ML19329F243

Answer in Opposition to Intervenors' 730501 Motion to Compel Production of Info Re Internal Processes by Which Util Complied w/720726 Joint Document Request.Ks Watson 730504 Affidavit & Certificate of Svc Encl

ML19329F243
Person / Time
Site:	Midland
Issue date:	05/04/1973
From:	Ross W, Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19329F244	List: ML19329F243 ML19329F249
References
NUDOCS 8006230765
Download: ML19329F243 (7)

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UNITED STATES OF AMERICA -

ATOMIC ENERGY COMMISSION.

In the Matter of ) -

) Docket Nos. 7 .

CONSUMERS POWER COMPANY ) and 50-330A (Midland Units 1 and 2) )

APPLICANT'S ANSWER TO ,

'INTERVENORS MOTION TO COMPEL Pursuant to Section 2.730(c) of the Commission's Rules of Practice, 10 C.F.R. Part 2, Consumers Power Company

(" Applicant") files its answer in opposition to the Motion to Ce mel, dated May 1, 1973, filed by the intervening par-ties- Said Motion " requests " Applicant to provide informa-tion relating to the internal processes by which Applicant complied with the Joint Document Request, filed July 26, 1972. ~

Similar efforts by the Intervenors to obtain such information were rejected by the Board in an order dated -

April 4, 1973. There, the Board held, inter alia, tha t the Intervenors had made "no showing of a compelling need" for a document index relating to the Joint Document Request (p.1).

Applicant submits tha t , for the reasons set forth below, the instant Motion seeks esse'ntially the same information as the prev 13us . motion denied by ' the Board and that this Motion should be summarily denied.

I. The Information Intervenors feek is not Relevant to Anv Issue Raised in tais Proceeding.

According to Sect, ion 2.740 (b) (1) of the Rules , the scope of discovery is limited to " matters in controversy" 8006'230 9 4 5 THIS DOCUMENT CONTAINS P00R QUAllTY PAGES l

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Lwhich have been' identified by the hearing Board. This Board

' . set' forth the contraverted matters in this proceeding in its Order of August 7, 1972 (p.3). The processes by which Appli-cant decided 'which ;of the four million documents it reviewed were responsive to the Joint Document Request does not present

. , . ; . _ .an. issue with regard to the " access to coordination" issues ,.

set forth in the Board's Order. Hence, since the discovery ,'.

sought here does not relate to an issue with which discovery  ;

can be'had, it must be denied as irrelevant. i

!- The instant situation is directly in point with f r

Giordani v. Hoffman, 278 F. Supp. 886 (E.D. Pa.): where the l defendant sought to discover "the mode" in which the plain-tiff prepared to respond to discovery. 278 F. Supp. at-891.

The court held that it failed "to see how information regarding the actions which transpired in prepara-tion for a deposition have any rela-tionship to the merits . . . ." 278 F. S upp . at 89 2.

Thus , it is. clear that the Motion seeks information which is not relevant to this proceeding.

II. Applicant's Efforts to Comply with the Joint . Document

j. Recuest are Work Product and/or-Privileged.

Each of the documents furnished in response to the Joint Document _ Request 'was extracted from the files either

.by Applicant's counsel, or by individuals working under the

- direct supervision of counsel, -in preparation for this pro-F 4 e F9' $

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. ceeding. Similarly, all produced documents were reviewed by Applicant's counsel and reflect counsel's conclusion that they are called for by one or more discovery demands .

Thus, " instructions given to all persons involved Jin the gathering and supplying of documents" (p.1) which the

~Intervenors seek would in most, if not all, instances consti- <

tute privileged attorney-client communications.~1/ Even where not privileged communications, the Motion to Compel obviously i

contemplates an inquiry into work product undertaken in .

I preparation for this proceeding and also seeks to inquire '

i into the mental impressions and conclusions of Applicant's -

counsel concerning the Joint Document Request. ,

The Commission's Rules direct the hearing Board to prevent " disclosure of the mental impressions, conclusions, opinion or legal theories of any attorney . . . concerning the proceeding. " Section 2. 740 (b) (2) of the Rules of Practice.

These Rules confirm the basic principles set forth in Hickman l

v. Taylor, 329 U.S. 495 (1947) which "made it plain that the j

' work product' doctrine protected the party against discovery of _information within its purview regardless of the method by which the information was sought. " 4 Moore's Federal Practice,

p.26-452 (1970. ed.). Thus, in Bercow v. Kidder, Peabody & Co.,

1/ Similarly, the " handwritten numbers on the bottom of th'e

. discovery document" about which the Motion inquires (p. 4) were prepared by or for counsel for Applicant's internal use:in preparation for this proceeding.

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similar information, the Intervenors ' Motion is devoid of any showing of need for the material they seek.

IV. The Intervenors Would Have Applicant Prepare Their Case.

As demonstrated in Part III, supra, the Intervenors have the ability -to ascertain the extent of compliance with the Joint Document Request, but prefer to shif t this task to the Applicant. Since the subject of the Intervenors ' inquiry relates ~ to their discovery, thel Motion to Compel is apparently an ' effort to have Applicant prepare the Intervenors ' case. It is well-settled that discovery cannot be utilized for such pur-a poses. Hickman v. Taylor, 329 U.S. 495 (1947).

V. The Board Should Reject Intervenors Innuendos About Non-Compliance .

• The Intervenors' effort to discredit Applicant's statement of compliance by innuendo and surmise only demon-strates .the weakness of their position. On April 2, 1973, 4

counsel for Applicant wrote the other parties that it had  ;

fully complied with the Joint Document Request. The only qualification to this statement was that compliance had taken account of the Board's Orders and understandings of counsel y

about die . Reques t. Since counsel for the Intervenors are, of course, aware of these orders and understandings, Appli-cant cannot fathom what further " explanation" (p.2) Inter-venors seek Wbout Applicant's compliance.

In - the face of Intervenors ' suggestion that Appli-T

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39 F.R.D. 357-(S.D.N.Y. 1965), the court denied discovery inquiring into the method by which a defendant prepared for a deposition, holding that the discovery represented "an indirect attempt to ascertain the manner in which an adver-sary is preparing for trial." 39 F.R.D. at 358.

. ;_ . . . , . Thus, .the Intervenors ' effe.rts to inquire into the

' internal processes by which Applicant responded to the Joint Document Request flies .in the face of the Commission's Rules and.well-settled " work product" principles, and should there- ,

fore be denied by the Board. f i

III. The Intervenors Do Not Need the Information They Seek. .

According to the Intervenors, they require the in-formation sought bacause they "have no way of ascertaining I

the [ Applicant's ] extent of compliance" with the Joint Docu-ment Request (p.2). This statement is without basis in fact.

As the Board observed in its order of April 9, 1973, Applicant has responded to Joint Document Request "on a piece-meal basis", thus affording the Intervenors " substantial time" to prepare an index or any other method of ascertaining com-pliance (p.1). Moreover, since the Intervenors jointly authored the Joint Document Request, they are in a better position than Applicant to ascertain whether the Joint Document Request has been fully satisfied.

In short, as in their previous efforts to seek m

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cant has not complied fully with the ' Joint Document Request,"

we attach hereto an affidavit affirming that document pro-duction has been completed. This affidavit should dispel any alleged concerns about Applicant's compliance with the Reques t.

WHEREFORE, Applicant urges the Board to deny the Motion to Compel of May 1,1973.

, Respectfully submitted, f /11 /> k k ? O '

i-w ATa.~ Warrield 'jtoss

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Ke.i th S . Watson Of Counsel:

Harold P. Graves, Esquire Consumers ' Power Company 212 West Michigan Avenue Jackson, Michigan 49201 May 4, 1973

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l 2/ The Motion (p. 3) makes .much of the fact that Applicant sent more' documents to its Washington counsel than App-licant made available to the Intervenors. In view of the intense time pres ~sure, no. indexes were maintained by Applicant which would have permitted elimination of duplicate copies. Where such duplicate copies came to light during the final. review process , they were not produced -- as directed in the instructions to the Joint Document Request. In addition , the number. of documents

' responsive to the Joint Document Request was substanti-ally reduced pursuant to orders of-the Board and under--

standings of counsel; and other documents were properly withheld as privileged. Thus, it is hardly surprising that Applicant sent more documents .to its Washington counsel . than were eventually produ .td for inspection.

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION  ;

In the Matter of )

) Docket Nos. 50-329A CONSUMERS POWER COMPANY ) and 50-330A (Midland Units 1 and 2) )

0 CERTIFICATE OF SERVICE I hereby certify that copics of APPLICANT'S ANSWER

TO INTERVENORS MOTION TO COMPEL, dated May 4, 197 3, in the -

above-captioned matter have been served on the following by , l deposit in the United States mail, firs t class or air mail, l this 4 th day of May , 1973: -

1 Jerome Garfinkel, Esq. ,- Chairman Dr. J. V. Leeds, Jr.  ;

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Atomic Safety and Licensing Board P. O. Box 941 Atomic Energy Commission Houston, Texas 77001 Washington, D. C. 20545 William T..Clabault, Esq. i  ;

Hugh K. Clark, Esq. Joseph J. Saunders, Esq. '

P. O. Box 127A David A. Leckie, Esq.

l Kennedyville, Maryland 2164 5 Public Counsel Section

! Antitrust Division James Carl Pollock, Esquire Department of Justice 2600 Virginia Avenue, N. W. Washington, D. C. 20530 l Washington, D. C. 20037 l

l Joseph Rutberg, Jr., Esq.

! Antitrust Counsel.for j AEC Regulatory Sta ff l

Atomic Energy Commission  !

Washington, D. C. 20545 l

Wallace E. Brand, Esq.

, Antitrust Public Counsel Section l P. O. Box 7513 l Washington, D. C. 20044 Atomic Safety and Licensing Board Atomic Energy Commission Washington, D. C. 20545 i

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! Keith S. Watson

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