ML20045D231
| ML20045D231 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 06/10/1993 |
| From: | Colapinto D AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20045D232 | List: |
| References | |
| CON-#293-14034 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9306280114 | |
| Download: ML20045D231 (10) | |
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UNITED STATES OF AMERICA g 3 g g g p 3 :3]
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
J ' '
Peter B.
Bloch, Chair Dr. James H.
Carpenter Thomas D. Murphy
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In the Matter of
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Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY
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50-425-OLA-3 et al.,
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Re: License Amendment (Vogtle Electric Generating
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(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
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ASLBP No. 93-671-01-OLA-3 INTERVENOR'S INFORMATION AND BRIEF CONCERNING MOTION FOR PROTECTIVE ORDER Introduction On June 1, 1993 the Licensing Board issued a Memorandum and Order in this proceeding which requested Mr. Allen L. Mosbaugh, intervenor herein, to file with the Board information and a legal brief in support of his May 14, 1993 motion for protective order.
Pursuant to the Board's request, Mr. Mosbaugh hereby submits the affidavit of Michael D.
Kohn, attached hereto as Exhibit 1; the affidavit of Allen L. Mosbaugh, attached hereto as Exhibit 2; and legal argument in support of Mr. Mosbaugh's request for protective order.
The six tape recordings (hereinafter "Six Tapes") that Georgia Power Company' seeks hre protec,ted by the work product doctrine.
Mr. Allen L.
Mosbaugh, as an agent of counsel, created the Six Tapes per counsel's instructions and guidance.
In 9306280114 930610 PDR ADOCK 05000424
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addition, the information sought is available in original form from the Nuclear Regulatory Commission "NRC", without waiving or violating counsel's work product.
Moreover, production of the Six Tapes would compromise the integrity of NRC law enforcement investigations because the Six Tapes include recordings that are excerpted from seventy-six (76) original recordings which are currently being withheld from Georgia Power by the NRC pursuant to an ongoing law enforcement proceeding.
Finally, Mr. Mosbaugh has not waived the work product privilege.
I.
THE SIX TAPES CONSTITUTE WORK PRODUCT BECAUSE THEY CATEGORIZE INFORMATION COUNSEL DEEMED RELEVANT AND CRITICAL FOR LITIGATION.
Work product enjoys near absolute immunity and can be discovered only in rare and extraordinary circumstances. In re Murphy, 560 F.2d 326, 336 (8th Cir. 1977).
The creation of the Six Tapes constitute counsel's work product.
They contain integrated information in an organized sequence that counsel identified for duplication through the process discussed in intervenor's counsel's affidavit.
See, Exhibit 1, Affidavit of Michael D. Kohn (hereinafter "Kohn Aff.") at $$ 2-5.
The Six Tapes were produced by Mr. Mosbaugh at the instruction of his counsel after Mr. Mosbaugh engaged in attorney-client privileged communications.
Kohn Aff, at 5 2.
Release of the information organized on the Six Tapes would expose counsel's legal strategy and trial preparation to an adversary.
Kohn Aff. at 55 2-5.
The Six Tapes include excerpted recordings made from 76 original tape recordings which are i
currently in the possession of the NRC.
Kohn Aff. at 11 6-9.
Notably, the Six Tapes contain excerpted segments of recordings which Mr. Mosbaugh's legal counsel determined might be of legal significance or import.
Kohn Aff, at 1 3.
The work product privilege protects tapes that are
" compendium or relevant evidence prepared by an attorney."
In re Chrysler Motors, 860 F.2d 844, 846 (8th Cir. 1988).
As in In re Chrysler Motors, a case involving computer tapes compiled by counsel in preparation for trial,1/ the Six Tapes in question here constitute work product because they were made in anticipation of litigation and reflect categories of information that counsel believed were relevant and critical to Mr.
Mosbaugh's representation.
The Six Tapes include portions of some of the many conversations Mr. Mosbaugh recorded that Mr.
Mosbaugh's counsel determined might be legally significant.
Kohn Aff. at 1 3.
As such, the recordings are a " compendium of relevant evidence" prepared by counsel.
Here, following privileged discussions with Mr. Mosbaugh regarding the contents of the tapes, counsel directed Mr.
Mosbaugh to create only copies of the particular excerpts that
. counsel deemed most relevant and critical to the anticipated litigation.
Kohn Aff, at 11 2-3.
Accordingly, Mr. Mosbaugh 1/
Unlike the circumstances in In re Chrysler Motors, Georgia Power is unable to meet the burden of demonstrating
" substantial need" and is able to secure the " substantial equivalent" of the in' formation sought.to be protected.
- See,Section II, infra. l
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acted as agent of counsel in preparing the excerpts for his counsel's review and the tapes themselves constitute work product protected from discovery by Georgia Power.
II.
THE INFORMATION IS ACCESSIBLE TO GEORGIA POWER FROM THE NRC.
The work product privilege should be suspended "only when it denies access to the only available source of relevant evidence."
United States v.
Miracle Recreation, 9 Fed.R. Serv.3d 1191 (S.D.I.A. 1987).
Georgia Power has failed to meet the substantial burden of demonstrating that they are unable to obtain the documents without infringing upon the work product privilege.
Notably, Mr. Mosbaugh is not the "only available source" of the information contained on the Six Tapes.
In September 1990 Mr. Mosbaugh turned over to the NRC OI all of his original tape recordings,l/ and the NRC is still in possession and control of I'
In its May 27, 1993 response, Georgia Power grossly mischaracterized Mr. Mosbaugh's delivery of the original tapes to NRC investigators as " avoiding compliance with a DOL order to disclose such tapes to GPC."
See, GPC Response at pp.
7-8.
Moreover, Georgia Power's continued reliance on any orders entered by the Administrative Law Judge, or any proceedings that occurred in DOL Case No. 90-ERA-58, which was voluntarily dismissed, is improper, misplaced and contrary to the Final Decision and Order of the Secretary of labor in that case which held:
The effect of complainant's notice of voluntary dismissal without prejudice was to render the proceedings a nullity and leave the parties as if the action had never been brouaht.
"It carries down with it previous proceedinas and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect to plaintiff's claim."
(continued...)
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76 of the original recordings delivered by Mr. Mosbaugh to the NRC.
Kohn Aff. at $$ 7-9.
Neither Mr. Mosbaugh nor his counsel have access to the original tape recordings from which some of the Six Tapes were excerpted because they are currently in the hands of NRC OI.
Id.
Indeed, the NRC has custody of seventy-six (76) original tape recordings, not just the excerpts contained on the Six Tapes.
Georgia Power can secure copies of the remaining 76 original recordings which they have not already duplicated once the NRC and/or the U.S.
Department of Justice completes its ongoing law enforcement proceedings.F The tape recordings currently being withheld by the NRC are more than the
" substantial equivalent" of the Six Tapes -- they are the original recordings from which the Six Tapes were excerpted.
Because Georgia Power can and will eventually obtain copies of the original version of all of the recordings upon completion of the NRC's law enforcement proceedings it is not entitled to the excerpted segments of tapes selected by Mr. Mosbaugh's counsel.
Since access to the Six Tapes, in their original form, is F(... continued)
See, Mosbauch v. Georaia Power Co.,
DOL Case No. 90-ERA-58, Final Decision and Order of SOL at p.
6 n. 4 (Sept. 23, 1992), auctina Piper Aircraft Distribution System Antitrust Litication v.
Piper-Aircraft Coro., 551 F.2d 213, 219 (8th Cir. 1977)-(emphasis
-added).
A copy of the Secretary of Labor's decision-is attached hereto as Exhibit 3.
F It should be noted that Georgia Power already is in possession of copies of the original 201 recordings which were returned by the NRC.
As such, Georgia' Power already possesses some of the information that is contained in the Six Tapes. Kohn Aff. at 1 9. '
available to Georgia Power from the NRC, production of the Six Tapes from Mr. Mosbaugh is unnecessary and would cause an undue hardship because it would disclose to Georgia Power work product of Mr. Mosbaugh's counsel.
III. RELEASE PRIOR TO NRC DEPOSITIONS WOULD COMPROMISE THE INTEGRITY OF THE NRC CRIMINAL INVESTIGATION.
The NRC Office of Investigations has made it abundantly clear to counsel for Mr. Mosbaugh that information contained in the Six Tapes, if released to Georgia Power, would compromise the integrity of the criminal investigations Mr. Mosbaugh initiated with NRC's Office of Investigations in June of 1990.
NRC OI has previously requested Mr. Mosbaugh to keep all information related to its investigation in strict confidence.
Because the Six Tapes include excerpts from 76 tape recordings currently being withheld by the NRC, then release of the Six Tapes would result in information related to an ongoing law enforcement investigation being released to Georgia Power.
If Georgia Power requested access to the same information contained on the Six Tapes from the NRC the answer would be no.
According to 10 C.F.R. 2.790 (a) (7), NRC records and documents compiled for law enforcement purposes are exempt from disclosure to the extent that such production could reasonably be expected to interfere with enforcement proceedings.
Georgia Power should not be permitted to short cut its access to sensitive informati'on relate $ to an ongoing law enforcement proceeding simply because Mr. Mosbaugh -- the source _ _
o.
who provided the exempt information to the NRC -- and his counsel made selected copies of the information to assist Mr. Mosbaugh in his participation in the NRC's proceedings.
Common sense dictates that if the NRC cannot provide Georgia Power with the information on the Six Tapes out of concern that it might i
jeopardize an ongoing law enforcement investigation, then Georgia Pouer should not be provided that same information directly from the NRC's primary informant --
i.e.,
Mr. Mosbaugh.
Georgia Power should not be granted access to the tape recordings until the NRC has concluded its law enforcement proceedings related to information contained on the Six Tapes.
This 6 card should grant a protectivo order to protect the NRC's law enforcement investigatory process as well as the work product of Mr. Mosbaugh's counsel.
IV.
MR. MOSBAUGH AND HIS COUNSEL DID NOT WAIVE THE WORK PRODUCT PRIVILEGE.
Mr. Mosbaugh and his attorneys did not provide the Six Tapes or any portion thereof to the news media.
Kohn Aff. at 11 13-14; Mosbaugh Aff. at 15 2-3.
Therefore, any claim by Georgia Power that either Mr. Mosbaugh or his counsel waived the work product privilege by providing tapes to the news media is without merit.
Moreover, as is delineated in Mr. Kohn's affidavit, counsel was asked and agreed to provide the Six Tapes to Congress with the express understanding that Mr. Mosbaugh's counsel was cooperating with the Congress on a confidential and privileged basis.
Kohn Aff, at 1 11..
.a e.
The work Product privilege.is not automatically waived when confidential information is disclosed.
Republic of the Philippines v. Westinchouse Electric Company, 132 F.R.D.
384, 389 (D.N.J. 1990).
Rather, waiver occurs only if such disclosure runs counter to principles of the adversary system.
Id.
In Republic of the Philionines, the plaintiff entered into an agreement with the U.S.
Department of Justice to share information concerning investigations of Westinghouse.
Idx, 132 F.R.D.
at 386.
This agreement constituted a cooperative relationship between an entity and a government agency acting in common interest and found that the release of the information to a government agency did not waive the work producc privilege.
Id.
Moreover, a party's disclosure of confidential information to an ally or cooperating entity does not constitute a waiver of the'wcrk product privilege.
The privilege protects.information not all others outside a confidential against opposing par-
=
relationship.
In re Crutv Eddie Securities Litication, 131 F.R.D.
374, 378 (E.D.N.Y. 1990).
Thus, work product may be freely shared with those with similar interest in preparing l
l litigation against a common adversary.
14 Disclosing information to an ally strengthens the adversarial process. Id. at 390, citing Shulton Inc. v. Optel Corp., No. 85-2925, 1987 W.L. 19491 (Nov.
4, 1987).
When allies fortify their cases against their mutu'al adversary they stand a greater chance of defeating that adverna Id.
Plaintiffs do
_.m n.
not waive the work product privilege by disclosing information to the government to secure an indictment of a mutual adversary.
Id.
Here, neither the NRC nor Congress are Mr. Mosbaugh's adversaries or even potential adversaries.
Rather, under the law, they are properly considered Mr. Mosbaugh's allies in the investigation of wrongdoing by GPC.
It is a cooperative relationship in opposition to a mutual adversary.
As already noted, the tapes were provided to the Congress expressly and specifically on the condition that confidentiality would be maintained.
Accordingly, Mr. Mosbaugh has not waived the work product privilege by providing the Six Tapes to government or congressional investigators with law enforcement and/or investigatory powers.
Conclusion i
For the foregoing reasons, Mr. Mosbaugh's request for protective order should be granted.
Respectfully submitted,
+
fiichaeli D'. Koh V Stephen M.
Kohn David K.
Colapinto KOHN, KOHN & COLAPINTO, P.C.
.i 517 Florida Ave.,
N.W.
Washington, D.C.
20001-1850 (202) 234-4663 I
Att'orneys for Mr. Mosbaugh on brief:
Michael Lopez 1 1<
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