ML20033D085
| ML20033D085 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/02/1981 |
| From: | Oglesby D PACIFIC GAS & ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8112070205 | |
| Download: ML20033D085 (7) | |
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"3NRC UNITED STATES OF AMERICA
'81 DEC -3 P4 :48 NUCLEAR REGULATORY COMMISSION SE BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
>)ANCH In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275
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50-323 (Diablo Canyon Nuclear Power
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Plant, Units 1 and 2)
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DOCUMENTS AND FOR EXPEDITED DECI$ ION
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n Pacific Gas and Electric Company
(" PGandE:('-Mhe\\r6by moves for an order compelling Governor Brown to produce for inspection and copying the following described documents:
All studies, reports, memoranda, replies or other documents in response to or referring or relating in any way to a memorandum dated October 6, 1981 from L. Wade Rose concerning the Diablo Canyon emergency plan requesting the memo's addressees to evaluate the TERA report on earthquake' emergency planning at Diablo Canyon.
On December 2, 1981, while inspecting documents produced by Governor Brown for inspection and copying-pursuant to PGandE's request for production dated 7.ugust 18, 1981, PGandE's attorney reviewed the above describe'd 3
October 6,-1981 Rose memorandum.
PGandE's counsel also
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noticed that-no respoases_to the action requested in.the.
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memorandum were included in the documents produced.
Upon asking where the replies were, he was told that they were not being produced because they are privileged.
This claim of privilege, utterly unexplained and unsupportable, has no factual or legal basis, and all documents responsive to the Rose memorandum or.otherwise referring or relating to it must be produced.
PGandE further requests an expedited decision on this motion by 12 noon (PST), Friday, December 4, 1981.
This ic necessary because the documents that are the subject of this motion are pertinent to depositions scheduled on Monday, December 7, 1981.
On that date, PGandE will depose witnesses sponsored by opponents who apparently will testify on public response to a disaster.
The relevance of the requested documents to these depositions is self-evident.
These can be no dispute that the requested documents are " relevant to the subject matter involved in the proceeding.
(10 C.F.R. S 2.740 (b) (1)), and are within the scope of PGandE's request for production.
The adequacy of PGandE's emergency planning and compliance with the Commission's emergency planning regulations will be litigated in the upcoming hearings scheduled for January 19, 1981.
The Rose memo specifically requests the addresses to evaluate and comment upon an emergency planning report - the report prepared by TERA entitled " Earthquake-Emergency Planning JLt Diablo Canyon."
By refusing to produce the w
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documents at issue on the basis of privilege, the Governor l
concedes as much, and he makes no pretense otherwise.
Instead, the Governor claims that the replies to the Rose memo are somehow privileged.
However, the Governor I
has waived any objection he may have to production.
A party l
served with a request for production is required to permit inspection "unless the request is objected to, in which case the reasons for objection shall be stated."
10 C.F.R.
S 2.741(d).
The Governor failed to timely object to j
production of the documents at issue.
(The oral refusal to produce on December 2, 1981 hardly qualifies as the response contemplated by S 2.741(d).)
Moreover, the Governor has i
never applied for a protective order concerning the documents at issue.
Accordingly, the Governar cannot now l
resist production of these documents on the grounds that i
they are privileged or their discovery is otherwise objectionable.
10 C.F.R. S 2.740 (f) (1).
In any event, the Governor's privilege claim is l
meritless.
The only conceivably applicable privilege is the attorney - client privilege.
Yet there'is no indication l
that Mr. Rose is an attorney or, conversely, that Mr. Rose is a client requesting legal advice from an attorney.
Moreover, even if any of the many addressees -'a fact-strongly~ evidencing an absence of confidential intent - were an attorney, a review of.the. TERA report would not t-constitute legal a6vice.
There simply is no basis for the _
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4 protection of the attorney-client privilege as to the requested documents. 1/
There is, of course, a strong public policy
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favoring a broad right of discovery.
For this reason, the burden is on the party opposing discovery to justify suppression of requested information.
Objections and claims of privilege are to be narrowly construed against thb objector.
Quite clearly, Governor Brown has failed to - and cannot - carry that burden here.
Indeed, his claim of privilege must be viewed as simply expedient, an after-the-fact subterfuge to protect from disclosure documents which, for whatever reason, the Governor would prefer not see the light of day.
His claim must be overruled and he must be directed to produce the documents responsive to the Rose memo prior to the December 7, 1981 depositions.
Finally, PGandE requests that the Governor be required to identify and list all documents which he has refused to produce for any reason.
The suppression of the responses to the Rose meino clearly place in question the completeness of the Governor's compliance with PGandE's 1/
Since-trial preparation materials are privileged,.we assume that by asserting a claim of privilege the Governorf makes no claim of the limited protection afforded.by 10 C.F.R. S 2.740 (b) (2) to such. materials.
In any event, such materials must be prodteed uponJa -
showing of good cause.
It is obvious that PGandE'is, unable to obtain this material from other sources. ayz -
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~4-production request.
PGandE can only wonder what other documents the Governor has refused to produce.
Indeed, if the Rose memo itself had not been produced (we can only assume that it was an oversight that it was), PGandE would never have discovered that the Governor's production was incomplete even to that extent.
Respectfully submitted, MALCOLM H. FURBUSH PHILIP A. CRANE, JR.
DOUGLAS A. OGLESBY F. RONALD LAUPHEIMER Pacific Gas and Electric Company P. O. Box 7442 San Francisco, California 94120 (415) 781-4211 ARTHUR C. GEHR Snell & WilmerL 3100 Valley Bank Center Phoenix, Arizona,85073 (602) 257-7211 BRUCE NORTON Norton, Burke,: Berry & French 3216 North Third Street-Suite'300 Phoenix, Arizona 85012 (602) 264-0033 Attorneys for Pacific Gas and Electric Companyf IO By DOyGLASA..OGfSBY---
Dated:
December 2, 1981-E-
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 50-275
)
50-323 (Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the " PACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FOR EXPEDITED DECISION" have been served to the following on December 2, 1981, by U. S. mail, first class, except as otherwise noted.
Judge John F. Wolf
- Mrs. Sandra A.
Silver Chairman 1760 Alisal Street Atomic Safety and Licensing Board San Luis Obispo, California 93401 U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O.
Bright San Luis Obispo, California 93401 Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission John Phillips, Esq.
Washington, D.C.
20555 Joel Reynolds, Esq.
Center for Law in the Public Interest Judge Jerry R.
Kline
- 10203 Santa Monica Drive Atomic Safety and Licensing Board Los Angeles, California 90067 U. S.
Nuclear Regulatory Commission Washington, D.C.
20555 David S. Fleischaker, Esq.
P. O. Box 1178 Mrs. Elizabeth Apfelber9 Oklahoma City, Oklahoma 73102 c/o Nancy Culver 192 Luneta Drive Arthur C. Gehr, Esq.
San Luis Obispo, California 93401 Snell & Wilmer 3100 Valley Bank Center Janice E. Kerr, Esq.
Phoenix, Arizona 85073 Public Utilities Commission of the State of California Bruce Norton, Esq.
5246 State Building Norton, Burke, Berry & French-350 McAllister Street 3216 North Third Street S n Francisco, California 94102 Suite 300 Phoenix, Arizona 85012 Mrc. Raye Fleming 1920 Mattie Road Shall Beach, California.93449 Mr. Frederick Eissler Sc:nic. Shoreline ~ Preservation Conference, Inc.
4623 More Mesa Drive
'S2nta Barbara, California 93105
ss Chairman Byron S. Georgiou, Esq.
e Atomic Safety and Licensing Legal Affairs Secretary Board Panel Governor's Office U. S. Nuclear Regulatory Commission State Capitol Washington, D.C.
20555 Sacramento, California 95814 Chairman Atomic Safety and Licensing Appeal Panel U. S, Nuclear Regulatory Commission Washington, D.C.
20555 Sacretary *
(2)
U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Aten.:
Docketing and Service Section William J. Olmstead, Esq.
Charles Barth, Esq.
Edward G.
Ketchen, Esq.
Lucinda Low Swartz, Esq.
Office of Executive Legal Director BETH 042 U. S.
Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Richard B.
Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, California 95125 Mr. Carl Neiberger Telegram Tribune P. O.
Box 112 San Luis Obispo, California 93402 Herbert H.
Brown, Esq.
Lawrence Coe Lanpher, Esq.
Christopher B.
Hanback, Esq.
Kirkpatrick, Lockhart, Hill, Christopher & Phillips 1900 M Street, N.W.
Washington, D.C.
20036 Ctt Douglas A..Ogfesby Attorney for Pacific Gas and Electri ' Company D2ted:
December 2, 1981-0 By Courier.-