ML19329E941

Forwards Unexecuted Agreement to Accept Svc of Subpoenas & Deposition Notices as Counsel for 21 Mi Municipalities Provided Sufficient Copies of All Documents Served to All Parties Involved

ML19329E941
Person / Time
Site:	Midland
Issue date:	03/26/1973
From:	Jablon R CHARLEVOIX, MI, SPIEGEL & MCDIARMID
To:	Watson K WALD, HARKRADER & ROSS
References
NUDOCS 8006180811
Download: ML19329E941 (12)

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,., LAW OFFICES oF l I

G EoRG E . S1'i EGEL .

l 2600 VIRGINIA AVENUE. N. W. ATTACHMENTS l

WASHINGTON. O.C. 20037

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March 26, 1973  !

r.(OMGC SPsEs tL TELEPHONE 3338360 JAMES F F As4M AN, JR. ARCA CODE 202 potaU.t C . MCDIARMID S A*40m A J STRtBEL Keith S. Watson, Esquire l Wald, Harkrader & Ross i 1320 Nineteenth Street, N. W.

Washington, D. C. 20036 l l

Dear Keith:

This confirms our telephone conversation _ of

- March 23, 1973 concerning the subpoenas duces tecum and

_b - depositions upon written interrogatories which the AEC l Trial Board in Docket Numbers 50-329A and 50-330A has ordered against the twenty-one Michigan municipals and ,

which is presently subject to appeal.

I have agreed to accept service of the subpoenas and deposition notices as counsel for the twenty-one munic-ipals and appropriate officials thereof, provided that you serve us with sufficient copies for our clients and provided that you send an additional copy of all documents which you serve on us to Mr. Donald Potter (818 Crowley Avenue, East Lansing, Michigan 48823) and Mr. S. A. Brett (602 East Main Street, Niles, ~ Michigan 49120) .,

i' The twenty-one municipals have taken the position that they will not respond to the subpoenas or depositions until', and only to.the extent that, the Appeals Board (or higher authority) issues a final, unappealable and. legally .

binding ruling. forcing compliance with respect to the twenty-one.municipals' objections to the. aforementioned order of the

Board. In the event and to the extent that compliance may be ultimately required, we have. agreed that the proper method of compliance with the aforementioned subpoenas and deposition notices will be by serving documents and written responses thereto upon Wald, Harkrader & Ross.

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Keith S. Watson, Esquiro March 26, 1973 Without waiving Applicant's position that it'is entitled to timely discovery according to the commission's rules and orders of the Hearing Board, you have agreed to accept such service as satisfying.the Rules of Practice in this regard.

Finally, we have agreed that the purpose of this understanding is solely to facilitate the service of and compliance with your discovery and our responses thereto and that by this agreement neither party has waived any position on the proper procedure or the merits of Applicant's discovery or the municipals' ~ objections thereto.

]{}, You have agreed to file a copy of this agreement with the Board and to sign one copy of this letter and return it to me. -

Sincerely yours, f .

Robert A. Jablon RAJ:jdf . One .f the attorneys for the Cities of Bay City, Agreed: Charlevoix, Chelsea, Clintor Croswell, Dowagiac, Hart,

, Hillsdale, Lansing, Lowell

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Marshall, Niles, Paw Paw, Keith S. Watson Petoskey, Portland, i St. Louis, Sebewaing,' South Haven, Sturgis, Union City and Wyandotte, Michigan

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May 19, _J73

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(: Definitions -

1. " Applicant" is Consumers Power Company, its employees, and agents.

2. "The Systems" are th'e twenty-one electric systems (and their employees and agents) owned and operated by twenty-one Michigan municipalities which Applicant has served with subpoenas and notices of depositions upon written interrogatories.

3. " Applicant's discoveqv" are the attachments to the subpoenas duces tecum and the notice of depositions upon written interrogatories served by Applicant upon the system or the municipality they serve. " Document demands" are the items ,

contained in the aforementioned attachment to the subpoenas duces tecum. "knterrogatories"aretheitemscontainedinthe aforementioned attachments to the depositions upon written

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o interr'gatories. ,

4. Except as specified in the foregoing paragraphs, words and phrases herein are defined as set forth in the

" Definitions" section of the aforementioned attachments.

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b Agreement

1. Except as provided in paragraph 3 below, the systems will serve upon Applicant responses to each item to Applicant's discovery by providing a full response thereto; provided, .

however, where L the system deems that a response to a particular item is unduly burdensome, in lieu of a full' response the system may so state. Any such statement concerning undue burden must be verified by a qualified system employee and 1

shall specify (1) what documents or other sources were consulted i l

in seeking to respond,- (2) what documents or other sources are likely to. possess the information sought, (3) the number ,

i of manhours which the system estimates would be necessary to secure a full response. Such a statement shall be filed for each' item about which a claim of undue burden is made.

2. The systems shall employ their best efforts in seeking to respond to Applicant's discovery without incurring undue burden and shall serve upon Applicant their responses ,

and statements concerning undue burden within forty-five days of the date hereof.. An interrogatory shall not be deemed unduly burdensome merely because it requires the system to make reference to readily available documents or to consult with readily available individuals not employed by the system.

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C Within the scope of paragraphs one and two above, where a system's response to an interrogatory or document demand is incomplete (except where accompanied by a claim of un-1 due burden), appears to have been misconstrued by the system, or is ambiguous, Applicant may seek clarification or further response concerning that interrogatory or docu-ment demand.

3. Each system shall have the option of respond- {

ing to interrogatories-16 through 43 inclusive by the follow- l ing procedure: the system shall serve upon Applicant,~upon l reasonable conditions, a full response to document requests 1(a) to 1(c) (together with all available work papers related to any documents provided) and to interrogatories 1 and 4, within fifteen days of the date hereof. Within fifteen days of service of such full response, Applicant may serve upon j

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any system interrogatories relating to the documents pro-vided pursuant hereto. (such interrogatories may include interrogatories 16 to 43 inclusive but shall be limited to

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discovery seeking clarification or explanation of the docu-ments provided pursuant hereto). These interrogatories and 1 responses thereto shall be governed by the terms and con-ditions set forth in paragraph one and two above. The system l shall respond fully,or provide statements concerning undue burden (as provided in paragraphs 1 and 2 above) to such in-

-1 terrogatories within thirty days of service thereof.

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4. Within ten days of each system's service of certification that they have complied in full with Applicant's discovery in accordance with paragraphs one through three above, the Applicant shall notify the systems and the Appeals Board with regard to such claim's of undue burden (raised by the systems pursuant to paragraph one above) , which Applicant controverts and seeks further response. Within five days after service thereof, the systems shall either file objections with the Appeals Board or notify Applicant that it will provide the further responses sought by Applicant.

5. With regard to those discovery items to which Applicant does not controvert a system's claim of undue .

burden, or wher'e the Appeals Board sustains a system's objection to an item on grounds of undue burden pursuant to paragraph 4 above, Applicant shall be afforded the opportunity to inspect and copy any document (within the possession, custody, i or control of the system) which may be required to respond to each such item in full. Applicant  !

shall have forty-five days after service of a Board ruling sustaining claimslof undue burden to complete the inspection and copying. process. Such process shall be accomplished under the following terms and conditions:

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(a) Applicant's inspection shall be made during the system's .nordal business hours; (b) the system, wherever possible, shall provide Applicant with office space to accomplish the 1

aforementioned inspection; )

f (c) during such inspection, the system shall make.available to Applicant system personnel qualified to assist Applicant in locating and inspecting documents or other sources of information responsive to Applicant's discovery; and (d) in addition to other assistance, the .

system's personnel shall specify to Applicant those particular documents in which the sys' tem believes in-

~ formation responsive to a given discovery item will most 1

likely be found. In the event that the specified documents do not, in Applicant's reasonable judgment, provide a full response, Applicant may inspect and copy any files, records 1

or other documents (within the system's possession, custody - I or control) which Applicant reasonably believes may contain responsive information.

6. Nothing in the agreement should be construed (1) to compel thb systems to respond in a manner other than

- that which would be considered full compliance but for tnis

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agreement, or (2) to waive the system's rights to object,to Applicant's discovery pursuant to the Commission's Rules of Practice.

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. Modification to Applicant's Discovery Document Demands:

O 4 (c) In the first and fourth lines after the word " ten" insert the phrase " commercial and industrial". l At the end of the subpart add the following: [The determination of " largest customer" should be made with regard to consumption during the most recent year for which informa-tion is available. Where this determination can be made only I by reference to bills, invoices or meter readings or cannot be definitively established at all from existing documents , the system may so verify and provide its best estimate as to the identity of such customers and answer question 4 (c) with re-gard to such customers.')"

Interrogatories: ,

2 (b) In the second line delete the phrase "each year 1960  ;

to date" and insert "the year used in subpart (a) above . . .

2 (c) .In the fourth line of this question delete the phrase )

"1960 through" and insert there the phrase "1961, 1966, and . . .

5 Insert at the end of this q.uestion: [If the infor-4 mation requested in the second sentence of this interrogatory 1 is not readily available, the system may so verify and provide all documents which contain such information.)"

7 (a) In the first two lines of the question, delete.the l I

phrase "For each-. .thesysNemstate"andinsert" State 1 with regard to - (i) the area within the municipal's boundaries and (ii) the' areas served outside of said boundary, ,

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In the fifth.line of the question delete the' phrase "has served since 1960" and insert " presently serves".

At the end of the subpart add the following: " [The determination of " largest customer" should be made with re-gard to consumption during the most recent year for which information is available. Where this determination can be made only by reference to bills, invoices or meter readings ,

or cannot be detinitiv51y established at all from existing documen'ts, 'the system may so verify and provide its best estimate as~to the identity of such customers and answer

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question 7 (a) with regard to such customers. )"

20 (b) In the third line of the question insert the phrase .

"for any accounting or other purposes" after the word " system".

30 In the first line of the question insert the phrase

" supporting plant investment" after the word " debt". j 36 Insert at the end of this question: "[If any letter-ed expense item is not segregated in the foregoing manner by the system and such segregated data is not readily available, the data for that item need not be supplied." Where such a .

claim is made, the system should so verify.]"

39 (b) InLthe first two lines of.the question, delete the phrase "For each . . . the syst,em state" and insert " State l

with regard to (i) 'the area within the municipal's boundar-les and (ii) the areas served'outside of said boundary, . . . ."

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'41 Add at the end of the question: "[No response to the second sentence of this interrogatory need be supplied unless the information in summary. form is available from system documents or otherwise readi1y available.

Where such a claim is made, the system must so verify.]" '

45 (a) In the -first two lines of the question, delete the phrase "For each . . . the system state" and insert " State with regard to (i) the area within the municipal's boundar-ies and (ii)' the areas served outside of said boundary, . . .

At the end of th'is subpart add the following: "[The determin-ation of " largest customer" should be made with regard to con-sumption during the most recent year for which information is available. Where this determination can be made only by ref '

crence to bills, invoices or meter readings or cannot be de- {

finitively established at all from ' existing documents, the 1 l

system may so verify and provide its best estimate as to the I l

identity of such customers and answer question 45 (a) with re- ,

gard to such customers.)"

46 (a) In the first two lines of the question, delete the, -

phrase "For each . . . the system state" and insert " State with regard to (i) the area within the municipal's boundar-ies and (ii) the areas served outside of said boundary, . . .

At. the end of this subpart add the following: "[The determin-ation of " largest customer" should be made with regard to con-(s.

sumption during the most recent year for which information is

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available.

Where this ' determination can be made only be ref-erence to bills, invoices or meter readings or cannot be de-finitively established at all from existing documents, the  !

. system may so verify and provide its best estimate as to the identity of such customers and answer question 46 (a) with.re-gard to such customers.)" '

75 Add at the end of this question: "[If any aspect of subparts (b) or (c) can be answered only by reference to I 1

individual customer bills or customer invoices, the system may so verify and decline to respond to such aspect.)"

76 Add at the end of this question: "[If any aspect of the second sentence of this question can be answered only by reference to individual customer bills or customer invoices, .

the system may so verify and decline to respond to such aspect.)" '

,f Keith S. Watson

, , Robert A. Jablon May 14, 1973 O

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