ML19329D075
| ML19329D075 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 08/20/1976 |
| From: | Jennifer Davis CLEVELAND, OH, HAHN, LOESER, FREEDHEIM, DEAN & WELLMAN |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002240070 | |
| Download: ML19329D075 (8) | |
Text
,
t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
THE TOLEDO EDISON COMPANY and Docket No (
-3 THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
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50-500A (Davis-Besse Nuclear Power Station,
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50-501A Units 1, 2 and 3)
)
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440A COMPANY, et al.
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50-441A (Perry Nuclear Power Plant, Units 1 and 2)
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MOTION TO COMPEL DISCOVERY BY SQUIRE, SANDERS & DEMPSEY Now comes the City of Cleveland and moves this Atomic Safety and Licensing Special Board ("Special Board") for an order directing Squire, Sanders
& Dempsey ("SS & D") to furnish complete answers to interrogatories 3, 6, 7, 8, >
and 9 and further for an order under NRC Rules of Practice 5 2.741 ordering SS & D to produce and permit the City to inspect and copy any designated documents in the files identified by SS & D in its answers to City interrogatories pending rulings of this Board all as further set forth in the brief attached hereto and made part hereof.
Respectfully submitted, cw d.,vM Ja s B. Davis n, Loeser, Freedheim, Dean & Wellman 800 National City - East Sixth Building Cleveland, Ohio 44114 (216)-621-0150 Vincent C. Campanella, Director of Law Robert D. Hart, First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 August 20, 1976 Attorneys for the City of Cleveland 80022400 96
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, BRIEF IN SUPPORT OF MOTION TO COMPEL DISCOVERY In conformity with the Memorandum and Opinion of the Atomic Safety and Licensing Appeal Board ("ALAB") for a full evidentiary hearing, the City served upon SS & D its subpoena duces tecum and SS & D responded with a motion to quash or modify pursuant to CFR $ 2.720 or for protective order pursuant to CFR $ 2.740.
This Special Board constituted to haar the matter of the disqualification of SS & D in its Memorandum and Order of July 20, 1976, ordered that the City be permitted to serve written interrogatories upon SS & D to further discover precisely what files were in its possession.
Thereafter the City, within the time allotted, served upon SS & D ten written interrogatories calling for the identification bf various matters and items. Under the Memorandum and Order of July 20, 1976, answers were to have been furnished to the City by August 10, 1976.
On the 6th of August, SS & D supplied partial answers to certain interrogatories, filed objections to others and stated that it would identify those files called for in interrogatories 1 and 2 on or about August 18, 1976 (or beyond the time allotted by this Special Board). Concurrently, SS & D filed its motion to stay further discovery.
In its supplemental answers filed August 18, 1976, SS & D for the very first time identi-fied the files called for in interrogatories 1 and 2.
Lamediately thereupon, undersigned counsel for the City telephoned Mr. Michael R. Gallagher, counsel for SS & D,to make arrangements for an inspection of the files identified in inter-rogatories 1 and 2.
Mr. Gallagher's position was that until the Board ruled on SS & D's motion to stay discovery, that such inspection under NRC Rules of Practice
$ 2.741 would be refused. Taking each City interrogatory in order, the present state of discovery is therefore as follows:
3
_3_
Interrogatory 1.
SS & D has identified files omitting, however, any de-signating number or symbol as called for and, for the time being, refuses to permit their inspection.
Interrogatory 2.
SS & D has identified files omitting, however, any de-signating number or symbol as called for and, for the time being, refuses to permit their inspection.
Interrogatory 3.
SS & D objects to this interrogatory. The interrogatory asks SS & D to identify the files specifically referring to the City of Cleveland's municipal electric light plant and other parts of city government relating to the municipal light plant or its affairs. The relevance of the items called for could not be more apparent on their face.
SS & D complains it would be burdensome to attempt to locate such files.
In addition, they claim without any specificity that the claims are privileged in some way.
The City has previously argued at'some length before this Special Board in its Brief of the City of Cleveland in Support 1
of the Enforcement of Its Subpoena Duces Tecum of July 12, 1976 that SS & D nay not properly avoid their burden of proof of establishing privilege by simply stating tha conclusion that something is privileged. Those authorities will not be re-peated here.
Certainly SS & D is not excused in any way from identifying privileged documents or stating the precise grounds of privilege with regard to each such docu-ment, together with its author, addressee and other pertinent information. The City cannot respond to a claim of privilege until it can focus on a specific docu-ment and know enough about it to assess whether the claim of privilege is legitimate.
Neither can this Special Board decide a claim of privilege without identification of the item in question. None of this is furnished by SS & D in response to City interrogatory 3 or in interrogatory 7.
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Interrogatory 4.
Here SS & D says that financial documents requested by this interrogatory will be contained in the files identified in SS & D's response to interrogatory 1.
The City has been denied access to such files for the time being.
Interrogatory 5.
SS & D has itemized the kinds of documents called:for by this interrogatory but is for the time being refusing access to them.
Interrogatory 6.
Here the City asks SS & D to identify all memoranda or opinions prepared by it for CEI relating in any way to the City of Cleveland Division of Light and Power and/or melp in the period January 1, 1965 to the pre-sent.
SS & D, defying the instructions, simply states the bald conclusion that such memoranda and opinions are privileged.
It does not begin to attempt to identify them, does not specify the ground of privilege, does not specify the author or addressees involved or any of the information necessary for assertion of privilege.
Interrogatory 7.
Here the City says " identify each and every document as to which privilege is claimed and further state the basis of the claim or privilege in each case."
The answer of SS & D is "See answer to interrogatory 6."
This is in effect no answer at all. With interrogatory 7, the City sought to have SS & D set forth as to precise documents what privilege it may claim.
SS & D responds by defying the obvious intent of the interrogatory.
Interrogatory 8.
The City asks that SS & D identify each document it in-tends to rely upon in the presentation of its case or for purposes of cross-examination. SS & D responds that it will use those documents previously submitted before the evidentiary hearing before the Special Board, but then says that it "does intend to preclude itself from offering such additional exhibits as may, I
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. in its judgment, be requried properly to present its defense." This simply defeats the question.
SS & D must be ordered to state what precise additional documents it is going to use or be foreclosed from using them.
Interrogatory 9.
This calls for witnesses that SS & D intends to use.
After naming cerisin individuals, SS & D again states that it does not " intend to preclude itself from presenting such additional witnesses as may in its judg '
ment be required properly to present its defense." Once again, SS & D should be held to the witnesses named or should name in advance of hearing such other witnesses as it intends to use.
Interrogatory 10.
This interrogatory asks for each document originating from SS & D which it claims served to disclose to the City its potential conflict of interest.
The answer, while not directly responsive to the question, in effect admits that there is no such document.
CONCLUSION Although the period for responses by SS & D has now passed, the City is effectively no further along in the process of discovery than it was when it started.
It has not been able to have access to a single document. Most of the City's interrogatories have simply gone unanswered.
If the City is to have meaningful use of interrogatories in this proceeding, this Special Board must now order SS & D to answer the questions in full in the manner posed and permit immediate inspection of documents.
Respectfully submitted, N
CLW James B. Davis (Attorney for City of Cleveland, Ohio
Dsuglas V. Rigler, Esq., Chairman Ivan W. Smith, Esq.
Atomic Safety and Licensing Board John M. Frysiak, Esq.
Foley, Lardner, Hollabaugh and Jacobs Atomic Safety and Licensing Board 815 Connecticut Avenue, N. W.
U.S. Nuclear Regulatory Commission Washington, D. C.
20006 Washington, D. C.
20555 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals' Board Atomic Safety and Licensing Appeals Board U. S. Nuclear P.cgulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Dr. John H. Buck Michael C. Farrar Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and. Licensing Appeals Board Atomic Safety and Licensing Appeals Board!
U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Howard.K.. Shapar, Esq..
Executive Legal Director Jack R. Goldberg, Esq.
U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D. C.
20555 U S. Nuclear Regulatory Commission Wa_shington, D. C,.,2055_5_
Mr. Frank W. Karas, Chief
.Public Proceedings Branch Benjamin H. Vogler, Esq.
w Office of the Secretary Joseph Rutberg, Esq.
U. S. Nuclear Regulatory Commission Robert J. Verdisco, Esq.
Washington, D. C.
20555 Roy P. Les sy, Jr., Esq.
Office of the General Counsel Abraham Braitman, Esq.
Regulation Office of Antitrust and Indemnity U. S. Nuclear Regulatory Commission Wa' hington, D. C.
20555 U. S. Nuclear Regulatory Commission s
Washirigton, D. C.
20555 Melvin G. Berger, Esq.
Frank R. C1okey, Esq.
Joseph J. Saunders, Esq.
Special Assistant Attorney General Steven M. Charno, Esq.
Towne House Apartments, Room 219 David A. Leckie, Esq.
Harrisburg, Pennsylvania 17105 Janet R. Urban, Esq.
Ruth Greenspan Bell, Esq.
Edward A. Matto, Esq.
Antitrust Division Assistant Attorney General Department of Justice Chief, Antitrust Section Post Office Box 7513 30 East Broad Street, 15th floor Washington, D. C.
20044 Columbus, Ohio 43215 Karen H. Adkins, Esq.
Christopher R. ~Schraff, Esq.
Richard M. Firestone, Esq.-
Assistant Attorney General Assistant Attorneys General Environmental Law Section Antitrust Section 361 East Broad Street, Sth floor 30 East Broad Street, 15th floor Columbus, Ohio 43215 Columbus, Ohio 43215
~.
Russell J. Spetrino, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Michael M. Briley, Esq.
Ohio Edison Company Roger P. Klee, Esq.
47 North Main Street Fuller, Henry, Hodge & Snyder Akron, Ohio 44308 Post Office Box 2088 Toledo, Ohio 43604 John Lansdale, Jr., Esq.
Cox. Langford' & Brown James R. Edgerly, Esq.
21 Dupont Circle, N. W.
Secretary and General Counsel Washington, D. C.
20036 Pennsylvania Power Company One East Washington Street Richard A. Miller, Esq.
New Castle, Pennsylvania 16103 Vice President and General Counsel The Cleveland Electric Illuminating Co.
D.onald H. Haus er, Esq.
Post Office Box 5000 Victor A. Greenslade, Jr., Esq.
Cleveland, Ohio 44101 The Cleveland Electric Illuminating Co..
Post Office Box 5000 Gerald Charnoff, Esq.
Cleveland, Ohid 44101 Wm. Bradford Reynolds, Esq.
Shaw, Pittman, Potts & Trowbridge Thomas J. Munsch, Jr.., Esq.
910 Seventeenth Street, N. W.
General Attorney Washington, D. C.
20006 Duquesne Light Company 435 Sixth Av6nue David McNeill Olds, Esq.
Pittsburgh, Pennsylvania 15219 William S. Lerach, Esq.
g Reed, Smith, Shaw & McClay Joseph A. Rieser, Esq.
Post Office Box 2009 Reed, Smith, Shaw & McClay Pittsburgh, Pennsylvania 15230 1155 Fifteenth Street, N. W.
Washington, D. C.
20005 Terrence H. Benbow, Esq.
Winthrop, Stimson, Putnam & Roberts John C. Engle, President 40 Wall Street AMP-O, Inc.
New York, New York 10005 20 High Street Hamilton, Ohio 45012 Jon T. Brown, Esq.
Duncan, Brown, Weinberg & Palmer Atomic Safety and Licensing Board Panel 1700 Pennsylvania Avenue, N. W.
U. S. Nuclear Regulatory Commission Washington, D. C.
20006 Washington, D. C.
20555 Docketing and Service Section Atomic Safety and Licensing Appeal Office of the Secretary Board Panel U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Michael R. Gallagher, Esq.
Dr. Robert Lazo, Chairman Gallagher, Sharp, Norman, Fulton & Mollison Mr. Head, Member 630 Bulkley Building Mr. Goodhope, Member l
Clsveland, Ohio 44115 Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Motion and Brief of City of Cleveland has been made upon the Secretary of the United States Nuclear Regulatory Commission, Washington D. C. 20555, Attention Chief Docketing and Service Section, by mailing the original and twenty (20) copies, and on the following parties listed on the attachment hereto this 20th day of August, 1976, by depositing copies thereof in the United States mail, first class postage pre-paid, or by hand-delivery.
W James B. Davis Attorney for City of Cleveland, Ohio J
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