ML19344F475
| ML19344F475 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 09/03/1980 |
| From: | Brand W BRAND & HALL |
| To: | |
| Shared Package | |
| ML19344F472 | List: |
| References | |
| ISSUANCES-A, NUDOCS 8009150312 | |
| Download: ML19344F475 (5) | |
Text
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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA GREENSBORO DIVISION
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NORTH CAROLINA ELECTRIC MEMBERSHIP
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Plaintiffs,
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v.
) Civil Action
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No. C-77-396C
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CAROLINA POWER 6 LIGHT COMPANY,
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SOUTH CAROLINA ELECTRIC 6 CAS COMPANY, )
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4 Defendants.
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AFFIDAVIT OF WALLACE E. BRAND WALLACE E. BRAND, being duly sworn, deposes and says:
1.
I am the principal attorney for the North Carolina Electric Membership Corporation ("NCEt1C"), in the captioned proceeding and for sixteen of its member distribution cooperatives.
2.
I am also principal attorney for the Central Electric Power Cooperative, Inc. (" Central") in a related proceeding before the Nuclear Regulatory Commission under Section 105(c) of the Atomic Energy Act as amended in 1970, (42 U.S.C. 2135(c), In Re South Carolina Electric & Cas Co., et al., Summer Nucler.r Station', D$cket No. 50-395A.
3.
In and about 1976 and 1977 NCEMC and Central asked me to undertake an investigation to determine whether they had a good cause of action under the antitrust i.. s.
4.
As a result of that investigation, NCEMC and sixteen of its member distribution cooperatives filed this suit in August, 1977.
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Central initially attempted further negotiation with the electric power systems in its area but finally decided to assert rights it learned it had under Section 105(c) of the Atomic Energy Act by filing a petition with the Nucle,ar Regula-tory Commission in December, 1978. A courtesy copy of that filing was sent to SCE6e s antitrust counsel in this cas,e (Mr. Medvecky).
6.
In seeking documentary and other discovery In this proceeding it was and is solely my purpose to obtain documents and other information which is relevant to this proceeding or will lead to relevant evidence. It has never been my purpose or intent to use this proceeding as a device to obtain discovery solely for use in another proceeding.
7.
However, it is my intent to use documents lawfully obtained in this proceeding for any other lawful purpose includ-ing an exercise of the First Amendment rights of my client, "e r hwi in a licensing proceeding under Section 105(c) of the Atomic 4 sergy Act to pe.ition the government for a redress of grievances.
I an';icipate that the Nuclear Regulatory Commission would use the documents to assist it in maki.ng the statutory finding of whether SCE&G's " activities under the license would create or maintain a situation inconsistent with the antitrust laws."
If it makes an af firmative f J:, ding, it can impose license conditions to correct the situation.
8.
NCEMCismakingthesedocumentsavailableto Central without charge. Central has not heretofore participated in any financing of this litigation except for the investigation referred to in 1 4.
9.
NCENC has not heretofore-participated in the
~ financing of the Nuclear Regulatory Commission litigation by 2-1
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Central which is merely asserting its o-a rights before that Commission.
10.
Many of the documents on which our initial investigation was based were received in discovery and made public in cases before the Nuclear Regulatory Commission.
We perceive no difference in NCEMC's making these documents, available to Central as a courtesy to its fellow cooperative that is a victim of the same conspiracy and combinacion.
11.
It is my opinion, for the reasons explained in the annexed memorandum of law, that NCEHC's role hece, and Central's role in bringing its action under Section 105(c) are those of " private attorneys general," and that it would be poor public policy and would unduly burden the administration of justice to hide these documents behind a protective order.
12.
Some of the documents were made available by SCE&G in June, 1979, others in May, 1980. To the best of my recollec-tion, although SCE6G knew of the NRC proceeding in December, 1978 -- and its antitrust counsel was fully apprised of the proceeding on that date -- SCE&G never made any attempt to pro-tect the documents, the use of which it now seeks to restrict, prior to filing a motion for a protective order on August 13, 1980. There has been no stipulation among counsel giving these documents confidential status, nor any express or implied agreement regarding their use. And in the fifteen months sipce
= w we started to receive these documents there has not even been a request that they be kept confidential.
13.
To the best of my knowledge and belief, none of these documents relates to patents, trade secrets, or other proprietary business information that is of such a nature that f
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Its release might harm SCE&G as a result of its competitors
' obtaining useful business information.
14.
On August'6th, prior to the time SCE&G i
filed its motion, and prior to the time that I even knew of its intent to do so, I sent a stack of documents approximately three inches thick to the United States
. Department of Justice for its examination and use in making comments to the Nuclear Regulatory Commission.
These were documents I intended to file with Central's comments requested by the Commission.
I did not do so, however, as a result of the pendency of this motion.
I provided these to Justice's attorneys as a courtesy so they would be available for the longest possible time before their comments were filed. These documents were returned to me by Justice's attorneys as a result of the filing of this motion, and Justice is awaiting the Court's disposition of the motion.
15.
If the Court were to enter a broadly drawn protective order in the form requested, it would be difficult for me to continue to function as Central's counsel, since each time I spoke or acted on behalf of Central, I would have to determine whether a piece of information was received by me solely as a result of discovery on behalf of NCEEb el al. in this proceeding.
16.
SCE&G's attempts in its memorandum to create the impression that Central's' participation in financing was concealed from it.
This is simply not the case.
. Cconsel for central advised Counsel for SCE&G that Central had helped to finance the preliminary investigation and had not thereafter contributed to the financing.
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Further Deponent saith not.
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Wallace E. Brand Subscribed and sworn to before me this [ day of September, 1980.
%tb cM en Notary Pubgic M1 Y"
My commission expires:
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CERTIFICATE OF SERVICE I, Wallace E. Brand, hs aby certify that on this 4th day of. September, 1980, I served a copy of the foregoing Opposition of NCEMC, et al., to SCE&G's Motion for a.
Protective Order on each of the attorneys listed below by hand delivering copies to the offices of Messrs. Medvecky and L' Grane and Mrs. Allen, and by serving the remaining persons by first class mail, postage prepaid.
Wi$
Wallace E.
Br~and BRAdD & HALL 1523 L Street, N.W.
I Washington, D.C.
20005 SERVICE LIST:
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Thomas J. Bolch, Esquire P.O. Box 2211 Raleigh, North Carolina 27602 1
l John L. Toumaras, Esquire T.O. Box 1567 l
Greensboro, North Carolina 27402 Robert S. Medvecky, Esquire REID & PRIEST 1111 19th Street, N W.
Washington, D.C.
20036 John D. McCrane, Esquire l
REID & PRIEST 1111 19th Street, N.W.
Washington, D.C.
20036 James T. Williams, Jr., Es(uire' Reid L. Phillips BROOKS, PIERCE, MCLENDON, HUMPHREY AND LEONARD P.O. Drawer U Greensboro, Novch Carolina 27402 Charles B. Robson, Jr.
Ms. Carolyn Parlato CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 Mr. Robert C. Howison, Jr.
JOYNER & HOWISON
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Suite 906, P.O. Box 109 Wachovia Bank Building Raleigh, North Carolina 27602 1
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James H. Burnley, IV, Esquire TURNER, ENOCHS, FOSTER 6.BURNLEY
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Suite 700, First Union National Bank Building P.O. Drawer D Creensboro, North Carolina 27402-d Toni K. Allen, Esquire WALD,'KARKRADER AND ROSS 1300 Nineteenth Street, N.W.
Washington,.D.C.
20036 Edward Ce Roberts, Esquire George H. Fisher South Carolina Electric &
Cas Company 320 Main Street Columbia, South Carolina 29211 4
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