ML19269D379
| ML19269D379 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 04/30/1979 |
| From: | Blume M, Lessy R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| References | |
| NUDOCS 7906020165 | |
| Download: ML19269D379 (10) | |
Text
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.t nu d-b UllITED STATES OF AMERICA s
NUCLEAR REGULATORY COMMISSION
,A 7
9 4P BEFORE THE ATOMIC SAFETY AflD LICENSING BOARD In the Matter of 4
9 HOUST0ft LIGHTING & POWER COMPAfiY
)
NRC Docket Nos.
0-498A PUBLIC SERVICE BOARD OF SAN ANTONIO )
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPAflY (South Texas Project, Unit
)
Nos. I and 2)
)
TEXAS UTILITIES GENERATING NRC Docket Nos. 50-445A COMPANY, et al.
50-446A (Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
ANSWER OF THE NRC STAFF IN OPPOSITI0fl TO THE MOTION OF HOUSTON LIGHTING & POWER COMPANY TO C0fiPEL PRODUCTION OF PRIVILEGED DOCUttENTS The NRC Staff herein opposes in its entirety the motion of Houston Lighting & Power Company ("HL&P") to require the Staff to produce seven documents prepared by Staff counsel in anticipation of this hearing and three documents prepared by the Staff's designated experts for the use of, and at the request of Staff counsel.
Whether the standard of 10 CFR 5 2.740(b)(2) is used, which requires a showing by HL&P of (i) " substantial need" and (ii) inability without undue hardship to obtain the substantial equivalent of the materials by other means," or the like standard of Rule 26(b)3 of the Federal Rules of Civil Procedure, which requires a showing of " good cause" to obtain such materials, HL&P's motion must fail.
This is so because the motion 2259 279 7906020165
-2 and the cases cited therein overlook the fact that the Board has ordered each party to provide the following:
(1) identification of its expert witnesses; and (2) statements of the subject matter of their testimony; and (3) a summary of the expert testimony (including conclusions reached).
Moreover, the Board has encouraged depositions of experts to probe the experts' theories, underlying facts, and conclusions.
HL&P's motion was written as if the above described procedures had been denied it, and that invasion into privileged areas was thereby necessitated.
It is elecaentary that when substantially the same infomation is available by other means, violation of the work product privilege is not permitted:
Undcubtedly the single most important factor in determining whether to allow discovery of work product information is whether the information in question is otherwise available to the party seeking discovery.
This factor is deftly captured in the formula of proposed Rule 26(b)(3).
On this principle discovery of the statements of witnesses is usually denied if it is possible for the party to interview the witnesses himself or to take their depositions.
The fact that this will cause added expense for the party seeking discovery is not usually, in itself, enough to constitute necessity or justification for discovery.
The corollary is that if the witness is no longer available, so that the moving party cannot obtain his version of the facts, production of his statements will be required.
2259 280 G.A. Wright, Handbook of the Law of Federal _ Courts; s 82 p. 366, (2nd ed.,1972), Lcitations omitted].
As was noted by the Supreme Court in the leading case of Hickman v.
Taylor, 329 U.S. 495 at 507 (1947),
Here is simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or fonned by an adverse party's counsel in the course of his legal duties.
As such, it falls outside the arena of discovery and contravenes the public policy underlying the orderly presentation and defense of legal claims.
Not even the most liberal of discovery theories can justify unwarranted inquiries into all files and mental impresrions of an attorney.
Thus, with respect to the documents in Staff's Appendix C, attached as Exhibit 1 to HL&P's motion, the ready availability of other means to obtain this information precludes HL&P from making the required showings of " substantial need," inability to obtain the subs +antially equivalent information, or " good cause".
A second pervasive flaw in HL&P's motion is that many of the legal argu-ments relating to specific documents are based upon the inaccurate specu-lation as to the content of the Staff's memoranda.
For example, HL&P argues that item 6, a memorandum relating to staff factual investigations by M. Blume, Esq. is one in which the attorney "... appears simply to have been acting as a recorder of information which is unlikely to contain...
mental impressions, conclusions, opinions, or legal theories." There is no basis for HL&P's assumption, which is in fact incorrect.
In addition, in the very significant case of Alltmont v. U.S.,177 F.2d 971 (3rd.
2259 281
4
~
Cir. 1949), cert. den. 339 U.S. 967 (1950), the court concluded that the work product immunity "... applies to all statements of prospective witnesses which a party has obtained for his trial counsel's use" 177 F.2d at 976. As stated by a noted commentator:
The one area to which the work product immunity has always clearly applied was to matpial obtained by a lawyer.
Wright, supra, p. 365 Indeed, the courts many times make the opposite assumption than does Houston, i.e., that when an attorney conducts an investigation, the attorney's recordation of the (possible) witness' statements are nomally
-~
work product since the recordation may include or reveal the attorney's analysis and impressions, see, e.g., Hansen v. Gartland Steamship Co.,
34 F.R.D. 493 (N.D. Ohio, 1964).
Accordingly, the document prepared by Staff counsel concerning Staff interviews is a document which by its structure, content, organization, and analysis by counsel is clearly classified as work product.
- Again, the information obtained in that document is available to HL&P from non-privileged sources and without undue hardship to it.
The Staff has pre-viously provided to HL&P in response to HL&P's first set of interroga-tories the names of all possible witnesses with whom the Staff has had 1/
Accord, Guilford National Bank of Greensboro v. Southern Ry. Co.
(4th Cir.1962) 297 F2d 921; Hauger v. Chicago, R.I.&P.R. Co.
216 F2d 501 (7th Cir.1954; Martin C. Capital Transit Co.170 F2d 811 (D.C. Cir. 2948); Snyder v. Atchison, Topeka & Santa Fe Ry.
Co. (W.D. Mo. 1948) 11 FR Serv 33.351; Hanke v. Milwaukee Electric Ry. & Transport Co. 7 FRD 540 (ED Wis 1947); Hoffman v. Chesapeake
& Ohio Ry. Co. 7 FRD 574 (ND Ohio 1947).
2259 282 contact.
In response to HL&P's second set of interrogatories, the Staff has provided HL&P with a current list of intended Staff fact witnesses.
HL&P has had, and still has, every opportunity to obtain. the infonration it seeks by pursuing the leads previously provided it.
It thus, cannot meet its burden of demonstrating inability and undue hardship in obtain-ing such infonnation from non-privileged sources.
HL&P has also speculated incorrectly, that items 2 and 3 on Staff's privilege list (which involve the scope of expert testimony and sample questions) contMn factual infonnation upon which the Staff experts are expect.ed to rely.
These documents do not contain any such facts. flore-over a listing of those documents (" Scoping of Expert Testimony", " Sample Testimony Questions") would not lead one to believe that facts are con-tained therein.U These documents reveal counsel's mental impressions, conclusions and legal theories and, are thus privileged.
Hickman v.
Taylor, supra. ; Insurance Co. of North America v. Union Carbide Corp. 35 F.R.D. 520 at 522 (D.C. Colo. 1964).
Other Staff documents (e.g. 1,4,5) may have once emanated, in part, from factual analyses but are presented in a manner in which the facts have been analyzed, presented, or commented upon which reveal the conclusions 2]
HL&P speculates that the document identified as " sample questions" contains " responses which are expected" (HL&P flotion, p.19) and then launches into a legal argument that this document contains factual summaries upon which the expert must rely (M.) The docu-ment contains only questions for consideration by the expert, which questions clearly reveal Staff counsel's work product.
Contrary to HL&P's assertion, the Staff pennits its experts to furnish their own answers to its questions.
2259 283 and opinions of staff counsel. Again, the expert's interpretation of any such infonnation is available from him by deposition or interroga-to ry.
Under such circumstances, work product privilege should not be invaded.
See Hanson v. Gartland 34 F.R.D. 493 (D.C. Ohio, 1964); Koss_
- v. American S.S. Co., 27 F.R.D. 511 (D.C. Mich.1960); Piniero v. United States Lines Co. 21 F.R.D. 316 (D.C.N.Y. 1957).
Documents 8-10 on the Staff's privileged list are analyses prepared by the experts at Staff counsel's request.
Federal Rule 26(b)(3) on its face extends the work product privilege to consultants.
As noted in a respected treatise:
Under the new language [of Fed. Rule 26(b)(3)] how-ever, there will be no technical distinction between materials prepared by the attorney in the case and those that are prepared by a claim agent, insurer, or other agent of the party himself.
Insofar as the " work product" doctrine is concerr.1, each will be judged upon the need to protect the privacy of the mental impressions, conclusions, opinions, or legal theories, of the attorney of other representa-tives of the party.
(Moore's Federal Practice, vol. 4 p.26-416).
If HL&P desires to discover Dr. Lerner's thoughts concerning Dr. Wenders' testimony in the U.S. District Court in Dallas, it can ask Dr. Lerner that question by interrogatory or inquire into that matter at his deposi-tion.
Because HL&P can readily do that, a practice the Board has encouraged, it cannot make the showing of " substantial need" and " undue hardship" that it must otherwise make in order to obtain the document requested.
2259 284
-7 Finally, HL&P has requested that in the event the Board denies HL&P's motion to compel production of privileged documents, that the Board review in_ camera all such documents in question.
We believe the Board's denial of a similar request by the Department of Justice, which HL&P itself opposed to be controlling here.
The Board advised the parties at that time that "(W)e do not wish to take physical possession of any documents, jn camera or otherwise."
" Order Concerning Houston Lighting
& Power Company's Motion For Protective Order Regarding Department's Discovery Request," p. 3 (March 6,1979).
The Board further advised the parties that upon ruling upon such claims, jt would then decide whether an jn camera inspection is necessary (Id.).
The Staff believes that this prior ruling is dispositive as to this issue.
Conclusion Wherefore, the Staff respectfully submits that HL&P's motion should be denied in its entirety.
Respectfully submitted, O
l
..k.
Roy P Ptessy, Jr. V Counsel for NRC Staff
'f
.M4%2 Michael B. Blume Counsel for NRC Staff Dated at Bcthesda, Maryland this 30th day of April, 1979.
2259 285
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
HOUSTON LIGHTING & POWER COMPANY
)
NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD 0F SAN ANTONIO )
50-499A CITY OF AUSTIN
)
CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit Nos.
)
1 and 2)
TEXAS UTILITIES GENERATING
)
NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche FeaFSteam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF THE NRC STAFF IN OPPOSITION TO THE MOTION OF HOUSTON LIGHTING & POWER COMPANY TO COMPEL PRODUCTION OF PRIVILEGED DOCUMENTS in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 30th day of April 1979.
Marshall E. Miller, Esq., Chairman Donald A. Kaplan, Esq.
Atomic Safety and Licensing Board John D. Whitler, Esq.
Panel Ronald H. Clark, Esq.
U.S. Nuclear Regulatory Commission Judith L. Harris Washington, D.C.
20555
- P.O. Box 14141 Washington, D.C.
20044 Michael L. Glaser, Esq.
1150 Seventeenth Street, N.W.
Roff Hardy Washington, D.C.
20036 Chairman and Chief Executive Officer Sheldon J. Wolfe, Esq.
Central Power & Light Ccmpany Atomic Safe +
.id Licensing Board Corpus Christi, Texas 78403 Panel U.S. Nuclear Regulatory Commission R. L. Hancock, Director Washington, D.C.
20555
- City of Austin Electric Utility P.O. Box 1088 Atcmic Safety and Licensing Board Austin, Texas 78767 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- G. W. Oprea, Jr.
Executive Vice President Docketing and Service Section Houston Lighting & Power Company Office of the Secretary P.O. Box 1700 U.S. Nuclear Regulatory Commission Houston, Texas 77001 Washington, D.C.
20555 2259 286
. Robert E. Bathen, Esq.
Robert Lowenstein, Esq.
R. W. Beck & Associates J. A. Bouknight, Esq.
P.O. Box 6817 William J. Franklin, Esq.
Orlando, Florida 32803 Peter G. Flynn, Esq.
Lowenstein, Newman, Reis, Axelrad J. K. Spruce, General Manager
& Toll City Public Service Board 1025 Connecticut Avenue, N.W.
P.O. Box 1771 Washington, D.C.
20036 San Antonio, Texas 78203 Jerome Saltzman, Chief Robert C. McDiarmid, Esq.
Antitrust & Indemnity Grcup Robert A. Jablon, Esq.
U.S. Nuclear Regulatory Commission David A. Giacalone, Esq.
Washington, D.C.
20555
- Marc R. Poirier, Esq.
Spiegel & McDiarmid Jerry L. Harris 2tiOO Virginia Avenue, N.W.
Richard C. Balough Washington, D.C.
20037 Dan H. Davidson, City Manager City of Austin Jon C. Wood, Esq.
P.O. Box 1088 W. Roger Wilson, Esq.
Austin, Texas 78767 Matthews, Nowlin, Macfarlane
& Barrett Jay Galt, Esq.
1500 Alamo National Building Jack P. Fite, Esq.
San Antonio, Texas 78205 Looney, Nichols, Johnson & Hayes 219 Couch Drive R. Gordon Gooch, Esq.
Oklahoma City, Oklahoma 73102 John P. Mathis, Esq.
Baker & Botts M. D. Sampels, Esq.
1701 Pennsylvania Avenue, N.W.
Jos. Irion Worsham, Esq.
Washington, D.C.
20006 Spencer C. Relyea, Esq.
2500 - 2001 Bryan Tower Joseph Gallo, Esq.
Dallas, Texas 75201 Robert H. Loeffler, Esq.
Richard D. Cudahy, Esq.
florgan Hunter, Esq.
Isham, Lincoln & Beale McGinnis, Lochridge & Kilgore Suite 701 Fifth Floor, Texas State Bank 1050 17th Street, N.W.
Building Washington, D.C.
20036 900 Congress Avenue Austin, Texas 78701 J. Gregory Copeland, Esq.
Charles G. Thrash, Jr., Esq.
Joseph B. Knotts, Esq.
E. William Barnett, Esq.
Nicholas S. Reynolds, Esq.
Melbert D. Schwarz, Esq.
Debevoise & Liberman Theodore F. Weiss, Esq.
1200 Seventeenth Street, N.W.
Baker & Botts Washington, D.C.
20036 3000 One Shell Plaza Houston, Texas 77002 2259 287
~
- Douglas F. John, Esq.
James E. Monahan Akin, Gump, Hauer & Feld Executive Vice President 1333 tiew Hampshire Avenue, N.W.
and General Manager Suite 400 Brazos Electric Power Cooperative, Inc.
Washington, D.C.
20036 P.O. Box 6296 Waco, Texas 76706 Don R. Butler, Esq.
Sneed, Vine, Wilkerson, Sleman
& Perry P.O. Box 1409 Austin, Texas 78767 Kevin B. Pratt Attorney General's Office State of Texas P.O. Box 12548 Austin, Texas 78711 Frederick H. Ritts, Esq.
William H. Burchette, Esq.
Law Offices of Northcutt Ely Watergate 600 Building Washington, D.C.
20037 John W. Davidson, Esq.
Sawtelle, Goode, Davidson & Troilo 1100 San Antonio Savings Building San Antonio, Texas 78205 Richard E. Powell, Esq.
David M. Stahl, Esq.
Thomas G. Ryan, Esq.
Michael I. Miller, Esq.
Martha E. Gibbs j
/
7 Isham, Lincoln & Beale f
/, 4 f One First National Plaza -
Roy Pj: tessy, Jr @ d