ML20077E159
| ML20077E159 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 07/26/1983 |
| From: | Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, SINCLAIR, M.P., STAMIRIS, B. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 78-389-03-OL, 78-389-3-OL, 80-429-02-SP, 80-429-2-SP, ISSUANCES-OL, ISSUANCES-OM, ISSUANCES-SP, NUDOCS 8307280161 | |
| Download: ML20077E159 (7) | |
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s UNITED STATES OF AMERICA di J U L o 7 '~cS'~-
NUCLEAR REGULATORY COMMISSIO. ;
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Before the Atomic Safety and Licensing
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ASLBP Nos. 78-389-03 OL In the Matter of:
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80-429-02 SP
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CONSUMERS POWER COMPANY
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Docket Nos. 50-329 OL
)30-330 OL (Midlacd Plant, Units 1 and 2))
50-329 OM
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50-330 GM
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INTERVENORS MAhY SINCLAIR AND BARBARA STAMIRIS' MOTION TO QUuSH SUBPOENAS Pursuant to 10 C.R.F. 2.720(f) and through endersigned counsel, interveno 1
Barbara Stamiris and Mary Sinclair hereby scve to quash subpoenas issued fi to employes and representatives of the Government Accountability Project I
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("GAF") insofar as the subpoenas request documents concerning conmunica-I' tions between themselves, the intervenors, and GAP.
I BACKGROUND.
On August 8,1982, applicant Consumers Power Company (" Consumers")
requested this Atomic Safety and Licensing Board (" Licensing Board") to issue subpoenas to GAP representatives. Attached to the proposed subpoena was a request for three sets of documents. The third and final category of documents requested is the following:
All communications between Barbara Stamiris or Mary Sinclair on the one hand and GAP, representatives of GAP, Billie P.
Garde, Lewis (sic) Clark, Lucy Hallberg or Thomas Devine on the other.
1 Ms. Sinclair, for the purposes of this motion and oral argument on GAP's motion, has authorized undersigned counsel to represent her.
If this Board requires, Ms. Bernabei will enter a notice of appearance on behalf of Ms.
Sinclair.
8307280161 830726 ff_4)
PDR ADOCK 05000329 g /s1 O
O s Applicant chose not to pursue these subpoenas in August, 1982, even though it claimed the testimony and documents it sought were relevant to quality assurance and quality control questions to be the subject of the OM hearings, then scheduled for October,1982. Board Memorandum at 1 (July 9, 1982). How-ever, in April,1983, near the end of the OM hearings, in which most of the testimony on quality control and quality asuut asca issues was pre.cented, Con-
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suners decided te serve the subpcet.as end pursue deloaiticas of GAP representa-tives.
Intervecors Barbara Stamiris and Ibrv Sirc2 air did not receive a i
corrected copy of the list of documents requested under the subpoena duces i
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tecu?_ until Jaly ?G, 19E3. Other li-ts of requtsted docunents did not demand documents concernina conmunications between themselves and GA?.
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.g GAP is a project of the Institute for Policy Studies, it is a non-l prof 2 t group and public interest law firm which advocates accountable and open government. Among GAP's principal functions is providing legal advice to community groups and private citizens who seek its advice in order to broaden the public's ability to monitor government. Louis Clark and Thomas Devine are attorneys employed by GAP. Billie Garde is the Director of the Citizens' Clinic. She works in the role of a paralegal and investigator to aid GAP in providing legal services to those groups and individuals who seek its legal advice. She works at all times under the direct supervision and direction of a GAP attorney. Lucy Hallberg is a GAP representative in 2
Applicant does not seek documents directly from Ms. Sinclair and Mrs.
Stamiris.
However it is obv.iaus that given Ms. Sinclair and Mrs. Stamiris' protected relationship with GAP applicant does seek disclosure of information harmful to their attorney-client relationship with GAP.
Therefore, both intervenors have standing to move to quash these subpoenas, and in f act as GAP's clients, are the only ones able to assert the attorney-client privelege.
Norris Manfacturing Co. v. R.E. Darling Co., 29 F.R.D.1 (D. Md.1961); Dart
_ Industries, j
Inc. Liquid Nitrogen Processing Corp., 50 F.R.D. 296, 291 (D. Del.1970).
Midland, Michigan who serves in much the same capacity as Ms. Garde in aiding GAP to provide legal services. She works at all times, as Ms. Garde, under the direct supervision and direction of a GAP attorney.
Ms. Sinclair and Mrs. Stamiris, since March,1982, have consulted CAP for legal advice. Since April,1933, GAP has served as counsel to Mrs.
Stantris in the OM hearings.
11 INTERVENORS ASSERT THE ATTORNEY-CLIENT PRIVILEGE SHIELD 3 FFOM DISCLO-
_S, PRE, Doct'MENTT OR TESTIMONY CONCERNING Ti1EIR COMIUNICATIONS Willi GAP.
I the attorney-client privilege pretecte all connunicatione, written or t
otal, in which or threugh which a client seeks legal advice of any kind from en er.torrey or his subordinate fu co.fidence, except if the privilege is waived. United States v. United Shoe ikchinery Corp., 89 F. Supp. 357, 358 (D. Mass.1955); Wonneman v. Stratford Securities Cc., 23 F.R.D. 281, 285 (S.D.N.Y. 1959). The fact that the attorney is net formally retained or is not paid is irrelevant as long as the communications are made in confidence 1
for the purpose of obtaining legal advice. Hankobusic v. General American s
Transportation Corp., 31 F.R.D. 264 (D. Pa.1962).
i The privilege protects both communications to the attorney from the l
client and communications from the attorney to the client if disclosure of 1
i the information could reveal confidences of the client. Natta v. Zietz, 418 F.2d 633 (7th Cir.1969); Detroit Screwmatic Co. v. United States, 49 F.R.D.
77 (S.D.N.Y.1970); Stix Products, Inc. v. United Merchants & Manufacturina, Inc., 47 F.R.D. 334 (S.D.N.Y. 1969); In re Prudence-Bonds Corp., 76 F.Supp.
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I Undersigned counsel, who is a CAP attorney but whom Consumers has up to this point not yet subpoenaed, is the sole GAP attorney representing l
Mrs. Stamiris in the OM hearings.
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_,_._.___..,._.._m
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l 643 (S.D.N.Y.1948); United States v. Aluminium Co. of America,193 F Supp 251 (S.D.N.Y 1960); American Optical Corp v. Medtronic. Inc., 56 F.R D
. 426 j
(D. Mass. 1972).
In addition, communications to and from persons who are not attorneys but working under the direct supervision and control of attorneys to facilitate the attorney'a rendition of legal services are similarly protected by th e pri-vilege.
Federal Trade Cocaission v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir IMO) railg
- v. Meisrer Brau, Inc., 57 F.R.D 11 (D. Ill.1972);
United Str.tes
- v. Kovel, 296, F.2d 918 (2nd Cir. 1961).4 Conrtunications to and free accountants, _U.S. v. Cote, 456 F.23 142, 144 (8th Cir.1972); _U.S. v. Judson, 322 F.2d 460, 462-63 (9th Cir.1963); United States v. Jacobs, 322 F. Supp. 1299 (D. Cal. 1971); Attorney General of United
_Etates v. Covington _&. Burling, 430 F.Supp. 2117,1121 (D.D.C.1977); Bailey v.
f Meister Brau, Inc., supra; private investigators, United States v
. McPartlin,,
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595 F.2d 1321 (7th Cir.1979), cert denied, 444 U.S. 833 (1980);
_ People v.
Knippenberg, 66 Ill. 2d 276, 6 Ill. Dec. 46, 362 N.E. 2d 681 (1976);
Chapel
- v. Maryland Penitentiary Warden, 398 F.Supp.1151 (D.Md.1975); State v.
Tapia, 113 N.J. Super. 322, 273 A.2d 769 (1971); and law clerks, Cold Metal Process Co. v. Aluminum Co of America, 7 F.R.D. 684 (D. Mass.1947); Indianapoli s
- v. Scott, 72 Ind. 196 (1880); -Sibley v. Waffle,16 N.Y.180 (1857); have been held protected by the attorney client privilege.5 4
Courts have held that the Sixth Amendment's guarantee of right to effective counsel also protects the confidentiality of communications to and l
from experts or associates hired by counsel to aid him in preparation of a case.
State v. Mingo, 77 N.J. 576, 392 A.2d 590 (1978).
5 227, 231 P.2d 26 (1951)See also, San Francisco v. Superior Court of San Francisco, 37 Ca
. 2d 432,116 N.W. 933 (1908),and Hilary v. Minneapolic Street Railway Co., 104 Minn.
client privilege to law clerks by state statutes.concerning extension of protection of the attorney
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The only requirement is that the client consults with the third person and the attorney in confidence for the purpose of obtaining legal services.
In this case intervenors Mary Sinclair and Barbara Stamiris consulted GAP for legal advice since the time GAP became involved in the Midland project ir the Spring of 1982.
Their convercationc with Louis Clark and Themas Devine
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ar* obviously shielded by the privilege since Mr. Clark and Mr. Devine are I
f l
attorneys.
Similarly, their ceumunitarican with Billie Garde and Lucy Hallberg 1
are shielded from disc 1csure since both Ms. Osrde and Ms.
i Hallberg acted in the l
capatiry of in.estigator o paraleg.,ls to aid GAP attorneys in providing 1cgal t
nerrica s,
- hereby all communicationo, written or ursl, between the intervenors cad GAF persoaael are abselutely protected by the attorney-client privilege.
i III CONCLUSION.
For the foregoing reasons, latervenvrs Mary Sinclair and Barbara Stamiris request this Licensing board to 92 ash applicant's subpoenas insofar as they l
seek testimony or documents regarding privileged communications between them-i selves and GAP.
Respectfully su=mitted, L
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><,1.>----
Lyhne' Berna bei Gove'rhment Accountability Project 6f th'e Institute for Policy Studies Wa}shhgton,D.C.19 1 p/ Street, N. W.
20009 202/234-9382 Attorney for Intervenor Stamiris l
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DATED: July 26, 1983
O UNITED STATES OF AMERICA l
l NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of:
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Docket Nos. 50-329-OL
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50-330-OL I
CONSUMERS POWER COMPANY i
50-329-OM
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5 0-33 3--CM l
(Mid]and Plant, Units 1 and 2)
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CER11FICATE OF SERVICE I hereby certify that copies of the foregoing INTERVENORS i
MAPI SINCLAIR AND BARE RA STAMIRI5' MOTION TO QUASH SUBPOENAS were mailed, proper postage prepaid, this,26th day of __ July 1983, to:
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- Chitles Lechhor.ter, Esq.
Frank J. Jelley
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Ahinistrative.7udge Atanic Safety and Licesing Boatti Attorney General State of Michigan Steward H. Freeman U.S. Nuclear Regulatory 0xmission Washington, D. C. 20555 Assistant Attorney Gereral Envirmmental Protection Division
- Dr. Jerry Harbour 525 W. Ottawa Street, 720 Iaw Building Lansing, Mici.igan 48913 Administrative Judge i
Atanic Safety and Licesing Board N. Mary Sinclair U.S. Nuclear Begulatory Ommission 5711 Sumerset Street Ashington, D. C. 20555 Midland, Michigan 48640 Dr. Frederick P. Cowan Ms. Barbara Stamiris Administrative Judge 5795 N. River 6152 N. Verde Trail, Apt. B-125 Freeland, Michigan 48623 Boca Raton, Florida 33433 Wendell H. Marshall, President James E. Brunner, Esq.
Mapletcn Intervenors l
Consumers Power Orpany I&D 10 212 West Michigan Avenue Midland, Michigan 48640 Jackson, Michigan 49201 l
U.S. Nuclear Regulatory Ccumission l
Washington, D. C. 20555 l
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Myron M. Cherzy, P.C.
Peter Flynn, P.C.
Cherry & Flynn Three First National Plaza Suite 3700 Chicago, Illinois 60602
- Atanic Safety and Licensing BCErd U.S. Ntclear lhgulatory Otzmission Washington, D. C.
20555 sprard.c Safey ard 7.icensing
.Nped Pa:El U.S. Nxlear Fsgulatcc.y Ccmdssicr.
Mishit? ton, D. C.105S5 Stem J. Gd.ler, P.C.
2120 Crrter Avenue St. Pcul, FH 55108
- Frederick C. Williams, E3q.
Isham, Lincoln & Beale I
1120 Cor.nectic.2t Avenm, N.W.
Wahington, D.C. 20036
- hillias D. Pater., Espli.m Mfice of Executive Legal Directo).
U.S. Nrlear Regulatory OcmniBsicn nshingtcn, D. C.
20555 l
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me LYNNE BERNABEI i
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- Delivered through the NRC internal mails i
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- Delivered by hand April 18, 1983.
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