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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20070E4671991-02-26026 February 1991 Comment Opposing Petition for Rulemaking PRM-73-9 Re Upgrading Design Basis Threat for Radiological Sabotage of Nuclear Reactors.Recommends That NRC Deny Petition to Increase Design Basis Threat for Security ML20207C1331986-12-18018 December 1986 Order Terminating CPPR-81 & CPPR-82,per Util 860711 Motion to Withdraw Applications for OLs ML20215E7301986-12-17017 December 1986 Memorandum & Order Authorizing Withdrawal of OL Application & Dismissing OL Proceeding,Per Applicant 860711 Motion. Served on 861218 ML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20211L6391986-12-11011 December 1986 Affidavit of Gb Staley Re Preparation of Answers to Board 861203 Questions on Termination of OL Proceeding. Certificate of Svc Encl ML20211L6181986-12-11011 December 1986 Response to Board 861203 Questions Re Util Request to Terminate OL Proceeding ML20214Q4431986-12-0303 December 1986 Memorandum & Order Granting Motion to Expedite Completion of Withdrawal Proceedings & Posing Questions to Parties.Served on 861204 ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20214T7361986-09-26026 September 1986 Memorandum & Order Dismissing OM Proceeding as Moot & Deferring Action on Applicant Motion for Authorization to Withdraw OL Application Pending NRC Preparation of Environ Assessment.Served on 860929 ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20212B0311986-08-0101 August 1986 Memorandum & Order Withdrawing Retention of Jurisdiction Over Radon Issue Presented in Facility CP Proceeding & Vacating ASLB Partial Initial Decision on Remedial Soils in Consolidated CP Mod & OL Proceeding.Served on 860801 ML20212B0521986-07-31031 July 1986 Order Extending Time Until 860815 for Util & Other Parties to Respond to Questions Posed by 860716 ASLB Order.Time Extended Until 860825 for NRC Response to ASLB Questions & Util Motion.Served on 860801 ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20207E2851986-07-16016 July 1986 Order Presenting Questions in Response to Util 860711 Motion to Dismiss OL Proceeding & to Terminate Order of Mod Proceeding.Served on 860717 ML20202G1621986-07-11011 July 1986 Notice of Change of Address for Washington Ofc of Isham, Lincoln & Beale,Attys for Util.Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20202G0491986-07-10010 July 1986 Affidavit of JW Cook Re Conversion of Plant Into combined- cycle,gas-fired Power Plant.Plant Never Operable as Nuclear facility.Nuclear-related Equipment Will Be Sold ML20202G0281986-07-0808 July 1986 Affidavit of Ta Mcnish Re True & Correct Extracts of 860408 & 0618 Minutes of Meetings.Resolutions Recited Therein in Full Force & Effect ML20198J3861986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20198J4651986-05-27027 May 1986 Notice of ASLB Reconstitution.C Bechhoefer,Chairman & J Harbour & Ga Linenberger,Members.Served on 860529 ML20137E0041985-11-21021 November 1985 Notice of Appearance in Proceeding ML20137D9651985-11-21021 November 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20133F6421985-10-0909 October 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl ML20134N3771985-08-30030 August 1985 Notice of Withdrawal of Appearance in Proceeding.Certificate of Svc Encl DD-84-17, Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 8506241985-06-24024 June 1985 Order Affirming 840724 Director'S Decision DD-84-17 Denying Bp Garde 10CFR2.206 Petition for Action Against Util Re Plant Const.Const Abandoned on 840910.No Further Enforcement Action Required.Served on 850624 ML20127N7591985-06-20020 June 1985 Transcript of Commission 850620 Affirmation/Discussion & Vote in Washington,Dc Concerning Denial of 2.206 Petition for Midland plant,SECY-85-60 Concerning Pressurized Thermal Shock Rule & Shoreham Order.Pp 1-4 ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4751985-04-19019 April 1985 Memorandum in Response to Aslab 850405 Order Re Dismissal of OL Application.Application Neither Abandoned Nor Delayed in Dilutory Manner.Certificate of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20107K8011984-11-0101 November 1984 Affidavit of Jd Selby Re Plans Concerning Facilities.Const Will Be Resumed Only If Proposed by Appropriate Governmental Agencies & Officials & If Funds from Some Other Source Become Available.Related Correspondence ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20092J0241984-06-22022 June 1984 Reply to B Stamiris Second Supplemental Proposed Findings of Fact & Conclusions of Law on QA & Mgt Attitude Issues. Certificate of Svc Encl ML20092J0361984-06-22022 June 1984 Reply to NRC Further Supplemental Findings of Fact & Conclusions of Law Re QA 1991-02-26
[Table view] Category:PLEADINGS
MONTHYEARML20215B2071986-12-11011 December 1986 Responds to Questions Posed in ASLBP 861203 Memorandum & Order Re Conversion to gas-fired Facility.Imposition of Conditions on Withdrawal of OL Application Unnecessary. Certificate of Svc & Svc List Encl ML20214G7941986-11-24024 November 1986 Motion to Expedite Completion of Withdrawal of Licensee OL Application & Terminate Pending OL & CP Mod Proceedings. Certificate of Svc Encl ML20212M7661986-08-25025 August 1986 Response to Util 860711 Motion for Authorization to Withdraw OL Application & for Dismissal of OL & Order of Mod Proceedings.Board Should Hold Motion in Abeyance Pending NRC Review of Stabilization Plan.Certificate of Svc Encl ML20206M8171986-08-15015 August 1986 Response to ASLB 860716 Order Requesting Responses Re Termination of OM Proceeding.Termination of OL Proceeding & Withdrawal of OL Application Requested.Om Proceeding Should Be Considered Moot.Certificate of Svc Encl ML20203F8791986-07-28028 July 1986 Response Supporting Util 860711 Motion for Termination of Appeal Board Jurisdiction Over Proceeding.Certificate of Svc Encl ML20207H6871986-07-22022 July 1986 Motion for Extension Until 860815 to File Responses to Four Questions Re Util Motion to Dismiss OL & OM Proceedings. Certificate of Svc Encl ML20202G0121986-07-11011 July 1986 Motion for Authorization to Withdraw OL Application & Dismissal of OL & Order of Mod Proceedings ML20202G1201986-07-11011 July 1986 Motion for Termination of Aslab Jurisdiction to Facilitate Termination of Cps,Withdrawal of OL Application & Dismissal of Consolidated OM-OL Proceeding ML20133D9481985-05-13013 May 1985 Response to Aslab 850423 Order.Aslab Should Cancel OL Application & CPs Because Compliance W/Nrc Basic Requirements Not Met ML20116G5181985-04-29029 April 1985 Response to Memorandum of City & County of Midland,Mi Re ASLB 850405 & 0313 Orders on CP Mod Proceedings.Bechtel Should Not Be Granted Admission to Proceedings ML20115J5421985-04-19019 April 1985 City & County of Midland,State of Mi Motion for Leave to Participate as Amicus Curiae in Aslab Request for Responses to Questions Presented in 850313 & 0405 Memoranda Orders. Proof of Svc Encl ML20115J5501985-04-19019 April 1985 Response Opposing Aslab 850405 Memorandum & Order Re Dismissal of OL Applications.Urges Board to Permit OL Applications to Continue in Suspension Until Applicant Affirmatively Resolves Disposition ML20115J5551985-04-19019 April 1985 City & County of Midland,State of Mi Response to Aslab 850313 Order to File Memoranda Re Whether Aslab Should Vacate ASLB Decision Re Certain Mods to CP Due to Mootness. Proof of Svc Encl ML20115J4351985-04-19019 April 1985 Motion for Leave to Participate as Amicus Curiae,Per Aslab 850313 & 0405 Memoranda & Orders Requesting Response to Questions Re Proceeding ML20116G5321985-04-19019 April 1985 Motion to Participate as Amicus Curiae in Resolution of Issue to Involuntary Dismissal of License Application,Per Aslab 850405 Memorandum & Order.Granted for Aslab on 850422. Served on 850429 ML20115J5461985-04-19019 April 1985 Motion to Participate Amici Curiae in Resolution of Issue of Involuntary Dismissal of License Application as Identified in Aslab 850405 Memorandum & Order ML20112J5281985-04-0101 April 1985 Memorandum in Response to Aslab 850313 Order LBP-85-2. Decision Should Not Be Vacated.Ol Should Be Dismissed.Based on Listed Changes,New OL Review Required ML20112J6301985-04-0101 April 1985 Memorandum Requesting Aslab Not Take Any Action to Vacate LBP-85-2 or Dismiss OL Applications,Per 850313 Order,Based on Current Intent to Hold CPs & Attempt to Sell Plant. Certificate of Svc Encl ML20112H0981985-03-27027 March 1985 Response to Aslab 840313 Order Re Whether ASLB Decision to Review Issues in Soils Hearing Appropriate Use of Public Resources.Concurs W/Decision to Remand OL W/Instructions to Dismiss OL Application for Failure to Pursue Soils Issue ML20106D6631985-02-0808 February 1985 Response Opposing B Stamiris 841224 Pleading Requesting Evidentiary Hearing on Matter Raised in applicant-Dow Chemical Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F6531985-02-0808 February 1985 Response Opposing Intervenor B Stamiris 841224 Motion for Evidentiary Hearings Re Litigation Between Applicant & Dow Chemical Co.Supporting Documentation & Certificate of Svc Encl ML20101S9421985-02-0101 February 1985 Motion for Extension Until 850306 to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Granted by Aslab on 850201 ML20101S9111985-02-0101 February 1985 Motion for Extension of Time within Which to File Notice of Appeal of ASLB 850123 Partial Initial Decision.Certificate of Svc Encl ML20101F3191984-12-24024 December 1984 Request for Evidentiary Hearings on Matter Raised in CPC-Dow Trial & Referral of Certain Matters to Ofc of Investigations.Certificate of Svc Encl ML20106F5241984-10-24024 October 1984 Motion to Request ASLB to Cancel Const License & Application for OL ML20084J6111984-05-0404 May 1984 Responds Opposing Sinclair 840419 Motion to Request Caseload Forecast Panel Evaluate New Const Completion Schedule.Aslb Should Deny Request for Relief Contained in Motion. Certificate of Svc Encl ML20084H2581984-05-0202 May 1984 Memorandum in Opposition to Govt Accountability Project (Gap) 840417 Petition for Review.Gap Policy on Disclosures to Press Rules Out Genuine Claim That Affidavits Were to Be Maintained in Total Confidence.Certificate of Svc Encl ML20083N6481984-04-17017 April 1984 Petition for Review of Aslab 840330 Decision & Order ALAB-764 Re Subpoenas Directed to Govt Accountability Project.Aslab Erroneous Re Important Questions of Law & Policy.Certificate of Svc Encl ML20087M9821984-03-30030 March 1984 Response to B Stamiris 840304 New Contention Re Transamerica Delaval,Inc Diesel Generators.Bases in Support of Contention Clarified.Certificate of Svc Encl ML20079M6481984-01-23023 January 1984 Request for Leave to File Encl Corrected Copies of Applicant 831209 Memorandum in Opposition to Appeal of Govt Accountability Project.Table of Contents & Table of Authorities Inadvertently Omitted.Certificate of Svc Encl ML20082U0311983-12-0909 December 1983 Memorandum Opposing Govt Accountability Project (Gap) 831021 Appeal of ASLB Order Granting Util Motion to Depose Gap Witnesses.First Amend Argument Inapplicable Since Affiant Identity Will Not Be Disclosed.Certificate of Svc Encl ML20082E1341983-11-22022 November 1983 Request for Extension Until 831209 to File Brief Opposing Appeal of Govt Accountability Project Deponents.Certificate of Svc Encl ML20086A8801983-11-0404 November 1983 Response to Util Motion to Compel & Application for Enforcement of Subpoenas.Submission to Discovery Would Cause Immediate Grave & Irreparable Injury to Organizational Viability.Certificate of Svc Encl.Related Correspondence ML20081F8991983-11-0202 November 1983 Motion to Compel & Application for Enforcement of Subpoenas Against Govt Accountability Project Deponents,L Clark, T Devine,Bp Garde & L Hallberg.Response from Deponents Must Be Filed Before 831110.Certificate of Svc Encl ML20081E8931983-10-31031 October 1983 Reply to Applicant 831014 Response to Second Supplemental Memorandum in Support of B Stamiris 831005 Motion to Litigate Two Dow Issues.Issues Timely Raised & Present New Evidence.Certificate of Svc Encl ML20090H4271983-10-26026 October 1983 Motion to Continue Beginning Date of Hearings Scheduled for 831031 to 3 Days After Date.Extended Hearing Necessary to Allow Time to Receive Responses to 831011 Discovery Requests.W/Certificate of Svc ML20081B1751983-10-25025 October 1983 Motion to Compel CPC Responses to 831011 Interrogatories & Request for Production Re Investigation of Alleged Violation.Certificate of Svc Encl ML20090H3401983-10-25025 October 1983 Motion for Admission Into Evidence of Transcript of Jl Donnell 831015 Deposition.Certificate of Svc Encl ML20081E9481983-10-25025 October 1983 Memorandum in Support of 831021 Appeal of ASLB Orders Granting Issuance of Subpoenas.Subpoenas Violate First Amend Rights.Certificate of Svc Encl ML20081B0681983-10-21021 October 1983 Memorandum in Support of Appeal from ASLB Orders Granting Discovery Against Govt Accountability Project.Subpoenas Violate Common Law of Privilege.Util Showed No Compelling Need for Discovery ML20078K3141983-10-14014 October 1983 Response to B Stamiris 831005 Second Supplemental Memorandum Supporting Dow Issues.Stamiris Fails to Show New & Significant Info Justifying Reopening Record.Certificate of Svc Encl ML20078F5561983-10-0505 October 1983 Second Supplemental Memorandum in Support of Intervenor Stamiris Motion to Litigate Dow Chemical Co Issues Against Applicant.Dow Documents & Complaints Support Litigation of Issues Raised in Original Motion.Certificate of Svc Encl ML20080P1161983-10-0303 October 1983 Errata to 830930 Motion for Reconsideration.Certificate of Svc Encl ML20080P9131983-10-0303 October 1983 Motion to Stay Depositions of L Clark,T Devine,Bp Garde & L Hallberg as Directed in ASLB 830831 Order.Depositions Should Be Stayed Pending Review of 830930 Motion for Reconsideration.Certificate of Svc Encl ML20078A3471983-09-21021 September 1983 Supplemental Memorandum in Support of 830808 Motion to Litigate Dow Issues.Documents Reveal That Util Knew Fuel Load Dates Presented to NRC Jul 1980 - Apr 1983 False. Certificate of Svc Encl ML20077S7161983-09-19019 September 1983 Motion by L Clark,T Devine,Bp Garde & L Hallberg for Extension Until 830930 to File Motion for Reconsideration of ASLB 830831 Order Denying Motion to Quash Subpoenas. Certificate of Svc Encl ML20024E8261983-09-0202 September 1983 Response Opposing M Sinclair Motion to Reconsider Privilege Ruling.Presence of Bechtel Officials at 821124 Meeting Does Not Destroy Privilege.Bechtel & CPC Share Common Legal Interest.Certificate of Svc Encl ML20024E8771983-09-0202 September 1983 Motion to Reconsider Schedule for Submitting Proposed Findings of Fact on Remedial Soils Issues.Intervenors Should Be Required to File Proposed Findings on Remedial Soils Issues by 831115.Certificate of Svc Encl ML20076F3261983-08-23023 August 1983 Motion for Extension Until 830902 to Respond to Intervenor Motion to Reconsider Order Upholding atty-client Privilege Protection for 821124 Util/Bechtel Meeting.Motion Received 5 Days After Mailing.W/Certificate of Svc ML20076C6711983-08-17017 August 1983 Response to M Sinclair & B Stamiris 830728 Motions Re Dow Vs Util Lawsuit.Aslb Should Defer Motions for 30 Days.Motions Could Be Refiled After Documents Reviewed.Two Oversize Drawings Encl.Aperture Cards in Pdr.Certificate of Svc Encl 1986-08-25
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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION Consumers Power Company ) Docket No. 50-329A MEMORANDUM BY INTERVENOR MUNICIPALS AND COOPERATIVES ON CLAIMS BY CONSUMERS POWER COMPAlW FOR WITHHOLDING PRODUCTION OF DOCUMENTS Consumers Power Company has submitted to the Presiding Examiner in camera a large number of documents on which it asserts claims of privilege. These are mainly listed in two groups.. A number of documents are listed under a general claim that they come within the purview of attorney-client privilege or that they constitute attorney work product. It
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has not yet submitted a list of the documents. However, except for a showing of who is shown to have received copies from the documents themselves, the list of documents submitted by Consumers Power apparently will not give sufficient information with respect to any of the withheld documents, showing characterizing circumstances necessary to determine whether any of the withheld documents qualify as privileged. Not yet having the list or a showing of the characterizing circumstances
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It did submit a list on April 26, 1973, but this list was to have been supplemented.
7324 8006120 i i
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,
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relating to each document sought to be withheld, the l l
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municipal-intervenors submit a memorandum at this time dealing generally with Consumers Power's claims and the applicable principles of law concerning privileged documents.
I PRINCIPLES OF LAW RELATING TO EDISON'S ASSERTIONS OF ATTORNEY-CLIENT OR ATTORNEY WORK PRODUCT Attorney-client privilege is narrowly limited to purely attorney-client communications. The purpose of the privilege is to promot,e freedom of consultation between client and attorney, by insuring that the client may make frank, confidential revelations to his attorney without fear of a forced disclosure. Hunt v. Blackburn, 128 U. S. 464, 470; Modern Woodmen of American v. Watkins, 132 F.2d 352 (CA 5);
United States v. United Shoe Machinery Coro., 89 F. Supp. 357, 358 OD . C. Mass.). Likewise, the concept of attorney's work product is narrow in scope and is limited in application. An attorney's work product encompasses the attorney's " impressions, observations and opinions" which he records "as the product of his investigation of a case in the actual preparation for trial on behalf of a client." Zenith Radio Coro, v. Radio Corn. of Amer ica, 121 F. Supp. 792, 795 CD. Del.). The concept of work
..
. - .. _
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l product is to protect the attorney and assure a degree of privacy, free from unnecessary or needless interference from
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an opposing party or counsel, allowing him to assemble information, prepare legal. theories and plan strategy in order to properly prepare his client's case, Hickman v. Tavlor, 329 U. S. 495. The work product concept is thus limited to this area of litigation and. work in~the pending_ case. Not all work done by an attorney falls within the work product-protection. Mutual knowledge of all relevant facts gathered by both parties is essential to -
proper. litigation. As stated by the Court in Hickman v. Tavlor,
! supra, at page 511:-
,
"We do not mean to say that all written
< materials obtained or prepared by an
- adversary to counsel with an eye toward
,
. litigation are necessarily free from 4 discovery in all cases. Where relevant
'
-and non privileged facts remain hidden in an attorney's files and where production of those-facts is essential to the preparation of one's case, discovery may properly be had."
,
It is basic that, since the work product concept
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as well as attorney-client privilege runs directly counter i to the goal of full disclosure sought by the liberalized discovery rules in federal, as well as other, present day 1
_ . , .
. 7 -- - . ., ,. . . _ . , _ ,
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litigation, United States v. Vehicular Parkinc, 52 F. Supp.
751 (D. Del.), they are strictly construed in application in accordance with their narrow objects stated above. United States v. United Shoe Machinerv Corn., suora, at page 358.
As stated in Peoole's Bank v. Brown, 112 Fed. 652, 654 (CA 3):
". . . But it [the attorney-client privilege]
has been forceably and vehemently assailed . . .
and the suppression of evidence which it effects can be justified only when the limitations which restrict the scope of its operations are assiduously heeded. Therefore it is requisite that in every instance it shall be judicially determined whether the particular communication in questiosbe really privileged, ,and, in order that such primary determination may be advisedly made, it is indispensable that the court shall be apprised, through preliminary inquiry, of the characteriz-
' "
ing circumstances . . . .
It follows from the exceptional nature of the privilege that the party claiming a privilege has the burden of establishing its existence with respect to each communication. Phelos Dodce Corcoration v. Guerrero, 273 Fed. 415, 418 (CA 9). There is no presumption of privilege.
l Peoole's Bank v. Brown, suora; Re Morrell's Estate, 277 N. Y. Supp.
262, 268. Any privilege there may be cannot be blanketed in by general ssertions of privilege. A privilege must be shown to 1
,
.
. .
exist by appraisal of the special relationship pertaining to each individual document, which'must be separately consider ed and separately found to be privileged. Zenith Radio Coro, v. Radio Coro. of America, 121 F. Supp. 792, 794, People's Bank v. Brown, supra.
In final analysis, determinations as to whether a privilege exists with respect to particular documents, are questions of fact to be decided by the Courts, and in the instant case by the Presiding Examiner, Phelos Dodce Coro, v.
Guerrero, suora, see Steiner v. United States, 134 F.2d 931, 935 (CA 5), after inspection of each document, United States v.
vehicular Parkina, suora, upon further preliminary inquiry by
,
the Presiding Examiner, and after disclosure by Edison of the
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" characterizing circumstances surrounding each document, People's Bank v. Brown, suora; A cursory perusal of the lists of documents claimed by Consumers Power to be privileged as attorney-client con-fidential communications indicate, from the following principles of law, that Edison should provide information showing the characterizing circumstances as to each document preliminary to a ruling by the Presiding Examiner. Such information should
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,n-----
,
.
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include statements indicating whether any withheld document ,
was.already disclosed to intervenors, or their counsel, or consultants, in the course of discovery or negotiations, whether it was heretofore disclosed by production of a copy of the document; Whether it is part of a series of documents already produced; Whether it is part of a series of other documents withheld; and the subject matters covering such documents and series of documents. All such information should be provided to intervenors as wel1 as the Hearing Board so that the inter-
,
venors may properly prepare a memorandum of their position as to Whether particular documents are actually privileged or U
if privileged Whether the privilege was waived. The need for a presentation of all the characterizing circumstances is emphasized by the following principles relating to privilege applicable to Consumers Power's lists of documents:
- 1. Documents Which are not written by or to an attorney are not privileged as attorney-client confidential communications. 8 Wigmore on Evidence (3rd Ed.) Sec. 2292; United States v. United Shoe Machinerv Coro., 89 F. Supp. 357, 358 (D. Mass.).
- / We believe other parties should also receive this information
_
so that they may advise the Hearing Board.
_. ..
%
.
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. 2. Not all documents written by or to an attorney are privileged. This is particularly true as to a cor-proation's " house counsel". As stated in United States v.
.
United Shoe Machinerv coro., suora, at page 360, "No doubt a high percentage of the communications to or from them
"
[ house counsell fall outside the privilege . . . .
- 3. Where a communication is prepared for a clear business purpose, there is no privilege even though written by or addressed to house counsel or presented to house counsel As stated in Zenith Radio Coro. v. Radio Coro.
for his views.
of America, 121 F. Supp. 792, 794 (D. Del.), communications are not privileged which are " solely, or even largely, business advice." (Emphasis supplied]
- 4. Communications by or to a person who serves in a dual capacity as business executive and house counsel are particularly suspect, United States v. Vehicular Parkina, 52 F. Supp. 751, 753-4 (D. Del.). Such communications must be scrutinized to determine whether they are " business" in nature and, therefore, not privileged, Radio Coro. of America v.
Rauland Corcoration, 18 F. A. D. 440, 443 (N. D. Ill.).
7-1
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%
- 5. Not all documents in the possession of the attorney for a party are privileged. The " work oroduct privilege is limited to the work croduct of the attorney with resoect to the cendina action and coes no further."
Iowa Home Mutual Casualty 27 C. J. S., Section 72; Henke v.
Cv. 87 N. W. 2d., 920, 926; Zenith Radio Coro, v. Radio Corocration of America, 21 F. Supp. 792, 795; Hickman v. Tavlor, 329 U. S. 495 (emphasis supplied) .
- 6. Even if a privilege would exist with respect to a particular document, the privilege may be waived by
'
revealing elsewher2 in any form, the same information or an attorney's opinion as is contained in the communication or
,
document claimed to be privileged, Radio Coro, of America v.
Rauland Corporation, suora, at page 444. Disclosure of a
,
privileged document by permitting its inspection waives the privilege, Schwartz v. Travellers Insurance Company, 17 F.R.D. 320 1
(S.D.N.Y.); United States v. Shibley, 112 F. Supp. 734, 741 (S. D. Calif.). Where disclosure of the informatial is made, the purpose of the privilege to encourage frank revelation by the I
client without fear of disclosure ceases. The basic litigation goal of complete discovery should then be satisfied. Once the veil of secrecy is lifted by disclosure, it cannot be lowered again.
- - - . . - . .
._ _
s
. .
United States v. Shibley, supra. As stated In Re Associated Gas & Electric Co. , 59 F. Supp. 743, 744-5 (S.D.N.Y.), "Once the confidential matter is voluntarily disclosed to the public, it is no longer a secret and the privilege which might be claimed
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under the statute disappears."
- 7. Disclosure of one of a series cf communications which together constitute an integrated transaction ne.cessarily waives the privilege as to the remaining documents in that series. Censumers Power "cannot open the door to part of 4 the facts and close it as to the remainder". Willard C. Beach Air Brush Co. v. General Motors Corp., 118 F. Supp. 242, 247 (D. N. J.).
CONCLUSION The above cases show that doctrines of privilege are limited and must be specifically supported in light of the circumstances both to affirmatively demonstrate the existence of a privilege and to demonstrate the absence of waiver. Hence, Consumers Power has failed to do this, the documents should be
- / For these purposes one need not determine whether a waiver
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can result, as Consumers Power claims, from revelation under protest, pursuant to court order.
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turned over to the parties. At the least, the Company should have
! to fully justify its claim.
Respectfully submitted,
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Robert A. Jablon
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One of the attorneys for Traverse City, Coldwater, Holland, Grand Haven and l Zeeland, Michigan, the Michigan Municipal 4
Electric Association, Wolverine Electric
Cooperative, and Northern Michigan
' Electric Cooperative i
September 19, 1973 1
l . Law Offices:
Spiegel & McDiarmid 2600 Virginia Avenue, N. W.
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Washington, D. C. 20037 4
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AFFIDAVIT DISTRICT OF COLUMBIA, SS:
Robert A.Jablon, being first duly sworn, deposes and says that he is one of the attorneys for the Cities of Traverse City, Coldwater, Holland, Grand Haven and Zeeland, Michigan, the Michigan Municipal Electric Association, and Northern Michigan Electric Wolverine Electric Cooperative, Cooperative and that as such he has signed the foregoing Memorandum by Intervenor Municipals and Cooperatives on Claims by Consumers Power Company for Withholding Production of Documents for and on behalf of said parties; that he is authorized so to do; that he has read said Memorandum and is familiar with the i
contents thereof; and that the matters and things therein set
' forth are true and correct to the best of his knowleFge, information or belief.
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< - ', ,- ' 4, Robert A. Jablon Subscribed and suorn to before me this 19th day of September, 1973.
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Notary Public My commission expires: sentember 30, 1974
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j UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )
) Docket No. 50-329A Consumers Power Company )
CERTIFICATE OF SERVICE I hereby certify that the Memtoandum by Intervenor Municipals and Cooperatives on Claims by Consumers Power Company for Withholding Production of Documents in the above-captioned matter was served upon the following by deposit in the United States mail, first class or air mail, this 19th day of September, 1973.
Alan Rosenthal, Esq., Chairman Mr. Frank W. Karas, Chief Atomic Safety and Licensing Public Proceedings Branch Board Panel Office of the Secretary U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, N. W. 1717 H Street, N. W.
Washington, D. C. 20545 Washington, D. C. 20545 Abraham Braitman, Chief Atomic Safety and Licensing Office of Antitrust and Board Panel Indemnity U. S. Atomic Energy Commission U. S. Atomic Energy Commission 1717 H Street, N. W.
1*/17 H Street, N. W. Washington, D. C. 20545 Washington, D. C. 20545 Harold P. Graves, Esq.
Robert J. Verdisco, Esq. Vice President and General Counsel Counsel for AEC Regulatory Consumers Power Company Staff 212 West Michigan Avenue U. S. Atomic Energy Commission Jackson, Michigan 49201 1717 H Street, N. W.
Washington, D. C. 20545 Wallace E. Brand, Esq.
Antitrust Public Counsel Jerome Garfinkel, Esq., Chairman Department of Justice Atomic Safety and Licensing Board P. O. Box 7513 U..S. Atomic Energy Commission Washington, D. C. 20044 1717 H Street, N. W.
Washington, D. C. 20545
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Joseph Rutberg, Esq. Joseph J. Saunders, Esq.
U. S. Atomic Energy Commission Antitrust Division 7920 Norfolk Avenue Department of Justice Bethesda, Maryland P. O. Box 7513 Washington, D. C. 20044 Hugh K. Clark, Esq.
P. O. Box 127 A Honorable Frank Kelly Kennedyville, Maryland Attorney General State of Michigan William.T. Clabault, Esq. Lansing, Michigan 49813 David A. Leckie, Esq.
Department of Justice Dr. J. Venn Leeds, Jr.
Antitrust Division P. O. Box 941 .
P. O. Box 7513 Houston, Texas 77001 Washington, D. C. 20044 William W. Ross, Esq.
Mr. James B. Falahee Wald, Harkrader and Ross General Attorney 1320 - 19th Street, N. W.
Consumers Power Company Washington, D. C.
212 West Michigan Avenue Jackson, Michigan 49201 r
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Robert A. Jablon Law Offices:
Spiegel & McDiarmid 2600 Virginia Avenue, N. W.
Washington, D. C. 20037 l
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