ML19329C037

List of Documents,By Number,W/Respect to Which Rept of Special Master Challenged by City of Cleveland,Oh,W/O Waiver of Challenge of Special Master'S Rept on Documents Not Listed.Certificate of Svc Encl

ML19329C037
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/27/1975
From:	Goldberg R, Hjelmfelt D GOLDBERG, FIELDMAN & LETHAM, P.C., OHIO, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002120773
Download: ML19329C037 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Atomic Safety And Licensing Board Before the Special Master The Toledo Edison Company ) Docket N The Cleveland Electric Illununating )

Company )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) 50-441A (Perry Plant, Units 1 and 2) )

To The Honorable Special Master Frederic J. Coufal:

LIST OF DOCUMENTS, BY NUMBER, WITH RESPECT TO WHICH REPORT OF SPECIAL MASTER IS CHALLENGED BY CITY OF CLEVELAND, OHIO, WITHOUT WAIVER OF CHALLENGE OF SPECIAL MASTER'S REPORT ON DOCUMENTS NOT LISTED C ATEGORY I:

Documents Which Special Master Held Privi-leged on Grounds Waived By The Cleveland Electric Illuminating Company (CEI)

In approximately 110 cases CEI, in its answers to Interrogatories 1 and 2, had specifically claimed the attorney-client privilege as to some of the documents and the work product privilege as to other documents.

The Special Master erred in ruling that the documents are privileged on privilege grounds not asserted by CEI. Numerous cases hold that if the client does not assert the privilege it is waived.1I CEI's having waived i

1,/ Steen v First National Bank, 298 F 36 (8th Cir 1924); Hill v Hill, 106 Colo 492,107 P 2d 597 (1940).

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the attorney-client privilege or work product privilege, as the case may be, and the Special Master's having found against the particular privilege asserted by CEI, the Special Master could not grant privilege on a ground not asserted, but in fact waived, by CEI.

This result clearly follows from the fact that the claim of privilege must be asserted and is only CEI's to assert. 2/

Only in a few jurisdictions may a court of its own motion protect the privilege and then only if the person entitled to assert the privilege is not present or is not a party to the proceeding. 3/ None of these circumstances is applicable here.

Each of these documents, therefore, should be made available for inspection by the parties at the Central Depository.

With respect to the following numbered documents, CEI claimed attorney-client privilege and waived the work product privilege. The Special Master held the work product privilege to be applicable, although not claimed, and ruled against disclosure of the documents.

109, 110, 151, 171, 599, 603, 608, 611, 613, 614, 617, 714, 890, 891, 2053, 2147, 2161-2166, 3008, 3013, 3014 2/ Dean McCormick in his Treatise on Evidence makes this clear by his statement that "[i]t is now generally agreed that the privilege is the client's and his alone. " McCormick on Evidence, $92, p. 192. See also Abbott v Superior Court, 78 Cal. App. 2d 19,177 P 2d 317 (1947);

Russell v Second Nat'l Bk,136 N. J. L. 270, 55A. 2d 211 (1947); Ex porto Lips comb, 111 Tex. 409, 239 S. W. 1101 (1922).

3_/ Tinglev v State, 16 Okl. Cr. 639,184 P 599 (1919).

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With respect to the following numbered documents, CEI claimed the work product privilege and waived the attorney-client privilege. The Special Master held the documents to be privilege under the attorney-client privilege.

4, 8, 14-19, 21, 22, 24, 26, 29, 31, 36, 38, 42, 51-55, 57-59, 62, 63, 67-70, 72, 74-77, 81, 83, 84, 89-93, 98, 106, 175, 178, 508, 512, 516, 519, 527, 532, 537, 541-544, 546-555, 558, 574, 577, 585, 588, 620, 635, 650, 722, 724, 727, 3047, 3054, 3055, 3060-3063, 3068, 3072, 3078, 3079 CATEGORY II:

Documents Misclassified As "Among Attorneys" Or "Between CEI Attorneys And Their Consultants Or Between CEI Officers And Employers And Attorneys," Or Documents "Not Distributed Outside The ' Control Grouo' "

-A. The particular authors of the following documents were unknown:

10, 124, 125, 706, 709, 765, 803, 807, 824, 2025, 2031, 2032, 2036, 2083, 2105, 2108-2111, 2117, 2119, 2120, 2130, 2134, 2135, 2152, 2154-2157/2157A In the absence of identification of the particular authors, it cannot be deter-mined, and the Special Master could not rule, that the documents were "among attorneys" or "between CEI attorneys and their consultants or between CEI officers and employers and attorneys" or were "not distributed outside the ' control group. ' " 4. /

4/ Natta v Hogan, 392 F. 2d 686, 693-4 (CA 10th 1968).

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B. The particular assistants on the following documents were unknown:

82, 107, 108, 113-118, 121, 124-126, 162, 166, 168, 170, 2025, 2038, 2039, 2054, 2063-2065, 2067, 2068, 2071, 2072-2074, 2076, 2079, 2081, 2083-2089, 2093-2105, 2107-2111, 2113, 2114, 2117-2135, 2152-2157/2157A, 3007, 3010, 3011, 3015 For the reasons stated in IIA, above, and for the further reason of the lack of a showing of confidentiality, determination of privilege as to these docu-ments is challenged.

C. The specific addressees of the following documents were unknown:

163, 2047, 2083, 2108-2112, 2155, 2156 Therefore, the Special Master could not find that the documents were "among attorneys" or "not distributed outside the ' control group' ".

D. The specific distributee (s) of the following documents was unknown:

82, 102, 107, 108, 110-112, 124, 125, 146, 2025, 2031, 2032, 2047, 2073, 3011 Therefore, the Special Master could not find that the documents were "among attorneys" or "not distributed outside the ' control group' ".

CATEGORY III:

Documents As To Which CEI Has Waived Privilege CEI waived its claim of privilege to the following documents:

181, 211, 598, 600, 606, 607, 610, 618, 709, 730, ,

815, 877, 2079, 2090-2092, 2116, 2149 The Special Master erroneously has granted privilege as to these documents.

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CATEGORY IV:

Documents As To Which Privilege Has Been Granted And Denied The protection of the privilege has been both granted and denied with respect to the following documents:

57, 843, 2079, 2083 These documents are now, therefore, in an ambiguous status. The ambiguity should be resolved. The City's position is that privilege should be denied as to each for the reasons set forth in City's pleadings.

CATEGORY V:

Documents As To Which The Special Master Did Not Rule There has been no decision as to the following documents:

13, 20, 85, 164, 177, 520, 538, 565, 586, 708, 783, 785, 787, 797, 833, 2026, 2034, 2069, 2074, 2145, 2158 CATEGORY VI:

Documents Which Are Unlisted There are two documents listed on the Attachments which are not on the lists submitted by CEI. These are documents numbered 172a on Attachment No. 2~ and 563 on Attachment No. 4.

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CATEGORY VII:

Documents Which Were Unseen But Granted Privilege A privilege has been granted to a document (p. 3 of Report) which the Report of Special Master stated as having not been received. That document is No. 2129 found in Attachment No. 2.

WHEREFORE, for each of the enumerated documents the decision of the Special Master should be modified.

Respectfully submitte ,

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Reuben Goldberg David C. Hjelmfelt Michael D. Oldak Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.

Washington, D. C. 20006 Telephone (202) 659-2333 Attorneys for City of Cleveland, Ohio June 27, 1975 l

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CERTIFICATE OF SERVICE I hereby certify that service of the foregoing List Of Documents, By Number, With Respect To Which Report Of Special Master Is Challenged By City Of Cleveland, Ohio, Without Waiver Of Challenge Of Special Master's Report On Documents Not Listed, has been made on the following parties listed on the attachment hereto this 27th day of June, 1975, by depositing copies thereof in the United States mail, first class or air mail, 1

postage prepaid or by hand delivery.

Michael D. Oldak A ttachment 1

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ATTACHMENT

.. Atomic Safety and Licensing Board Jon T. Brown, Esq.

U. S. l Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C. 20555 Suite 777 1700 Pennsylvania Avenue, N. W.

Mr. Frank W. Karas, Chief Washington, D. C. 20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatory Commission AMP-O, Inc.

. Washington, D. C. 20555 Municipal Building

. 20 High Street' Douglas V. Rigler, Esq. Chairman Hamilton, Ohio 45012 Atomic Safety and Licensing Board Foley, Lardner, Hollabaugh - Melvin C. Berger, Esq.

and Jacobs Joseph J. Saunders, Esq.

Schanin Building Steven Charno, Esq.

815 Connecticut Avenue, N. W. Antitrust Division Washington, D. C. 20006 Department of Justice Post Office Box 7513 John'H. Brebbia, Esq. Washington, D. C. 20044 Atomic Safety and Licensing Board

, Alston, Miller & Gaines William T. Clabault, Esq.

1776 K Street, N. W. -

David A. Leckie, Esq.

Washington, D. C. 20006 Department of Justice 3 Post Office Box 7513 John M. Frysiak, - Esq. Washington, D. C. 20044 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Gerald Charnoff, Esq.

4 Washington, D. C. 20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.

Benjamin H. Vogler, Esq. Washington, D. C. 20006 Joseph Rutberg, Esq.

Office of the General Co'unsel Frank R. Clokey, Esq.

Regulation Special Assistant Attorney Ge.wal U. S. Nuclear Regulatory Commission Room 219 - Towne Ucuse Apa. ' c 'a Washington, D. C. 20555 Harrisburg, Pennsylvania 1/103 Robert J. Verdisco, Esq. . Thomas J. Muns ch, Jr. , Esq.

Roy P. Les sy, Jr. , Esq. General Attorney

. Office of the General Counsel Duquesne Light Company Regulation . 435 Sixth Avenue U. S. Nuc1 car Regulatory Commission Pittsburgh, Pennsylvania 152i?

Washington, D. C. 20555-I David McNeil Olds, Esq. 3 Abraham Braitman, Esq. John McN. Cramer, Esq.

Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nucicar Regulatory Commission Post Office Box 2009

Washington,' D. C. 20555 Pittsburgh, Pennsylvania 13230 l

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.. .. , n Paga 2 ATTACHMENT (Continued)

John R. White, Esq. Leslie Henry, Esq.

Thomas A. Kayuha, Esq. Fuller, Henry, Hodge & Snyder Ohio ~ Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr. , Esq.

Pennsylvania Power Company Cox, Langford & B rown 1 East Washington Street 21 Dupont Circle, N. W.

New Castle, Pennsylvania 16103 Washington, D. C. 20036 Lee C. Howley, Esq. Donald H. Hauser, Esq.

Vice President and General Counsel Corporate Solicitor The Cleveland Electric Illuminating Co. The Cleveland Electric illuminating Co.

Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appaals Ad.

U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commissiva Washington, D. C. 20555 Washington, D. C. 20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Sd.

U. S. Nuclear Regulatory Commission U. S.' Nuclear Regulato ry Commis sion Washington, D. C. 20555 Washington, D. C. 20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East Broad Street, 15th floor Antitrust Section Columbus, Chio 43215 30 East Broad Street, 15th floor Columbus, Chio 43215 Christopher R. Schraff, Esq.

Assistant Attorney General Howard K. Shapar, Esq.

, Environmental Law Section Executive Legal Director 361 East Broad Street, 8th Floor U. S. Nuclear Regulato ry Commis Lt Columbus, Ohio 43215 Washington D. C. 7.0535 b,

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