ML19329E210
| ML19329E210 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/06/1973 |
| From: | Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006110613 | |
| Download: ML19329E210 (4) | |
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i UNITED STATES OF AMERICA f'S BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of
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Docket Nos G 0-32M CONSUMERS POWER COMPANY
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and 50-330A (Midland Plant, Units 1 and 2)
)
APPLICANT'S RESPONSE TO INTERVENORS' " REQUEST FOR RULING" Pursuant to Section 2.730 (c) of the Commission's Rules of Practice, 10 C.F.R. Part 2, Applicant responds to the Request for Ruling filed by the Intervenors on August 27, 1973.
The Request seeks the Board's leave to depose Keith S.
Watson (or William W. Ross, "if he is more knowledgeable"),
counsel to Applicant in the instant proceeding.
We submit that the Request should be denied since it raises issues considered and rejected by the Board in its order of August 8, 1973, without advancing new consi derat'.ons supporting the re-lief sought.
Following Applicant's timely compliance with all outstanding discovery requests on April 2, 1973, the Inter-venors initiated a series of efforts designed to impeach the adequacy of its responses.
In orders dated April 6 and May 8, 1973, the Board denied motions seeking to compel Applicant to produce file search instructions from counsel and other infor-mation about the search.
In early June, pursuant to a sugges-tion by the Chairman during a conference call, the Intervenors deposed Judd Bacon -- the Company attorney who supervised the
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file search.
Several weeks later, the Intervenors' Motion of June 29 sought leave to inspect the files of Applicant's Washington counsel for she purposes of ascertaining why some documents contained therain were not supplied to opposing counsel.
Applicant's Answer of July 9, 1973, provided fur-ther details about the file search and compliance process not covered in Mr. Bacon's deposition.
The Intervenors d
replied to this pleading on July 20, 1973.
On August 8, 1973, the Board denied the Intervenors leave to inspect Applicant's counsel's files.
Now, the Intervenors propose to depose opposing counsel about thu adequacy of Applicant's discovery compli-ance process -- a matter that was resolved in the August 8 orde*.
No new evidence is presented in justification of tbis effort to re-open the matter, and all of the materi,als cited by the Intervenors were available to them long prior 1
to the August 8 order.
Thus, no showing has been made in
- support of the Intervenors' efforts to re-litigate an issue which has already been extensively litigated and definitively
.reso ved.
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The Board granted the Intervenors' motion to inspect docu-ments withheld by Applicant on claim of privilege. Appli-cant moved to reconsider this aspect of the order on August 21, 1973.
o s.
Although we deem the foregoing to be fully dis-positive, it should also be noted that the stated purpose of the Intervenors ' proposed depositions is to probe the
" basis" of opposing counsel's " judgment" concerning dis-covery requests (Request, p. 3).
Such an inquiry flies in the face of the Commission's Rules, which direct the Board to prevent " disclosure of the mental impressions, conclusions, opinions or legal theories of any attorney.
concerning the proceeding".
Section 2.740 (b) (2) of the Rules of Practice.
These Rules confirm the basic principles set forth in Hickman
- v. Taylor, 329 U.S.
495 (1947) which "made it plain that the
' work product' doctrine protected the party against discovery of information within it purview regardless of the method by which the information was sought".
4 Moore's Federal Practice,
- p.26-452 (1970 ed.).
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WHEREFORE, Applicant respectfully urges the Board to deny the Intervenors leave to pursue the depositions propo. sed in the Request for Ruling.
Respectfully submitted, Wm. Warfield Ross September 6, 1973 Keith S. Watson Of Counsel:
Wald, Harkrader & Ross 1320 19th Street, N. W.
Harold P. Graves, Esquire Washington, D. C.
20036 Consumers Power Company 212 West Michigan Avenue (212) 296-2121 Jackson, Michigan 49201
UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of
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Docket Nos. 50-329A CONSUMERS POWER COMPANY
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and 50-330A (Midland Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S RES-PONSE TO IN"ERVENORS ' " REQUEST FOR RULING", dated Septerrber 6,
1973, in the above-captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 6th day of September, 1973:
Jerome Garfinkel, Esq., Chairman Dr.
J.
V.
Leeds, Jr.
Atomic Sr.fety and Licensing Board P.
O. Box 941 Atomic Energy Commission Houston, Texas 77001 Washington, D.
C.
20545 William T.
Clabault, Esq.
Hugh K.
Clark, Esq.
Joseph J.
Saunders, Esq.
P.
O. Box 127A
' David A. Leckie, Esq.
Kennedyville, Maryland 21645 Public Counsel Section Antitrust Division James Carl Pollock, Esquire Department of Justice 2 60 0 Virginia Avenue, N. W.
Washington, D.
C.
20530 Washington, D.
C.
20037 Joseph,Rutherg, Jr., Esq.
Antitrust Counsel for AEC Regulatory Staff Atomic Energy Commission Washington, D.
C.
20545 Wallace E. Brand, Esq.
Antitrust Public Counsel Section P.
O. Box 7513 Washington, D.
C.
20044 Atomic Safety and Licensing Board Atomic Energy Commission Washington, D.
C.
20545 Keith S. Watson