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| comparison of the interrogatory answers and the Hauser Affidavit that there is nc legitimate reason for the City's motion to strike. CEI has submitted all of its documents to the Special Master for examination, in, camera. Plainly, he is fully qualified to resolve the claims of privilege on the basis of the # | | comparison of the interrogatory answers and the Hauser Affidavit that there is nc legitimate reason for the City's motion to strike. CEI has submitted all of its documents to the Special Master for examination, in, camera. Plainly, he is fully qualified to resolve the claims of privilege on the basis of the # |
| legal briefs and the other material before him. Those individuals' associated with particular documents car ce determined from the documents themselves, the answers to interrogatories and the Hauser Affidavit. The Licensing Board has already ruled that the latter document has only limited application to the final resolution of the claims. As so qualified, the Hauser Affidavit deserves consideration. It represents a careful, time-consuming and honest effort by the Corporate Solicitor of CEI to provide factual information to the Special | | legal briefs and the other material before him. Those individuals' associated with particular documents car ce determined from the documents themselves, the answers to interrogatories and the Hauser Affidavit. The Licensing Board has already ruled that the latter document has only limited application to the final resolution of the claims. As so qualified, the Hauser Affidavit deserves consideration. It represents a careful, time-consuming and honest effort by the Corporate Solicitor of CEI to provide factual information to the Special Master that, of necessity, was known only to the affiant. |
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| Master that, of necessity, was known only to the affiant. | |
| Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Gy: LL O O <.rb %k ' | | Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Gy: LL O O <.rb %k ' |
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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198L1911998-12-21021 December 1998 Submits Comments Re Proposed Rule to Revise 10CFR50.59, Changes,Tests & Experiments ML20198L1361998-12-15015 December 1998 Comment Opposing Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint of NPP ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20217J2161998-03-27027 March 1998 Comment on Proposed Generic Communication Re Lab Testing of nuclear-grade Activated Charcoal ML20217F5361998-03-25025 March 1998 Comment Opposing Draft Regulatory Guide DG-1071, Std Format & Content for Post-Shutdown Decommissioning Activities Rept ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20199J4651998-01-22022 January 1998 Comment Opposing Draft RG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps. RG Unnecessary Based on Use of EPRI Guideline & Excellent Past History of Commercial Grade Items at DBNPS ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20148M6421997-06-17017 June 1997 Comment on Proposed NRC Bulletin 96-001,suppl 1 Re Control Rod Insertion Problems.Nrc Should Review Info Provided in Licensee 970130 Submittal & Remove Statements of Applicability to B&W Reactors from Suppl Before Final Form ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20097G5731996-02-13013 February 1996 Comment Supporting Petition for Rulemaking PRM-50-63 Re Use of Potassium Iodide ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20096E9781996-01-0808 January 1996 Comment on Proposed Suppl to GL 83-11, Licensee Qualification for Performing Safety Analyses in Support of Licensing Actions ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20087J3611995-08-14014 August 1995 Comment Opposing Proposed Rule 10CFR2 Re Rev of NRC Enforcement Policy ML20086M8241995-06-29029 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style ML20083M8701995-05-10010 May 1995 Comment on Proposed Rule 10CFR50 Re Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactor ML20081C8841995-03-0303 March 1995 Comment Re NRC Proposed Generic Communication Suppl 5 to GL 88-20, IPEEE for Severe Accident Vulnerabilities. Util Ack NRC Efforts to Reduce Scope of GL 88-20,but Believes That Proposed Changes Still Overly Restrictive ML20077M5831995-01-0404 January 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Nuclear Power Reactors ML20072K3611994-08-16016 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Plans for Storage of Sf at Davis Besse NPP ML20072K4411994-08-14014 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Dry Storage of Nuclear Waste at Facility in Toledo,Oh ML20072K5261994-08-12012 August 1994 Comment Supporting Proposed Rule 10CFR72 Re Addition of Standardized NUHOMS Horizontal Modular Storage Sys to List of Approved Sf Storage Casks ML20072B1581994-08-0909 August 1994 Comment Opposing Proposed Rule 10CFR72 on List of Approved Spent Fuel Storage Casks:Addition ML20029D8221994-04-19019 April 1994 Comments on Proposed Rule 10CFR50 Re Codes & Stds for Nuclear Power Plants;Subsection IWE & Subsection Iwl ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc 1999-09-30
[Table view] Category:OTHER LEGAL DOCUMENT
MONTHYEARML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20114A8841992-08-17017 August 1992 Designation of City of Brook Park,Oh of Adopted Portions of Summary Disposition Pleadings.* Brook Park Not Advancing Any Addl Argument or Analysis in Connection W/Designation,Per 920806 Memorandum & Order.W/Certificate of Svc ML20101E5241992-06-15015 June 1992 Notice of Appearance on Behalf of City of Brook Park,Oh.* Listed Counsel Entering Appearance on Behalf of City of Brook Park,Oh in Facility Proceeding ML20091E2431992-04-0202 April 1992 Notice of Appeal.* Appeals Decision of ASLB in Proceeding LBP-92-04 ML20085K7131991-10-23023 October 1991 Notice of Appeal.* Notice Served Due to Board Error in Granting Hearing on Applications for Suspension of Antitrust License Conditions ML20079H4331991-10-0101 October 1991 Notice of Appearance.* Enters Appearance Into Proceeding. W/Certificate of Svc ML20085K8371991-10-0101 October 1991 Notice of Appearance.* Informs of Entrance Into Proceeding. Name,Address & Telephone Number Encl.W/Certificate of Svc ML20083F1071991-09-26026 September 1991 Notice of Appearance.* Requests Appearance in Proceeding Re Denial of Applications for OL Amends to Suspend Antitrust License Conditions.W/Certificate of Svc ML20083F1611991-09-24024 September 1991 Notice of Appearance.* Informs of Entrance of Appearance Into Proceeding.W/Certificate of Svc ML20083F1411991-09-23023 September 1991 Notice of Appearance.* Informs of Entrance of Appearance Into Proceeding.W/Certificate of Svc ML20076D2631991-07-22022 July 1991 Notice of Intent to Participate.* Files Notice of Intention to Participate in Proceeding Re Facility Concerning Antitrust Laws.W/Certificate of Svc ML20077C9371991-05-0505 May 1991 Notice of Withdrawal of Appeal.* Intervenor Withdrawing Notice of Appeal,Filed 901119 & Appellate Brief,Filed 901219 Re Facility.W/Certificate of Svc ML20235T6501988-11-10010 November 1988 Incomplete Abstracts of Papers,Per 58th Annual Meeting ML20207K1101988-09-13013 September 1988 Comments of City of Cleveland,Oh in Opposition to Application for Suspension of OL Antitrust Conditions. Centerior Energy Corp Application Should Be Denied Because Company Misinterprets Scope of Sholly Amend ML20151D3321988-07-0707 July 1988 Requests That Deadline for Filing Comments on Centerior Application Be Extended 60 Days,Until 880914.Certificate of Svc Encl ML20197F5631988-06-0606 June 1988 Receipt of C Kline,T Burling,R Bimber & R O'Connell Petition,On Behalf of Concerned Citizens of Lake County, Citizens of Geauga County & Concerned Citizens of Ashtabula County,For Director'S Decision Under 10CFR2.206 ML20235T6211988-02-28028 February 1988 Northeastern Oh Earthquake of 860131:was It Induced.* Paper from Bulletin of Seismological Society of America,Vol 78, Number 1 ML20215D5861987-06-12012 June 1987 Response of Intervenors to Decision of Administrative Judges Hoyt & Kline on 870415 to Allow Low Level Radwaste on Davis-Besse Site.* Great Lakes Area People Should Not Be Stuck W/Amateur Handling of Radwastes.W/Certificate of Svc ML20212F5411987-03-0303 March 1987 Memorandum Re Antitrust Reviews Associated W/Cleveland Electric Illuminating Co & Ohio Edison Co 870123 Application for Amend to License NPF-58 Concerning Sale & Leaseback Transactions.Supporting Documentation Encl ML20214C7641986-11-0303 November 1986 Resolution Encouraging NRC to Withhold Approval of Operation at More than 5% Capacity Pending Review of Evacuation Plan.Served on 861120 ML20215K4641986-10-24024 October 1986 Resolution Calling on R Celeste to Take Steps to Permanently Close Subj Plants & Ban All Future Plants in State of Oh & Advocating Operation of Monitoring Sys at Perry Power Plant by Party Other than Util.Served on 861027 ML20214P9871986-09-18018 September 1986 Notice of Change of Address for Shaw,Pittman,Potts & Trowbridge.Certificate of Svc Encl ML20214Q3441986-09-18018 September 1986 Notice of Change of Address & Telephone Number for Licensee Counsel,Effective 860927.Certificate of Svc Encl.Related Correspondence ML20214R0631986-09-17017 September 1986 Ordinance 1986-189 Requesting Rev of Radiological Emergency Response Plan Extending Boundaries to Include City of Willoughby.Served on 860925 ML20205F2891986-08-15015 August 1986 Response Recommending Denial of Sunflower Alliance,Inc 860808 Notice of Appeal from Aslab 860725 Decision ALAB-841 Re Emergency Planning.Certificate of Svc Encl ML20202F8481986-07-10010 July 1986 Notice of Hearings on 860805-07 in Sandusky,Oh.Served on 860711 ML20206D6821986-06-18018 June 1986 Notice of Appearance in Proceeding.Certification of Svc Provided ML20195B5251986-05-20020 May 1986 Resolution 86-45 of City of Broadview Heights,Oh Opposing Util Application to Bury Radioactive Sludge at Site. Resolution Declared Emergency Measure for Preservation of Public Health & Safety.Served on 860528 ML20198Q8141986-04-28028 April 1986 Resolution 63-86 Opposing Burial of Radioactive Sludge in Lands on Plant Site Near Navarre Marsh & Adjacent to Lake Erie.Served on 860604 ML20155F6341986-04-17017 April 1986 Notice of Appearance in Proceeding.Certificate of Svc Encl ML20203B6461986-04-14014 April 1986 Notice of Appearance in Proceeding.Certificate of Svc Encl. Served on 860417 ML20235T4461986-04-0808 April 1986 Earthquake on 860131 Near Chardon,Oh & Significance for Perry Nuclear Power Plant & for Earthquake Hazard in Eastern Us.* Testimony Before Subcommittee on Energy & Environ ML20205M3981986-04-0707 April 1986 Amended Emergency Resolution 29-86 Urging Governor of State of Oh to Aggressively Examine & NRC to Hold Formal Hearings on Burial of Nuclear Waste on Site.Served on 860414 ML20154R5891986-03-25025 March 1986 Certifies Svc of Appeal Board 860325 Grant Endorsing Applicant Motion for Leave to Resubmit Figures to Listed Individuals ML20138A8331986-03-17017 March 1986 Notice of Appearance in Proceeding.Certificate of Svc Encl ML20153G3331986-02-25025 February 1986 Notice of Appearance in Proceeding.Certificate of Svc & Svc List Encl ML20205K4951986-02-25025 February 1986 Notice of Appointment of Hf Hoyt as Presiding Officer to Conduct Informal Proceeding to Consider & Decide All Issues Re Util 830714 Request for Authorization for Onsite Disposal of Byproduct Matl,Per 860220 Order.Served on 860226 ML20202J8391986-02-17017 February 1986 Resolution 1986-12 Requesting That NRC Rescind Approval for Radwaste Disposal at Plant.Served on 860415 ML20203A0021986-02-17017 February 1986 Resolution 86-10 Opposing Util Application to Bury Radioactive Sludge at Plant.Served on 860415 ML20205K4821986-02-17017 February 1986 Resolution 86-10 (Effective 860217) Opposing Util Application to Bury Radioactive Sludge at Site.Served on 860226 ML20235T4301986-01-31031 January 1986 Studies of 860131 Northeastern Ohio Earthquake.* ML20198H8971986-01-29029 January 1986 Response to Aslab 860103 Memorandum & Order Re Hydrogen Control Rule.Consideration of Accidents Involving Station Blackout W/Rcic Unnecessary to Determine Adequacy of Preliminary Analysis 1998-08-26
[Table view] |
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UNITED STATES OF AMERICA "" < , ..)
NUCLEAR REGULATORY COMMISSION . . -
. . . . L > . 2., 3 >
R0 Before the Atomic Safety and Licensing Scard g : rgy
,s
- //
In the Matter of:
L i ('
THE TOLED0 EDISON COMPANY and )
THE CLEVELANO ELECTRIC ILLUMINATING COMPANY (Davis-BesseNuclearPowerStation, Occket No( . 50-3g M '
cu-440A Unit 1) ) E0-441A THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, ET AL.
)
(Perry Nuclear Power Plant, ) '
Units 1 and 2) )
~ ~
REPLY TO THE CITY OF CLEVELAND'S MOTION ..
TO STRIKE THE AFFIDAVIT CF CONALD H. HAUSER 1.
On June 5, 1975, the City of Cleveland filed with the Licensing Board a motion to strike Donald H. Hauser's Affidavit in support of the claims of attorney-client and work prcduct privilege asserted by The Cleveland Electric Illuminating Ccmpany in connection with a number of documents :ubmitted to the Special Master for examination, in_ camera. This written cotion folicwed by two days the Licensing Board's Memorandum and Order of June 3, 1975, denying a similar oral motion by the City to strike the Hauser Affidavit, and ruling that certain conclusory statements made therein - _i_.e_., as to the individuals considered by Mr. Hauser to be within the corporate " control group" and as to -
documents said to have been prepared "in response to requests for advice by counsel" -- should not be accepted by the Special Master as binding assertions.
- 2. In light of the Licensing Board's Memorandum and Order, a reply to the City's written motion to strike requires response only because it is so i
1 M
80021209ff 1
misleading. If the City's intent was to discredit Mr. Hauser, the paper filed shows a marked degree of bad judgment. Donald H. Hauser has been a legal officer of CEI for some 15 years. In that position, he has been primarily responsible for matters handled essentially by the CEI Legal Department, and has also been the individual to coordincte on legal matters handled for CEI by outside counsel. To suggest in such c-lrcumstances that he has insufficient first-hand knowledge to make the statements set forth in his Affidavit is the height of absurdity. .The suggestion is even more ludicrous when it is remem-bered that the documents in questien all came from Mr. Hauser's own working files, not from files located in the offices of other personnel at CEI. -
3 The City takes issue with Mr. Hauser's identification of certain CEI personnel as being within the corporate " control grot.p (Motion, p. 3).
While the Licensing Board has already ruled that such an assertion is not to be conclusive en the Special Master, we would point out that such a statement provides precisely the sort of information which Applicants' counsel advised the Licensing Board at the May 14 Prehearing Conference (Tr. 1142-1143) would be included in the Hauser Affidavit. We would note further that Mr. Hauser's opinien in this regard does not expand the interrogatory answers submitted by CEI to the Department of Justice. Those answers listed the corporate positicns of each CEI employee identified therein; as a supplement to this listing, a CEI organization chart was furnished to the Special Master on April 29, 1975.
Review of this independent material will support Mr. Hauser's statements as to those persons within the cognizable " control group", as that term has been defined by the applicable legal authorities.
- s -
- 4. The City's objection to the Hauser Affidavit as " expanding" CEI's claims of privilege is curious. CEI has continuously claimed only attorney-client and work product privileges with respect to its submitted documents. Those claims were made on December 16, 1974. y Admittedly, certain documents subject to the claim of work product privilege were mis-takenly not referenced in the charts--prepared by lawyers other than Mr.
Hauser (see attached affidavit)--in response to the interrogatories pertaining to CEI's work product claims. This oversight, however, does not provide any legitimate reason to telescope CEI's claims. Clearly, claims of privilege
~
are not made in response to another parties' interrogatories; they are--and in this case, they were--made at a much earlier stage. The Hauser Affidavit did not expand the basic ci'a'ims. Nor is it clear why the City objects so strenuously about such interrogatory discrepencies; it propounded no inter-rogatories to CEI regarding claims of privilege, and it therefore is in no position to assert that it was somehow misled by answers served in response
'o someone else's interrogatories--answers that properly need not even have been served on the City.
- 5. As to the City's charge that Mr. Hauser is in no position to speak about certain documents because he had no contact with the written communication, except in some cases as distributee, this assertion reveals, perhaps better than any other, how disingenuous the City's motion is. While some 145 documents are shown in the appendix to the City's motion as falling 1/ SeeCEIExhibitto" Applicants'ReplytoMotionsofTheAECRehlatory Staff, The Department of Justice, and The City of Cleveland to Penduce Documents in Washington, D.C., and to Submit Additional Information in Response to Interrogatories"
within the above category (i_.e_., Hauser was not an author, assistant author, or addressee), 2f , only & ten,of these documents are referred to in the HauserAffidavit.3/ Clearly, Mr. Hauser was well qualified to comment on each of these seven documents: as to Documents Nos. 27, 99, 100, and 101, Mr. Hauser was in fact an addressee; as to Documents Nos. 96, 124, and 125, he was a distributec-the City conveniently failed to reflect any of this information in its /ppendix.
- 6. In what appears to be a desperate effort by the City to attack Mr. Hauser's credibility, the motion makes reference to two instances where Mr. Hauser openly acknowledges that error was made. The first concerns'..
Document No. 709; the second relates to Document No. 888. In both situations, however, the record was set straight by Mr. Hauser on his own initiative. To the extent that these documents are deemed relevant, therefore, they are indicative of his candor rather than reflective of any lack of candor on his *
.part.
- 7. Nor is there any sound reason to-fault Mr. Hauser on the basis of certain alleged " inconsistencies" between the interrogatory answers and the Hauser Affidavit. The City makes special reference to Documents Nos. 107, 108, 110-112, and 163. In connection with each of these ccmmunications, however, 2] See listing in the City's Appendix for Documents Nos. 13-22, 26, 27, 33, 38, 44-45, 48, 51-55, 57-60, 63, 67-72, 74-77, 81, 83, 85, 87, 89-93, 96,99-101, 124-125, 174-175, 508, 517, 541-550, 552-555, 571, 574-579, 581-584, 587, 590, 615, 719, 722-717, 848-853, 855, 3003, 3011, 3013, 3021, 3024, 3028-3031, 3034-3035, 3039-3040, 3047, 3054-3055, 3057-3059, 3060-3069, 3076-3077.
3/ In point of fact, Mr. Hauser intentionally confined his sworn st.atements cnly to those written communications which were'specifically referenced in the attachments to the Department of Justice's Reply Brief of May 2, 1975. The other documents were not included in the Affidavit since no objection was made to them by the Ocpartment of Justice, the City, or anyone else.
I l
_s -
the interrogatory responses and the Hauser Affidavit are entirely consistent--in both cases, the information provided was in effect that there are no known distributees of these particular documents.
- 8. The City also refers to Documents Nos. 113, 114, 115, 116, 117, and 118 as being described by Mr. Hauser in an " inconsistent" manner. As to these documents, however, the individuals identified as "distributees" in the inter-rogatory answers are all members of the same law firm--Guren, Merritt, Sogg &
Cohen. In his Affidavit, Mr. Hauser treated these lawyers as co-authors of the questioned documents, rather than as distrib'utees, since they collectively participated in the preparation of the documents under discussion. Plainly, no effort was made to remove the named individuals from the list of "distribu-tees"; indeed, their names appear on the face of the document itself.
- 9. The remaining " inconsistencies" alluded to by the City can, to the extent that they have any validity, be easily explained. As pointed out in the attached Affidavit, the interrogatory responses were prepared by four lawyers who were not as intimately acquainted with the privileged material as was Mr. Hauser. While Mr. Hauser generally reviewed the extensive charts pre-pared by these attorneys, he did not focus on each and every document referenced therein. Accordingly, there were instances where the reviewing attorney had no independent knowledge of a document's distributicn, and he could not ascertain from the document itself that the written communication had been distributed to others. Mr. Hauser, however, in preparing his Affidavit of May 22, 1975, did e
g_ .
. ~ -
..G.
focus directly on the specified documents discussed therein. He was intimately acquainted with these pepers and, on the basis of first-hand knowledge, he was able to state in appropriate cases whether or not the document had, in fact, been distributed to members of the CEI legal staff or to outside counsel.
- 10. For the City to take issue with such candid statements is wholly unwarranted. Indeed, the "incensistency" nest often complained of by the City resulted from the fact that the Hauser Affidavit expanded (rather than contracted) the list of distributces identified in the interrogatory answers. 4/ A change in this direction in connection with a claim of attorney-client privilege hardly suggests any sort of effort by M . Hauser to slant facts in CEI's favor, as the City trics to imply. To the contrary, Mr. Hauser has undertaken in his Affidavit simply to set the record straight on the basis of his own independent knowledge as to the distributien of certain catcrial.
- 11. It should be noted, vereover, that the information provided in the Hauser Affidavit is not nearly so " inconsistent" with the interrogatory answers as the City would have the Licensing 2 card believe. Thus, with regard to the documents described in the City's roticn (pp. 9-10) as having been treated in an
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incensistent me.nner on different cccasions, some R of those documents are described in virtually identical tcr~.s in the interrogatory answers and the Hcuser Affidavit; 5j there clearly uis no legiti.: ate reason for the City to make reference
- to these documents in its tv.0-coi;.~n listing.
. ~
,4/ Compare, for en.:.:yle t' e Q.terrec.3: cry hswers cnd the corresponding discussion in the Hausei Aitja.*y}',rt,..-" :p,tr.3 fcilu.ing documents: Documents Nos.
147, 143. 16,,, <,32 3..u c,..: ;-:
. . ,,. ,. J .(. 300 , 2014, 2025, 2031, 2032, 2035, 2038, u039, c047, .w>,,, e.w , .c.
w 407/ , <081, 2083-2089, 2093-2100' 2107-2113, and 2117-2135.
l
~5/ Coaparc the interre M cry a m..:rs crd tr.c corresponding discussion in the Hauser Af fidavit relatir: .o tr.e f ol k.4:: docu:r.ents : Occuments flos. 132, 137,139-145,193, 205, : .'., C17, W, M9-672, 674-677, 742, 743, 746, 754, 750, 760-702, 76C, 700-774, U 4 0 9, L G , 504, and 897.
4 t
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- 12. One further observation should be made. Where Mr. Hauser was unable to state whether a document subject to the claim of privilege had been distributed by persons other than himself, he msde that fact clear. In Para-
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gr;ph 6 of his Affidavit, for example, he was able to' state only that "a copy of this document has not been distributed or given to any other per:on by, g'r "
(emphasisadded). While the City seems to find.even this statement objection-able, we would submit that there is no reason whatsoever to fault Mr. Hauser in this regard. As a lawyer under oath, he could say no more.
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- 13. In the final analysis, it can easily be determined frcm a. fair
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comparison of the interrogatory answers and the Hauser Affidavit that there is nc legitimate reason for the City's motion to strike. CEI has submitted all of its documents to the Special Master for examination, in, camera. Plainly, he is fully qualified to resolve the claims of privilege on the basis of the #
legal briefs and the other material before him. Those individuals' associated with particular documents car ce determined from the documents themselves, the answers to interrogatories and the Hauser Affidavit. The Licensing Board has already ruled that the latter document has only limited application to the final resolution of the claims. As so qualified, the Hauser Affidavit deserves consideration. It represents a careful, time-consuming and honest effort by the Corporate Solicitor of CEI to provide factual information to the Special Master that, of necessity, was known only to the affiant.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Gy: LL O O <.rb %k '
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Wm. Bradford Reynolds '
Gerald Charnoff Counsel for the Applicants Dated: June 10, 1975 -
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