussion of confiden-tiality as applied to the accorney-client privilege.
7
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~
seeking legal advice it has no concern with other persons' freedom of mind nor with the attorney's own desire for secrecy in the conduct of a client's case.
It is therefore not sufficient for the attorney, in invoking the privilege, to state thet the information came somehou to him while acting for the client, not that it came from some particular third person for the benefit o f the client.
Wigmore, 32317(2), at 619.
Where documents have been prepared as a matter of the client's routine or policy, or for any reason other than communication wirh his attorney, they are not protected.
United States v. Judson, 322 F. 2d 460 (9th Cir. 1963); United States v.
Bartlett, 449'F. 2d 700 (8th Cir. 1971).
It follows then that pre-e::isting independent documents which do not themselves satisfy all of the elements of the privilege do not become privileged when transmitted to an attorney, even if for the purpore of seeking legal advice.
Colton v. United States, 306 F. 2d 633 (2d Cir. 1962); Bouscher
- v. United States, 316 F. 2d 451 (8th Cir. 1963); Falsene v.
United States, 205 F. 2d 734 (3th Cir. 1953).
As noted by the Second Circuit in Bouscher v. United States, 316 F. 2d at 639, "any other rule would permit a person to prevent disclosure of any of his papers by the simple expedient of keeping them in the possession of his attorney".
This rule was applied to a corporation in Radiant Burners, Inc. v. American Gas Association, 320 F. 2d 314, 324 (7th Cir.1963)
Certainly the privilege would never be avail-able to allow a corporation to funnel its papers and documents into the hands of its lawyers for custodial purposes and thereby avoid disclosure.
8
An examination of Applicants' Answers to Interrogatories has revealed a substantial number of documents 3/ of which neither the writer nor the recipient was an attorney, but a copy of which was sent to an attorney.
It is just this kind of
" funnelling" that the Court in Radiant Furners sought to prevent, and it is clear that these documents are not within the protection of the privilege and should be produced.
Moreover, where an attorney's advice is based on com-munications which are not privileged, that advice (its pro-tection deriving solely frca the protection afforded the client) is not itself privileged.
Soorti Products. Inc. v. Coca-Cola Co., 262 F. Supp. 148 (D. Del.1962) ; American Cvanamid Co. v.
Hercules Pouder Co., 211 F. Supp. 85 (D. Del.1962) ; Unit 2d States v.
United Shue Machinerv Corn., 89 F. Supp. 357 (u. Mass.
1950). i/
The Department has challenged Applicants' claims of privilege for many documents written by an attorney because they are not based on an underlying confidential cc=munication.
If an examination of these documents shous that the sole basis for the advice given in those documents
_s an independent non-privileged communication, they should be ordered produced.
3/ See Attachment B.
4/ See Section G, infra, for a discussion of the attorney-client privilege as applied to cc=munications frcm an attorney.
9
D.
The Communication Lust Be Frem A Client To be within the scope of the attorney-client privilege, the confidential communication to the attorney which is to be protected must be from a client, prospective client or certain agents of a client.
Wigmore, 52291 at 554, United States v.
United Shoe Machinerv Corp., 89 F. Supp. at 358.
Because a corporation is a legal entity, unable to speak for itself, application of the rule in the corporate content is sometimes difficult.
Although some early cases held that any corporate employee can speak for the corporation (see e.e., Z,enith Radio Corn.
- v. Radio Coro. of America, 121 F. Supp. 792 (D. Del. 1954),
the better reasoned rule is one which applies the " control group" test.
The " control group" test seeks to determine which corporate employses are in positions of sufficient authority to be con-sidered as spesking for the corporation.
Under the decision in City of Philadelnhia v. Uestinehouse Electric Co., 210 F. Supp.
483, 485 (E.D. Pa. 1902) mandamus and orchibition denied, sub non. General Electric Co.
- v. Kirkpatrick, 312 F. 2d 742 (3d Cir.),
cert. denied, 372 U.S. 943 (1963), an employee is within the control group only if he:
. of whatever rank he may be, is in a position to control or even to take a substantial cart 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.
10
The " control group" test has been approved and applied in numerous cases.
Matta v. Honan, 392 F. 2d 686 (10th Cir.1968);
Honeywell, Inc. v. Picer Aircraft Co., 50 F.R.D. 117 (M. D. Pa.
1970); Garrison v. General Mo tors C'orn., 213 F. Supp. 515 (S.D. Cal. 1963).
Once it has been determined that the " control group" test is to be used, a decision must be made as to which employees are within that group.
An employee's title or position on the corporation's organicational chart is not determinative of membership in the control group.
Rather, one must look to the substance o f that person's duties and his actual authority.
Cic r o f Philadelnhia v. Westincheuse Electric Corn., 210 F. Supp.
433 (E.D. Pa.).
In Contoleum Industries. Inc. v. GAF Corn.,
49 F.R.D. 82 (E.D. Pa. 1969), tor example, the Court held that the director of research of a division of the corpcration was not within the ' control group because his duties enccmpassed gathering the information which served as the basis for naking corporate decisions but did not include participation ir. the actual decision making.
Other decisions illustrative of the application of control group test are:
Hocan v. Z1etz, 4 3 F.R.D. 303, 315 (N.D. Okla. 1967), aff'd sub nem.
Marta v.
Hocan, 392 F.2d 686 (10th Cir. 1968;; (Included in the contral group were the manager and assistant manager of the company's Patent Division, Research and Development Division, and all members of the Patent Committee.
Not within the control group was a research chemist or group leader in the Research and 11 O
Development Division); Garrison v. General Motors Coro., 213 p..Supp. 515 (S.D. Cal. 1963) (control group includes GM's officers, directors, department heads and one department head's first assistant) ; City of Philadelchia v. Westinghouse Electric Corn., suora, (department or division heads are not within the control group)
In its answers to the Department's interrogatories con-cerning the positions and duties of the writers and recipients of the documents claimed as privileged, Applicant CEI supplied the Department only with an organizational chart and a statement of the employee's title and immediate supervisor.
Because of this lack of information the Government was able to challenge i
1 only those documents whose writers or recipients were clearly not within the control group as defined by the courts.
As to those documents Applicant has not met its burden of showing that the employee had sufficient authority to be considered a client.
If it does not become apparent from an e:umination of the individual documents and the Applicants' Answers to Interroga-tories that an employee claimed as.a " client" possessed suffi-cient authority to be included within the control group, the documents written or received by that employee do not satisfy this element of the privilege and should be ordered produced.
2
- Applicant's failure to meet its burden of proof as to employees clearly not within the control group is not remedied by its reliance upon the decision in Harcer & Row Publishers
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- v. Decker. 423 F.2a 487 (7th Cir. 1970), af f' u av an ecually
.i divided court, 400 U.S. 348 (1971).
In that case, the Court held that the privilege can apply to a co=municatien from an employee not within the control group "where the employee makes the communication at the direction of his superiors in l
the corporation and where the subject matter upon which the
't attorney's advice is sought by the corporation and dealt with l
in the co=munication is the performance by the employee of the duties of his employment."
423 F.2d at 491-92.
When the policies behind the attorney-client privilege and the need for its limitation are recalled, it can be con-cluded that the control group test leads to a more reasoned application of the privilege.
The policy behind the privilege i
is full disclosure by a client.
When deciding what facts to reveal to counsel, a lowet level employee will be more con-a cerned with the reaction of management to the performance of his duties than any disclosure to litigative opponents.
- Thus, 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 essential and irreplaceable source of necessary facts.
In i
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.
13
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.
14
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 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.
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
)
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
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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 requests for legal advice or clear statements that they were 4
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 he believed they would be disclosed, it is tre essence of the 4
privilege that it apply only to those commur tcations which intended to be confidential and which have remained so.
were As the Court said in' United States v.
Tellier, 255 F.2d 441, 447 (2d Cir.) cert. denied, 353 U.S. 231 (1953):
It
.f the essence of the attorney-client pr i'..ege that it is limited to those communica-tions whica are intended. to be confidential.
I "The moment confidence ceases," said Lord 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.
Accord:
United States v. Mcdonald, 313 F.2d 832 (2d Cir.
17 1
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~
1963); United States.v. Kelsev-Hayes Wheel Co.,
15 F.E 461 2
(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/
i
- [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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v..
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 (3d Cir. 1966); United States v.
Kelse r-dayes Wheel Co., 15 4
l
~
F.R.D. 461 (2.D. Mich. 1954).
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.
j 19 l
r
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-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
j and without the gresence of third persons."
(emphasis added).
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 objective of promoting f r ee attorney-client communicacions, it 7
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 t
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e, w
- - ~. - - -.
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.
l 1
l 23
III.
Attorney's Work Product Any discussion of the work product privilege cust neces-329 U.S.
sarily begin with an examination of Hickman v. Taylor, 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
9 a
[
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
of Practice, 10 C.F.R. 52.1 et sec.. Section 2. 740 (b) (2), which f
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 La uti tater 1.4tigation.
t 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).
26
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-tion by an. attorney, without the fear that his work will then be n
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 i
of the continuous paper flow of any large corporation or con-1 sortium of companies.
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 28
-m.
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-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 to the results of nonlawyers' pretrial a
preparation].does not automatically-immunire the work of entire ~decartments
-or staffs of-corporations whos'e chiefs i
are attorneys.
29 1
n
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.
30 1
i
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.
i 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.
2.
Documents prepared in the ordinary course of business i
are not protacted under the work product exclusion.
3.
While documents not prepared by an attorney may be pro-tected under the work product privilege, attorney involvement i
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
~
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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
-37 115 1 33 153 173 39 116 134 154 176 82 117 1 35 1 55 179 88 118 136 156 180
131 205 535 607 644 1 82 206 536 6 08 645 183 208 538 609 648 1 84 209 5 39 610 651 185 210 540 611 653 1 86 211 556 612 657 187 212 559 613 6 5 F, 1 88 213 560 614 639 189 214 561 616 665 190 215 562 617 666 191 216 565 613 667 1 92 217 SCS 619 653 193 213 570 622 669 1 94 511 586 6 23 670 155 513 539 624 671 1 96 514 596 6 25 672 197 520 597 626 673 1 98 521 598 6 29 674 199 523 599 630 675 200 5 24 600 631 676 201 525 601 632 677 202 526 6 02 633 578 203 529 603 634 679 204 530 606 642 610 2
s.
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2007 2030 2065 2100 2126/ 212C i 2009 2039 2066 2101 2127/2127; 2010 2041 2067 2102 2123/2123; 2011 2042 2063 2103 2129/21297-2012 2043 2069 2104 2130 2013 2044 2070 2105 2131 20L4 2043 2071 2106 2132 2015 2045 2073 2107 2133 2016 2047 2075 2108 2134 2017 20/.S 2077 21 09 2135 2018 2049 2078 2110 2136 2021 2050 2079 2111 2137 2022 2051 2080 2112 2133 2025 2052 2083 2113 2139 2026 2053 2084 2114 2140 2027 2054 20a5 2115 2141 2086 2028 2056 2087 2117 2142 2029 2057 2088 2118 2143 2030 2058 2089 2119 2144 4
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m 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 tne 'urden of proving factually that c
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.
565 622 625 sO,9 645 714 741 755 767 781 787 1
815 830
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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.
35 602 782 847 2020 62 6 09 786 854 2021 sd 644 739 867 2022 131 645 791 8 69 2023 i
144 674 806 871 2024 1 32 6 75 817 8 77 2034 156 713 821 889 2037 1 53 733 S 23 892 2041 161 734 830 893 2043 1 76 7 49 835 2002 2052 184 757 836 2006 2078 1 85 7 35 837 2009 2079 188 768 838 2010 2080 566 769 839 2011 2082 596 770 841 2013 2092 597 771 843 2016 2106 598 773 846 2019 2114 4
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- r.
au22 3056 3057 3073 3074 3
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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.
7 561 8 39 2071 3020 88 609 341 2073 3041 102 616 843 2074 3013 107 645 844 2076 3044 1 03 644 8 47 2078 3045 110 713 865 2079 3046 111 7 49 2003 2080 3057 112 757 2015 2081 3053 1 24 796 2019 2092 3059 l
125 797 2020 2114 3065 138 7 93 2025 2115 3070 i
146 822 2026 2142 3071 l
1 63 8 26 2027 2143 176 830 2031 3001 1 31 835 2032 3006 187 837 2047 3022 208 8 38 2069 3027
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
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.
1 3
4 6
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.. m 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)
)
0 ". ' 77 C r C r t.'z r 7 C.n.?. ?. or
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s.
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
1 i
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. ATTACHMENT.
i Honorable Marshall E.
Miller-Reuben'Goldberg, Esquire Master David C.
Hjelmfelt, Esquire 1700 Pennsylvania Avenue, N.W.
Atomic Safety tnd Licensing' Suite 550 Board 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.
John H.
Drebbia, Esquire Washington, D.C.
20006 1
. 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 Atomie Safety and Licensing Post Office 357. 5000 '
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 State House 1
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-I j.1
m Leslie Henry, Esa.uire
. ~
.~ 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....
,., n.s.,,
. n_. 3.
m, l
.er o.
Cnief. Antitruct Section s C.
r_ _. t n-n 4
. r, 3 c_.
7 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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