ML19326D514

Responds to Util 730821 Motion to Reconsider ASLB 730803 Ruling Re Insp of Privileged Documents.Requests Denial. RA Jablon 730827 Affidavit & Certificate of Svc Encl

ML19326D514
Person / Time
Site:	Midland
Issue date:	08/27/1973
From:	Jablon R, Joseph E Pollock MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006170958
Download: ML19326D514 (7)

Text

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JITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )

)

Consumers Power Company ) Docket Nos. 0-329' (Midland Plant, Units 1 and 2) ) - 30A

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INTERVENORS' RESPONSE TO MOTION BY CONSUMERS POWER COMPANY TO RECONSIDER BOARD RULING CONCERNING INSPECTION OF PRIVILEGED DOCUMENTS To: Jerome Garfinkel, Esquire, Chairman, Atomic ,

Safety and Licensing Board Pursuant to S2.730(c) of the Commission's Rules of

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Practice, 10 C.F.R. Part 2, Intervenors herein respond to the Consumers Power Company motion dated August 21, 1973, and respectfully request the Chairman, or the Commission, to dany the motion and grant inspection of the withheld Consumers Power Company documents described by our earlier motion to compel, and granted by the Board in its August 8 order. In support of this request Intervenors state as follows:

1. The Board has ordered. Time presses on. The Chairman has stated his firm intention to begin the trial on October 15, 1973,

_ */ Cities of Coldwater, Grand Haven, Holland, Traverse City, Zeeland; the Wolverine and Northern Michigan Electric Cooperatives; Michigan Municipal Electric Association.

800eno75g 4

yet Intervenors have not seen the approximately 1,200 pages of documents which have been withheld by Washington counsel for Consumers Power Company.

2. The I.B.M. cases, cited by Consumers Power Company _in its " Motion to Reconsider Board Ruling Concerning Inspection of Privileged Documents", August 21, 1973, are distinguishable based upon the presentation of Consumers Power Company itself. Those cases apparently involved (1) an agreement by litigants in a civil case (not involving the Government) and (2) a subsecuent action involving the United States. Compare United States v. United Shoe Machinery Coro.,

89 F.Supp. 357, 359 (D. Mass., 1950).

. 3. What Consumers Power attempts to achieve by its proposed " alternative" procedure is to have nobodv review the correctness of its claims of privilege. If the Board adopts the alternative, providing for a full description of the document and explanation of its claim of privilege to the parties, this should be in coniunction with the Board's readina of the documents. Consumers Power is attempting to select what facts to tell the parties with nobody able to dispute l

it -- bscausa i~ controls the facts. It e nnot itself determine privilege. Brown v. United States, 276 U.S. 134, 144-145 (1928) ; Peoples' Bank v. Brown, 112 Fed. 652, 654 (CA 3) .

4. Moreover, any such statement should be complete and should specify in addition to factors stated by Consumers Power, the exact nature of the privilege, the basis for it, who wrote the document, all persons who received it, all persons who may have discussed it, including through secondary sources (or to whom its contents may have been revealed and for what purpose), all uses of it and all places where it may now be found. Consumers Power cannot complain about

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waiver here, if it itself has distributed copies.

5. We note that the claim of confidentiality is not tantamount to a conclusion that a document is privileged.

For example, the fact that a document contains the name of an attorney does not endow it with an automatic stature of confidentiality. If this were permitted, every corporation could use its house counsel's legal status as an insulator against any discovery. See Oklahoma Press Publishing Comoany v.

1 Walling, 327 U.S. 196 (1946); Schwimmer v. United States, 232 F.2d 855, 863-866 (CA8, 1956). Nor does the fact that these documents were turned over to Washington counsel imbue them with a protective halo of work product simply because they

_*/ It should also state whether any such document was previously disclosed to intervenors, or their counsel or consultants, whether it is part of a series of documents either already produced or withheld and the subject matter of the series and the specific

. harm that would result from disclosure.

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may have-been organized or numbered. In this case Washington counsel should be nothing more than an open conduit through which the documents flow. To permit such free wheeling use of work *

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product would result in the complete frustration of discovery.

Wherefore, for the above stated reasons, Intervenors respectfully request the chairman, or the Commission, to deny the Consumers Power Company motion and either permit counsel to proceed with an inspection of withheld dccuments as ordered, or to order Washington counsel to present all of the p'riv-ileged documents for an in-camera review by the Board, along with providing a full description, statement of the basis for the claim of privilege and revelation of all who received copies (and places where the document is filed) or information concerning the documents.

Respectfully submitted,

/.b $' s . Y f g ,f.'. k -

Robert A. Jablon

~ .. - ) i d 'm I

, t James Carl Pollock August 27, 1973 Attorneys for the Intervening Municipals of Coldwater, Holland, Grand Haven, Law Offices of: Traverse City and Zeeland, the Michigan Spiegel & McDiarmid Municipal Electric Association, and the 2600 Virginia Ave., NW Wolverine and Northern Michigan Washington, D. C. 20037 Electric Cooperatives.

_*/ Any privilege attaching to Consumers Power Company, a regulated corporation, would necessarily be narrow to the extent it existed at all. Moreover, most privileges are personal (not corporate) and do not attach to documents. E.g., see Couch v. United States, 34

'L Ed.2d 548, 554, 93 S.Ct. 611, 616 (1973) . The existence of a privilege depends upon the circumstances and cannot be presumed.

E.g., United States v. United Shoe Machinery Corn., 89 F.Supp.

357, 358, 360 (D. Mass) ; Zenith Radio Corp. v. R.C.A._, 21 F.Supp.

792, 794, 795 (D. Del.).

[ .

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- - ITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )

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Consumers Power Company ) Docket Nos. 50-329A (Midland Plant, Units 1 and 2) ) 50-330A AFFIDAVIT DISTRICT OF COLUMBIA, SS:

Robert A. Jablon, being first duly sworn, deposes and says that he is an attorney for the Municipals of C'oldwater, Holland, Grand Haven, Traverse City and Zeeland, Michigan, the Michigan Municipal Electric Association, and the Wolverine and Northern Michigan Electric Cooperatives; and that as such he has signed the foregoing Intervenors' Response to Motion by Consumers Power Company to Reconsider Board Ruling Concerning Inspection of Privileged Documents for and on behalf of said parties; that he is authorized so to do; that he has read said Response and is familiar with the contents thereof; and that the matters and things therein set forth are true and correct to the best of his knowledge, information or belief.

fcl< d* JE /. ./[

RoberttA. Jablon  ;

l Subscribed and sworn to before me this 27th day of A'ugust, 1973.

.-  ? [ l Notary Public 1 My Commission expires: Apg 141976

)ITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )

)

Consumers Power Company ) Docket Nos. 50-329A (Midland Plant, Units 1 and 2) ) 50-330A

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CERTIFICATE OF SERVICE I hereby certify that the foregoing document in the above-captioned matter was served on the following by deposit in the United States mail, first class or air mail,,this 27th day of August, 1973.

Honorable Alan S. Rosenthal, Chairman Atomic Safety and Licensing Board Pr.nel U. S. Atomic Energy Commission Washington, D. C. 20545 Jerome Garfinkel, Esquire, Ch, airman William Warfield Ross, EFquire Atomic Safety and Licensing Board Wald, Harkrader and Ross U. S. Atomic Energy Commission 1320 19th Street, N. W.

Washington, D. C. 20545 Washington, D. C. 20036 Wallace E. Brand, Esquire Harold P. Graves, Esquire Antitrust Public Counsel Vice President and General Counst Department of Justice Consumers Power Company Post Office Box 7513 212 West Michigan Avenue Washington, D. C. 20044 Jackson, Michigan 49201 Mr. Frank W. Karas, Chief Public Proceedings Branch Joseph Rutberg, Esquire Office of the Secretary. U. S. Atomic Energy Commission U. S. Atomic Energy Commission 7920 Norfolk Avenue Washington, D. C. 20545 Bethesda, Maryland Joseph J. Saunders, Esquire Abraham Braitman, Chief Department of Justice Office of Antitrust and Indemnit:

Antitrust Division. U. S. Atomic Energy Commission Washington, D. C. 20530 Washington, D. C. 20545

o .- . .

Honorable Frank Kelly Hugh K. Clark, Esquire Post Office Box 127-A Attorney General Kennedyville, Maryland 21645 State of Michigan Lansing, Michigan 49813 Robert J. Verdisco, Esquire Counsel for AEC Regulatory Staff Dr. J. Venn Leeds, Jr.

U. S. Atomic Energy Commission Post Office Box 941 Washington, D. C. 20545 Houston, Texas 77001 William T. Clabault, Esquire Mr. James B. Falahee David A. Leckie, Esquire General Attorney Department of Justice Consumers Power Company Antitrust Division 212 West Michigan Avenue Post Office Box 7513 Jackson, Michigan 49201 Washington, D. C. 20044 Atomic Safety and Licensing Board Panel U. S. - Atomic Energy Commission Washington, D. C. 20545 x'e.l.. f ' d k t'4 ,

Robert A. Jablon One of the Attorneys for the Municipals of Coldwater, Grand Haven, Holland, Traverse City, and Zeeland, Michigan; the Michigan Municipal Electric Association, and the Northern Michigan and Wolverine Ele ctric Cooperatives, Inc Law Offices of:

Spiegel & McDiarmid 2600 Virginia Avenue, N.W.

Washington, D. C. 20037

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