ML19329E460
| ML19329E460 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/18/1973 |
| From: | Joseph E Pollock DAVERMAN ASSOCIATES, INC., SPIEGEL & MCDIARMID |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006160264 | |
| Download: ML19329E460 (16) | |
Text
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ss UILITED STATES OF AMCh1CA BEFORE THE ATOMIC ENERGY CO01ISSION In 'the flatter of
)
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CONSUtiCRS PChTR COMPANY
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Docket Nos. f-32 %
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50-330A Midland Plant (Units 1 and 2)
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h MOTION TO QUASH OR CONDITION SUBPOENA DUCES TECUM OF TNIS DOCUMENT CONTAIN DAVT: RIP.H ASSOCIATES, INC.
POOR QUAL.lTY PAGES TO:
Jerome Garfinhol, Esq., Chairman Atomic Safety and Licensing Board Purnuant to 92.720 (f) of the Coia aission 's Rulce of Practico, 10 C.F.R. Part 2, Dnverman Associates, Inc., through their attorney, respectfully request the Chair:aan, or the Coramission to quash the subpoena duces tecum issued on behalf of Consta?. ors Power Company.
In the alternativo, petitioncr requests the Chairman, or the Commission, to condition the denial of this subpoona un'. css and until Consumers Power Company agrecs to fully reimburso Mr. Daverman for the time and e :penses involved in conducting a completc file search, compiling documents and data, and furnishing copies of documents which the Company requests by the subpoena duces tecum.
As reasons for these requests, we state as follows:
1.
A subpoena ducer, tecum was filed by the attorncys for Connumers Power Company on August 10, 1973 in which Daverman Associater, Inc. was requested to conduct a file scarch and supply a completc 8006160 M
I linting of all reportn, studies and documents relating to al.1 munl-s cipals and cooperativen located within the lovcr poninsula of the S ta te of Michigan f rom January 1, 1960 to date.
The proposed date for completion was September 1, 1973.
Upon roccipt of this subpoena, Mr. Robert J. Daverman initiated letters to cach of the municipals and cooperatives which the Daverman firm had reprocented as consul-tants during this c:-: tensive time period, roguenting from them their advice on v.hether or not relief frcm the subpoena should be recus. iced.
Hy Ang"7! 20, 1973, replien froci these clients indicated thc,t o' : -
j ec t i onr. could not bn rais ed e:: cept for matcrials.thich could r2..r-Le iduntificd as crh product involving the Midland case hofore the Atomic I'ncrgy Cor ni r sion, the Consumers Power Company Rato Case, E-7003, befora the rederal Po'. cr Commission, an:i any protected ma t eria lc involving current negotiations betwcon the Michig3.n *. uni-cipals and Cooperative Power Pool (MMCPP) and Con amers Power Com-pany for a neu interconnection contract.
2.
In the meantime, the Chairman had directed counsel for Consumors Powcr Company to contact Mr. Daverman and ascertain the methods by which the discovery requests could be made.
Concurrently, Mr. Daverman had advised the Chairman that he would permit repre-sentatives from the Company frec access to the Daverman files c:: cept for those limited areas deemed to be protected.
3.
On or about August 21st or 22nd, Dr. Joseph Paco of,
,.....eae*
N.ttional Economic Rencarch Annociaten (NERA) had discunned by telephone with Mr. Daverman the extent and nature of the data and documents to be supplied.
On August 22, 1973, the undersigned re-ceivet" a call from Mr. Daverman requesting Sat he represent Daverman Associates in this proceeding.
During this same phone call, Mr. Daverman discusced at length, with the undersigned, the ground rules established with Dr. Pace.
As a result a letter dated August 22, 1973, wac written by counsel to Mr. Daverman, copic to the ptrtian, dcocribing the methods of compiling, pro-duci:- and L rci r e m i. t h i n, the dat-and dc: un. >nte recuested by D;..
Pace.
4.
As a result of the above prepcacd agreement, Mr. D,ver:an began the proceccing, sonrching and compiling, furnishing initially a complete lint of all of the rtudloc prepared by Davern n Asco-ciates, a partial group of documents as rectosted by Dr. Pace hich j
was delivered to Grand Rapids ccansel for Consumers Power Company i
on August 31, 1973, another group of documents requested by Dr.
Pace was delivered to the Grand Rapido counccl on September 7,
- 1973, and the final group completing the accument and data recuests was to have been delivered to the same law firm on Monday, Septembcr 10, 1973. This 'rould have completed the scarch reauested by Dr. Pace in timely fashion and in fact in advance of the date r%nignnled by Mr.
Daverman in hic diccucsions with Dr. Pacc. _.
5.
At the prehearing conference on September 7, 1973, cou:ir.e i for Consumern Powcr Company handed counsel for Davoi...an Associa tes letter to which van attached a preliminary list of studien and re-a portn renuest od to be furnished.
Fe eannot state at this time to what extent thic extensive list comports with the list recuested of rar. Daverman by Dr. Pace, nor can we accertain how much time will be rersuired if an additional file search may be reauired It is obvioun, h r> reve r, that unlesr the 1.ict is identical to that rc~t s t : '
by Dr. Pr.c c chich 1.r alrv.:.' t: :cn ten cor;;ia~ c'cyc to ccrpile,r.r t
, a u.1 d b r c. u :. r ed c.o con i. 2 t s LFa production of the he
.t:
a_
6.
It munt ho cletr' undcratoed that the work perforr.'d Davc.rn,n A 3:,0cR L e u, at the rc:O:s t of Concum7rs Pc'.rcr Compa 'cr, is precincl*f the kind of work th:.s firm ccnducts as engineering con-sultrntr.
It :. s i n c o r e ci '. ~.b i c,
'c. ore cuch a den nnC re~uired c:':te n-sive ti:r.o and expence to produce,that the person requesting the ef fort should not be recuired to pay the regular fees and expensas involved.
This is particularly true vihere the work performed could i
have been done by the recuesting party.
Mr. Daverman offered his files to Consumers Power Company.
Those of us who hr.ve had the opportunity to see the extensivo operations and personnel available the Compan", 's Grand Rapids office durinc, the depc:<itionc of in-at tervenorc and non-pa;;ty witnancos are well aware that adecuato ncr-scnnel were available to go through the Daverman files and conduct. ~... -._.. -.
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the nearch.
This wa:. the finding of a cano directly in pai:::
Nov.ih v.
Genera l 1: 1c et ric, 10 Fod.
R.
Serv. 2nd 4 56. 31, Ca:..
2 (S.D. N.Y. 7th Cir.,
1967) where the court conditioned it: q rc' on a similar recuent for documents from a non-pa,';y to the pro-cocdingn on p tyraent by the party seching the subpoena of the c: t of the record search.
In imposing the condition, the court rul"d that:
"A subpocn:. duces tccum does not recuire this cotl.
(uenrehinq of filen and compilation of documentnT to be ps form : I n a w i t u m '..
It re"ui rer only L!. I the docic: u t r, b.-
produc d."
Div.. rnn ' 6c r ocin t<:n in not a party to these procccdings. Mr.
D'-
offm:nd to produce hic files, and <cac recinented to sonrch and cc: -
pile the document-by Consu:.: rc Power Company.
Tho Ecard shou.
ccadition the grant of the subpoenn on th" payment of the cc: te of the file scarch and compilation of documents and 0 ta by Consu ers Power Company.
This is particularly appropriate since the work hic been virtually completed and the time and expense has already been incurred, at the expense of other clients' <ork which could have
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been performed by thene con::ultants.
7.
Me are considerably disturbed by the lateness of this suLpoena and the reculting impact of the time and effort recuired to produce data and docunentc within an extremely short time-frar'.
Thuc it was necoccar'y to disrupt virtually the entire Daverman organi:'ation in order to fulfill the extcncive requests within
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See Appendi:: A atte.uhed.
a short period of time rather than by an orderly procedure had Counnel the subpoena been initiated early in the discovery period.
for Consumers Power Compan" has stated that one of the reasonc for the delay was that they were n=:L aware that many of the report:
and studies had not been furnished by the parties and non-partien.
We find this reasonina difficult to justify for several reasons, annnu th a.:
a.
The date of application for the subpoene ' as Augu:.L 10, 1973.
The desonitican of tho i n Lc. "n:te r.
and n o r.
'-
- di?..ot b: gin unt>1 Auju:t 13, 1972, so that anf of the *:tudic:, and reports wationed by the witnescea duri:.5 the depeci;ic.". Uns nc' ':nc.. ny ccuncal on this data of applict. tion.
h.
It is incomnr ah ansible that Concumors Po.zer Coup.ny could have c::pocted to receive studies and reports con-corning Fruit Belt Electric Cooperative, Thumb Elec-tric Cooperative, City of Grayling, City of IIarbor Springs, and a fencibility study for serving nudy Manu-facturing Company when none of these were subpoenaed either as parties or non-parties.
Whatever vistas these neu element:, may add to this proceeding we do not kncu, but wc find it completely unfair to broaden the scope of already c:: tensive discovery at this late stage of the cace.
We also find it difficult to justify -- -
the need for information concerning the City of Grayling which wa: acquired by Concumeru Power Company in 1961.
O.
I f Consumorn Power Company is permitted to have carte b.lanche free discovery of a non-party consulting engineer,which could effectively result in a substantial financial loss in reve-nue to that f' m,
it vill have succeanfully added another notch to its large gun aimed and targeted on anyone who dares to intor-ve no ayinnt or oppor-:e thi:, Coupany.
of Practice 92.740 (f) pro'.i.d-t: t 9.
'the Co: ai ! :iu : ', Ru l t n
('
.ir
.i, or tl C u..
aa,. - - cc lition d, u ni of 3
uu!
l on jr :0 and rt.: n at.rbl:: t o i.-
S ection 2. 7/.Ca (:.) staten ti... t the C n::. cc i on shr.ll a ppl', thn u r.uc foes as are paid a depOncr.t for 11 :e servir:s in the District Courts of the United S tat es, and further I
that thene fees are to he paid by the party at whose instance thn depocition is taken.
The Federal Rules of Civil Procedure, which gove.n the procedures of the District Courts,give us a clear indi-cation that the party cooking diccovery shall be recuired to pay
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an e:: pert a reasonable fee for time spent in responding to dic-covery (nule 26 (b) (4) (c), cf. M..ttson v.
Pennsr3vania R.
R.,
43 PnD L23, 11 F n S e rv 2 d 3 0C. 31, Cc.cc 8 (N.D. Ohio 1957).
10.
Cons urc.c r3 Power Compin'j cannot claim that it is entitled 1
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to diccoi ry from Daverman Annociate:, becauno that firm han been called ac an ci: pert witnenu to thin proceeding.
But even if counnel for the Company roanonably believen that nuch is the cace, the Federal Rules of Civil Procedure under Rulo 2G (b) (4 ) (C) (ii) pro-video that the party socking the discovery shall pay the ci: pert a
reaconable fce for the time spent unlcss manifest injustice would result to an indigent pa r ty.
We note that the 1972 Connumers Po.ce r Company Annual Report to its ntockholdera nhown a not incomo a f ter La>-
interent und dividondo o f r,66,925,612. 0 0 11.
At tac'ed h :ot u, n n-' :nde a part hc rto f, is a le ': t a r O '..
S n p t..b ;;r 10, 1973 to Reich Watnon, Escuire frca the undersigncJ, ir vhich it is reru :s ted the.t all dccuments, data,and materitic furni c': -
C o.i nu:.. : rr Du'.er Cor..:nny be returned to this offico uithout copric. ;
pendi::g a rulj ng on this motion by the Chairman, or the Cen micrie:..
We respectfully recucot that this bc - ade a condition which shoulf apprcariately l'e innorcI.
12.
Intervening parties in this proceeding have indicated on several occasions that there is deep concern over the c::tremeism and e>:panded diccovery levied on the partien as well as on the non-parties, including sub;oena of Daverman Daverman Ancociatec, Inc.
This latest i
is an additional layer of information which in part represents back-up materialn to that which 7ar, furniched by the pa rties and non-particc.
The scope of the cubpcena goes further and inquires into new areas.
Thun, for example, many of the studica and reports now requested from Daverman would not be respancive to the documents requested by Connuiacrs Pot.or Corupany (acc paragraph 7, infra).
Also, the attorneys for Consumers Po'./cr Company have complained that in response to requests for lists of st-udiac and reports prepared by Daverman, the part;i.cc refcrrc d to th" cc:.plete lint to be furnicher! by Daverran.
It should be cor :n] for Interrenors in for.uvi the cyctu.
no t-.f hc ~- '+
- that a co:rple t n listinc of all work was being furnic'..c d by Davcr.. and that the proper recponce to the 2nd Round Interrcgr-tories could be to refer to this all inclurive listing.
This was in lieu of each of the intervenors conducting an additicn :1 file search for all studies and reports, whether or not responscs to previous document requects, and submitting a lict which could have been in error since all of such reports may very wcll have not been maintair.d since 1950 in the systems' files.
13.
This latest open-ended subpoena should also be viewed with alarm becauce it addo new dimencions to the already extoncivo discovery conducted by Consumers Pcwor Company.
To date, the parties and non-parties have furniched Concumers Power
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than 35,000 unduplicated pagcc of documentn, Company with more and have cooperated fully in supplying additional information of an examination of thoce requested by the Company as a result If the Board continues documents by applicant's consultants.
the timo schedules to permit additional broad-brush discovery, and the established for the trial may be again disrupted, already intolerable burden and e>: pense imposed on Intervenors may further d.iminich their role in this proceeding.
por thic rearon, Interrenorn, an well as the Department of Justice, have :o; :5L in varios :t n to li:ait the iccuan an6 cugg e s t~'
ti t to certi.in cl aims by the Cor:.pany could be rc ac'c.c f.
stipulations as 14.
If the Daard orders that Daverman produce the docu.:. nts and data upon rearcnabic compensation by Censumers Pcwcr Company, as sp211cd cut in Appendi:
A, counsel for Daverman vill the data, and the cooperate fully in supplying the documents, witness for deposition.
We believe this can be accomplished in chart order if counsel for Consumers Power Corapany agrees Pace and the understanding reached between Dr.
that Mr. Daverman Daverman will govern the record search.
Mr.
R.
J.
Paco has informed his councel that further conversations with Dr.
reiterates that UCRA wants only those sdics and reports and that only after thene already processed and copied, been cupplied and examined will any additional materials havt-.....--.
riquests be made.
Further, Dr. Pace har agreed that any dis-questions concerning any reports or studies will first be cussed by tolophone with Mr. Daverman before a copy is requested.
If the documents and data request can be limited to this under-standing, and the Company is ordered to pay the fees and ci:penses indicated by Appendin A, this discovery can be completed in as a sho r ' period of time.
' ' ()_d ( 1 -
15.
We also refer the Board's attention to. Rule of th D'de al in)es of Cjvil Procedure, uh.ich permits the Cour*_
ioL : 12.,
c_
% w! che
.h;. ;r. '. if it is either unrenconchtr; or oppren: rive, or to condition denici cf the subpcena upon the ad cr.nce:acnt by the person, in thoce behalf the subpcena is icaued, of the reasonable cost of produci.ng the books, papers, documents, or tangible things. Davernan Isssociates, Inc. was asked to conduct a complete file scarch, to e:< tract therefrom applicable portions of studies and reports, to compile, inde:< and copy these selected materials, and deliver the:n to Consumers Po.zor Company attorneys and consultants.
These materials were either entirely represented back-up information concerning materials pre-
- now, viously supplied by the parties and non-parties, or in a very fev instances reprccented studies or reports which were not supplied -- -
by the municir.iln and cooperatives.
The file nearch requents'd nr scleeted from thene D:iverman involved a compilation of document a filen containing vant amounta of recordc whi ch are cc:r.pletely irrelevant to this proceeding, and under Rule 45(b), the party cerving the cubpoena should advance the costs of production.
l'os: v. House (E.D. Okla. 1939) 29 F.Supp. G73, 2 F.R.
Serv.
49 b. 43, Case 1; Ulrich v. Ethel Gasoline Corn.
(M.D. l'y. 1942) 2 F.R.D.
357, 5 F.
R.
Serv. 45 b.
316, Cace 1.
lG.
The Davor:,n cubpoena alco raises the specter of
,1-,'
i r ' cd s.* '- info - P ien to a cm el iFr,
c, par *icol: c,
- . n d o t_ * :c c. ta ccnccrnin<j c.l' I'.unici ;d l an
cooperativer in the lower peninsula of Michigan are rcquested, even though soms were not subpOcnacd as either a party or non-party.
In Uni,"; ' W e r r. v. Corp-A c c o -' i n e ^ r,, Inc.
(N.D. Ill. 193_;
19 F.R.D.
13G, 5 F.R.
Serv. 2nd 45 b. 42, Case 1, the court quashed a subpoena duccc tecum where the relevancy of the docu-sought was not apparent and the court was reluctant to ments force a non-party competitor to divulgo confidential information.
As a firm of conculting engincors, Daverman Associates, Inc.
is privy to the innermost confidential buciness plans and proposals of its clients.
Although not imbued with any qualified legal privilege, this information is considered highly con-fidential by both the clicnt and the consultant.
If forced to.
DM $% Sg g
,$ge' p4hp a
reveal uwh infom.ation to a competi. tor, the working arrancy im.:.t of Daverman with its clients would be dractically impaired.
Ac.in, we ci ate that both partion and non-parties have cooperated full.
in supplying any documents within their possession which the Consuncrs l ower Company has requested.
This is true wherever it ha-been revealed that such study or report was not supplied through either an oversight or a misunderstanding of the request.
To pertait thic further open-ended discovery at this late ctnge can
. :. u '
on?.y
- l ocoled a-h tz:
m.
nt; to pr rr:i.L f g;.c n e c <_..
f ^
.ni.
L' op_src.:>.
..n.
re,-
bu rd o: O c:r <..
On thir bana.a the cubc.cona should be cuached.
17.
Coun.el for Drcernan informcd co.'ncel for Const. vc Pcwcr Corc.ynny cn both Fridn'r, Septeric 7,
- 1973, and on
.m ak y, Ecyten.ber 10, 1973, that ha intended to file c.
motion to quash or ccndition the subpoena againct Daverman.
Councc1 for applicant requested that the motion be withheld until such time as the cesta incurred by Daverman could be c::amined by Consumers Power Ccapany.
On t.'cancaday, September 12, 1973, counsel for Daverman gave the figures as shown in Appendi: A to counccl for Consumers Power Company.
On Friday, September 14, 1973, this office was informad that the company would refuse to par Mr. Davermnn 's c>:pences unless the Board so ordered.
Councol.
was anhed to reconcider thic decision.
On Monday, Septemb:r 17, 1973, councol for Daverman was informed by Mr. Keith Watnon, one of the counsel for applicant, that, the answer was still although reconcideration has been given, "no".
Mr. Watcon una informed that this motion would be filed no later than September 18, 1973 (See Tsppendi:: C).
18.
Should the Board rule adversely to our motien and reports and order the prcdection of the Daverman studies withcut co. T '
.r." ic 1, uh all c::pe< t nimilar rulings v:itF rer' c '. to cu'ga.
- 4.. ', aca! :ct "h o- - concultan ts ca.ule.m..- J by Conta x;s Pc.v. c Cc;.p. :.y a s to requesta by the interccncrn, which ::07 be rcgiircd as a part of our rebuttal case.
WIIEm.'i C " C, for the foregoing rcasons, the Chairman, or the Cc:. ncqion, is resi.ectfully requerted to conditien the subpoena duces tecu:1 subjcct to the payment of juct compensation of Daverman Iwcociates, Inc.,
for the time and c::penses spent in the rcccrd search, compilation of documents and data, and the renroducine> of ccuies of Consumers Power Companyu and to limit the discovery as agrecd upon by Dr. Pace and Mr. Daverman.
l
)
I l
I l
In the alterna ti ve, if the company refuses to 12ay, the nubporn.
shoul.d be qu:.shed.
Roupestfully submitted, Car e
?'4 ~
James Carl Pollock Atto-ncy fsr Daverman Associater, Inc.
Septur,ber la, 1973 1,a. 0 ;. i. c u,
S p i.c g c ' &.McDiar.nd 2600 Irginia Avenue, U. t'.
t.' ash i.c ton,
D.
C.
20027 - -- - _. ~...
APPU!! DIX A As of September 7, 1973, Daverman Accociates, Inc.,
have attributed the following as expenses incurred in the file scarch, compilation of documents and data for Consumers Power Company:
Scarch of files, co:npilation of documents and data, staff time including normal overhead for secretarial and clerical - 189.5 man hours - $ 3029.58 Two copieu of documents, one furnished to Grand Rapids Councol for Concemecs Po ler Company, one fu t ni.
'A to h'a l d, Harh.cader & 1:osn, 950 1,w;c-.: 2 at 10 centr /paqu 190.00 Estiran ted complet.io.T of ccn ch an atrced upon between Dr. Jocoph Paco and Mr.
R.
J.
200.00 Davc2.: ann -
R. J. Daver:-7n appearnnco ac a witness for dispostion at $250./ day plus travel c::panse
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