ML19329D103
| ML19329D103 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 06/23/1976 |
| From: | Campanella V, Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002240093 | |
| Download: ML19329D103 (10) | |
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UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION Before The Atomic Safety and Licensing Board In the Matter of
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The Toledo Edison Company and
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Docket Nos. 50-346A The Cleveland Electric Illuminating
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~ 50-500A
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 8c 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 Plant, Units 1 and 2) )
MOTION OF CITY OF CLEVELAND TO REOPEN DISCOVERY On August 26, 1974, the City of Cleveland (City) filed its request for the production of documents by The Cleveland Electric Illuminating Company (CEI). CEI filed certain objections and made certain claims of privilege which were upheld. Among the grounds for objection which were upheld by the Board in its October 15, 1974 Order were claims based upon the Noe rr-Pennington doctrine. Since the objections were upheld and claims of privilege sustained evidence has been offered in these proceeding which makes it appropriate for the Board to reconsider its prior rulings. Accord-ingly the City requests the Board to reopen discovery.
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Attorney-Client Privilege The attorney-client privilege is a creature of policy, designed to further the socially desirable objective of encouraging clients to be frank and candid in their consultations with their attorneys concerning legal matte r s.
The overriding interest in preventing the perpetration of crime, fraud, or other illegality requires that the privilege's protection not be made available to communications made by a client engaged in such schemes and during the course thereof. United States v. Rosenstein, 474 F. 2d 705 (2nd Cir. 1973) (tax evasion); United States v. Shewfelt. 455 F. 2d 836 (9th Cir. 1972) (mail fraud); United States v. Billingsley, 440 F.2d 823 (7th Cir.
1971) (same); Wigmore, $ 2298, at 572-573. Mr. Justice Cardozo gave a persuasive rationale for this limitation on the scope of the privilege in Clark v. United States, 289 U.S.1,15 (1933):
A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.
Dean Wigmore argues persuasively that the rationale of the crime or fraud exception to the attorney-client privilege requires that the privilege's pro-tection be denied not just to communications in the course of a crime or civil fraud, but to any communication in the course of any plan "to defy the law and oust another person of his rights, whatever the precise nature of those rights may be."
Wigmore, $2298, at 577 The E2venth Circuit has adopted the substance of Wigmore's analysis in formulating its rule that
~ "a client may not claim the privilege where, as here, he seeks legal assis-tance for illegal ends." United States v. Billingsley, 440 F. 2d 823, 827 (7th Cir. 1971). In order to strip the privilege's protection from such a communication, a prima facie showing, independent of the communication, establishing that it was made in the course of perpetrating a crime, or fraud, or seeking other illegal ends, is sufficient. United States v. Shewfelt, supra; Clark v. United States, supra. Moreover, a previously insufficient showing that the privilege was used for illegal ends can be supplemented during the course of the proceedings, and the court can order production of the documents at any point at which it becomes satisfied that a prima facie showing has been made. Natta v. Zietz, 418 F. 2d 633 (7th Cir. 1969).
Application of this principle to the present lawsuit requires little elaboration. City has alleged that CEI alone and by conspiring willi others has violated Sections 1 and 2 of the Sherman Act. If it appears that com-munications between CEI's control group and its attorneys were in furtherance of a plan to violate Sherman Act Sections 1 and 2 any privilege which may have attached to such communications is lost, and the substance of such communications must be immediately disclosed even if those communi-cations were previously found privileged in this action.
Since the Special Master's ruling on claims of privilege this Board has on two occasions considered whether a orima facie showing of conspiracy 1/
had been proved.-
On each occasion the Board has found that a g;ma facie 1/ Ruling of the Board on Applicant's Rule 105 Motion, and Ruling of the Board on Applicant's Motion to Dismiss all Charges.
. case of conspiracy to violate the antitrust laws or to act in a manner in-consistent with those laws had been proved. Accordingly City believes that the documents previously found entitled to the attorney-client privilege should be reexamined.
Noe rr-Pennington During the course of discovery Applicants and particularly CEI relied upon Noerr-Pennington doctrine as a basis for objecting to many of the City's document requests. Those objections were generally sustained on grounds of relevance. CEI has now introduced many documents which demonstrate the relevance of the matters in which the City sought discovery.
Among the documents introduced by CEI are various studies made by or on behalf of the Cleveland City Council. (Applicants 207, 208, 209, 210, 211). CEI has also introduced copies of ordinances introduced in the Cleveland City Council (Applicants 203, 204). A report of the Public Utilities Committee of the Cleveland City Council was introduced by Applicant (Applicants 136).
In addition CEI has marked as Applicants 213 an affidavit by Mr. Gaul re-garding testimony of Mr. Kudukis before the City Council. In light of
- Applicants introduction of and marking of numerous er.hibits pertaining activities of the City Council, City believes the relevance of many of its discovery requests is now apparent.
Applicants have questioned the legality of municipalities participating as joint owners in nuclear facilties. City believes it is now clear that its discovery request 16(d) is relevant.
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. In light of the documents introduced by Applicants City believes the relevance of its document requests number 58, 70, 72, 74, 82, 85, and 86 has been demonstrated.
With respect to document request number 70, which among other things seeks documents relating to CEI's attempts to influence the budget of the City Light System with respect to a proposed interconnection with the Painesville and Orrville municipal systems, City would note that CEI has now offered the testimony of Mr. Caruso regarding the feasibility of construction of trans-mission lines by the City. In the Board's Order of November 19,1975, the Board stated that upon a showing by the City that it must rely upon CEI's transmission facilities and upon CEI's effort to rebut that evidence City would be entitled to reopen discovery with respect to its document requests number 16(d), 16(f), 16(g), 18(a), 58, 5 9, 70, 81, 87 and 88.
Since the Board's November 19, 1975 order evidence showing the need of the City for access to CEI's transmission has been introduced through Mr. Mayben (C-161), witness Hinchee (Tr. 2584-95). Applicants have offered Mr. Caruso's testimony (Applicants 162). There is evidence that CEI offered to interconnect.with the City to forestall an interconnection between the City of Orrville and Painesville (Tr. 10,864). Further there is evidence that Mr. Howley, Vice President and General Counsel for CEI, made Christmas gifts to members of the Cleveland City Council (Tr. 10. S56). Acc ordingly, City requests that it be allowed to obtain discovery in accordance with the Board's Order of November 19, 1975.
. Finally the City would ask to reopen discovery to obtain from CEI i
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all documents-relating to Applicants 204 which is an ordinance introduced in the Cleveland City Council which would create a Power Supply Authority with power to acquire certain facilities owned by CEI. Discovery could not have been had previously because the ordiance was introduced in May of 1976 and was not made an exhibit in these proceedings until June 18, 1976.
WHEREFORE, for the foregoing reasons the City of Cleveland prays that discovery be reopened.
Respectfully submitted, Ac
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Reuben Goldberg David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Telephone (202) 659-2333 Vincent C. Campanella Director of Law Robert D. Hart First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Telephone (216) 694-2737 Attorneys for City of Cleveland, Ohio June 23,1976 2_/ The definition of documents included in City's First Request For Documents 26, 1974, is incorporated herein.
dated August
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing " Motion Of City Of Cleveland To Reopen Discovery" has been made on the following parties listed on the attachment hereto this 23rd day of June, 1976, by depositing copiesthereof in the United States mail, first class postage prepaid.
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YiLJY Reuben Goldberg f Attachment i
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ATTACHMENT Douglas V. Rigler, Esq. Chairman Christopher R. Schraff, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Foley, Lardner, Hollabaugh and Jacobs Environmental Law Section 815 Connecticut Avenue, N. W.
361 East Broad Street, 8th floor Washington, D. C.
20006 Columbus, Ohio 43215 Alan S. Rosenthal, Chairman Ivan.W. Smith, Esq.
Atomic Safety and Licensing Appeal Board John M. Frysiak, Esq.
U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Richard S. Salzman Jerome E. Sharfman Andrew C. Goodhope, Esq.
Atomic Safety and Licensing Appeal Board 3320 Estelle Terrace U.S. Nuclear Regulatory Commission Wheaton, Maryland 20906 Washington, D. C.
20555 Robert Li. Lazo, Esq., Chairman Howard K. Shapar, Esq.
Atomic Safety and Licensing Board Panel Executive Legal Director U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Daniel M. Head, Esq., Member Mr. Frank W. Karas, Chief Atomic Safety and Licensing Board Panel Public Proceedings Branch U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Panel Abraham Braitman, Esq.
U. S. Nuclear Regulatory Commission Office of Antitrust and Indemnity Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Joseph Rutberg, Esq.
Jack R. Goldberg, Esq.
Frank R. C1okey, Esq.
Office of the Executive Legal Director Special Assistant Attorney General U. S. Nuclear Regulatory Commission Towne House Apartments, Room 219 Washington, D. C.
20555 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.
Edward A. Matto, Esq.
Robert J. Verdisco, Esq.
Assistant Attorney General Roy P. Les sy, Jr., Esq.
Chief, Antitrust Section Office of the General Counsel 30 East Broad Street, 15th floor Regulation Columbus, Ohio 43215 U. S. Nuclear Regulatory Commission Washington, D. C.
20555
. ATTACHMENT (continued)
Melvin G. Berger, Esq.
David McNeill Olds, Esq.
Joseph J. Saunders, Esq.
William S. Lerach, Esq.
Steven M. Charno, Esq.
Reed, Smith, Shaw & McClay David A. Leckie, Esq.
Post Office Box 2009 Janet R. Urban, Esq.
Pittsburgh, Pennsylvania 15230 Antitrust Division Terrence H. Benbow, Esq.
Department of Justice Post Office Box 7513 Steven B. Peri, Esq.
Washington, D. C.
20044 Winthrop, Stimson, Putnam & Roberts 40 Wall Street Karen H. Adkins, Esq.
New York, New York 10005 Richard M. Firestone, Esq.
Assistant Attorneys General Alan P. Buchmann, Esq.
Antitrust Section Squire, Sanders & Dempsey 30 East Broad Street, 15th floor 1800 Union Commerce Building Columbus, Ohio 43215 Cleveland, Ohio 44115 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.
Donald H. Hauser, 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, Ohio 44101 Wm. Bradford Reynolds, Esq.
Robert E. Zahler, Esq.
Thomas J. Muns ch, Jr., Esq.
Jay H. Bez stein, Esq.
General Attorney Shaw, Pittman, Potts & Trowbridge Duquesne Light Company 1800 M Street, N. W.
435 Sixth Avenue Washington, D. C.
20036 Pittsburgh, Pennsylvania 15219 Atomic Safety and Licensing Board Panel Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.
20555 U. S. Nuclear Regulatory Commission Washington, D. C.
20555
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ATTACHMENT (continued)
Joseph A. Rieser, Esq.
Reed, Srnith, Shaw & McClay 1155 Fifteenth Street, N. W.
Washington, D. C.
20005 John C. Engle, President AMP-O, Inc.
- 20 High Street Hamilton, Ohio 45012 Michael R. Gallagher, Esq.
630 Bulkley Building 1501 Euclid Cleveland, Ohio 44115
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