ML19309E920

Response in Opposition to NRC 800404 Memorandum of Addl Authorities Re Existence of Settlement Documents Privilege. Congress Did Not Intend to Freeze Developing Law of Privilege.W/Certificate of Svc

ML19309E920
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	04/09/1980
From:	Ahearn C, Knotts J, Knotts J DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC)
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004240562
Download: ML19309E920 (8)

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,o UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

)

HOUSTON LIGHTING AND POWER CO., ) Docket No. 50-498A et al. ) 50-499A

)

(South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docket No. 50-445A COMPANY, et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

RESPONSE OF TEXAS UTILITIES GENERATING COMPANY TO THE NRC STAFF'S MEMORANDUM OF APRIL 4, 1980 On April 4, 1980, the NRC Staff 1! filed its memorandum of additional authorities concerning the existence of a

" settlement document privilege" as requested in this Appeal Board's order of March 28, 1980. Texas Utilities Generating Company ("TUGCO") now respectfully submits its response to that memorandum.

Staff's conclusion that a " settlement document privi-lege" did not exist was buttressed by citations to two cases; Oliver v. Committee For Re-Election of the President, 66 F.R.D. 553 (D.D.C. 1975), and In Re Special November 1975 l Grand Jury, 443 F.Supp. 1094 (N.D. Ill. 1977). These cases 1! We were not favored with a memorandum by the Department of Justice, and obviously cannot reply. Given the clear language of this Board's March 28, 1980 Order, we must agree with Houston Lighting & Power's " Motion To Preclude l The Department of Justice From Filing Principal Brief As l A Reply" of April 7, 1980.

8004S40 $C L

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are cited for the propositions that no privilege is afforded to settlement documents under Federal Rule of Evidence 501 (F.R.E. 501), the rule relating to privileges, and that Federal Rule of Evidence 408 (F.R.E. 408) does not prevent the revelation and discovery of settlement materials.

Neither case should be read to support these propositions.

Staff's citation of the Oliver case, supra, for the proposition that the courts recognize the distinction between the issues raised in connection with the appli-cation of F.R.E. 408 and the existence of a privilege as enunciated in F.R.E. 501 is misplaced. This case was decided on April 23, 1975, before the Federal Rules of Evidence became effective on July 1,1975 and was thus decided under the state of law predating the Federal Rules.

The fact that this case was decided without reference to the Federal Rules of Evidence was clearly pointed out L by the court in its statement that "[i]n a federal question  ;

suit, the federal court recognizes those privileges which were recognized at common law." Oliver, supra, at 556.

Lest it be supposed that F.R.E. 501 embraces only univer-sally-recognized common law privileges 2/ and that the

! On its face, F.R.E. 501 looks to the Constitution, acts I of Congress, and rules prescribed by the Supreme Court pursuant to its statutory authority in addition to the principles of the common law.

1

Oliver court addressed these same privileges, it may be noted that Congress did not intend to " freeze" the developing  !

law of privilege including those recognized in other parts of the Federal Rules themselves.

As stated recently by the Supreme Court in a discussion r

of F.R.E. 501:

Congress manifested an affirmative intention not -

to freeze the law of privilege. Its purpose rather was to ' provide the courts with the flexibility to develop rules of privilege on a case-oy-case basis,' 120 Cong. Rec. 40891 (1974) (Statement of Rep. Hungate), and to leave the door open to change. (citations omitted). Trammel v. U.S., 48 U.S.L.W. '

4201, 4203 (Feb. 27, 1980).

Given the de /elopment of the law of privilege relating to settlement matters since the decision of this case, Staff's reliance upon this case as a discussion of the current state of the law concerning the treatment to be afforded settlement documents is misplaced.

Staff's reliance upon the case of In Re Special November 1975 Grand Jury, supra, is similarly misplaced. The court did indeed conclude that F.R.E. 408 did not prevent the revelation of the settlement matters in question, but it did so because the explicit language of Federal Rule.of Evidence 1101(d)(2) preclud(es] a n y e x't e n -

sion of Rule 408 to grand jury proceedings;

. . . Id. at 1098.

It is thus clear that the court did not consider F.R.E. 408 to be at a.'l applicable to grand jury proceedings, and may never

. have focused on the question of whether F.R.E. 408 should be considered, for that purpose, one of the " rules with .

respect to privileges" which are applicable in grand jury proceedings.

The court was careful to indicate that it believed the problem against which F.R.E. 408 was designed to protect did not arise with regard to disclosure to the Grand Jury because of the secrecy of its proceedings. As stated by the court:

Insuring tight secrecy in a Grand Jury proceeding should normally be sufficient to eliminate any feeling that compromise or settlement negotiations may break down merely because the parties harbor fears that their dealings might later be detri-mentally disclosed to the Grand Jurors. Such secrecy serves a similar prophylactic function to the provision of F.R.E. 408 which precludes introduction of such negotiations at trial.

Id. at 1097. <

Since the court clearly felt that the underlying policies of F.R.E. 408 were promoted by the procedural protections of a Grand Jury proceeding and since it held that F.R.E.

408 was not applicable in Grand Jury proceedings, it is not surprising that the court did not consider whether there would be a " settlement privilege" under F.R.E. 501 which would be applicable in that case., Such analysis would have been redundant and irrelevant in the special context of that case. Thus, this case cannot be said

. to stand for the proposition that a settlement privilege does not exist in any context other than Grand Jury proceedings.2/

For the foregoing reasons, TUGCO respectfully submits that Staff's conclusion that a " settlement document privilege" does not exist is unsupported by the authorities cited by Staff.

Respectfully submitted, kI)

JQseph B. Knotts, Jr.

s/ -

C Da AL-C. Dennis Ahearn Counsel for Texas Utilities Generating Company DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9800 i April 9, 1980  ;

i t

2/ Nor is there the problem of disclosing " fall-back" positions I and the like to grand jurors as there is here where the parties seeking disclosure represent the next stage in settlement discussions involving the same issues.

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UNITED STATES OF AMERICA

- NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of: ,

HOUSTON LIGHTING AND POWER CO., ) Docket Nos. 50-498A et al. ) 50-499A

)

(South Texas Project, Units )

1 and 2) )

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A <

COMPANY, et al. ) 50-446A

)

(Comanche Peak Stemn Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Response of Texas Utilities '

Generating Company To The NRC Staff's Memorandum Of April 4, 1980" in the above captioned matters, were served upon the following persons by deposit in the United States mail, first class postage prepaid this 9th day of April 1980 and by hand-delivery to those persons indicated by an asterisk.

• Alan S. Rosenthal, Chairman Marshall E. Miller, Esq. <

Atomic Safety and Licensing Chairman Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory '

Washington, D.C. 20555 Commission Washington, D.C. 20555

• Michael C. Farrar, Esq.

Atomic Safety and Licensing Michael L. Glaser, Esq.

Appeal Board Glaser, Fletcher & Johnson U.S. Nuclear Regulatory 1150 17th Street, N.W. Ste. 1007 Commission Washington, D.C. 20036 Washington, D.C. 20555 Sheldon J. Wolfe, Esq.

• Thomas S. Moore, Esq. Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

l Chase R. Stephens Roff Hardy  ;

Docketing and Service Branch Chairman and Chief Executive

• U.S. Nuclear Regulatory Officer Commission Central Power and Light f Washington, D.C. 20555 Company I P.O. Box 2121 Mr. Jerome D. Saltzman Corpus Christi, Texas 78403 j Chief, Antitrust and Indemnity Group Mr. Perry G. Brittain l Nuclear Reactor Regulation President L U.S. Nuclear Regulatory Texas Utilities Generating  ;

Commission Company  !

Washington, D.C. 20555 2001 Bryan Tower  ;

Dallas, Texas 75201 i J. Irion Worsham, Esq.  !

Merlyn D. Sampels, Esq. R.L. Hancock, Director Spencer C. Relyea, Esq. City of Austin Electric  !

Worsham, Forsythe & Sampels Utility l 2001 Bryan Tower, Ste. 2500 .P.O. Box 1086 i Dallas, Texas 75201 Austin, Texas 78767 l Jon C. Wood, Esq. G.W. Oprea, Jr. [

W. Roger Wilson, Esq. Executive Vice President l Matthews, Nowlin, Macfarlane & Houston Lighting & Power L Barrett- Company  ;

1500 Alamo National Building P.O. Box 1700  !

San Antonio, Texas 78205 Houston, Texas 77001 l Dick Terrell Brown, Esq.

• Susan B. Cyphert, Esq.

800 Milam Buildin7 Frederick H. Parmenter, Esq.

San Antonio, Texas 78205 David A. Dopsovic, Esq. i Robert Fabrikant, Esq. ,

Charles G. Thrash, Jr., Esq. Nancy Luaue, Esq. )

E.W. Barnett, Esq. Kenneth M. Glazier, Esq.

Theodore F. Weiss, Esq. U.S. Department of Justice  !

J. Gregory Cope'.and, Esq. Antitrust Division I Baker & Botts P.O. Box 14141  !

3000 One Shell Plaza Washington, D.C. 204_4 l Houston, Texas 77002 l

, Don R. Butler, Esq. j l

Steven R. Hunsicker, Esq. 211 East Seventh Street j R.Gordon Gooch, Esq. Austin, Texas 78701 i John P. Mathis, Esq. I Baker & Botts Jerry L. Harris, Esq. l 1701 Pennsylvania Ave., N.W. Richard C. Balough, Esq.  !

Washington, D.C. 20006 City of Austin  !

P.O. Box 1088  !

!

• Michael B. Blume, Esq. Austin, Texas 78767  !

Fredric D. Chanania, Esq. I

! Ann P. Hodgdon, Esq.

i U.S. Nuclear Regulatory 1 Commission Washington, D.C. 20555 I i

l

. :7 - .

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• Robert Lowanstein, Esq. KGrorga Spiegal, Esq.

J.A. Bouknight, Jr., Esq. Robert C. McDiarmid, Esq.

William J. Franklin, Esq. Robert Jablon, Esq. >

Douglas G. Green, Esq. Marc Poirier, Esq.

Lowenstein, Newman, Reis, Spiegel & McDiarmid Axelrad & Toll 2600 Virginia Ave., N.W. Ste. 312 1025 Connecticut Ave., N.W. Washington, D.C. 20037 Washington, D.C. 20036 W.N. Woolsey, Esq.

John W. Davidson, Esq. Dyer and Redford Sawtelle, Goode, Davidson & 1030 Petroleum Tower Tioilo Corpus Christi, Texas 78747 1100 San Antonio Savings Bldg..

San Antonio, Texas 78204 Donald M. C1t Tents '

Gulf States Utilities Company Douglas F. John, Esq. Post Office Box 2951 ,

McDermott, Will and Emery Beaumont, Texas 77704 1101 Connecticut Avenue, N.W.

Suite 1201 Marc J. Wetterhahn, Esq.

Washington, D.C. 20036 Robert M. Rader, Esq.

Conner & Moore Bill D. St. Clair, Esq. 1747 Pennsylvania Ave., N.W.

Morgan Hunter, Esq. Washington,D.C. 20006 McGinnis, Lockridge &

Kilgore Mr. William C. Price Fifth Floor Texas State Bank Central Power & Light Co.

Bldg. P.O. Box 2121 900 Congress Avenue Corpus Christi, Texas 78403 Austin, Texas 78701 Mr. G. Holman King ,

• David M. Stahl, Esq. West Texas Utilities Co.

1120 Connecticut Ave., N.W. P.O. Box 841 Suite 325 Abilene, Texas 78604 Washington, D.C. 20036 Kevin B. Pratt, Esq.

Sara Welling, Esq. Attorney General's Office Michael I. Miller, Esq. State of Texas James A. Carney, Esq. P.O. Box 12548 Isham, Lincoln & Beale Austin, Texas 78711 One First National Plaza Suite 4200 Frederick H. Ritts, Esq.

Chicago, Illinois 60603 William H. Burchette, Esq.

Northcutt Ely i Don H. Davidson

• Watergate 600 Building City Manager Washington, D.C. 20037 City of Austin P.O. Box 1088 Austin, Texas 78767 A L. J _ Av n.a ,

i n a n.

W.S. Robson C. Dennis Ahearn General Manager I South Texas Electric l Cooperative, Inc.

l Route 6, Building 102 Victoria Regional Airport Victoria, Texas 77901

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