ML20030D103
| ML20030D103 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 08/24/1981 |
| From: | Chackes K CHACKES & HOARE, JOINT INTERVENORS - CALLAWAY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20030D104 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8108310389 | |
| Download: ML20030D103 (9) | |
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In the Matter of
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Docket No. STN 50-483-OL
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(Callaway Plant, Unit 1)
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MOTION OF JOINT INTERVENORS AND KAY DREY FOR A PROTECTIVE ORDER AND TO MODIFY SUBPOENA I.
Introduction Joint Intervenors, pursuant to 10 C.F.R. 52.740(c), and at the suggestion of the Atomic Safety and Licensing Board in its Order dated August 7,1981, hereby move for a protective order that discovery of certain matters not be had by the Applicant and NRC Staff. The protective order sought would apply to all discovery in this matter, and in particular to certain interrogatories identified below, and to the deposition by 4
the NRC Staff of Kay Drey scheduled for September 10, 1981.
Kay Drey, pursuant to 10 C.F.R. SS2.720(f) and 2.740(c), moves for an order modifying the subpoena served on her on or about August 11, 1981 upon application by the NRC Staff, and for a protective order. A copy of the subject subpoena is attached hereto as Exhibit A.
This motion is made to prevent the discovery by the Applicant and Staff of the identity of persons known to Joint Intervenors and Kay Drey who have first-hand l
knowledge of the basis for intervenors' contentions and who participated in providing answers to interrogatories propounded by the Applicant and Staff. The grounds for this motion are that the identities of such persons are either totally irrelevant or minimally relevant to this proceeding; that identification of such persons will expose them to possible reprisals; that in cases where confidentiality was promised, required go3 3
disclosure would run afoul of the First Amendment to the United States Censtitution;
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and that by balancing all relevant factors, all interests would be better served by an j
order preventing disclosure.
II. Description of Persons Sought to be Protected The persons whose identitles Joint Intervenors and Kay Drey seek to protect fall into several categories.
Persons having first hand knowledge of the basis for Contention One, pertaining to the failure of the quality assurance program as evidenced by construction defects, include current employees of Applicant or its contractors at the Callaway Plant who were promised by Kay Drey and/or Joint Intervenors that their identites would not be disclosed; current employees of Applicant or its contra.: tors at the Callaway Plant who were not given such express promises; former employees of Applicant or its contracto.s 1
l at the Callaway Plant who were promised by Kay Drey and/or Joint Intervenors that i
their identities would not be disclosed; and former employees of Applicant or its contractors at the Callaway Plant who were not given such express promises.
With regard to persons having first-hand knowledge of the basis for Contention Two, environmental releases, movants are aware only of such persons with first hand j
knowledge of scientific facts obtained through research, experimentation and study.
Some of said persons were expressly promised confidentiality and others were not.
s Persons who assisted Joint Intervenors in answering interrogatories include those l
described above, plus engineers, physicians, scientists, educators, and lay people, who have been promised confidentiality by Kay Drey and/or Joint Intervenors, and such persons who have not been expressly promised confidentiality.
III. Discovery Sought to be Curtailed The specific discovery materials which Joint Intervenors object to and as to which movants seek relief are the following:
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A.
Appliennt's Interrogatories and Requests for Documentntion Production (Sch No.1) to Joint Intervenors on their Contention No.1 The following interrogatories seek the identity of each person known to Joint Intervenors to have first-hand knowledge of some or all of the allegations in Contention One:
i Re: Embedded Plates 1 A-1 1A-10(c) 1 A-6(c) 1 A-11(c) 1A-7(c) 1A-12(c) 1A-8(c) 1A-14(d) 1A-9(c) 1A-15(d)
Re: Concrete Cracks IB-1 IB-7(e)
IB-6(c)
IB-8(c)
IB-7(c)
IB-9(d)
Re: IIoneycombing IC-1 1C-8(d)
IC-6(d)
IC-9(d)
IC-7(d)
Re: Concrete Coverage 1D-1 1D-6(d) 1D-7(d)
Re: Piping IE-1 1E-12(d) 1E-6(c) 1E-13(d) 1E-7(c) 1E-14(c) 1E-8(c) 1E-15(c) 1E-9(c) 1E-16(d) 1E-10 1E-17(d) 1E-11(c)
Re: Pre-assembled Piping Formations IF-1 IF-8(d) 1F-6(c)
IF-9(d)
IF-7(c)
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In addition, General Interrogatories A, D, C and D (pp. 32-33) seek identification of each person who participated in answering interrogatories and responding to the aquest for documents.
B.
Applicant's Interrogatories and Requests for Document Production (Set No.1) to Joint Intervenors on Their Contention 2 The instructions preceding the interrogatories request that persons who i
participate in answering interrogatories be identified.
The following interrogatories seek identification of persons known to Joint Intervenors to have first-hand knowledge of some of the allegations in Contention Two:
A-1(c)
E-1(c)
B-1(c)
G-1(c)
C-1(c) 1-3(4)
D-1(c)
C.
NRC Staff Interrogatories and Request for Production of Documents to Coalition for the Environment, St. Louis Region; Missourians for Safe Energy; and Crawdad Alliance The following interrogatories seek identification of persons upon whom Joint Intervenors rely to substantiate their views:
Q-1(h) a and b Q-7(f)
Q-2(e)
Q-8(e)
Q-3(f)
Q-9(e)
Q-4(f)
Q-10(f)
Q-5(e)
Q-11(d)
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Q-6(d)
Q-12(c)
In addition, Interrogatory Q-13 socks identification of all individuals who participated in answering the interrogatories.
D.
Subpoena to Mrs. Leo A. (Kay) Drey The subpoena served on Kay Drey (attached hereto as Exhibit A) requires her to attend a deposition and to bring with her "[ajll documents (including memoranda, notes, letters) which relate to or describe in any way the documents listed or referred to in Joint Intervenors'" answers to interrogatories. Full compliance with the subpoena would result in disclosure of the identities of some of the persons described above, including persons whose identities are unknown to Joint Intervenors.
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IV. Argument The Board has broad discretionary authority to control discovery. It may issue i
a protective order limiting discovery "for good cause shown."
10 C.F.R. S2.740(c).
The Board may modify a subpoena if the subpoena is " unreasonable." 10 C.F.R. 52.720(f).
As noted in the Board's Memorandum and Order (On motions to compel answers to interrogatories) dated August 7,1981, while the discovery rules seem to give the Applicant and Staff an entitlement to identification of the persons here at issue, the Board must engage in a balancing process, weighing that " entitlement" against the need for protection asserted by movants (p. 3).
Movants contend, however, that it is not the bare " entitlement" which must be weighed against movant's asserted need for protection, but instead the Applicant's and Staff's actual need for the particular j
information sought.
For the!r argument that discovery should be denied because of the possibility of reprisals movants respectfully refer the Board to and incorporate herein Joint Intervenors' Memorandum in Opposition to Motions to Compel, served July 16, 1981, and all attachments thereto.
An additional ground for the relief sought herein is that many persons provided information to or otherwise assisted Kay Drey and/or Joint Intervenors only upon being promised that their identities wouuld not be disclosed. This situation is analogous to I
the newspaper reporter and confidential source, and similar First Amendment considerations apply. The " reporter's privilege" also applies to non-reporters. In such cases courts have held that various competing factors must be weighed in deciding whether disclosure must be required.
In Silkwood v. Kerr-McGee Corp., 563 F.2d 443 (l'Oth Cir.1977), the defendant sought production of all documents and writings obtained in connection with the investigation by a film-maker into the life and death of Karen Silkwood. The non-
. party film-maker resisted disclosure of the identity of persons whose confidentality he I
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had promised. Reversing the trial court's orders denying protection to the film-maker, the Tenth Circuit held that a qualified privilege under the First Amendment applies not just to newmen but to anyone engaged in communicating information and opinions to the public, and that any infringement of the First Amendment must be held to a minimum. The court of appeals remanded the matter to the trial court to determine several factors, including whether the party seeking the information has attempted to obtain it elsewhere, whether the information sought goes to the heart of the litigation, and whether the information is of certain relevance. The court indicated that where relevance is questionable, that weighs in favor of prt tection. Cf. International Union
- v. National Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d 1139, 1152-53 (D.C. Cir.1978).
In Richards of Rockford, Inc. v. Pacific Gas and Electric Co., 71 F.R.D. 388 (N.D. Cal.1976) the court granted protection to a non-party university professor who sought to protect confidential sources and information he had obtained in an academic research project. The confidential sources were employees of defendant Pacific Gas and Electric. The issue as framed by the court was whether the discovering party's interest in satisfying its discovery request outweighs the public interest in maintaining confidential relations between academic researchers and their sources. The court based its ruling denying discovery upon its general supervisory powers ov(r discovery, without deciding whether a privilege existed.
As indicated in the affidavits of Kay Drey and Kenneth M. Chackes (attached hereto as Exhibits B and C, respectively) many of the perscns whose identities are sought by the Applicant and Staff have communicated their knowledge and/or otherwise assisted Kay Drey and Joint Intervenors only after being assured that their identities would not be disclosed. It should be self evident that if the identities of those persons are required to be disclosed, there will be a devastatingly chilling effect on the t
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1 willingness of those persons Arid others with potentially important knowledge to i
communicate their information to at '.
'i; Important First Amendurnt s c.'derations are applicable here.
The First Amendment provides in relevant part, Congress shall make no law... abridging the freedom of speech... or the right of the people... to petition the Government for a redress of grievances.
The efforts of Kay Drey and Joint Intervenors,in obtaining information from construction workers and others, initially by Kay Drey for the purpose of communicating that information to the NRC, to other appropriate public agencies and officials, and to the media, and now for use in connection with this proceeding, are a classie exercise of rights guarantced by the First Amendment - of free speech and to petition the t
government. The public interest in preserving that flow of information is strong. Those construction workers who communicated to Kay Drey their concerns regarding plant construction could have chosen to communicate to the NRC, but they did not want even the NRC to know who they were. If the NRC truly believes that construction workers are a valuable source of information, all lines of communication, including through citizen intermediaries such as Kay Drey, must be kept open. The same is true for others, not involved in plant construction, who are willing to provide information about nuclear power plants only through citizens and citizen groups such as Joint Intervenors, without identifying themselves publicly.
The NRC needs to hear from these people and the public has a right to hear from them. Preserving their anonymity is essential.
In this case those First Amendment and public interest considerations, together with t! c possibility of reprisals, weigh heavily against requiring disclosure. The Board i
must balance those factors agcinst the Applicant's and Staff's real need for discovery, applying the critala in Silkwood v. Kerr-McGee Corp., supra, and International Union
- v. National Right to Work, etc., supra, whether the Applicant and Staff have exhausted i
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other sources for the information, whether the information sought goes to the heart of the matter, and whether it is of certain relevance.
The Applicant and Staff have totally failed to demonstrate that the information they hope to obtain from the persons they want identified is otherwise unavailable to them or that they have nttempted to obtain such information elsewhere. With regard to construction defects, Contention One, the Applicant and Staff have far greater access than movants to persons with first-hand knowledge of plant construction. And with regard to environmental releases, Contention Two, those parties have their own experts with first-hand knowledge of the relevant scientific facts.
Joint Intervenors contend that the identities sought are of minimal or no relevance. This information certainly does not go to the heart of the matter.
Perhaps more importantly, Joint Intervenors do not plan to call any of those persons as witnesses, but instead plan to rely exclusively on existing documents and cross examination to prove their contentions.
Finally, nearly all of the information Kay Drey and Joint Intervenors obtained from workers at the plant has been conveyed to the NRC and to the Applicant.
With regard to persons who assisted Joint Intervenors in answering interrogatories, the Applicant and Staff have no need for their identities as Joint Intervenors do not plan to call any of those people as witnesses.
The Board should closely examine the reasons asserted by Applicant and Staff in support of their discovery requests and place a heavy burden on those parties to show the relevance of the information sought and why they can obtain it only from Kay Drey and Joint Intervenors.
V.
Extent of Protection Required Only an order that discovery into the disputcd areas not be had will provide sufficient relief.
It should be remembered that those construction workers who communicated their concerns to Kay Drey, could have gone to the NRC, but they were unwilling to do so. Apparently the NRC did not enjoy the trust of
,se workers and
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others who communicated to and assist..d Kay Drey and Joint Intervenors. The possibility of reprisals, and more importantly, the chilling effect on the flow of information, will obtain even if disclosure is limited to the attorneys for the Applicant and Staff. As a case in point, an attorney for the NRC divulged the name of a person who had been promised confidentiality by the NRC to counsel for Joint Intervenors without knowing whether counsel was or was not aware of that person's identity (See Affidavit of Kenneth M. Chackes, para. 5).
VI.
Conclusion For all of the reasons stated above movants seek a protective order and an order modifying the subpoena to Kay Drey which will prevent discovery by the Applicant and Staff of the identities of persons known to movants having first-hand knowledge of the basis for Joint Intervenors' contentions and persons who participated with Joint Intervenors in answering interrogatories.
The order should apply to all present and future discovery efforts in this proceeding unless modified upon the motion of a party.
Respectfully submitted, CHACKES AND HOARE
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Kenneth M. Chacles Attorneys for Joint Intervenors and Kay Drey 314 North Broadway St. Louis, MO 63102 l
314/241-7961
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