ML19329E947
| ML19329E947 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/15/1972 |
| From: | Golden T, Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006190701 | |
| Download: ML19329E947 (38) | |
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- 4. - ..a wad UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )
) Docket No [ 50- N D CONSUMERS POWER COMPANY ) and 50-330A (Midland Units, 1 and 2) )
To the Atomic Safety and Licensing Board:
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APPLICANT'S REPLY TO THE ANSWERS OF '"HE DEPARTMENT OF JUSTICE AND THE INTERVENORS Pursuant to Section 2.730 (c) of the Commission's Rules of Practice, 10 C.F.R. Part 2, and to the attached motion for leave to file, Consumers Power Company (herein-af ter " Applicant") hereby submits its Reply to the " Answer
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of the Department of Justice to Applicant's Objections . . . ,
(hereinaf ter " Answer I") and to the " Answer of Intervenors to' Applicant's Objection . .
.", (hereinaf ter " Answer II") .~~1/
Preliminarily, we note with regret the Department's apparent refusal to engage in further discussions with Appli-
. cant about discovery. Contrary to the Department's asser-tions (Answer I, p.2-3), discussions are currently in progress 1
with respect to at least two items. In one case, the Appli- i i
cant is_considering the Department's suggested modifications, )
while in the other the Departmen. has offered to suggest modifications but, as yet, has not done so. Moreover, as
-1/ Although a. party to the Joint Document Request, The Com-mission's staff filed no answer to Applicant's objections.
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THIS DOCUMENT CONTAINS 8006190 POOR QUALITY PAGES
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., 1 the file search and document analysis processes move forward, it is not unlikely that other problems of interpretation may come to light for the first time.
We therefore urge the Board to rule only on the objections raised by Applicant and not to take other action which would preclude discussions between counsel to resolve differences without resorting to the Board.
For the reasons set out below, the Answers are without merit and each of Applicant's objections should be sustained.
- 1. Oral Argument In its Motion, Applicant requested that oral argument be held pursuant to Section 2.730(c). That section clearly
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leaves to this Board the discretion whether or not to hold oral argument upon a given moticr.
It is evident from the Answers that the Department and the Intervenors consider the Joint Document Request !
and the other document demands to be extremely important aspects of this proceeding. Indeed, the Department virtually concedes that the purpose of the requests is to obtain evi-
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l dence, which it presently lacks, 'to establish a prima facia 1 case of antitrust inconsistency". (Answer.I, p. 6). In addition, as Applicant's Objections outline in detail, the various document requests present important issues of relevance, burden, and infringement upon Applicant's constitutional rights.
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, 9 Significantly, in federal courts, oral argument
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is almost a'tways held on discovery objections since exper-ience has demonstrated that such argument sharpens the issues and thus conserves the tribunal's time and resources in deciding the issues raised. Applicant also submits that the' resolution of the issues raised by its objections herein are sufficiently complex and significant to require an oppor-tunity for each party orally to present its views to the Board.
The discoverers' alleged fear that oral argument will delay discovery is unfounded (Answer I, p.2; Answer 2/
II, p.3)~~ . All counsel and two of three Board members
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reside in the metropolitan Washington area; Applicant is prepared to participate in oral argument within twenty-four hours notice. Thus, oral argument will not delay discovery.
Efforts to deny Applicant's opportunity to be heard on objections to a similar discovery demand were re-buffed by the Duke Power antitrust hearing board, and oral argument has been set in that proceeding. We urge that Applicant be afforded a similar opportunity here.
-2/ The Intervenor's attack upon the timeliness of Ioplicant's Objections is without merit (Answer II, p.2-3). Inter-
.venors have never heretofore expressed any concern about the progress of discovery, much less ever asked the Board to expedite discovery.
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- 2. Fishing Several of Applicant's objections rest on its view that the document requests in question constitute " fishing",
i.e., defining document designations so broadly as to sweep into their dragnet thousands of irrelevant documents "in the hope that something will turn up" . FTC v. American Tobacco 3/
Co., 264 U.S. 298, 306 (1924) (Holmes , J. )-~
Neither Answer takes issue with Applicant's view that the Commission's Rules of Practice prohibit " fishing".
However, the-Intervenors argue disingenuously that fishing is " inherent" in discovery, citing the Schwimmer cas'e (Answer II, p. 7). But Schwimmer involved a grand jury subpoena and the decision itself noted that in adjudicatory proceedings the discovery permitted opposing parties is much narrower than grand juries enjoy. 232 F.2d at 862. Since under the Commission's Rules fishing is prohibited, where fishing is " inherent" in a request, that request is fatally defective.
The Department's defense of its " fishing" requests is equally untenable. The Department attempts to brush aside
-3/ The concept of " fishing" set forth in American Tobacco and many other cases is . clearly broader than the definition pro-posed by the Answers (Answer I, p.7; Answer II, p.5). See, ge.., United States v. Ling-Tempo-Vought, Inc., 49 F.R.D.
Ado (W.D. Pa. 1970); Flickinger v. Aetna Cas. & Sur. Co.,
37 F.R.D. 533 ('W . D . Pa. 1965). See also 8 Wright and Miller, Federal Practice and Procedure S2206 (1970 ed.) and cases cited in fn 99.
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i 1 Applicant's contention that several of the Joint Document Requests are no more than fishing expeditions by again suggesting that the Department is not subject to the Commission's Rules 4/
of Practice on discovery.-- The Department, it is claimed, may pursue its discovery "on suspicion" and without regard to the relevance of the documents that it seeks (Answer I, p.6).
At the last Pre-hearing Conference in this pro-
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ceeding this Board rejected similar Department contentions that the Commission's Rules of Practice pertaining to dis-covery are not applicable to the Justice Department. There, the Department argued that the Applicant should provide it with free copies of requested documents, even though
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4/ The Department's reliance upon United States v. Morton Salt Co., 338 U.S.
632, 640-643 (1950) is entirely misplaced.
In Morton Salt the Court was concerned with the general law enforcement powers of the Federal Trade Commission. Signi-ficantly, once that Commission's adjudicatory process begins, these broad powers are superseded by more restrictive dis-
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covery procedures which are applicable to all parties, in-cluding the Commission's staff. See All-State Industries of North Carolina, Inc., FTC Docket 8738, 3 CCH Trade Reg.
Rep . 118,10 3 (Nov. 13, 1967).
Similarly, the Department's discussion of ultimate bur-den of proof is irrelevant since that burden of proof has no relationship whatsoever to discovery issues. Applicant is aware of no authority, and the Department cites none, to support the view that a party possessing the ultimate burden of proof is subject to different discovery standards than other litigants (Answer I, p.6).
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{ the Rules of Practice clearly p; ovide otherwise, because.
- . its role . "shouldn't be ' regarded as simply that of an adversary where_we are seeking some private advantages, but [as] simply
carrying out the inquisitorial role of the Commission in
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this regard" (Tr. 171).- The Board rejected the argument
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}; CHAIRMAN GARFINKEL: I appreciate your concern, Mr. Brand, but I think this Board is govnerned (sic] by rules of discovery now.
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' What should have been done or what the practice should be prior to the actual notice of hearing is one thing, but the case, in dealing with dis- t covery, does not require the furnishing of docu-ments or copies free. So I am bound by that type of ruling. I can't be concerned, in this proceeding, with what the procedure should be prior to the initiation of a law suit (Emphasis supplied).
9 This Board should not. countenance the Department's efforts to re-litigate an issue that the Board resolved i
one month ago. Moreover, the Board's ruling was clearly correct. According-to Section 2.700 of the Commission's Rules of Practice, the sections of the Rules which contain e
the discovery procedures (Sections 2.720, 2.740-742, and 2.744) govern procedure in all adjudications " initiated by the issuance of a . . . notice of hearing". This pro-j 4
ceeding, of course,_was initiated by a notice of hearing
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~ on April ll,~1972,.and is, therefore, governed by those
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discovery procedures.
It is also clear that Congress intended the Depart-ment of Justice-~be governed by the same discovery rules 1
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j as other participants in this proceeding since the 1970 amendment to Section 105 (c) (5) of the Atomic Energy Act provides for the Department's participation "as a party" (emphasis supplied) in the antitrust hearings which its 5/
advice letters recommend.-- The Commission's procedures carefully delineate the discovery rights and responsibilities of parties to the proceeding; one such delineation explicitly proscribes " fishing" for evide. ice.
We urge the Board to re-affirm that the Commission's
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Rules apply to all parties to this proceeding. Each Depart- l 1
ment request should then be examined in light of the Rules' and the Board Chairman's explicit proscription of fishing.
- 3. Request 2 : Applicant's Filing System According to the Department's Answer, this request seeks a " detailed description of Applicant's filing system" in order to obtain a " clear picture of the sources of docu-ments provided in response to their request . . ." (Answer I, p.8). The Intervenors offer a similar rationale. (Answer II, p.7).
In discussions with opposing counsel, the joint discoverers have made clear that they request the descriptive titles contained upon every file folder in the Company.
These discussions make a mockery of the Department's claim that its request is " narrowly directed" (Answer I, S/ 84 Stat. 1473, 42 U.S.C. S2135 (c) (5) .
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-g-p.7). By contrast, the Intervenors concede that the request's purpose is " fishing or exploration" (Answer II, p.7). It is obvious that the Intervenors are correct in this regard and that the request is only a pretext for a fishing expedition, i.e., an effort to peruse file titles "in the hope that something will turn up". See Part 2, supra.
The file indexes will not indicate the files from which any given document came. If the discoverers actually seek no more than to ascertain the " source" of documents
- provided in response to their document demands, the method they propose to utilize here will not only be unnecessarily time-consuming but also will fail to achieve the purported purpose. Applicant's objection to this request should
- therefore be sustained. .
- 4. Requests 3 (e) et al: Applicant's Legal and Political Activity Ignoring the grave Constitutional issues raised by the Applicant's objections, the Department and the Intervenors press their eff orts to obtain documents which relate to Applicant's pol _tical and legal activities.
The discoverers discourse at great length on a point-which Applicant readily concedes: Applicant is, by the nature of its business, thrust into the political and legal process _at several levels. This being so, say the f discoverers, Applicant's activities in these spheres must l be relevant to the antitrust questions at issue in this f
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proceeding.-- The discoverers thus neatly ignore the holdings of Pennington and Noert that political and legal activities are not violative of the antitrust laws. This tack is par-ticularly pertinent in light of the failure by either the Department or Intervenors to allege that any " sham" is here involved. --7/
Once the Answers finally turn to the question of privilege raised by Applicant's Objections, their arguments rest upon the erroneous assumptions that (1) Applicant enjoys fewer Constitutional protections than other persons and (2) that Applicant's First Amendment rights would not be
" chilled" by the discovery sought.
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-6/ In the course of this effort, the Department's Answer (p.9) inaccurately characterizes Applicant's objection in this regard as "in all essential respects, identical" to that of the plaintiff in Gulf States Util. Co.v. McLaren, Civil Action No.71-102 (M . D. La. 1972). The Court's minute entry, which
( is attached to the Department Answer as Appendix A, does not discuss the basis for its holding concerning documents related
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to political and legal activity. 'ioreover, plaintif f's memo-randum in that case, which is attached hereto as Appendix A, reveals that, unlike Applicant here, Gulf States' objections were not founded upon Constitutional principles. Moreover, the case arose under the Antitrust Civil Process Act, 15 U.S.C. 551311-1314, which unlike the Commission's Rules, per-mits .the discovery of irrelevant documents and condones " fish-ing" expeditions. Petition of Gold Bond Stamp Co., 221 F.
Supp. 391, 397 (D. Minn. 1963). Thus the aforementioned case is not remotely in point to the issues raised in Applicant's Objections.
7,/ See pp. 15-16, infra.
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-4 9 The Answers. concede that Supreme Court cases have i
protected certain entities from document production where such production would " chill" the exercise of First Amendment rights. But, the Department asserts, Applicant cannot " step into the shoes" of those to whom the Court has offered such Constitutional protections because it is a " mighty" utility with considerable assets and revenue (Answer I, p.15). In a similar vein, tJun Intervenors argue that, as a " regulated public utility", Applicant must " supply information" regard-less of Constitutional consequences (Answer II, p .12) .
We would have expected that the discoverers would be more sensitive to a fundamental principle of Constitution law -- that all persons, regardless of economic or other status, enjoy basic Constitutional rights. Gideon v. Wainwright, 372 U.S. 335 (1963) ; Griffin v. Illinois, 351 U.S. 12 (1956).
To be sure, this principle has usually found expression in cases where the rights of the economically disadvantaged were under attack. Id. However, the threat to basic freedoms which arises from erosion of this principle is also cause for concern when weight is given to the favorable economic status of the person claiming Constitutional rights. Moreover, it is equally well-settled that the Constitution protects the rights of corporations. Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949) ; Grosjean v. American Press Co. , 297 U.S. 233(1936).
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The argument of the discoverers ignores the Noerr case itself, where defendants included 24 railroads -- an industry of considerable political power and financial re-sources and an industry, like the electric utility industry, that is sub, ject to pervasive government regulation. Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). In Noerr, despite the railroads' status as large, regulated common carriers , the Court held their participation in the political process to be beyond the scrutiny of the Sherman Act in the following words:
"(W]e have restored what a true nature of the case - ppears to be the a 'no-holds-barred fight' between two industries both of which are seekin of income.g Inherent control of in asuch profitable fights, source which are commonplace in the halls of legislative bodies, is the possibility, and in many in-stances even the probability, that one group or the other will get hurt by the arguments that are made. In this particular instance, each group appears to have utilized all the political powers it could muster in an attempt to bring about the passage of laws that would help it or injure the other. But the contest itself appears to have been conducted along lines normally accepted in our political sys-tem, except to the extent that each group has deliberately deceived the public and public officials. And that deception, rep-rehensible as it is, can be of no consequence so far as the Sherman Act is concerned. That Act was not violated by either the railroads or the truckers in their respective campaigns to influence legislation and law enforcement. " i
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(Foctnotes omitted). 365 U.S. at 144-45.
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4 The Answers not only cloud the Applicant's right to the protection of the First Amendment, but they are also disingenuous in their analysis of how the exercise of those right- would be chilled by granting the document discovery request. The " chilling" impact upon Applicant's First Amendment rights has nothing to do with punishment for past political activity or with the outcome of this proceeding, as claimed by the Department (Answer I, pp.15-16). Rather, whatever the out ame, permitting discovery of Applicant's internal files relating to political activity will put Applicant on notice that the privacy of these files is not inviolate.
This knowledge, in turn, will inevitably inhibit Applicant's future exercise of its First Amendment rights. "[I]nhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government".
Lamont v. Postmaster General, 381 U.S. 301, 309 (1965) (Brennan, J., concurring).
See also Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Baggett v. Bullitt, 377 U.S. 360 (1964).
In Lamont, supra, the Court held that the Post Office could not conditio,n delivery of " communist political propaganda" upon the addressee 's written request for delivery.
According to the Court, the condition was "almost certain to have a deterrent effect" on the exercise of the First Amendment rights since the addressees "might think" that public disclosure of the request could result in adverse
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consequences. 381 U.S. at 307. Clearly, the inhibitory and chilling effect of the discovery which the Department seeks in this proceeding is no more " remote" (Answer I, p.16) than governmental action proscribed by the court in Lamont.
The Answers also suggest that the " chilling" effect which would result from discovery of political activities must defer to the discoverers ' " interest" in making such discovery (Answer I, p.17; see also Answer II, p .12-13) .
However, where, as here, the discovery would inhibit activity which is in the public interest, the discoverers must satisfy a standard of " exceptional necessity". Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249, 250 (D.D.C. 1970). Neither the Department nor the Intervenors has made any such showing.
In an effort to demonstrate the necessity for production of documents relating to political activity,
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the discoverers rely upon dicta contained in a footnote to the Pennington case, supra, 381 U.S. at 670, n.3. According to the footnote, it would be "within the province" of the I
trial judge to admit otherwise-privileged evidence of political activity where he found it (1) " probative", (2) "not unduly prejudicle and (3) where the evidence "tends reasonably 1
to show the purpose and character of the particular transactions ,
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under scrutiny".
Reliance upon such dicta here is misplaced since as one--court has held, "not only is it illogical to infer
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s from evidence that [ defendant] also engaged in certain com-
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plately lawful (political] conduct that it also engaged in other conduct which was unlawful, but it would seem that to draw such an inference in this case would be an infringement upon defendant's First Amendment rights". United States
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1966) (cited by the Department's . Answer I, p.16).
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The Johns-Manville court also perceptively observed that none of the cases cited in the Pennington footnote " involved a situation in which predatory intent was inferred from participation in constitutionally protected activities". Id.
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It is significant that the discoverers do not i
indicate for which "particular transaction under scrutiny" they seek the requested documents. Havinc failed to identify
-any such transaction or to demonstrate the relationship between it and the documents requested, they have not justi-fied the " chilling" impact on Applicant's First Amendment rights that would be the inevitable result of producing these documents.
, Finally, the objections put-forward by Applicant cannot' be_ circumscribed by the Department's cryptic reference
.to the-so-called'" sham" exception of the Noerr-Pennington principle. (Answer I, p.12-13). In the Noerr case, supra, the Court noted that its holding did not encompass conduct which is a " mere sham to cover what is actually nothing
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than an attempt to interfere directly with the business relationships of a competitor . . ." 365 U.S. at 144 (emphasis supplied). Recently, while reaffirming the principles enunciated in Noerr and Pennington, the Supreme Court explained that, in the context of the judicial process, the sham exception includes efforts to deter competitors having " free and unlimited access" to agencies and the courts or to abuse the adjudicatory process by perjury, fraud or bribery. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511 (1972).
The sham exception is of no relevance here. First, the requested documents here under challenge involve all of Applicant's political and legal activity. They are not restricted to documents related to Applicant's alleged efforts to deter competitors' " free and unlimited access" to agencies or the courts or to abuse the adjudicatory process by perjury, fraud or bribery. Second, neither the Department nor the Intervenors have alleged that Applicant ever engaged in any political conduct which could be categorized as falling within the " sham" exception to the Noerr-Pennington doctrine (See Answer I, p.12).
No tribunal should permit a chilling invasion of Applicant's Constitutionally-protected rights based upon the bald assertion that Applicant has frequently undertaken political or legal activities. Applicant's objections relat-ing to political and legal activities should therefore be l l
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_ Request 4: Documents Related to Pooling 8/
The Department's rationale for Request No. 4
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completely fails to justify the-burdensome fishing expedition
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which it proposes to pursue. The Department's Answer states
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that it seeks to explore the " day-to-day operations" of Applicant as a member of the Michigan Pool. Its purpose,
'according to its : Answer, is to ascertain "what benefits are realized and what responsibilities [are) incurred there-
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under" (Answer I, p.20).
Preliminarily, the " benefits" and " responsibilities" of the day-to-day operation of the Michigan Pool have nothing to do with the issues set forth in the Board's drehearing Conference Order of August 7, 1972 (p. 3) . Neither the Inter-venors, nor an, other municipal or cooperative utility, have sought membership in the Michigan Pool and no proposal
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- to ti's effect has been advanced in this proceeding.
Most important, to the extent agg aspect of the operation of the Michigan Pool is relevant to this proceeding, the Department fails to explain why it needs each and every
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document involving every action by every committee or subcom-4 l mittee engaged in pool activities, regardless of its subject 3
matter.
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Finally, it should be noted that the Answer defends
'the request only in terms of the Department's alleged need
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-for minutes of executive, pooling, and operating committees
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(Answer I, p.20) , even though the d, mand as worded in the 9/
Joint Doc'.unent Request encompasses considerable more material-(See also Answer I, p.21) . Even were the Answer read to concede that such additional material is irrelevant, the document demand is still defective. The Department concedes that its request calls for " irrelevant matter" (Answer I, p.21). The Rules limit discovery to " relevant" documents and require that documents be " designated" with " reasonable particularity"; they do not permit inspection of " irrelevant matter". See Section 2.741(a) and (c).
The Department's offer to " sample" and " exclude" the documents that are not relevant reveals its fundamental misconception of this Commission's discovery processes (Answer I, p.21). Such an offer merely confirms that the Departnsat seeks to review all of the minutes "in the hopes that something will turn up". See Part 2, supra. The Board should not i
countenance such a classic fishing expedition.
- 5. Request 5 (d) , (e), and (1) : Applicant's Gas Operations l
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The Answers of the Department and the Intervenors concerning request 5 verifies what Applicant suspected:
that these parties for the first time seek to import into this nuclear electric licensing review a full antitrust
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inquiry of Applicant's operations as a natural gas utility.
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The Request itself seeks reports and minutes of all com-mittees, subcommittees and task forces and all " documents relating thereto".
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. Without even discussing Applicant's well-documented argument that its gas operations are beyond the scope of this pro-
- ceeding, the Department and the Intervenors propose that Applicant initiate an extensive file search for documents
' relating to gas operations. Applicant submits that even accepting arguendo the broad scope claimed by the Depart-ment for the 1970 Atomic Energy Act amendments, the AEC is not obligatad to inquire into competitive conditions within the natural gas distribution industry. Such an inquiry will inevitably proliferate, and greatly enlarge, this already extended proceeding. Surely, Applicant's distribution and sale of natural gas do not constitute " activities under the
[ Midland plant] license" which the AEC must scrutinize in an antitrust context.
It is noteworthy also that neither the Depart-ment nor the Intervenors assert that Applicant's gas opera-tions have in any way affected the relationship between Appl. cant's electric system and other electric systems.
Rather, the discoverers' rationale for seeking gas operation documents rests entirely upon surmise. For example, the Department speaks in terms of " steps Applicant may have taken", while the Intervenors allege that some operations
" mag"-involve certain' policy determinations (Answer I, p.23; Answer II, p.ll) (emphasis supplied). Such words reveal ,
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operations is merely an effort'to fish for additional evidence and issues that have no relevance to this proceeding.
Applicant's counsel has-been. informed by officials from the " gas" side of the Company that the document requests 10 /
relating to gas operations are so broad-~ that few, if any, files within this part of the Company could be deemed unlikely to contain responsive material. Thus discovery
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relating to such issues would jeopardize Applicant's ability to meet the schedule set forth in the Board's Prehearing Conference order of November 3, 1972.
- 6. Request 10: Documents Comprising Certain Files The two Answers on their face demonstrate the impropriety of permitting documents to be designated and requested solely on the basis of their location in certain files. According to their Answers, the discoverers seek to ascertain "the entire record" of " day-to-day relationships" between Applicant and all of its wholesale. customers in order to discover "the anticompetitive means and techniques employed by Applicant over the years . . ." (Answer I, p.26; see also Answer II, p.4).
--10/ ' For example, Request 5 (i) appears to require every document relating to every ' wholesale gas rate filing since such rates
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could conceivably " affect the cost of fuel" for other Michi-gan utilities. Similarly, Request 5 (e) would seem to in-clude~ all documents reflecting the extensive inter-energy
. competition between Applicant as a natural gas utility and Detroit Edison in the many areas where, by the very terms of the Request 5 (e) , Applicant provides no electric service.
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This is a virtual admission that the discoverers seek access to entire files in the hope of turning up documents which might relate to anticompetitive conduct. In other words, the discoverers here abandon any effort to desig-nate documents, as the Rules of Practice require, and assert a right to inspect files, which, the Department concedes, are " voluminous" (p.26) and which, it also admits, may (or may not) contain relevant documents. The Department's offer to " sample and exclude" " repetitive , routine docume nts" found in these files (p.26) merely confirms that the demand sweeps volumes of documents into its ambit which are not relevant to this proceeding.
The Intervenors' particular rationale for seeking access to entire files is equally disingenuous. Their Answer attaches documents allegedly written by Applicant and states that a . review of the entire file where such documents reside would put the matters discussed in the documents in " context" (Answer II, p.4). This explanation simply begs the question.
If the Intervenors actually seek only to inspect " memoranda or communications" relating to the subject areas covered in the documents they attach to their Answer (p.4), they possess ample ability to frame document requests with the particularity which the Rules require. ,
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- 7. Reques t 23 : Tax Returns 11/
As the Department concedes,-~ the issues raised by Applicant's objection to request 23 is whether or not data relevant to this proceeding and contained in its tax returns is "readily obtainable otherwise" (Answer I, p.29).
1Throughout negotiations with the Department concern-ing this request, counsel for the Department refused to identify precisely what data contained in the returns it seeks and needs. Having persisted in its failure to do so in its Answar, the Department is clearly not entitled to these returne.
The Department's only elucidation of the grounds for its request is that it does not seek to find out how much tax Applicant pays, but rather wants to ascertain "how much tax was not paid" (Answer I, p.29) (emphasis supplied) .
The latter question appears to be an exercise in metaphysics; in any event, contrary to the Department's assertions , the amount of taxes not paid has never been put in issue by Applicant (Answer I, p.28).
Applicant has raised the issue of comparative tax burdens, i.e., the amount of taxes it pays compared to the amount of taxes paid by other neighboring utilities.
This inquiry is, of course, vital since many of these utilities
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pay no taxes and borrow capital at reduced rates, and are thus afforded competitive advantages of direct relevance to this proceeding. The Department fails to explain why a study of comparative tax burden requires any more than a record of taxes paid, capitalization, revenues received, and expenses incurred. Such data, as the Department concedes, is contained in Applicant's Form l's filed with the Federal 12/
Power Commission.- (Answer I, p.27).
Thus, since the data relevant to the tax issues raised in this proceeding are "readily obtainable otherwise",
request 23 should be denied.
- 8. Pre-1960 Documents The efforts of the Department and the Intervenors !
to burden Applicant and the Board with a file search extending to documents written in the 1940's should be given short shrift. As the Chairman of this Board has noted, the Depart-ment's advice letter constitutes the " charge" in this case (Tr. 112) ; that letter concerns only post-1960 activity of the Applicant.-~13/Thus, it is clear that pre-1960 conduct is not "at the very heart of the factual controversy in this proceeding" (Answer I, p.30), as the Department alleges .
/
- 12/
~-
Prior to the Notice of hearing in this proceeding, Appli-cant provided the Justice Department and the Commission staff with copies of all of Applicant's Form l's since 1960.
l ~13/
-- The Chairman also stated that "we [the Board] believe that l discovery should be limited basically to items that arise
. . . in the Department's letter of advice" (Tr. 124).
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The two Answers attach and reference documents which purport to cast light on issues that have been raised in this proceeding. It is inappropriate at this juncture to discuss their relevance or to contest the wholly unsup-portable conclusions that the Department and the Intervenors derive from their content. Nevertheless, it should be noted the document attached by the Department (Answer I, appendix B) was not prepared by, and does not refer to, Applicant; 14/
it has no remote relevance to Applicant or this proceeding.--
The Intervenor's pre-1960 attachments relate to two events:
Applicant's offer, made at the behest of Coldwater officials, to purchase that city's electric system in 1950 and Appli-cant's offer to interconnect with Traverse City in 1955.
t Applicant submits that such events, dating back seventeen !
and twenty-three years respectively, are too remote in time to bear upon the " anticipatory antitrust impact" of the ;
nuclear licenses which Applicant seeks.
The discoverers base their request for pre-1960 documents upon a " continuing conduct" theory, i.e., that certain business relationships between Applicant and other
~~14/ In its Answer (p.32) the Department incorporates by refer-ence a 1965 document pertaining to the Michigan Pool which
-it attached to another pleading. That document fails to sustain the Department's need for pre-1960 documents re-lating to the pool. The Pool' agreement was signed in 1962.
There is no evidence to support the view that this agree-ment "first came under consideration" in the " period 1944-1950" (Answer I, p.32).
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utilities existed prior to 1960 and have continued to the present time. Even assuming the factual accuracy of the 15/
theo ry , -- it does not support broad-based discovery requests prior to 1960. The discoverers' contentions here are identical to' the Department's position which was rejected in United States v. Grinnell' Corporation, 30 F.R.D. 358 (D.R.I. 1962).
In that case, probably the most significant Section 2 monopo-lization case of the decade, the Department sought production of documents dating as far back as 1907. The Department defended its request on the theory that at least one of !
several agreements between Grinnell, its competitors , and co-defendants was signed in 1907. The Court ordered produc- !
!
tion of the 1907 agreement and " subsequent agreements named l l
in the (Department's] motion" because they were alleged to have remained in operation as late as six years prior to the time the case was filed. 30 F.R.D. at 360 (emphasis supplied) . However, the Court permitted discovery only of the named " agreements themselves" and restricted discovery of such documents as " correspondence, papers, and records" to ten years prior to the filing date. Id.
15/ As Applicant pointed out in its Objections, Applicant is not presently a party to any wholesale or coordination agreement that became effective prior to 1962. The oldest agreement is the liichigan Pool agreement whicN. was signed
- in'1962. There is no evidence that this agreement "first l came under consideration" in "the period 1944-1950" l
(Answer I, p.32) or that any of Applicant's other present l wholesale or coordinating arrangements were considered or negotiated prior to 1960.
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Here the pre-1960 document requests are not indi-vidually named or otherwise identified; rather they are described as " relating to" certain broad subject categories and thus their production requires a Company-wide file search. ,
i This Board, like the Grinnell court, has recognized that whatever the relevance of remote events may be to the issues raised herein, such general and unspecified document requests should be confined to reasonable time periods. The Board's twelve-year limitation is eminently reasonable and should not be abandoned merely because Applicant's present busi-ness relationships are alleged to pre-date 1960.
- 9. Historical Manuscripts The Department's final effort to broaden this proceeding to unmanageable proportions seeks manuscripts relating to the Company's history from the nineteenth century to 1960.
The Department advises that it has undertaken a study of Applicant's company history at least since 1915 and seeks these manuscripts "for the purposes of checking our own". (Answer.I, p.36). Whatever the scope of this proceeding, it certainly does not include historical episodes which transpired in 1915 -- or even in 1940. Whatever the rcasons for the Department's historical curiousity, Applicant submits that it has no possible relevance to this proceeding, snd Applicant should not, therefore, be required to assist O
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the Department's historian in his pursuit of abstract knowledge.
- 10. The Schedule of Discovery 16 /
The Board should not permit the Department- to re-litigate and modify the discovery schedule discussed at the Prehearing Conference of October 25, 1972.
At the Prehearing Conference, Applicant's counsel detailed Applicant's considerable efforts to respond to the four separate and extensive document requests served upon it by various parties between July 26 and September 25, 1972. (Tr. 114-118). Applicant's counsel also advised the Board that Applicant could substantially comply with these requests by January 1,1973 -- subject, of course, to the uncertainties inherent in those requests to which Applicant has objected (Tr. 118). Counsel for the Department of Justice expressed no objection to this schedule at the Prehearing Conference. The Board then ruled that all discovery should be completed by February 16, 1973.
Throughout these proceedings Applicant has stressed, and opposing counsel have concurred, that the Company should be put to the burden of only one Company-wide file search.
Clearly, therefore, the file search and document analysis processes could not be undertaken until (1) all document
.
16/
~' The Intervenors' Answer does not discuss the discovery schedule.
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requests were received, (2) the meaning of ambiguous requests was discussed with the joint discoverers, and (3) the Board had resolved contested issues relating to the requests.
The last document requests were filed on September 25, 1972; negotiations between counsel were held in late September and October; and Applicant's Objections were filed in late October. Hence, there can be no question as to Applicant's considerable and expeditious efforts to comply with the spirit and the letter of the Commission's discovery pro-cedures and the Board's discovery schedule. l Apparently ignoring such efforts, the Department now proposes to scuttle the discovery schedule put forward at the-Prehearing Conference. The dates the Department suggests are completely unrealistic. As for the asterisked items, the Applicant has already submitted a majority of the requested material and is able to assure production of the remaining documents by the end of this month.
The documents called for by the four document 17/
requests are voluminous.-- Nevertheless, Applicant anticipates that production of such documents will commence at the end
^
of November and can be substantially completed, in accordance with counsel's representations at the Prehearing Conference, by the first of-the year. This schedule will severely, tax
--17/- In the Chairman's words, the document demanda constitute a "very, very broad search of the Applicant's files."
(Tr. 125 ) .
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_ - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ _ - _
_
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. o Applicant's resources; the schedule suggested by the Department would only jeopardize the file search process and sabotage Applicant's efforts to comply fully with the document demands.
We urge, therefore, that the Department's motion to compel discovery on the dates it proposes be rejected.
CONCLUSION The Department's concluding remarks advance several untenable assertions that require response. The Department would have the Board believe that, by applying for nuclear licenses, Applicant waives its presumption of innocence that is the very foundation of American jurisprudence. The
\
Department also suggests that, simply because the Attorney General has recommended a hearing in this proceeding (as it has in about one-third of all nuclear license applications it has reviewed) , Applicant should be denied its opportunity to object to demands, which do not comply with this Commission's rules or are otherwise objectionable. Finally, according to the Department, Applicant's efforts to " resist discovery" are motivated by a desire to conceal violations of law (Answer I,-p.37).
The Department's accusations are without foundation.
The Department is simply another litigating party in this proceeding with no more or less discovery rights than any ,
other party. The Commission's Rules governing discovery
-strike a careful balance between the discoverer's desire
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txi prepare his case and the discovered party's desire to
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[ maintain privacy.and control of-its internal records. The i
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Department would have this Board ignore that careful balance.
1 Applicant has not " resisted" discovery in this '
'
ocase . It has agreed to comply with most of the items con-tained in the various document requests.
-
It raises objections l
to a few demands only because they flagrantly offend the spirit and letter of the Commission's. Rules or constitutional
principles.
We urge the Board to reject the hyperbolic rhetoric in the Department's conclusion, and to resolve the issues 4
raised by Applicant's objections in accordance with the
'
principles of fairness embodied in the Commission's Rule ;
I of-Practice.
Respectfully submitted,
,
i i
Wm. Warfield Ross ,
Keith S. Watson T'
Toni K. Golden Attorneys for Consumers Power Company WALD, HARKRADER & ROSS 1320 Nineteenth Street, N. W.
Washington, D. C. 20036
'
.Of Counsel: 202: -296-2121 Harold P. Graves, Esq.
Consumers Power Company 212 West Jackson Avenue
- Jackson, Michigan 49201 November:15, 1972
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ATTACHMENT A
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- NOTE
- Only those pages of.the Memorandum dealing with the Noerr-Pennington argument have been included in this Attachment.
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-U+. ,- % -w,.- ,,ie , -#.- -.m.,-, - - ----w,-,--,-. ,y. --w.-,+,----, ,,,4. c.,*e- ,,m., .,w- , -,-- - , ,, ,y. .-wye.
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a' 4 UNITED STATES DISTIGCT COURT HIDDLE DISTRICT OF LOUISIANA
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CU).F STATES UTILITIES COMPANY, s
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. PETITIO::ER : CIVIL ACTION NO.71-102
VS.
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TIl0HAS E. KAUPT.R. ASSISTANT :
- ATTORNEY CENCRAL, 3 ANTITRUST DIVISION, UNITED : HD10RANDtDI RESPONSE 10 HOTION STATES DEPARTHENT OF JUSTICE, ava s u w.w u . A
LISPONDENT :
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Upon the terse assertion that the Antitrust Division, Department of Justice, was conducting an inquiry for the prrpose of ascertaining whether or not there existed a violation of Title 15, USCA, sections 1 and 2
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' by conduct of " agreements in rea'sonable restraint of trade between'your conpany and nalghboring bulk po.::r supply cystc=c, :rsnopolization and attcicpted monopolization of bylk power , supply and monopolization and .
attempted monopolization of the retail distribution of cicetric power", and without notice or previous request for information, the Antitrust Division Advoked the Antitrust Civil Process Act (15 USCA,1311-J 314) and cervid Culf States Utilitics Company with'a motion to produce documents covering
,a significant portion of the ' corporatiod's activities over an eleven-year
- period.
Af ter deliberation Cukf States responded' by filing a petition for order to set aside or rodify the civil investigative demand pursuant to 15 USCA 1314 (b), in which a nu:aber of objections to the production of documents were raised.' 'llowever, with the knowledge that the discovery procedure invoked was only invest 10. duty in rature and that parSial
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compliance co'ulc: r.ct be construed as an acknculedgment that there constituted
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a renconahic baci: for innuance of the cation in the first place, Colf States l unde a good-feith effort to proc *uce the documents demanded in the subpoeni,
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and', in fact, has forwarded approximately thousand
, documents to the Antitrust Division. Arrangements were reached between counsel limiting the scope of the motion in order to minimize the burden of
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Culf states in sc1ceting, sorting and reproducing documents thus curing an
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eres of objection.
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. However, Culf States, as a. matter of principal, adhered to its
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saitial objection to providing two categorics of documents included in the production provided for in the civil investigative demand, viz: (a) documents
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involung compan'y activities to influence government action - legislative, judicial, executive or administrative which were withheld by Culf States for the reasons stated in paragraphs 5 (b) and (d of its petition; and (b) communications between Gulf States and its attorneys and attorneys i
and parties similarly aligned with Culf States in litigation on uhich the attorney-client privilege has' been urged. This proceeding involves those i
i documents.
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- There are two questions.of law to be resolved by the court in this proceeding, and they are: -
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(1) Relevance of documents re'1 sting to the company's
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activities to influence " government action" to a
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civil antitrust investigation in the light of the NOERR-PENNI!CTON doctrino (EASTERN RR CONFERENCE VS.
NOERA EDTOR FREICHT, 365 US 127 (1961); UNITED MINE
- WORKERS VS. PENNINCTON, 381 US (.57 (1965); and
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(2) Whether the Department of Justice has r.ade a pri=a facie case that the otherwise priv11cced co::cunications i . -
,, . between Culf States and its attorneys and at'torneys
,. . . .
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t cos=only aligned in litigation, constitute corcunications
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in' furtherance of illegal activity and, therefore, not entitled to a priv11cced status.
(1) Eccour.c of the volu:.:e of docu: catn revic ud and ret'urned, Culf State:a did not- rigidly .idlwre tu thi:; chjection in its rorting of doen .mit t. a n.1,
' accordin,;1v, :.any duct.:wnts cuvered by this category have alt e.idy ban furnir.hed the Departr.ccc of Juctice.
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, Culf States interposes no objection to the government's .
request for an in-camera inspection of the privileged documents by the court, and such d'ocuments will be produced at the hearing on this metter.
- 1. RELEVANCE TO A CIVIL ANTITRUST. INQUIRY OF DoctHENTS *
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INVOLVINC ACTIVITIES TO IN1'LUENCE COVERNMENT ACTION UNDER NOERR-PENNINGTON DOCTRINE
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Culf States urges as a matter of law that the N0 ERR-PENNIECTON
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rule as further defined by the Supreme Court in CALIFORNIA HOTOR TRANSPORT COMPANY VS. TRUCKING UNLIMITED, 404 US 508, 40 US Law Week 4153 (1972),
pec'cludes documents reflecting activities to influence government action from being relevant or reasonable to a civil antitrust inquiry. The' Antitrust a
Civil Process Act extends to documentary material " relevant"to a civil anti-trust investigation (15 USCA 1312 (a)), provided such demand does not require
, the production of any document which would be held to be "unreasonablef' if contained in a subpoena duces tecum issued in aid of a federal grand jury inves-tigation (15 USCA 1312 (c)). Documents rcficcting activities involving
- attempts to influence government action are not relevant to civil antitrust inquiry,and their production would be concidered as unreasonable if viewed
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in the light of grand jury subpoenas. .
- The NOERR-PEPNINGTON doctrine, as amplified by the recent TRUCKING U1;L1HITED decision, n l'Yvol' es a conflict' between the reach of the *
'Sherman Act in catters of econom ics and the basic ~ constitutional rights of 1
persons. to freedo:a of speech and right of petition guaranteed by the First !
Amendment. In the NO, ERR case the Supreme Court was concerned with an
,
injunctive action brought by an association of motor carriers seeking to restrain a railroad association from conspiring to restrain trade
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and nonopoli:e the long-distance' freight business through a publicity caupaign and lobbying efforts allegedly calculated to destroy the tar transport freight business. Justice Blach, speaking for a unaninous court, recognized the fundamental constitutional issues raised in any $ction sccking
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to deny cr:clininato a person's.frcedom of speech and right of petition to
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, 'lle government, statings.
- In the first place, such a holding would substantially impair the power of government to take actions through its legislaturu and executive that operate to restr2in trade. In a representative democracy such as this,
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these branches of government act on behalf of the ,
people and, to a very large extent, the whole concept of representation depends upon the ability'of the peopic to make their wishes known to their representatives.
To hold that the government retains the power.to act in this representative capacity and yet hold, at the same ti=e,
,
that the people cannot freely inform the government.of
'
their wishes would impute to the Sherman Act a purpose to
' d regulate, not business activity, but political activity, ,
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s purpose which would have no basis whatever in the '
l i
1 . legislative history of that Act. Secondly, and ( L at least equal significance, such a construction of the Sherman Act would raise important constitutional questions.
The right of. petition is one of the freedoms protected by
. the Bill of Rights, and u& cannot, of course, lightly in-Pute to Congress an intent to invade these freedoms. ' .
Indeed, such an imputation would be particularly un-justified in .this case in view of all the countervailing
.
considerations enumerated above. For these reasons, we
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.think it is clear that the Sherman Act does not apply to .
the activities of the railroads at least insofar as
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those cctivitics comprised mere salicitation of govern-mental action with respect to the passage and enforcement
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of laws. *** 365 US at pages 137-8.
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i In rejecting each of the grounds relied upon by the courts below to justify epplication of the Sheruan Act to the !
campaign of the railroads, we have rejected the very
'
grounds upon which those courts relied to ' distinguish -
, the campaign conducted by the truckers.. In doing so, we
'. have restores what a'ppears to be the true nature of the ,
case - a "no-holds-barred' fight" between two industries both of which are seeking' control of a profitable source of income. Inherent in such fights, which are commonplace in the halle o'f legislative bodies, is the possibility, and in nany instances even the probability, that one group or the other will get hurt by the argumen'ts that are made. In this particular instance, each group appears to have utilized all the political powers it could muster in an attcept to bring about the passage of laws that would help it or injure the other.~ But the contest itself appears to have been con- '
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- ducted along lines normally accepted in our political -
- system, execpt to the extent that each group has deliberately.
j deceived the public and public officials. ' And that de- t ecption .reprensible as it is, can be of no consequence so 4
far as the ShcrLan Act ic concerned. That Act was not
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virlated by eith:r the railraads er L.. truckers in their respective campalcius to influence 1ccislatf un and law enforcement. *** 365 US at pages 144-5.
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- In UNITED HINE WORKERS VS. PENNINCTON, SUPRA, the court was concerned with an alleged conspiracy in violation of the antitrust laws between a labor union and large coal companics to impose upon the coal
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- f industry a wagc and productivity agreement through efforts to influence TVA to refrain from purchasing coal from the companies not subject to the agreement and effectively eliminate such small coal operators from
'busines.s. In a. decision which can bc argued.as broadening the rule of
,
the HOEPJL caso, the court concluded that: -
Noerr shicids from the Sherr.sn Act a. concerted effort to influence public officials regardless of intact or purpose. .
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Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is tot illegal, either standing alone or as a part of a brogder
..ccheme itself violative..of the Shcre:an.Act.
381 U.S. at page 670. .
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, In the TRUCKING UNLIMITED decision the Supreme Court reaffirmed t'he NOERR-PCiNINGTON doctrine and added that the NOERP.-PCiNINCTON ruling,
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which pertained principally to activitics to obtain icgislative action, also encompassed legal actions calculated to obtain judicial decisibr.s favorable to the economic interest of the noving party. Justice Douglas said:
We conclude that it would be destructive of rights of association and of petition to hold that groups with eba::on interests ruy not, without violating the anti-trust laws, use the channels cnd procedures of sta:e and federal agencies and courts to advocate their causcs and points of vicw respecting resolution of their business and econo;aic interests vis-a-vis their competitors. 40 U.S. LW WrEK at page 4154.
- On the basis of these decisions Culf Staten Utilitics Company denics relevancy,of the docunents. ~
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With all candor it is adnitted that the Antitrust Divinion has been quite nuccessful in having the courts cone.lude that inforir.ation it sought to produce was "relev. tut on ! rea 'nstle". There aru'execptio: 4,
- however. *
- 2. Cot.n:.cl f or .to st ic . Ile; .ir t u. i.t .irnucc* t ha t lannuone in a foot an.Le t o t!.'..
quotat toi
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et.'.d.1 h.h..n t he rel. vant y of th. do ir.ent r. In .;ui r.t Jr.n. Th; h.
. d :.: ut. .e.: .i t ; c, e J li,i s .a. *
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a ho.nw .
W5 d
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In If :1TI.D r.7AT!3 VS. L'XIO:: 01L CO::PA).T OF CA!Mol':liA, 343 F. '2d 19 (9th Cir.,1965), the production sought by the governinent was denied because it pertained ta activity which was alleged to lesd to a possibic future violation and not res,tricted to the literal interpretation
.of the definition 'of " antitrust investigation" contained in 15 USCA, section 1311, which encenpassed only activity constituting a present or past violation. It is true that the docuacntary information objected to here must be conside:cd in a different context fro:s the documentary information involved in the l':IO : CIL CO::PA:.T case; however, the case does establish
! that " relevance" is a ccaningful prercquisite' to production. Culf States submits that the docusants covered by paragraph 5 (b) and (c) of the civil investigative demand to which objection has been made could not constitute evidence of a violation of sections 1 and 2 of the Sherman Act under the N0 ERR-PC;;;INGTCN - TRUCFING UNLU!ITED doctrine, and consequently are not a
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relevant subject of inquiry, if " relevancy" is to be given any meaning.
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Counsel for the Justice Departeent contends that the information requested in paragraph 5 (b) and (c) "can constitute evidence of n i
violation hf- sections 1 and 2 of the Sherman Act under ths "sha:n" exception enunciated in the'K0ER",, decision as explained by the " denial of
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access to the ccurts and agencies" language in TRUCKING UNLI!!ITED.
Alternatively, Justice contends that the docu:centsare relevant to this
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inquiry because they cight tend to be ad=issible in evidence to show purpose and chsracter of other conduct which allegedly forms the basis of violatics, citi .; a footnote in PE: Oil::GTO:*3, and the Fif th Circuit opinion
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in HOUSCHOLD*C0003 CAP 2IER'S SCT.T'.U VS. TERRELL, 452 F. 2d 152 (5th Cir.,
_
, 1971).
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With re,spect to the first centention, Culf States simply denies
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that its actlyf tics to influen:e governnent action (legislative, judicial, executivt and aininistr:tive) within th: ecaning of the NOEP2-PC:NI::CTO::
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rule d ried any-;srty ac:ess to courts and agencies as conte:aplated in
- 3. See pago 7 infra. . ,
,
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., e. e TRUCKING tlNhl :!TED. Therefore, t hey cannot constitute a violation of the Sherman Act and would not be relovnnt to the inquiry.
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Our reasono for support of this conclusion will be developd and discussed in follouing portions of this brief dealing with the issue of whether or not Justice han made a prin: facio case that otherwise privileged docu:aents are discoverabic because they ref1cet activity violating sections 1 and 2 of the Sherman Act.
As to the second and altcenstive contention, Gulf States suggests that such doctrine as may evolve from the PDiNIt:GTON footnote and developed in the CAT.RlER'S BUREAU case is not apposite here. This ruling presupposes that there is other conduct separate and apart from the
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activities to influence government action which could form the basis of a Sherman Act violation. Uc have carefully reviewed the affidavits filed by Justice and it is reasonable to conclude that the only activities which Justice docu:sents in its claim of an alleged violation of the antitrust laws
, are lot,bying to influence legislative and administrative action, lawsuits -
to;obtain a favorable judicial result and publicity efforts in connection therewith 4 directed against rural clectric cooperatives.
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The goverr ant argues in a circle - the alleged illegal activity consisted of action to influence govern =cnt action; but if not relevarit to establich a violation of the Shernan Act, is is relevant to establish a purpose for other activities which night establish a
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violation. The circle is not complete. No other activitics are cited and docu:acnted.
- 2. THE PT.I'.*:LEGE UIT!! T.EETECT TO CO:CNICATIO::S T.EYUEE*: A'iiORNMYJ:, CLIENT The cavcrn cnt contends that cor.:.unications between Gulf
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- 4. In the affidavit t!.cro are con:!ur.ionary essertions of denial of acccse of Culf Staten' tran.':.It.nien line.; to others, off ering sene tv.:aicipall ics reserve-charin, contr cts to the prejudice of LEC, anet of ferinr, contract propos lm which if ace p:td would H ecedly rest rict LEC, I sinyes te.1 *ej.: . ire n r.1 Nu C1.er.f et.) Cor; , rat ;en f re: u:,e of Culi S::tes tranci:.cloa lince fer l their f.cct intr. rest. '!a lactiul 4 t. is oficrel to corroborate :.uch conclur.!un. .
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- e UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of )
) Docket Nos. 50-329A
, CONSUMERS POWER COMPANY ) and 50-330A (Midland t- ;, 1 & 2) )
CERTIFICATE OF SERVICE I hereby certify - that copies of the fore-
. going Motion for Leave to File Applicant's Reply to the Answers to the Department of Justice and the Intervenors and said Reply have been served on the following by deposit in the United States- mail, this 15th day of November, 1972:
Jerome Garfinkel, Esq., Chairman Dr. J. V. Leeds, Jr.
Atomic Safety and Licensing Board P. O. Box 941 Atomic Energy Commission Houston, Texas 77001 Washington, D. C. 20545 William T. Clabault, Esq.
Hugh K. Clark, Esq. Joseph J. Saunders, Esq.
P. O. Box 127A David A. Leckie, Esq.
Kennedyville, Maryland 21645 Public Counsel Section Antitrust Division James F. Fairman, Jr., Esq. Department of Justice 2600 Virginia Avenue, N. W. Washington, D. C. 20530 Washington, D. C. 20037 Joseph Rutberg, Jr., Esq.
Antitrust Counsel for AEC Regulatory Staff Atomic Energy Commission-Washington, D. C. 20545 Wallace E. Brand, Esq.
Antitrust Public Counsel- Section P. O. Box 7513 Washington , D. C. 20044
, Atomic Safety and. Licensing Board Atomic Energy Commission Washington, D. C. 20545 Keith S. Watson
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