ML19319C699
| ML19319C699 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 06/30/1975 |
| From: | Coufal F NRC COMMISSION (OCM) |
| To: | |
| References | |
| NUDOCS 8002260828 | |
| Download: ML19319C699 (87) | |
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2 CR 4696 1
UNITED STATES OF AMERICA FRANK l )
RN 2
NUCLEAR REGULATORY COMMISSION
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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x k
4 In the matter of:
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TOLEDO EDISON COMPANY and 6
CLEVELAND. ELECTRIC ILLUMINATING Docket No. 50-346A COMPANY 7
(Davis-Besse Nuclear Power Station) 8 e
and 9
CLEVELAND ELECTRIC ILLUMINATING 10 COMPANY, et al.
Dockct Nos. 50-440A 50-441A 11 (Perry Nuclear Generating Station, Units 1 and 2) 12
--_ _ _ _.:. - - - - - - - - - - - - -X
- 3
(' F i 13-Hearing Room, 12th Floor 14 Landow Building 7910 Woodmont Avenue 15 Bethesda, Maryland 16 Monday, 30 June 1975 17 Hearing in the above-entitled matter was convened, 18 Pursuant to notice, at 9:30 a.m.
19 BEFORE:
1 s
20 FREDERICK COUFAL, Chairman l
21 1
1 22 4
23 APPEARANCES:
M 24 MICHAEL OLDAK, REUBEN GOLDBERG and DAVID H'JELMFELT,
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alReporwn,k.c.
Esgs., Goldberg, Fieldman & Hjelmfelt, Su~ite 550, 25 1700 Pennsylvania Avenue, N. W., Washi*ngton, D. C. ;._ ~
on behalf of the City of Cleveland.
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APPEARANCES:
(continued)
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2 JANET URBAN, Esq. and STEVEN CHARNO, Esq., Antitrust
- Division, U. S. Department of Justice, Washington, c.
3.
k) l D. C.
20530; on behalf of the Department of Justice.
4 BRADFORD REYNOLDS, Esq., Shaw, Pittman, Potts &
4 Trowbridge, 910 Seventeenth Street, 5
N. W.,
Washington, D.
C.; and DONALD H. I'.AUS'ER, Corporation Solicitor, Cleveland 6
Electric Illuminating Company; on behalf of the Applicants.
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CHAIRMAN COUFAL:
Good morning.
3 Since I haven't had-the pleasure of meeting you, n
4 I would appreciate it if you would tell me who you are, a
5 beginning at my right.
6 MR.OLDdK:
Michael Oldak with the firm of 7
Goldberg,Fieldman & Hjelmfelt, City of Cleveland.
8 CHAIRMAN COUFAL:
City of Cleveland?
+
9 MR. OLDAK..Right.
10 MR. GOLDBERG:
My name is Reuben Goldberg, the 11 same firm, also representing the City of Cleveland.
12 Behind me is David Hjelmfelt, for the same client.
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, 13 C m "m N'COUFALr Thank you.-
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14 URBAN:
Janet Urban for the Department of 15 Justice.
16 MR. CHARNO:
Steven Charno, Department of Justice.
17 MR. REYNOLDS:
Bradford Reynclds, from Shaw, 18 Pittman, Potts & Trowbridge, representing the Applicants.
19 I believe Mr. Donald Hauser will join us shortly.
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t 20 He is coming in from Cleveland.
He is going to come directly i o a
21 here frors the airport.
22 CHAIRMAN COUFAL:
All right.
23 For the record, this is the matter captioned 1
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24 Toledo Edison Company and Cleveland Electric Illuminating l-']cl Reporters. Inc.
25 Company, Davis-Desse Nuclear Power Station Unit 1 and the
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Cleveland Electric illumunating Company, et al, Perry Nuclear n.
2 Plant Units 1 and 2, being docket Numbers 50-346A, 50-440A and r,
3
- 441A, u]
4
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My name is Frederick Coufal, Special Master, 5
appointed to rule on certain items of evidence.
6 This hearing is held in response to a motion or 7
motions by the parties to review my report dated January 19th, 8
1975 in which rulings were made with* regard to many, many 9
dccuments.
10 Have you decided among.you how you want to go II through this?
12 MR. GOLDBERG:
I haye been advised ?"
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Urban
~
13 th'at I am going first.
14 CHAIRMAN COUFAL:
Ik is nice to know where'you 15 stand, isn't it?
16 Then who is to follow you, Mr. Goldberg?
17 MR. GOLDBERG: Ms. Urban, I presume.
18 MS. URBAN:
I will.
19 CHAIRMAN COUFAL:
Then CEI?
20 MR. REYNOLDS:
Right.
21 MR. GOLDBERG:
Have you received the copy of our 22 list of documents?
23 CHAIRMAN COUFAL: 'Yes.
The one you sent over'
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24 Friday?
W.d..a % tae.
25 MR. GOLDBERG:
Right.
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CHAIRMAN COUFAL:
I have.
I ave read it.
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2 Although I have to admit I read it hurriedly, so anything you
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3 want to be sure I get you should repeat it.
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MR. GOLDBERG:
I will be going over it so I will S
take care of that situation.
6 MS. URBAN:
H.ve you received a copy from the 7
Department of Justice?
8 CHAIRMAN COUFAL:
No, ma'am.
9 MS. URBAN:
I apologize.
We have been having 10 messenger problems.
1I CHAIRMAN COUFAL:
Thank yo'u.
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12 Well, I will ask you to, when it comes to your
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13 tu,rn, Ms. Urban, to repeat' what you have said here, because
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14 obviously I have not had a chance to read it.
15 MR. REYNOLDS:
Befcre Mr. Goldberg begins let me 16 ask whether you received a filing from the Applicants on Friday 17 afternoon.
18 CHAIRMAN COUFAL:
No, sir.
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l 19 MR. REYNOLDS:
I have a single copy, although-20 Mr. Hauser may also'have a copy.
We can get it.
21 MR. CHARNO:
I think we have' an extra copy for you, 22 Mr. Reynolds.
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23 CHAIRMAN COUFAL:. I think it was a mistake on 'y_,..t m
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24 part to get into this thing without an oral presentation.
One
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t-wdR9aten inc 25 of the reasons is I had only the vaguest idea what this lawsuit
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I was all about and it was very difficult for me to get AA/
2 oriented in the middle of this stuff.
3
,3 I think an oral argument would have been very A/
4 helpful.
5 So, is anybody here.under any time constraint?
6 MR. GOLDBERG:
I would probably have to leavehere 7
about 3:30, but in the event we are not concluded by that time 8
Messrs. Hjelmfelt and Oldak I am sure at that point would 9
be able to take over.
10 CHAIRMAN COUFAL:
I hope it won't take that long, 11 but I would like to get this wound up today if,possible.
12 The Licensing Board is anxious to get on with
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13 sopething else.
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a' 14 I sympathize with that point of view.
15 MR. CHARNO:
Would.it be appropriate to go through 16 by cat'egories of documents, each taking our various.
17-positions on~different categories?
18 I think it might be a more organized presentation.
19 MR. GOLDBERG:
That is what I was planning to do,
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20 by following the paper we had filad-t 21
,FGt. CHARNO:
I think each of us speak to each 22 category.
It would be easier to keep. track of the different
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23 views.
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24 CHAIRMAN COUFAL:,,,
Well, I suppose you have all s.sdagadws bc 25 got the filing'by Cleveland.
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1 MR. GOLDBERG:
Yes.
2 CHAIRMAN COUFAL:
That is the way their filing k
3 starts out, with Category 1.
4 By the way, I don' t have -- Rigler did not i
5 return to me Category 4' documents.
I spoke to him only 6
briefly when he brought those things up here.
Have they been 7
turned over?
8 MR. REYNOLDS,:
Applicants have turned over all 9
the Category 4 attachment 4 documents, but the few listed in 10 the paper I just handed to you.
Most of those are not in 11 issu'e and have been produced.
12l
- '-~ CHAIRMAN -COUFAL < "I take it the ones I ruled both ' w~
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- e-13 ways on you didn' t deliver.
14 MR. REYNOLDS:
That's correct.
15 CHAIRMAN COUFAL:
That was a cautious move.
16 MR. GOLDBERG:
I am not too sure whether the 17 cate'gories.as we have listed them in our most recent 18 documents filed on Friday are precisely the manner in which 1
19 the Applicant has listed them.
~
20 Wily don't I begin with Category 1 as it appears
' 21 in our document?
,.U 22 That category deals with documents which you.
r 23 Honor held privileged on grounds other than those asserted
'g 24 by the Applicants.-
Federal Reporters, lac.
1 We have listed the numbers on pages 2 and~3.
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I CHAIRMAN COUFAL:
All right.
i.
2 MR. GOLDBERG:
In that category the Applicant has, t
3 with respect to some documents, asserted the attorney-client
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privilege, and no other privilege.
5' With respect to other documents in that 6
category, the Applicants -- the Applicant or Applicants have 7
asserted-the work product claim and no other cliam of 8
privilege.
9 As we read the ' cases and the law, where an 10 assertion of privilege is made on one ground and that ground 11
%s denied, the document is not a privileged document, even 12 though the examiner of the document may have asserted if he I
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e.in.the piai4.-of the Applicant a rH fferent'igrouna..g
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14 The privilege is one that has to be claimed 15 by the Applicant.
16 The Applicant in not claiming one privilege. waives 17 that privilege.
18 Obviously the only inference to be made when the 19 privilege is not claimed is that the Applicant, who is most 20 familiar with the doucment, presumably with its. origins, 21 the author and the distributies, know whether they can make 22 out a case and support their burden of proof.
U, 23 If they have not done so, they can't claim '
24 privilege'.
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25 The only assumption is when they don't claim
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I a work product. or attorney-client privilege, they cannot make
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2 out their case.
3 Therefore, it is our firm position, and we say n.
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this respectfully, that the Master erred in granting the 5
privilege on grourds other than those asserted by the 6
Applicant.
7 I wonder if, as a matter of orderly procedure, 8
pu would prefer now at this point that Ms. Urban addr'ss e
9 herself to the category I have just referred to, and 10 Mr.,Reynolds can resporid.
II In the interest of not extending today's session, 12 I am not making an extensive argumentabout the case law because a ~...
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thqtt is all'in the documents we previously filed, with which v-14 we assume you are familiar.
15 CHAIR'4AN COUFAL:
Yes.
I think that.is a good 16 suggestion, that we go ahead as we previously. discussed and 17 let the Department and the Applicant take up this category.
18 Ms. Urban, if you would, please.
19 MS. URBAN:
I would like to emphasize j
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20 Mr. Goldberg's discu'ssion of the burden of' proof.
The cases 21 show a person claiming the privilege has'the burden to show
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23 present.
24 It seems clear that where Applicants itave M] ol Reporters Inc.
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25 neglected to make an attempt to claim the privilege, they-haven' ti '
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2 made any attempt and therefore have not met' the burden of proof.
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3 Secondly, in terms of the work product privilege,
-s) 4 L the attorney-client privilege protects factual communications s
S to attorneys.
If those communications are confidential and 6
have remained confid'ntial.
e 7
You have two elements.
The confidentiality 8
must have been intended at the inception of the document 9
.and the document must al,so have remained confidential 10' throughout its existence.
II Applicants' failiure to make an attempt to 12 claim the attorney-client privilege on these'. documents' show l
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c c.x 14 A claim of work prod' ct privilege is not sufficient u
l 15 to show confidentiality since these factual communiations 16 whether or.not they.were confidential, would not have been 17 protected under the work product.
18 That is a dif ferent exclusion and it protects 19 the thoughts and mental impressions of attorneys not the 20 underlying facts.
21 MR. REYNOLDS:
I guess I would like to point out 22 at the outset that I am a bit handicapped in that I have not f
i 23 received the designations until this morning of the documents 24 and it is a little difficult.to get specific responses.
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d) 25 I did receive the Department of. Justice's e
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listing yesterday morning.
I understand it was in'my office 2
late Saturday afternoon.
3
.I got the city of Cleveland's filing this s
4 morning about fifteen minutes before the hearing.
5 I would point out that just from a glance at the 6
designations I think that they are both well beyond what the.
7 Chairman of the Licensing Board contemplated by a review today, 8
e, specially in light of the express agreement by the parties to 9,
be bound by the Special Master's, ruling bac.k in December of 10 1974.
11 Now, I am havil.3 some difficulty with the 12 argument of waiver, especially since we itave gone through C......
Il' whpt' i's "a 'veiy exten's'ii/E snBmis's'io'n to We MEsji6f of" ' ~~' ~ ' '
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'T3 14 documents to which we are entitled, we felt were entitled to 15 a claim of privilege, and ask for an in camera examination of 16 those documents, and I think that it is clear that there was 17 no intention on the part of CEI to waive any, privilege 18 status with respect to those documents.
19 I don't think that the point we are discussing 20 here has the correct focus and I say that principally because,~
21 as I understand the argument, if I could refer to the report 22 of the.Special Master, the docu; tents which are listed in f-d 23, as protected under the attorney-client privilege, 24 which have been challenged, a'sI understand it, are those n
jol Reporters. Inc.
25 documents that ' appear in the Department of Justice's filing
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as Category 2 documents, and I believe the numbers coincide qkJ 2
with the numbers in the City's filing that are listed on 3
page 3, but I will have to ask that the City correct me or that.
4 the Department correct me if I.am wrong, because I have only 5
had a brief moment to compare.
6 But I believe that the document at the top of page 7
3 and the City's filing are similar to, ider.tical to the 8
l'isting by the Department of Justice of Category 2 documents.
9 As I understand it, the challenge to thou.e 10 documents is that they are not entitled to the protection 11 afforded them by the Special Master in the lis' ting. of i
12 of the Special Master's ruling.-
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13 e:R 4696 1
CHAIRMAN COUFAL: Let me interrupt just'a second.
faiffer
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Are you in agreement that your numbers coincide in those
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two presentations?
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4 MR. GOLDBERG:
A quick look indicates to us that S
what the Department of Justice has classified as Category 2 6
is part of our Category 1, which appears on page 3 of our 7
document, and what they have listed as Catdgory 3 is also 8,
part of our Category 1, and the listing of the documents in 9
that situation are at the bottom of page 2.
10 MR. REYNOLDS:
That is my understanding, just with 11 a quick look.
12 CHAIRMAN COUFAL:
You are in agreement on the t
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13 numbers?
14 MS. URBAN:
Yes.
Our number 2 refers to the 15 finding of privilege where privilege wasn't claimed and 16 number 2 is work product privilege.
17 CHAIRMAN COUFAL:
Mr. Goldberg l'unped both in one 18 list.
The numbers agree?
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19 MR. GOLDBERG:
I think the numbers coincide.
20 CHAIRMAN COUFAL:
Fine.
That is helpful.
21 Go ahead.
22 MR. REYNOLDS:
It seems to me, if we can look at --
(_-)s 23 I am using page 3 of the. Department of Justice filing, only
-p 24 because they have gone down 'and listed every documen't individ-gs jol Reporters. Inc.
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25 ually, whereas the city groups-them, documents that were
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consecutively numbered, but we can use dither one; But those s
2 documents which begin with the number 4 and end with the number 3
3079', are as I understand, the argument of the city and the 4
Department of Justice, not documents that they feel are not 5
entitled to protections as privileged material, but rather 6
documents which fall in a category of work product privilege 7
rather than attorney-client privilege.
8 I believe that a review of those documents *will 9'
indicate that tLay clearly are work product privilege, that 10 the,y are opinions of counsel, that they are written by counsel 11 in the present proceeding, and'that they all involve this 12, particular proceeding and analysis prepared in co*aection
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x 13 with this l'itigation.
14 I think if you look at the special masters de-15 ceription of his attachment documents, that description fits 16 to a tee, these documents listed as 4,through 3079, in 17 that they all are communications among' attorneys employed i
18 by CEI, between CEI attorneys and the consultants, made for 19 the purpose of obtaining leval advice and tend to be confi-20 dential, not distributed outside the cont'rol group.
In fact, 21 none of these documents were distributed to anybody but
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22 the attorneys in this case, the ones that are listed now in v) 23 this listing.
And the Special Master then said I find these p',
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24 to be within the attorney-client rule and therefor ~e privi-deral Reporters. Inc.
25 leged.
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Now, it would seem to me that under the descriptior m
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2 of the documents and given the fact that they are all involvec 3
in the present proceeding, the Special Master could equally
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4 find that they are, in his final sentence, within the attorney 5
client rule and/or the attorney's work product rule and 6
therefore privileged.
7 I real'ly believe that the fact that in listing 8
the documents, the Special Master grouped these into, under 9
this definition as opposed to under the attachment one defin-10 ition, isn't a basis for saying they are not entitled to pri-II vilege because there is some waiver.
The claim of privilege 12 was clearly made.
No one has asserted or is asserting as Q
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13 I., understand it, that these are not legitimate work product 14 documents.
15 The Master found them to be privileged material.
16 And I think that the only reason that we have got any issue 17 here is because in the paragraph describing the documents, 18 the section where these documents were listed, the Special 19 Master said I find them to be'within the attorney-client 20 rule.
71 I believe under the description that the Special 22 itaster has given, he could have equally have said they are 23 also within the attorney's work product rule, special in l-24 light of the fact that all o'f these documents were involved QA Reporters. Inc.
25 in this proceeding and indeed, the largest part of them are i*w
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documents which I prepared or specified specifically, or
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2 waich Mr. Charnoff, my partner at the law firm Shaw, Pittman 3
prepared or received, or which Mr. Lansdale, who is
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4 Washington counsel for CEI involved in this case, prepared 5
or received.
6 So I think as to that group of documents, we 7
are not really talking about a waiver situation.
There is 8
,some confusion as to what category they should or should not 9
^ be put in, but clearly, the Applicants regard these documents 10 entitled to privilege and we did not hand the documents 11 over.
/
g 12 We have not circulatedthem or distributed them to u
(,W ~ #* *
^"apYbody"else." We' submitted"them to the Special-taster ~and
' - +
13' 14 I think that under the description of attachment 2, which is 15 the category they fall within, they certainly would fit with-16 in that description'.
f 17 Apparently, a big point is being made of the fact 18 tha't the Special Mastersaid I find th'em to be within the 19 attorney-client rule.
I think the special master equally 20 confined them under that description to be within the work 21 product rule,which is consistent with what-the claim was and 22 consistent with the privilege.
U-23 I would go on to the next category, 3, of the 24 l Department of Justice paper / which says that we have documents
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e 25 that.were not claimed as work product but were put in the i
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the work product category.
That, I think, refers back to
()
2 the attachment 1 category of the Special Master's ruling, and 3
I would submit first,as to that listing there, that there O
4 were, for example, I think one of the problems with the number 5
of documents we have been dealing with, both CEI and the 6
Special Master and everybody else, is having trouble finding 7
out what category' to put a document in and where to list it.
8' Both the city and the Department of Justice have 9
put in this category, documents not claimed for. work product 10 privilege and yet document 11, 21s7, 2161, 2162, 2163, 2164, a 2d 11l 2165 and 2166,were all claimed as work product privilege and they have been included in this listing.
12 ;
7
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a la mass of documents the problems people have as far as claiming 15 work product or figuring where to list each document, and in J
16 which category we are grouping them.
17 MR. GOLDBERG:
Could you give me that list of i
l 18 numbers again?
19 MR. REYNOLDS:
210, 2147, 2161 through 2166, where 20 the. work product privilege was claimed.
Yet, we have them 21 listed in here as being outside the claim.
I think a part 22 from that, the other documents would fit clearly within the.
g 23 attachment 2 category.
I think the master has had an oppor-24 tunity to review the documen'ts.
tcl Reporters. Inc.
25 All the others were discussed except the last 3,
18 iarb6.
I and Mr. Hauser's affidavit, they are basically his hand-
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2 written personal notes, and they would clearly fit within what 3
the attachment 2 listing is, as to attorney-client privilege 4
claimed in that cacegory.
5 It is a question again, I would suggest, of where 6
to take a hanful of documents and where to put them.
- Clearly, 7
the privilege was claimed, the protection was sought, the 8
, documents were submitted to the Special Master and I think 9
under the descriptien for example, in attachnunt 2,tMat the 10 Special Master has set forth, that these documents would Il clearly fall witbin that heading, and would be entitled to
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12 protection.
i I
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13,
- so r reall7 think that what we are' into here -is
- ^ - - - " -
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14 perhaps some confusion which is understandable with this 15 number of documents as to what category we put them in, but 16 we are not talking'about -
here -- about a waiver in any 17 sense.
We have got a number of documents which have been 18 submitted,.the protection has been claimed, the Special 19 Master has had an opportunity to review the documents, I have 20 had an opportunity review most of them.
21 I think perhaps that enabled me to appreciate 22 a little better than the city and the Depar' ment of Justice, t
d,.
23 that I think a commendable job was done.
I think if the
^
24 city and the Department'were' in a position to review the s
.ja! Reporters. Inc.
25 documents, they would probably find much less disagreement
barb 7:
l l
y with the Master's ruling than they find with the submissions.
p 12 CHAIRMAN COUFAL:
I can't be proud of the Master 3
when there is a ruling on two ways on the same document.
q Thero V
4 are some documents there were both excluded and included.
5 MR. REYNOLDS:
Waiver documents.-
~
6 CHAIRMAN COUFAL:
I am sorry I commented.
My-7 att.empt at humor, I guess --
8 MR. REYNOLDS:
Those documents where he listed both 9
ways are parts where documents were deleted and didn't delete.
10 The other categories, as I see, are those that the Applicants I1 waived the privilege ~to, and I think the fact that the Appli-12
' cants may have waived the privilege doesn't mean they were not
.l
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- 13 p{ivileged' when you' reviewed -them.'
~ ~ - " - - " - - -
- - + -
A-14 It is just a question of whether we determined 15 for other reasons that we would go ahead and turn these over.
16 But I real'ly think we are not talking here about a situation 17-where we have got documents that there has been a waiver of
~
j 18 privilege to.
~19 I think what we are talking about is documents l
20 where there is a grouping problem and may be some numbers 21 should have been put in one group, or another group.
'22 f
I personally think that the description of attach-23
' ment 2 that you could have quite appropriate in your list 24 sentence said the documents..,Te both within the attorney-
~.
Reporters. fac.
25 client and the attorney's work product and'therefore
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I bzrb8 privileged because that description would fit both and the 2
(
documents listed under there are clearly privileged under both of those and within that category and they all involve
_1 4
this particular litigation that we are involved in right now.
5 CHAIRMAN COUFAL:
Does that conclude your presen-6 tation on those documents?
MR. REYNOLDS:
Yes.
0 MR. GOLDBERG:
What I respond?
9 Ind2 10 11 12
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18 19l 20 21 22
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CHAIRMAN COUFAL:
Yes.
While you respond I would
[d like a response to a couple of questions I have.
Number one, 3
do "y'6u feel as a matter of law the two designations, attorney -
A
/
4 client and work-productor,are' mutually exclusive., Number two, S
do you think that I exceded as a matter of law, whatever 6 i discretion I have in ruling that documents were privileged on one 7
ground, when the privilege was claimed on another?
Si j
MR. GOLDBERG:
Let me take your second question 9I first.
The second question was whether you had exceded as a 10
! matter of law your discretion in ruling that'the document was 11 privileged on a ground other.than that asserted by the Applicant 12 in our. judgment the case is clear, that you erred in that respec u.
.'13 T
I tay that respectfully.
14 CHAIRMAN COUFAL:
Don't worry about my sensibility, 15 l Mr. Goldberg.
16 l
MR. GOLDBERG:.
This is 4 basic argument that we have 17l advanced in our document, the basis of my opening argument.
This 18 is the problem with Mr. Reynolds' argument also to your Honor 19 this morning.
He seems to think that all they have to do is say 201
.that the document is privileged and we claim privilege, but the
-21 lau requires that they specifically assert the privilege 'that they -
22
)
claim and that they have the burden of proof of estabU shing thau W
23
'e k that privilege applies.
24 sil.r.derd Reporters, fac.
Now, when they do not make a claim of privilege, 'they m
25
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aave waived their privilege, and your Honor cannot substittite -
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his judgment for their judgment and say, well, they should have 2
claimed another privilege and had they done so, I rule that that x.
3
- privilege is applicia51e.
[]
Now, you asked whether they are mutually exclusive, 5
namely the work preduct:
and"the attorney-client privilege.
I 6
think that perhaps in some circuinstances they may be.
And in 7
others they may not be.
Certainly. --
8 CHAIRMAN COUFAL:
Of course, where this is no common occasion, I can see that one. category does not fit, but assuming 10 there has been a common occasion.'
11 MR. GOLDBERG:
Certainly it seems to apply to each of I'2 them.
In that sense, there may be some interlining.
I don't 13 ' think I would...take. the posi-tion that: they are.muttrally-exc-lus ve--
C.s....
I 14I
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s lin all cases.
But we do take the position, incidentally, the I
15 ' argument has been made by Mr. Reynolds that we have now taken-16 the position that the documents are not privileged.
I th' ink 17 we.have taken precisely that position in the papers that we had 18 previously filed.
That was. the very' point of the extensive
'19 memoranda that we filed, that the documents were not privileged at al.1 Ceratinly not privileged on the ground. claimed by Mr.
21 Reynolds.
Let me just. refer to Mr. Reynolds' reference to the 22 agreement to be bound by,the Master's ruling.
As I said in the b).
23 conference calls that we had Mr. Rigler we don' t dispute that. We I,
24 agreed to' be bound by the Master!s ruling, but what did that-
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25 agreement mean?, We agreed that their would not have t'o be'any
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cmw3 23 review of the Master's ruling by they Board itself after the
)
2, Master had ruled, because the very purpose of having the Master do the work was to relieve the Board of doing it.
3 But we did no t p
4. agree that we were not entitled to a review by a review Board.
Now, Mr. Rigler has said that the licensing board 3
has considered that question and has decided that they Eould not 6
certify it to the review board, but that need not concern your 7
Ho N
- nor.
That need concern us in connection with what our next 8
plli step is going to be.
Moreover, we do not feel that anything we have presented to your Honor this morning in the way of 10; I
ijhmisapplicationofdocuments, goes beyond' Chairman Rigler's orderp.
I This'is precisely what we understood he wanted, was to give 12 I
13 f your ~ Hondi NhYoppoitun ty ?tio' hear ~fr6m us what%e regarddd 'af '
~
l errors and to give you the opportunity to review your classifi-ja i
15 j cation of those documents in the light of the arguments that we are making this morning and h[d made in our written presentation.
16:
17 CHAIPMAN COUFAL:
Miss Urban.
18
.MS. URBAN:
Yes.
I will answer your first questio~n 19l first.
That is the one concerning whether the two privileges l
20' are mutually ex.clusive.
In some cases of course documents S
could be within both privileges, but the actuals limits 21 of 22 the privileges are very different.
Higman V.
Taylor gave work v:
product privilege to the. thoughts and mental impressions of an 23
, attorney while the attorney-client privilege is for conhidential
-7 24 O sReportari, toc.
25 ! communications to and from clients and legal advice based on these I
e
24 cmw4 confidential communications.
y
'l Now, I think the second part of that question goes 2
x 3
to the burden of proof.
According to the cases and we cite these G
on page 3 of our points and authorities, the party claiming the 4
l S
the privilege has the burden of meeting all the elements of the 6
privilege.
When you are attempting to claim work produ'ct l
7 privilegc,you are not going to be attempting to meet elements i
8,such as whether there is confidential communications, whether 9
legal advice was sought, where and how the documents were dis-10 trobuted, since these elements are not part of the burden of proof Il of work product.
Of course, the came holding true in reverse.
As i
12 To 'the second question, whether you exceded your discretion, 8
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~ 13 United-States"v. United Shoe-Machinery Corpcration-contains"the-ja classic statement of the attorney-client privilege.
In that 15 case, Judge Wyzanski held that the privilege applics aly if it 16 has been claimed and not waived by the client, end quote.
I 17 think that language makes it very clear.that the person who seek s 18 to have the documents protected must make the attempt to claim 19 the privilege, must make his statement that he feels that these b
20 documents should be protected.
21 Again, that goes to the burden of proof, where we would not ha' e been able to meet the elemen'ts of proof had.he v
22 i) 23 not made the claim.
As to Mr. Reynolds'. statement, concerning c3 24 the fact that, you know, it's just a difference of naming cate; pea.nl Reporters, Inc.
25 gories.
We not having seen the documents are able to challenge 6
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those documents only on the basis of the information submitted
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2 to us.
Since the Master has seen the documents we feel that if O
3 you are unable to find work product privilege where it was claimed 4
that this privilege does not exist, and that those rulings shoul i 5
be upheld.
=
6l CHAIIUiAM COUFAL:
Are you finished?
l I
7 MS. URBAN:
I am finished.
8:
MR. GOLDBERG:
May I just add this, your Honor, i
9 ! following up what Miss Urban just said, there is actually a 10 due process question presented if you undertake to rule that 11 they are entitled to the work product privilege, rather than l
12i the n'ttorney-client privilege they claim, or the reverse, because fm d -
T3 we are -then really not af forded.the -opportunity to address.....
m.
y 14 ourselves to the applicability o the particular privilege on 15! which the document is withheld from us.
l 16
'Nor have'they been required to support their burden 17 of showing that the elements of the privil.ege, the basis upon 18 which you rule is privileged, for example, work product, has bee n 19 met by them.
This is why, I would th mr., tne courts have ruled that you c an't just make a blunderbuss general clain of privilege,'
20 21 that you have to be specific and you have to actually show that 22 the privilege is applicable, because after all, the ' cases do 23 hold, that the privilege is to le~ applied strictly.
Not 24 liberally.
q i,;l Reporters, Inc.
25 CHAIRMAN COUFAL:
All right.
Mr. Goldberg, would.
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you like to pass on to the next se.ction?
7 2
MR. REYNOLDS:
Would I be able to have an opportunit y 3
to speak to the two questions you raised?
4 CHAIRMAN COUFAL:
If you would like, surely.
5 MR. REYNOLDS:
I really would like to address 6
primarily the mutually exclusive question you asked.
I would like' to do it in the context of what I believe is your attachmen 7
t 8l 2 elisting and the documents that you put in that category.
I 9 i would submit that as to that description of privilege, that it 10 is equally applicable to attorney-client and to work product, i
11 especially in those situations where the work product is this 12 particular litigations and not other litigation.
That is a
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13! sephrate question that we have addressed in our briefs to the i
14 ! Special Master, but I think thati clearly as to the attachment 2, 15 that would be a description that would fit both your attorney-l 16' client and your attorney's work product privilege, and I think 17 that the point I was making before is that as to those numbers 18l listed, 43307, by the city and the Department, that they would 19 fit within this description as work product and were certain3' ;
20 claimed as work product and would be entitled to the p.otection 21 under that description that the Special Master adoptad.
So ];
22 do think that there is an overlap, especially in these situations 23 where you have got work prc.auct that is by lawyers.and'gommiin' h."
24
]
occasions involving analysis of facts and law that is in the rvoeral Repoders. Inc.
25 present case, where they are communicating back and forth to the
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client about the development of the proceeding, which is 2, basically what these documents 4 through 907 are.
They are 3
claimed as work product.
They are put in a category that is a! under attorney-client but I think it would be equally applicable 5
to both.
I would make the same comment with respect to the 6
other listing, that you have got a situation where those documents 7
would fit within your attachment -- excuse me a minute. I have to 8' find it.
Your attachment 2 description and they would be -- that I
9 j would fit the documents listed there, and would be consistent I
10 1with the claim made.
11 I have not addressed' myself to the question of whether 12 it is in fact exceding authority when the claim of privilege is ty~ asserted ~ and.andt the Master rules ' that a document ~1s 6n' titled
' ~
a-14 to privilege, but says it is entitled to the work product 15 privilege when there is an attorney-client privilege claimed.
16 I don' t know the answer to that.
I would have to say that I 17' feel that the burden of proof in this case hds been more than 18 met, that tae Master has ha an in camera examination of all the
\\
19! documents.
He. has made the ruling on the basis of those 20 documents, extensive answers to interrogatories, subsequent-21 affidavits and I think on the basis of all the material. that it
~
22 is clear that the applicants have met their burden of proof,
~~
23 and that the privileges: sustain 6d are entitled to continue,to bas y
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24 isustained.
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e Merol Reporters, tec.l 25 Again, I think there is a overlap in the description l
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- 4 I of categories, where you could have both attorney-client and 3
2 work product privilege. protected under the description that the
,7 problem here lies more in the grouping of documents under one heading as opposed to putting.qhose numbers under another 5 heading.
6 That seems to me - to be the sum and substance of what the difficulty is.
8 CHAIRMAN COUFAL:
Mr. Goldberg, are you prepared 9 to go forth to the next item?
10 MS. URBAN:
Your Honor, before we proceed may I make 11 [a correction.
In reference to category No. 6, I would wish-to 12 Ijwithdraw --
We would like to withdraw our challenge to documents
(
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for number 76 and 781, and as to document 818 ll.sted in category
- No.
6, that'should have been --
MR. REYNOLDS:
I don't have that.
16 MS, URBAN:
815.
It should have.been included in 17 cur category No. 4, a list of documents where there has been a 18 wa.tver.
19 MR. REYNOLDS:
There has been a waiver to that 20 document.
That is correct.
o3 21 1
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23
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MR. GOLDBERG:
Our Cat,egory 2 has been adopted by es.
1 2
Justice as their Category 7.
3 Now, we have certain subdivisions -- I am sorry.
4 Let me start over.
5 Our Category 2 comprises four subdivislons, A, B,
6 C and D.
Justice appear's to have joined in our Category 2, t
7 Part A.
Otherwise, I do not find that Justice is asserting "
8 our categories 2B, 2C and 2D.
9 But I will deal with all of them.
10 In Category 2, Sub A, it seems to us that 11 your Honor could not have found that these documents were 12, among attorneys or between CEI attorneys and their consultants,
,m
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";"13-mr, between CEI officers and employers 'and~ ' attorneys,'or '--
14 were documents not distributed outside the control group.
CHAIRMAN COUFAL:
Does that appear between CEI 15 16
_ attorneys and their consultants or between CEI officers and 17 employers and attorneys?
18 Is that the way it is in my document?
\\
19 MR. GOLDBERG:
Let me just look'at your report.
20 CHAIRMAN COUFAL:
It sure is.
That is wrong.
.I 21 obviously meant employees there.
I said. employers.
22 MR. GOLDBERG:
Well, that wouldn't change,our sw i
23 argument.
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.So long as the author is a
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known certainly it cannot be said and could not be said by 2
the Applicant and we believe could not be said by your Honor 3
that they were among attorneys, for example.
Or that they n
4 were between CEI attorneys and their consultants.
5 So long as the author is unknown, you can't say 6
between whom the document was communicated.
7 For example, particularly for example Document 709 8
which is among the documents that you listed.
9 CHAIRMAN COUFAL:
Let me find it, if you are 10 going to refer to specific ones.
II We don't find a 709.
Is that your point?
12 MR. GOLDBERG:
There is a 709, but it is a i
e, I
eca
-131 document theyiclaim had..been -prepared by: the legal staff..of
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14 CEI.
But they later realized it wasn't prepared by their 15 staff at all, that it was prepared by one of the attorneys 16 representing the City of Cleveland or the counsel of the 17 City of Cleveland.
18 I am advised that you would not have Document 19 Number 709 because it was turned into the special depository 20 by the Applicants.
21 Apparently they realized that they could not make 22 any claim of-privilege on any ground with respect to that v
23
' document.
24 es.
MR. REYNOLDS:
Applicants waived their claim of pol Reporters. Inc.
25 privilege on 709 and turned it over.
4 ^
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CHAIRMAN COUFAL:
Then my error there is my G
2 listing it as a document I have reviewed; is that correct?
3
{')
If I never had it, I obviously didn't review it.
4 MR. GOLDBERG:
If you didn' t have it, I don't see 5
how you can list it, If you did have it, it would be a 6
mistake.
7 CHAIRMAN COUFAL:
Does anybody dispute the 8
allegation that Mr. Goldberg has made with regard to this 709, 9
that I never had it and, therefore, couldn't rule on it?
10 MR. REYNOLDS:
I believe ycur Honor did have the II document.
The document that was turned oven to the
~
12 central depository was taken from our files on a duplicate 13 se't of documents.
It was af ter we had already submitted 14 the documents to you.
We failed, I' believe,. to communicate 15 to you perhaps that we had turned that over, but it was a 16 document which you did have in your possession.
17 CHAIRMAN COUFAL:
Ms. Urban, do you have any 18 reason to comment on that?
l 19 MS, URBAN:
No.
20 CHAIRMAN COUFAL:
So I shouldn' t have ruled on it-21 at all.
22 MR. REYNOLDS:
I believe that's right.
We turne'd 23 that over.
-r 24 CHAIREMI COUFAL:
Okay.
Go ahead, Mr. Goldberg.
>Fked Rgmpm, Inc j
25 I am sorry to interrupt you.
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I MR.. GOLDBERG:
Regardless of what has happened to Q
2 709, what I have said applies to the other documents listed 3
on pirge 3 of the document we filed on Friday.
There isn't 4
any possible way that you could determine that confidentiality 5
was maintained, where the author was unknown, which is an 6
element involved in granting the privilege.
~
7 Let me just quote one brief paragraph from 8
Natta V. Hogan.
9 Tha Court -- this is 392, Federal 2nd, Local 10 Citation 693, 694.
11 Our only trouble is with Documents 16, 17, 18'and 12 20.
Av
- 1. ~.:.
13 These are handwritten notes 14 Such materials prepared by an attorney during his 15 consideration of a legal problem are within the work product 16 doctrine."
~~
17 I am omitting references to footnotes.
I 18 "The trouble is that except for 17, they are not i
19 identified as having been written by any particular attorney.
20 The author is not st ecified.
Document 17 consists of hand-i 21 written notes of a named attorney.
Its disclosure would h
22 invade the mental process of an' attorney working on a legal 23 problem.
The order for product' ion is affirmed for all
'. ~. A 4.
v ng.).
24
. documents except 17 which need not be produc'ed. "
Moderal Reporters, Inc.
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25 There the Court is pointing out that in the
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absence of knowing who the author is, you just cannot O
k-2 determine that the privilega applies.
e3 3
This applies with equal force to each of the i
4 documents we have listed on page 3 under Category 2, 5
Sub A.
6 Now, with respect to Category B, which appears 7
on age 4, the same reasons that we just set forth with
'8 zespect to Caregory Sub A applies with equal force to -
9 Category B.
10 The particular assistance on the following 11 documents were unknown, we point out.
12 So there is no showing of confidentiality.
-s
~13
~
You ~ can' t make 'any determination that it is 'among g
14 attorneys or between CEI attorneys and their consultants 15 and so on.
16 In the case of Subcategory C, the addressee of the 17 following documents is unknown and we say therefore for the 18 same reasons you could not make a determination of privilege 19 such as you have made.
20 In the case of Subcategory D, ' tie specific
^
'21 distributee is unknown.
We say again that you could not
((
22 determine that there was no distribution outside the control 23 group, for example.
- v. ;f g
Now, among the documents that are list'ed[in those
'~T' 4 L 24 25 categories, for example in response to Interrogatory Number 1,.
.,[.
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there were listed 2108, 09, 2110, 2111.
(_g 2
Now, with respect to those four doucments, the date f'N-3 of the document was unknown.
The author was unknown.
G' 4
In response to the question person assisting 5
author in preparation of document, the answer is probably 6
known.
7 The addressee is unknown.
8 We submit the privilege could not possibly be 9
assigned to those docume'nts.
10 CHAIRMAN COUFAL:
Those numbers you just read, 11 are they contained on our page 4 somewhere?
12 MR. GOLDBERG:
In paragraph B.
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13
~
CHAIRMAN COUFAL-B as'in' Baker?'
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g 14 MR. GOLDBERG:
Right.
Also C lists 2108, 15 and in A.
Apparently we put them in three categories.
16 CHAIRMAN COUFAL:
You are as bad as I am.'
17 MR. GOLDBERG:
Well, because the three categories 18 applied.
.You didn't know the author, the distributee or i
19 anything about the documents, and we didn't know the contents.
1 20 MS. URBAN:
Department of Justice has no additional l
21 argument.
()
22 CHAIRMAN COUFAL:
Thank you, Ms. Urban.
23 MR. REYNOLDS:
I. guess I find myself a little
(])'
24 bit handicapped.- As I mentio'ned earlier, I haven' t received
. Federal Reporters Inc.
25 this listing before this morning.. However,'in looking,at 4
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Category 2A, these documents, I find that from the q
2 interrogatory answers all of the documents listed thn a were 3
prepared by lawfirms retained by CEI as opinion letters and s
.)
4 sent to the counsel -- I mean sent to the client, Squire, 5
Sanders 6 Dempsey, Reid & Priest, CEI legal staff prepared one, 6
and the firm of Ginsburg, Guren and Iterritt, which is now 7
.Guren,
-Ilerritt, Sogg & Cohen.
It just changed.
8 They are all firm letters, prepared and submitted 9
to the clients.
10 I say all, but I will reserve that because I 11 haven't had a chance to go through this list, but as far as I 12 have gotten, they are documents which the law firms prepared i
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13l as, opinion let'ters for the clie.nts.
14 On Listing B, as I say, I have not had an 15 opportunity to go through that.
. I was just looking at 82.
16 It says there the assistant is unknown.
17 I notice Mr. Hauser's affidavit,. paragraph 19, 18 indicates that he himself had prepared that document, and that 19 he had no assistance on it.
~
20 I haven't had a chance to go throug'h the remainder 21 of these.
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L 22 I don't have the documents to. pull, but I guess x-c j
23 that the difficulty I am havi,ng is I really don't see that we
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24 are,in a situation where the authors are not known to be k eral Reporters. Inc.
25 attorneys or thht the documents -- that,there are people who
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assisted.the attorneys in preparing them, that would have h
2 violated the confidentiality, where the addressees are unknown, all I can say from in'y general view of the interrogatories 3
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and the documents, where an addressee was unknown is where 5
the documents went to Mr. Hauser or the files more often than 6
not, rather than going someplace' that was, you know, to the 7
public at-large.
. I feel a..li.ttle handicapped because, as I say, I 8
e 9
just got this this morning,' but I think we have had an 10 opportunity to review the documents in light of the 1I interrogatory answers, the affidavits, the documents
~
12 themselves, and from just my quick review of paragraph A, t
(3 I
13' we have got documents. that are listed fhere, that were, s.
14 prepared specifically by the law firms retained by CEI and 15 necessarily had to be reviewed by the lead. counsel of those 16 firms, Mr. Lansdale for Squire Sanders, Mr. Potch for 17 Reid Priest,, and Mr. Sogg for the other firni.
18 CHAIRMAN COUFAL:
You ar'e getting into kind 19 of evidentiary things now, aren't you?
20 MR. REYNOLDS:
I think that's right.
I think it.
21 is the kind of evidentiary thing the Board didn' t want us to get into," but the document itself, I think you have had rt.-
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23 an, opportunity to look at.
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to?..ly in reviewing the material that was in your ruling.
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CHAIRMAN COUFAL:
Well, I don't think there were p
3 any restrictions on any challenges that anybody is permitted 4
to make today.
5 MR. REYN, OLDS:
The Board was specific that it 6
was going to be a limited revuew and not go into evidentiary 7
matters.
8 CHAIRMAN COUFAL:
My comment was that you were
'9 going into evidentiary m'atters.
You said by necessity 10 head counsel had to review these things.
II MR. REYNOLDS:
Well, what I am s,aying is the 12 document on its face shows that the document preapred by the j
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13 laV firm --
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I4 CHAIRMAN COUFAL:
At least on their letterhead, 15 you are saying.
16 MR. REYNOLDS:
Yes.
And the signature with tbt 17 firm name on it.
18
' All I am doing is responding to the best I can 19 to this kind of factual contention and I have only gotten 20 it this morning.
21 I think this is not really the kind of challenge 22 that the Board anticipated, and I don't know how to respond.to 23 it other than to go through each document, which we could pull nd 24 out and do.
> Federal Reporters, Inc.
25 Mr. Hauser is here if we wanted to, but I don't j
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think that is the kind of exercise.we ought to get'into this 7
2 morning.
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3 MR. GOLDBERG:
If Mr. Reynolds is complete may
/
4 I respond briefly?
5 CHAIRMAN COUFAL:
Are you finished?
6 MR. REYNOLDS:
Yes.
7 MR. GOLDBERG:
Natta V. Hogan ir*1 the paragraph I i
8 1pve read, d mis with just the kind of problem we are talking 9
about here.
10 Mr. Reynolds keeps saying it was prepared by a 11 lawfirm.
Natta V. Hogan says that is flot enough to give you 12 the privilege.
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p' 13 These were handwritten notes prepared by an 14 attorney, but it says we don' t know the attorney and we can' t 15 give 'you the privilege.
16 There is no showing -- there can't possibly be any 17 showing that confidentiality was maintained 'in those 18 circumstances.
s 19 I understood Mr. Reynolds to talk about a particulaz 20 document where he says that the author was' identified.
I think 21 he said that Mr. Hauser had' prepared the document.
22
.There is a situation where there was a conflict y.
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23 between the response to the interrogatory and the later S '. *,
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25 Now, that presents your Honor with,a matter of L
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-g3 deciding what he is going to accept' the interrogatory or the
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3 It is incumbent upon the affiant to show some 4
evidentiary fact's in his affidavit, that reconciles the I
5 conflict between the answer previously given and the answer 6
given in the affidavit.
7 There is absolutely nothing like that.
Wherever 8
there are conflicting statements, as we pointed out in ourf 9
earlier proceedings, there is no' explanation.
Just a 10 conflicting statement.
11 If additional information came to the affiant's 12, attention, it was incumbent upon the affiant to set forth how fsL 13 hehad now been able to determine who was the author of the 14 document.
15 We have nothing like that in the affidavit.
16 Under those circumstances I say you must 17 conclude that the affidavit-is not entitled'to any weight.
18 If the burden of proof is to.mean anything at 19 all, it means that it must be sustained by them, with respect 20 to each element every step of the way.
21
' CHAIRMAN COUFAL:
Ms. Urban?
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22 MS. URBAN:
No comment.
23 CHAIRMAN COUFAL: ' All right'.
()
24 I guess,the ball is'back in your court, e Federal Reporters, trH:.
25 Mr. Goldberg.
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Our Ca tegory 3 is entitled documenta
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as to which CEI has waived privilege.
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3 MR. REYNOLDS:
Maybe we can expedite this by
()
4 agreeing that the City and I think there is a partial 5
listing also of the Department of Justice as to the 6
documents listed as waived.
I believe that they have been 7
waived and have been 'urned over.
But, again, they were 8
pplled from a second group of documents than the one which 9
was in the possession of the Special Master.
10 But there has bean a waiver of these documents.
7 11 CHAIRMAN COUFAL:
'de are in agreement ont.the 12 naabers?
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Mk.REYNO'LDS: I be'lieve that we are.
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14 If I may just look here.
15 MR. GOLDBERG:
I think there were 34 documents 16 to which there was a waiver.
Some number like that.
Your 17.
Honor only granted the waiver with respe~ct to four, and 18 withheld it for the balance of the documents.
19 It is our position we are entitled to all,of thelm 20 since the Applicant waived tha privilege.
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21 CHAIRMAN COUFAL:
One of the p{hblems that I 22 referred to earlier in going through these thidgs, t,here was
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23 a voluminous record that went on before I got into this I..
24 thing.
I, didn ' t get much help'.cti of the bri ik as to where w n. w 25 things like waivers were in that record.
Therefore, I. suspect ~
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that I missed things like that because there were tons of 2
_ material to go through.
It was a difficult thing.
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3 Anyway, if it has been waived, I am prepared to
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4 rule I was. wrong.
If they have been waived, why, have at it.
G-
-5 MR. REYNOLDS:
Those have been waived.
6 I believe those documents also have been turned 7
over.
If they have not been, we'will furnish them
'S immediately.
9 CHAIRMAN COUFAI,:
There is no dispute as to the 10 identification n"mbers on the documents.
II MR. REYNOLDS:
No, there is no disagreement.
12 CHAIRMAN COUFAL:
I am sorry.
Mr. Goldberg, you 13 vare starting to say comethi. icy.
F Nr C,
r I4 MR. GOLDBERG:
I was starting to say there has been 15 no hearing record yet in the case.
16 CHAIRMAN COUFAL:
That is true.
17 MR. GOLDBERG:
Depositions are going on and the 18 matter.of the privileged document has been the subject, I I9 suppose, of telephone conferences and pleadings.
20 That is just about it.
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2I CHAIRMAN COUFAL:
But there is quite a number of 22 those telephone conversations, none of which I was a party to, O,
s 23 number one, 24 There are quite a number of pleadings, quite.a w.,a w
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1 MS. URBAN:. The Department of Justice would like a 2
ruling on those documents for future evidentiary purposes.
3 We would like a ruling they were not privileged for future' O
.4 evidentiary purposes.
5 CHAIRMAN COUFAL:
I guess if it is waived, I never 6
got it to rule on it, did I?
t 7
.MR.
REYNOLDS:
That's correct.
8 MR. CHARNO:
They were submitted.
9 MR. REYNOLDS:
But it was waived prior tio 'any
.10 ruling.
The privilege was waived prior to any ruli 11 MR. CHARNO:
The problem is represented y'the
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t' I3 in,some cases.
14 MR. REYNOLDS:
That's correct.
j 15 MS. URBAN:
There were findings in the decision -of
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16 the Special Master that cc.rtain waived ' documents are privileged 17 I.think it should be clarified, for the record.
18 MR. GOLDBERG:
I would emphasize that if you 19 agree with us that you cannot withhold a document from us as 20 to which the Applicant has waived privilege, that that 21 emphasizes the propriety of our arguments.yith respect to
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22
.those 110 documents where privilege was grari d on a ground
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. other than that which was' asserted by. the Applicant.
24
. MR. REYNOLDS:
I'would ~ disagree 5$th.that statenierit.
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25 CHAIRMAN COUFAL:. I am su..re you would.
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MR. REYNOLDS:
I think we have already --
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2 CHAIRMAN COUFAL:
I think that has been argued m.
3 already.
L:
4 MR. REYNOLDS:
Yes.
Fully discussed, certainly.
5 I would say as to the documents that we are 6
talking about now there has been a waiver of both attorney-7 client and work product privilege, and that tney, if they have.
81, not been turned over, will immediately be turned over.
9 I believe they have all been tendered to the 10 Department of Justice and to the City of Cleveland.
11 MR GOLDBERG:
I was under the impression, 12, Mr. Reynolds, that earlier this morning you indicated that you q
7
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13 I turned over four documents, but not the full number of i
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14 documents.
15 MR. REYNOLDS:
We have turned over all of the 16 documents listed in Attachment 4, but for the few that are 17 contained in 'CEI's request for reconsideration.
18 I believe that at an earlier time, which was 19 the time of the waiver, we have submitted the documents which 20 are listed now in your Category 3B, but'I will undertake to
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21 doublecheck that in the event we have not furnished you with I'
12 copies of any documents in Category 3, we will do so.
s c 23 CHAIRMAN COUFAL:
Ms. Urban, I am interested in
~
24 hearing you spell out what you are referring to with regard r-uferol Reporters, Inc.
25 to the waived documents and that you would like a ruling.
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MS. URBAN:
We are concerned that at some future n('
2 point we may wish to use them as evidence and there will be 3
on the record a finding that these ' documents are privileged.
O 4
We would just like the record. clarified as 5
to the f act they are waived and, therefore, not privileg n.
6 CHAIRMAN COUFAL:
All right.
I think you are 7
entitled to that.
8 You shall have it.
9 Okay, Mr. Goldb' erg, I see you have charitably 10 called when I was inconsistent, that I was ambiguous.
I 11 apprecic e that consideration to my tender sensibilities.
12 MR. GOLDBERG:
Category 4 deals with those
.. i.y n s. 13 "hich we feltlwere-left in ambiguous. status. m
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- s 14 CHAIRMAN COUFAL:
I thought I handled them very 15 well.
I hit them twice as hard.
16 MR. GOLDBERG:
I wasn't too sure if we -- if it 17 was granted we would get to see them.
18 CHAIRMAN COUFAL:
Maybe I should have done that.
19 with the whole stack.
20 MR. GOLDBERG:
There is really nothing more to be-21 said on those other than the fact that the rulings go both 22 ways.
23 CHAIRMAN COUFAL:
Do any of you have any notes
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24 that are available to show in ~what classification those four c-evol Reporwrs, Inc.
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MR. GOLDBERG:
We can try to get that for you.
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MR. REYNOLDS:
57 is in Attachment 4, Part 1.
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CHAIRMAN COUFAL:
And'somewhere else?
7,s 4
MR. REYNOLDS:
And somewhere else.
5 CHAIRMAN COUFAL:
I don't have Attachment 4.
6 MR. REYNOLDS:
I see.
7 MR. OLDAK:
They would all be in Attachment 4.
8 CHAIRMAN COUFAL:
And in some other place.
Where 9
is the other?
10 MR. REYNOLDS:
2079 is in Attachment 2.
11 CHAIRMAN COUFAL:
How about 57?
12 MR. OLDAK:
57 is in Attachment 3.
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14 MR. OLDAK:
843 is in Attachment.2.
15 CHAIRMAU COUFAL:
Wait.
Let's take them one at a 16 time.
17 MS. URBAN:
897, 2079 --
18 MR. REYNOLDS:
Pardon me?
19 MS. URBAN:
We have 897 as having been granted.
20 These are in Attachment 3.
It is in Attachment 4, Part 1, and 21.
22 MR. REYNOLDS:
We c~uldn't even reach agreement on sg 23 these, could we?
24 CHAIRMAN COUFAL: ~All right.
I found 57.
Where A. ederal Reporters. lac.
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25 is A43?
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46 jonl8 I
MR. GOLDBERG:
843 is in 4 Sub 2 and in Attachment W
2 2.
k 3,
Part 2, and Attachment 2.
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CHAIRMAN COUFAL:
2079?
[
5 MR. GOLDBERG:
2079 is in Attachment 4, Part 1 6
and in Attachment 2.
7 CHAIRMAN COUFAL:
It is difficult to read the 8
number.
'?o you L:now what 2079 was?
9
. ?mbers didn' t photograph very well.
m 10 Mx. OLDAK:
A letter from G.
L.. Moore to Il Mr. L. C. Hawley of October 18, 1974, 12 Is that correct?
C&AI-RMAN COUFAL:.. That is not what'this-is. ""
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That document was waived.
15 MS. URBAN:
2079 was waived.
16 MR. REYNOLDS:
No wonder you ruled both ways.
17 CHAIRMAN COUFAL:
Yes.
18 MR. OLDAK:
2083 is a letter from Ginsburg, Godfry 19
& Merritt.
20 CHAIRMAN COUFAL:
It is not.the 2083 that I : ave..
21 MR. CHARNO:
That could explain two different 22 rulings.
23 CHAIRMAN COUFAL:
Mine is a ruling of law.
24 MR'. OLDAK:
Answer to Interrogatory Number 1 says eral Reporters, c.
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208 throui h 2083, date unknown, author Ginsburg, Guren & '
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Merritt, addressee unknown.
Distribution, Mr. Hauser.
3 CHAIRMAN COUFAL:
I am going to han. this 20a3-d (m.
4 that I have, if there is no objection, to Mr. Reynolds so he 5
can help us.
6 MR. OLDAK:
'I don't find any statement about 2083 7
in the affidavit'.
8 MR. REYNOLDS:
Paragraph 186 is on page 61.
S 9
MR. OLDAK:
Where it says we were given'to 10 or distribute only to such attorneys, is unknown?
,1 Do you want to take af(rec,ess II CHAIRMAN COUFAL:
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MR, CHARNO r -- Yes.-
It probably would-b'e Tel'Efi21 _.,.
u 14 CHAIRMAN COUFAL:
How long do you want?
..l 15 MR. CHARNO:
Tcn minates?
16 CHAIRMAN COUFAL:
Taka ten' minutes.
d4 17 (Recess.)
18 19 20 21
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48 CR 46961 CHAIRMAN COUFAL:
Frank Has anybody decided what the. sit-(';N take6 2 uatialwith regard to 2083 is?
barbl 3
MR. RETNOLDS:
I have determined that is the.
e, 4
same document that is identified in the answers to interroga-tories by Clev11and Elactric Illuminating Company, as 2083.
5 6
The document you are holding is one and the same document as the'one that is identified in that interrogatory.
7 8
CHAIRMAN COUFAL:
Well, it is --
9 MR. REYNOLD.S :
It is there identified as~'a memor-10 andum by Ginsbe.rg, Guren and Merritt, which was dishributed 11 to,Mr. Hauser --
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12 MR. GOLDBERG:
Document 2083 is listed b hs in
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..1 Category 2..(b)m.and. 2,(c) c.ancl 2 (a),.. as.not./entitlecL.to 'mya.' d. hob privilege for the reasons there specified.
14 I
15 MR. CHARNOFF:
I inquire of the Master i'f he has all five of the documents now that we believe rulings were 16 17 made in both directions on?
18 In other words, did you get the dete ils on 8977 19 CHAIRMAN COUFAL; No.
I have been talking about s
20 Mr. Ginsberg's memorandum.
We are talking about 52843, 798, on which there has been a waiver, and 207(,1.) 83, which is 21, y.
A 22 the document we are. talking about now.
6,
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23 MR. GOLDBERG:
JusticeindicatedtIerdisanother h.porem, 24 document we didn't list which should have beeq listed.'
'/.
897.
inc.
~D That appears in attachment 4, subpart 1 and dlso in attachme'nt.
25
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2.
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CHAIRMAN COUFAL:
8977 3
MR. GOLDBERG:
Yes.
m.
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s 14 CHAIRMAN COUFAL:
Right, one after the other.~
That 15 could be just a duplication for all we know.
16 CHAIRMAN COUFAL: I don't hava the attachment 4 17 documents, so I am just not going to be able to look at that.
18 MR. GOLDBERG:
Then there are -- this is our 19 Category 6, speaks about 2 documents that are listed on the 20 attachments, which are not on the. list submitted by CEI.
21 One of them is in attachment 2 and is number 272 (a), the 22 other is in attachment 4, number 563, part 2, attachment 4, 23 part 2.
3 24 CHAIRMAN COUFAL:
Okay.
I will take a look at of Reporters, Inc.
25 attachment 2, ir thdt 172 (a), but as I h' ave indicated, I don't.
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have 4 any hore.
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2 MR. GOLDBERG:
The last thing we have is our Cate-
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3 gory 7, in which Your Honor accorded the privilege to document 4
Number 2129, which is in attachment 2, and the report states
~
5 that it is a document that the Special Master has not recevied, 6
CHAIRMAN COUFAL:
That is does not exist.
Well, let.
7 me look.
8 MR. GOLDBERG:
I think there are 4 documents in 9
that Category.
10 CHAIRMAN COUFAL:
I do have it, as a matter of 11 fact.
There is a 2129 So my statement that I did not 12 receive it is in error.
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Your'Ho'nor, those documents'have'been
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listedintheabsencestointerrogatoriesasIbelieve12h/
14 15 129 (a).
16 MR. REYNOLDS:
I believe that is how they appear.
17 CHAIRMAN COUFAL:
There are those numbers.
18 MR. OLDAK:
I wanted to be sure what it referred 1.9 to.
There are 2 specific documents.
~
20 MR. REYNOLDS:
Right.
~
21 CHAIRMAN COUFAL:
Is there anything further, Mr.
()
22 Goldberg?
23 MR. GOLDBERG:
No.
I think not, your Honor.
24 MS. URBAN:
Nothing further.
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PMwal Ryorters, loc 25 CHAIRMAN COUFAL:
Nothing further, Ms. Urban?
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54 berb7 1
Mr Reynolds?
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2 MR. REYNOLDS:
With respect to the documents that 3
have been listed by the Cleveland Electric Illuminating lR.-
4 Company, we --
5 CHAIRMAN COUFAL:
Let me find your paper.
I have 6
found it.
7 MR. REYNOLDS:
It is our view that those docu-8
,ments all fit within the description that the Special Master 9,
stated in his report, on p' age 2.
I am looking for that 10 report now, in describing attachment 4 documents.
11 We don't disagree that they are reports, events 12 or circumstances, which are within the knowledge of the par-rs U '-
13 ' ties arrde tha6 they' were written-by or to, an att'orney-- They- > -
s 14 all are -- and I have reviewed each of these documents --
i 15 on their face, involved with matters that are relevant to 16 this particular proceeding, and analysis of the facts and i
17 law prepared for this particular hearing.
18 I would ask that the Master' reconsider whether l
1.9 they should be entitled to protection.
I suggested that they 20
.are all work product.
I had to do this in the middle of 21 depositions in Cleveland at the time I did not have the in-22 terrogatories with me.
I have checked-over the weekend and-s/-
23 2 of them are listed as attorney-client documents in the interrogatories.
I believe th~at they,are -- both of those 24 el Reporters, Inc.
j25 documents are ones.which.I woul'd suggest fall into attorney-
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client protection and work product protection.
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category or the other, they will be entitled to protection v
4 in both categories.
I certainly feel that in vie's of the 5
subject matter, the nature of the communication, that they 6
are -- they are correspondence written by the most part, me 7
and my partnerin connection with this particular litigation 8:
and are entitled to protection.
9 I would, if.I could, just like to add one final 10 comment; that is, that I think there is no question that the 11 Cleveland Electric Illuminating Company has asserted as to 12, doc'uments 4 through 3079 in the Department, listing on 2 and n
d
--- ' T3 }
3 i-has < assert'ed arwork -product..privilkge,.and ~ s-to documents, a
'i 14 109 through 3014, listed in page 4 of the Department of 15 Justice filing, as to those, has asserted an attorney-16 client privilege, and I would continue -- and do continue --
17 to believe that those privileges apply r.o those documents 18 and they are entitled to protection, and so that we don't --
1.9 so we can avoid any further hearings and spending -- and 20 consider reconsiderings of this matter, I would urge the 21 Master's ruling include what ever regrouping is necessary in
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23 determined they were entitled to, and I still believe they (Pnd6 24 are entitled to.
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1 C11 AIRMAN COUFAL:
Ol Thank you, Mr. Reyno 2
Mr. Goldberg, do you have anything fur 3
MR. GOLDBERG:
Ms.
I4 Urban is going to p1
<l MS. URBAN:
I think what I would like t l
5{ go through li'.
Reynolds' t
challenges part by part.
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privilege, in your Attachment 4, Part 1.
8 CHAIRMAN COUFAL:
9{
to?
What d.gement are you 104 MS. URBAN:
[
That you denied privilege, I II i 12,l These were listed in applicant's chall enges, on pagc
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i CHAIRMAN COUFAL:
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l 13i Is this the thing that l
this morning?
Is that what you are referring t f
I41 o, or l
got a copy of this morning?
l 15 I
MR. REYNOLDS:
I believe we hand delivered 16 Friday but I gave you a copy thi 17 s morning.
CHAIRMAN COUFAL:
i This is for~reconsidera 18 L MS. URBAN:
Yes.
19 On page 2, the challenger to your findings of nonprivilege.
i,
The documents liste 20 Part 1, were all claimed as work f-l 21 l-product \\
privilege and Document 34 was claimed
~
4 22 as both.
Now, under Higman v. Taylor 23
, the Supreme Cot <
found limited privilege for "writt
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24 en statements, privat
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memoramda and persona 1 reco11ece1ons
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25 prepared by an ne. i party. counsel in the course of his l j
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ty 2 57
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I bel' eve the determination of whether a document 1
i 2
contains this type of thoughts and memoranda as opposed to d
3 r
factual presentations which are not within the work product C
4
~
privilege can only be made on an examination of th'e documents.
5 I believe that since the Master has made this examination of 6
those documents, that the decision should be upheld.
7 We are not of course in a position to argue in 8
favor of the decision, other than we originally argued in 9
our reply menorandums, since we haven't seen the documents, 10 but we do urge that you uphold this decision.
II Document 34 was claimed as both work product and 12 attorney-client.
In your findings of Attachment 4 you found 13 thqse documents were not intended to be kept confidential.' '
~
14 Again, the determination can only be made within the examina-15 tion of the documents.
16 We believe since the examination was made and the 17 determination ~was made it should be upheld.
18 Attachment No.
4, Part 2, applicants have challenged 19 the finding of not privilege for.only one document, that is,.
20 2027 which was claimed under the attorney-client privilege..
21 Again, this goes to the question of confidentiality,
(
22 and if that finding was made after an examination of the 23 d'ocument,that finding chould be upheld.
y-24 1;cw, under Attachment 4, Part 3, applicants have
. eral Reporters, Inc.
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25 challenged three documents, two of which are work product g
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and one of which is attorney-client.
These documents were O'
2 found to be not privileged because he stated that they were 3
related to business rather than legal matters.
4 As we stated in our reply memorandum in Sections 5
2(e) at page 15 and 3(b) at page 27, the attorney-client 6
privilege and the work product privilege only go to legal, 7
matters.' Matters in the ordinary course of business, 8ll communications asking for business, rather than legal advice are not 9
protected.
Once again this type of finding can only be made 10!
af ter an examination of the documents.
II Since those documents have been examined we urge 12 ; you to uphold your finding that they were not privileged.
O
~
~
13 MR. GOLDBERG:
We would add nothing 'further other 14 than to simply adopt the statement Ms. Urban'made.
15 CHAIRMAN COUFAL:
Thank you.
16 MS. URBAN:
Your Honor, we would also at some point 17 in the proceeding like to discuss the one document which re-18 mains in our Category 6.,
19 CHAIRMAN COUFAL:
Well, Ms. Urban, I can't find 20 your Category-6.
~
2I MS. URBAN:
It is on the last page of our list of 22 challenges to the Special Master's findings of pritilege.
It 23 only'contains Document No. 622 at this juncture, h
24 CHAIRMAN COUFAL:
You filed'cr you handed me this q rederal Reporters, Inc.
25 morning two documents, right, your memorandum --
~
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t 59 lty 4 1
MS. URBAN:
One of them -- cur reply memorandum was 2
filed --
3 CHAIRMAN COUFAL:
I have it.
Challenges for
'4 Category 6.
5 MS. URBAN:
I previously reviewed challenges t'o 767 6
and 781 and relocated Document No. 815.
Document No. 622 7
was found to be priv.leged in your Attachment No. 2.
8 Now, according to applicants' sworn affidavit, i
l
+
9l 'this docwnent was written by an engineer and was addressed to I
10' an engineer.
=
11 As we stated in our points and authorities, Section 12 3, co'mmunications between nonattorneys are not privileged.
13 The attorney-cllent privilege only goes'to communication ~s 14 between attorneysand clients and in some cases between 15
. attorneys and attorneys.
Clearly communications between non-16 attorneys are not pr,ivileged, even if these communications 17 eventually wind up in the files of attorneys.
18 In our memorandum and point of authority we cited 1
1 19 cases which have applied these principles to the corporatio'ns 20 and have stated on point, that a corporation cannot use the 21 files of an attorney to protect all their papers, and that this
(]
22 type of funneling, papers which are not normally included
~
23 but are funneled to an attorney, would go against all the,
'g)f in
- 24. background that is privileged.'
(
pw ra eporters Inc.
25 We believa _ this document, since neithbr the anthor y.
- ~.+
=
ty 5 60 I
nor addresseh,is not an attorney should be held to be O'
2 privileged.
3 CHAIRMAN COUFAL:
We will dig that-out and look at 4 ' iti, Ms. Urban.
5 MR. REYNOLDS:
May ! make a brief response to that?
6 CHAIRMAN COUFAL:
Surely.
7 MR. REYNOLDS:
The document which was prepared by 8
or;e boy a subordinate for his superior for distribution to 9i Mr. Hauser for purposes of use in this litigation -- I am 1
10l sorry -- for litigation pending before the FTC against the I
IIi City of Cleveland --
I I2 CHAIRMAN COU5'AL:
You say that shows on the face of~
13 l th~e, af fi~ davit. '~
~ ~ ' ' ' ' '
I4 MR. REYNOLDS:
Mr. Hauser's Affidavit 108 and.
15 - also you can determine it in the interrogatory answer for 16 Document 622 by looking at the answer and the attachment or 17 iExhibit A to the interrogatory whic.t lists.the titles and 18 positions of the individuals that are named.in the interrogatory, 19 and from that it can be dete rmined quite easily that Mr. Se'nens 20 is a subordinate to Mr. Davidson and that Mr. Hauser requested 2I of Mr. Davidson that this material be prepared and it was h
~
22 prepared and forwarded to him at.his reg'uest, so the recipient 23 was an attorney in that case.
Confidential information 24 F) l Reporters, Inc.
provided by a client directly.'
.hoera 25
,MS. URBAN:
Your Honor, the case law makes clear
'e
i 61 ty 6 I
even if one 6f,the eventual recipients, one to whom it is O
~
2 addressed is an attorney, this does not make it privileged.
In 3
fact the cases have specificallystated that situations like v.s 4
that, where there is an addressee and a~ writer who are not 5
attorneys, yet copies are sent to attorneys, are not within the 6
attorney-client privilege.
Applic' ant seems to be arguing that 7
this would then fall within the work product privilege.
8I MR. REYNOLDS:
We are not.,
I take it back.
We did 9 Iclaim.that.
10 MS. URBAN:
The rules of the NRC says it refers to Il the documents prepared for this litigation in normal dis-i I
12 covery, whether work product prepared for one litigation is O
13 pro,tected by subsequent litigation.
However the rules o'f' the
~
14 NRC refers to this specific litigation.
17 As applicant said, this was not prepared for this 16 particular litigation.
17 CHAIRMAN COUFAL:
You haven' t raised that point 18 with regard ' to many, many other documents that you might have, 19 but I am not criticizing you, just commenting.
20 MS. URBAN:
If we neglected to raise the point it 21 was because we did not have sufficient information.
We raised n
22 it for points where we had the information.
That is in our q,
23 reply memorandum and list of challenges.
Most of the ones listed
()
24 in the interrogatories they stated it was for this litigation.-
'ederal Reporters, Inc.
25 Not having,the documents we could only challenge based on those
. _.. _ ~.
~
ty 7 62 1
interrogatofies.
O 2
MR. GOLDBERG:
Your Honor, with respect to this
(
3 Document No. 622, in response to Interrogatory No. 1, which
'd was entitled " Documents Subject to Attorney-Client Privilege,"
5 in response to the question does' document recite confidential 6
' communication. to an attorney, the response by applicant was no.
7 In respons'e to the question, is.there language in 8
the document indicating an intent to, keep it confidential, 9
the answer is no.
10 The response to the question, does document give Il an opinion, analysis or statement by a lawyn which applies I2 rules of law to confidential information supplied by 13 corgment and the answer is again no.
I4 On the basis of the applicant's own answer, obv'iously 15 the attorney-client privilege does apply.
16 CHAIRMAN COUFAL:
This would be in my Attachment 2; 17 is that right?
18 MS. URBAN:
Yes.
You gave that privilege in your l9.
20 MR. REYI: OLDS :
One brief comment.
That is, with 21 respect to the very few documents under the work product a
22 claim, which CEI claimed, they were documents concerned with v
23 pending litigation with the City of Cleveland but not this 24 particular proceeding.
There were only a few of those.
I J rol Reporters. Inc.
25 would simp,ly submit that-I think it is improper to give to
..-.....--.n
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ty 8 63 I
the City of: Cleveland documents in this proceeding indirectly 2
which it cannot get directly because of a protection of 3
work product in the pending, with the City of Cleveland.
p V
l 4
I think that circumvents the clear intent of the work 5
product privilege under the federal rules.
It also circhmvents 6
the clear intent of what'the Commission's rules are.
I 7
think where we are talking about action that is pending and 8
work product that relates to that particu'lar pending action 9
'against identical parties, parties should not be able to 10 obtain indirectly what it can obtain directly in the pending 11 action.
It is for that reason that in a few instances we 12 have' claimed the work product privilege for matters that are no;
'13 the present litigation ~ tut are pending ' litigation 'in matters s
14 prepared, or documents prepared in that connection.
15 MR. GOLDBERG:
But the rules are clear that it has to 16 apply to this litigation.
17 MR. REYNOLDS:
I think the fedaral rules are broader 18 than that.
I think the federal rules will pertain in this 19 instance, that you should not be able to get indirectly what 20 you can't get directly.
21 CHAIRMAN COUFAL:
I think I understand the position
)
^ 22 of the various parties with regard to this.
It is my 23 recolleciton that in the answers to the interrogatories you have 24 indicated what litigatiori each of these documents are involved F eral Reporters, Inc.
25 with'.
That information~has been avilable and is available
ty 9 64 1
- o dus attorneys for the other side,,so if I don't sgecifically
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(
2 mention that with regard to the documents, the information 3
is available to them for whatever they want to do with it.
Cs 4'
Ic that right?
5 MR. REYNOLDS:
That is correct.
~
6 MS. URBAN:
Your Honor, the Department of dushice 7
is involved in proceedings in which the City of Cleveland is 8
n,ot a party, and as to those documents that applicant feels 9 i should not be shown to.the City of Cleveland because of other I
i 10' litigation, the Department of Justice would be willing, if 11 they were found to be not privileged, to keep those documents 12 conf'idential.
13
~ --~~ - CHAIRMAN-COUFAL:- -I thought ~you were going-to argue
\\
14 that the Department of Justice is involved in ligitation sith' 15 everybody, and therefore everything --
16 F6. URBAN:
That is correct.
17 CHAIRMAN COUFAL:
Now, let me before we go on, I 18 would like to take a few minutes and talk about these documents 19 and the Duquesne documents.
Before we get to that, let me' 20 fix in my mind a few things.
The first part of your presenta-21 tion, Mr. Goldberg, reflected your views with regard to 22 classes of documents.
That is, that they were -- that I 23 had erred for reasons which refer to class of documents; l
24 is that correct?
What I 'want' to do is to cet down to the l'
hy eral R: porters, Inc.
25 poin't where I have.to look before I rule, at specifically
____._..e
~ y.
ty,10 65 1
documents'.
I get down to your Cat' gory 3, I guess thereLis e
2 no discussion left there.
You are in agreement on what has been 3
waived?
(-
4 MR. REYNOLDS:
That is correct.
5 CHAIRMAN COUFAL:
Is that an accurate reflection?
6 MR. GOLDBERGi Yes.
CHAIR'AN COUFAL:
Now,.the Category 4 are documents 7
M 8l on which I have gone both ways, so I obviously have to look 1. e 9
at each one of those documents to rule; is that corr'ect?
10' MR. ' G OLDBERG :
2L79 is the only exceptio0. -
'i ButIwanttocheckod.allof 11 CHAIRMAN COUFAL:
2.
12 these numbers.
Soifanyofyoufeeltherearesomg'addi-b
~ - ~ 13 tional numbers -- I have 57, 2003, and 297 that I specifically-s 14 looked at with.egard to Mr. Goldberg's and Ms. Urban's 15 clair.is of a simi. ar nature.
d 16 Category 5, documents as to"which I didnot rule, 17 I am going to have to look at each one of those specifically, 18 obviously.
I have the ones that are typewritten on Mr.
19 Goldberg's submission, plus 3002, 3032, 3069, and 3077, which 20 may be a typo.
21 MR. CHARNG:
Those are listed,in Category 1 of the a
l.
22 department's designations.
k.
23 CHAIRMAN COUFAL:
I tried to get a' 1 the numbers 24 together so I don't get more co'nfused than p.,normally amj
^'
{ 6 ral Reporters. Inc.
/6 25 Category 6, documents which are unlisted:
172-A and 563.
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9
5_
.._.....___..s ty 11 66 1
Then during that discussion, Mr. Goldberg indicated
~
2 some typographical errors in my effort,which I should look 3
l
. at specifically, I think.
4I Now, what did we decide about 2129?
5 MR. REYNOLDS:
I believe you indicated you had that 6
document and was in error to include
_t among the docuraents 7
not received.
CHAIRMAN COUFAL:
That is right.
In addition to 8[
l 9l those documents we just discussed, there is also 622, which is i
10l one that Ms. Urban raised, the engineer-to-engineer document.
II MS. URBAN:
Right.
12 MR. GOLDBERG:
'Your Honor, let me mention that in rsL j
.mJ m_,
13 the last paragraph o# your report, you refer to 2129, 2158, 14 and to several documents, one of which is unnumbered, 15 dated December 23, 1974, and two documents dated December 17,,
16 1974, so I think you need to look at those two.
17 CHAIRMAN COUFAL:
I can't.
I don't have them.
18 MR. GOLDBERG:
Those definitely you don't have.
19 CHAIRMAN COUFAL:
I don't have.
That is my problem, 20 MR. CEARNO:
Is it the intention of counsel for 21 the applicant to supply those docuraents to the Special Master?
m 22 MR. REYNOLDS:
We will attempt to locate them and ss 23 provide them to you.
At the moment, we will have to go out
,m
(,)
24 to' Cleveland and.see where they are.
federal Reporters, Inc.
25
-CHAIRMAN COUFAL:
They are.. listed in your responses 1
u ty 12 67 I
to interrogatories but I could not find them among the 3,
2 numbered documents.
It may be that they were misfiled 3
somewhere and for that reason I missed them.
That I don't d
know.
5 MR. REYNOLDS:
There are an awful lot of documents 6
out there, but I will undertake to locate those specific.'
7 documen'ts and supply them to you as quickly as we can.
8 CHAIRMAN COUFAL:
With regard to what we are 9
talking about today, Mr. Rigler did not give to'me the 10 documents, so while I am going to rule after Il a while on the other matters, I am not going to be able to rula 12 on the Attachment 4 documents which you have just discussed li 13'l uhtil I get them back from Rigler.
14 MR. REYNOLDS:
I have those specific documents 15 listed in my possession and could furnish them to you today 16 if that would expedite the situation.
17 CHAIRMAN COUFAL:
Is there any objection from any 18 parties for it to be done that way?
I9 MR. GOLDBERG:
No.
20 CHAIRMAN COUFAL:
Obviously there is no way for you 2I to compare the documents, en 22 Now, can we address the Department of Justice --
c.
22 MR.' CHARNC:
Could we proceed with Duquesne, 24 si'nce they are also applicants?
sc)
E d..rol Reporters, I,nc, e
25 CHAIRMAN COUFAL:
Which ever order is more 3
e W.
n - - - - - - -
ty 13 68 1
conve nient..
I am not sure what Duquesne documents are left
- T\\,
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to talk about.
1 3
MS. URBAN:
I don't believe you gave a ruling on I
l 4
'any of thed.."
5 CHAIRMAN COUFAL:
I know I didn't.
I think'.more 6
were claimed and then some were' waived.
I don't know what is 9
7 left.
~
8 MS. URBAN:
We just challenge numbers one through 9;
eight on the grounds that they did not contain confidential 10 communication.
I think the only way ruling can be made on 11 those of course is on examination.
We would just like to 12 request a ruling on them.-
~
3 13 g
CHAIRMAN'COUFAL:. Could someone who knows what- '
'~
14 one through eight are give me some way to identify them?-
15 MR. REYNOLDS:
If I can have a minute, I can perhaps 16 give~you a specific identification of all of the Duquesne 17 documents.
18 CHAIRMAN COUFAL:
All I want are the ones to which 19 privilege is still claimed.
20 MR. REYNOLDS:
That is what I meant, all the ones 21 to which there is still a claimed privilege.
22 I believe there are 11 documents, is that s
23 correct, of Duquesne Light Company?
J 24 MR. CHARNOFF:
We have only challenged eight.
Federd Reporters, Inc.
25 MR. R.EYNOLDS:
I believe there are 11 documents.
E i =w.
~
-ty 14 t
69-1 I can furhish to the Special Master a list.of those docum'ents O'
q, for I can also furnish him a backup which I believe contains 2
j 3
all the documents if. I could get that material back when'you 4
finish your. review.
It is the only copy I have, but I have 5
a copy which lists the. documents withheld from production and 6
I also have attached to 'it each of the documents that have
~
7 be.en claimed as privileged.
8 CHAIPliAN COUFAL:
Let me identify each one of the 9 ' documents that I have here and you tell me whether o$ not they 10' arechallenged,.andwhetheryouareclaimingprivileke.:
a 11 The first one is on Duquesne Light Compan 's u?,
12 Legal Department letterhead, dated January 17, 1969,.jwritten o
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e 13
-by Mr. 'Munsch -and addressed to Dade Amost
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14 MR. REYNOLDS:
Correct.
That is a claimjof.'
15 privilege.
Document No. 3 on the list,of the documents.
16 MS. URBAN:
We have challenged that one.
17 CHAIRMAN COUFAL:
The next'.one I have is a letter-18 head, Duquesne Light Company's Sales Division, February 7, 19 1969, written by Gilfillan to Arthur, Schaffer, and Munsch.
20 It is dated February 7, 1969.
The addressees are Arthur, 21 Schaffer, and Munsch.
g,
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22 Does anybody know what the status 'of that document -
4 23 is?
~
'24 MR. REYNOLDS:
That is under the. hist..of cI'imed' m
a I ' %i R porters, Inc.
- L.
^
25 privilege.
We are claiming attorney.,.c.lient pbivilege.
6 v
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ty 15 70
)
MS. URBAN:
We'have challenged Document No. 1.
2 CHAIRMAN COUFAL:
Okay.
Then there is a letter
,J 3
dated February 7, 1969, which I take it, is an attachment to 4
Document 1 we have just been discussing.
e 5
Is that right?
6 MR. REYNOLDS: '
I think'it is.
7 Is it a letter from Mr. Olds?
8 CHAIRMAN COUFAL:
A letter written by Mr. Olds.
9 MR. REYNOLDS:
That is an attachment, Document 10 No. 1.
11 CHAIRMAN COUFAL:
Then there is a letter written 12 on the letterhead of Duquesne Light Company, Legal Department,
~
13 daged Septembef 25, 19'68~, ' written by M' '.' Munsch 'to Mr.' nr'thur.'~
^
r 14 MR. REYNOLDS:
That is Document No. 2 on the 15 list of documents.
There is a claim of attorney-client O
16 Privilege.
17 CHAIRMAN COUFAL:
And there is a challenge.
18 MS. URBANr We challenge that document.
19 CHAIRMAN COUFAL:
There is a letter dated Septe5#er 20 25, 1968, written by Mr. Olds, and' addressed to Mr. Munsch.
21 MR. REYNOLDS:
That is part of Document 2, the
~
22 one I just indicated.
23 CHAIRMAN COUFAL:
All right.
P
.24 January 10, 1969 letter, from Olds again to Munsch ydrai R.porteri. inc.
25 again.
ty 16.
71 1
MR. REYNOLDS:
Cocument No. 4.
We are claiming n
V 2
attorney-client privilege..
3 CHAIRMA' FAL:
And the department challenges?
4 MS. URBAN:
Yes, sir.
5 CHAIRMAN COUFAL:
January 3, 1969 by Cremer to 6
Munsch.
7 MR. REYNOLDS:
That is Document No. 5 under a 8
od. aim of attorney-client privilege.
9 CHAIRMAN COUFAL:
And the department challenges?
10 MS. URBAN:
Yes, sir.
II CHAIRMAN COUFAL:
Enclosed in that is a memorandum 12 of some sort, dated February 7, 1972.
l V
13 Is that included in the --
14 MR. REYNOLDS:
That is included as No. 5.
15 CHAIRMAN COUFAL:
Part of Document 5?
16 MR. REYNOLDS:
Correct.
~
17 CHAIRMAN COUFAL:
April 9, 1971, I can't read the --
18 MR. REYNOLDS:
Ikler, I-k-1-e-r?
19 CHAIRMAN COUFAL:
May very welll be.
20 To Munsch.
21 MR. REYNOLDS:
Yes, Document No. 9, under a claim m
22 of attorney-client privilege.
23 CHAIRMAN COUFAL:
And the department ctallenges?
24 MS. URBAN:
No, we have not challenged that erd Reporters, lac.
t 25 document.
ty 17
~
72 s
1 CHAIRMAN COUFAL:
Has the city, Mr. Goldberg, c
()
2 challenged any of these documents?
3 MR. GOLDBERG:
I don't think we have taken a
("i V
4 position.
5
.MR. HJELMFELT:
We haven't discussed them in any 6
'of ou2-filings.
7 CHAIR N COUFAL:
So if the department hasn't 8
c,hallenged any of Duquesne documents then they are not 9
' challenged.
10 MS. URBAN:
Your Honor, we would urge an examination 11 on those, because again we were only challenging on the 12 basis of information supplied to us by applicants.
We r) th{nk that sho'uld be examined in light of the correctnes5.of 13 q,
14 that examination.
15 CHAIRMAN COUFAL:
Then I can object if nobody 16 else has.
17 MR. GOLDBERG:
We would not attach any weight to the 18 fact that we haven't challenged.
We had cur hands full with 19 the CEI documents.
20 CHAIRMAN COUFAL:
You get no sympathy about having 21 your hands full.
I read the lawyers in this case.
They are
'S.
22 like the Russian army at Stt'ingrad.
Then there is. me.
U.
23 MR. GOLDBERG:
We have the same feeling sometime 24 (7g when we face the CEI battery."
q,.ral Ryerters inc 25
, MR. REYNOLDS:
Of one lawyer.
t
y"#
ty 18 73 1
CHAIRMAN COUFAL:
March 15, 1968, there is a (7) 2 handwritten document --
3 7
MR. REYNOLDS:
March 15, Document No. 6, the claim N'
4 is attorney-client privilege.
5 CHAIRMAN COUFAL:
The department challenges?
6 MS. URBAN:
Yes, sir.
7 CHAIRMAN COUFAL:
November 26, 1974.
G MR. REYNOLDS:
November 26 is Document No. 11.
9 The claim is attorney-client privilege.
10 CHAIRMAN COUFAL:
And the department challenges?
II MS. URBAN:
No, we did not.
12 CHAIRMAN COUFAL:-
No challenge.
.U 13 'o MS. URBAN:
No, sir.
I4 CHAIRMAN COUFAL:
Attached to that are several 15' documents, including one dated November 22, 1974, Mr.-Reynolds.
16 MR. REYNOLDS:
I am sorry.
I was trying.to cross 17 reference.
18 CHAIRMAN COUFAL:
Attached to the one you have I9 id-ntified as Document No. 11 is a memorandum dated November 20 22, 1974.
21' Is that included in Document 11?
I rp 22 t
MR. REYNOLDS:
I am looking for the date.
You say us 23 it was 11-22?
24 CHAIRMAll COUFAL:
It s.
You wrote it.
jcpcrters. Inc.
25 MR. REYNOLDS:
I am sure it is included then.
m.
74 ty 19 1
CHAIRMAN'COUFAL:
Addressed to Hauser, Greenslae,
'N 2
Lansdale and Henry.
3 MR. REYNOLDS:
Correct.
That is included in 11.
.m
]
4 The, November 19 document is part of that --
5 CHAIRMAN COUFAL:
11?
6 MR. REYNOLDS:
Part of that same package.
CHAIRMAN COUFAL:
November 19, 1974 from you to 7
8, Lessy and a number of others.
9 MR. REYNOLDS:
That is part of --
Id CHAIRMAN COUFAL:
11?
!k2 f'
11 MR. REYNOLDS:
That is part of 11.
[.
12 CHAIRMAN COUFAL:
Then the document thatJ ollows n
13 4 th t, that --
s_,
14 MR. REYNOLDS:
That is all 11.
That whol.e p'ackage.
15 CHAI,RMAN COUFAL:
Well, is,11 the last number?
16 MR. REYNOLDS:
11 is the last number, yes.
17 CHAIRMAN COUFAL:
Does 11 include the letter dated 18' November 19, 19747 19 MR. REYNOLDS:
It includes from the November 26 20 letter and the attachments which you have mentioned.
I believe 21 they are all listed in the November 26 letter.
I.t?
c5 22 CHAIRMAN COUFAL:
So that gets us yhrough all of the
.i 23 Duquesne documents for which privilege is now claimed.
m 24 MR. CHARNO:-
Wha't about DocumentiNos. 7 an'd 8 djeral Reporters. inc.
25 that we have challenged'and have never received?
q
=.
..._--_u_---r-ty 20 75
~
1 MR. REYNOLDS:
7 -- well, we have documents 1 2
through 11 consecutively.
3 MR. CHARNO:
Could you idnetify 6 and 7?
L 4
MR. REYNOLDS:
I believe that 10, 7, 8, and --
5 MR.. CHARNO:
Could you identify 7 and 8 for the 6
Master, and then if he doesn' t have them, supply him with 7
copies?
8 CHAIPMAN COUEAL:
I don't,have a 6 either, I don't 9
think.
10 MR. REYNOLDS:
All right.
No, 6 I believe you read 11 off.
12 CHAIRMAN COUFAL:-
Did I?
Let me check again.-
p k
13 MR. REYNOLDS:
Why don't you run through theni again g
14 and read me the numbers you have on the documents.
15 CHAIRMAN CO FAL:
3, 1,
2, 4,
5, 9 -- oh, here is 16 6.
I am sorry.
11.
It is 7, 8, and ?6 I guess I don't 17 have.
18 MR. REYNOLDS:
7 and 8 are I believe handwritten 19 notes by Mr. Gilfillan, dated April 1,
'69 and June 30,
'69.
20 CHAIRMAN COUFAL:
I have handwritten notes 21 identified as Document 6, dated March 15, 1969.
22 MR. REYNOLDS:
That is Document 6.
23 CHAIRMAN COUFAL:
I beg your pardon.
Then there is 24 one dated April 1, 869.
i eral Reporters. Inc.
25
,MR. REYNOLDS:
That is Document 7.
ty 21 76 1
CHAIRMAN COUFAL:
And that is a claim and a challengo q
y 2
on that?
s
_[
3 MS. URBAN:
Right.
1
~
'4 CEAIRMAN COUFAL:
Attorney-client or work product?
5
.WR.
REYNOLDS:
Attorney-client.
6 CHAIRMAN COUF'L:
I have another --
A 7
MR. REYNOLDS:
Another one that is --
8 CHAIRMAN COUFAL:
A new series'of numbers.
A I9' 'three-page document, handwritten.
10 MR. REYNOLDS:. The listing says on or about June 11 30, 1969, but I don't know that --
12 C' AIRMAN COUFAL:.
There is a cate in there,. June 30, d
em s_ '
13 19q9, which appears on the third line.
That is document' 14 number that?
15 MR. REYNOLDS:
No. 8.
16 CHAIRMAN COUFAL:
Attorney-client privilege 17 claimed?
18 MR. REYNOLDS:
Correct.
19 CHAIRMAN COUFAL:
And JJ challenged?
20 MR. REYNOLDS:
Correct.'
21 CHAIRMAN COUFAL:
So I guess I do have them all, r;
22 MR. REYNOLDS:
I am just looking, on Document No..
ss 23 10, Reed, Smith, Shaw, McClay.'s stationery dated November 7, 7,
'72 and it is a document'that'is about 20 pages.
24 AuJer11 Renders, Inc.
25
, CHAIRMAN COUFAL:
I guess that I don't have.
ty 22 77 I
ME. REYNOLDS:
I think it may be right behind
{}
2 your Document No. 5, which is the January 3, 1969 memorandum.
3 CHAIRMAN COUFAL:
All right.
January 3, 1969.
(=(-
4 MP.. REYNOLDS:
Is the next one February 7,
'72?
5 CHAIRMAN COUFAL:
Yes, sir.
6 MR. REYNOLDS:
That is Document No. 10.
7 CHAIRMAN COUFAL:
Document 10, there is an attorney-8j c,lient pr tilege claimed?
9 MR. REYNOLDS:- Right, for Document 10.
10 CHAIRMAN COUFAL:
And the department challenges?
Il Does the department challenge on 107 12 MS. URBAN:
We have no challenge.
["
MR. REYNOLDS:- So I bleieve you' have copies of' all' *
~ ~ '
'13 14 the documents with respect to which Duquesne Light is 15 claiming a privilege.
16 CHAIRMAN COUFAL:
Okay, the Justice Department 17 are these:
One dated August 2, 1973 written I guess by 18 Mr. Charno.
It is about four pages.
19 MS. URBAN:
Yes.
That is it.
We have claimed that 20 document.
21 CHAIRMAN COUFAL:
Also one dated August 17, 1973, 22 from Mr. Charno again to Mr. Saunders, and others.
for
('i 24 reconsideration.
L ederal Reporten, Inc.
25
. CHAIRMAN COUFAL:
All right.
Fine.
~
79 ty 24 1
You are talking about this thing you gave me 2
this morning?
3 MR. REYNOLDS:
Yes.
4 CHAIRMAN COUFAL:
I would like to rule on these I
5 things orally today.
It is lunch time now.
I am aware 'of 6
bur. Goldberg's other commitment.
You have got to be out of hera 7
at 2:30 or something?-
8 MR. COLDBERG:
If I am able to leave at 3:30, I 9
will be all right.
10 CHAIRMAN COUFAL:
I don't want to take that much 11 time.
What if we came back here at 2 o' clock?
12 MR. HJELMFELT:
.Your Honor, it is my understanding rw i
thge is an arghent ad discovery scheduled, Farley argumerkt,.
U ~~
~
13' 14 scheduled for this room at 2 o' clock.
15 CHAIRMAN COUFAL:
Farley is always with us, isn't 16
.t?
~
17 Suppose we meet in our conference room, if that 18 is agreeable at 2 o' clock.
19 MR. GOLDBERG:
Is that in this building?
20 CHAIRMAN COUFAL:
In this suite, in our conference 21 room at 2 o' clock, and it won't take very much time at all, r%
22 I would not imagine.
We will get that done, and we will
(_'
23 let Farley have this room, if that is agreeable.
r3 24 You looked puz'aled', Mr. Charno?
herri Reporters, Inc.
25
, MR. CHARNO:
Can we go off the record?
.ty'25 80
~
1 CHAIRMAN COUFAL:
All right.
']
2 (Discussion off the record.)
~
3 CHAIRMAN COUFAL:
It is this way then, as I
[)
4 understand 16 I am going to dictate my decision on the 5
challenges that you have made to my report, to the reporter 6
.early this af ternoon, who will th'en in turn call. Mr. Goldberg 7'
or Mr. Oldak, Ms. Urban, and Mr. Reynolds, and relay to them th e 8
result.
9 I would like.to add this:
This does not include 10 the Duquesne or Department of Justice documents.
I understand 11 there is no urgency about them and I would just as soon write 12 a report on that.
'x (N
13 Is there-any objection to that? - It will-be ;promot,
(~)
g 14 but it won' t be this af ternoon.
15 MR. CHARNO:
Duquesne is scheduled to be deposed 16 on the 7th and 8th'of July,' sir.
17 CHAIRMAN COUFAL:
Well, I will do it before then.
18 If that is all, I appreciate your time, ladies and' 19 gentlemen.
20 We will adjourn.
.END #
21 (Whereupon, at 12:02 p.m.,
the hearing was adjourned.)
s 22 A
'23 1
l 24 roinep men,ix.
25 O
4 e
^
b T
y-a
e
.jon1 1
CHAIRMAN COUFAL:
We will go back on the record.
m I
2 In the proceeding which was adjourned. before 3
lunch, the parties, with the exception of the City of
,_C 4
Cleveland, have agreed that the order to be entered may be I
~
5 telphoned to them this afternoon.
6 The City of Cleveland is here represented.
7 I am going to address first the specific documents.
8 bhat I read since we adjourned this morning with regard to 9
which questions were raised in this morning's hearings and 10 for convenience I am going to use Mr. Goldberg's document 11 filed on last Friday which requested a review of my report 12 dated June 19, 1975.
First, with regard to Mr. Goldberg'b Category 4,
~
13 g
14 captioned documents as to which privilege has been granted 15 and denied, I will consider those documents by number.
16 The first of these is Document Number 57 which is 17 a draft document prepared by Mr. Charnoff and I find as to j
18 that document that a work product and an ~ attorney-client 19 privilege should be sustained and this document should have 20 been included in Attachment 3 to my report.
21 The next document listed is Document Number 843 d'.
22 and I find that no privilege attaches to this document.
It is V
~
~
23 essentially a letter of transmittal of a third-party document.
l -
N)eral Reoorters. Inc.
Document Number 2079 is one to.which privilege has d?
24 25
-been waived, so it.is no. longer in contention here.
l
jtn2 82 1
' Document Number 2083 is a memorandum of law 1
2 and should have been included in Attachment 2 to my original
,[
0 report, and thus privileged.
b 4
Let's go off the record a minute.
Ida 5
(Discussion off the record.)
6 CHAIRMAN 20UFAL:
Back on the record.
7 Doucment Number 897 is a letter by Mr. Hardy 3
dated 13.yarch 1975, and I find that.that document should 9
have been included in Attachment 2 and that the attorney-client 10 privilege attaches to it'.
11 Passing now to Mr.,Goldberg's Category 5, I 12 find that I do not have the' following documents: Number'13,
(
13 Number 20, Number 164, Number 565, Number 586, Number 785, 14 Number 833, Number 2026, Number 2034, Number.2069, Number 2074, 15 Number 2158, Number 3069.
16 It is possible that some or all of those numbered 17 documents are with documents which I found.not to be privileged 18 in my original report.
19 However, I do not have those documents anymore, 20 so until I can get them back I don t know whether they.are or 21 not.
5 22 At any rate, I don't have them now.
23 Document Number 177 is included physically wic'h em 24 Attachment 1 to my original report and it is, I have found, eral Repo,ters. Inc.
25 land continue to find, privileged under the work product f
jen3 83 1
privilege. ',
h 2
Document Numbers 703, 783, 787, 797, 2145, 3002, 3
3032, I find to be within the attorney-client privilege, and I C
I 4'
find also that these documents are physi'cally within the 5
group of papers designated in my Attachment 2 to the original 6
' order.
7 However,'their numbers were left out of my report.
8 Document Number 85520, 538 are now physically 9
within that group of documents which we.Te listed in Attachment 10 3 to my report which I found to be privileged then and which I Il continue to find privileged.
12 Document Number 3077, which appears in Part'l
.~
(
13 of Attachment 4 as a typographical error, that document shotild g
14 be 2077.
15 With respect to Mr. Goldberg's Category 6 regarding 16 documents which I have listed in my report but which do not 17 appear in the listing that CEI furnished, I find that indeed 18 172A and 563 were submitted to me.
l9 I stated in my report that I did not receive 20 Document 2129, and in another part of the report I found the 21 same document to be privileged.
I was in error in stating 22 that I did not receive it.
I did receive it, and I continue
-s s
23 to find that it was privileged.
24 In Mr. Goldberg's Document Category 1 and, m
yleral Reporters. Inc.
25 i Category 2 g he finds that I found privilege to exist under
~
1
a
.I a.i s
84 jon4 1
grounds which were not claimed by CEI and I agree that that is
)
2 true.
3 The privileges being discussed were work product k$
4 of attorneys and attorney-client privilege, in some cases the a
5 claim was made of one privilege or the other, and I found the 6
particular document or documents to be privileged under the 7
claim of: privilege not mentioned.
8 I sustain my finding in those instances and I find 9
that it is within my discretion to so rule.
10 I am troubled by the situation, but I am not 39 11 troubled to the extent that I am willing to change my ruli,g.
12 Under Mr. Goldberg's Category 2 are listed a number
(
i3 of documents which he claims or urges, I should say, are not g
14 entitled to privilege because in response to' interrogatories 15 CEI has indicated that particular authors were not known or 16 that particular assistants who helped prepare document's were 17 not known, that specific addressees on some documents were not 18 known, and that specific distributees on other documents were 19 not known.
20 I continue to find those doc'ments privileged, u
21 though I would like to clarly state-that I drew inferences en, 22 from the documents themselves in many cases because of their us 23 cont'nt and because of their origin.
e 24 While.there are too many documents to consider one
~
veral Reporters, Inc.
25
, by one, I drew inferences that if'a legal memorandum _ or a
- 4
- E,
.s I
jan5 85 I
memorandum bhat appeared on its face to be a legal memorandum 2
was taken from Mr. Hauser's file I inferred that some laywer j
3 associated with him prepared it.
C 4
I inferred that legal opinions on the letterhead 5
of a-particular law firm were prepared by some member of that o
6
' firm.
7 I inferred that some memorandums on which the carbc n 8
oopy list, was in doubt were distributed to persons who were 9
usually distributees insimilar documents, that CEI was 10 responsible for.
II With regard to Mr. Goldberg's Category 3, I2 there is a list that he has supplied of various docume.nts e
~
13 y
toe,which CEI has waived privilege.
~
I4 CEI agreed at the hearing this morning they. had 15 indeed. waived privilege to those documents, and so that I 16 find that the question of privilege or not exists, if it 17 ever did.
18 We will pass on for a minute to the documents I9 supplied to me this morning by Mr. Reynolds, attorney for 20 CEI, in wl'ich he challenged my ruling with regard to several 2I documents.
22 With respect to those documents I sustain my m
23 original position with regard to Numbers 23, 33, 5 7 ', 2027, and 24 I overrule myself with regard to Document 60, which I find to-
~ eral Reporters, Inc.
L 25 be within the attorney-client privilege.
m
86 jon6 I
With regard to Document 207, which I find to be 2
within the work product privilege, and if it was circulated 3
within the attorney-client privilege.
t.
4
~,
I modify my decision with regard to Document o
5 Number 34, and I find that it may be turned over only af ter 6
deletion of certain parts.
7 Those parts are the last four lines of the first 8
paragraph to appear on page 2, the first sentence of the 9
third paragraph to appear on page 2, all of the next to last 7
10 paragraph that appears on page 2, and the last sentence of the 1.'-
1I second paragraph appearing on page 2.
{
s I2 I rule similarly on Document 174 and fi bi that
(
13 that should be turned over only af ter deleting the last sentence 14 on page 8 and Exhibit A to the document which is ca.ptioned 15
" Conditions."
16 Let's go off the record 17 (Discussion off the record.)
18 CHAIRMAN COUFAL:
Back on the record.
19 I sustain my-original position also with regard to 20 Documents Numbered 31A, 32 and 48.
f.It ',
21 That is it.
d 22 (Whereupon, at 2:17'p.m., hearing [in the above-C
/
23 entitled matter was concluded.)
24 Y'
j oi R.porten. Inc.
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25
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