ML19329D082
| ML19329D082 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/03/1976 |
| From: | Gallagher M SQUIRE, SANDERS & DEMPSEY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19329D081 | List: |
| References | |
| NUDOCS 8002240076 | |
| Download: ML19329D082 (13) | |
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%\\&k UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licens'ing Appeal Board In The Matter Of THE TOLEDO EDISON COMPANY and
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Docket Nos.'50 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 COMPANY,
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Docket Nos. 50-440A et al.
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50-441A (Perry Nuclear Power Plant, Units 1 and 2)
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MEMORANDUM OF SQUIRE, SANDERS AND DEMPSEY IN OPPOSITION TO CITY'S MOTION TO COMPEL DISCOVERY As a preliminary matter, it should be noted that recent developments in this litigation have had a significant impact upon the City's Motion to Compel Discovery. Subsequent to the filing of the City's Motion to Compel, SS&D filed a Motion to Dismiss the Disqualification Proceedings pending before the NRC. As a consequence of SS&D's motion, a conference call was held on September 1,1976, involving the Chairman of the Special Board and counsel for SS&D, the City, the Staff, and the Applicants before the NRC.
During the course of this conversation, it was determined that further dis-covery would be suspended until the Special Board rules upon the merits of SS&D's Motion to Dismiss.
Even though further discovery has been temporarily stayed by agreement i
of the parties and order of the Board, it is appropriate for SS&D to respond at the present time to the City's Motion to Compel Discovery. Of course, a 8002z40B %
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ruling on the merits of the City's Motion to Compel will be unnecessary if SS&D's Motion to Dismiss the Disqualification Proceedings is granted by the Special Board.
The City's Motion to Compel Discovery is directed toward answers and objections to interrogatories which were filed by SS&D on August 6,1976 and supplemented on August 18, 1976. The motion is broad in its scope, and as it discusses each interrogatory filed by the City and each of SS&D's i
answers and objections, a point-by-point response is warranted.
Interrogatory No. 1 As the City suggests in its Motion to Compel, SS&D did not fully iden-tify the files requested in the City's Interrogatory No.1 until August 18, 1976. However, the City was advised on August 6, 1976, that a compilation of the files requested was in the process of preparation, and an examination of the list of files identified in SS&D's supplemental response to the inter-rogatory demonstrates the reason for SS&D's delay in responding. The files identified in SS&D's supplemental response are embodied in two separate appendices which encompass a total of seven pages.
At the present time, the City has been supplied with identification of all files requested in Interrogatory 1.
No order concerning the inspection of the' files is appropriate at the present time, as discovery has been tem-porarily stayed.
If discovery is resumed in the future, arrangements for the inspection of the files can be amicably made between SS&D and the City without the necessity of an order of the Board.
Interrogatory No. 2 l
Many.of the comments made in the preceding paragraphs are equally ap-plicable to SS&D's response and supplemental response to Interrogatory No. 2.
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i The files identified in the supplemental response are contained in three appendices which total six pages. All files requested have been identified.
An order with respect to their inspection would be inappropriate while dis-covery is suspended and will be unnecessary if discovery is resumed in the future.
Interrogatory No. 3 SS&D's objection to Interrogatory 3 is twofold. First, the interroga-tory is so overly broad that it is unreasonably burdensome on SS&D. The terms of the interrogatory require SS&D to examine each file of each of its clients originating in the past eleven years in order to determine whether the file " refers," for example, to "any City Assistant Director of Law."
The interrogatory is impermissibly burdensome (1) because f.t requires SS&D
't to examine every one of its files and (2) because it requires SS&D to search for a large and varied number of items and references.
In addition to its overly broad scope, Interrogatory No. 3 is objec-tionable because it requests SS&D to disclose privileged information. The City has attempted similar discovery on many previous occasions with respect to CEI files maintained by SS&D. Interrogatory No. 3 is objectionable for the same reason that the City's earlier attempts to discover CEI files were unsuccessIul -- the materials contained in the files are privileged.
The City's Motion to Compel protests that SS&D has not stated the pre-cise basis for its claim of privilege. By this time it should be apparent that the privilege being asserted by SS&D is the attorney-client privilege, a privilege which is recognized for the benefit of the client, which is held by the client, and which cannot be waived by the attorney. In the ab-sence of a waiver of privilege by an SS&D client, disclosure of the contents of client files in the custody of SS&D cannot be compelled. -_, _
Interrogatory No. 4 SS&D's answer to Interrogatory 4 discloses that all of the documents requested inr the City in the interrogatory are contained in the files iden-tified in SS&D's supplemental response to Interrogatory 1.
In the event that further discovery in these proceedings is warranted, arrangements for inspection of the files can be made without the necessity of an order of the Board.
Interrogatory No. 5 SS&D has identified all documents requested in Interrogatory No. 5.
As is true of the documents identified in all other interrogatories, in-spection of these documents can bc accomplished without the necessity of an order of the Board if discovery is resumed.
Interrogatory No. 6 The opinions and memoranda requested in Interrogatory 6 are privileged.
The Federal District Court for the Northern District of Ohio and the NRC itself have repeatedly and consistently upheld the contention that the attorney-client privilege precludes SS&D's disclosure of documents prepared by SS&D for CEI in the absence of a waiver of privilege by CEI. CEI has not waived the privilege in the past, and the City does not suggest that it has elicited a waiver from CEI at the present time. All items requested in Interrogatory 6 are beyond the permissible scope of discovery. This issue has been determined.
Interrogatory No. 7 It has been determined that the documents to which the City refers in Interrogatory 7 are privileged and that disclosure with respect to them
need not be made to the City. The privilege asserted, of course, is the attorney-client privilege.
Interrogatory No. 8 SS&D has supplied the City with all documents upon which it intends to rely in the presentation of its case.
It is abundantly clear, however, that the character of the evidence presented by the City in its case in chief will, to a significant extent, determine the nature of the proof which SS&D will be required to offer to the Special Board.
As SS&D is without knowledge of all of the nuances of the City's case, it is impossible for SS&D to indicate conclusively all documents which it may require in order to properly present its defense. SS&D does not plan at the present time to rely upon additional documentary evidence, but the City may adopt a posture at the evidentiary hearing which will require SS&D to do so.
The City cannot expect clair-voyance of SS&D.
Interrogatory No. 9 The comments contained in the preceding paragraph are equally applicable to SS&D's answer to Interrogatory No. 9.
While SS&D does not presently anti-cipate a need to call additional witnesses at the evidentiary hearing, evi-dence presented by the City may require that additional witnesses be called as part of SS&D's case.
Interrogatory No. 10 The comment contained in the City's Motion to Compel with respect to Interrogatory 10 is a curious one.
The City does not ask the Board to order an additional response to the interrogatory. Neither does the City contend that SS&D has failed to identify documents requested by the interrogatory.
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Rather, the City's comment is essentially argument which is irrelevant to any issue of the Motion to Compel Discovery. The comment is inappropriate and should be disregarded by the Special Board.
CONCLUSION With respect to the City's request that answers to certain interroga-tories be compelled, SS&D respectfully submits that its answers and objec-tions are proper in all respects. With respect to the City's request that the Special Board order inspection of documents identified, SS&D suggests that an order of the Board will not be necessary to effect inspection of the items if discovery is resumed. In that event, inspection of the docu-ments identified in SS&D's answers can be accomplished through agreement of the parties.
SS&D respectfully submits that the City's Motion to Compel Discovery is not warranted in the circumstances of the litigation at bar and respect-fully prays that the motion be denied.
Respectfully submitted,
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MICHAEL R. GALLAGHER Attorney for Squire, Sa ers & Dempsey 630 Bulkley Building Cleveland, Ohio 44115 (216-241-5310)
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SERVICE Copies of the foregoing Memorandum Of Squire, Sanders and Dempsey In Opposition To City's Motion To Compel Discovery have been mailed regular United States Mail, First Class, to Vincent C. Campanella, Director of Law, City of Cleveland, 213 City Hall, Cleveland, Ohio; Robert D. Hart, First Assistnat, Director of Law, City of Cleveland, 213 City Hall, Cleveland, Ohio; James B. Davis, Esq., Special Counsel, Hahn, Loeser, Freedheim, Dean and Wellman, National City - East Sixth Building, Cleveland, Ohio 44114; in addition, the original and twenty (20) copies of the foregoing were mailed to the Secretary, Nuclear Regulatory Commission, Washington, D.C.
20555, Attn: Chief, Docketing and Service Section; and one copy to each of the persons listed on the attached Service List this df Y
-- day of September, 1976.
D Gnhat MICHAEL R. GALLAGIJER 9
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SERVICE LIST Vincent C. Campanella, Esq.
Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Robert D. Hart, Esq.
First Assistant. Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 James B. Davis, Esq.
Special Counsel Hahn, Loesser, Freedheim, Dean & Wellman National City - E. 6th Building Cleveland, Ohio 44114 William J. Kerner, Esq.
Office of the General Attorney The Cleveland Electric lliuminating Co.
P. O. Box 5000 Cleveland, Ohio 44101 Douglas V. Rigler, Esq.
Chairman Atomic-Safety & Licensing Board Panel Foley, Lardner, Hollabaugh & Jacobs 815 Connecticut Avenue, N.W.
Washington, D.C.
Ivan W. Smith, Esq.
Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John M. Frysiak, Esq.
Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Gerald Charnoff, Esq.
Wm. Bradford Reynolds, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M. Street, N.W.
Washington, D.C.
20036
'Mr. Chase R. Stephens Docketing & Service Section U.S. Nuclear Regulatory Commission 1717 H Street, N.W.
Washington, D.C.
20555
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.J Eonald H. Hauser, Esq.
Corporate Solicitor
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The Cleveland Electric Illuminating Coupany Post Office Box 5000 Cleveland, Ohio 44101 John Lansdale, Jr., Esq.
Cox, Langford & Brown 21 Dupont circle, N.U.
Washington, D. C. 20036 Reuben Coldberg, Esq.
David C. Hjelmfelt, Esq.
1700 Pennsylvania Avenue, N.W.
Suite 550 Washington, D. C. 20006 Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555
.r Dr. John H. Buck Dr. Lawrence K. Quarles Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Commission Washington, D._C. 20555
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Howard K. Shapar, Esq.
Executive Legal Director U.S. Nuclear Regulatory Coc:nission Washington, D. C. 20555 Mr. Frank W. Karas, Chief Public Proceedings Branch Office of the Secretary U.S. Nuclear Regulatory Cocaission Unshington, D. C. 20555 Abraham Braitman, Esq.
Office of Antitrust & Indemnity U.S. Nucicar Regulatory Connission Uashington, D. C. 20555 Jerome E. Sharfman, Esq.
Atomic Safety & Licensing Appeals Board i
U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Frank R. Clokey, Esq.
Special Assistant Attorney General Towna House Apartments, Room 219 Harrisburg, Pennsylvania 17105 Edward A. Matto, Esq.
Assistant Attorney General Chief, Antitrust Section 30 East Broad Street,15th Floor s.
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i Columbus, Ohio 43215-Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Commission Washington, D. C. 20555
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Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Cocnission Washington, D. C. 20555
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"<a Andrew F. Popper, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Benjamin H. Vogler, Esq.
Joseph Rutberg, Esq.
Robert J. Verdisco, Esq.
Roy P. Lessy, Jr., Esq.
Office of the General Counsel Regulation U.S. Nuclear Regulatory Com::sission Uashington, D. C. 20555 Helvin C. Berger, Esq..
Joseph J. Saunders, Esq.
Steven M. Charno, Esq.
David A. Leckie, Esq.
Janet R. Urban, Esq. 3 Ruth Greenspan Bell, Esq.
Antitrust Division Department of Justice Post Office Bon 7513
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Washington, D. C. 20044 9
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I Christophe,r R. Schraff, Esq.
. Assistant Attorneys General Environmental Law Section 361 East Broad Street, 8th Floor Columbus, Ohio 43215 Thomas 'J. Munsch, Jr., Esq..
General Attorney Duquesne Light Company 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 Joseph Rieser, Esq.
Reed, Smith, Shaw & McClay 1
Suite 440 1155 Fifteenth Street, H. W.
Washington, D. C. 20005 Terrance L Benbow, Esq.
Winthrop, Stimson, Putnam & Roberts 40 Wall Street New York, New York 10005 Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
l, Duncan, Brown, Weinberg & Palmer 1700 Pennsylvania Avenue, u.U.
Washington, D. C. 20006 Robert P. Mone, Esq.
George, Greek, King, McMahon & McConnaughey Colunbus Center 100 East Broad Street Columbus, Ohio 43215 David ItcNeill Olds, Esq.
John McN. Cramer, Esq.
Uilliam S. Lerach, Esq.
Reed, Smith, Shaw & McClay Post Office Box 2009 Pittsburgh, Pennsylvania'15230 OO e **
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I John C. Engle, President A22-0 Inc.
, Municipal Building 20 High Street Hamilton, Ohio 45012 Victor F. Greenslade, Jr., Esq.
Principal Staff Counsel The Cleypland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 Lee A. Rau, Esq.
Joseph A. Rieser, Jr., E.sq.
Reed, Smith, Shaw & McClay
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Suite 404 Madisoh Building Washington, D. C. 20005' Leslie Henry, Esq.
111chael M. Briley, Esq.
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Roger P. F2ce, Esq.
Fuller, Henry, Hodge & Snyder 300 Madison Avenue Toledo, Ohio 43604
'.. Pennsylvania Power. Company
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One East Washington -Street -
New Castle, Pennsylvania 15103 Eliza'beth S.-howers, Esq.
Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory;C' mmission o
Washington, D. C.
20555
. Edward Luton, Esq., Member Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commissioh Washington, D.C.
20555 3
Thomas W. Reilly, Esq., Member Atomic Safety & Licensing Board U.S. Nuclear Regulatory Connission Washington, D. C.
20555 s
Secretary 3
U. S. Nuclear Regulatory Commission Washington, D. C. 20555 l
Attn: Chief, Docketing and Service Section
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Robert M. Lazo, Esq.
Chairman Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Andrew C. Goodhope, Esq.
Member Atomic Safety & Licensing Board 3320 Estelle Terrace Wheaton, Maryland 20906 Daniel M. Head, Esq.
Member Atomic Safetyi ! Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
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