ML19329E997

Motion to Compel Production of Document Re Internal Memo of Mi Municipal & Cooperative Power Pool.Motion Should Be Granted.Certificate of Svc Encl

ML19329E997
Person / Time
Site:	Midland
Issue date:	04/09/1973
From:	Ross W, Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8006190776
Download: ML19329E997 (4)

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I UNITED STATES'OF AMERICA ATOMIC ENERGY COMMISSION In the Matter of ) __e

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

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APPLICANT'S MOTION TO COMPEL f PRODUCTION OF DOCUMENT Pursuant to Section 2.740 (f) (1) of the Commission's Rules of Practice, 10 C.F.R. Part 2, Consumers Power Company  !

(" Applicant") moves the Board for an order compelling produc-tion of an " internal memorandum" of the Michigan Municipal and Cooperative Power Pool ("MMCPP") whic'.1 the Department of Justice refuses to provide Applicant.

Although this document is responsive to Applicant's .

discovery requests to the Department se rved on December 6, 1972, the Department objected to its production for the first time in a letter to Applicant's counsel on April 2, 1973. According to the letter, the document relates to

" current negotiations" between Applicant and the MMCPP and

" disclosure of this document would be unfair even if limited I

to Applicant's attorneys in this proceeding" (p.1) .' 1 Having never seen the document in question, Appli- I l

cant is unable to comment on itg content. However, from the Department's cryptic description, the document appears to relate to discussions between Applicant and MMCPP members l THIS DOCUMENT CONTAINS POOR QUAUTY PAGES 8006190ggg

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concerning an interconnection agreement. These discussions were referred to in the Department's " advice" letter of June 28, 1971 (pp. 6-7) and are still in progress.

The Department does not explain why it would be

" unfair" to disclose the document -- even to Applicant's counsel under a confidentiality agreement. Contrary to the Department's letter, Applicant has provided the Depart-ment and the Intervenors (who include MMCPP members) with more than fifty documents relating to negotiations between Applicant and MMCPP member systems. (See document pages 12,628 to 12,883). Since many of the documents are internal memorandum concerning the Applicant's views about the matters under negotiation, Applicant has sought (and re-ceived) a confidentiality agreement from opposing counsel.

Applicant submits that if the document is as sensitive as the Department claims, such an agreemant would be equally satisfactory with regard to the document which the Department refuses to produce.

The Department's letter of April 2, 1973 states

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that the document will not be produced except pursuant to a Board order. Since the document is relevant, nonprivileged, j and responsive to a discovery demand to which the Department has not objected, the Department is not justified in refusing to produce it. Rather, if it deems disclosure to be " unfair",

it must seek a protective order pursuant to Section 2.740 (c)

I and meet the " good cause" standards enunciated therein. In any event, nothing in the Department's letter of April 2, 1973, l

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suggests there is good cause for its refusal to disclose the document to Applicant under appropriate terms and conditions.

WHEREFORE, the Applicant moves the Board for an order compelling the Department of Justice to produce the document withheld pursuant to the Department's letter of April 2, 1973.

Respectfully submitted, Wm. Warfield Ross Keith S. Watson Attorneys for Consumers Power Company WALD, HARKRADER & ROS3 1320 Nineteenth Street, N.W.

Washington, D.C. 20036 Of Counsel:

Harold P. Graves, Esquire Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 April 9, 1973

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

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

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS, dated April 9, 1973, in the above-captioned matter have been served on the following by deposit in the United States mail, first class or air mail, this 9 th day of April, 1973:

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. '

pr- Kennedyville, Maryland 21645 Public Counsel Section Antitrust Division James Carl Pollock, 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 1

Atomic Safety and Licensing Board Atomic Energy Commission Washington, D. C. 20545 Keith S. Watson