ML19294A605
| ML19294A605 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 12/13/1978 |
| From: | Whittemore F HUNTON & WILLIAMS |
| To: | |
| References | |
| NUDOCS 7812280333 | |
| Download: ML19294A605 (6) | |
Text
12/13/78 MC PUELIC DOCi;.:.
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UNITED STATES OF AMERICA hge'*
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s.4 NUCLEAR REGULATORY COMMISSION l
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)l' I N Matter of LONG ISLAND LIGHTING COMPANY
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Docket No. 50-322
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(Shoreham Nuclear Power Station, )
Unit 1)
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Applicant's Answer to SC's Motion to Compel 1.
On October 30, 1978, Suffolk County (SC or County) filed its Request #2 for the Production of Documents to the Applicant (Request #2).
SC asked the Applicant to produce any and all documents, including but not limited to written correspondences [ sic],
telephone logs, office memoranda, or min-utes of meetings, reflecting any communi-cations had between the Long Island Light-ing Company and General Electric Company, or their agents, regarding General Elec-tric's so-called Reed Task Force Report.
The Applicant objected to this request because it sought trial preparation materials without making the showing re-quired by 10 CFR S 2.740(b)(2).
Applicant's Reply to SC's Request #2 for Production of Documents, dated November 17, 1978.
2.
SC filed a Motion to Compel production of the re-quested documents on November 28, 1978.
Faile arguing that the Applicant should be required to produce the requested documents, the county stated that it 7812280333
is seeking here to discover coccunications made in the regular course of business which would reveal whether, how and to what extent the Applicant considered, evaluated, and/or resolved the findings of the Reed Report as regards the technical integrity of the Shore-ham plant's operation.
It is hard to imagine that communications of this kind were speci-fically prepared in contemplation of, or as preparation for the hearings now pending.
Lest an untoward precedent be set in these proceedings that would allow Applicant to avoid production of otherwise relevant and discoverable documents simply by casting same as " trial preparation material", Appli-cant should be required to make some further showing that all these documents were in fact prepared in preparation for these hearings....
Motion to Compel at 2.
3.
The quotation in paragraph 2 above indicates that the Motion to Compel is based on two false premises:
a.
That there have been documentary communications concerning the Reed Report betwe
'" and LILCO in the regular course of business; and b.
That the Applicant inappropriately tried to shield those communications from discovery by de-claring them trial preparation materials.
Both of these premises are incorrect for the reasons discussed in paragraphs 4-5 below.
For those and the other reasons set out below, SC's Motion to Compel should be denied.
4.
Contrary to SC's first premise, a search of the GE and LILCO files revealed no documents that concerned the Reed Report and were prepared in the regular course of business.
5.
As indicated in the Applicant's November 17, 1978
. Reply, the file search identified a few documentary communi-cations between GE and LILCO concerning the Reed Report that were written to assist Applicant's counsel in the preparation of LILCO's case regarding SC contention 3a(iii).
These docu-ments, of which there are four, are part of an effort request-ed by Applicant's counsel to assist in the preparation of in-tt:rogatories, motions for summnry disposition and/or testi-man.' on the outstanding SC contentions.
This effort began shortly after the October 11, 1977 prehearing conference dur-ing which many of SC's September 16, 1977 contentions were accepted, at least for purposes of discovery.
The dates of the four documents, the earliest of which is April 12, 1978, evidence that they were part of Applicant's hearing prepara-tion effort.
Thus, contrary to SC's second premise, the Applicant quite appropriately decimred in its November 17, 1978 pleading that the documents sought in Request #2 were trial preparation materials.
6.
SC asked for "further elaboration" and "further showing" to substantiate the Applicant's claim that the re-quested documents are trial preparation materials.
Motion to Compel at 2, 4.
Such general phrases leave us uncertain as to what the County is seeking.
If it wants additional factual support for the Applicant's claim, that appears in paragraphs 4-5 above.
If SC believes that the Applicant's
. claim should have been sworn,1/ this is unnecessary because, by signing the November 17, 1978 pleading, Applicant's counsel
" subscribed.
that to the best of his knowledge, informa-tion, and belief the statements made in it are true."
10 CFR S 2.708(c).
7.
In an attempt to make the demonstration required by 10 CFR S 2.740(b)(2), SC argued that it needs access to the four trial preparation documents discussed in paragraph 5 above so that it may learn "how and to what extent the Applicant has responded to the findings of the Reed Report as regards the Shoreham design."
Motion to Compel at 3.
Contrary to SC's atsertion, it has no need for the four documents because they do not contain the kind of information that the County wants.
In large part they trace the events that led the staffs of the NRC and certain congressional committees to conclude that the Reed Report raised no safety issues not previously identified.
SC also argued, as part of its attempted 5 2.740(b)(2) showing,
-1/ The County's citation of Technograoh, Inc.
v.
Texas Instru-ments, Inc., 43 F.R.D. 416 (1967), suggests that SC believes that the Applicant's claim should have been sworn.
See Motion to Compel at 2-3.
The County's reliance on Technocraoh is im-proper because that case is distinguishable from this proceeding.
SC is correct that the Court in Technocraoh required a lawyer, who had obj ected to an interrogatory because it sought an attorney's work product, to support his claim by affidavit or testimony.
However, the County failed to recognize that the lawyer in question apparently was not counsel to either party for purposes of that litigation.
The court pointedly referred to him several times as " defendant's carent litization counsel."
43 F.R.D. at 417-418 (emphasis added), seemingly to distinguish him from counsel in that case.
Thus the lawyer in Technocraoh did,not have the opportunity to set out his claim in a plead-ing as Applicant's counsel has in this proceeding.
. that it had no other means to obtain the information in the four documents.
However, the events described in the four docu-ments are discussed in publicly available documents, some of which are cited in the County of Suffolk's Particularized Contentions at 3-6 to 3-8, 3-21 (Nov. 30, 1978).
Therefore, the County has failed to make either part of the demonstration required by 10 CFR S 2.740(b)(2).
8.
For the above reasons, SC's Motion to Compel should be denied.
Respectfully submitted, LONG ISLAND LIGHTING COMPANY F. Case Whittemore W. Taylor Reveley, III Hunton & Williams 707 East Main Street P. O. Box 1535 Richmond, Virginia 23212 DATED:
December 13, 1978
In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322 CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANT'S ANSWER TO SC'S MOTION TO COMPEL wera served on the following by first-class mail, postage prepaid, on December 13, 1978:
Elizabeth S. Bowers, Esq.
Richard K. Hoefling, Esq.
Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Jeffrey C. Cohen, Esq.
Mr. Frederick J. Shen New York State Energy Office Atomic Safety and Licensing Swan Street Building-Core 1 Board Panel Empire State Plaza U.S. Nuclear Regulatory Commission Albany, New York 12223 Washington, D.C.
20555 Howard L. Blau, Esq.
Dr. Oscar H. Paris 217 Newbridge Road Atomic Safety and Licensing Hicksville, New York 11801 Board Panel U.S. Nuclear Regulatory Commission Irving Like, Esq.
Washington, D.C.
20555 Reilly, Like & Schneider 200 West Main Street Secretary of the Commission Babylon, New York 11702 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 hb F. Case Whittemore Hunton & Williams P. O. Box 1535 Richmond, Virginia 23212 DATED:
December 13, 1978