ML19329E407

Memorandum Re Claims by Util for Withholding Production of Documents.Util Fails to Demonstrate Existence of Privilege. Documents Should Be Produced.Certificate of Svc Encl

ML19329E407
Person / Time
Site:	Midland
Issue date:	09/19/1973
From:	Jablon R MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19329E404	List: ML19329E403 ML19329E407
References
NUDOCS 8006120732
Download: ML19329E407 (13)

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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION Consumers Power Company ) Docket No. 50-329A MEMORANDUM BY INTERVENOR MUNICIPALS AND COOPERATIVES ON CLAIMS BY CONSUMERS POWER COMPAlW FOR WITHHOLDING PRODUCTION OF DOCUMENTS Consumers Power Company has submitted to the Presiding Examiner in camera a large number of documents on which it asserts claims of privilege. These are mainly listed in two groups.. A number of documents are listed under a general claim that they come within the purview of attorney-client privilege or that they constitute attorney work product. It

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has not yet submitted a list of the documents. However, except for a showing of who is shown to have received copies from the documents themselves, the list of documents submitted by Consumers Power apparently will not give sufficient information with respect to any of the withheld documents, showing characterizing circumstances necessary to determine whether any of the withheld documents qualify as privileged. Not yet having the list or a showing of the characterizing circumstances

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It did submit a list on April 26, 1973, but this list was to have been supplemented.

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relating to each document sought to be withheld, the l l

municipal-intervenors submit a memorandum at this time dealing generally with Consumers Power's claims and the applicable principles of law concerning privileged documents.

I PRINCIPLES OF LAW RELATING TO EDISON'S ASSERTIONS OF ATTORNEY-CLIENT OR ATTORNEY WORK PRODUCT Attorney-client privilege is narrowly limited to purely attorney-client communications. The purpose of the privilege is to promot,e freedom of consultation between client and attorney, by insuring that the client may make frank, confidential revelations to his attorney without fear of a forced disclosure. Hunt v. Blackburn, 128 U. S. 464, 470; Modern Woodmen of American v. Watkins, 132 F.2d 352 (CA 5);

United States v. United Shoe Machinery Coro., 89 F. Supp. 357, 358 OD . C. Mass.). Likewise, the concept of attorney's work product is narrow in scope and is limited in application. An attorney's work product encompasses the attorney's " impressions, observations and opinions" which he records "as the product of his investigation of a case in the actual preparation for trial on behalf of a client." Zenith Radio Coro, v. Radio Corn. of Amer ica, 121 F. Supp. 792, 795 CD. Del.). The concept of work l

product is to protect the attorney and assure a degree of privacy, free from unnecessary or needless interference from an opposing party or counsel, allowing him to assemble information, prepare legal. theories and plan strategy in order to properly prepare his client's case, Hickman v. Tavlor, 329 U. S. 495. The work product concept is thus limited to this area of litigation and. work in~the pending_ case. Not all work done by an attorney falls within the work product-protection. Mutual knowledge of all relevant facts gathered by both parties is essential to -

proper. litigation. As stated by the Court in Hickman v. Tavlor,

! supra, at page 511:-

"We do not mean to say that all written

< materials obtained or prepared by an

adversary to counsel with an eye toward

. litigation are necessarily free from 4 discovery in all cases. Where relevant

-and non privileged facts remain hidden in an attorney's files and where production of those-facts is essential to the preparation of one's case, discovery may properly be had."

It is basic that, since the work product concept as well as attorney-client privilege runs directly counter i to the goal of full disclosure sought by the liberalized discovery rules in federal, as well as other, present day 1

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litigation, United States v. Vehicular Parkinc, 52 F. Supp.

751 (D. Del.), they are strictly construed in application in accordance with their narrow objects stated above. United States v. United Shoe Machinerv Corn., suora, at page 358.

As stated in Peoole's Bank v. Brown, 112 Fed. 652, 654 (CA 3):

". . . But it [the attorney-client privilege]

has been forceably and vehemently assailed . . .

and the suppression of evidence which it effects can be justified only when the limitations which restrict the scope of its operations are assiduously heeded. Therefore it is requisite that in every instance it shall be judicially determined whether the particular communication in questiosbe really privileged, ,and, in order that such primary determination may be advisedly made, it is indispensable that the court shall be apprised, through preliminary inquiry, of the characteriz-ing circumstances . . . .

It follows from the exceptional nature of the privilege that the party claiming a privilege has the burden of establishing its existence with respect to each communication. Phelos Dodce Corcoration v. Guerrero, 273 Fed. 415, 418 (CA 9). There is no presumption of privilege.

l Peoole's Bank v. Brown, suora; Re Morrell's Estate, 277 N. Y. Supp.

262, 268. Any privilege there may be cannot be blanketed in by general ssertions of privilege. A privilege must be shown to 1

exist by appraisal of the special relationship pertaining to each individual document, which'must be separately consider ed and separately found to be privileged. Zenith Radio Coro, v. Radio Coro. of America, 121 F. Supp. 792, 794, People's Bank v. Brown, supra.

In final analysis, determinations as to whether a privilege exists with respect to particular documents, are questions of fact to be decided by the Courts, and in the instant case by the Presiding Examiner, Phelos Dodce Coro, v.

Guerrero, suora, see Steiner v. United States, 134 F.2d 931, 935 (CA 5), after inspection of each document, United States v.

vehicular Parkina, suora, upon further preliminary inquiry by the Presiding Examiner, and after disclosure by Edison of the

" characterizing circumstances surrounding each document, People's Bank v. Brown, suora; A cursory perusal of the lists of documents claimed by Consumers Power to be privileged as attorney-client con-fidential communications indicate, from the following principles of law, that Edison should provide information showing the characterizing circumstances as to each document preliminary to a ruling by the Presiding Examiner. Such information should

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include statements indicating whether any withheld document ,

was.already disclosed to intervenors, or their counsel, or consultants, in the course of discovery or negotiations, whether it was heretofore disclosed by production of a copy of the document; Whether it is part of a series of documents already produced; Whether it is part of a series of other documents withheld; and the subject matters covering such documents and series of documents. All such information should be provided to intervenors as wel1 as the Hearing Board so that the inter-venors may properly prepare a memorandum of their position as to Whether particular documents are actually privileged or U

if privileged Whether the privilege was waived. The need for a presentation of all the characterizing circumstances is emphasized by the following principles relating to privilege applicable to Consumers Power's lists of documents:

1. Documents Which are not written by or to an attorney are not privileged as attorney-client confidential communications. 8 Wigmore on Evidence (3rd Ed.) Sec. 2292; United States v. United Shoe Machinerv Coro., 89 F. Supp. 357, 358 (D. Mass.).

• / We believe other parties should also receive this information so that they may advise the Hearing Board.

. 2. Not all documents written by or to an attorney are privileged. This is particularly true as to a cor-proation's " house counsel". As stated in United States v.

United Shoe Machinerv coro., suora, at page 360, "No doubt a high percentage of the communications to or from them

[ house counsell fall outside the privilege . . . .

3. Where a communication is prepared for a clear business purpose, there is no privilege even though written by or addressed to house counsel or presented to house counsel As stated in Zenith Radio Coro. v. Radio Coro.

for his views.

of America, 121 F. Supp. 792, 794 (D. Del.), communications are not privileged which are " solely, or even largely, business advice." (Emphasis supplied]

4. Communications by or to a person who serves in a dual capacity as business executive and house counsel are particularly suspect, United States v. Vehicular Parkina, 52 F. Supp. 751, 753-4 (D. Del.). Such communications must be scrutinized to determine whether they are " business" in nature and, therefore, not privileged, Radio Coro. of America v.

Rauland Corcoration, 18 F. A. D. 440, 443 (N. D. Ill.).

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5. Not all documents in the possession of the attorney for a party are privileged. The " work oroduct privilege is limited to the work croduct of the attorney with resoect to the cendina action and coes no further."

Iowa Home Mutual Casualty 27 C. J. S., Section 72; Henke v.

Cv. 87 N. W. 2d., 920, 926; Zenith Radio Coro, v. Radio Corocration of America, 21 F. Supp. 792, 795; Hickman v. Tavlor, 329 U. S. 495 (emphasis supplied) .

6. Even if a privilege would exist with respect to a particular document, the privilege may be waived by revealing elsewher2 in any form, the same information or an attorney's opinion as is contained in the communication or document claimed to be privileged, Radio Coro, of America v.

Rauland Corporation, suora, at page 444. Disclosure of a privileged document by permitting its inspection waives the privilege, Schwartz v. Travellers Insurance Company, 17 F.R.D. 320 1

(S.D.N.Y.); United States v. Shibley, 112 F. Supp. 734, 741 (S. D. Calif.). Where disclosure of the informatial is made, the purpose of the privilege to encourage frank revelation by the I

client without fear of disclosure ceases. The basic litigation goal of complete discovery should then be satisfied. Once the veil of secrecy is lifted by disclosure, it cannot be lowered again.

s United States v. Shibley, supra. As stated In Re Associated Gas & Electric Co. , 59 F. Supp. 743, 744-5 (S.D.N.Y.), "Once the confidential matter is voluntarily disclosed to the public, it is no longer a secret and the privilege which might be claimed

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under the statute disappears."

7. Disclosure of one of a series cf communications which together constitute an integrated transaction ne.cessarily waives the privilege as to the remaining documents in that series. Censumers Power "cannot open the door to part of 4 the facts and close it as to the remainder". Willard C. Beach Air Brush Co. v. General Motors Corp., 118 F. Supp. 242, 247 (D. N. J.).

CONCLUSION The above cases show that doctrines of privilege are limited and must be specifically supported in light of the circumstances both to affirmatively demonstrate the existence of a privilege and to demonstrate the absence of waiver. Hence, Consumers Power has failed to do this, the documents should be

• / For these purposes one need not determine whether a waiver can result, as Consumers Power claims, from revelation under protest, pursuant to court order.

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turned over to the parties. At the least, the Company should have

! to fully justify its claim.

Respectfully submitted,

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Robert A. Jablon One of the attorneys for Traverse City, Coldwater, Holland, Grand Haven and l Zeeland, Michigan, the Michigan Municipal 4

Electric Association, Wolverine Electric Cooperative, and Northern Michigan

' Electric Cooperative i

September 19, 1973 1

l . Law Offices:

Spiegel & McDiarmid 2600 Virginia Avenue, N. W.

Washington, D. C. 20037 4

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AFFIDAVIT DISTRICT OF COLUMBIA, SS:

Robert A.Jablon, being first duly sworn, deposes and says that he is one of the attorneys for the Cities of Traverse City, Coldwater, Holland, Grand Haven and Zeeland, Michigan, the Michigan Municipal Electric Association, and Northern Michigan Electric Wolverine Electric Cooperative, Cooperative and that as such he has signed the foregoing Memorandum by Intervenor Municipals and Cooperatives on Claims by Consumers Power Company for Withholding Production of Documents for and on behalf of said parties; that he is authorized so to do; that he has read said Memorandum and is familiar with the i

contents thereof; and that the matters and things therein set

' forth are true and correct to the best of his knowleFge, information or belief.

,s. ,

< - ', ,- ' 4, Robert A. Jablon Subscribed and suorn to before me this 19th day of September, 1973.

Notary Public My commission expires: sentember 30, 1974

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

) Docket No. 50-329A Consumers Power Company )

CERTIFICATE OF SERVICE I hereby certify that the Memtoandum by Intervenor Municipals and Cooperatives on Claims by Consumers Power Company for Withholding Production of Documents in the above-captioned matter was served upon the following by deposit in the United States mail, first class or air mail, this 19th day of September, 1973.

Alan Rosenthal, Esq., Chairman Mr. Frank W. Karas, Chief Atomic Safety and Licensing Public Proceedings Branch Board Panel Office of the Secretary U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, N. W. 1717 H Street, N. W.

Washington, D. C. 20545 Washington, D. C. 20545 Abraham Braitman, Chief Atomic Safety and Licensing Office of Antitrust and Board Panel Indemnity U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, N. W.

1*/17 H Street, N. W. Washington, D. C. 20545 Washington, D. C. 20545 Harold P. Graves, Esq.

Robert J. Verdisco, Esq. Vice President and General Counsel Counsel for AEC Regulatory Consumers Power Company Staff 212 West Michigan Avenue U. S. Atomic Energy Commission Jackson, Michigan 49201 1717 H Street, N. W.

Washington, D. C. 20545 Wallace E. Brand, Esq.

Antitrust Public Counsel Jerome Garfinkel, Esq., Chairman Department of Justice Atomic Safety and Licensing Board P. O. Box 7513 U..S. Atomic Energy Commission Washington, D. C. 20044 1717 H Street, N. W.

Washington, D. C. 20545

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Joseph Rutberg, Esq. Joseph J. Saunders, Esq.

U. S. Atomic Energy Commission Antitrust Division 7920 Norfolk Avenue Department of Justice Bethesda, Maryland P. O. Box 7513 Washington, D. C. 20044 Hugh K. Clark, Esq.

P. O. Box 127 A Honorable Frank Kelly Kennedyville, Maryland Attorney General State of Michigan William.T. Clabault, Esq. Lansing, Michigan 49813 David A. Leckie, Esq.

Department of Justice Dr. J. Venn Leeds, Jr.

Antitrust Division P. O. Box 941 .

P. O. Box 7513 Houston, Texas 77001 Washington, D. C. 20044 William W. Ross, Esq.

Mr. James B. Falahee Wald, Harkrader and Ross General Attorney 1320 - 19th Street, N. W.

Consumers Power Company Washington, D. C.

212 West Michigan Avenue Jackson, Michigan 49201 r

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Robert A. Jablon Law Offices:

Spiegel & McDiarmid 2600 Virginia Avenue, N. W.

Washington, D. C. 20037 l

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