ML19329C321
| ML19329C321 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 04/25/1975 |
| From: | Berger M, Charno S, Urban J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130683 | |
| Download: ML19329C321 (8) | |
Text
^
z/ 75-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFET'l AND LICENS'.NG SOARD In the Matter of
)
)
Tha Toledo Edison Company
)
.rne Cleveland Electric Illuminating
)
Docket No. 50-346A Company
)
(Davis-Besse Nuclear Power Station)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
and 50-441A (Perry Plant, Units 1 and 2)
)
MEMORANDUM OF THE DEPARTMENT OF JUSTICE IN SUPPORT OF CLAIMS OF PRIVILEGE Introduction Pursuant to the agreement of counsel for the Department of Justice and for tne Applicants, briefs in support of eact party's claims of privilege ar'e to be submitted on April 25, 1, ? '.
Briefs challenging the other party's claims of privilege will be submitted on the date set for filing reply brie fs, May 2, 1975.
It is the belief of counsel for both parties that this pro-cedure will be most helpful to the
- aster in his determination of the validity of the outstanding claims of privilege.
Submitted herewith is the memorandum of the United States in sup-port of its assertions of attorney-client and ark-product privilege.
Claims of Privilege The government asserts a claim of privilege with respect to the following documents:
8 0 0 213 0 [C k __
^
l.
July 1,1971 memorandum from Joseph J.
Saunders and received by Richard W. McLaren regarding antitrust advice on Dav's-Besse application.
Privileges asserted:
attorney-client, attorney's work product.
2.
July 17, 1973 memorandum by Steven M. Charno received by Joseph J. Saunders, files, and correspondence, discussing and evalunting negotiations with the Cleveland Electric Illuminating Company.
Privilege is claimed only as to those l
portions of the document containing communications between Mr. Charno and members of the then Atomic Energy Commission i
staff.
Privilege claimed:
attorney's work product.
i 3.
August 2,1973 memorandum by Steven M.
Charno received by Joseph J.
Saunders, files and correspondence, relating to an evaluation of the activities of the Cleveland Electric Illuminating Company.
Privilege claimed:
attorney-client, attorney's work product.
4.
August 17, 1973 me.morandum from Steven M. Charno (actaching a memorandum of even date) received by Joseph J.
Saunders, files and correspondence.
These documents outline and evaluate the results of the inquiry and make recommenda-tions concerning litigation.
Privilege claimed:
attorney-client, attorney's work product.
A.
Attorney-Client Privilege The classic statement of the attorney-client privilege was i
made by Judge Wyzanski in United States v. United Shoe Mact.inery Corp., 89 F.
Supp. 357, 358-59 (D. Mass. 1950):
i 2
p.
1
\\\\
The privilege applies only if (1) the asserted s' holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communica-tion is acting as a lawyer ; (3) the communication relates to a fact of which the attorney was informed (a) by his client, (b) without the presence of strangers, (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for purposes of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
The privilege has been held to apply to internal communica-tions made by government attorneys and to communications between attorneys of one government agency and attorneys of another agency.
United States v. Anderson, 34 P.R.D.
518 (D. Colo. 1964); Thill Securities Corp. v.
New Yor k Stock Exchange, 57 F.R.D. 133 (E.D. Wis. 1972).
Document numbers one and three, and the portion of document number two for which the United States claims privilege contain confidential communications between attorneys for the Department of Justice and between attorneys for the Departcent of Justice and the then
- Energy Commission.
The confidentiality of these documents nas been preserved.
They have been maintained in restricted files and have been made available only to counsel directly concerned with the litigation in this proceeding.
As such they are 'within the pristilege and should be af forded its protection.
3
.1-% e - -
== = = m se e-
-=
.p v
B.
Attorney's Work Product The wor k product of an attorney in a hearing before the Nuclear Regulatory Commission is protected under 52.740(b)(2) of the
.e Atomic Energy Commission Rules of Practice, 10 C.F.R. 2.1 et seq.
This section reads as follows:
Trial preoaration materials.
A party may obtain discovery of documents and tangible things otherwise discoverable under subparagraph (1) of this paragrapn and prepared in anticipation of or for the hearing by or for another party's repre-sentative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure )f the mental impressions, conclusions, opinions, or legal theories of an attorney or other repre-sentative of a party concerning the proceeding.
It has been held that the privilege protects the work product of government attorneys as well as private counsel.
United States v.
Anderson, 34 F.R.D. 518 (D. Colo. 1964); Thill Securities Coro. v.
New York Stock Exchance, 57 F.R.D.
133 (E.D. Wis. 1972).
Document numbers one, three, four and the portion of document number two for which the United States claims privilege are clearly within the protection of the privilege.
The documents contain the mental impressions of the attorney-authors with respect to meetings and negotia-tions with various parties to the proceedings, as well as 4
O e, m e.ee -
no w - w -..w-
- m n o - ese.em e
=w e
.r
-.. =ame s e - e--e
-o
.... +
o-m
the attorneys' comments and policy suggestions as to the c6urse of the litigation.
Although document number one was prepared prior to the rendering of adverse antitrust advice, it is still within the privilege.
This document was prepared in anticipation of an antitrust hearing in that it contained the author's opinions as to whether such hearing should be held.
It would. clearly violate the purpose of tne privilege, that of allowing an attorney to prepare his case without the fear
'I that his work product will later be used by opposing counsel,
.I
!I Hickman v. Taylor, 329 U.S. 495 (1947), to exclude from its protection documents prepared with an eye towards the litiga-tion and which discuss the advantages and disadvantages of litigating.
In conclusion, we urge that the Master af firm the Depart-
~
ment's claims of privilege as described herein.
espec q ully submitted,
/
r 7 / (.
Alm
/L
_fEVEN M.
CHARNO S
ll,0 ' %,' Jy
/
V%
MELVIN G.
BERGER
'A/n.. /- W Aj 'l L C L jJANET R.
URBAN Attorneys Department of Justice Washington, D.C.
20530 Apr il 25, 1975
,-..b-.._..4-
--,-- --~~
- - - - - - - -. - - - + - -
.'-a
+
=
V
\\.
UNITED STATES OF AMERICA N
NUCLEAR REGULATORY COMMISSION s
-BEFORE THE ATOMIC SAFETY AND LICENSING 3 CARD In' the Matter of
)
)
The Toledo Edison Company
)
The Cleveland Electric Illuminating
)
Docket No. 50-346A Company
)
(Davis-Besse Nuclear Power Station)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
and 50-441A (Perry Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of MEMORANDUM OF THE DEPARTMENT OF JUSTICE IN SUPPORT OF CLAIMS OF PRIVILEGE have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class or airmail, with the exception of Honorable Marshall E. Miller and counsel for the Applicants, whose copies were delivered by ' hand, this 25th day of April 1975.
f
' 7 71. L )L....
Steven M.
Char no Attorney, Department of Justice Antitrust Division 0
..=$.w r-.
+
+hw==
-.*e====
-e.w--
- e auame=
- - H
~ *-*
- a m
..es
. e -,
^
ATTACHMENT Honorable Marshall E. Miller Reuben Goldberg, Esquire Master David C.
Hjelmfelt, Esquire Atomic Safety and Licensing 1700 Pennsylvania Avenue, N.W.
Board Suite 550 Nuclear Regulatory Commission Washington, D.C.
20006 Washington, D.C.
20555 Benjamin H. Vogler, Esquire Douglas Rigler, Esquire Roy P.
Lessy, Jr., Esquire Chairman Office of the General Counsel Atomic Safety and Licensing Nuclear Regulatory Commission Board Washington, D.C.
20555 Foley, Lardner, Hollabaugh
& Jacobs Gerald Charnoff, Esquire 815 Connecticut Ave.,
N.W.
William Bradford Reynolds, Esquire Washington, D.C.
20006 Shaw, Pittman, Potts & Trowbridge 910 Seventeenth Street, N.W.
John H.
Brebbia, Esquire Washington, D.C.
20006 Atomic Safety and Licensing Board Lee C.
Howley, Esquire Alston, Miller & Gaines Vice President & General Counsel 1776 K Street, N.W.
The Cleveland Electric Washington, D.C.
20006 Illuminating Company Post Office Box 5000 John M.
Frysiak, Esquire Cleveland, Ohio 44101 Atomic Safety and Licensing Board Donald H.
Hauser, Esquire Nuclear Regulatory Commission Corporate Solicitor Washington, D.C.
20555 The Cleveland Electric Illuminating Company Atomic Safety and Licensing Post Office Sox 5000 Board Panel Cleveland, Chio 44101 Nuclear Regulatory Commission Washing ton,
D.C.
20555 John Lansdale, Jr.,
Esquire Cox, Langford & Brown Frank W.
Karas 21 Dupont Circle, N.W.
Chief, Public Proceedings Washington, D.C.
20036 Staff Office of the Secretary Chris Schraff, Esquire Nuclear Regulatory Commission Of fice of Attorney General Washington, D.C.
20555 State of Ohio State House Abraham Braitman Columbus, Ohio 43215
' !fice of Antitrust and Indemnity Deborah Powell Highsmith, Esquire i
Nuclear Regulatory Commission Assistant Attorney General Washington, D.C.
20555 Antitrust Section 30 East 3rcad Street Herbert R.
Whitting, Esquire 15th Floor j
Robert D.
Hart, Esquire Columbus, Ohio 43215 Law Department
~ City Hall Cleveland, Ohio 44114 j
g a
de
--e e- - eee
-==ce. geow
- w. m.s
.,.ee,%e,,,
p4,
]
~
Loalio Hsnry, Ecquiro Fuller, Henry, Hodge & Snyder 300 Madison Avenue
' Toledo, Ohio 43604 Thomas A. Kayuha, Esquire Executive Vice President Ohio Edison Company 47 North Main Street Akron, Ohio 44308 David M. Olds,. Esquire Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis' Director of Utilities City of Cleveland 1201 Lakeside Avenue
'l Cleveland, Ohio 44114 i
Wsilace L. Duncan, Esquire Jon T. Brown, Esquire Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Edward A.
Matto, Esquire Assistant Attorney General Chief, Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 Richard M.
Firestone Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 f
8
_ ~. _..
=
T