ML19329E561
| ML19329E561 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/27/1973 |
| From: | Jablon R MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006160353 | |
| Download: ML19329E561 (7) | |
Text
O'M UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
)
In the Matter of
)
)
s Consumers Power Company
)
Docket Nos.
)
50-330A (Midland Plant, Units 1 and 2)
)
)
REQUEST FOR RULING Intervenors respectfully request a ruling by the Board that they may depose Keith S. Watson, Esquire (or William W. Rose, Esquire, if he is more knowledgable) concerning the withholding of documents by Wald, Harkrader and Ross on various grounds, which' were supplied to them by Consumers Power Company responsive to the Joint Intervenor discovery and concerning compliance with the joint discovery.
In support thereof, intervenors state:
1.
We have requested such deposition informally and'have been refused. (See Attachment).
2.
The documents in question were selected by house counsel from Consumers Power Company files in response to the Joint Document Requests, and furnished to Washington counsel.
Iti
,as at this staae that a further review resulted in with-w holding over 50% of the total documents selected on claims of relevancy, work-oroduct and arbitrarv client orivilege.
8 00 steo 053 A
"S tatement of Keith S. Watson, pp. 6 -7, attached to "Ap-plicant 's Answer To Intervenors ' Motion For Reconsideration And Motion To Compel" (July 9, 1973).
If the search had been a
supervised by attorneys and professional personnel, it might be understandible that such a large proportion of the total pages selected as responsive to the Joint Document Request would have been subsequently withheld.
This was not the case.
Surely attorneys who are most familiar with the Consumers Power Company files would be equally as sensitive to "ir-
! ocuments.
relevant" or "priviledged" d
3.
The reason for our mode of procedure is that in denying our request for an inspection of the documents by conference call, the Chairman of this Hearing Board specifically stated the way to proceed was by deposition.
Consumers Power then made Judd Bacon, Esquire, available as the person knowledgable concerning the file search.
However, Mr. Bacon stated that documents were withheld by Washington counsel, but he had no knowledge of the reasons the documents were withheld and that he would "not
- / The searchers had an annotation of the Joing Request prepared by an attorney which Consumers Power Company has been unwilling to supply.
Deposition of Judd Bacon, pp. 31-32.
See Appendix.
. ~.
-2
- Indeed, Deposition pp. 37-45, Appendix.
necessarily" know.
Mr. Bacon admitted to counsel for the Department of Justice that he might not be the appropriate person to have been de-posed, even though he had been supplied by Consumers Power Company Deposition, pp. 54-55.
Keith S. Watson has attached to " Applicant'V Answer To 4.
Intervenors
.", suora, a nine page " Statement" explaining why documents were withheld.
For example, documents were with-held because (p. 6) " Washington counsel disagreed with the Yet, we do not impartial judgment of the extractor know the basis for such judgment.
If one makes a lengthy per-sonal statement in a litigation, he can expect to be ques-The fact that one possessing relevant facts is an tioned.
attorney is not a shield.
We proceed by deposition because that was the suggestion 5.
We have always stated that we would agree of the Chairman.
to see the instructions to the searchers and the withheld
- /
However, Consumers Power Company has documents-instead.
Apart from documents that are allegedly " privileged", there is
- /
no harm to a view since the documents are at most possibly beyond the scope of the order as interpreted by counsel and there is no burden, since the documents are available. a
~
~
no innate right to be the sole judge of its own compliance.
Brown v.
United States, 276 U.S.
134, 144-145 (1928).
Nor does an attorney have an inherent right not to be deposed. !
The attorney-client privilege is for the benefit of the client, not the attorney, so that, if inquiry is appropriate against the client, no automatic right attaches to the attorney.
- /
Schwimmer v. United States, 232 F. 2d 855 (CA 8, 1956).~~
and has been 6.
Consumers Power Company has asserted a right to ask follow-up questions to its dis-granted covery.
Intervenors have provided massive production of docu-l ments and interrogatory responses.
At depositions, Consumers Power Company has questioned deponents in detail concerning their discovery answers and compliance. What Consumer Power seeks is to place a wholly disproportionate burden of compliance on in-te venors without even having to explain the basis for its l
1
- /
Indeed, Judd Bacon voluntarily agreed to have his deposition taken.
For that matter, A. H. Aymond, President of Consumers Power Company is an attorney.
- / Cited by Applicant on p. 16 of "Atplicant's Answer To Inter-venors ' Motion For Reconsideration.
. ", suora.
.._ e
admitted withholding of documents.
WHEREFORE, intervenors request either (1) that they be permitted to depose either Mr. Watson or Mr. Ross or (2) that they be granted a right to inspect the instructions and withheld docu-ments.
Respectfully submitted,
/l_f. '/,', f.$
Robert A. Jablon One of the attorneys 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.
August 27, 1973 Law Offices of:
a Spiegel and McDiarmid 2600 Virginia Avenue, N. W.,
Washington, D. C.
20037
.... l
-w
UNITED ST4TES OF AMERICA ATOMIC ENERGY COMMISSION
)
In the Matter of
)
)
Consumers Power Company
)
Docket Nos. 50-32 9A
)
50-330A Midland Plant, Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that the foregoing document in the above-captioned matter was served on the following by deposit in the United States mail, first class or air mail, this 27th day of August, 1973.
Honorable Alan S. Rosenthal, Chairman Joseph Rutberg, Esquire Atomic Safety & Licensing Board Atomic Energy Commission U. S. Atomic Energy Commission 7920 Norfolk Avenue Washington, D. C.
20545 Bethesda, Mar 7.and 7
Wallace E. Brand, Esquire Abraham Braitman, Chief Antitrust Public Counsel Office of Antitrust and Department of Justice Indemnity Post Office Box 7513 U. S. Atomic Energy Commission Washington, D. C. 20044 W shington, D. C.
20545 a
Joseph J. Saunders, Esquire Mr. Frank W. Karas, Chief Department of Justice Public Proceedings Branch Antitrust Division Office of the Secretary Washington, D. C.
20530 U. S. Atomic Energy Commission W shington, D. C.
20545 a
Dr. J. Venn Leeds, Jr.,
Post Office Box 941 Honorable Frank Kelly, Atty. Gen
- Houston, State of Michigan i
Texas 77001' Lansing, Michigan 49813
Jerome Garfinkel, Esq., Chairman Harold P. Graves, Esquire Atomic Safety & Licensing Board James B. Falallee, Esquire U. S. Atomic Energy Commission Consumers Power Company Washington, D.C.
20545 212 West Michigan Avenue Jackson, Michigan 49201 William W. Ross, Esquire Wald, Harkrader and Ross Hugh K. Clark, Esquire 1320 - 19th Street, N.
W.,
Post Office Box 127-A Washington, D. C.
20036 Kennedyville, Maryland 21645 Robert J. Verdisco, Esquire Counsel for AEC Reg. Staff Atomic Safety and Licensing U. S. Atomic Energy Commission Board Panel-Washington, D. C.
20545 U. S. Atomic Energy Commission Washington, D.C.
20545 William T. Clabault, Esquire David A. Leckie, Esquire Department of Justice Antitrust Division Post Office Box 7513 Washington, D. C. 20044 j, t. - ' ~ <
/<
Robert A. Jablon One of the attorneys 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.
Law Offices of:
Spiegel and McDiarmid 2600 Virginia Avenue, N. W.,
Washington, D. C.
20037
,_.,_,