ML20044D406
| ML20044D406 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 05/14/1993 |
| From: | Kohn M GEORGIA POWER CO., KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Bloch P, Carpenter J, Murphy T NRC COMMISSION (OCM) |
| References | |
| CON-#293-13970 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9305190081 | |
| Download: ML20044D406 (7) | |
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"93 IIS' l7 i='549 f
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFETY AND LICENSING BOARD,..
s Before Administrative Judges:
Peter B.
Bloch, Chair l
Dr. James H.
Carpenter Thomas D.
Murphy I
}
f In the Matter of
)
j
)
Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
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50-425-OLA-3 e
et al.,
)
)
Re: License Amendment I
(Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit I and Unit 3)
)
l
}
ASLBP No. 93-671-01-OLA-3
[
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r ALLEN MOSBAUGH'S RESPONSE TO j
THE BOARD'S APRIL 21, 1993 SCHEDULING ORDER
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AND REOUEST FOR A PROTECTIVE ORDER t
Status of the Tapes Allen Mosbaugh, through counsel, hereby responds to the j
Atomic Safety and Licensing Board ("AS"B") Memorandum and Order l
l (Ruling on Stay Request and on Scheduling), dated April 21, 1993, t
Therein, the ASLB stated that:
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Counsel for Mr. Allen Mosbaugh shall make a good faith, ernest request for the return of Mr. Mosbaugh's copies
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of the tapes he had made from the Congressional committee to which.he has given those tapes.
He shall i
report to us on his efforts and the response he has received, in a document that is received by us and the parties by May 14, 1993.
i In response to the request of the ASLB, counsel states as
[
follows:
1.
In June of 1990, Allen Mosbaugh's counsel had excerpts of certain tape recordings prepared.
These recordings constitute l
counsel's work product and are predicated on attorney-client.
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9305190081 930514 PDR ADOCK 05000424
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communications.
A total of six (6) such tape recordings were made in preparation of litigation pending before the U.S.
Department of Labor.
The recordings were also utilized by ti counsel to file a petition with the Chairman of the U.S.
Nuclear I
i i
Regulatory Commission on September 11, 1990.
2.
In September of 1990, Allen Mosbaugh turned over all i
f i
his original tape recordings to the U.S.
Nuclear Regulatory
[
Commission ("NRC") Office of Investigations ("OI)").
He did not i
maintain any copies of these original tape recordings.
The only i
original tape recordings presently in his possession are those l
i that were returned to him by the NRC (copics of which were made available to Georgia Power Company).
Mr. Mosbaugh also i
maintained possession of the six recordings identified in 3
paragraph 1.
3.
On July 28, 1992, John D.
Dingell, Chairman, subcommittee on oversight and Investigations, requested, pursuant i
to Rules X and XI of the Rules of the U.S.
House of Representatives, that Mr. Mosbaugh's counsel provide all tape
)
recordings (as well as other documentation) in his possession to-the Subcommittee.
A Copy of Chairman Dingell's letter is appended as Attachment 1.
i 4.
On July 29, 1992, after consulting NRC-OI (who indicated that the documentation could be turned over to the Subcommittee), counsel to Allen Mosbaugh provided the six (6) j tape recordings identified'in paragraph 1 to the Subcommittee.
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2 l
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5 The recordings were explicitly provided on condition f
i that they be kept confidential.
s 6.
These six (6) tape recordings include segments of some i
of the tape recordings that were previously released by NRC (and j
copied by GPC).
Moreover, these tape recordings include segments l
1 of recordings that are still in the possession of NRC.
7.
Mr. Mosbaugh presently has control over the six j
recordings identified in paragraph 1.
8.
These recordings, in there present form, constitute the work product of Mr. Mosbaugh's counsel (because their creation i
j i
d 1,
was based on attorney-client communications for use by counsel-in
-l various legal proceedings). Mr. Mosbaugh objects to the release l
I of these six (6) tape recordings.
i 9.
When GPC is entitled to the original tape recordings, i
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these recordings must be obtained from the NRC.
At the present I
i 4
1 time all of the original tape recordings are in the possession of j
t i
the NRC.
\\
Request for Protective Order GPC should not be granted access to the tape recordings i
until Mr. Mr au Ja and the NRC Staff have an opportunity to l
conduct the aepositions of the relevant GPC employees and managers.
It is well settled, as a matter of law,-that a court i
l should allow a persons deposition to go forward prior to giving i
the deponent access to his or her prior statements 3
3 i
i
l i
r The Advisory Committee Notes [to the Federal Rules of Civil Procedure) state "[i]n appropriate cases the
[
court may order a party to be deposed before his i
statement is produced," (Rule 26 committee note)...because "there is a legitimate interest in receiving a version of the party's testimony which has not been tailored to conform to an earlier statement."
[
4 Moore's Federal Practice i 26.65.
g Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1351 N.
3 (5th i
i Cir. 1985).
Accord., Smith v.
China Merchants, 59 F.R.D.
I 178, 179 (E.D. Penn. 1972).
In fact, requiring a person to be deposed prior to giving that person access to a prior statement is the " usual situation."
f i
f Nelson v.
Puerto Rico Marine Manacement, Inc., 72 F.R.D.
637, 638 i
(D. Md. 1976).
r i
In this case, requiring GPC witnesses to be deposed prior to j
releasing the tapes to GPC not only conforms to standard civil discovery practice, but also serves the interests of justice.
}
f GPC witness are likely to be more candid and forthcoming at their f
depositions if they are deposed prior to production of the tape i
recordings.
Additionally, the witnesses would be not be able to i
tailor their testimony to conform to their earlier statements or j
t-to rationalize their taped remarks.
I In order to avoid delay in these proceedings, Mr. Mosbaugh j
i would consent to deposing the witnesses who are recorded on tape as quickly as possible.
Once these depositions are completed, the NRC Staff should be compelled to provide both GPC and Mr.
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Mosbaugh copies of the tapes along with any transcripts of the l
tapes which they prepared.
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4 I
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l Conclusion l
f Six (6) tape recordings are currently in the possession of i
Mr. Mosbaugh's counsel.
This Board should not require Mr.
l I
Mosbaugh to release any of these tape recordings, as they l
t constitute the work product of Mr. Mosbaugh's counsel.
In addition, this Board should not require the release of any tape i
t recordings relevant to this case to GPC until after Mr. Mosbaugh j
has an opportunity to depose the witnesses.
J
)
Respectfullyisubmitted, f
i
/
Michael D. Kohn
/
KOHN, KOHN & COLAPINTO, P.C.
s 517 Florida Ave.,
N.W.
2 Washington, D.C.
20001 1
(202) 234-4663 l
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Dated:
May 14, 1993 054\\aslb.2 J
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July 28, 1992 i
I Mr. Michael D.
Kohn
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National Whistleblower Center
-l 517 Florida Aver.ue, H. 'J.
_j Washington, D.C.
20001
Dear Mr. Kohn:
}
r Pursuant to Rules X and XI of the Rules of the U.S.
House of i
Representatives, the Subecmmittee on oversight and Investigations l
is conducting an investigation into the circumstances surrounding a March 20, 1990 incident at the Georgia Power Vogtle Plant.
ln i
order to facilitate our inquiry, please provide copies of a.ll' tapes, transcripts, depositions, correspondence, and the like in your possession pertaining to the above incident.
i Your prompt response in this matter will be greatly j
appreciated.
i i
S Icerely, l
l P
/
/ Jchn D.
Dingell
- I Chajrnen Subcom:ni tree. on l
Oversight and Investigations cc:
The Honorable Thonas J-.
Bliley, Jr.
l Ranking Republican Member Subcommittee on Oversight and Investigations f
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..L LJ d difS NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 93 MAY 17 f40:49
)
In the Matter of
)
)
Docket Nos. 50-42440LA-3 *,. 9 '
GEORGIA POWER COMPANY
)
50-42d26thf,)!6/"'"
et al.,
)
(Vogtle Electric Generating
)
(transfer to Southern Nuclear)
)
Re: License Amendment Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 i
CERTIFICATE OF SERVICE i
I hereby certify that on May 14, 1993, a copy of the foregoing was ("*" indicates service by facsimile) served by i
first class mail upon the following:
- Hon. Peter B.
Bloch, Chair
- Hon. James H.
Carpenter
- Hon. Thomas D.
Murphy Administrative Law Judges i
Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
[
- Charles A.
Barth, Esq.
Office of General Counsel
{
U.S.
Nuclear Regulatory Commission Washington, D.C.
20555
- John Lamberski, Esq.
Troutman Sai>ders, Suite 5200 l
600 Peachtree Street, N.E.
{
f Atlanta, GA 30308-2216 f
Office of the Secretary (Original and two copies) l Attn:
Docketing and Service l
U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 l
l Office of Commission Appellate Adjudication
{
U.S.
Nuclear Regulatory Commission f
i Washington, D.C.
20555 l
l l
Stephen M. Kohn 4
054\\aslb.2
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