ML19329C949
| ML19329C949 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 10/01/1975 |
| From: | Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200923 | |
| Download: ML19329C949 (39) | |
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r; UNITED STATES OF AMERICA NUCLEAR, REGULATORY COMMISSION
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Before the Atomic Safety and Licensing Board In the Matter of
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i
)
i The Toledo Edison Company, et al. )
Docket Nos, aMA>
(Davis-Besse Nuclear Power Sta: ion,)
50-500A Units 1, 2 and 3)
)
50-501A
)
The Cleveland Electric Illuminating )
Company, et al.
)
Docket Nos. 50-440A (Perry Nuclear Power Plant, Units )
50 -441 A 1 and 2)
)
MOTION OF THE CITY OF CLEVELAND TO COMPEL DISCOVERY City of Cleveland (Cleveland) deposed Mr. Donald H. Hauser, an employee of The Cleveland Electric Illuminating Company (CEI), on July 11, 12, and 18,1975. During the course of his deposition Mr. Hauser declined to answer certain questions put to him by Cleveland's counsel claiming the attorney-client privilege. Cleveland hereby moves the Board to issue an order compelling answers to those questions.
Copies of the pages of Mr. Hauser's deposition showing the questions asked and the refusal to answer are attached hereto. Many of the questions which hir. Hauser declined to answer pertained to documents which Applicants had also claimed to be protected by the attorney-client privilege. The Atomic Safety and Licensing Board has recently ruled against Cleveland in its attempt to obtain a review of the Special Master's decision upholding Applicants' claim 8002200 9 7 3 4
o.
of privilege with respect to those documents. Had Cleveland obtained those documents, this motion might not have been necessary. Since it now appears that Cleveland will not obtain access to those documents in a timely fashion, it is important that Cleveland obtain answers to the questions which hir. Hauser declined to answer.
The questions for which Cleveland seeks to compel answers do not ask for the contents of the documents themselves. The questions are not designed to illicit matters subject to a claim of privilege.
The law of attorney-client privilege demonstrates that the privilege is narrow indeed. It cannot be used as an umbrella to foreclose discovery of all matter touching upon a particular subject area.
I ATTORNEY-CLIENT PRIVILEGE A.
THE ATTORNEY-CLIENT PRIVILEGE hiUST BE BALANCED AGAINST THE NEED FOR PROPER DECISION FROhi AN INFORhiED COURT.
The fundamental principle behind the attorney-client privilege, full and adequate representation, is basic to our judicial system. The privilege is meant to remove any subjective fear or chilling effect that possible dis-closure of the contents of a communication would have upon attorney-client communications, because there can only be adequate representation when the attorney is fully informed by his client of all of the pertinent facts, both beneficial and detriments.1. The privilege thus aids the client by creating the s1Mation where the best representation can be obtained without fear of
3 s
5 re pe r cus sion. But the privilege as a catalyst for the free flow of informa-tion from client to attorney for the purpose of obtaining legal advice is not an end in itself, but is for the purpose of enabling the counsel to act in his legal capacity as advocate for the client.
On the other hand, a reasoned and proper disposition of litigation requires that all pertinent information be made available to the trier of fact and all parties. There is presented then the difficult situation of balancing the need for informed counsel against the need for an informed court. Dean Wigmore commented on this problem and stated that:
{T]he investigation of truth and the enforcement of testimonial duty demand the restriction, not the ex-pansion, of these privileges.1/
Dean Wigmore concluded:
Nevertheless, the privilege remains an exception to the general duty to disclose. Its benefits are all in-direct and speculative; its obstruction is plain and concrete.... It is worth preserving for the sake of a general policy, but is nonetheless an obstacle to the investigation of the truth. It ought to be strictly confined within the narrowest possible limits consistent with its principle, 2 / [ emphasis added]
i While case law recognizes that this privilege is applicable to corpora-tions, where the requirements of the privilege are met, the fundamental principle behind the privilege -- the removal of the subjective fear in the 3
client to permit full disclosure of the facts to his attorney -- seems to lose
-considerable force when it is applied to a large corporation and is balanced against the need for justice provided by an informed court.
1/ 8 Wigmore, Evidence, $ 2192, at 73 (McNaughton rev. 1961); cited with approval in Falsone v. United States, 205 F. 2d 734 (5th Cir. ), cert. denied 346 U.S. 864 (1953).
- 2) Wigmore, j 2291, at 554.
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In accordance with Dean Wigmore's suggestion that the privilege be
" strictly confined within the narrowest possible limits," it has been well settled that the burden of proef rests heavily upon the party objecting to the discovery. The cost of depriving a court of pertinent information must not be a mere peppercorn. The party claiming the privilege has been held to the burden of " establishing the existence of the privilege" 3I and of meeting this burden by a preponderance of the evidence, not by " mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship [ attorney-client], and any spurious claims could never be exposed." /
4 B.
THE ATTORNEY-CLIENT PRIVILEGE IS NOT APPLICAB LE TO ALL COMMUNICATIONS BETWEEN ATTORNEY AND CLIENT, Not all communications which emanate from the client or his agents which are directed to the attorney are deemed within the scope of the privilege.
j Dean Wigmore, referring to the fundamental principle behind the privilege, l
stated:
1 Since the privilege is designed to secure subjective freedom of mind for the client in seeking legal advice.
... it has no concern with other persons' freedom of mind nor with the atterney's own desire for secrecy in the conduct of a client's case. It is therefore not suffi-cient for the attorney, in invoking the privilege, to state that the information came somehow to him while zcting for the client, nor that it came from some ticular ;hird oerson for the benefit of the client. 5,7ar-
[empha sis in the original]
i 3/ 8 Wright & Stiller, Federal Practice and Procedure, $ 2016 at 126 (1970);
United States v. Johnson, 465 F. 2d 793 (5th Cir. 1972).
j 4/ In re Bonanno, 344 F. 2d 830, 833 (2d Cir.1965).
)
5/ Wigmcre, $ 2317(2), at 619.
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-5 Under this rationale many items have not been classified as com-munications and therefore are not subject to the sanctuary of the privilege.
Some of these items include the identity of the client, the factor amount of a retainer fee arrangement, the nature of legal services performed and physical characteristic s. 6 /
Essential to the privilege is the requirement that the communication to be suppressed from discovery be prepared by or in behalf of the client for the purpose of confidential communication to the attorney.1I Documents which do not conform with this requirement, as well as those prepared prior i
to the attorney's involvement in the case as counsel, have been held to lie 8/
beyond the scope of this privilege.-
Suppression of these documents does not aid in the promotion of attorney-client communir ation but significantly hinders the ends of justice.
3 There is no presumption that a document prepared by a client or on his behalf, even after he had retained counsel, is a privileged document.
The price for obstruction of the judicial process is high and must be strictly and fully met at each instance.
Workpapers which have been compiled in strict accordance with the
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elements of the privilege must be deemed within the privilege. But the claimant of the privilege has the burden of showing that the documents were not prepared as a routine or policy matter, nor for reasons other than to 6/ Colton v. United States. 306 F. 2d 633 (2d Cir. 1962, ce rt denied 396 U.S. 905 (1969); In Re Wasserman, 198 F. Supp. 564 (D. D. C.1961);
United States v. Kendrick, 331 F. 2d 110, 113-14 (4th Cir.1,964).
7/ United States v. Silverman, 430 F. 2d 106 (2d Cir. 1970).
._8_/United States v. Judson, 322 F. 2d 460 (9th Cir.1963); Bousehor v.
United States, 316 F. 2d 451 (8th Cir.1963).
9 communicate with his attorney as such documents are independent of the attorney's involvement and are not privileged. 9/
It also follows directly from these examples that documents which are not privileged in the hands of the clients do not become so when trans-mitted to his attorney, even when done in confidence for the purposes of profe s sional consultation.10
C.
ATTORNEY-CLIENT PRIVILEGE IS h10RE NARROWLY CONSTRUED FOR COhih1UNICATIONS FROhi THE ATTORNEY TO THE CLIENT.
In providing the privilege to the client there exists, as stated earlier, a need to remove all barriers which might cause the client to withhold infor-mation from his attorney.
It has been held in certain situations that the privilege exists, to a much more limited extent, where the communications are from an attorney 11/
to his client.- Dean Wigmore, discussing this aspect of the privilege, stated that the privilege was not designed to secure the attorney's freedom of expression but to prevent the use of the attorney's statements as admis-sions of the client or as leading to inferences of th,. tenor of the client's 12/
communications.
9/ United States v. Judson, 322 F. 2d 460 (9th Cir.1963); United States v.
Bartlett, 449 F. 2d 700 (8th Cir. 1971).
3/ Grant v. United State s, 227 U.S. 74 (1913); Colton v. United State s,
306 F. 2d 633 (2nd Cir. 1962).
H/ United States v. Silverman, 430 F. 2d 106 (2d Cir. 1970); Natta v. Hogan, 392 F. 2d 686 (10th Cir. 1968).
M/ Wigmore, $ 2320, at 629; Accord, United States v. Silverman, 430 F. 2d 106,122 (2d Cir. 1970); Natta v. Hogan, 392 F. 2d 686, 693 (10th Cir.
1968).
O The application of these principles has lead to the suppression of documents s here the attorney has adopted in his communication to his client a portion of the client's privileged disclosure.
/ Conve rsely, dis -
13 covery of advice by the attorney to his client is not banned where it is based on sources of information other than his client's privileged disclosures.
These other sources have been described as including public records, communication from third parties, and judicial opinions. Accordingly, to protect communication from the attorney to his client, the claimant must first demonstrate that all the elements of the privilege have been satisfied, and secondly, that without the application of the privilege, disclosure of a protected communication from client to attorney would result.
D.
COMMUNICATIONS MUST BE MADE IN THE COURSE OF OBTAINING LEGAL ADVICE FROM A PROFESSIONAL LEGAL ADVISOR ACTING IN HIS CAPACITY AS SUCH.
The question of privilege becomes more involved when the attorney is either acting as a business advisor or actively participating in the business itself. In these cases the philosophy of supplying the attorney with all rele-vant information to permit adequate representation in a legal dispute is many times without applicability. Without the presence of a need to overcome the subjective fear of a client, justice requires that there be no privileged sup-pression conferred on any communications. To obtain the sanctuary of the privilege when an attorney is employed by or engages in the business, the 3/ United States v. Silverman, 430 F. 2d 106 (2d Cir. 1970); American Cyanimid Co. v. Hercules Power Co., 211 F. Supp. 85, 87 (D. Del.1962).
claimant has the additional burden of proof of showing that the attorney was acting in his legal capacity as such with respect to the communication.
/
14 Legal capacity has been defined in this context as the " receiving and applying 15/
rules of law to confidential information received from" the client. - From the application of these principles it has been held that " communications in-volving business, rather than legal, advice are, therefore, not privileged." 16 /
E.
ONLY THE CORPOR ATION'S " CONTROL GROUP" SHOULD BE CONSIDERED AS A
" CLIENT" WITHIN THE MEANING OF THE PRIVILEGE.
The application of the attorney-client privilege to a corporation raises an important question. Who speaks for the corporation, such that his com-munication to the attorney should become privileged? This question has been answered by the courts for the purpose of the privilege, by the creation of a corporate sub-entity called the " control group." The courts have deter-mined that a corporate employee is a member of this control group only if he -
... is in a position to control or even to take a sub-stantial part in a decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member body or group which has that authority.... gf a M/ Georgia-Pacific Plywood Co. v. United States Plywood Coro., 18 F. R. D.
46 3 (S. D. N. Y.1956); Zenith Radio Coro. v. Radio Coro, of America, 121 F. Supp. 792 (D. Del.1954).
M/ Paper Converting Machine Co. v. FMC Corp., 215 F. Supp. 249, 252 (E. D. Wis. 1963).
M/ United States v. Vehicular Parkine. Ltd., 52 F. Supp. 751 (D. Del.1943);
Colton v. United States, 306 F. 2d 633 (2d Cir. 1962); United States v.
Aluminum Co. of America, 193 F. Supp. 251 (N. D. N. Y. 1960).
_1_7,/ City of Philadelphia v. Westinghouse Electric Co., 210 F. Supp. 483 (E. D. Pa. 1962).
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Other courts have further narrowed this definition of control group to exclude any employee who did not participate or could not have partici-pated in the corporation's decision on the question on which legal advice 18/
was sought. -
Thus, having the authority to make decisions giving rise to the corporate liability is not sufficient.
The courts have narrowly construed this group so as not to allow a privilege, which is extremely limited when applied to a natural person, to be expanded by the fact that a corporation requires a person to speak for it.
To expand this group would give unfair advantage to the corporate form over the partnership even without regard to its detrirnental impact on the discovery proces s.
The theory of the " control group" as the test for the persons who speak for the corporation has run into some criticism in the Seventh Circuit 4
in the case of Harcer & Row Publishers. Inc. v. Decker.19/
In that case the privilege was expanded to non-control group employees -
. where the employee makes the communication at the direction of his superiors in the corporation and where the subject matter upon which the attorney's a~dvice is sought by the corporation and deair with in the communication is the performance by the employee of the duties of his employment. 2_0,/
M/ State of Illinois v. Haroer & Row Publishers, Inc. 50 F. R. D. 37 (N. D.
Ill. 1969). On appeal, the Seventh Circuit recognized that while it felt the district court had properly applied the " control group" test, it felt this test was not the appropriate legal standard. Ha rpe r & R ow Publishe r s,
Inc. v. Decker, 423 F. 2d 487 (7th Cir. 1970), aff'd by eoually divided court, 400 U.S. 378 (1971).
M/ 423 F. 2d 487 (7th Cir. 1970), aff'd by ecually divided court, 400 U.S.
348 (1971).
20,/ Id. at 491-92.
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' When we consider the basic principle behind the privilege, it seems as if the court in Harper & Row Publishers, Inc. v. Decker, supra, failed to take into account the real essence of the rationale behind the privilege.
One commentor noted:
When they (non-control group employees] consider how much to reveal to counsel, they are likely to be deterred more by the fear that management will be displeased when it learns of their conduct than by the fear of disclosure to opposing litigants. The attorney-client privilege does nothing to meet the fear that weighs significantly in their calculations. 21/
When these factors are placed in the balance of an informed court and reasoned decision against the more immediate fear of employer reprisal, justice demands that the former prevail as the privilege can do nothing to alleviate this fear. The use of this extension further restricts the ability of the court to come to a reasoned determination based upon all the facts without any countervailing benefit to which the privilege rightfully addresses it s elf.
It should be pointed out that this area of dispute in the attorney-client privilege deals with only a minor and specific factual situation. In order to invoke this extension of the privilege within the Seventh Circuit, the additional burden is upon the claimant to show that a non-control group employee's com-munication is (1) about the performance of his duties, and (2) the communi-cation to the attorney had been directed by the employee's superiors. 22/
21/ Note, Attorney Client Privilege for Corcorate Clients: The Control Group Te st, 84 Harv. L. Rev. 424, 429 (1970).
l 22/ Harper & Row Publishers, Inc. v. Decker, suora, at 491-92
11 Where the communication had not been directed it would not be privileged even in the Seventh Circuit.
F.
THE COMMUNICATION MUST HAVE BEEN INTENDED TO BE AND MUST HAVE REMAINED CONFIDENTIAL.
The principle behind this privilege is to insure that a client will dis-close information pertaining to his case to his attorney. A client who dis-closes the information to third parties cannot be permitted to hide this information just from the court. The privilege in such case is of negligible value as the court could with added difficulty obtain the information from other sources. The requirement has been enunciated as follows:
It is of the essence of the attorney-client privilege that it is limited to those communications which are intended to be confidential. "The moment confidence ceases," said Lord Eldon, " privilege cease s."
(Citations omitted. ] Thus it is well established that communications between an attorney and his client, though made privately, are not privileged if ' was understood that the information communicated in tie conversation was to be conveyed to others. S/
\\
In accordance with the strict construction given to this privilege, it must be clear from all the circumstances that the client intended that the communication be kept confidential. 24/
Se rarsi cases provide er_ mplos of when the intent iv maintain the confidentiality of a client's communication has not been maintained and M/ United States v. Tellier, 255 F. 2d 441, 447 (2d Cir.), cert. denied,
. 358 U.S. 821 (1958).
24/ Cafritz v. Koslow, - 167 F. 2d 749 (D. C. Cir. 1948); Wigmore, $ 2311, at 600.
the privilege has been lost. In one case the presence of a third person destroyed the privilege 25/ while the intent to transmit the information to third parties was held sufficient in another. 6/ Inadvertent disclosure has 2
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also been held as a bar to the subsequent claim of the privilege. -
Of special relevance to the corporate claim of the privilege is the factual situation in United States v. Kelsey-Hayes Wheel Co. 28/ where the court refused to apply the privilege due to the mingling of the documents with other routine documents of the corporation. The court stated:
It is difficult to be persuaded that these documents were intended to remain confidential in the light of the fact that they were indiscriminate 1y mingled with the other routine documents of the corporation and that no special effort to preserve them in segregated files with special protections was made. One measure of their continuing confidentiality is the degree of care exhibited in their keeping, and the risk of insufficient precautions must rest with the party claiming the privile ge. 2,9_/
Accordingly another burden of proof must be met by the claimant of the privile ge.
He must show that (1) sufficient precautions were taken to avoid i
l the disclosure of the contents of each document and (2) this was actually achieved.
It is clear that none of the matters which Mr. Hauser declined to discuss during his deposition fall within the ambit of the attorney-client privilege.
25 / United State s v. Simps on, 475 F. 2d 9 34 (D. C. Cir. 1973); Cafritz v.
K o slow, suora.
26/ Colton v. United State s. 306 F. 2d 633 (2d Cir. 1962).
E/ Fratto v. New Amsterdam Fire Insurance Co., 359 F. 2d 842 (3d Cir.1966).
M/15 F. R. D. 461 (E. D. Mich. 1954).
29/ Id. at 465.
Certain other questions were not answered responsively. Cleveland also asks that Mr. Hauser be ordered to give responsive answers to the questions asked at transcript pages 114-116.
Reconvening Mr. Hauser's deposition for the purpose of compelling answers should have no effect on the present schedule of procedural dates.
In addition to responding to the questions which Mr. Hauser has declined to answer, Cleveland should be permitted to ask follow-up questions based upon the information provided in compelled answers to the questions pre-viously asked.
Since the burden of reconvening Mr. Hauser's deposition is caused solely by Mr. Hauser's unwarranted refusal to answer the questions put to him, Cleveland asks that Applicants be required to produce Mr. Hauser in Washington, D. C., at Applicants' expense for the completion of his dis-position. Applicants should also bear all other expenses attributable to reconvening Mr. Hauser's deposition.
WHEREFORE, Cleveland prays that the Board enter its Order compelling Mr. Hauser to appear in Washington, D. C., to re spond to questions put to him during the course of his deposition and reasonable follow-up questions and that Applicants bear all expenses attributable to reconvening Mr. Hauser's deposition.
Re spectfully submitted, 0
yr, Reuben Goldberg David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N.W.
Washington, D. C.
20006 Telephone (202) 659-2333 Attorneys for City of Cleveland, Ohio i
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Motion Of The City of Cleveland, Ohio, To Compel Discovery, has been made on the following parties listed on the attachment hereto this 1st day of October, 1975, by depositing copies thereof in the United States mail, first class, postage prepaid.
1 06 4/CANdif l
David C. Hjefmfelf Attachment 4
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ATTACHMENT S
Atomic Safety and Licensing Board Jon T. Brown, Esq.
U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C.
20555 Suite 777 1700 Pennsylvania Avenue, N. W.
Mr. Frank W. Karas, Chief Washington, D. C.
20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatory Commission AMP-O, Inc.
Washington, D. C.
20555 Municipal Building 20 High Street Douglas V. Rigler, Esq. Chairman Hamilton, Ohio 45012 Atomic Safety and Licensing Board Foley, Lardner, Ho?labaugh Melvin C. Berger, Esq.
and Jacobs Joseph J. Saunders, Esq.
Schanin Building Steven Charno, Esq.
815 Connecticut Avenue, N. W.
Antitrust Division Washington, D. C.
20006 Department of Justice Post Office Box 7513 Ivan W. Smith, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board Panel William T. Clabault, Esq.
U. S. Nuclear Regulatory Commission David A. Leckie, Esq.
Washington, D. C.
20555 Department of Justice Post Office Box 7513 John M. Frysiak, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Gerald Charnoff, Esq.
Washington, D. C.
20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.
Benjamin H. Vogler, Esq.
Washington, D. C.
20006 Joseph Rutherg, Esq.
Office of the General Counsel Frank R. Clokey, Esq.
Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Towne House Apartments Washington, D. C.
20555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq.
Thomas J. Munsch, Jr., Esq.
Roy P. Les sy, Jr., Esq.
General Attorney Office of the General Counsel Duquesne Light Company Re gulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C.
20555 David McNeil Olds, Esq.
Abraham Braitman, Esq.
John McN. Cramer, Esq.
Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nuclear Regulatory Commission Post Office Box 2009 Washington, D. C.
20555 Pittsburgh, Pennsylvania 15230
.'a g o 2 ATTAuHMENT (Continusd) s John R. White, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr., Esq.
Pennsylvania Power Company Cox, Langford & Brown 1 East Washington Street 21 Dupont Circle, N. W.
New Castle, Pennsylvania 16103 Washington, D. C.
20036 Lee C. Howley, Esq.
Donald H. Haus e r, Esq.
Vice President and General Counsel Corporate Solicitor The Cleveland Electric nluminating Co.
The Cleveland Electric nluminating Co.
Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bc U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. John H. Buck Michael C. Farrar Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd U. S. Nuclear Regulatory Commis sion U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East Broad Street, 15th floor Antitrust Section Columbus, Ohio 43215 30 East Broad Street, 15th floor Columbus, Ohio 43215 Christopher R. Schraff, Esq.
Assistant Attorney General Howard K. Shapar. Esq.
Environmental Law Section Executive Legal Director 361 East Broad Street, 8th Floor U.S. Nuclear Regulatory Commission Columbus, Ohio 43215 Wa shington, D. C.
20555 Andrew F. Popper, E sq.
Joseph Rieser, Esq.
Office of the Executive Legal Director Reed, Smith, Shaw & McClay U.S. Nuclear Regulatory Commis sion 1155 Fifteenth Street, N. W., Suite 440 Washington, D. C.
20555 Washington, D. C.
20005
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l 102
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1' A
Would you read the question, please?
2 (Guestion read.)
3 A
Yes.
14 4
On what occasions has that been discussed?
5 MR. REYNOLDS:
When you say "on 6
what occasions," do you want a date er what are you asking for?
8 G
IIas that been discussed with other mai.ters of CAPCO 3
on more than one occasion?
10 L
Yes.
Il G
Were those discussions in meetings of CAPCO cor:littecs?
12 A
I don't know any such discussions in CAPCO corrtittee 13 meetings.
'2here were some discussiens at which I and 14 other lawyers of the CAPCO ccmpanies discucced this 15 subject in connection with this precceding and related 16 procacdings.
17 G
Do you know of any discussicn of this.here the possi-18 bility of whccling pcwer by CEI to the City of Cleveland 13 was discussed by persons representing me:de:c of C?.PCO
.'O other than lawyers?
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"1 MR. REYNOLDS:
I am c7:2;y.
I an
'22 not trying to be difficult, but I am not sure 23 whethcr'you are asking by people, whether you cre 24 asking by people with.17.riers prezant cr Sidcussed 25 with peopla
" CAPCO when lawvers ~ % r t present.
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103 1
I don't know what you are asking, that's why l
2 I ask.
3 G
Well, let's start with when lawyers are not present.
4 A
That I wouldn't know because I wasn't present.
5 0
Has it been discussed by other representatives from 6
CAPCO companies in meeting at which lawyers were also 4=
7 present?
8 MR. REYNOLDS:
I would object on 9
the ground that the qu:stion has been asked and 10 answered.
11 MR. HJELITELT:
It is different.
13 In the earlier question he responded that it was l
33 dir.m:sced at meetings
'.n
^i8 he and other law-34 yers for CAPCO were prasant.
15 ew I am inquiring c ta uhuther non-lawyers 16 were present.
f 17 :
A Thsrc were semo non-la.7_r: pr ccat.
f f R. REYNOLDS:
I ctand corrected 18 cr:d I will withdraw my cJ:jcccion.
You are right.
39 G
Mere thoce discussions davats1 salcly to legal
.,0 considerations?
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MR. REYEOLDS:
I will direct the vitness not to answer on t'.;
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ic ;.'.vileged information i
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.l 114 1q G
Did CEI consider the possiblo offect the amendtenti 3
wculd have on the ability of the city to sell the bonds?
3 MR. REYNOLDS:
Objection.
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,5 l A
I think I have already answered that.
[
I C
What was the ancwor?
g A
The answer is that the bonds would be sold to other 7
then the sin %ing fund of the city of cleveland.
3 G
Would that cake it more difficult or less difficult g
i to cell bonds, if you know?
10 '
A Ec11, when the cro people or seco of the same people who are colling the bcnds are buying the bends, 12 j j,
.c _tink that supplica de anst.n.: to ycur qucstion.
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G Is,*our answer that the offect of the a=endment 14.I i:
would have been to =ck2 it vore dif ficult to sell the 15.:
I tcr.d s?
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!!R. PC"iCIDS :
Obj ection.
17 I,
1 C: der than what I harc anrwcred, it would have no M l' li effect en the City cf Cicrcicnd colling the bondo on 19 4
'to general bend narhet or netes.
i G
Is it your opinion that it siculd be loss difficult to i
21 ecl1 bonds to the sinking fund than on the general 22 I
r --Met?
03 i
MR. ITYMOD3:
I'll object to that 24 I
'l qucStion.y 25d ll T.
Again, I havo aircady cnstm_ rod that.
? hen you are e
oo a
D D
CJ U b
m
1.
n 3....
'4 115 T
1 tuying your cun bonds cer :_~ S s ith selling them on the
'~
general c.arkc t, it ce :tainl, uen'i not have any effect.
3 on the ability to sell them on the scncral raarket.-
~. t 4
g Are y a indicating that the answer to the questien 5
is so obvious it is difficult to cnswer?
6 MR. PSYNOLDS:
I object.
'I 7
believe that the witness has already responded g
to the question.
g Z1R. P M EELT:
It secn3 to me tha 10 question is susceptible of a yes er no anstrer and we haven't gotten it.
IS MR. Ri'.YNOL*'S :
I don't think he is 4
13 required to ansvar yes er no.
I believo his aneror'is fully rsrpcar.".ve.
15 The witacas has r'-n ~.!?. t /c or three ti:mes no.f i
16 that the sclo cf bond:
,o th2 einhi. 7 fund wculd have no.inpact whatsccvnr on sclling those bonds 13 in the open nc-het.
13 MR. !! W E T:
All right.
The 20 question t.as to conpero the cr.lo to the sinki.79
. 21 fund as cppered to the calc en the general narket, 22 which'wculd be mora diff5c.nlt.
23 IIR. TSYNCLDS:
Tcu cre arking for j
l 24
(,
an opinicn?
-1 25 Dl o
MR. F M EELT:
That s' s 6
Q
.g F D u b..
a ju n.
J w]
Ju"
,ji 116 l
1I MR. REY 1:0LDS:
If the witness has 2
an opinion in that area, he can give. it.. If ha 3
i.'
has not formulated any opinion as to that, then 4
I feel his answer is fully responsive.
r.:
,, j 5
I would only repeat again, that the amendment as A.
- gi i[
proposed would not have any effect on' the Municipal 6
,'l Plant's ability to soll the bcnds or notes on the general 8l market.
9' I don't believe I havs received an answer to my G
10 question, but I am not going to ask it again.
I 11 MR. REY 1!OLD3:
If ycu would liko cc reatat.: you;: gu.l..: 2....gc.ro c: a get at it 12 [t I
(
13 that-way.
i 14j 20.. Inz7.!TELT:
I don't think there 15 i is any probina there, but I don' t want to take 16,f any noro
- h b '-
- Tf n3cessary, Ue will attenpt 17 '
it anothcr ti.co.
IS MR. Fri ; 03:
All right.
1 l
19 G
Have you cvor undertaken cr has CEI over undertaken 20 to assenble a litt c" ru tons why the city Electric 21 Systcn chould re-in c: chcold not be interconnected 22 with CEI?.
e3 M R. P rc. - 3:
Since the question acks wh:th.:
.'.g cvor been dene, I wil1~ di: ect 3
OOl 25 '
the witne2:.., cen ino his respensa B
Ida p od i
c.) Q l
D '3'I
~
i O
LTU B
,[
e c
et 125 r
1 i
Council or other efficials of the City of Clevelan6
-f 2
(off the record.)
3 9
Did c I make a study of the legal procedures for 5
4 the sale by the City of Clovoland of its light system?
i' 5
I A
Would you read that question?
(Question read.')
A Isn't that what we c1 ready talked about?
i 8
G I am not entirely sure uhother your an:n.cr may have 9i also gone to that.
10 My question last time was with regard to sn b ission 11 of the issue to a voto of ths pecple of Cleveland.
12l A
Ch, I c:c.
- Mo euch a :tud" cr hal.- ::h a.itudy I"
'mado.
14l S
Was that study made by secocao trorking undc.
your 15 supervision?
I I'J..
REYNCLD3 :
Wait just a minuto.
17 (The witnass and Mr. hynolds conferred.)
18I
- Ut. EiUOLD3s Lot the record shoJ 19 M at my re@ cab -ht1 was a conferenca betwoca 20 councel and the witnoss.
The request was 21 initiated by me becauso I believa'ua era getting 22 into an aren that involvos attorney-client privilege, 23 and I was trying to,'.scortnia from the witness
't_cthc-the par'icitlar question asked was en's that-i 21 25 was antitled to the protection of th wiy3 e.1 d JU or not.
J i
.& L z
Il
(
i 126 1
I believe that we are satisfied that the answer 2
can be given to the last question, but I would 3
like to havo it reread before he anmeers just to 4
~
doubic-check that.
5 (Cuestion read.)
6 11R. REYEOLDS:
You : cay ansucr that 7
quccticn.
3 1
Yes.
9 G
And tihat was the purpoco of that study?
g liR. PIC! OLDS:
I'll object to that g
questien as being within the area of privileged I
information.
13ll L
re.. LTdn'ELT:
Are you directing 14 I I
him not tn. =,.:cr?
15 fr4. 10Y:0103:
I ca d i re cting hi=
16 {
l not to cntr. cr.
17 '
I G
Wan any rc cado of that study?
13 li A
Yes.
19,i l
G What use ucs nada of that ctudy?
20 !
tin. EramLDS:
I'm not cL; ar 21 what you acan by use, I"r. IIjcir.folt.
R 22 ;
i I'
yccr qtco?izn concerned with the ci:::;1nt.'. n 23 j l
or di.r.tributica of tSo ctudy, or ir y rr % stion 24 t conc 0rn;I -ith v: hat internci a -lycin r D 2" D
25 OV fc11ctred as a recult of the stuOiT m
_Q w kl S
=
l
, 127 l -
1 l
If it goes to the forner, I will allow the l
o
~
l witnces to answer.
If you are anking him for 3
the inforrastion in the latter area, then the claha 4
of attorney -client privilege is applicable and 5
I will instruct him not to answer.
6 fir. !!JELMTELT:
I am asking use 7
in the cense was any cetion ta%cn based on the 8
infor:ntica dev21oped by that study.
9 na. R3r2: CLOS:
I will direct the tritn033 not to answer that.
11 G
Wa= th2 informatica developed by that study, or a
., l,l copy o.? that ciudy -- C:at is ur a ej.catior.u.
I tiill ask
- ~
13 it c::p.::ato.
14 1
Was that study ever cc:enunic.ted to anyone outside
- 1.,i Il of CEI?
I6 P".. I'I"R*0LDS :
Are you including l'
II m':'8.fc c...:ncol in l'e:r question or excluding it?
., u..
f 7..
- IJELI1?rLT
No, I an 1:1cluding
~
i t
i 19 i
nl l t M
I I~".
Pr.7:OLCS I That is included.in 214 31-cru tion 2 n
22 l l r,, !! y n ;;.TI E L T :
Right.
23
~R.
?J:'ICOLDS:
You =cf ancitar that.
24 I
?
.m cer.n:nicat0d to cutsido coun c1 retained by h
25 ;j c..
.' +.> ene cicc*
D k
o u lI' D ~9
~
.b-v
.t D
'1 C
1 mr 9
i 140 0.S.k 2
9 Yes.
C A
MO*
3 0
Has that subject been discussod at any time?
4 L
Ho, not really.
There have boon discussions as to 5
the effect of the a=ounts billed for service over the 6
7 130 KV line since it was energized in May, and particularly trith regard to the anount to be billed for service provided 8
over that interconnection in June.
9 Q
g cse scussions occur?
10 A
B tween Mr. newley and cycoif and Mr. Moore and n
myscif.
I 0
Ifhat was the nature of these diccursions?
(The witness and Mr. naynolds conferred.)
MR. REYNCLDS:
Let the record chow 15 i that I initiated a conference with Mr. Ucuser and 16 the purpoco of that discussion was to inquiro l
whether the c ostion was getth g into an area of attorney slient privilege.
!!r. Hauser has adviced cc that uc arc getting 20 into that arca, and not c=1y in to:rrs of the pre-21 cent suit but also in terr.s of other act'.ons that 22 aro pending between the city and The Clevchind 23 Electric Illt.rtincting company; end in view of that, 24 l
I am instructing the witnc33 not to answcr the' i
25 question boc2nse to do so would invada the attorney-1
m^
l D
DJ n
i v
o JL m
gr}k-J 141
_[.
~
,t I
client privilege and we do not wish at this time i
o to waive that privilege.
3 O
Did CEI take - or its 71oyces take any action 4
as a result of thosa discucsicas?
5 IIR. REYITOLDS:
I will instruct 6
tha witnoss not to ancwer that question on the 7
sare ground.
I 8
0 Was the anount of the bill charged fcr services in 9
June chenged as a recult of these diccussions?
10 yy,, ggynon:S:
I will instruct 11 the witness not to enrPor that gestion.
12 (The witnces and !::. reynolds conferred.)
13
- 22. FCINOLDG:
I'll instruct him 14 ;
not to aniwcr that qucction.
I think that you i
15[
erld rofernulnto O.0 gunstion so that I would j
i i
16l not find it objectiend:lc r.: intruding in the ares 17!
of privilege.
Eut ns furculated I still consider I
I
\\
is :
it to ho a qucction e..t vould invade the area of
.i 19 privilege, 20 0
was the bill for June cervice cvor the 138 KV inter-el centaction calculated in c rr.nn:: any different than the 22 bills for service over the 130 I;V interconnection in any 4
23 othcr month?
et I.
I'm not so sure tht t i.*:
.:.ctual y been calculated 33 cc yet, but it wculd be ccT. alstad in the same manner as
mom O
7,*
o
~ 9
~T 153
?
d{'
v l
3l fro a the study ce=nunicated to anyone outside of CEI s
other than outsido counc":17
'l 3
1 tot that I recall.
4 G
Was any ecs cada of the study?
5 g
6 my office and possibly I'r. Howicy.
7 0-t:aa this study mada with rs=pect to a ntudy of 3
I varicus alternatives that might be utilized for acquisi-g tion of the C1cvoland Electric Light System?
10 A
I can't recall.
11 4
Did CEI make a ctudy of the need to obtain the 12 approval of the Federal Fower Cennission of an acquisition 13 by CEI of the Cicycland City Light System?
14 i l
l MR. 3ET::OLC3:
Just a minutc.
15 (Thu witness and M. Ecynolds conferred.)
is i I
L M.'.. REYUOLDS:
Let the record show 1~!
I i
that I initiated a discussica with the witness-IS I because it is cy urderstanding that the question 19 icprovos on an arca of claimed privilege, and 20 even nora particularly en studios which were sub-21 citted to the Special !! actor as being privilogod, 22 and the privileged clain was upheld; and in view 23 of that, I will inctruct the witness not to respond.
24 s
MR. HJEL'TELT:
7 e you new anscrting 25 a pr' vilogo as to whether or not such study was mado?
i I
0 o
D,J w$
0 '9~T
' 154 m
l' J
i MR. REYNOLDS:
I don't believe 3
MR. HJZLliFELT:
The auestion was 4
Did CEI or its e-.ployces cake a study for the need 5
6 acquisition by CEI of the City Electric Light Systo:a, or at Icast that is the qucStlon now.
MR. Frit' OLDS:
If tha questica is whether - let cc have the question onc more time.
11 (Question read.)
12 MR KEYMOLDS:
To the extent ycu arc 13 m
asking whether a study was mado in this arca, I 14 will perr.it the vi^z.c c to ensuar that quantion.
15 A
Yes.
Such c. study vna.r Ce either by attorncyc in 16 my offico or outcida c unccl retained by CEI.
17 0
Uho requested that the study be mado?
IS MR. REYNOLDS:
I will instruct 19 the witness not to cnewer that.
20 G
Was the study chet:n to any perrons or co=munic:!ted to 21 !
any parcons outside of Cr.I other than outsido cc:: nc1?
22 A
It was not shown or c._~ anicated to anyone cett:id:
23 '
of attorneys in ny office; e.d, cf course, if cno of 24 those was prepared by cu cida crunsel, they would hrca 25 i seen it.
3ut if it w:in.m:cpered internally, I don' t I
Q
1 D.
vW r
g D
A g
uhJ 4 55 1
believe it was c* ten shown to cutsido counsel.
O
~
G Was any uce cado of that study?
3 11R. PITNOLDS:
I will instruct 4
the witness not to answer that.
5 0
Was any action tahor). based upon that study?
6
- 2. REYKOLDS:
I will instruct 7l the witness not to answer that.
8' O
Did CEI or any of its employcos I:ake a study of SEC 8
regulaticas or statutes with regard to acquisition of 10 the Cicycland City Electric Systen by CEI?
11 A.
Such a study was cado, I bolicva, by an attorney 12 or attorneys in my offico -- or in cur offica I should say.
13 G
At whoso raquact was the study made?
14
!!?.. TIYET.DS :
I will instruct the 15 witnasc not to answcr that.
16 3
tras the study ccerunicated or shown to any persens 17 outside of C2I otScr than cutsido counsel?
18 g
- o,
19 S
What te.O th0 cccacica for caking such a study?
20
!1n. Err.rLOS:
Are you asking tihen 21 the
- t. 'y vas 1: dc or cro you asking what circu=-
22 stanc a p:coci,7itatod?
If it in the former I 23 uill g:_.it 1. *n to cas'for.
If it is the latter 21 I wi11 -2 1J.2 not to 2ncuer.
25 IT. -: 7EL'U,LT :
I am asking the latter:
l Wirt c:;: t' : circunstances that precipitated the 1
R-9 D
D ww&
nQFT
'156 t,y ljj ub J 3
1I T1 3
study?
MR. ICY:: olds:
I will instruct the 3
witness not to ansucr that.
4 0
Woro any actions taken by CEI or its erploycca as a 5
re t of h t S M y?
6 MR. EL"INOLDS:
IWLll instruct the 7
witness not to answer that.
g G
Did CEI make a study or --
g nn. RCYITOLDS:
Let ce, just co the o
record is clear, when I as inctructing the witnoss not to answer, it is based on a claira 6f privilego, just so it is clear on the record.
I didn't want to go through the whole rcutine
)
every tiro.
la,j l
MR. HJEIJmT:
I understand.
- 13. ROYNCLDS:
Okay.
G Did CEI or its employees nahe a study of tM Cleveland City Light public cmployces' retirencnt systen?
19 A
I recall cuch a study being mada by an attorncy in 20 an outside law firm roteined by CEI.
S1 G
Mas that study or the recults of that study ce=unicated to any person er group outside of CCI other 23 than cutcido counsel?
21,
l A
It was not cct :unicated to anyone outside of CEI 25l
[
or anycne within CEI except in our office.
l
l o n im D
D,i, n
JLl
./
o 4
D '33-
~157 0
What were the circumstancec u.J.E nLeb U
< s c.
o
~
that study to bc =ade?
l 3
i MR. PsYEOLDS:
I will instruct the 1
4 witness not to answer that, i
5 0
Was any action taken as a:ccult of that study by 6
eraployecc of CEI?
M?.. P2YMOLDS:
I will instruct the 8
witnacs not to answer that.
o
~,
O Wac cny uro made of the information obtained in that 19 l l
study by eployees of CFJ?
11 7.P..
REY:: OLDS :
I uill instruct the 12 witness not to answer that question.
13 G
Un3.: Orc than one such study endo?
14 2.
I cca only spccifically recall the one that I have 15
, ge n..
- .,3,
16 G
Did CEI cr its enploycos rak2 a study of a leaco 17 purchcra ag-nemont of the City Elcriric Light Systen?
18 M ?.. n.~IUCLDS:
J.rrcngcront you said?
19 MR. UJEL"?ELT:
.. range.cnt.
20 A
Cuch a study was ude by nyr.cif and attorneys in an al outsida Iti firn retained by CEI.
22 S
Han tihat ctudy or the recult cf th : t chudy 23 c =nunic. tad to any persons outsit c.~. C.. othcr than 24 cutsido coun:.al?
25 A
th.
OI D
D
[.
uo' O [g ' Q
~ ]
g 158
._ ]
l 1'
4 What were the circumstances shi h-oned that
~
ctudy to be made?
3 MR. REYNOLDS:
I will direct the 4
witness not. to answer tFat.
5 g
was any use made of the information obtained in that 6
study?
MR. REYNOLDS:
Same instruction.
8 0
Were any actions taken by employees of CEI based 8
upon the information obtained in that study?
10 MR. REYMOLDS:
Same instruction.
II (Off the record.)
12 !
G Did CEI or its employees make a study of the legality I3 l of transisrring City Light Plant debt obligations to the 1
I4l cinking fund and the legality of reimbursing the sinking 15 fur.d frots the City Light operating revenues?
16 j MR. REYl' OLDS :
Lot no have that i
II I again.
i IS (Question read.)
l' 19 '
A.
I can't recall that.
20 0
Did CEI or its employces make a study of the rerodios 21 l
nv.tilable to bondholders under the Cleveland City Light 22l 1 -t<_r first mortgage indenture?
e; MR. REYt OLDS :
Docs your question 23 1
i i
21 [
relate to a possible study betwcon the period l
23 i'
'65 to '757
D
,D )
~
m 1
2
_a MR. HJELMFELT:
!!y quostion is 2
broader than that.
I assume you are going to 3
restrict the witness to answer as to that period?
4 MR. REYNOLDS&
I am so instructing 5
erstandng of dc @cSdon is ht h 6
relates to the 1948 bcnd issue, is that right or 7
wrong?
3 MR.- HJELf1 FELT :
rio.
fly question g
relates to any bond issue.
I! LO ane.tcr nicJht relate to the
'48.
11 MR. REYNOLDS:
I thought you said that first.
13 I
MR. HART:
He are still operating 14 under that indenture agrec. - +:.
15 1
MR. REYNOLDS:
I Opprociate that, l
16 i,
but the reason I asked the que: tion was, the time i
17 period is -- if we are goin. ',
h that f ar, thoro 18 rJ.ght have been studies in L.
tr:11er tire frara, 19 that is all.
20 Iet ce have the questlm co I know what he is l
21 l
talking about.
22 I
i (Question read.)
23 MR. REYMOLCS:
Tou r.;y recpond but 24 confining your response frc.; 'C5 to the present.
25 A
Yes; such a study was tcdc in czr offico.
I 0
D p
gg n
1 p%l@O h
4 What were the circunstancos ic k.
hot $ tat tudy 2
being made?
3 (The witness and Mr. Reynolds conferred.)
4 MR. REYNOLDS:
Let the record 5
show that I initiated a discussion with the 6
witness and, again, concerning the matter of 7
attorney-client verk proluct, privilege, and on 8
the basis of that discussion I will instruct the 9
witness not to answer the question because it 10 invades the arca that it is entitled to protection 11 under our claim of privilege.
12 3
Was the information obtained as n result of that 13 study ever communice.ted to Mr. James Nolan?
I 14 l A.
No.
15!
G Uns the infor :. tion obtained as a msult of that IG study or copy of that study ever been made available 17 to or discussed t:ith cc y pcreens outside of CEI or its li l outside counsel?
19 A.
No.
20 0
Was any uso rn.'a cf thnt study by CEI or its 21 employees?
22 i HR. TCY: 'd - '.
I will direct the 23 :
Witness not to :..
- r thit qucStion on the grounds
.4 of privileg'..
G tras any act:lo r" c:'ploycos of CEI based i
i
~
I Q2' g
9 di I
g f Q
h 161 D u@uE 2
a tu l
'J upon the information obFai m d from that study?
2 MR. REYNOLDS:
Same instruction.
3 S
What was the CEI-MELP Lease Project?
4 L
I don't know.
5 O
I am referring to the title or the subject matter 6
listing of Document No. 2098, for which a claim of 7
Privilege was made, and that is CEI's document number.
8 Does that refresh your recollection?
9 10 l
MR. REYNOLDS Off the record.
(Discussion off the record.)
S Did CEI make a study or its employees make a study regarding the offect on the CEI mortgage of having a CEI subsidiary acquire the Cleveland Electric Light System?
A Yes.
Such a study was made in our office.
And when I refer to "our office," it was either the 18 office of Corporate Solicitor, !!anaging Isttorncy, or Manager.
20 MR. GREENSLADE:
General Attorney.
21 A
General Attorney, right, or Managing Attorney of 22 the Legal Department. And that has been true when I 23 referred to "our office. "
24 l
4 And that would maan under your supervision or by yc.t ~.
25 A
Yes.
i l
OO D
D
~
owe D
3 i
1 L
~
4 What were the circumstances occasioning such 2
study u k moe?
3 MR. REYNOLDS:
Just for clarifica-4 tion, since you interjected "under acur super-5 Vision," may I ask the witness a queGtion on voir dire?
7 Do you, uben you say,"under your supervision,"
g you mean by lawyers who were on your staff within the offices that you have described?
Tlir WITGSS:
Yes.
11 MR. REYI? OLDS :
Go ahead.
12 O
Did CEI or itc caployees study the effect of the J
13 s
I CEI martgage of having a CEI subsidiary buy the Cicveland 14 City Light?
15 Oh, that one o:s ar.s'.;crod.
16 L
Yes, I believe that was covered.
17 S
What were tin circunstances which oc:tr #. ' :,uch 18 study to be mado?
19 MR. P M OLCS:
I will dir:ct the 20 witness not to cns. tar.
21 O
Ucre the recults of that study, the ir..': -
- . _ a h om 22 that study, communice.ted to any persons outsia c
CcI 23 other than outsido ecunnel?
24 A
Mo.
25 S
Uas any use r de of the information d2".1
' 7. /
^
'p 1 0 D
Wd' 163 rQ l
gF D 53_i1 E
t study?
MR. REYNOLDS:
I will direct the 3
witness not to answer.
4 fiere any actions taken by CEI employees predicated 9
5 uPon the results of that study?
6 MR. REYNOLDSr I will direct the 7
witness not to answer.
8 4
Who requested that that study be mado?
MK, RE"INOLDS:
Same direction.
10 Did that study have any effect on the corporata g
11 policies of CEI?
What was that question
!1R. REYNOLDS:
13 aC 'in?
14 (Cuestion road.)
15 MR. RL"INOLDS :
Let's go off the 16 roccrd for a minute.
17 (Discussion off the record.)
IS MR. P5YMOLDS:
I will instruct 19 t:.2 witness not to answer that question.
20
- hybe, for the record, I ought to explain 21 th.t t:.2 instruction is based on the claim of tt ra that has been asserted heretoforo.
23 I u:-dorstand the question, it inevitably 24 into an area which would require a
- .:.. :t ;.:
25 of the priviloge to answer that question
D Vv1 164 o
'h T
g D
responsively and any follow 4f s
M might result frous those answers.
3 MR. ETELMFELT Might I inquire 4
whether, if I asked the saiae question with respe et 5
to other studies I have asked about this morning, 6
on which various occasions privilego has been 7
asserted, that privilege would also be asserted?
MR. REYNOLDS:
It would.
That was the reason that I tock time to concidnr the 10 matter.
It seesas to me that if we arc c:ing to 11 claim the privilege, to be consistent and to claim 12 it fully we would have to claim it with respect 13 to that question as to each of the prior studies 14 as well as to this study.
15 So I would direct the witness n:t.u ricrond 16 to that same question were it addrersm-d to each 17 of the prior studies we have mentioned as well 18 as this one.
19 FJt. HJELMFELT:
Thank p:.t.
20 S
Did CEI or its employees study the possibic reactions 21 of City Light employees to a leasing of th2 City Light 22 Systom by CEI?
23 A
Could I have that question again, ple:r_?
24 (Question read.)
25 A
I can't recall such a study.
l
(
- _ - _.