ML20044D406

a Mosbaugh Response to Board 930421 Scheduling Order & Request for Protective Order.* Six Tape Recordings Currently in Possession of Mosbaugh Counsel & Not Required to Release Any.W/Certificate of Svc

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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'EtWC UNITED STATES OF AMERICA "93 IIS' l7 i='549 f NUCLEAR REGULATORY COMMISSION l ATOMIC SAFETY AND LICENSING BOARD,.. s  !

Before Administrative Judges:

Peter B. Bloch, Chair  ;

Dr. James H. Carpenter l Thomas D. Murphy  !

I

} f In the Matter of ) j

) Docket Nos. 50-424-OLA-3  :

GEORGIA POWER COMPANY ) 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 [

?

r ALLEN MOSBAUGH'S RESPONSE TO j THE BOARD'S APRIL 21, 1993 SCHEDULING ORDER )

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: l l

Counsel for Mr. Allen Mosbaugh shall make a good faith,  !

ernest request for the return of Mr. Mosbaugh's copies ['

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. l l

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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 t i

counsel to file a petition with the Chairman of the U.S. Nuclear I.

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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 paragraph 1. 3

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. j l

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. I 5 The recordings were explicitly provided on condition f i

that they be kept confidential.

< 6. These six (6) tape recordings include segments of some s 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 j work product of Mr. Mosbaugh's counsel (because their creation i i

d was based on attorney-client communications for use by counsel-in -l 1,  !

various legal proceedings). Mr. Mosbaugh objects to the release l I

of these six (6) tape recordings.  !

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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 Ii 4 1 time all of the original tape recordings are in the possession of j t

i the NRC.  !

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< 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 -

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should allow a persons deposition to go forward prior to giving i

the deponent access to his or her prior statements l 3

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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

Nelson v. Puerto Rico Marine Manacement, Inc., 72 F.R.D. 637, 638 f i

(D. Md. 1976).  :

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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

Additionally, the witnesses would be not be able to i recordings.

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. l t

Mosbaugh copies of the tapes along with any transcripts of the l tapes which they prepared. ,

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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

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Respectfullyisubmitted, f i ..

/

/ '

Michael D. Kohn s

KOHN, KOHN & COLAPINTO, P.C.

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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L July 28, 1992  ;

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Mr. Michael D. Kohn }

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 i.

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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., )  ;

) Re: License Amendment '

(Vogtle Electric Generating ) (transfer to Southern Nuclear)

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. {

Atlanta, GA 30308-2216 f 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

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Stephen M. Kohn 054\aslb.2 ~!

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