ML19317E315
| ML19317E315 | |
| Person / Time | |
|---|---|
| Site: | Oconee, Mcguire, McGuire  |
| Issue date: | 01/23/1974 |
| From: | Bennett W K, Farmakides J, Tubridy J Atomic Safety and Licensing Board Panel |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 7912170541 | |
| Download: ML19317E315 (8) | |
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W ATOMIC ENERGY C010iISSICN
' 'e, ; ; y In the Matter of
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Docket Nos. 50-269Ar'
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50-270A DUKE POWER COMPANY
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50-287A (Oconee Units 1, 2, and 3; )
50-369A McGuire Units 1 and 2)
)
50-370A MEMORANDUM AND ORDER A.
Applicant's Motion for Protective Order (December 19, 1973)
This motion concerns a single document two pages in length (numbers 19137-19143) which Applicant claims was inadvertently produced during the discovery process and should have been withheld and listed as privileged under the attorney-client rule.
Two other copies of the same document were withheld, listed, and submitted to Special Master Frederick A. Ballard, who had been designated by this Board on October 25, 1973, on consent of the Parties, to review the documents for which attorney-client privilege was claimed, so that no possible prejudice might occur from the submission of the documents to the Board.
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O The copy which the Department of Justice secured was produced by Applicant's attorneys in May of 1973, according to the Department's statement, in response to a request filed some eight months before its production.
According to the affidavit of Toni K. Golden, Esq.
verified December 18, 1973, the documents produced by Applicant were reviewed by its attorneys.
There was segre2ation of documents from the files under the direction of house counsel for Applicant and both privileged and non privileged documents were forwarded to trial counsel in this proceeding for review.
There was an initial review of the files (with exceptions not here relevant) by one of three attorneys, a second review by FB. Golden, and if any attorney regarded a document as protected by the attorney client privilege, it was segregated and given to chief trial counsel George Avery for consideration.
Ms. Golden states that she did not knowingly disclose the dccument in question, and that she could not ascertain how ic was possible that it was produced.
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3-The Department attached a copy of document 19137-19138 to its answer to Applicant's Interrogatories and Document Production Request filed and served on each of the Board members on November 30, 1973.
It claims that it was not aware at that time that the particular document was subject to any clair of privilege (despite the fact that 2 other copies had been listed as privileged).
Some 19 days later, and on December 19, 1973, Appli-cant filea its motion after seeking unsuccessfully the agreement o f the Department to return the document and disclaim further use of it.
The motion seeks a protective order precluding turther use of the document and the return of all copies of the document circulated by the Department.
In event of opposition, the cocion asks that the matter be referred to the Special Master.
w
. On January 4, l'974 the Department of Justice opposed Applicant's motion in all respects.
After initially considering the matter, the Board determined to await the decision of the special master which might, if the privilege were held not applicable to the copies submitted to him, render a decision on this motion unnecessary.
On January 15, 1974 the special master filed his report deciding that the copies of the document were indeed subject to the actorney client privilege and that daey need not be produced.
Since, on rendering his report, the special master has cocpleted his duties, it would not be proper to refer this matter also to him without the consent of all parties and his consent to assume the additional duty.
I I.
. The Department of Justice's opposition to such refe'rence blocks such a course.
Moreover, the reason for the reference, as regards document 19137-19136, is no longer o
present because the document has already been delivered to the Board.
Thus, the question to be determined by the Board is whether or not the privilege has been lost as to the document in question.
We assu=e for the purpose of this cotion, that there had been an inadvertent disclosure of docucent 19137-19133 in May of 1973.
Some eight conths later the Departcent of Justice relied on it in its answer to interrogatories posed by Applicant, circulated the answer to the Board members, and filed the answer in the public record.
It is impossible to erase the impression created by a reading of the document or to return all the copies.
The informa-tion has already becoce public property through the filing of the answers in the public record.
Extraordinary pre-caution was taken here to prevent inadvertent disclosure,
. but nonetheless the.information was supplied to the opposite parties to this proceeding.
We recognize as did ancients, with their phrase "Even Jove nods," that a
with the greatest care some inadvertence is not only possible, but likely when the number of documents processed is as large as the number here present, (some 250,000).
Whe'ther the particular docucent will be admissible at the Evidentiary Hearing or not, the discovery cannot be reversed nor the information suppressed.
Hence, we deny the Applicant's motion on all respects.
B.
Acolicant's Three Motions Filed on January 15, 1974 The Board has before it three motions filed by Applicant en January 15, 1974 pertaining e.o inadequacies in interrogatory responses provided by the Department of Justice and the Intervenor.
Both the Department of Justice and the Intervenors have responded and both state reasons in rebuttal of Applicant's motions.
7-It. appears to the Board that there is some misandersta.iding among the parties as to certain agreements which had existed among them.
For example, the Intervenor on page 1 of their response states:
"This may have been Applicants ' under-standing of the meetings referred to, but it was not Intervenors."
Furthermore, the Department of Justice states on page 3 of their response that some of the matters raised by Applicants have been brought to the attention of the opposing counsel for the firs t time.
For example:
"'.iithout prior notice to the Japartment that it still considers our responses deficient, Applicant now moves to compel further responses to Interrogatories 1Gb(2),13 and 25e.
- Further, for the first eine, Applicant now suggests that the Department's answers to Interrogatories 20b(6),
22, 24, 27, 47, 31d, 55e, 56d, 59, 60d, t 3b, and 69a are inadequate."
Accordingly it is clear that the parties have not engaged in discussions :Icng themselves pertaining to these matters in accordance with the admonitions of the Board at the various prehearing conferences held to date, for example, as set forth in our ordar of December 7,1973.
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Therefore the Board hereby directs the parties to confer on the matters raised in the Applicant's said motions and to attempt to resolve the problem among themselves.
Such conference among the parties should be held at the earliest practical date so that the schedule will be complied with.
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It is So Ordered.
THE ATOMIC SAFETY AND
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LICENSING BOARD 5
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f,u, o, :'s f sil t ( i n WpterW.K.Bpnne,tt, Chairman
)MA Y lt s /ACy oseph F. Tubridy, Kember
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J.cnn o. carrs 2.aes, ner.cer l
F Issued at Washington, D.C.
this 23rd day of January, 1974.
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