ML19345G877

Request for Order Directing Intervenor Citizens Concerned About Nuclear Power to Deliver Tape Recording Identified in Previous Interrogatories & Subj of ASLB 810318 Order. Certificate of Svc Encl.Related Correspondence

ML19345G877
Person / Time
Site:	South Texas
Issue date:	04/09/1981
From:	Hudson T HOUSTON LIGHTING & POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8104220603
Download: ML19345G877 (5)

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UNITED STATES OF AMERICA 5 .~

' NUCLEAR REGULATORY COMMISSION \ C'. , ' ' ~[ J

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ky f IN THE MATTER OF: 5 5

HOUSTON LIGHTING & POWER 5 DOCKET NOS. 50-498 OL COMPANY, E AL . _

5 50-499 OL 5 APRIL 9, 1981 (SOUTH TEXAS PROJECT, 5 UNITS 1 & 2)

APPLICANTS' MOTION FOR SANCTIONS AGAINST CITIZENS CONCERNED ABOUT NUCLEAR POWER, INC.

FOR FAILURE TO COMPLY WITH ORDER COMPELLING DISCOVERY On March 18, 1981, the Atomic Safety and Licensing Board (ASLB) issued an order (the Order) directing Citizens Concerned About Nuclear Power, Inc. (CCANP) to answer certain interrogatories and to take certain actions with respect to a tape recording r"ANP had received from the former attorneys of Mr. Dan Swayze. Although CCANP complied with the ASLB Order insofar as the interrogatories were concerned, CCANP failed to take the required action with respect to the tape recording and also chose not to appeal this portion of the ASLB Order.* Applicants hereby move that the ASLB find Since it appealed two other orders entered at the same pO 3 pre-hearing conference, CCANP is obviously familiar g with the appeal process.

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1 CCANP in default and order that CCANP deliver the subject tape recording to Applicants' counsel within five (5) days or be dismissed from the proceeding.

The Board Order provided in relevant part that:

CCANP is further directed to review the tape recording it received from Mr. Swayze's attorneys and provide pursuant to the Protective Order the identities of the inspectors interviewed in such recording if they provided information relevant to Contentions 1 or 2 or information likely to lead to information relevant to Contentions 1 or 2.

Order at p. 3.

CCANP answered the interrogatories, but declined to review the tape recording and provide the required information.

Instead of complying with the Order, CCANP sought to avoid or further delay discovery by seeking Mr. Swayze's permission for CCANP to comply with the Order.*

CCANP raised this same objection at the pre-hearing conference and sought in excess of a week's delay to brief the alleged attorney-client privilege question (Tr. 616, 624). The ASLB denied CCANP's objection concerning the tape and CCANP's request for a briefing period when it entered the Order (Tr. 650-1). CCANP's attempted resurrection of

• See p. 5 of " Citizens Concerned About Nuclear Power, l Inc. Supplemental Answers to Applicant Interrogatories" dated March 23, 1981.

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this matter demonstrates total disregard for the very spe-cific terms of the Order. It is not at all clear that any attorney-client privilege ever existed with respect to the tape recording, but any such privilege was waived by Mr. Swayze's agreement to turn the tape over to CCANP. U.S.

v. Bump, 605 F.2d 548, 551 (10th Cir. 1979); In Re: Horowitz, 482 F.2d 72, 81 (2nd Cir.), cert. denied 414 U.S. 867 (1973);

C. McCornick, McCormick on Evidence, 593 (1972 ed). In any event, CCANP obviously has no privilege wth respect to materials it received from Mr. Swayze's attorneys and, therefore, has no basis for refusing to produce the tape.

The proper sanction for CCANP's default is delivery of the tape recording to Applicants or expulsion from the proceeding. Since CCANP has refused to review the entire tape and determine otherwise, it must be assumed that the tape is relevant to Contentions 1 or 2 and possibly to Mr. Swayze's credibility as a witness. CCANP has had the use of the tape and its information for many months. CCANP -

now seeks to further impede Applicants' discovery rights by interposing Mr. Swayze's permission to disclosure of the information on the tape. At this late stage in trial prepara-tion, the only effective remedy is fcr Applicants to be allowed direct access to the tape. CCANP has demonstrated l its unwillingness to conform to ASLB directives with respect l

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l to this tape rec 6rding and should be given no further oppor-tunities to thwart ASLB orders. Thus, Applicants move the ASLB to order (1) that CCANP deliver the subject tape recording to Applicants' counsel within five (5) days and (2) that failure to comply with this Order will result in dismissal from the proceeding.

Respectfully submitted,

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OF COUNSEL: Jack R. Newman /

Thomas B. Hudson, Jr.

Lowenstein, Newman, Reis & Axelrad

1025 Connecticut Avenue. N.W. Attorneys for HOUSTON LIGHTING &

Washington, D. C. 20036 POWER COMPANY, Project Manager of the South Texas Project, acting Baker & Botts herein on behalf of itself and 3000 One Shell Plaza the other Applicants, CITY OF Houston, Texas 77002 SAN ANTONIO, TEXAS, acting by and through the City Public Service Board of the City of San Antonio, and CITY OF AUSTIN, TEXAS.

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i CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been sorved on the following individuals and entities by deposit in the U.S. Mail, first class, postage prepaid on this 944 day of di , 1981.

~7~~k e T. B. Hudson, Jr. -

l Charles Bechoefer, Esquire Docketing and Service Section Chairman Office of the Secretary l

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mrs. Peggy Buchorn Dr. James C. Lamb Executive Director 313 Woodhaven Road Citizens for Equitable Utilities, Inc.

l Chapel Hill, North Carolina 27514 Route 1, Box 1684 Brazoria, Texas 77422 Ernest E. Hill Pat Coy Lawrence Livermore Laboratory Citizens Concerned About Nuclear University of California , Power P. O. Box 808, L-123 5106 Casa Oro Livermore, California 94550 San Antonio, Texas 78233 Barnard M. Bordenick, Esq. Atomic Safety and Licensing Office of the Executive Appeal Board Panel Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Brian E. Berwick Board Panel Assistant Attorney General U.S. Nuclear Regulatory for the State of Texas Commission P. O. Box 12548 Washington, D.C. 20555 Austin, Texas 78711 l Lanny Sinkin Mr. Jack Newman 2207-D Nueces Lowenstein, Newman, Reis Austin, Texas 78705

& Axelrad 1025 Connecticut Avenue, NW Washington, D.C. 20036

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