ML19242C688
| ML19242C688 | |
| Person / Time | |
|---|---|
| Site: | Seabrook, South Texas, Comanche Peak  |
| Issue date: | 07/11/1979 |
| From: | Clark R, Cyphert S, Harris J INTERIOR, DEPT. OF, JUSTICE, DEPT. OF |
| To: | |
| References | |
| NUDOCS 7908130215 | |
| Download: ML19242C688 (36) | |
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UNITED STATES OF AMERICA
\\
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
HOUSTON LIGHTING AND POWER
)
Docket Nos. 50-498A CO., et al. (South Texas
)
50-499A Project, Units 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos.
50-445A COMPANY (Comanche Peak Steam
)
50-446C Electric Station, Units 1
)
and 2)
)
)
MOTION OF THE DEPARTMENT OF JUSTICE TO COMPEL PRODUCTION BY HOUSTON LIGHTING & POWER COMPANY OF CERTAIN DOCUMENTS WHICH IT CONTENDS ARE PRIVILEGED I.
INTRODUCTION Pursuant to 10 C.F.R.
S 2./40(f) of the NRC Rules, the Department of Justice (" Department") respectfully moves the Board for an Order compelling Houston Lighting & Power Com' pany ("HLP") to produce certain documents being withheld under a claim of privilege.
II.
BACKGROUND On November 22, 1978, more than seven months ago, the Department served a first set of interrogatories and request for production of documents
(" Interrogatories") on counsel for HLP.
On January 11, 1979, HLP served its answers and b2'lOIIb' n
90B10
hg objections.
On January 15, 1979, HLP filed a motion for a protective order regarding certain of the Department's Interrogatories.
On February 6, 1979, the Department filed an opposition to that motion and a response to HLP's objections.
At the lame time, the Department filed a motion to compel HLP to provide fuller responses.
On March 6, 1979, a' _er a reply by HLP, this Board issued an Order denying HLP's motion for a protective order.
On March 12, 1579, the Board issued a second Order which granted the Department's motion to compel in vir-tually every respect.
The aforementioned Orders dealt, among other things, with the first instruction in the Department's Interrogatories 1/ and with the Department's request that all documents withheld because of a claim of privilege be listed together with a statement of the basis for the asserted privilege.
(March 6, 1979 Ordar at 3).
Almost four months have passed since the issuance of those Orders.
During that time, the Department has sought to avoid bringing these same matters bacr. before the Board.
Thus, following the Board's March 6 and March 12, 1979 Orders, during March 20, 1979 Prehearing Conference, and in several subsequent phone calls with HLP's attorneys, 1/
This inctruction provided that if some of the request-ed documents had already been made available for the Department's inspection, they could be listed and described in lieu of being produced again, see March 6, 1979 Order at 1.
UCfh 1979 Orders, during the March 20, 1979 Prehearing Conference, and in several subsequent phone calls with HLP's attorneys, the Department repeatedly off(red to participate in a meeting of counsel in an attempt to narrow the scope of its Interrogatories.
Counsel for HLP eventually agreed to attend such a meeting, which was held on April 18, 1979.
It was the Department's understanding at the conclusion of that meeting that HLP 2/ would update certain interrogatory answars, provide a current list of purportedly privileged docu-ments and produce an index of previously supplied documents categorized by interrogatory.
On May 31, 1979, approximately six weeks after the meeting of counsel and almost three months after the Board's Order denying HLP's motion for a protective order, HLP 2/
Attorneys for Texas Utilities Company were also present at that meeting and agreed to provide certain information.
Their compliance is not at issue in this motion.
P7"O.ljL "^'
"MQnO
finally produced some supplementary interrogatory answers, an index 3/ and an updated privilege list.
The updated privilege list which HLP eventually produced see Exhibit A hereto, contains many documents which, on their
- face,
- not appear to be sheltered from preduction either by prior Board Orders or by any established legal privilege.
After carefully studying the list, the Department contacted one of HLP's attorneys and worked with him, by telephone, for seve al hours during the week of June 25 through 29, 1979.
3/
The so-called index contained nothing more than a meaningless list of eleven digit numbers which had appar-ently been assigned to documents during discovery in the civil case.
Those numbers, although categorized by interrogatory, were totally unintelligible to the Depart-ment.
The Department informed HLP's counsel in subsequent telephone conversations that such an index, without further identification of documents, was useless.
Finally, in a phone conversation on or about June 6, 1979, counsel for HLP took the position that, rather than identify the docu-ments, HLP would exercise the original option given to it of simply sending second copies of responsive documents al-ready produced.
See the first " General Instruction" contained in the Department's Interrogatories, Section E.1 at 7.
This decision was made despite the preference for an index expressed by Chairman Miller at the March 20, 1979 Prehearing Confer-ence (Tr. at 177).
In recent phone conversations with counsel for HLP (during the week of June 25-29), the Department has agreed to attempt to meet its needs with such a production on the condition that the copies be sent immediatelv and that each document be carefully categorized according to the interrogatory to which it relates.
However, the De artment feels that the Board s
should be aware that, despite HLP's protestations (see, e.g.,
March 20, 1979 Prehearing Conference, Tr. at 161 et sec.) to the effect that the Department was forcing HLP to index 100,000 documents, HLP has now chosen to exercise an option which HLP decided to forego seven months ago.
In light of this history, the Department wishes to expressly reserve its right to resubmit this matter for the Board's consideration in the event that HLP's production is again inadequate.
i-
,th-
On this occasion, the Department and HLP were able to narrow suostantially the ar eas of dispute between them. 4/
However, despite the best efforts of counsel, several contested issues remain.
It is these remaining issues which form the substance of this Motion.
III.
ARCUMENT A.
Corporate Employees or Officers (Parties) Do Not Have the Same Work Product Privilege as Attornevs.
The first area of dispute between the Department and HLP concerns a category o' documents written:
(1) between or among HLP officers and employees and relating to an outside nontestifying consultant, or (2) from an outside nontestifying consultant to an officer or employee of HLP or vice versa.
The contested documents falling within this category are listed in Appendix B hereto. 5/
HLP has justified its refusal to produce these 4/
As a result of these tel3 phone conversations, HLP has agreed to procuce immediately sixteen documents appearing on its privilege list, to wit documents numbered 202, 206, 210, 213, 220, 222, 224 (attachments), 225, 232, 246, 247, 248, 249, 263, 264, and 277.
5/
The Department has not included in its Appendix any documents which appear on their face to be procedural or administrative rather than substantive (e.g.,
status reports dealing with the progress that was being made on the Stagg study). UZ. )10 d
documents on a combination of the work product privilege and a privil.ege purportedly adhering to communications involving a nonta rifying expert.
The immunity from discovery accorded to " work product" stems from Hickman v. Tavlor, 329 U.S. 495 ( 19 4'/ ) in which " written statements, private memoranda, and personal recollections" prepared by an adverne party's counsel in the course of his legal duties were held to be "outside the arena of discovery."
Id. at 510.
This limited " work product" exception to the broad scope of discovery has been codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure and in 2.740(b)(2) of the NRC Rules. 6/
The NRC rule makes it clear that the privilege applies to material prepared "by or for [a] party's representative" (e.g.,
its attorney) but makes no mention of documents, memoranda, etc.
written by (or for) a party itself.
6/ The NRC rule reads, in relevant part:
(2) Trial preparation materials.
A party may obtain discovery of documents and tangible things otherwise discoverable under subparagraph (1) of this paragraph and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a snowing tnat tne party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. (Emphasis added) gp'.d;
The cases demonstrate that " work product" focuses on material and information prepared by an attorney, or an agent of the attorney, under that attorney's direct and explicit supervision.
In general, the doctrine is designed to protect " memoranda, recorded mental impressions, synopses of witness statements, drafts of documents" which are prepared by an attorney in anticipation of litig_ tion.
Hercules Corcoration v. Exxon Corporation, 434 F. Supp. 136, 150 (D. Del. 1977).
The privilege is afforded material which involves the application of the attorney's professional skill and experience. Philadelpnia Housing Authority v.
American Radiator & S.
San Coro., 291 F. Supp. 247-50 (D. Pa.
1968).
Moreover, many cases specifically distinguish an attorney's own work product (or the work product of his agents) from work done by agents or employees owing primary allegiance to employers other than the attorney.
See, e. g._, Virginia Electric & Pouer Co. v. Sun Shipbuilding and Dry Dock Co.,
68 F.R.D. 397 (E.D. Va. 1975) and cases cited therein.
Nor is HLP's argument bolstered by the fact that the documents being withheld relate in some fashion to a non-testifying expert.
The Board has in the past ruled that an attorney's communications with non-testifying experts are privileged from discovery by virtue of the work product doctrine (Prehearing Confere'.e of March 20, 1979, 802."'.{'33
Tr. at 183-85). 7/
As Chairman Miller explained during the March 20, 1979 Prehearing Conference:
[W] e think that this questi.on of experts you may have talked to that you don't intend to call, that to us seems ta be within the pur-view of a lawyer's right to have his own thoughts and everything else.
(Tr. 185, emphasis added).
Thus, the nontestifying expert exception whicP the Board has carved out is a subcategory of the work product privilege and, for all the reasons just discussed in connection with the work product doctrine, is not properly invoked in the circumstances here.
For all the foregoing reasons, documents #197, 211, 234, 240, 243, 258, 260, 265, 272, 273 and 278 (listed in Appendix B) should be produced forthwith.
7/
During the March 20, 1979 hearing, the Board held the NRC Staff's communications with non-testifying e.xperts to be privileged from discovery.
HLP later contended that certain of the Staf f's requests to it were identical to the requests denied at the March 20, 1979 Prehearing Conference.
See Houston Lighting & Power Company's Response to the NRC Staff's Response to Motion for Protective Order and Motion to Compel Further Answers to Staff's Interrogatories and Requests for Production of Documents, dated April 11, 1979, at 4.
The Board sustained HLP's objection to respond-ing to those requests.
See April 16, 1979 Order at 1-2. 62."WYi.G
B. Documents Written To or From a Testifying Expert and Relevant to Matters About Which that Expert is Likely to Testify Should be Produced The second area of dispute remaining between HLP and the Department relates to documents written either from or to a testifying expert.
While the parties have informally resolved the issue as it pertains to many such documents, the question still remains open as to other documents falling ir. this category.
Those documents are listed in Appendix C hereto.8/
Much of the dispute regarding these documents revolves around the fact that the expert in question (Eugene Simmons) is both a named testifying expert and a corporate officer of HLP. 9/
To determine the validity of the privileges relied upon by HLP (attorney-client, work product /non-testifying 8/ Documents numbered 195, 198, 207, 208, 236, 238, 242, 243, 244, 260, 266, 268 and 275.
9/ It should be pointed out, however, that three of the documents appearing on Appendix C, documents numbered 238, 242 and 260, went to Abe Gerber, as well as to Eugene Simmons.
Abe Gerber has been named as a testifying expert and is not an employee of HLP.
At least insofar as the three documents given to Mr. Gerber are concerned, the Department sees no reason why those documents, eacn of which is relevant to these proceedings and undoubtedly to Mr.
Gerber's testimony, should not be produced forthwith.
9-LZ,$d7
expert), it is necessary t.
ascertain in what capacity Mr.
Simmons was acting when he wrote or received the documents in question.
This issue has arisen previously in connection with documents the Staf f sought purscant to its discovery request of HLP.
The Board, in ruling on the Staff's motion for reconsidcration of a Board Order denying access to certain BLP documents, stated:
The Board has ruled that the use by counsel of consultants not to be called as witnesses is protected as part of an attorney's trial prepara-tion which is not subject to dis-covery.
However, a different rule obtains as to the studies or analyses of others which a witness nas used or will use lit the preparation of his testimony or studied for cross-cxamination or other testimonial purposes.
Such studies or documents should be produced, and HL&P has agreed to do so, subject to one exception.
That exception relates to documents a corporate officer has reviewed in his capacity as an officer of a company involved in litigation, but which he does not intend to rely upon in his testimony.
This exceotion is valid and will be sustained.
(May 7, 1979 Order at 1-2, emphasis added, footnotes omitted). o q cj'
.U W*
Thus, the issues to be resolved are whether particu-lar documents were written or reviewed by Mr. Simmons in his capacity as a corporate officer or in his capacity as a testifying expert and, if in his latter capacity, whether Mr. Simmons relied or intends to rely upon those documents in preparing his expert testimony.
It is difficult to resolve these issues because a document first read or written by an individual in one capacity and for one purpose cannot totally be put out. of that individual's mind when he or she subsequently acts in another capacity or for another purpose.
Accordingly, the Department should not be prevented from discovering all the information relied upon by an opposing party's expert in preparation of his or her testimeny or in anticipation of trial simply because that opposing party has chosen to name as its expert one of its officers or employees.
Otherwise, counsel could designate all officers as " experts" in order to circumvent the. discovery rules.
In the instant motion the Department is simply moving to conpel the production of those documents which, based on their description (contained in the HLP Privilege List) appear directly relevanc to the issues in these proceedings.
For example, document #198, is described as a 4/15/77 Memorandum from Hunsicker (an attorney for HLP) to Copeland, Cowan, Thrash (all C.TiO
attorneys for HLP) and Simmons (testifying expert), regarding Abe Braitman's (outside consultant) comments on the FPC Staff Report of ERCOT-SWPP Interconnection and Reliability Evalu-at on. 10/ In addition to the obvious relevance of the subject matter of this document, the cited report was preparc i in large measure by William Scott, the individual whom the Department has named as :'s testifying expert in these proceedings.
It is difficult to believe ' hat Mr. Simmons c
will not rely upon or study (or has not relied upon or studied) Mr. Braitman's comments in connection with his testimony, preparation for cross-examination or the like. 11/
10/
The Board has already ruled that an attorney's communi-cations with a testifying expert should generally be produced:
This is ordered because (a) if an attorney communicates with an expert, who is going to be an expert witness, such a communication could have a bearing on the witnesses credibility...
(June 25, 1979 Order, 13 at 3).
11/ The Department understands the dif ficulty involved in deciding whether a particular document was, or will be,
" relied upon" by an expert in connection with his or her testimony.
The Department believes it is highly unlikely that, in its May 7, 1979 Order, tho Board intended that a testifying evpert base his or her testimony directiv on a particular document befcre that document be subject to discovery, but rather that it be one of the background sources which helped the expert formulate his or her opinions.
If the Board feels that it cannot fairly rule (based on the sparse informatic, provided in the privilege list) on whether the documents t',e Department is seeking are of a type likely to be (or to have been) relied on by Mr. Simmons in connection with his testimony, the Department respectfully suggests that the Board ask that the documents involving testifying experts be produced for in camera inspection, with a ruling on the Department's motion to follow.
c ~ o.C0 -"
For all the foregoing reasons, the Department re-spectfully requests that it be given copies of documents numbered 195, 198, 207, 208, 236, 238, 242, 243, 244, 260, 266, 268 and 275, all of which appear on HLP's Privilege List.
IV. CONCLUSION For the reasons discussed in previous sections of this Motion, the Depar tment respectfully requests that the Board compel HLP to produce, within one week of the date of entry of its Order, documents numbered 197, 211, 234, 240, 243, 258, 260, 265, 272, 273 and 278 (iisted in appendix B and involving communications between corporate officers or between a corporate officer and a nontestifying expert) and 195, 198, 207, 208, 236, 238, 242, 243, 244, 260, 266, 268 and 275 (listed in Appendix C and either to or from a testifying expert).
Respectfully submitted, II4'lY h LLLS Judith L.
Harris Susan B. Cyphert Ronald H.
Clark Frederick H.
Parmenter Attorneys, U.S. Dept. of Justice Antitrust Division Washington, D.C.
20530 July 11, 1979 b2.'?O,Q
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
HOUSTON LIGHTING AND POWER
)
Docket Nos. 50-498A CO.,
et al.(South T:xas
)
50-499A Project, Units 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50 445A COMPANY (Comanche Peak Steam )
50-446A Electric Station, Units 1
)
and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing MOTION OF THE DOJ TO COMPEL PRODUCTION BY HL&P OF CERTAIN DOCUMENTS WHICH IT CONTENDS ARE PRIVILEGED has been made on the following parties listed hereto this llth day of July, 1979, by depositing copies thereof in the United States mail, first class, postage prepaid.
Marshall E. Miller, Esquire Atomic Safety and Licensing Chairman Appeal Board Panel Atomic Safety & Licensing Board U.S. Nuclear Regulatory Panel Commission U.S. Nuclear Regulatory Washington, D.
C.
20555 Commission Washington, D.
C.
20555 Richard S.
Salzman, Esquire U.S. Nuclear Regulatory Michael L. Glaser, Esquire Commission 1150 17th S treet, N.W.
Washington, D.
C.
20555 Washington, D.
C.
20036 Jerome E.
Sharfman, Esquire Sheldon J. Wolfe, Esquire U.S. Nuclear Regulatory Atomic Safety & Licensing Board Commission Panel Washington, D.
C.
20555 U.S. Nuclear Regulatory Commission Chase R.
Stephens, Secretary Washington, D.
C.
20555 Docketing and Service Branch U.S. Nuclear Regulatory Samuel J. Chilk, Secretary Commission Office of the Secretary of the Washington, D.
C.
20555 Commission U.S. Nuclear Regulatory Jerome Saltzman Commission Chief, Antitrust and Washington, D.
C.
20555 Indemnity Group U.S. Nuclear Regulat'ry Commission Washington, D.
C.
20555 6..C,T,*32
Roff Hardy Michael I. Miller, Esquire Chairman and Chief Executive Richard E.
Powell, Esquire Officer David M.
Stahl, Esquire Cent! ?. Power and Light Thomas G.
Ryan, Esquire Co sany Martha E. Gibbs, Esquire P. O. Box 2121 Isham, Lincoln & Beale Corpus Christi, Texas 78403 One First National Plaza Chicago, Illinois 60603 G.K. Spruce, General Manager City Public Service Board Roy P.
Lessy, Esquire P.O. Box 1771 Michael Blume, Esquire San Antonio, Texas 78203 U.S. Nuclear Regulatory Commission Perry G. Brittain Washington, D. C.
20555 President Texas Utilities Generating Jerry L. Harris, Esquire Company City Attorney, 2001 Bryan Tower Richard C. Balough, Esquire Dallas, Texas 75201 Assistant City Attorney City of Austin R.L.
Hancock, Director P.O. Box 1088 City of Austin Electric Austin, Texas 78767 Utility Department P. O. Box 1088 Robert C. McDiarmid, Esquire Austin, Texas 78767 Robert A. Jablon, Esquire Spiegel and McDiarmid G. W. Oprea, Jr.
2600 Virginia Avenue, N.W.
Executive Vice President Washington, D. C.
20036 Houston Lighting & Power Company Dan H. Davidson P. O. Box 1700 City Manager Ecuston, Texas 77001 City of Austin P. O. Box 1088 Jon C. Wood, Esquire Austin, Texas 78767 W. Roger Wilson, Esquire Matthews, Nowlin, Macfarlane Don R. Butler, Esquire
& Barrett 1225 Southwest Tower 1500 Alamo National Building Austin, Texas 78701 San Antonio, Texas 78205 Joseph Iri >n Worsham, Esquire Joseph Gallo, Esquire Merlyn D.
- ampels, Esquire Richard D. Cudahy, Esquire Spencer C. Relyea, Esquire Robert H. Loeffler, Esquire Worsham, Forsythe & Sampels Isham, Lincoln & Beale 2001 Bryan Tower, Suite 2500 Suite 701 Dallas, Texas 75201 10 50 17th S treet, N. W..
Washington, D.
C.
20036 Joseph Knotts, Esquire Nicholas S.
Reynolds, E; quire Debevoise & Liberman 1200 17 Street, N.W.
Washington, D.
C.
20036 L.. PSO
Douglas F. John, Esquire R. Gordon Gooch, Esquire Akin, Gump, Hauer & Feld John P. Mathis, Esquire 1333 New 3ampshire Avenue, N.W.
Baker & Botts Suite 400 1701 Pennsylvania Avenue, N.W.
Washington, D. C.
20036 Washington, D. C.
20006 Morgan Hunter, Esquire Robert Lowenstein, Esquire McGinnis, Lochridge & Kilgore J.A.
Bouknight, Esquire 5th Floor, Texas State Bank William J. Franklin, Esquire Building Lowenstein, Newman, Reis, 900 Congress Avenue Axelrad & Toll Austin, Texas 78701 1025 Connecticut Avenue, N.W.
Washington, D. C.
20036 Jay M. Galt, Esquire Looney, Nichols, Johnson E. W.
Barnett, Esquire
& Bayes Charles G. Thrash, J r., Esquire
-219 Couch Drive J. Gregory Copeland, Esquire Oklahoma City, Oklahoma 73101 Theodore F. Weiss, Jr., Esquire Baker & Botts Knoland J.
Plucknett 3000 One Shell Plaza Executive Director Houston, Texas 77002 Committee on Power for the Southwest, Inc.
Kevin B. Pratt, Esquire 5541 East Skelly Drive Assistant Attorney General Tulsa, Oklahoma 74135 P.O.
Box 12548 Capital Station John W.
Davidson, Esquire Austin, Texas 78711 Sawtelle, Goode, Davidson
'& Tioilo Frederick H.
Ritts, Esquire 1100 San Antonio Savings Law Offices of Northcutt Ely Building Watergate 600 Building San Antonio, Texas 78205 Washington, D.C.
20037 W.
S. Robson Donald M.
Clements, Esq.
General Manager Gulf States Utilities Company South Texas Electric P.O. Box 2951 Cooperative, Inc.
Beaumont, Texas 77704 Route 6, Building 102 Victoria Regional Airport Donald M.
Clements, Esq.
Victoria, Texas 77901 Gulf States Utilities Company P.O.
Box 2951 Robert M.
Rader, Esquire Beaumont, Texas 77704 Conner, hoore & Corber 1747 Pennsylvania Ave., N.W.
Washington, D.C.
20006
/ 7 M' Mt/_M Judith L.
Barris Attorney W.N. Woolsey, Esquire Energy Section Dyer and Redford Antitrast Division 1030 Petroleum Tower Department of Justice Corpus Christi, Texas 78474 b2T2d
e APPI:NDIX A j
tocument Type of Identity of Author Egs ior Cl<nimed 14 umbe r Date Document and Addressee Sulject Pttvilege L's bE 183 5/10/73 Letter Schwarz (D &II) to Pr'dra f t of STP A t t o rney-c l ient
(*j d
K.L. Williams (llL & P )
Participation i
Agreement
- e. g 7;&
184 1/2//76 flemorandum Thrash CSW/ITC Attorney-client i
185 2/24/ 76 Hemorandum Thrash to Pecse, JorJan fleeting of Attorney-client j
Oprea, Dean, Standish, Simnons, Teague l
Simmons. Drown
& Thrash with i
of ficers and a
representatives of I'lorida Power
& Light Company 186 Deleted 187 9/27/76 Letter Draitman to Copeland Draft affidavit Work products non-e and summary of testifying expert 8
i professional
{
experience 6
l 188 1/31/77 Hemorandum Copeland to Reese and Current status Attorney-client i
Jordan of various CSW proceedings 189 Deleted f
190 Deleted 191 2/14/77 Letter Stagg to McCutstion Progress Peport Work products non-of study activ-testifying expert ities from Jan.
1 1977 to Jan.
31, 1977 I
e.
I
9 Document
\\
Number
_Tyle of Identity of Author
/
Date Document-~
and Addressee Basis _for Claimed Sut>j ec t Privilege 192 2/14/77 Letter (draft) 3 w A Thrash to Woolsey C
Texas Public Attorney-client Utility Commis-( ",
sion, Docket No.
'02 192-A 14 Q
2/14/77 Same as Docu-ment rio. 192 193 2/25/77 Memorandum Thrash to towan CSW ( TP UC ) " r,* a r - Work Product i
ing" of reb. 2 3.,
1977 194 s
Deleted 195 3/21/77 tiemorandum j
Copeland to Simmons
(
committee on Attorney-client h
Power for the 196 Southwest f
i Deleted n
s 197 i
4/1/77 Memorandum Heyer to Kayser (litsP) rio t e s o f flee t -
Work product; s
non-ings with Glenn testifying expert 198 Stagg 4/15/77 flemorandum Hunsicker to Copelard, Ale Braitman Work product; non-
)
Cowan and Thrash commints on FPC testifying expert i
Staff retort of ERCOT-SWPP Q r-connection d
Deliabilit.
199 Evaluation 4/19/77 Hemorandum (outline No.1)
Thrash to Copeland Test 3 mony for Work product PUC hearing of May 2, 1977 4
Document tJ wntie r~
Typt= of Identitv of Aut har
\\
Date incunien t
/
and Addressee fla s i s for Claimed S ubj ec t Qi vi le<pi p]
~
200 4/18/77 Memorandum
.s Thrash to Copeland C
(outline flo. 2)
Testimony for Work product Pl>C heari ng o f q+;
i I
j 201 tia y 2, 1977
'7 4/18/77 Piemorandum Thrash to Copeland d
(outline No. 3)
Testimoney for Work product PUC hecring of 202 11ay 2, 1977 4/18/77 Memorandum Thrash to Simmons I
(first draft)
Testimony for Attorney-client?
PUC hearing of Work product 203 flay 2, 1977 4/18/77 Same as Docu-ment No. 202 204 4/18/77 Piemo ra n dum Thrash to Simmons (outline 2J0 5)
Testimony for Attorney-clients
)
PUC hearing of Work product i
205 tiay 2, 1977 4
4/18/77 tiemorandum i
n Thrash to Simmons I
(outline FJo. 6)
PUC hearing of Attorney-clients 206 Hay 2, 19'v 7 Work product 4/18/77 Memorandum Thrash to Simmons and Copeland outlines of pro-At torney i:lient posed testimony Work product 207 for PUC hearing 4/27/77 Memorandum Copeland to Tt. rash itevision of Work product PUC testimony 200 Outline 130 4 4/27/77 Memorandum Copeland to Thrash Devision o2 Work product PUC testimony 209 outline tio. 5 Deleted I
T Document
,pe of Identity of Author Ea S i,s for claimed N umba r Date b,cument and Addressee Subject Privilege
(()
W !.
C; 210 S/5/77 Draft testimony Simmons Puc Work product gf; testimony s
,,l
\\'
211 6/1/77 Notes Meyer to liilliams HL&P imput Work products non-(I) to Stagg testifying expert studies 212 Notes Samples to Copaland TU response Work product 3
to Stagg studies 212-A Samos Ls Docu-ment No. 212 213 6/17/77 Memorandum Copeland to Jack Newton Preparation of Attorney-clients materials for Work product Federal District E
g Court trial l
214 7/1 8/ 77 Notes Listing of Stagg Work product; non-studies testifying expert 1
215 Deleted 216 Deleted I
217 Deleted t
218 Deleted i
219 Deleted
\\.
'I Document b
grpe of Ident itLof Author Hasis for C1 limed flumbe r Date Document and Adilressee pe Sulgect Privaleqe i
( ".
220 9/9/77 Memorandum ficcuistion of Simmons Engineering tlor k product I2 Department Q) comments in preparation for SEC hearings 221 9/ 12/ 77 Letter Stagg to McCuistion Erogress report tiork product; non-of Stagg Study testifying expert activities from l
Aug.
1, 1977 to I
Aug. 31, 1977 h
222 9/18/77 tiotes Sirmnon s Settlement with Settlement
]
CSU discussion e
223 10/12/77 Letter Stagg to itcCuistion P rog re s s report Llork products non-8 m
of study activ-testifying expert e
itles from Sept.
f 1,
1977 to Sept.
}i 30, 1977
[$
224 10/18/77 Memorandum Copeland to Darnett, flespense to in-Work product l'
Gooch, Hunsicker and quiry from firm Thrash representing flEltC
-23/
225 10/19/77
}iemorandum Simmons to Copeland GSo letter to Attorney-client I
Texas PUC 226 10/21/77
}lemorandum Copeland to Darnett, Inquiries from Work product i
Gooch, llunsicker firm s ept er.en t-l and Thrash ing NEftC D
lt 227 11/3/77 Notes FJH to Simmons Status of Stagg Work product; non-i final report testifying expert I
228 11/09/77 Imtter flunsicker to Stagg liL&P rebuttal Work products non-Case at SEC testif ying exgert b
9
)
Document Type of Identity of Author Basis for Claimed Number Date Document and Addressee Snyg Privilege C3 229 11/16/77 Le t t e r Stagg to Simmons Status of Stagg Work products non-(;
I report testifying expert
( *,
230 11/17/77 Draft Motion Defore the Work product
'j punlic Utility Commission of Texas re: Docket No. 14 230-A 11/17/77 Same as Docu-ment No. 230 231 Deport Drailman Analysis of Work products non-CSW studies testifying expert 232 Notes Simmons Discussion with Attorney-client 9
Attorneys re s
HERC & FTC in-vestigations 213 Deleted g
234 Notes Simmons Review of draft Work products no..-
l Stagg study testifying expert 235 12/5/77 Memorandum Copeland to Gooch Distribution Work product list for Stagg Peport 236 12/5/77 Memorandum Thrash to Reese, Jordan, CSW-General Attorney-client 1
Oprea, Dean & Simmons l i.
I i
s 9
$5.
Document Type of Ident i ty of Aut hor 14 tjumt.o r Date Basis for Clannod l l' Document and Address 2e Subject l'rI W ege
- [
%w j
f 236-A 12/5/77 Same as Docu-
[;
I 1
ment No. 236 C1 f
I
(',2, t 1 236-0 12/5/77 Same as Docu-a) 4 ment No. 235 i
237 Deleted t
6 238 12/13/77 Draft stagg Stagg stuiy Work products non-f testifying expert 239 12/15/77 tiemorandum Copeland to Simmons Ita ll i nq list Attorney-client i
for Stagg g
study
{
l 240 12/23/77 Draft Letter Draitman to Simmons Distribution work groduct; non s
of Stagg study testiffing expert j
241 1/09/78 Letter Glenn Stagg of Ps agress re-work product s non-l Stagg Systems to port 12/1/77-testifying expert McCuistion (if L & P )
12/11/77 t
j 242 1/19/78 Draft Stagg to oprea, Draft of Stagg Work product; non-Simmons, McCuistion, stiedy testifying expert j
Williams (IIL & P ),
Thrash, Copeland, Darnett, Gooch (D&D),
Braitman & Gerber 243 1/20/'
Letter Draitman to Simmons Involvem+nt of Work product; non-l (if L&P)
SWPP L Hl:RC in testifying expert 8
in CSH-ERCOT j
controversy in IV
~.
21
Document TyIe of Ident i t y_o f Auti or_
r; = s t s for Claimd t
Number Date Document and Addressee Subject laivllPQe (d
243-A 1/20/78 Same as 243 (g) ei 244 1/24/78 Letter COPeland to Simmons Draft of letter Attorney-client
'I concerning flERC-(-
TAC review of
(\\l E RCOT/SilPP Q
1 interconnection 245 3/15/78 Letter Stagg to riccui stion Progress Report Work product; non-1/1/78-2/28/78 testifying expert of Staff Study 246 3/23/78 Hemorandum Heyer (HL&P) to rile Review of CSW Work product Studies in preparation for SEC case, y
l 8
l 247 4/7/78 Hemorandum Doan (IIL&P)
.o Simmons Answers to CSW Work product Interrogatories i
248 4/17/78 Hemorandum Simmons to Copeland Answers to CSW Attorney-client; Interrogatories Work product 249 4/18/73 Hemorandum Heyer to Sime.ons Answers to CSW Work product Interrogatories i
250 4/26/78 Letter Simmons to Sta99 Status of Stagg yort product; non-studies testifying expert 251 4/26/78 Letter Stagg to Simmons Status of studies Wor'. product; non-related to CSW testifying expert t
b gl
I Do cume n t Type of I.1 entity of Author Basis fc: claimed
((j thunbe r Date Document and Addressee Su t>j ect Privilege p'j Cu p.s 252 5/01/78 Letter Stagg to ticcuistion Progress Report 3ork products non-
- =
3/1/78 to 4/30/78 testifying expert UY.
l 252-A 5/01/78 Same as 252 i
252-D 5/01/78 Same as 252 4
1 253.
Notes List of stagg Work products non-studies testifying expert l
254 Same as 253 I,oad flow, tran-Work product j
sient, produc-tion & invest-i j
ment cost studies 255 5/04/78 Notes Simmons to Darnett Stagg Studies Attorney-client, i
a'rogress Peports Work product 256 5/08/78 Letter Hun s icke r (D&D) to Status of Stagg Work product; non-l Stagg Studies testifying expert l
257 5/08/78 Letter Hunsicket to Stagg Status of Stagg Work proditets non-
{
Studies testifying expert i
258 5/09/7P Letter Williams (HL&P) to HL&P input to Work products non-Stagg Stagg studies testi f ying expert 259 5/18/78 Pleading Dra1Laan
- 3 Gooch CSWS Hotion Work products non-Draft to Exclude testifying expert l
I
e Document Efpe of Identity of Author Basis for Claimed r4j Humber Date Document and Addre ssee Subject Privilege C2 260 5/25/78 Draft Stagg to oprea, Simmons, Preliminary Work product; non-g,.
h[
McCuistion, Williams, draft of Stagg testifying expert Thrash, Cepeland, Darnett, Systems Report
- )
Gooch, Hunsicker, Hrait-man, & Gerber 261 6/07/78 Hemorandt m Thrash to Copeland Small Systems Work Product l
Drochure t
262 6/22/78 Note List of Stagg Work prounct; non-Studies tertifying expert 263 6/28/78 le t te r Thrash to Simmons, NCRA informa-Attorney-client; Sykora, Doan & Webb tion request Work product 264 7/07/78 Memorandum Simmons to Thrash HE RA informa-Attorney-client; I
tion request Work product d
265 7/10/78 Letter McCuistion to Stagg HL6P assistance work product; non-on Stagg Study testifying expert 266 7/11/78 Herorandum Hunsicker t
- Draitman, FERC staff Attorney-client l
Copeland, S mmons, report Stagg, Thrash 267 7/18/78 Draft Stagg Stagg Report Work product; non-1 testifying expert 268 7/19/78 Hemorandum Thrash to Simmons ERCOT Report Attorney-client t
Draft i
I 269 Delete e
6
1 Document 3pe of Idontit u f Author Basis for Claimed N um be r Date Document and Addresseo Subj g Prav1lege
",,s g,
sJ C
270 7/31/78 I,e t t e r Stagg to ficCuintion Status of Work product: non-(;
Stag'j Studies tectifying expert y
271 7/31/78 Piemorandum Stagg Status of Work product non-
.Stagg Studies testifying expert 272 8/C9/78 Draft Stagg to Williams stagg peport work product; non-testifying expert 273 8/09/78 Draft Stagg to Williams Stagg Report Work product; non-testifying expert 274 Teleted 215 8/11/78 Letter Brai tman to Sirtmon s Preparation Work product; non-e f o r S F;C he a r-testifying expert R
ings e
276 Imleted 277 t1/17/78 Plc.no ra ndum Simmons to Gooch, Hun-tiecting re:
Attorney-client sicker, namnett, Thrash, CSu contro-Copeland, praitman, versy Stagg & Williams 278 3/17/78 tiote Williams to praitman Preparation for Work product; non-SEC hearings testifying expert 279 Deleted 280 Deleted 281 Draft Draitman Testimony liefore work proluct non-the PUC testifying expert b.
\\
c.
22/
Documents attached to Document 184 include:
- 1) Map dated 1/27/76
- 2) Excerpts from Public Utility Holding Co.
Act dated 1/27/76
- 3) Excerpt of Members of Firm of Isham, Lincoln s Beale
- 4) Changes frem 1936-1976 dated 1/27/76
- 3) Memorandum from Thrash to file, 1/26/76, re: FPC and Rate Regulation
- 6) Consolidated Balance Sheet from Dec. 31 of 1973 and 1974
- 7) CSW/TPC alternatives, 1/27/76 2j lj #4emorandum from Simmons to file, October 13, 1977 re C&CSW-NERC
- 2) National Electric Reliability Council Certificate of Incorporation August 21, 1974 and By-Laws Revised April 21, 1976 g e,
WORK PRODUCT PRIVILEGE - IILP OFFICERS AND EMPLOYEES g)
Document Type of Identify of Author Basis for (_
imed Number Date Document and Addressee Subject Privilege 197 4/1/77 Memorandum Meyer (IILP ) to Notes of Work product; Kayser (IILP )
meetings w/
nontestifying expert Glenn Stagg 211 6/1/77 Notes Meyer (IILP) to llLP input to Work product; Williams (IILP )
Stagg studies nontestifying expert 234 Notes Simmons (IILP )
Review of Work product; draf t Stagg nontestifying expert Study 240 12/23/77 Draft Braitman (outside Distribution Work product; letter consultant) to of Stagg nontestifying expert S imn:ons LP)
Study
.:3
)
C)
Document Type of Identify of Author Bas _s for Claimed Number Date Document and Addressee Subject
__ Privilege 243 J'20/78 Letter Braitman (outside Involvement Work product; consultant) to of SWPP &
nontes'ifying expert Simmons (IILP)
NERC in CSW-ERCOT con-troversy 258 5/9/78 Letter Williams (IILP )
IILP input Work produs to S tagg to Stagg nontestif y '.4 expert studies 260 5/25/78 Draft Stagg (outside con-Preliminary Work oroduct; sultant) to Oprea draft of nontestifying expert (IILP ), Simmons Stagg systems (IILP-tes t i f ying report expert), McCuistion (IILP), Williams (IILP ), Thrash, Copeland, Barnett, Gooch, flunsicker (attorneys for ilLP), Braitman (outside con-sultant), Gerber (testifying ex-pert)
O 03 C
C:
61 J
Document Type of Identify of Author Basis for Claimed Number Date Document and Addressee,__
Subject Privilege 265 7/10/78 Letter McCuistion (IILF)
IILP Work product; to Stagg (out-assistance nontestifying expert side consultant) on Stagg study 272 8/9/78 Draft Stagg to Williams Stagg Work product; Report nontestifying expert 273 8/9/78 Draft Stagg to Williams Stagg Work product; Heport nontestifying expert 278 8/17/78 Note Williams (IILP ) to Preparation Work product; Braitman (outside for SEC hear-nontestifying expert consultant) ings
C ry APPENDIX C h5 DOCUMENTS RE: A TESTIFYING EXPERT
[.[
J Document Type of Identify of Author Basis for Claimed Number Date Document and Addressee Subject Privilege 195 3/21/77 Memorandum Copeland (attorney Committee on Attorney-client for ilLP) to Simmons Power for the (IILP testifying Southwest expert) 198 4/15/77 Memorandum ilunsicker to Abe Braitman Work product; Copeland, Cowan, (outside con-non-testifying expert Thrash (attorneys sultant) com-for ilLP), copies ments on FPC to Simmons, Ilunsicker staff report of ERCOT-SWPP Interconnection and Reliability Evaluation 207 4/27/77 Memorandum Copeland to Thrash, "tvision of PUC Work product copy to Simmons testimony Out-line No. 4 208 4/27/77 Memorandum Copeland to Thrash Revision of Work product PUC testimony Outline No. 5 t
vi C.
C' N
G)
Document Type of Identify of Author Basis for Claimed Number Date Document and Addressee Subject Privilego 236 12/5/77 Memorandum Thrash (attorney CSW general Attorney-client for llLP) to Reese, Jordan, Oprea, Dean (all IILP) & Simmons (IILP-te s t i f y i ng expert) 238 12/13/77 Draft Stagg: copies to Stagg study Work product; Williams, Gooch, non-testifying expert Braitman, Thrash, Gerber and Simmons (testifying experts) 242 1/19/78 Draft Stagg to Oprea Draft of Work product; (IILP ), Simmons Stagg study nontestifying expert (llLP testifying expert), McCuistion (IILP ), Williams (IILP ), Thrash, Copeland, Barnett, Gooch (all attorneys for IILP), Braitman (outside consultant),
& Gerber (testify-ing expert).
243 1/20/78 Letter Braitman (out-Involvement Work product; side consultant) of SWPP &
nontestifying expert to Simmons (IILP-NERC in CSW testifying ex-
- ERCOT con-pert) troversy
Document Type of Identify of Author Basis for Claimed Number Date Document and Addressee Subject Privilege 244 1/24/78 Letter Copeland (attorney Draft of W)rk product C s.
for IlLP) to Simmons letter con-
"[
cerning NERC-
't '
TAC review
,?,j of ERCOT/
,j SWPP inter-connection 260 5/25/78 Draft Stagg (outside con-Preliminary Work product; sultant) to Oprea draft of nontestifying export (II L P ), Simmons (testi-S agg Systems fying expert),
Report McCuistion (ilLP),
Williams (IILP ) Thrash, Copeland, Barnett, Gooch, !!unsicker (attorneys for IILP),
Braitman (outside consultant) & Gerber (testifying expert) 266 7/11/78 Memorandum ilunsicker (attorney FERC staff Attorney-client for flLP) to Braitman report (outside consultant),
Copeland (attorney for ilLP) Simmons, Stagg, Thrash 268 7/19/78 Memorandum Thrash (llLP attorney)
ERCOT Re-Attorney-client Draft to Simmons (testify-port ing expert)
Document Type of Identify of Author Basis for Claimed Number Date Document and Addressee Subject Privilege 275 8/11/78 Letter Braitman (outside Preparation Work product; consultant) to for SEC hear-nontestifying expert Simmons ings O
ry C
t N
J e