ML19326B162

Motion to Quash Cleveland Subpoena Duces Tecum to Dj O'Laughlin.Certificate of Svc Encl

ML19326B162
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/06/1976
From:	Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8003060959
Download: ML19326B162 (14)

Text

. . . . July 6, 1976 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Special Atomic Safety and Licensing Board on Disqualification In the Matter of )

l THE TOLEDO EDISON COMPANY and ) */

THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A APPLICANTS' MOTION TO QUASH THE CITY OF CLEVELAND'S SUBPOENA DUCES TECUM TO DANIEL J. O'LAUGHLIN, ESQ.

1. On June 23, 1976, the City of Cleveland (" City")

transmitted for signature to the Chairman of this Special .

Board a Subpoena Duces Tecum directed to Daniel J. O'Laughlin, Esquire, a partner in the law firm of Squire, Sanders &

Dempsey. At a prehearing conference on June 28', 1976, the Special Board extended the time for filing responses until July 6, 1976, since not all parties had yet received the City's filing. It is the position of the Applicants, and more particularly of The Cleveland Electric Illuminating Company

("CEI"), that the Subpoena Duces Tecum should be quashed pur-suant to Section 2.720 (f) of the' Commission's Rules of Practice.

R0080609ff

There are several good reasons for arriving at this con-clusion.

2. We would note first that the City conveniently neglected to accompany its Subpoena Duces Tecum with an Application for Subpoena setting forth the basis for re-l questing issuance. This failure to comply with Section 2.720(a) of the Commission's Rules of Practice should not in this instance be tossed aside as nothing more than for-

! malistic bickering. It is important to observe that at the time the City is trying once again to launch discovery into matters which it claims will shed light on its disqualifi-cation motion, the evidentiary hearing in the antitrust pro-

, ceeding has come to an end, and the record has, but for one or two unrelated open items, been closed. The participation of Squire, Sanders & Dempsey in this hearing on behalf of CEI is now a matter of record.

3. It seems to Applicants that before the Special Board starts down a path of discovery in connection with the present collateral issue, and all the parties are asked to spend the time, money and effort that will inevitably be involved in a full-blown evidentiary hearing, the City should~be required to file an Application for Subpoena ad-vising the Board what it intends to accomplish by this exercise. In view of the fact that the City intentionally

" held off" filing its Disqualification Motion until the very commencement of the evidentiary hearing, it is in no real position to claim prejudice as a result of the par-ticipation of Squire, Sanders & Dempsey therein (Antitrust Tr. 1421-2). But, passing that for a moment, this Board is entitled to know what matters of record, if any, the City feels hawncaused it prejudice by virtue of the law firm's participation. Furthermore, how does the City anticipate that this particularized prejudice (if any) can be cured?

4. These are fundamental questions which should be addressed in an Application for Subpoena. If the City is unable to point to any specific prejudice on the record of the evidentiary hearing -- and furthermore can suggest no plausible remedy even assuming prejudice -- then we are all doing nothing more than playing out a charade. It is 4 decidedly not in the public interest to proceed in such circumstances.

5. The City has sought separately in its other litigation with CEI to remove the law firm of Squire, Sanders & Dempsey from the proceeding. The City has also apparently divorced itself from the firm for all other purposes. Why, then, with the present NRC hearing at an end, is there reason to continue pressing for the disquali-fication of Squire, Sanders & Dempsey here? Even assuming

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1 that the ultimate conclusion of this Special Board were to be in favor of disqualification, no purpose will be served by undertaking further evidentiary hearings to arrive at that determination unle'ss such a ruling would impact on the record in this case. We are convinced it will not. Applicants therefore submit that the first order of business is for the City to file with this Board an Application for Subpoena in which it sets forth its answers to the above questions. In the absence of such a filing, an insufficient showing has been made in the papers filed, 4

coupled with the City's statements at the prehearing con-ference, to support the signing of the City's Subpoena Duces Tecum. l

6. There is in addition a separate ground for questioning the Subpoena Duces Tecum, at least insofar as it requests documents " pertaining to the issuance of notes and bonds or other debt instruments for the City of Cleve-land * * *" (Subpoena, para. 1). As noted at the pre-hearing conference of June 28, 1976, material of this sort  !

bears no relationship to the matters in controversy in the NRC antitrust proceeding and therefore should not be the subject of a production order by this Board (Prehearing '

Conf. Tr. 37, 40, 57).

7. In this connection, it is especially note-worthy that during the course of its direct case, the City

. _ _ - . = . . -_ .

. l

. itself tried to introduce affirmatively into the antitrust proceeding an issue relating to the alleged interference 3 by CEI (both alone and allegedly through Squire, Sanders

& Dempsey) with the City's bond ordinances, notes and other i

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debt instruments. Applicants moved to strike the testi-mony as being outside of the scope of the City's own al-legations concerning CEI's anticompetitive behavior; the Chairman of the Antitrust. Board agreed that this issue was <

outside the City's case and therefor. ordered that the i

testimony of City witnesses relevant thereto be stricken

, (Antitrust Tr. 7499).

4 8. The Antitrust Board has thus removed entirely from this proceeding the City's bond ordinance issue. Ac-cordingly, discovery in this area cannot be for any legiti-mate purpose relevant to the matter of disqualification.

If the-law firm of Squire, Sanders & Dempsey is to be dis-qualified, the City must demonstrate a substantial relation-ship between the matters in dispute in the antitrust hearing and the matters for which it previously had employed the

• It is important to keep in mind that the Antitrust Board 1Laited the permissible time period for antitrust scrutiny in this proceeding to the period from September 1, 1965 to the'present. The only City bond ordinance activity involving Squire, Sanders & Dempsey within that time frame occurred in 1972, and it is specifically as to the 1972 bond ordinance that the Chairman of the Antitrust Board directed his ruling striking testimony. All other matters that might conceivably relate to the document request'i~n paragraph 1 of the Subpoena Duces Tecum occurred prior to September 1, 1965 and are there-fore well:outside the scope of this hearing on that additional ground as well.

law firm. As stated by Judge Weinfeld in T. C. Theatre Corp. v Warner Bros. Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.

1953), the showing by the former client must be:

• *

• that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are sub-stantially related to the matters or cause of action wherein the attorney previously represented him, the former client. (Emphasis added.]

9. Where, as here, one of those matters for which the firm had previously been used by a former client (i.e., the City) has been explicitly removed from subsequent litigation involving the same law firm en behalf of an ad-l versary, there is no further need for discovery into that stricken matter. Such is the situation here with respect to the City's bond ordinances, notes and other debt instru-ments, and thus the Subpoena Duces Tecum should be denied .

~

in this respect in any event.

10. Finally, Applicants, and more particularly CEI, would urge that this Board quash the City's. Subpoena Duces Tecum to the extent that compliance therewith by Daniel J. O'Laughlin, Esquire, would require the invasion of CEI's attorney-client privilege. The City's document requests are extremely broad -- and, by the City's own ad-6

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mission, intentionally so (Prehearing Conf. Tr. 29-31, 44, 46). For example, the City does not restrict itself simply to the law firm's files which relate to work done for the City; rather, it seeks documents from "all files" of Squire, Sanders & Dempsey insofar as they make reference to specified subject matters (Subpoena, para. 2). Simi-larly broadbased are the Subpoena requests set forth in paragraphs 4, 6 and 7 of the City's filing.

11. It must be self-evident that so sweeping a demand for a law firm's documents is necessarily going to embrace a large quantity of material entitled to protection from disclosure as privileged information of other clients.

CEI does not doubt for a minute that Squire, Sanders &

Dempsey has in its possession a number of files relating to legal services which the firm has rendered for CEI. To the extent that any of those files, or material contained therein, is called for under the City's Subpoena Duces Tecum, CEI would ask that this Special Board sustain the present Motion to Quash or, in the alternative, issue a protective order on behalf of CEI sufficient to preserve its claim of attorney-client privilege as to all such privileged materials in the files of Squire, Sanders &

Dempsey.

_g.

WHEREFORE, Applicants request that their instant motion be granted in the manner and to the extent set out above.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE m .m N e? .

.C --t--

by: ' ' - -

% > -- - * * ' - ~ ~

Wm. Bradford Reynolds Robert E. Zahler Counsel for Applicants Dated: July 6, 1976.

e 4

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Special Atomic Safety and Licensing Board on Disqualification In the Matter of )

)

THE TOLEDO EDISON COMPANY and )

4 THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Applicants' Motion To Quash The City Of Cleveland's Subpoena Duces Tecum To Daniel J. O'Laughlin, Esq." were served upon each of the persons listed on tae attached Service List, by hand delivering copies to those persons in the Washington, D. C. area and by mailing copies, postage prepaid, to all others, all on this 6th day of July, 1976.

SHAW, PITTMAN, POTTS & TROWBRIDGE g Q 7 By: , , ' - . Odd'- u~- . .. .' -.

Wm. Bradford Reynolds i Counsel for Applicants

SERVICE LIST Vincent C. Campanella, Esq.

Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Robert D. Hart, Esq.

First Assistant. Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 James B. Davis, Esq.

Special Counsel Hahn, Loesser, Freedheim, Dean & Wellman National City - E. 6th Building Cleveland, Ohio 44114 William J. Kerner, Esq.

Office of the General Attorney The Cleveland Electric Illuminating Co.

P. O. Box 5000 Cleveland, Ohio 44101 Douglas V. Rigler, Esq.

Chairman Atomic Safety & Licensing Board Panel Foley, Lardner, Hollabaugh & Jacobs 815 Connecticut Avenue, N.W.

Washington, D.C.

Ivan W. Smith, Esq.

Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555  ;

l John M. Frysiak, Esq. 1 Atomic Safety & Licensing Board Panel l U.S. Nuclear Regulatory Commission '

Washington, D.C. 20555 Cerald Charnoff, Esq.

Wm. Bradford Reynolds, Esq.

Shaw, Pittman, Potts & Trowbridge 1800 M. Street, N.W.

Washington, D.C. 20036 Mr. Chase R. Stephens Docketing & Service Section U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, D.C. 20555

I '

John C. Engle, President HIP-O Inc.

. Municipal Building ,

20111gh Street

• Hamilton, Ohio 45012 -

'r.

Victor F4 Greenslade, Jr., Esq.

Principal Staff Counsel Yne CJ.ev. eland Electric Illuminating Company ... ..

Post office Box 5000 Cleveland, Ohio 44101

, Lee A. Rau, Esq. -

Joseph A. Rieser, Jr., E.sq.

Reed, Smith, Shaw & McClay . ,

. Suite 404, Madison-Building - - - .

Vashington, D. C. 20005*

Leslie Henry, Esq. '

.. ... .i. liichael M. Eriley, Esq. .... .u ... .. e- . . .

,. Roger P. Kice, Esq. '

..m.,. i.. mm,. .

Fuller, Henry, Hodge & Snyder .

' 300 Madison Avenue Toledo, Ohio 43604 .

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'.. Pennsylvania Power. Company .u...,.,....._ . . . .. .

one East Washington" Street - -

'.,m..,...g... ,.m...

. Hew Casti,e, Pennsylvania 15103 . .

Robert !!. Lazo, Esq.

Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Andrew C. Goodhope, Esq.

?! ember Atomic Safety & Licensing Board 3320 Estelle Terratic Wheaton, Maryland 20906 Daniel M. Head, Esq.

Member Atomic Safetyl i Licensing Board U.S. Nuc1 car Regulatory Commission Washington, D.C. 20555 e ,-- . - - - w w

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1. - Donald H. Hauser, Esq. - -

Corporate Solicitor ,

. - - The Cleveland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 John Lansdale, Jr., Esq.

Cox, Langford & Brown .

21 Dupont Circle, N.W. ' '

Washington, D. C. 20036 Reuben Goldberg, Esq; '

David C. Hjelmfelt, Esq.

1700 Pennsylvania Avenue, N.W. ,u . - ,.

Suite 550 -

Washington,~D..C. 20006 ,

Alan S. Posenthal, Chairman Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Couaission  ;

Washington, D. C. 20555 - - - -

! 3 Dr. John H. Buck I Dr. Lawrence K. Quarles ,

Atomic Safety and Licensing Appeals Board . l 1

U.S. Nuclear Regulatory Cocmission n i i u rn = == r -

si Washington, D. . C. 20555 -

Howard K. Shapar, Esq.

. Executive Legal Director U.S. Nuclear Regulatory Coc=ission l Washington, D. C. 20555 ,

l Mr. Frank W. Karas, Chief i Public Proceedings Branch -

l Office of the Secretary U.S. Nuclear Regulatory Cocaission I 4 Uashington, D. C. 20535 l Abraham Braitman, Esq.

Office of Antitrust & Inde=nity U.S. Nuclear Regulatory Cosaission Washington, D. C. 20555 j Jerome E. Sharfman, Esq.

,. Atomic Safety & Licensing Appeals Board U.S. Nuclear Regulatory Commission ,

. Washington, D.C. 20555 S.

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" Frank R. Clokey, Esq. ,

Special Assistant Attorney General

Towne House Apartments, Room 279 - ,. , .

Harrisburg, Pennsylvania 17105 .

Edward A. Matto, Esq.

Assistant Attorney General Chief, Antitrust Section

6. .,u. .=u 30 East Broad Street,15th Floor -

Columbus, Ohio 43215' Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board U.S. Naclear Regulatory Commission e.: Uashington, D. C. 20555 . ..c.. ........ ..

c._ -

~.:5;,s.

Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Com:sission .

. ' -n --

Washington, D. C. 20555 -

- - * ~ - .. .

i

$ Andrew F. Popper, Esq.

' Office of the Executive Legal Director  !

,- U.S. Nuclear Regulatory Commission ,

", Washington, D. C. 20555

\

Benjamin H. Vogler, Esq.

• Joseph Rutberg, Esq.

Robert J. Verdisco, Esq. .

Roy P. Lessy, Jr., Esq.

Office of the General Counsel .

Regulation -

U.S. Nuclear Reguintory Commission

, Washington, D. C. 20555 Ifelvin C. Berger, Esq..

Joseph J. Saunders, Esq. -

Steven H. Charno, Esq. *-

David A. Leckie, Esq.

Janet R. Urban, Esq. ,

Ruth Greenspan Bell, Esq.

Antitrust Division Department of Justice

.. Post Office Bon 7513 - - -

Washington, D. C. 20044 l 1

1

E h .

Christophe,r R. Schraff, Esq.

Assistant Attorneys General Environmental I,aw Section 361 East Broad Street, 8th Floor Columbus, Ohio 43215 Thomas J. Munsch, Jr., Esq..

General Attorney Duquesne Light Company 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 Joseph Rieser, Esq.

Reed, Smith, Shaw & McClay Suite 440 1155 71fteenth Street, N. W.

Washington, D. C. 20005 Terrance H. Benbow, Esq.

Winthrop, Stimson, Putnam & Roberts 40 Wall Street .

New York, New York 10005 .

Wallace L. Duncan, Esq.

', - Jon T. Brown, Esq.

O, Duncan, Brown, Weinberg & Palmar v 1700 Pennsylvania Avenue, U.N.

Washington, D. C. 20006 Robert P. Mone, Esq.

George, Greek, King, McMahon & McConnaughey -

Columbus Center '

100 East Broad Street Columbus, Ohio 43215 David McNeill Cids, Esq. .

- ~ John McN. Cramer, Esq.

• William S. Lerach, Esq. -

Reed, Smith, Shaw & McClay Post Office Box 2009 l Pittsburgh, Pennsylvania'15230

• l Oe i .

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