ML19329C381

Memorandum of Points & Authorities of DOJ W/Regard to Decision of Special Master.Certificate of Svc Encl

ML19329C381
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/07/1975
From:	Alivalasit A, Berger M, Charno S JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002130749
Download: ML19329C381 (9)

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. fur"ipkn *: 'GU*J. TORY CO'!MISSICN ESFORE T.", J TCMIC SAFETY FJID LICENSING SOARD In the Matter )

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. The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company )

' (Davis-3 esse Nuclear Power Station) )

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et.al. ) and 50-441A (Perry Plant, Units 1 and 2) ) .

MEMORA';DUM OF -

POINTS AND AUTHORITIES'OF DEPARTMENT OF JUSTICE WITH REGARD TO THE DECISION OF THE SPECIAL MASTER f

Pursuant to the Order of Chairman Rigler of June 25, 1975, the Department of Justice submits this memorandum of points and authorities in support of its challanges to findingsof privi-lege by the Special Master. The Department incorporates by reference its arguments in opposition to Applicants' C'. aims of Privilege contained in the Reply Memorandum of the Department of Justice on Applicants Claims of Privilege, submitted May 2, 1975.

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In its List of Challenges to the Special. Master's Findings .

of Privilege the Department nas challenged the findings of

• uttorney-client privilege cs tc those documents for which Applicants either failed to claim the privilege (Category 2) o.r waived the privilege entirely (Category 4) . In the classic statement of the attorney-client privilege, made in United States v. United Shoe Machinerv Corp., S7 F. Supp. 357, 358-59 (D. Masc. 1950), Judge Wyzanski stated that: "The privilege applies only if . . . (4) the privilege has been (a) claimed and (b) not waived by the' client." It is clear from this languaga that for the privilege to be uph' eld it must be specifically claimed; the mere lack of waiver of a claim of privilege by a party does not constitute the positive assertion necessary to bring the document within the privilege. It was held in Magida

v. Continental Can Co., 12 F.R.D. 74, 77 (S . D .N. Y . 1951) that "where there has been a waiver of privilege, clearly expressed, the deponent cannot object to questions concerning the privilegsd matter. The waiver need not be expressed in writing nor in any particular form, but the intent to waive must be expressed either by. word or act or omission to speak and act." (emphasis added).

This rule, requiring a specific claim of privilege, is consistent with the theory behind its applicaticn. The purpose of the attorney-client privilege is to promote full disclosure l l

and communication between attorney and client. 8 Wigmore, Evidence  ;

S2290, at 554 (Mcnaughten rev. 1961). (hereinafter cited as Wigmore). On the other hand, the privilege acts as a car to full examination of all the evidence bearing on the litigation.

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4 To accommodate each of these opposing interentu insofar as pos-sible, the privilege "is worth preserving for the sake of a

. ge,n'eral policy, but it is nonetheless an obstacle to the inves-tigation of the truth. It ought to be arrictly confined within the narrowest possible limits consistent with its principle." ,

Wigmore, S2291, at $54. See also, Radient Burners, Inc. v.

American Gas Association, 320 F. 2d 314 (7th Cir.) cert. denied, 375 U.S. 929 (1963); United States v. Gcidfarb, 328 F. 2d 280 (6th Cir.) cert. denied 377 U.S. 976 (1964).

Because the privilege is to be narrowly applied, it follows .

tha't the party seeking to withhold evidence through use of the privilege "has the burden of establishing the existence of the privilege." S Wright & Miller, Federal Practica and Procedure, S2016 at 125 (1970); United States v. Johnson, 465 F. 2d 793 (5th Cir. 1972); Honeywell, Inc~. v. Piper Aircraft Co., 30 F.R.D.

117 (M.D. Pa. 1970).

In order to sustain its burden of proof, the party claiming the privilege must "show sufficient facts as to bring the identified and described document within the narrow confines of the privilege." International Paper Co. v. Fireboard Corporation, 63 F.R.D. 88, 94 (M.D. Pa. 1974). It is apparent in the present situation that if the Applicants did not claim the privilege, or if they specifically waived it, they could not have met their burden of establishing factually that the documents were within the privilege. The Department requests the Master to so hold with respect to the documents in Categories 2 and 4.

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. II Tile Department of Justice has also challenged those documents which the Master held to come within the " work product" exclusion;-

~~ ~ al*thoug'h no claim of " work product" had been made with respect thereto (Category 3) , and those documents as to which the " work product" privilege had been waived (Category 5). The " work product" exclusion is inrended to promote. full preparation of a case by an attorney, free from the fear that his thoughts and mental impressions will later be discovered by his opponents. Hickman

v. Taylor, 329 U.S. 495 (1947). As with the attorney-client privilege,.a party claiming protection under the " work product" exclusion has the burden of proving that documents claimed.as protected fall within the exclusion. McNeice v. Oil Carriers Joint Venture, 23 F.R.D. 15 (E.D. Pa. 1958); Hazell v. Pennsylvania R.

Co., 15 F.R.D. 232 (E.D. Pa. 1953). Since Applicants have failed to claim the exclusion, it is difficult to believe that they have sustained the burden of proof required for its application.

Further, the fear that mental impressions would be revealed, an essential element of the privilege, cannot have been present where. Applicants felt no need to make a claim of exclusion.

Under these principles the Master should hold that the documents in Categories 3 and 5 are not validly to be deemed i

privileged.

1 III l Finally, the Department of. Justice has challenged findings of privilege for those documents, claimed as protected under the. attorney-client privilege, where neither the author nor the 4

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recipient.is an attorney (Catescry 6).

It_is an essential

. element of the privilege that only communications between an attorney and a client are privileged. United States v. United Sh'oe Machinery Corp., 89 F. Supp. 357, 358-359. (D. Mass. 1950)'.

Documents _which on their face are not privileged do not become so when transmitted to an attorney, even if for the purpoce of seeking legal advice. Colton v. United States 306 F. 2d 633 -

(2d Cir. 1962); Bouscher v. United States, 316 F. 2d 451 (8th Cir. 1963); Falsone v. United States, 205 F. 2d 734 (5th Cir.

1953). As the Second Circuit noted in Bouscher v. United States, 316 F. 2d at 639, "any other rule would permit a person-to pre-vent disclosure of any of his papers.by the simple expedien.t of keeping them in the possession of his attorney." This rule was applied to a corporation in Radiant Burners, Inc. v. American Gas Asscciation, 320 F. 2d 314, 324 (7th Cir. 1963):

Certainly the privilege would never be avail- .

able to allcw a corporation to funnel its papers and documents into the hands of its lawyers for custodial purposes and'thereby avoid disclosure.

Thus, those documents neither written by nor addressed to an attorney cannot be privileged, regardless whether they may eventually have found their way into an attorney's files.

IV As noted in the List of Challenges, the Department of Justice joins in the challenge to those documents challenged by the City of Cleveland in Category 2, Part A of their List of Challenged Documents for the reasons given by the City of Cleveland.

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In conclusion, the Department urges application of the

-principles set forth above and,in'the Reply !tenorandum of the Department of Justice on Applicants' /?laims of Pnvilege to the

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proceeding concerning the Master's granting of claims of priv-ilege.

Respectfully submitted,

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_ STEVEN M. CHARNO 4

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MELVIN G. EERGER 1/ / Ovth!' & .. . 2: .ovh ANTHONY G.-A1UVALASIT /.J-

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, NET R. URBAN AAttorneys, Department of Justice

. Washington, D.C. 20530

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.. . 4 UNI' FED STATES OF AMERICA NUCLEAR REGULA?CKY COIC*ISSION -

BEFORE THE ATOMIC SEFETY AND LICENSING EOARD In the Matter )

)

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The Toledo Edison Company )

'The Cleveland Electric Illuminating )

Company )

(Davis-Besse Nuclear Pcwer Station) ) Docket No. 50-346;

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The Cleveland Electric Illuminating )

Company, et al. -

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Docket Mos. 50-440A (Ferry Plant, Units 1 and 2) )

and 50-441A CERTIFICATE OF SER' LICE I hereby certify that Ocpies cf IGMORANDUM CF ?OINTS AND AUTHORITIES OF DE?ARTMENT OF JUSTICE WITH REGARD TO THE DECISION OF THE SPECIAL MASTER have been served upon all -

of- the parties listed on the attachment hereto by deposit in the United States mail, first class, airmail or by hand delivery, this 27th day of June 1973.

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gCPJANET R. URBAN l Attorney, Antitrust Division Department of Justice 1

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ATTACHMENT Douglas Rigler, Esquire Denjenin H.'Vogler, Esquire Chairman Roy P. Lessy, Jr., Esquire Atomic Safety*and Licensing Board- Office of the General Counsel Nuclear Regulatory Commission o

• Foley, Lardner, Hollabaugh Washington, D.C. 20555 s Jacobs 815 Connecticut Ave., N.W. Gerald Charnoff, Esquire Washington, D.C. 20006 William Bradford Reynolds, Esquire John H. Brabbia, Esquire Shaw, Pittman, Potts & Trowbridge

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Atomic Safety and Licensing 910 Seventeenth Street, N.W.

Washington, D.C. 20006 Board Alston, Miller & Gaines Lee C. Howley, Esquire 1776 K Street, N.W.

Washington, D.C. 20006 Vice President & General Counsel .

The Cleveland Electric Illuminating Company ,

John'M. Frysiak, Esquira Atomic Safety and Licensing Post Office Box 5000 .

Cleveland, Ohio 44101 Board Panel .

Nuclear Regulatory Comnission Washington, D.C. 20555 . Donald H. Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Illuminating Company Board Panel Post Office Ecx 5000 Nuclear Ragulatory C:mmission Cleveland, Ohio 44101 Washington, D.C. 20555 .

John Lansdale, Jr., Esquire Frank W. Karas Cox, Langford & Brown Chief, Public Proceedings 21 Dupont Circle, N.W.

Staff Washing ton, D.C. 20026 Office of the Secretary Nuclear Regulatory Commission Chris Schraff, Esquire Washington, D.C. 20555 Office of Attorney General Abraham Braitman State of Ohio State House Office of Antitrust and Columbus, Ohio 43215 Indemnity Nuclear Regulatory Commissica Karen H. Adkins, Esquire Washington, D.C. 20555 Assistant Attorney General Herbert R. Whitting, Esquire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor Columbus, Ohio 43215 City Hall Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire & Snyder .

17.00 Pennsylvania Avenue, N.W. 300 Madison Avenue Toledo, Ohio 43604

. Suite.550 .

Washington, D.C. 20006 e.e m e,._. , , _

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Thomas A. Kayuha, Esquire Ohio Edicon Company 47 North Main Stract-

' Akron, Ohio 44308

- David M. Olds, Esquire

• Reed, Smith, Shaw & McClay 747 Union Trust Building

. Pittsburgh, Pennsylvania 15219 s,.

' !!r . Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esquire

• Jon T. Brown, Esquire Duncan, Brown, Weinberg .

L Palmer 1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 .

e Edward A. Matto, Esquire Assistant Attorney General Chief, Antitrus t 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 .

Victor F. Greenslade, Jr., Esquire ,

Principal Staff Counsel The Cleveland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 e

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