ML19329E219
| ML19329E219 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/06/1973 |
| From: | Bacon J CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.) |
| To: | |
| Shared Package | |
| ML19329E220 | List: |
| References | |
| NUDOCS 8006110637 | |
| Download: ML19329E219 (18) | |
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UNITED STATES OF AMERICA e
't. c b DEFORE Tl!E
. ATOMIC ENERGY COMMISSION
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x In the Matter of 4
t azi Docket Nos. 50-329A Consumers Power Company and 50-330A (Midland Units 1 and 2)
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Washington, D. C.
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- i Wednesday, June 6, 1973 i
Deposition of JUDD L. DACON, a witness of lawful age, taken on behalf of the Interveners in the above-entitled action, pending before the Atomic Energy Coramission, pursuant to Section 2.730 (c) of the Commission's Rules of Practice (" Rules"), 10 C.F.R. Part 2, before Susan Drake, a notary public in and for the District of Columbia, at 10:03 a.m. on Wednesday, June 6, 1973.
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O' That is Mr. Graphies?
A That is Mr. Graphies?
j Q
And you do so anyway?
A Yes.
., ~
Would you report to him on a periodic basis with O
regard to this file search?
Not necessarily on a periodic basis in' the sense A
that th'ere was a regular interval of time.
O But frequently?
I A
Yes.
I Q
About how often?
A I can't recall.
I believe it to have varied with the time.
O Okay.
Now,~there were a number of people reading the documents from the general files.
They had these an-notations, is that correct?
In going throng the documents they had the annotations to guide them?
/
A I believe so.
And these were prepared by an attorney or at Q
f least checked or assempled by an attorney, is that correct?
A Yes.
l When a person went to a file, did he read each l
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32
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't dscument?
A I'can't say.
i 4
Q If a person thought a document might be relevant, t
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did he read that document?
A I assume so, but as.I have'said, I was not 1
physically present.
Q Now, what would have been done uith the document
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which was thought'to be relevant?
A It would have been pulled from the file.
i Q
And then'what happened to it?
A Well, when a number of them had been gathered F
they would be sent to Washington counsel for review.
O So the documents were assembled in Jackson and
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ill sent directly to Washington counsel?
A I believe so.
l 0
And there was no additional review in Jackson?
i 1
A Beyond the file searcher's review?
[
Q Beyond the file searcher's review.
A-I believe that is so.
O Was there any occasion where it was called to your 1
attention or somebody elses attention to your knowledge i
t that there was question whether to send a particular document or documents?
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33 MR. WATSON:
Excuse me.
I am a little confused by the question, counsel.
Perhaps we can clear it up.
You mean after they had been extracted by a file searcher?
MR. JABLON :
That is correct.
TIIE WITNESS:
Would you road the question back?
(The question was read back.)
THE WITNESS:
I can't recall an instance of that.
MR. JABLON:
To your knowledge, were any documents withheld for reasons of legal privilege?
i MR. WATSON:
Withheld from what?
MR. JABLON :
Withhold from the Department of Justice interveners or the AEC.
tiR. WATSON:
You mean withheld by the company or withheld by Washington counsel?
MR. JABLON:
Either one.
Off the record.
MR. WATSON:
Back on the record.
THE WITNESS:
I am advised that Washington counsel did withhold some such documents but I don't know of any that were 50 withheld from the documents that were trans-mitted from the company to Washington counsel.
BY MR. JABLON:
0 Incidontally, before today were you aware of
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whether any documents were withheld because of legal l
privilege?
I may have been advised of it previously but I i
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didn't recall.
Do you know approximately how many documents were Q
4 withheld for this reason?
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A No.
Do you know if any documents wero' withheld because i
O they represented work papers?
Would you define the word "workpapers"?
I MR. WATSON:
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MR. J ADLON :
Work product.
j l
MR. WATSON:
Work product.
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Withheld by Washington counsel.
T11E WITNESS:
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' BY MR. JABLON :
i Well. I take it you have stated that Jackson Q
l counsel, if I can make the difference, did not withhold any' document on any ground of privilege or legal objection, is that correct?
A Not to my knowledge.
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Would you have known if they had?
Q l
A Not necessarily.
O Who would?
. MR. ' WATSON :
Objection.
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I BY MR. J ABLON :
rch?
Would it he the people making the sea 0
A Yes.
ld it be anybody Apart from casual conversation, wou Q
Who would know whether or not?
else?
MR. WATSON :
c DY MR. J ADLON :
t were Who would know whether or not documen s O
f legal privilege.
withheld in Jackson on grounds o searchers know?
Would anyone other than the file A
Q Yes.
Washington counsel might know.
l l
ds of A
f Were any documents withheld on groun Q
l personal privilege?
)
I am not aware of any.
l withhold on the grounds that l
A Were any documents Q
i ions?
they were part of current negot at h.
With whom?
MR. WATSON:
I am talking from Washington counsel MR. JABLON :
or Consumers Power company.
I:
No, negotiations with whom?
MR. WATSON:
l.
BY MR. JADLON :
With anybody.
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36 A
I believe that Washington counsel did withhold a document or documents relating to current negotiations.
Q And do you know whether this was determined before 4
or after the trial board's ruling excluding documents j
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concerning current negotiations from discovery?
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A I don't know.
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Q I may have asked this:wcrd any documents withheld l
e on grounds of personal privilege?
MR. WATSON:
You asked it.
Maybe it would be helpful if you would define personal privilege.
MR. JABLON:
Any kind of privilege whatsoever which Consumers Power company or the individual might raise
,i as a reason for not supplying the document?
THE WITNESS:
I said I didn't know of any and l
that is still my answer.
MR. JABLON :
Off the record.
I (Discussion held off the record.)
Y MR. JABLON :
Back on the record.
f DY MR. JABLON:
O Apart from grounds of non-responsiveness, do you know of any reason apart from those mentioned why any documents were withheld from the Department of Justice, the interveners, or the AEC: staff which came under the joint i
I l
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1 37 discovery request?
A Not to my knowledge.
O Would you Pnow?
A Not necessarily.
Q Before 10 o' clock this morning, have you discussed the matter with Washington counsel?
What matter are you referring,to?
MR. WATSON:
MR. JAD LON :
Whether any documents were withheld for any reason apart from grounds of non-responsiveness?
MR. WATSON:
Excuse me.
I want the opportunity to consult with him.
Off the record.
(Discussion held off the reco."d. )
MR. W7.TSON :
Back on the record.
j THE WITNESS:
The only one that comes to mind as a possible subject of discussion was the matter of withholding a document or documents relating'to current negotiations which could have been mentioned in the course of a con-g versation with Washington counsel.
I BY MR. JABLON:
g l
0 In the motion for order modifying procedural schedule which ye discussed previously, you state that at i
that time--by you I mean Consumers Power--states that at that time the applicant sent about 39,000 pages of documents 1
EM5me-
38 to Washington coudsel for review.
A Excuse me, what page are you reading from?
Q It.is on page 4.
The number references are.on page 4 and 5 and I'believe they state that in addition to -2,724 pages of documents that you sent 3000 pages to Washington' counsel for review, is that correct?
.A It stat'es on page 5 that to this point approximately 39,000 document pages have been stacked and transported to Washington counsel for review.
O Incidentally, do you know how that figure was found?
Did somebody count the pages?
A I believe that in the course of reproducing the documents a count or approximate count was kept.
Q
-IX) you know how many docurents were sent to
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Washington counsel in total?
How many pages?
\\
A I don't know for certain.
May I consult with counsel for a moment?
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Q Certainly.
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MR. JABLOII:
Off the record.
(Discussion held off the record.)
MR. JABLON:
Back on the record.
THE WITNESS:
I don't know the number.
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39 I
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BY MR. JADLON:
~
Q It would have 'been considerably more than' 39,'000
~
pages, would it not?
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A
'It would certainly have been more than 39,000.
~
pages.
I can't say exactly ~how many more.
O Can you give me an approximat$ magnitude not ng that the 39,000 figure came from before th'e first of the year and 'before the search 5f the district offices?
A No, I have stated that I can't give you a number.
Q Or an order of magnitude.' 'Here there a lot more?
MR. JABLON:
Let the record note that the witness is conferring with counsel.
THE WITNESS: ' To the best of my knowledge, it was the same order'of magnitude.
O BY MR. JADLON:/ So we are talking about approximately 80,000 documents, approximately?
'A No.
I meant by that it was probably only in the five figure range.
I can't even give you'an approximate number.
j i
O Ucre any documents returned to you?
Uere documents which were not supplied as part of the joint document request on grounds of "not being within it--
A Excuse me?
d
40 Q
I will rephrase it.
Did either you or the legal of fice in Jackson, Michigan, or anybody else in Jackson, s
Michigan, to your knowledge receive from your Washington counsel documents which they had roccived but which'were
~
subsequently determined either not to be within the scope of the joint document request or that were not supplied to the Department of Justice, interveners or the AEC regulatory staff for any reason?
A Not to my knowledge, j
?
O We have discussed the search of the general i
office files.
Were the procedures followed in the search of the division offices and area and region offices, the 4
vault, the tub vault, and any other repositories of files conducted in the same way?
I A
I believe in general that is true except with
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respect to the, well, what I have described as the area and region offices, and I think that was a combination of a search of some of those offices and a reliance on the result of that which I believe to have been totally negative and the representations of the persons in charge of the offices that they had no files that were relevant.
O Let's take Mr. Aymond as an example.
Did the attorneys who searched Mr. Aymond's personal files read t
4
43 O
Q Now, can you answer the original question?
A' There is probably more than one,c::planation.
(
I think the search turned up a fair number of duplicates and I 'think also that the fruits of the ' search were more all-inclusive than Washington counsel determined relevant I
or responsive to the requests.
And then I believe certain documents to have been withheld on grounds of privilege.
What ef' forts were made to avoid supplying duplicative Q
i documents?'
MR. WATSON:
I want to consult with my client.
THE WITNESS:
I think these were generally screened out at the level of Washington counsel's review'.
BY MR. JABLON:
Q Did you do that?
'A I believe that to be the case.
Now, if a file searcher was going ~ through a file and saw ten copies of the same report,of the identical report, I would think they would pull only one.
O Regarding items two and three, that is, that the fruits of the search may have been more all-inclusive than Washington counsel deemed relevant and that certain documents may have been withheld on grounds of privilege, were you consulted on these decisions, that is, to withh'olding a 1
l 9
44 i
document either because the fruits of the search were more all-inclusive or on the grounds of privilege.
A No.
Q Would it be, fair to cay that it is a surmise that that is the explanation.
A Yes.
O And to the best of your knculedge the documents were hold are now in the possession of Washington ' counsel, is that correct?
A That is correct.
Did the same people who scarched the general offices Q
search the division and other regional offices?
A Some of those people.
I think the division and region offices and area of fices were generally searched by the attorneys but one of the non-legal persons may also have i
participated in, that.
f.
Q Were there any instances where anybody who had searched the general offices was present at the search of
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any other office which happened to be searched?
Let me rephrase that, i
A Please l
Were there any instances where a file was searched Q
solely by personnel who were not engaged in the scarch of i
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54 i
e Q How about negotiations?
A-I don't know of any specific instructions on the point of negotiations.
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How about documents which are not finalized, a
l leg,al documents in terms of sales agreements, rate figures, this sort of thing.
Are their company policies to your knowledge of where and with whom such documents are to be filed?
A Not that I know of.
O Are there written insturctions or informal policies to non-headquarters offices on what types of documents they
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are to foruard to headquarters?'
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A Again, if there are, I don't know of them.
O Are there written or informal understandings on I
what kinds of documents they should keep in the non-headquarters offices?
4 A
Not that I am aware of.
MR. JABLON:
I have no more.
MR. DAbdAN:
I have just one really, only one i
I or two.
BY MR. BANNAN :
Q Mr! Dacon, would you say you are the appropriate of whom to inquire as to the scope and mechanics person t
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./-
l f
l 55 of the file search that was conducted pursuant to the joint I
document request?
THE WITNESS:
Off the record.
(Discussion held off the record) l 2
MR4 BANNON:
Back on the record.
THE WITNESS:
If by appropriate you mean the best to person to talk /about the day-to-day mechanics and scope, i
I would think the file searchers themselves probably not.
I As I have described to Mr. Jablon, my function 1,
would be.
was just generally supervisory.
MR. BANNON:
That is all.
BY MR. JABLON :
I am not sure we clarified this.
Were there any O
major problems which came to your attention apart from the one you mentioned of the mechanical acope of-Bonpiling the l
documents during the file search?
f I think the mechanics of getting it done A
No.
were the only real problem ones.
The interpretation of i
{
requests had been decided upon.
And that was decided between yourself, Washington O
counsel, perhaps others in the Jackson legal division and I,
other division officers as you described previously, is
. ~
that correct?
A Not necessarily officers.
I think I said there j
1 1
AFFIDAVIT DISTRICT'OF COLUMBIA,'SS:
Robert A. Jablon, being first duly sworn, deposes and says that he is an attorney for the Municipals of Coldwater, Grand Haven, Holland, Traverse City and Zeeland, the Michigan Municipal Electric Association, Northern Michigan Electric Cooperative, Inc.,
and the Wolverine Electric Cooperative, Inc. and that,as such he has signed the foregoing Request for Ruling on behalf of said parties; that he is authorized by them so to do; that he has read said Request and is familiar with the contents thereof; and that the matters and things therein set forth are true and correct to the best of his knowledge, information or belief.
$ d ' Y A f. l k Robert A. Jablon Subscribed and sworn to before me this 27th day of August, 1973.
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/ /hM'
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Notary Public APR 141976 My commission exp2.res on: