ML19344A256

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Util Answer to Intervenors',Cities of Lansing & Bay City, 730803 Request for Ruling on Objections to Util Noticed Depositions of E Brush & B Wilson.Objections Should Be Denied.Certificate of Svc,Affidavits & Exhibits Encl
ML19344A256
Person / Time
Site: Midland
Issue date: 08/08/1973
From: Ross W, Watson K
CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:
Atomic Safety and Licensing Board Panel
References
NUDOCS 8008070636
Download: ML19344A256 (21)


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.. s-l UNITED STATES OF AMERICA BEFORE *HE ATOMIC ENERGY COMMISSION In the Matter of )

.) Docket Nos . 0-329 Consumers Power Company _ .

) 5- 0A (Midland Plant, Units 1 and 2) )

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' Applicant's Answer to Intervenors' Request for Ruling Consumers Power. Company hereby answers the

" Request for Ruling" filed by the Cities of Lansing and Bay: City on August 3, 1973. ~Said Request ob-jects to the. Applicant's noticed depositions of Earl Brush and Bernard Wilson, _. superintendents for the Lansing and Bay City- electric systens , 'respectively.

The objections are. untimely, inaccurate, and without basis in law. For the- reasons set forth below,

-Applicant respectfully requests that the objections be summarily and expeditiously denied.

1. The Request is' untimely.

Pursuant to Section 2.740a of the Commission's Rules,

'10 CFR Part 2, Applicant has noticed the depositions of electric system. managers from ten Michigan municipals and cooperatives._-These" depositions, scheduled to begin on August 13, 1973, are to include the managers of the Lansing l and Bay. City systems .

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. Several weeks -aao, Applicant's counsel informally-advised counsel for Lansing and Bay City of our intention to_ depose Messrs. Wilson and Brush. Initially, their

. counsel suggested the possibility of scheduling dif ficulties but in at least six subsequent conversations counsel never raised the objections set _ forth -in the' Request. . These discussions were summarized in a letter between counsel on July 27, 1973 (Exhibit .1 hereto) . Subsequent to this letter, counsel advised Applicant's counsel that-Mr. Wilson would be available for deposition during the week of August 13 -

and that Mr. Brush would be available for deposition later in the month. In accordance with this understanding, Applicant formally noticed the depositions of several indiv-iduals, including Messrs. Wilson and Brush, in a letter dated .Tuly 31,19 73 (Exhibit 2 hereto) .

The Request offers no explanation for the two-week 7

delay in filing the objections contained in the instant Request --J a -delay which clearly prejudices Applicant in

. light ' of the fast-approaching hearing date. These grounds alone are
sufficient for denying the Request.

1 II. Agreement- concerning prior discovery of Lansing and '

Bay City is no bar to Applicant's proposed oral depositions. l The Request advances dae wholly untenable position i that agreements between the parties have limited discovery of I

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non-parties only ' to the _ document demands and written interrogatories served in December, 19 72 upon Lansing, Bay .

City,- and nineteen other "non-party" . members of the intervening

. Michigan' Municipal Electric Association. Although these non-party municipals opposed this discovery, following ex-1/

haustive pleadings- and. oral argument,-2/ the hearing Board ordered compliance with most-3/ of the discovery items. On appeal, the Appeals Board held the discovery to be relevant and affirmed the hearing Board on all grounds (except its disposition of the " confidentially" objections).-4/

The Appeals Board did express concern ~ that compli-ance could " burden" the municipals and therefore urged counsel to discuss the most convenient method of producing the required information. As the Appeals Board said:-5/

"It must be reiterated that what the parties are to discuss is not whether the applicant should obtain the discovery which the Licensing Board has allowed. As has been indicated, we are answering that question in the affirmative. Rather, the discussion is to center upon (1);possible alter-native means of accomplishing the discovery; and.

(2) possible feasible measures. for handling the

. information claimed by the appellants to be con-fidential." [ Emphasis supplied. ]

1/ Motion to Quash Subpoena, filed January 9, 1973; Applicant's Answer to' Motion to Quash, filed January 14, 1973, Supplemental Motion to Quash , filed February _ 20,-1973; and Applicant's Answer to supplemental Motion to Quash, . filed February 26, 1973.

jh/ Third Prehearing Conference, February 12,~1973 (Tr. 219-320).

3,/ Order Granting Applicant's Motion,7 February 27, 1973; and see also-Order Denying ~ Supplemental Motion, March 6, 1973.

-4 1 Memorandum by the Appeals Board (ALAB-ll8, April 24, 19 73 ) ~,

attached hereto. as' Exhibit 3) .

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..m In subsequent discussions with counsel, Applicant modified several of the individual interrogatory items and reached agree-ment -with the municipals concerning the time and method of 6/' On May 16, 1973, this agreement was adopted by compliance.

the Appeals Board in the following language:~7/

"In accordance with the request in ALAB-ll8, the parties to the appeal engaged in negotia-tions which, happily, have predt ced a substantial area of agreement. Specifically , we . are not ad-vised by counsel that an understanding has been reached limiting -the document requests and inter-rogatories. . Furthe r , the parties have executed a written agreement detailing the mechanics of the discovery and the method for resolving claims of undue burden which may arise with respect to parti-cular discovery items. We approve the agreement

. . . ." [ Emphasis supplied. ]

From this course of events, Bay City and Lansing would have the hearing Board believe that "the purpose of .the agreements" reached pu,rsuant to the Appeals Board's order was to

" limit future discovery" such as the oral depositions Applicant (

l has noticed (p. 2) . This hypothesis is untenable on its face. ,

1 The Appeals Board's orders quoted above speak exclusively of the method of compliance with the document demands and written j interrogatories then before them. The agreement itself per-

~ tains 'solelyf to this written discovery. Indeed, as the 6/ The municipals, including Bay City and Lansing did not abide by . the agreement, as the hearing Board is aware. However, some ~

responses. have.been forthcoming in the past several weeks.

7/. . Decision byfAppeals Board (ALAB-122, May 16,-1973), p. 10.

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l a't tached affidavit of counsel affirms, neither . oral deposi-tions or any other type of " future discovery" was mentioned in the discussions of counsel leading to the aforementioned agreement which- the - Appeals Board endorsed.

Thus, the " purpose" of the agreement between counsel relating to written interrogatories and document demands had nothing to do with ' " future ~ discovery" . . It is . there-

-fore clear that, neither implicitly or explicitly, did the agreement between counsel or the rulings 'of the Appeals Board bar or_" limit".in any way-the oral depositions here: proposed.

III. Applicant-has not waived its right to take these

' depositions.

Section 2.740a of the Rules gives a party the right

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to depose "any party or other person" without leave of the Commission or the . presiding officer.- (Emphasis supplied.)

Thus , as the Request concedes (p. 2) , the fact that Bay City and Lansing are not technically parties to this proceeding provides no basis. for objecting to depositions of their electric system managers.

Applicant's entitlement under Section 2.740a is confirmed by _ case law under comparable sections of the

~ Federal Rules .of Civil . Procedure. . Reques ts to vacate deposition notices under Rule 30, F.R.Civ.P. are' granted only 'in " exceptional" and " unusual" circumstances and the i.

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-f act that a partp has been subject' to other discovery is no -bar to' taking oral- depositions of such a party. . U.S. v.

- Purdogg, . 30 FRD :338, ~ 340 (W.D. Mo. 1962); Cook v. Cook, 194 N.W;-2d 273, 279 (Iowa Sup. Ct. 1968) ; Kamin v. Central States Fire Ins..Co., 22'FRD 220,-(C.D.-N.Y. 1958) (prior t

sworn statemen'c) . .For example, in.Kulich v. Murray, 28 F.

Supp. 675 (S . D. N.Y. 1939), the court held daat . even though

' the- plaintif f "has availed himself of every" discovery device available under the rules, depositions were not improper.

l 28 F. Supp. at.676.

In light of the Commission's Rules and applicable case law, the Reques t's . theory (p. 2) that the depositions i

should be barred because the " Company did not reserve the right to take depositions against non-parties or mention its

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intent to do so" is clearly untenable. 'Nothing in the Commissions -Rules requires a party to " reserve" its discovery I

rights ; indeed, the obvious intent of Section 2.740a is to H the contrary, . sinca depositions may be noticed without11 eave of- the Commission or this Board. Moreover, as early as a s

~Prehearing Conference on October 25, 1972, Applicant's counsel

-l indicated the likelihood of depositions of~ municipal systems

- managers (Tr. 155) , but indicated ' that a final determination as to konents could not be made prior to receipt- of : document

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~ discovery. _This view has been reiterated on many: subsequent 18/ , Review of responses to the , document demand and written inter-rogatories, following belated receipt,-Enow' reveals that written' responses.have been inadequate in some cases, 'ncluding Lansing d

-and' Bay / City,.:and that oralc examination is req i. red- for the/ pre-J

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- paration of: Applicant's.' case.

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occasions --_in informal meetings of counsel, in conference l l

calls with the Board, and on the record (e.g. , see Tr. 329- y

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330).  !

1 Thus,Ithe suggestion that Applicant has in some I

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manner waived its ' prerogatives under Section 2.740a is too 1

far-fetched to require further exposition.

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IV. No showing is made - that the depositions will be burdensome.

l - The Commission's- Rules of Practice do not provide for objections to deposition notices. Rather, only upon I motion ~ and, for " good cause" shown may this Board deny or condition oral depositions on the grounds of " annoyance, em-i l' barrassment, oppression, or undue burden or expense". Section

2. 7 4 0 ( c', . Even treating the instant Request as . a motion under Section 2.740 (c) , nothing remotely. approximating " good cause" l is manifest in the instant circumstances.

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E Although the Request refers to the issue of burden, l

' it does not describe or justify any _ burden which would warrant.

prohibition of these depositions. Such a claim would be - in- l l-__ substantial- since the Apolicant estimates that each deposition

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'will -last only one or two days.

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,, 9/' Of course, the length of depositions . involve a number of Tactors ;. e.g. , the responsiveness of the witness ,.' the objections of counsel, etc. lit should also be noted that counsel have

. agreed that- further depositions of -those noticed and others may l beJnecessary. See letter from Watson to Pollock, dated July 27, l

1973 -(Exhibit 1 hereto)'.

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The insubstantiality of any burden claim is 'high- (

lighted by the depositions which the Intervenors and the Department of Justice'took recently of 11 Company-e'xecutives.

These _ depositions consumed four full weeks and thousands of

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. transcript pages; individual witnesses were on the stand for  !

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as ' long. as five days.

It also is significant that these l depositions frequently focused upon relations between 11/

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Applicant and the Lansing and Bay. City electric systems.

In th'is context, it is clear that the depositions of Messrs. Wilson and Brush which Applicant contemplates- l l

will involve no " undue burden" and that no reason exists to ' deny the depositions on that, or any other, basis. l l

.i V. An expeditious Ruling is necessary.  ;

1 Counsel for Bay City has agreed to make Mr. Wilson I available for deposition on August 14, 1973, in the event the instant Request is denied; Applicant has already made appropriate- arrangements to depose him at that time in Michigan.

l We therefore respectfully request that; the Board rule expeditiously on~ the instant Request and that, if at-all possible, a - conference call be initiated- to inform the I

_ parties - of the result on or before August 10, 1973.

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10/ ~ ~E.g;, the deposition . of B.G. Campbell from May 17-to May 23,_.1973, which " consumes 558 transcript pages. .

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.11/ _ThisLis:hardly surprising since-the Company and Lansing l

  • have recently initiated coordination arrangements and sinceL

'the L Companyf and Bay City are " head-to-head" _ competitors for electric" loads'in a.significant market-area..

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WHEREFORE, Applicant. urges that the. objections

' contained. in the Request to Applicant's deposition of :

Messrs. Brush and Wilson be denied.

A Respectfully submitted,

, Wm. Warfield Ross 4- Keith S. Watson Attorneys for Consumers Power Company WALD, HARKRADER & ROSS 1320 Nineteenth Street, N.W.

i Washington,.D. C. 20036 (202) 296-2121 Of' Counsel:

Harold P. Graves, Esq.

Consumers Power Company

. 212 West Michigan Avenue Jackson,' Michigan 49201' Augus't ' 8, : 19 73 1

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Affidavit of ~ Keith S . Watson 4 concerning discussions and. agreements with ,

-counsel for Lansing and

. B ay City .

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CITY 0F WASHINGTON. -)-

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DISTRICT OF COLUMBIA- )

Keith S. Watson) being duly sworn, deposes and says:

that he .is one of the attorneys for the ' Applicant, Consumers ' Power Company, .in antitrust- proceedings before -

the Atomic Energy Commission involving the Midland Units;.

- that during the peribd h'ere involved, he has had supervisory responsibility -with respect to actions by Applicant's Washingtonicounsel.concerning discovery demands-

'by Applicant directed to ' parties and "non-parties",

that discussions were held between Robert Jablon and me pursuant to th'e Appeals Board's order. of April 24, 1973; that those discussions .related solely to .the methods of . compliance with then-outstanding document demands: and written interrogatories; that at no time during those discussions was the subject of oral depositions .(or any other. future discovery of the non-parties by Applicant)-

mentioned by either . counsel; and that at no time have I agreed to, or-discussed, a' limitation on Applicant's oral depositions ~of non-parties with Mr. Jablon or anyone else.

that during.the week of July 23, 1973, I orally.

advised James Pollock of Applicant's intention to depose.

Bernard Wilson and Earl Brush; that during that week and the .following week,' Mr. jPollock and I had at least six; telephone conversations in which the: scheduling and logis-tical- problems of these depositions were discussed; th at --

_Mr. Pollock informed me~t. hat Mr. Wilson ~would be available for deposition during the week of - August '13,1973 and: that Mr.: Brush would be available durina the last week of August; and that1at no_ time.during_my discussions with Mr. Pollock.

did he raise ' the objections to deposing Messrs. Wilcon' and

. Brush which are' set forth in the Request for Ruling.-

- that on ' Augus t 7,11973, Mr. _ Pollock agreed to make

. Mr. -Wilson"available to ; Applicant ~for. deposition in Grand h

~ Rapids i . Michigan , - on LAu'gus t 14, 1973, in the . event the I 1 hearing Board - denies o the1 objections set ' forth in the Request. l 4

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4 that the attached statement.is true and accurate, to the best of his knowledge, information and belief.

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'Keir.h S. Watson Subscribed and sworn to before me this 8th day of August, 1973.

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Notary Public - ,

My Commission Expires: j 1

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-EXHIBITS TO

! -APPLICANT'S ANSWER TO INTERVENORS' REQUEST FOR RULING.

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r Table of Contents l

l Exhibit 1 Letter from Keith S. Watson to James C. Pollock dated July 27, 1973.

Exhibit'2 Letter from Keith S. Watson to James C. Pollock l . dated July 31, 1973.

i Exhibit.3 Appeals Board Memorandum (ALAB-ll8, April 24, 1973).

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EXHIBIT 1 Letter from Keith S. Watson to James C. Pollock dated July 27, 1973.

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EXHIBIT 3 f

4 July 27,-1973 i

James C. Pollock, Esquire 2600 Virginia Avenue, N.W.

Suite 312 Washington, D. C. 20036 l

Dear Jim:

This will confirm our recent telephone conversation

, concerning depositions of several individuals whom you represent.

Sinca we have not yet received, or have an opportunity

to review, responser to our discovelry t.o the party and non-party systems, it is not possible at this juncture to provide- i your offics . tith _ a definitivo list of deponents. However, it is our present intention to depose the following
Messrs. Keen  ;

(Wolverino) , Steinbrecker (ll. !Iichigan) , Westenbroock (Top O' j Michigan) , Savago (Traverso City) Munn (Coldwater) , Edwards (Grand llaven) , Ricmcrsa '(Holland) , Wilson (Day City) , Brush (Lansing) and Kline (Presque Isle). j t

I anticipato that these depositions will average about ono-half day each. As we agreed, further depositions of these and other indivicuals may be necessary in- the light of discovery responuos uhich we have not as yet received.

We have also agreed that the depositions will be held

' in either Jackson or~ Grand Rapids, nichighn. Uc vould propose that flesars. Brush, aunn and Wilson be deposed in Jackson on August 2, 3, 9 or 10, 1973. We would also proposo to deposo l the ot'tcra in Grand Haven during the..ucok of August 13, 1973, and to depose those otherwise unavailable on August 23-24 or 30-31, 1973.

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Jaces' C. L'ollock, Esquire July 27, 1973-Page 2 Pleaso lot me know of the availability of these individuals as coon'as possible so that I can make appropriate arrangements for-the depositions.

Sincerely, 4

Keith S. Watson 1

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i cc: Doard 1:cmbers  !

Wallaco E. Brand, Esq. )

Joseph Rutbert, Esq.

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i EXIIIBIT 2 Letter from Keith S. Watson to James C. Pollock dated July 31, 1973.

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EXHZBIT 2 l

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July 31, 1973 j l

l James C. Pollock, Esquire 2600 Virginia Avenue, N.W.

Washington, D. C.

Dear Jim:

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This will confirm our discussions concerning depositions of those whom your office represents and constitute a notice of deposition to those identified below.  ;

Wo shall take the depositions during the woek of Augus t 13, 1973 at the Company's of;. ices in Grand Rapids, Michigan. We will depose the following in the order listod:  ;

nessrs. Savage, Edwards, Wilson,- Kline, Koen, Westenbroeck, j and Steinbrechcr. We would propose to take the depositions of ;icssrs. Reimersa, Drush, and Munn in Jackson later in j the n.onth of August at a mutually agreeable time.

4 The .mattors upon which the foregoing will be exa. lined are as follows: Their systcas ' policies and prac-tices regarding coordination and competition with other ,

l clectric utilitics and other transactions ~ involving competing i clocuric systema in '.hea.r service- area; their system plans, policies, and activ'. tics.mncerning retail competition, industrial loam, ratos and rato design, bulk power supply, .!

and gancration and transmission expansion the syste:as '

responses to previous discovery requests and relief sought

. in this proceeding; and the competitive and financial via-bility of the systou each represents.

I snall'adviso you as soon as possible as to the identity of the reporter before whom those depositions will l be taken.

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Ja;aos C. Pollock, Esquire July 31, 1973 Page 2

- Please be advised that we also intend to meet inforz: ally with those individuals listed in Appendix C of the Department's lottar of July 13, 1973, whom you do not

. represent. Our purposa is, of course, not to influence or ascertain the proposed testimony of these individuals but merely to obtain relevant, factual information which they may possess.

Sincerely, Keith S. \latson l

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cc: Doard tic.@ers liallaco E. Brand, Esq.

Joseph Ruthorg> - Esq. ,

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EXHIBIT 3 Appeals Board Memorandum (ALAB-ll8, April 24, 1973).

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION-In the Matter of )

) Docket Nos. 50-329A CONSUMERS POWER COMPANY ) and 50-330A (Midland -Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S ANSWER TO INTERVENORS ' REQUEST FOR RULING, dated August 8,.1973, in the above-captioned matter have been served on the~ follow 4 cg by deposit in the United States mail, first class or air mail, this 8th day.of August, 1973: ,

Jerome Garfinkel,-Esq.,' Chairman Dr. J. V. Leeds , Jr.

Atomic Safety and Licensing Board P. O. Box 941 Atomic Energy Commission Houston, Texas 77001 Washington, D. C. 20545 William T. Clab ault , 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 2600 Virginia Avenue, N. W. Washington , D. C. 20530 Washington, D. C. 20037 Joseph Rutberg, Jr. , Esq.

L Antitrust Counsel for AEC Regulatory Staff Atomic Energy Commission Washington,.D. C. 20545 l 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 l

Keith S. Watson

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