ML20084E761
| ML20084E761 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 04/30/1984 |
| From: | Mark Miller CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | Bechhoefer C, Cowan F, Harbour J Atomic Safety and Licensing Board Panel |
| References | |
| OL, OM, NUDOCS 8405020506 | |
| Download: ML20084E761 (14) | |
Text
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RDATEu g.a.,
'""5?ONDEncp-ISHAM, LINCOLN & BEALE COUNSELORS AT LAW 1
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THREE FIRST NATIONAL PLAZA O S '!E.'
CHICAGO. ILUNOIS 60602 EDWARD S ISHAM. 1872 1902 WASHINGTON OFFICE I
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UFFCi CF 5 W L w C0CntilNG & s!.9 e BRANCH April 30, 1984 In the Matter of
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Docket Nos. 50-329-OM CONSUMERS POWER COMPANY
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50-330-OM
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50-329-OL (Midland Plant, Units 1
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50-330-OL and 2)
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Charles Bechhoefer, Esq.
Dr. Jerry Harbour Atomic Safety & Licensing Atomic Safety & Licensing Board Panel Board Panel U.S. Nuclear Regulatory Com-U.S. Nuclear Regulatory Com-mission mission Washington, D.
C.
20555 Washington, D.
C.
20555 Dr. Frederick P.
Cowan 6152 N. Verde Trail Apt. B-125 Boca Raton, Florida 33433
Dear Administrative Judges:
Document discovery in the case captioned The Dow Chemical Co. vs. Consumers Power Co. No. 83-002232-CK-D, pending in the Michigan Circuit Court for Midland County has been underway for some months.
Pursuant to a subpoena obtained by Dow, Bechtel Power Corp. has made many thousands of documents available to the parties to that litigation for inspection and copying.
The copying process will not be complete until mid-May, at which time copies of the documents will be in the hands of Dow and CPCo.
r405020506 840430 hq PDR ADOCK 05000329 J
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Administrative Judges April 30, 1984 Page 2 Document production by Bechtel in the litigation is subject to the terms of a protective order entered by Judge De Witt on April 6, 1984.
A copy of that protective order is enclosed.
Pursuant to the terms of the protective order, documents which Bechtel designates as confidential and any information contained in those documents cannot be disclosed except under procedures described in the order.
Disclosure to, inter alia, the Nuclear Regulatory Commission is the subject of a specific provision of the protective order.
I have been shown certain documents produced by Bechtel in the Dow litigation.
These documents are marked "Bechtel Confidential" in accordance with paragraph 7 of the protective order.
Certain of the documents contain statements which may be inconsistent with " Applicant's Response to Motions of Intervenors Mary Sinclair and Barbara Stamiris with respect to the Dow Lawsuit" filed August 17, 1983 regarding Forecast 6 and Adjusted Forecast 6.
I have been advised by counsel for Bechtel that should CPCo seek to disclose these documents to the Nuclear Regulatory Commission, Bechtel will seek further protection of the asserted confidential nature of these documents from either the Midland County Circuit Court or this licensing board.
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i Administrative Judges
'a April 30, 1984 Page 3 It is not clear to me whether disclosure of these documents is required by the Appeal Board decision in the McGuire case, Duke Power Co. (William B. McGuire Nuclear i
Station, Units 1 and 2) ALAB-143 6 AEC 623 (1973), given the procedural posture of the issue pending before the Licensing Board - the admissicn of a late-filed contention.
In any i
I event, I believe that a decision regarding the admissibility t
l of the so-called "Dow" issues and Mrs. Sinclair's motion to hold the record open pending conclusion of the Dow litigation should be made by the Licensing Board without benefit of these documents.
Simply stated, the elaborate provisions of the 2
protective order preclude rapid access to the documents, j
particularly in light of Bechtel's position in this matter.
Should the Licensing Board believe that review of these documents is a pre-requisite to its decision, please so I
inform me and I will begin the process under the protective order to disclose them.
1 Sincerely,
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MIM:es Michael I. Miller l
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cc Service List s
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t STATE OF MICHIGAN IN THE CIRCUIT COURT 'OR THE COUNTY OF MIDLAND F
THE DOW CHEMICAL COMPANY
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Plaintiff,
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vs.
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Case No. 83-002232-CK-D
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Honorable David Scott DeWitt J
CONSUMERS POWER COMPANY,
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Defendant.
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PROTECTIVE ORDER AS TO DOCUMENTS PRODUCED BY BECHTEL At a session of said Court, held in the City of Midland, County of gidland, State of Michigan, on dfth
, 1984.
Present: Honorable Dav!.d Scott DeWitt Midland County Circuit Judge The parties hereto, and Bechtel Power Corporation and Bechtel Associates Professional Corporation ("Bechtel"), having stipulated to the entry of this order:
NOW, THEREFORE, IT IS ORDERED as follows:
1.
Any document produced by Bechtel, or by any i
consultant or subcontractor to Bechtel, which is designated by Bechtel as "Bechtel Confidential", shall be used by the parties only for the purpose of this litigation and for no other pur-pose. The parties shall not make such documents or the infor-1 mation contained therein available to any person, except:
j (a) at'torneys and their supporting staff, I
engaged or employed by the parties in the prosecution or l
defense of the claims and counterclaims in this action; (b) such employees of the parties as are l
j involved in the prosecution or defense of the claims and counter-1 claims in this action; i
RECEIVED L.>
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LES11-D/D (c) such former employees of the parties as are involved in the prosecution or defense of the claims and counter-claims in this action; (d) named testimonial experts of the parties as are involved in the prosecution or defense of the claims and counterclaims in this action; (e) non-testimonial consultants of the parties as are involved in the prosecution or defense of the claims and counterclaims in this action; (f) the United States Nuclear Regulatory Com-mission, the Michigan Public Service Commission or any other judicial, administrative or legislative body (each of which is hereinafter referred to as a "Governmenta. catity"), or to a party to a proceeding before such Governmental Entity, where such disclosure is made pursuant to (i) the compulsory process or order of such a Governmental Entity; or (ii) the obligation of a party to make such disclosure to such Governmental Entity or to a party to a proceeding before, such a Governmental Entity.
All Bechtel documents that are produced to the parties for review shall be "Bechtel Confidential" documents covered by this Order until such time as copies thereof are delivered by Bechtel to one or more of the parties without a designation required by paragraph 7.
Upon such delivery, only documents bearing the designation required by paragraph 7 shall continue to be "Bechtel Confidential" pursuant to the terms of this Order.
2.
At least 21 days prios to the date of any pro-posed disclosure of a "Bechtel Confidential" doc 0 ment to any i
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LESil-D/D former employee or named testimonial expert under subpara-graphs 1(c).or (d), the party proposing to make such disclosure 1
i shall notify counsel for Bechtel of the identity of such person.
3.
At least 21 days prior to the date of any pro-f posed disclosure to any non-testimonial consultant under sub-
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paragraph 1(e), the party proposing to make such disclosure shall provide to counsel for Bechtel a master. list of potential consultants that includes the consultanL to whom such disclo-sure is proposed to be made. This master list shall include the name, address and area of expertise of not more than thirty (30) consultants and shall be treated as confidential by Bechtel and its counsel. Neither the list nor any information con-tained on the list shall be disclosed by counsel for Bechtel except to Bechtel employees for the limited purpose of comply-ing with paragraph 4, except such names or information which I
came into the possession of Bechtel or Bechtel's counsel from sources other than the party supplying the list.
4.
Prior to the expitation of the 21-day period referred to in paragraph 2 and 3, Bechtel may. object to the 4
disclosure of a "Bechtel Confidential" document or documents to any named former employee, testimonial expert or non-testimonial.
consultant by notifying the counsel for the party proposing disclosure of the identity of each former employee, expert or j
consultant to which an objection is made, the basis of the objection, and the documents or specific categories of documents e
to which such objection appites. counsel for Bechtel and the i
party proposing disclosure shall attempt to resolve their objections by agreement. In the event counsel for Bechtel and l
the party proposing to make the disclosure are unable to agree as to whether disclosure may be made to the named former i
employee,' testimonial expert or a non-testimonial consultant, counsel shall notify the Court for the purpose of arranging a conference in chambers to determine how the dispute should be 1
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LES&A-D/D i
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I resolved. If Bechtel has objected to the disclosure of a i
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document or documents to any named former employee, testimonial t
expert or non-testimonial consultant, no such disclosure shall be made pending resolution of Bechtel's objections under this I
procedure.
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5.
Before making any disclosure to any Governmental l
Entity under subparagraph 1(f), the party intending to make j
such disclosure shall give ten days' prior written notice to Bechtel of its intent to do so, together with a description of 3
the documents to be disclosed, so as to allow Bechtel an oppor-I tunity to petition the Governmental Entity to whom, or pursuant i
to whose process, such disclosure is to be made, for such relief as it deems appropriate. Prior to expiration of the ten day period described above, the party shall not make the dis-closure described in its notice to Bechtel. By stipulating to 4
l this order, Bechtel has not waived its right to assert before j
any Governmental Entity that the documents which it has desig-nated as "Bechtel Confidential" shall be treated as such by such Governmental Entity or by any person who, pursuant to the j
process, procedure's or disclosur'e requirements of such Govern,-
mental Entity, comes into possession of such documents or the information contained therein.
6.
Nothing in paragraph 1 shall prevent the parties from using documents designated as "Bechtel Confidential", or 1
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the information contained therein, in any proceeding in this action such as, but not limited to:
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(a) depositions; l
(b) motions, briefs and pleadings; i
j (c) argument before the Court 4
(d) trial or appeal.
7.
Bechtel may designate particular documents as l
"Bechtel Confidential" only by staniping or otherwise af fixing on each page of the document to be so designated the phrase _
LESil-D/D "Bechtel Confidential Pursuant to the Order of the Midland County Circuit Court." -Bechtel shall designate documents as j
"Bechtel Confidential" prior to providing copies of them to Consumers or Dow.
When so designated, the document may be used i
only for the purposes described in paragraphs 1 and 6 Any
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pleadings, briefs, deposition transcripts or other papers filed I
in this action by the parties, any court reporter, Bechtel or any other person which quote, refer to or attach a "Bechtel Confidential" document shall be filed with this Court in a sealed envelope with the following text on the outside "This envelope contains confidential mate-rial filed under seal subject to the pro-visions of a Protective Order entered by this Court. This envelope may not be opened except by the Judge to whom this case is assigned, unless otherwise ordered i
j by this court."
i 8.
The Clerk of this Court shall maintain all pleadings filed pursuant to the provisions of paragraph 7 in such a manner as to preserve their confidentiality and to j
prevent disclosure except as permitted in this Order.
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9.
Bechtel may designate a document as "Bechtel l
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Confidential" only if it contains:
(a). Trade Secrets. As used herein, a " Trade l
Secret" consists of any formula, pattern, device or compilation.
of information (including a business plan or forecast, a finan-i cial plan or forecast, a method, technique or process) that j
(i) is used in one's business and which gives the business an opportunity to obtain an advantage over i
competition who do not know or use it; and 4
(ii) has been the subject of efforts by Bechtel i
that are reasonable under the circumstances to maintain I
its secrecy; and
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(iii) has not previously been publicly discloced; I
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(b) competitively-sensitive commercial or i
financial information which, if disclosed, might prejudice the business of Bechtel or its clients; however, a document may not be designated "Bechtel Confidential" solely because it contains 4
information adverse to the legal interest or position of either party in this litigation.
l Either of the parties to this litigation may, by
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notice in writing to Bechtel, challenge such designation and, i
failing agreement between the party giving such notice and Bechtel as to the appropriateness of such designation, either f
party may present the matter to this Court for determination.
10.
Nothing in this order shall prevent the parties to this litigation from disclosing any document designated as l
"Bechtel Confidential" or the information contained therein.
free of the restrictions of this order, if such document or i
l information:
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(a) is or becomes a matter of public record i
i except by violation of thic Order or a similar order in another k
case; or j
(b) has come into the possession of either of j
the parties from sources other than Bechtel, except by viola-tion of this Order or a similar order in another case.
1 11.
(a) Each party to this action shall serve on j
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Bechtel counsel a copy of each notice of deposition it files in
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the case. Within ten days of receipt of a notice, counsel for j
Bechtel shall notify.the parties of any deponent who is not a Bechtel employee or consultant where Bechtel objects to the I
i deponent's being shown "Bechtel Confidential" documents. For f
each deponent so identified by Bechtel, the parties shall i
i notify Bechtel of each "Bechtel Confidential" document they plan to use in s' aid individual'c deposition five days before j
such deposition. Bechtel shall treat these lists as confiden-tial and shall not disclose the lists or any information con-tained therein to any other party. y
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(b) At the commencement of a deposition of any Bechtel employee or consultant taken in this action, counsel for Bechtel may designate the entire deposition and deposition transcript as " confidential." When so designated, the testi-mony and transcript will be subject to the provisions of this order as if they were "Bechtel Confidential", provided, however, that within fifteen (15) days after receipt of any volume of the transcript, counsel for Bechtel shall have the right to and shall designate all pages of that volume which it deems to be j)
"Bechtel Confidential" and shall notify the parties and the I
reporter in writing of the pages so designated. Pages of a j
transcript designated as "Bechtel Confidential" will be subject to the provisions of this order as if they were produced by Bechtel all pages not so designated, other than testimony designated as confidential during the taking of the deposition, shall not thereafter be confidential.
i (c) Any deposition involving examination or use of a "Bechtel Confidential" document is subject to the provi-i sichs of this Order and neither such testimony nor transcript, or applicable portions thereof, may be disclosed except in I
accordance with this order. If filed, the entire transcript in to be filed by the reporter in accordance with the provisions of paragraph 15.
However, in the event that a copy of the transcript is forwarded to Bechtel's counsel, counsel for I
i Bechtel shall, within fifteen (15) days after receipt of the transcript, have the right to and shall designate all pages of that transcript which it deems to be "Bechtel Confidential" in accordance with and pursuant to the same terms and provisions of subparagraph (b) of this paragraph. Pages of a transcript designated as "Bechtel Confidential" will be subject to the 4
provisions of this order as if they were produced by Bechtel; i
l all pages not so designated, other than testimony designated as confidential during the taking of the deposition, shall not thereafter be confidential.
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LES11-D/D 12.
Before making any Bechtel documents designated as "Bechtel Confidential" or the information contained therein available to any person, the party intending to do so shall obtain from that person a written acknowleugement in the form of Attachment A that he or she has been given a copy of this Order, has read it and agrees to be bound by all of its terms.
13.
On the last day of each month, each party shall submit to the Court under seal a list containing names of each person to whom disclosure of "Bechtel Confidential" documents has been made under the provisions of subparagraph 1(c), 1(d) and 1(e) of this Order during that month. The list shall also set forth for each person listed the identification numbers of "Bechtel Confidential" documents disclosed to each such person.
In the event of a breach of the secrecy provisions of this Protective Order, the Court, upon the motion of Bechtel, may open the sealed envelopes in which the lists are contained and may make its cwn determination as to the circumstances of the breach, may order the parties to make such a investigation, may permit disclosure of the lists to Bechtel to the extent neces-
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sary to permit Bechtel to make an investigation and may enter, such other order as may be appropriate under the circumstances.
14.
Within thirty (30) days after the final settle-ment or conclusion of this case, the attorneys for Consumers and Dow shall return to Bechtel all "Bechtel Confidential" documents and material in their possession or in the possession of any person to whom such documents or information is dis-closed, including all copies thereof, except for copies of such "Bechtel Confidential" documents or material which were fur-nished to a governmental entity by a party pursuant to subpara-graph 1(f) of this Order. The issue of disposition of notes, tapes, other papers, and any other medium contaiiiing, summat'iz-ing, excerpting, or othetwise embodying any such material or
LESil-D/D 1
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its contents is reserved. The provisions of this Protective E
Order relating to the confidentiality to be accorded to "Bechtpl e
Confidential" documents, material and the information contained j
i therein shall continue to be binding upon the parties hereto, I'
their counsel and any individual who has gained access to such information in accordance with the terms of this Order after the final settlement or conclusion of this case.
ib.
The tupotter 01 any deposition in thiu action I
shall:
(a) be served with a copy of this Order; i
(b) acknowledge on the record receipt of the
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order; and (c) undertake that the reporter and the reporter's i
esployees or agents shall be bound by the terms of the Order,.
's and will make no use or disclosure of confidential information l
designated in the deposition unless otherwise ordered by the i
Court or petmitted by the express consent of Bechtel. Those i
portions of the original transcript of any deposition, and any deposition exhibits which are designated as containing confi-4 i
f dential informatio'n, shall be sealed and delivered to the Cle,rk i
of the Court for filing and shall remain sealed until further order of the Court. The reporter shall mark the sealed envelope i
e as set forth in paragraph 7.
The reporter shall provide copies of the entire deposition tran, script only to attosneys of record for the parties.
16.
Violation of this order may subject the Dow a'
chemical Company, Consumers Power Company, their respective f
counsel, and the persons subject to this Order to the contempt order of this Court and all sanctions permitted by the Michigan t
I General Court Rules.
17.
This Order may bo modified upon written stipula-tion of the parties and Bechtel, and by order of this Court' i j i
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LES11-D/D upon motion of either party or Bechtel, for good cause shown, provided reasonable notice of said motion is given to Bechtel.
18.
Bechtel shall have the right to apply to the Court, upon reasonable notice to the parties, for an order further restricting the disclosure of confidential material.
19.
This Order supercedes the Interim Protective Order dated. November 9, 1983; however, nothing in this Order absolves any person of'.my violation ut the inLesim Ptotectivu Order committed between November 9, 1983 and this date.
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DAVID SCOTT DeWITT Midland County Circuit Judge We hereby stipulate to the entry of this order:
LAW OFFIC BARRIS, SOTT, DENN & DRIKER RERBERT I
By:
L By:
)j Herrhrt'9F Edwards Eu Driker (P-12959) 1 (P-13112)
At orn s for Consumers Company i
i KIRXLAND & ELLIS CLARK, KLEIN & BEAUMONT A<1 C 4 By:
dew
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By:
& Lawrence E'.
Stricklin
'Laurence M. Scoville, J f'.
Attorneys for The Do (P-20168)
Chemical Company Attorneys for Bechtel Power Corporation and Bechtel Associates Professional Cotporation l
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I State of
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, being duly sworn, says:
1 have read the Protective Order As to Documents Produced by Bechtel entered in the case of The Dow Chemical l
Company vs. Consumers Power Company, Midland County Court, Case No. 83-002232-CK-D.
I agree to abide by that order and shall not reveal or otherwise communicate or use any confi'dential information disclosed to me except in accordance with the terms of that Order.
I understand that breach of this agreement may subject me to sanctions for contempt of court and to monetary i
- damages, i
SUBSCRIBED and SWORN to befora me this 19_.
day of 1;
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I ATTACHME!4T A i
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