ML19326D504

Motion for Order Requiring That Applicant State Facts Expected to Be Proved by Outstanding Discovery Requests. Certificate of Svc & Us District Court 730622 Order Denying Otter Tail Power Co Motion Re Use of Litigation Encl

ML19326D504
Person / Time
Site:	Midland
Issue date:	08/16/1973
From:	Jablon R MICHIGAN MUNICIPAL COOPERATIVE POWER POOL, SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006110602
Download: ML19326D504 (8)

Text

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

) Docket. Nos.

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

MOTION TO THE BOARD FOR AN ORDER REQUIRING APPLICANT TO STATE THE FACTS EXPECTED TO BE PROVED BY ITS OUTSTANDING DISCOVERY REQUESTS Intervenors hereby join in the motion of the Department of Justice, August 10, 1973, requiring Applicant to state facts expected to be proved by its further discovery.

However, we broaden the motion to cover any further discovery from either parties or nonparties.

In a deposition hearing held in Michigan Monday, August 13, 1973, on information and belief, Applicant attempts to further broaden its information requests and has stated that failure to comply would delay the hearing. Its letter request of August 9, 1973, contains discovery requests which ignore

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the Appeals Board's limiting orders and agreement by the parties.

• / We shall specify our particularized objections to the list of alleged " deficiencies" in a separate response to Applicant's letter. ..

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Intervenors have made every effort to comply with all reasonable discovery . requests of Applicant. While the non-parties pro-tested the legality of discovery against them, they too have submitted to massive discovery. By this time intervenor and non-party discovery has far surpassed that of the Applicant itself.

Furthermore, looking toward the hearings, it appears that Applicant plans tens or even hund' reds of days of hearings.

Intervenors believe that many of the defenses which Applicant apparently wishes to raise are not legally cognizable and U

therefore we do not plan to contest their factual-basis. Much of the discovery -- and presumptively trial time -- will relate tc issues of this nature. We have great concern with either ex-tending discovery or trial unnecessarily where issues are raised by Applicant that do not constitute a defense and are extremely b urdensome to try. Indeed, the leading cases in the area of application of antitrust law to regulated electric utilities have been concerned with the effects of long drawn out litigation denying substantive rights of small municipally and cooperatively owned power systems. United States v. Otter Tail Power Co.,

• / These include such issues as whether the municipal and

-cooperatives are operating profitably and whether the Department of Justice has encouraged this litigation.

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a-331 F. Supp. 54, 58, 61-62 (D. Minn. 6th Div., 1971),

remanded, 93 S. Ct. 1022, 1030-103L 35-L. Ed. 2d 359, 369

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(1973); decision on remand, 69-Civ-139 (June 22, 1973)

Gulf States Power Co. v. FPC, 411 U. S. 747 (1973).

In this context-the Appeals Board's ruling concerning the burden of discovery on the non-parties takes on added significance. Parties have a right to have issues sufficiently de-fined so.that a case is capable of being tried without the trial of the case itself creating undue burden.

Granting this motion will allow the parties to take certain factual issues out of the case either through stipulation or failure to control their underlying basis. In view of indications that Applicant is planning an exceedingly complex factual defense and that it apparently intends to press

. for added discovery and delay of these proceedings, this motion should be granted. Even if we are incorrect in our fears of further delay, granting this motion will undoubtedly permit the parties to direct their presentations, briefs and any further

• / Otter Tail-has requested reconsideration of this~ order.

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discovery to -the issues in the case thereby limiting the burden and time of trial and focusing the proceedings.

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In any event, certainly the Board should not countenance further delay ~for additional discovery without Applicant's specifically relating its demands to contested issues.

For the reasons expressed herein, and in the Department of Justice motion in which we join we ask that this motion be granted.

Respectfully submitted, kdl<~f.$,eh Robert A. Jablon One of the attorneys for the Municipals of Coldwater, Grand Haven, Holland, Traverse City and Zeeland; The Michigan hiunicipal Electric Association; Northern Michigan Electric Cooperative, the Wolverine Electric Cooperative, Inc.

August,16, 1973 .

Law Offices of:

Spiegel & McDiarmid-2600 Virginia Avenue, N. W.

Washington, D. C. 20037

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UNITED STATES OF AMERICA BEFORE THE.

ATOMIC ENERGY COMMISSION In the Matter of )

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

CERTIFICATE OF SERVICE I hereby certify that the Motion to the Board for an Order Requiring Applicant to State the Facts Expected to be Proved by its Outstanding Discovery Requests in the above-captioned matter was served upon the following by deposit in the United States mail, first class or air mail, this 16th day of August, 1973.

Alan Rosenthal, Esq., Chairman Jerome Garfinkel, Esq., Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel 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 Mr. Frank W. Karas, Chief Abraham Braitman, Chief Public Proceedings Branch Office of Antitrust and Office of the Secretary Indemnity 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 Atomic Safety and Licensing Robert J. Verdisco, Esq. Board Panel Counsel for AEC Regulatory U. S. Atomic Energy Commission Staff 1717 H Street, N. W.

U. S. Atomic Energy Commission Washington, D. C. 20545 1717 H Street, N. W.

Washington, D. C. 20545 Harold P. Graves, Esq.

Vice President and General Counsel Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 k

Wallace E. Brand, Esq. Mr. James B. Falahee Antitrust Public Counsel General Attorney Department of Justice Consumers Power Company P. O. Box 7513 212 West Michigan Avenue Washington, D. C. 20044 Jackson, Michigan 49201 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.

Wald, Harkrader and Ross 1320 - 19th Street, N. W.

Washington, D. C.

hYfd ln Robert A. Jablon Law Offices of:

Spiegel'& McDiarmid 2600 Virginia Avenue, N. W.

Washington, D. C. 20037

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. UNITED STAT 1.;S DIST!!ICT COURT DISTRICT OF MItlNECOTA SIXTl! DIVISION l

UNITED STATES of AMERICA, Plaintiff, 6-G9-Civ-139 vs.

ORDER

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OTTER TAIL POWER COI'2ANY, Defendant.

This caso, altho affirmed on the basic issue, was remandad by the United States Supreme Court for reconsideration of the litigation issue in vicw of the intervening decision in California Motor Transcort Co. v.

Truckinc Unlimited, 92 S.Ct. 609. See Otter Tail Power Co.

v. United States, 93 S.Ct. 1022 at p. 1031. Defendant moves for an amendment of the findings to reflect that employment of litigaticn as shoun in the record was permissible under the antitrust laws in the light of California Motor Trannoort. Defendant so urged.in its brief and at the oral argument on the motion held on Juno 11, 1973. Plaintiff argued that the use of litigation by defendant came within the so-called sham exception of the Noorr doctrine and therefore violated the Sherman antitruct act. The parties are agreed that there is no need for further evidentiary hearings.

Upon concidoration of the arguments and briefs, and upon a rocos. sideration of the portinent portions of the record, I find that the repetitivo use of litigation ib y Otter . Tall was tiacd and designed principally to prevent I

ithe establishment of nunicipal electric systems and thereby g.

'to procorvo defendant'c monopoly. I find the litigation i

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' comes.within the cham exception to the nocrr doctrinc as I ' defined by the Supresto Court in Califoraia Trancport, and reaffirm the Findings- and Conclusions provicualy 4

entered.

The defendant's r.ot ,n is DENIED.

Dated: June JLi 3. _

'I twm0 veuwO4 EDWARD J. D;VI'if ," Chie f J uego -

United Statcs pistrict Court f

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