ML19329C366
| ML19329C366 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 01/07/1975 |
| From: | Charno S, Kauper T, Saunders J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002130731 | |
| Download: ML19329C366 (13) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COIGIISSION
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BEFORE THE ATOMIC SArETY AND LICENSING BOARD In the Matter of
)
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The Toledo Edison Company
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The Cleveland Electric Illuminating
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Docket No. 50-346A Company
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(Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-441A
-(Perry Planc, Units 1 and 2)
)
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l' REPLY MEMORAUDUM OF THE
- 5,ETED 3
e, DEPARTMENT OF 7 '. STICE In-ON DOCUMENT DbCOVERY M
J AN 101975 > ',U a :n e r.: r E
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N THOMAS E. KAUPER Assistant Attorney General Antitrust Division STEVEN M. CHARHO MELVIN G. BERGER JOSEPH J. SAUNDERS Attorney, Department Attorneys, Department of Justice of Justice January 7, 1975 800213077/
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
The Toledo Edison Company
)
The Cleveland Electric Illuminating
)
D: eket 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)
)
REPLY MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON DOCUMENT DISCOVERY r
The Department's Reply Memorandum is submitted pursuant to the December 23, 1974 Order and Notice of Oral Argument of the 4
in the Atomic Safety and Licensing Board (hereinaf ter " Board")
above-s tyled proceeding.
This Memorandum will address the following contentions set forth in Applicants' Motion for a Protective Order (hereinafter
" Motion"), filed January 3, 1975:
o (1)
Applicants are not required to comply with tne Joint Request, and (2)
Applicants' Motion is timely.
In addition, 'the Department will discuss the issue raised by the Board:
whether the poard's decisions oa the pending discovery
. motions are appealable.
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COITENTION THAT THEY ARE NOT REQUIRED APPLICANTS' I.
TO COMPLY WITH THE JOINT REQUEST IS ERR 0NEOUS
. Throughout Applicants' Motion, they cite cases (as well as for a comme.nt by the late Chairman Garfinkel in Midland case) the proposition that courts genera 11y'do not require one who is to produce material to supply copies or to allow inspection of the requested materials at a site other than their own office.
None of the cases or authorities cited by Applicants deal with a situation comparable to the situation in which Applicants that is, where the party at whcm discovery have placed themselves,
is directed has willfully refused to comply with a discovery re-In order for Applicants to equate themselves with the quest.
parties in the various cases they cited, they would have to have made any objection to the Joint Request on or before September 9, the case, and Applicants cannot place them-1974.
That is not selves in the shoes of parties raising timely objections to As pointed out in the Department's initial discovery requests.
memorandum, Applicants' willful failure to produce opens them to the imposition of sanctions or requirements which in the absence of willful failure to comply might not be necessary or appropri-ate. 1/
Even if Applicants were in the position of having raised a timely objection, most of the. authorities they have cited do not involve a request to allow inspection at a site other than the Memorandum of the Department of Justice on Document Production, i
1/pp. 12-14.
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office of the possessor of the documents.
In 'che cases that do
- involve such a request, there were extenuating circumstances, which do not exist here, which prevented the court from ordering
. - a change in. inspection sites.
Thus, in Niagra Duplicator Co.
v.
Shakelford', 160 F.2d 25 (D.C. Cir. 1947), the court found it impossible to separate the desired rec'ords from the company's other records.
Here, Applicants have indicated that the files to be produced have already been segregated from other company
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files.
Similarly. in Lundberg v. Welles, 93 F.
Supp. 3'5 9 (S. D. N. Y.
1950), the court found that the parties had agreed to use certain schedules derived from underlying records instead of the records themselves, that the custodian of the records had already pro-vided extensive information, and that the records sought were only tenuously relevant.
In addition to the foregoing principles, the case law and Applicants' own pleadings 2/ establish the proposition that the party who chooses.co proceed in a particular forum cannot complain about being required to bring documents into that forum.
La Chemise La Coste v. General Mills, 53 F.R.D. 596 (D. Del. 1971); Berns tein v.
N.V. Wederlandsche-Amerchaansche Stoomvaart-Maetschapnij, 15 F.R.D.
32 (S.D.N.Y.1953); 9 Wright and Miller, Federal Practice and Procedure S2112, pp. 405-406; 4 Moore, Federal Practice 526.70(1.-2),
pp.26-509.
Applicants initiated this proceeding by applying to the 1
2/
Motion, p. 12, n.
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Atomic Energy Commission for a license.
The focus of the pro-ceeding is whether Applicants will receive the Commission's permission to engage in a course of conduct which may have anti-competitive effects.
They have no right to complain about bring-ing documents to the site of the forum.
Finally, Applicants have protested that the establishment of central document depositories is a very uncommon practice.
The Department submits that it is common practice and, in fact, is the recommended procedure.
The Manual For Complex Litigation, 3/
a manual prepared for trial judges who have before them complex cases, contains suggestions which experience has shown to help
' simplify and expedite complex cases. 4/
At pages 38-39 of the i
Manual, the following suggestion appears:
^
The Federal Rules of Civil Procedure provide for inspection and copying of documents and other physical evidence at such time, place and in such manner as provided by the order of the court.
In the ordinary case, documents are inspected at the office of the custodian or his counsel.
Where voluminous documents.may be inspected and copied by many parties, the develcoment of centralized depositories is a major step forwarc in the orderly,
- efficient and economical processing of the complex case.
Depositing the documents at one or more convenient locations in the custody of the parties or of an officer of the court does much to elim-inate exoensive, burdensome, time-consuming and wasteful efforts by many parties to study, copy and analyze documents in widely separated loca-tions.
3/
Judicial Conference of'the United States, Manual for Complex Eitigation (Commerce Clearing House, ed. 1973).
4/
It should be noted that antitrust cases are defined in 50.22 Tp. 3) of the Manual as being a type of case that is inherently complex.
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The expense of the document. depository'should ordinarily be borne by the party who maintains the depository and who benerits by being relieved or the obligation of making multiple production of the same documents, particularly in multidistrict cases.
(Emphasis added.)
II.
APPLICANTS' -MOTION FOR A PROTECTIVE ORDER IS NOT TIMELY their Applicants have argued that despite the fact that request for at protective order was filed one month af ter the date upon which the discovery exchange was to take place, and almost four months af ter the time for obj ections had passed', their Motion is timely.
The sole authority for this proposition is 4A Moore, Federal Practice 134.19(2) which states that "the 1970 amendment (in the Federal Rules) deleting the requirement that application for protective orders be timely, makes it plain that s
such relief could be sought in opposition to a motion (to compel discovery) under Rule 37(a)." 'Neither Moore nor Applicants cite
.any authority in support of this speculation.
A conflicting, and more widely accepted, view of the effect of the 1970 amendment is expressed at 8 Wright and Miller, Federal Practice and Procedure S2035, pp. 262-263:
Prior to.1970 the protective order rule re-q' uired that an application for an order be made s easonab ly. "
This' requirement was not included when the rule was-made Rule 26(c).but undoubtedly the courts will consider the timeliness of a motion under the amended rule, and will, as in
.the past, look to all of the-circumstances in determining whether the motion is timely.
Ordi-narily the order must be obtained before -the
~ date set.for. the discovery, and failure to move i
at that time will be held to preclude objection later, but.it. may be that this rule will not be
~ applied if there was no opportunity to move for a
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protective order.
A part'y may not remain com-pletely silent even when he regards a notice to take his deposition or a_ set of interrogatories or requests to inspect as improper.
If he desires not to appear or not to respond he must seek a protective order, but if there are extenuating circumstances that explain his failure, the court may take these into account in determing what sanctions to impose.
Unlike the erroneous inference contained in Moore, the inter-pretation of.the Federal Rules found in Wright and Miller has been adopted in subsequent cases.
In Baker v.
Standard Industries. Inc.,
55 F.R.D.
178 (D.P.R. 1972), the court held that a motion for a
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protective order must be seasonably made, and denied such a motion made two days before the scheduled discovery date.
Appli-cants' Motion was made one month after the scheduled discovery
' date.
See also, de Dalmady v. Price Waterhouse & Co., 62 F.R.D.
15 7 (D.P. R. 19 72) '
In Krantz v. United States, 56 F.R.D. 555 (W.D.
Va. 1972), the court also recognize d the fact that the timeliness of objections to discovery is both relevant and important.
The court in Krantz, in finding good cause for delay in seeking a protective order, emphasized the fact that the party seeking the discovery already possessed most, if not all, of the information requested; and was promptly notified of the other party's alleged inability to comply, but refused to meet with him to resolve the problems.
Here, the Department is not in possession of the informa-tion being sought.
Applicants did not promptly notify anyone of the problem they allege exists., nor did they attempt to negotiate any type of compromise.
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The Board' has raised the question of what the Department would consider to have been a timely motion for a protective order in this proceeding.
Orderly _ procedure would suggest that Applicants' Motion should have been mana at the time their other objections were due under the rules, namely on Gepterdber 9, 1974.
Clearly. the latest conceivable date upon which Applicants '
Motion would' have been timely was the date upon which the discovery exchange was due, namely December 2, 1974.
To permit Applicants to sit back for another month after the date of the discovery exchange before moving for a protective order would make a trav-
,esty of the rules for the conduct of these proceedings.
We would note in conclusion on this point that the transcript
'[
of the September 16, 1974 Prehearing Conference (p articularly,
pages 621-632) clearly indicates that Applicants at that early date believed that there were potentially rooms full of material which might be producible-to the City of Cleveland.
Applicants made no similar protestations concerning the Joint Request at that time.
III.
APPEAL OF THE BOARD'S DECISIONS At,the January 3,1975 hearing, the Board requested the Department's view on the appealability of any decision by the Board on the various dis'covery motions.
The Department believes that Section 2.730(f) of the Commission's Rules,10 C.F.R. 2.730(f), precludes any appeal of any Board decision on the pending motions, absent certification for appeal by the Board.
7
t Even if this section of the Rules would not apply in the present situation, the Department submits that such a decision would not be appealabic because of the prohibition of inter-locutory. review in the Administrative Procedure Act, 5 U.S.C.
5704, which-is applicable to all agency actions taken by the Atomic Energy Commission under the Atomic Ene'rgy Act.
Siegel v.
Atomic Energy Commission, 400 F.2d 778 (D.C. Cir. 1968).
Conclusion It is well established that in considering Applicants' Motion, the Board must consider the hardship it will impose on the nonmoving parties.
General Dynamics Coro. v. Self Mfg.
Co.,
481 F.2d 1204 (8th Cir. 1973).
There seems to be little dispute that production in Washington, D.C. would minimize the burden on all the parties seeking discovery, and would cut the time i
necessary to complete discovery in this proceeding in half.
Further, the Board must consider the nature of Applicants '
conduct which has created the present problem.
It is submitted
.that the equities involved in this question lie entirely on the side of the Department, the AEC Staff and the City of Cleveland.
Applicants' obstructionist tactics have precipitated this problem and must weigh heavily in determining the ultimate resolution.
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For the foregoing reasc.is, the Department of Justice urges the Board to grant the Department's Motion to Compel, as modified, and to deny Applicants' Motion for a Protective Order.
Respectfully submitted, a
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j STEVEN M.
- CIMRiiO, lnv sO 0'fv/
MELVIN G.
BERGER Attorneys, Antitrust Division Department of Justice Washington, D.C.
20530 January 7, 1975 4
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UNITED STATES OF A> ERICA ATOMIC ENERGY Com1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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)
)
'f.;.'.
CERTIFICATE OF SERVICE I hereby certify that c'opies of REPLY MEMORANDUM OF THE DEPARTMENT OF JUSTICE ON DOCUMENT DISCGVERY have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class or airmail, this 7th day of January 1975.
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Steven M.
Charno Attorney, Department of Justice Antitrust Division
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rM ATTACHMENT John B. Farmakides, Esq.
Roy P. Lessy, Jr., Esq.
Chairman Benj amin H. Vogler, Esq.
Atomic Safety and Licensing Lee S. Dewey, Esq.
Board Office of the General U.S. Atomic Energy Commission Counsel Washington, D.C.
20545 U.S. Atomic Energy Commission Washington, D.C.
20545 John H. Brebbia, Esq.
Atomic Safety and Licensing Gerald Charnoff, Esq.
Board
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William Bradford Reynolds, Esq.
Alston, Miller & Gaines Shaw, Pittman, Potts &
1776 K Street, N.W.
Trowbridge Washington, D.C.
20006 910 Seventeenth Street, N.W.
Douglas Rigler, Esq.
Hollabaugh & Jacobs Lee C. Howley, Esq.
Suite 817 Vice President & General Counsel
.Barr Building The Cleveland Electric 910 Seventeenth Street, N.W.
Illuminating Company Washington, D.C.
20006 Post Office Box 5000 Cleveland, Ohio 44101
.<'.g...'
Atomic Safety and Licensing Board Panel Donald H. Hauser, Esq.
U.S. Atomic Energy Commission Corporate Solicitor Washington, D.C.
20545 The Cleveland Electric Illuminating Company Frank W. Karas Post Office Box 5000 Chief, Public Proceedings ^
Cleveland, Ohio 44101 Staff Office of the Secretary John Lansdale, Jr., Esq.
U.S. Atomic Energy Commission Cox, Langford & Broun Washington, D.C.
20545 21 Dupont Circle, N.W.
Washington, D.C.
20036 Abraham Braitaan Office of Antitrust and Chris Schraff, Esq.
Indemni,ty Office of Attorney General U.S. Atomic Energy Co= mission State of Ohio Washington, D.C.
20545 State House Columbus, Ohio 43215 Herbert R. Whitting, Esq.
Robert D. Hart, Esq.
Dwigh t C. Pe ttay, Jr., Esq.
Law Department Assistant Attorney General City Hall Chief, Antitrust Section Cleveland, Ohio 44114 30 East Broad Street 15th Floor Reuben Goldberg, Esq.
Columbus, Ohio 43215 David C. Hjelmfelt, Esq.
1700 Pennsylvania Avenue, N.W.
Suite 550 Washington, D.C.
20006 4
John R. White, Esq.
Executive Vice President Ohio Edison Company 47 North Main Street Akron, Ohio 44308 David M. Olds, Esq.
Reed, Smith, Shaw & McClay 747 Union Trust' Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis Director.of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 1
Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Leslie Henry, Esq.
Fuller, Henry, Hodge &
Snyder 300 Madison Avenue Toledo, Ohio 43604 i
Deborah Powell Highsmith, Esq.
Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor
- Columbus, Ohio 43215 a
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