ML20045D240
| ML20045D240 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 06/17/1993 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20045D224 | List: |
| References | |
| 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9306280121 | |
| Download: ML20045D240 (34) | |
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USNRC UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION '93 _ JUN 18 Nl 32.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ;
,1[j p i ivil W';..
In the Matter of
- i GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 l e_t; al. ~* 50-425-OLA-3 l
- j (Vogtle Electric
- Re: License Amendment d Generating Plant, *
(Transfer to Southern Units 1 and 2)
- Nuclear) j
- ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION TO COMPEL INTERVENOR'S PRODUCTION OF DOCUMENTS AND RESPONSES TO CERTAIN INTERROGATORIES i
i I. INTRODUCTION.
Pursuant to 10 C.F.R. S 2.740(f), Georgia Power Company i
("GPC") hereby moves to compel Intervenor Allen L. Mosbaugh to '
produce certain documents and information requested in GPC's First Request for Production of Documents by Allen L. Mosbaugh l and GPC's First Set of Interrogatories to Allen L. Mosbaugh, both dated April 30, 1993. Intervenor's responses are incomplete and ;
evasive, and the vague and unsubstantiated general objections asserted by Intervenor do not excuse this non-responsiveness. l GPC's discovery requests were reasonably calculated to identify the factual bases for and evidence relating to- l Intervenor's allegations and to obtain such relevant-9306280121 930617 PDR ADOCK 05000424 o PDR }/$O3' l
documentation pertaining to these allegations as Intervenor might have in his possession, custody or control. In response to GPC's document requests asking for tapes and documents relating to Intervenor's allegations, including documents that Intervenor may use in this proceeding, Intervenor has declined to produce even a single document. Similarly, in response to_GPC's interrogatories, Intervenor has refused to identify responsive communications and documents relating to his allegations.
In modern administrative and legal practice, pretrial :
discovery is liberally granted to enable the parties to ascertain the facts in complex litigation, refina the issues, and prepare adequately for a more expeditious hearing or trial. Pennsylvania t
Power & Licht Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-613, 12 NRC 317, 322 (1980), aucting Pacific Gas &
Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-78-20, 7 NRC 1038, 1040 (1978). It is available to assist a party not only to obtain adequate factual data in support of its claims or defenses, but also to learn the substantial bases of the positions asserted by its adversaries. Illinois Power Co.
(Clinton Power Station, Units Nos. 1 & 2), ALAB-340, 4 NRC 27, 33 (1976). An important reason for discovery is to eliminate the element of surprise in modern litigation. The process shortens the actual hearing, with its attendant expense and inconvenience, and increases the ability of the parties to develop a complete ,
record. Susauehanna, supra, 12 NRC at 322. Consequently, l subject to recognized privileges, discovery is available for the parties to obtain the fullest possible knowledge of the issues and facts within the-scope of the proceeding before trial. South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit No. 1), ALAB-642, 13 NRC 881,-882-(1981), citing Hickman v.
Taylor, 329 U.S. 495, 501 (1946).
Intervenor's incomplete and evasive responses are
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inconsistent with these principles. In essence, having made serious allegations, Intervenor now seeks to conceal the '
documents and evidence he might possess relating to those allegations. This places GPC at a serious disadvantage and prevents GPC from preparing its case. Such gamesmanship by Intervenor should not be tolerated. A litigant may not make serious allegations against another party and then refuse to reveal whether those allegations have any basis. Susauehanna, i supra, 12 NRC at 339.
II. GPC's First Recuest for Production of Documents and
- Intervenor's Response.
1 GPC requests the Licensing Board to compel Intervenor to produce all documents in his possession or control (including in the possession of his counsel) which are responsive to each of the 12 document requests listed in GPC's First Request for Production of Documents, dated April 30, 1993. As noted above, '
Intervenor has failed to produce a single document.
Intervenor attempts to avoid producing any documents by two means. First, in the responses to each specific request,
6 Intervenor asserts that' documents "may be obtained" from the records of numerous proceedings, some of which are not public and some of which are not precisely identified. Intervenor's Response to the First Request for Documents by Georgia' Power !
Company at 3. While it might be adequate to refer to a specific public compilation of documents if sufficient information were provided to allow the documents to be precisely identified and '!
located,1 Intervenor's vague reference to the record of numerous proceedings, such as "the NRC's records of all investigations concerning Allen Mosbaugh's safety concerns" and "the Seccion 210 -
proceeding record related to all persons who have filed a section 210 case against GPC" (see id.), does not meaningfully allow GPC to identify and obtain documents that are responsive to its requests and in Intervenor's possession, custody and control.
Further, Intervenor's reference to "the NRC OI investigation records related to allegations filed by Allen Mosbaugh" is 1 I See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), CLI-79-8, 10 NRC 141, 147-48 (1979). .
See also 10 C.F.R. S 2.740 (b) (1) , stating that (w]here any book, !
document or other tangible thing sought is reasonably available from another source, such as from the Commission's Public ,
Document Room or local Public Document Room, a sufficient response to an interrogatory involving such materials would be the location, the title and a page reference to the relevant book, document or tangible thing.
- Note that it is unclear whether the TMI case represents a general statement of NRC practice or procedure unique to the TMI restart proceeding. As a general proposition in Federal civil practice, a recipient of a document request is not' relieved of the obligation of producing requested documents simply because i the document it possesses may already be in the public record.
Similarly, the provision in 10 C.F.R. S 2.740(b) (1) allowing reference to publicly available documents only relates to l responses to interrogatories. l i
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completely nonresponsive, because those records are not currently available to GPC.
Intervenor's second means of avoiding the production of even a single document is by asserting five blanket, general objections, which Intervenor states apply to each of GPC's 1
requests. In short, Intervenor (1) objects to producing i
documents protected by " privilege," including (but perhaps not limited to) the work product, informant's and attorney-client l privileges; (2) objects to producing documents in the possession 1
of the NRC; (3) objects to all the requests as overly broad and' unnecessarily burdensome; (4) objects to producing tape recordings in the possession of Intervenor's counsel; and (5) objects to producing documents prepared by Allen Mosbaugh under grant of confidentiality by NRC. See id, at 1-3. Intervenor makes no attempt to relate any of these objections to a specific request or to specific documents, making it impossible to assess the extent of the documents that are being concealed as a result.
Intervenor does not object to, but simply ignores, the instructions in GPC's First Request for Production of Documents.
In the event that Intervenor wishes to assert privileges, he. ,
should identify the documents with sufficient specificity to permit the Licensing Board to read a determination concerning the I
claimed privilege.
None of Intervenor's objections is sufficient to justify Intervenor's failure to produce. Objections must be specific enough so that the presiding officer (and the parties) can f r
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understand why the discovery request is objectionable. The ,
burden of persuasion rests on the objecting party to demonstrate that a discovery request should not be answered, and general objections are insufficient. Susauehanna, supra, at 323; Boston Edison Company (Filgrim Nuclear Generating Station, Unit 2) LSP-75-30, 1 NRC 579, 583 (1975).
A. Attorney-client and work product privileges.
Intervenor has failed to even identify which document ;
I requests, not to mention which documents, Intervenor claims are j i
subject to these privileges and therefore exempt from disclosure.
"The claimant of a privilege must bear the burden of proving that j
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it is entitled to such protection, ... including pleading it adequately in its response." Lona Island Lichtina Co. (Shoreham j Nuclear Power Station, Unit 1), LBP-82-82, 16 NRC 1144, 1153 (1982) citing In re Fischel, 557 F.2d 209 (9th Cir. 1977).
Intervenor's mere assertion that the material he is withholding constitutes attorney work product is insufficient to meet that burden. E_ublic Service Co. of New Hamoshire (Seabrook Station, Units 1 & 2), LBP-83-17, 17 NRC 490, 495 (1983). Therefore, Intervenor's assertion of the attorney-client and work product privileges are not properly stated objections.
B. Documents in the possession of the NRC.
Intervenor objects to producing documents which GPC has also requested from the NRC on grounds of undue burden and the informant's privilege. Intervenor does not explain which of GPC's document requests are objectionable on these grounds. )
b While the NRC Staff has the right to object to the production of documents that are " reasonably obtainable from another source" (10 C.F.R. S 2.744), Intervenor has no similar right. GPC is entitled to discovery from.Intervenor of documents "regarding any matter, not privileged, which is relevant to the subject matter of the proceeding." 10 C.F.R. 5 2.740; see also 10 C.F.R. S 2.741. Nor does Intervenor substantiate his claim that production of documents also sought by GPC from the Staff would cause " undue burden and hardship." Intervenor can respond to GPC's document requests by making documents available for
- inspection or copying. Thus, there is little, if any, burden imposed.
In any event, it is not clear that.there will be any-duplicative discovery. The documents which GPC has requested P
from the NRC (i.e., documents relating to the 76 tapes and statements provided by Intervenor to NRC), will be made available-to GPC only as provided under 10 C.F.R. S 2.744. See letter from Charles A. Barth, Esq. to John Lamberski, Esq., dated May 12, 1993. That regulation provides that the NRC Staff need not produce documents to GPC which are " reasonably available from another source," such as Intervenor. Accordingly, Intervenor's position would place GPC in a " Catch-22" situation, unable to receive the documents from either NRC or Intervenor.
Furthermore, that regulation authorizes the NRC Staff to withhold from disclosure those documents which are subject to 10 C.F.R. S
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2.790,2 subject to Licensing Board rulings under'10 C.F.R.
S'2.744(c) and (d).
Intervenor's assertion of the " informer's privilege" has-even less merit. First, the informer's privilege is not available to Intervenor; it is "the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with ,
enforcement of that law." Texas Utilities Generatina Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), ALAB-714, ,
17 NRC 86, 91 (1983), quoting Houston Lichtina and Power Co.
(South Texas Project, Units 1 & 2), ALAB-639, 13 NRC 469, 473 (1981) and Roviaro v. United States, 353 U.S. 53, 59 (1957)
(emphasis added). Second, the informer's privilege is available to protect the identity of individuals who provide information to the NRC. Id. In the context of a licensing proceeding, it cannot be used, even by the NRC Staff, to withhold the information which the informer provided to the NRC where such information relates directly to the substantive allegations at issue in the proceeding or is otherwise necessary to a proper decision in the proceeding. See NRC Statement of Policy on '
Confidentiality, 50 Fed. Reg. 48506, 48508-09, November 25, 1985; South Texas Proiect, supra, 13 NRC at 473.3 '
2 I For example, it is GPC's understanding that NRC will not make available to GPC any documents which NRC determines concern the subject matter of its ongoing investigation.
3 In South Texas Proiect, an Intervenor sought to obtain the identity of confidential informants who had provided information concerning safety viclations to the NRC. The licensing board r
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Unless Intervenor's assertion of the informer's privilege is intended to protect the identity of someone other than Mr.
Mosbaugh, the assertion of that privilege in this proceeding, brought by the informer, is simply a smokescreen. Mr. Mosbaugh's ,
identity as an informer is already known to GPC, and the informer's privilege affords no protection to any documents he may have provided to NRC. Assuming sucn documents are relevant to the matters in controversy in this proceeding and within Intervenor's possession, custody or control, Intervenor must produce the documents to GPC. Otherwise, the Board should bar Intervenor from participating in this proceeding with respect to those issues to which such documents are relevant. See, e.a.,
Carolina Power and Licht, et. al (Shearon Harris Nuclear Power .
Plant), ALAB-856, 24 NRC 802, 810 (1986) (Appeal Board confirmed licensing board's authority to dismiss contentions for failure of the intervenor to respond to the applicant's discovery requests).
C. Overly Broad and Burdensome.
Intervenor objects "on the grounds that the requests are overly broad and unnecessarily burdensome given the detail ;
requested, cost involved, time required for such detail the limited amount of time available to answer and are inconsistent with 10 C.F.R. S 2.740 (a) (2) . " This objection is also improperly below held that disclosure of such identities was necessary to a proper decision in the proceeding. The Appeal Board, however, found that such identities were not required to be disclosed because it was "not the individuals but their information [that was] of significance to the proceeding." 13 NRC 476-77. The NRC Staff had already disclosed the details of the information provided to the NRC by the informants.
asserted. First, there is no such regulation as Section 2.740 (a) (2) and GPC does not know to what regulation Intervenor may be referring. Second, as with all of Intervenor's other ,
objections, there has been no effort to identify which of GPC's document requests are objectionable on these grounds. Third, Intervenor has produced not a single page or document.
Apparently, it is Intervenor's position that even the smallest effort to produce documents was too much, and thus triggers the unduly burdensome objection. As for Intervenor's' assertion that GPC's requests are overly broad, absolutely no explanation is given as to why Intervenor takes that position and, therefore, GPC cannot even respond to that assertion.
I D. Tape recordings in the possession of Intervenor's counsel.
GPC's position on the discovery of the Six Tapes in Intervenor's counsel's possession is stated in its Response to Intervenor's Request for a Protective Order, dated May 27, 1993, ,
as well as in GPC's Response to Intervenor's Information and Brief Concerning Motion for Protective Order, to be filed June 18, 1993. For the reasons stated in those pleadings, GPC !
submits that Mr. Mosbaugh has waived any claims of privilege by providing the Six Tapes to Congress, by providing a portion of the Six Tapes to GPC, and by and allowing portions of those tapes I
to be broadcast.
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F E. Documents prepared by Allen Mosbaugh under a grant of confidentiality by NRC.
As previously discussed, Mr. Mosbaugh should not be permitted to withhold documents on the basis of the informer's.
privilege when such documents directly relate to-the substantive allegations at issue in this proceeding. As for Mr. Mosbaugh's i
assertion that such documents are "further protected from disclosure to the extent that the documents were provided to NRC based on a promise of confidentiality," Intervenor's objection is also inappropriate. There is no privilege that protects a-document simply because a copy was given to a third party (or an agency) in confidence.
In any event, it does not appear that NRC agreed to keep Intervenor's documents confidential. A copy of Intervenor's agreement of confidentiality with the NRC is attached hereto as Exhibit A. With the exception of the information faxed by Mr.
Mosbaugh to NRC's Larry Robinson on June 13, 1990 and the contents of a telephone conversation between Messrs. Mosbaugh and Robinson on the same day, that agreement concerns only the confidentiality of Mr. Mosbaugh's identity as an informant to NRC. !
Turther, because Mr. Mosbaugh took action in September 1990 1 and again in this proceeding which disclosed publicly his status ,
as a confidential source, Mr. Mosbaugh has waived his right to confidentiality. Specifically, he informed GPC in September 1990 that he had turned over his surreptitious tape recordings to the y ,-- - % y -g- :e--
NRC as evidence of violations of NRC requirements. As-for the contents of the June 13, 1990 fax, Mr. Mosbaugh provided that document as an exhibit in support of a Motion for Partial Summary.
Disposition in Mosbauch v. GPC, DOL Case Nos. 91-ERA-11.
Mr. Mosbaugh should not be permitted to selectively reveal bits and pieces, while withholding other portions, of documents -
in his possession _when such documents directly relate to the substantive allegations at issue in this proceeding.
Intervenor's Response to GPC's First Request for Documents ,
provides further examples of such selective disclosure. In the response to Interrogatory No. 12, item 12, at pp. 32-34, Intervonor doles out quotations (e.g. b, c, and g) which GPC assumes are based on tape recordings made by Intervonor. As discussed in the Introduction of this matter, suora, such gamesmanship places GPC at a serious disadvantage. Intervenor should be compelled to produce documents which directly relate to the factual bases of the contention admitted by the Board in this proceeding.
Finally, as to Intervenor's assertion that disclosure of ;
information which Mr. Mosbaugh has provided to the NRC will-
" interfere with the current federal investigation." Intervenor i
has no standing to make objections for the NRC or to withhold or-conceal documents on grounds other than privilege running to Intervenor. I I
-Therefore, based on the foregoing, GPC requests the Board to ,
-l' find that (1) Intervenor has an affirmative obligation to produce l
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i documents in his control or custody notwithstanding copies in the possession of the NRC, and (2) Intervenor has failed to meet his burden of claimed privilege, to demonstrate undue' burden, or to establish any recognized principle of confidentiality which precludes discovery of documents sought by GPC.
III. GPC's First Set of Interrocatories and Intervenor's Responset GPC requests the Licensing Board to compel Intervenor to provide the information requested in those interrogatories-of GPC contained in GPC's First Set of Interrogatories, dated April 30, l 1993, which are identified below. GPC also requests that.the Board compel Intervenor to provide verification, by oath or affirmation, of each of the responses contained in its Response ,
to the First Set of Interrogatories of Georgia Power Company, dated June 2, 1993, as required by 10 C.F.R. S 2.740b(b).4' Intervenor's responses to GPC's interrogatories contain a i
series of general objections which are unjustified and appear designed to avoid identifying any documents and communications ,
relating to his allegations. In short, Intervenor makes a general objection to any request that seeks information or documents containing privileged communications, prepared by Intervenor in anticipation of litigation, received on a promise of confidentiality, protected by any statute, law or regulation, 4
0n June 9, 1993, counsel for GPC contacted the offices of Intervenor's counsel and requested the required' verification.
However, no verification has been provided tv date.
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4 generated pursuant to a confidential investigation, or protected by any investigatory privilege, as well as to any documents or information that Intervenor feels is not likely to lead to the discovery of admissible information, for which licensee has not shown a substantici need or is obtainable from another source.
Based on Inte) c's failure to produce even a single document, Intervenor upparently believes that these blanket objections cover information concerning every single document that he possesses that has not already been made public, including anything that he may have given or communicated to the NRC.
Intervenor's responses to GPC's First Set of Interrogatories, at 1-2. Intervenor then objects to the instruction that he identify any document or communication claimed to be privilege and provide the facts supporting the claim. Id. at 2-3. His responses are then narrowly worded and make no mention of pertinent documents required to be identified.
This method of avoiding response should not be permitted.
As discussed in Section III.A below, Intervenor's widespread general objections are too vaguely asserted to be meaningful and too unsubstantiated to be credited. Similarly, as discussed in ,
Section III.B below, Intervenor has no good basis to object to GPC's instructions, particularly since Intervenor employed the identical instructions in his interrogatories. Finally, as specified in Section III.C, Intervenor has not fully responded'to ,
t a number of interrogatories, and a full response should be compelled.
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A. Intervenor's General Objections.
Intervenor begins his general objections with a statement that he " objects to the interrogatories and request for productien of documents to the extent that they seek documents or information in the custody or control of entities or persons other than Intervenor, as such request is burdensome and oppressive." Since both GPC's interrogatories and document request define " documents" as referring to documents "in the possession, custody or control of the Intervenor or any employees, representatives, attorneys, investigators, or others acting on his behalf," GPC can see no reason for this objection unless it is an improper attempt to avoid disclosing information or documents that are currently in the possession of Mr.
Mosbaugh's counsel or his agents. If this is indeed the purpose of the objection, it should not be permitted. Mr. Mosbaugh should not be allowed to shield documents by placing them in the custody of his attorney or any other agent. Since Mr. Mosbaugh only has one counsel and perhaps one agent (Dr. Soeken, identified by Intervenor in his response to Document Request No.
7), he has made no showing that production of information possessed by these individuals is burdensome or oppressive.
Accordingly, Mr. Mosbaugh's objection should be overruled and he should be compelled to respond by producing all requested documents and information which both he and his agents might possess or control.
Intervenor's general objection to interrogatories.to the extent they seek information or documents which may be subject to the attorney-client or work product privileges is improperly.
asserted for the same reasons stated in Section II.A, supra.
Also, Intervenor states that information or documents which contain the mental impressions, opirdons or theories of "Intervenor" are protected from disclosure under the work product' doctrine. To the extent that the reference to "Intervenor" is meant to include those other than Mr. Mosbaugh's legal counsel, such reference is inaccurate. The purpose of the work product doctrine is to shelter the mental processes of the attornev, not his client. Shoreham, supra, 16 NRC at 1159, auctina U. S. v.
Nobles, 422 U.S. 225, 238 (1975).
Intervenor's objection to GPC's requests "to the extent that they seek documents or information received on a promise of confidentiality" is inappropriate for he same reasons stated in Section II.B, supra. No privilege or doctrine protects documents from disclosure simply because Intervenor has sought'to avoid disclosure.
Intervenor's objection to GPC's requests "to the extent that they seek documents or inforr.ation which Intervenor is not entitled to disclose pursuant to any statute, law or regulation, including any federal regulation" is fatally vague. As with all of Intervenor's general objections, this objection fails to identify which of GPC's requests are objectionable. It fails to state what authority Intervenor believes gives him the legal
right to ignore NRC's discovery rules. In any event, even if Intervenor had such a right, ho should not be permitted to both-exercise that right and participate in this proceeding concarning
, issues with respect to which Intervenor has withheld relevant documents and information.
Intervenor objects to GPC's requests "to the extent that they seek any documents or information generated. pursuant to a confidential investigation by any governmental entity or agent
... [or) protected by any investigatory privilege or exemption."
This general objection is inappropriate for the same reasons stated in Section II.B, supra.5 Intervenor objects to GPC's requests "to the extent that they seek irrelevant documents or information not reasonably calculated to lead to the discovery of admissible evidence, that licensee has not shown a substantial need for the material, cannot obtain the substantial equivalent by other means or otherwise not within the permissible scope of discovery as described in Federal Rule of Civil Procedure 26(b) and 10 C.F.R. 5 In a rare reference to any authority, Intervenor cites as support the unique circumstances in a 1970 case Bredice v.
Doctors Hosnital. Inc., 50 F.R.D. 249 (D.D.C. 1970). GPC is unable to find any support for Intervenor's position even in the cited case. -That case concerns a-malpractice suit in which plaintiff sought copies of minutes and reports generated by defendant hospital's staff as part of a retrospective review of-the effectiveness of certain medical procedures (i.e., the records were not generated as a part of current medical care).
The court found that the " sole. objective" for generating these records was to continually improve the care and treatment of patients and that confidentiality was essential to the.
effectiveness of the review process. The court held that such records were entitled to a qualified privilege based on public policy grounds.
S 2.740 (a) (2) . " This objection is improper for a number of reasons. First, GPC is not required to demonstrate a
" substantial necd" for documents or information or that the substantial equivalent of such documents or'information cannot be obtained by other means before it may obtain discovery from Intervonor. As discussed above in Section II.B, GPC may obtain discovery of any matter, not privileged, which is relevant to the subject matter of the proceeding. Second, Intervenor's vague objection by reference to Rule 26(b) and S 2.740(a) (2) is obviously an attempt to capture any possible basis for objecting which escaped Intervenor's counsel. Intervenor cannot object to valid discovery requests on the basis that a request is impermissible under F.R.C.P. 26(b) or NRC rules without stating a more specific objection or identifying the specific GPC requests.
that are objectionable. Third, as discussed in Section II.C, supra, there is no such regulation as 10 C.F.R. S 2.740(a)(2) cited by Intervencr.
B. Intervenor's Objections to GPC's Instructions.
Intervenor's objection to GPC's instructions as unduly burdensome and oppressive is remarkable since these instructions ,
are identical to the instructions in Intervenor's interrogatories to GPC.' Further, such general, wholesale objections to all-of GPC's instructions without identifying which of GPC's
'GPC interprets Intervenor's objections to be limited to ,
GPC's Instructions and that such objections, for example, are not !
made with respect to GPC's " Definitions" in its April 30, 1993 j discovery requests.
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interrogatories are so objectionable is insufficient to constitute a proper objection. For example, Intervenor cannot seriously assert that his obligation to supplement his interrogatory responses pursuant to 10 C.F.R. S 2.740(e) is unduly burdensome and oppressive. Accordingly, Intervenor should be required to provide the requested information in accordance with the instructions and definitions of GPC's interrogatories.
C. Intervenor's Specific Responses. '
GPC requests.that the Licensing Board compel Intervenor to provide the information within his possession, custody or control requested by the following GPC interrogatories. '
Interrocatory Response No. 1.
GPC's Interrogatory No. I asked Intervenor to identify relevant tape recordings that Intervenor has reviewed. .
Intervenor responds in part by objecting to the " release" of the six Tapes on the ground that they constitute " anticipated rebuttal evidence." This objection is specious and non-responsive. Intervenor was asked to identify the date and time of, participants in, and general subject matter of the recorded conversations that Intervenor has reviewed. This information will allow GPC to determine the specific conversations which form the factual basis of Mr. Mosbaugh's allegations. That the Six Tapes are considered by Intervenor to be rebuttal evidence is not a basis for withholding this relevant information.
Interrocatory Resnonse No. 2.
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1 GPC's Interrogatory No. 2 asked Intervenor to identify copies that may have been made of relevant tape recordings and the purpose of such copying. Intervenor objects to this interrogatory as not likely to lead to discoverable material, and with respect to the Six Tapes, further objects to their " release" because it would identify anticipated rebuttal evidence.
Again, with respect to the Six Tapes, Intervenor has neither' responded to the interrogatory nor asserted a valid objection.
GPC is entitled to inquire whether and for what purpose copies of the six Tapes have been made, in order to determine whether there are copies available from sources other than Intervenor and in order to determine the extent to which Intervenor may have distributed copies to other persons. This distribution would, of course, be relevant to the determination of any claims of privilege. The recipients of the tapes may have other information received from Mr. Mosbaugh as well. This information is, therefore, reasonably calculated to lead to discoverable material. Intervenor's view of these tapes as " rebuttal evidence" does not justify withholding information about the existence of copies.
Interrocatory Resnonse No. 3.
Pursuing the same line of inquiry as Interrogatory No. 2, Interrogatory No. 3 asks Intervenor to identify persons to whom !
copies of the tapes have been provided and to. identify the-documents and communications relating to the provision or return of such copies. Intervenor objects on the grounds that the ee -- e w- , , ,. + .r--=- -- wr
interrogatory is unduly burdensome and cannot lead to discoverable material. With respect to the Six Tapes, Intervenor i
states that copies were provided to Congressional oversight committees, allegedly with assurances of confidentiality, but Intervenor objects to providing information on his contacts.with Congress on the grounds of " privilege and confidentiality."
Again, this Interrogatory is reasonably calculated to t
determine whether there are copies of the Six Tapes that might be :
discoverable, whether Intervenor waived claims of privilege by providing the tapes to third parties, and whether other parties have received or possess information relevant to this proceeding.
Intervenor makes no showing that providing this information is unduly burdensome, which is unlikely unless Intervenor made ;
numerous copies and distributed them widely.
Intervenor's statement about providing tapes to Congressional oversight committees is not complete. It does not >
identify the specific committees to which the tapes were
.i provided, the dates on which such tapes were provided, the purpose for which the tapes were provided, and the documents and ,
communications relating to the provision or return of such tapes, !
i as required by the interrogatory. Note that whereas Intervenor's May 14, 1993 Response and Motion for Protective Order asserted that copies of the Six Tapes were provided to the House Subcommittee on Oversight and Investigations, Intervenor's- !
response to Interrogatory No. 3 now refers to the provision of copies to multiple " committees."
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Intervenor's response also does not indicate that the-provisions of copies to Congress was the sole distribution, leaving open the possibility that copies were distributed to other persons. Indeed, in a September 11, 1990 deposition of i
Mr. Mosbaugh, in his DOL case, Intervenor provided GPC with a copy of a tape recording made by Intervenor on July 11, 1990.
- This copy must be one of the Six Tapes since Intervenor's response to Interrogatory No. 3 asserts that the Six Tapes are the only copies that he made of the original 277 tape recordings. ,
GPC submits that this distribution of one of the Six Tapes by Intervenor to GPC, his adversary, constitutes a waiver of any privilege which Intervenor may claim with respect to the Six Tapes. See GPC's Response to Intervenor's Intormation and Brief Concerning Motion for Protective Order, to be filed June 18, 1993. Additionally, in his Information and Brief Concerning Motion for Protective Order, filed on June 9, 1993 to address the extent to which the Six Tapes were held in confidence, Intervenor's counsel avers that he has received an inquiry from another agency with investigatory powers and that communications with this entity are also confidential and privileged. Affidavit of. Michael D. Kohn, June 9, 1993, Paragraph 12. Because of Intervenor's general objections to providing any information relating to documents he thinks may be protected, there is no reasonable assurance that Intervenor has revealed the extent to which the Six Tapes have been disclosed, l
'l i
1
Intervenor's refusal to provide information concerning his contact with Congress is unjustified. Intervenor was willing to attach to his May 14, 1993 filing a letter from Rep. Dingell (containing no assurance of confidentiality), but now, having asserted that such assurances were nevertheless given, unfairly refuses to provide any information that m!ght shed light on the validity of this assertion. Intervenor should not be allowed to claim that documents are confidential and at the same time refuse to provide information substantiating the claim when the burden is on him. Moreover, Intervenor provides no valid basis to '
withhold this information. The assertion that his contacts with Congress are protected by " privilege and confidentiality" is too vague and unsubstantiated to lie, and there is no general privilego that attaches to documents or information provided to Congress.
Interroaatory Response No. 5.
GPC's Interrogatory No. 5 asked Intervenor to identify all documents that index, transcribe (in whole or part), summarize or otherwise discuss the relevant tape recordings. Other than his 2.206 Petition, Intervenor identifies no documents responsive to this request and objects to this interrogatory to the extent he seeks to obtain information provided to NRC-OI on a confidential basis.
As discussed earlier, Intervenor has not established the existence of any privilege protecting copies of documents provided to OI, and no such privilege exists. Thus, any such l
- 23 -
l
documents are discoverable and should be identified and produced.
immediately.
Even if documents provided to OI were somehow privileged, such claim would not shield the documents from identification.
Subject to the Board's authority to fashion protective orders to avoid undue burden, the identity of documents is always discoverable. See Cleveland Electric Illuminatina Comoany (perry a
Nuclear Power Plant Units 1 and 2) LBP-82-114 16 NRC 1909, 1942 (1982). Accordingly, Intervenor's general objection of privilege ,
alone supplies no grounds for Intervenor's failure to respond to-this interrogatory.
It also appears from Intervenor's response that there may be other documents summarizing or discussing the relevant tape recordings in addition to those provided to OI. Intervenor states in his response to Interrogatory No. 5 that he relied on excerpts of tape recordings (presumably a reference to the Six Tapes) to rebut licensee's response to the 2.206 Petition. But a i
review of the amendment to that Petition reveals no discussion'of tape recordings associated with his allegations. If Intervenor possesses other documents to the NRC summarizing or discussing.
his Six Tapes that were intended to relate to the 2.206 proceeding, those documents too should be identified and i
produced. I Interrocatory Resoonse No. 6 Interrogatory No. 6 asked Intervenor to identify persons to whom transcripts, summaries or other documents discussing the tape recordings have been distributed. Intervenor objects to this interrogatory as overly broad, not calculated to lead to discoverable evidence, and unduly burdensome. Intervenor does respond that the NRC has transcripts of certain tapes, but provides no other information and objects to responding with respect to communication with Congress and OI "on grounds of confidentiality and privilege."
There is no merit to Intervenor's claim that this interrogatory cannot lead to discoverable evidence. 10 C.F.R. S
- 2. 74 0 (b) (1) specifically permits discovery of the " identity and location of persons having knowledge of discoverable matter."
Information on the identity of persons possessing documents discussing the tape recordings, which may include documents prepared by Mr. Mosbaugh and constitute admissions, is reasonably calculated to lead to the discovery of admissible evidence.
Nor is there any apparent merit to Intervenor's claim of undue burden. Intervenor provides no facts to support this claim. And unless his distribution of documents has been extensive and widespread, which would be inconsistent with.
Intervenor's claim ~of privilege and confidentiality, the identity of persons who received documents transcribing, summarizing or discussing the tapes should be simple.
Finally, Intervenor's claim of " privilege and confidentiality" with respect to communications with Congress and OI is not supported. No such privilege exists. In any event, GPC's Interrogatory No. 6 seeks the names of persons that may
4 possess discoverable information, and the names of such persons are never privileged. Harrison v. Prather, 404 F.2d 267, 273-74 (5th Cir. 1968); Edcar v. Finley, 312 F.2d 533, 535-36 :(8th Cir.
1963).
Interrocatory Response Nos. 7 and 8.
GPC'S Interrogatory Nos. 7 and 8 ask Intervenor to identify documents and communications (other than'those identified in response to Interrogatory 3) relating to the' provision, custody, control or return of the relevant tape recordings. Intervenor objects to these interrogatories as not calculated to lead to discoverable information.
Because Intervonor claims that certain tapes are no. longer in his possession, custody or control, and because he claims others (i.e., the Six Tapes) were provided to third parties subject to assurances of confidentiality, documents and communications relevant to these claims are discoverable. If.it is revealed that Mr. Mosbaugh or his counsel has the right to retrieve tapes currently in the possession of others, or that distributed tapes were not subject to substantiated confidentiality agreements, the immediate. production of such' tapes would appear to be appropriate and required.
Intervenor states that he has had communications with -
members of the media seeking access to the tapes but has not made tapes available to the media. This. response is insufficient. If Intervenor told reporters that they might obtain copies of the -
Six Tapes from the Congressional Committees to which they had
- -- ~. . .- .
been transferred, or if Intervenor was aware that' reporters were seeking the tapes from Congress and did'not object, the Licensing.
Board could conclude that Intervenor waived work product privilege. Accordingly, Intervenor should fully identify these communications in accordance with the instructions accompanying GPC's interrogatories.
Intervenor indicates that he has also had communications concerning the tapes with the NRC and members of Congressional subcommittees,'and that the only documents related to the custody or control of the tape recordings pertain to such communications.
Intervenor, however, provides no details and objects to the release of any information related to his contact with Congress and NRC based on informer's privilege. This objection is without merit. As discussed earlier, the informer's privilege only protects the identity of an informant, which in this case is already known. Intervenor should therefore be required to identify his communications specifically in accordance with the instructions accompanying GPC's interrogatories.
Interroaatory Response Nos. 10 and 11.
GPC's Interrogatory No. 10 asked Intervenor-to identify communications concerning the allegations in Intervenor's
. ~ Petition or Amended Petition, and any other allegations that Petitioner intends to raise in this proceeding. Interrogatory 11 asks Intervenor to identify persons who received a copy of any such communication if written.
i.
Intervenor objects to Interrogatory No. 10 on the ground that this question is not calculated to lead to discoverable material. This is, of course, absurd. Communications relating to Intervenor's allegations are directly relevant. GPC is entitled to know what statements Intervenor has made, which may include admissions exonerating GPC and inconsistent statements affecting Intervenor's credibility.
In response to Interrogatory No. 10, Intervenor states that t
he has had numerous conversations with the NRC, but provides no details or documents as required by the instructions accompanying.
GPC's interrogatories. Intervenor refers to an initial written communication, but identifies no subsequent correspondence or transmittals to the NRC. GPC believes that Mr. Mosbaugh and his i counsel provided written information to the NRC on a number of occasions. In a sworn affidavit submitted in a Department of Labor proceeding, Mr. Mosbaugh averred that, after his counsel submitted an allegation to the NRC on June 13, 1990, "I then provided the NRC with a steady stream of written allegations."
Allen Mosbauch v. Georcia Power Company Department of Labor Case No. 91-ERA-11, May 14, 1991 Affidavit at paragraph 35. Further, in the response to the very next Interrogatory, Intervenor acknowledges that he and his counsel have had written communications with NRC. These written communications should be fully identified.
In response to Interrogatory No. 11, Intervenor objects to providing information on all such written communications on the i
grounds of privilege. Intervenor, however, has not established the existence of any privilege, and even if such privilege
. existed, it would not excuse Intervenor from identifying the existence of documents. <
With respect to oral communications, Intervenor states, "Mrs Mosbauch kept no notes or other documentation pertaining to these conversations" (emphasis added). Of course, information in the custody of Mr. Mosbaugh's counsel or agents or otherwise within the control of Mr. Mosbaugh should be identified and produced as well.
Similarly, Intervenor asserts "Mr. Mosbaugh" had no " direct" communication with the U.S. Department of Justice ("DOJ"). GPC requests that Intervenor be required to disclose those communications which Mr. Mosbaugh's counsel or any employee or representative of either of them had wi.th DOJ, directly or indirectly, which are responsive to the request.
Intervenor objects to identifying his communications with Congress on the grounds of confidentiality and privilege. As discussed previously, no privilege protects such communications.
GPC requests that Intervenor be required to disclose those communications he had with the U.S. Congress, providing the i information specified in instructions to GPC's Interrogatories.
Finally, Intervenor states that he has spoken with current and former employees by phone but identifies no details or documents as required by GPC's instructions. Intervenor provides no justification for this nonresponsiveness and, accordingly, i
d r
should be compelled to identify these current and former employees to whom he or any representative has spoken and such other information as is required to fully disclose his communications in accordance with the instructions to GPC's Interrogatories.
Interrogatory Response Nos. 13 and 14.
GPC's Interrogatory Nos. 13 and 14 ask Intervenor to identify communications made-on April 19, 1990,' relating to LER-90-006, and to identify the specific diesel generator problems or-failures which Intervenor claims to have raised before that date.
These interrogatories explicitly ask Intervenor to identify any documents comprising, referring or relating to such communications. In response, Intervenor merely refers to transcripts and tape recordings in the NRC's possession.
Intervenor makes no effort to identify the communications that he can recall concerning the LER. He makes no effort to identify ,
the problems he contends he raised. He does not identify a ,
single document.
GPC believes that~Intervenor currently possesses information which is responsive to these requests. GPC bases this belief on statements Intervenor has made, including Mr. Mosbaugh's May 14, 1991 affidavit which states that he had obtained information on J
or about April :17-18, 1990 demonstrating that the diesel l
. 1 generators had suffered " numerous failures and problems."- Idz at i Paragraphs 27 and 28. Intervenor should be required to provide the requested information.
1
. . - - . _ _ . . ~
4 Interrocatory Resnonse No. 32. ,
Interrogatory No. 32 asked Intervonor to identify "other documentation" (referred to in its Amended Petition) supporting ,
his claim that Southern Nuclear submitted materially false information to the NRC. Intervenor responds that the "other documentation" concerns written explanations which Intervenor provided to the NRC, but objects to providing information protected by.the informant's privilege.
Intervenor's response is inadequate for two reasons. - First, the informer's privilege only protects an informant's identity, which in this case is known. There is no privilege that Intervenor may assert to withhold documents simply because copies have been given to the NRC. Second, even if certain documents ,
were somehow privileged, their identity would still be discoverable absent a protective order from the Licensing Board' based on undue burden. Accordingly, claims of privilege cannot-excuse Intervenor's failure to identify.the documentation addressed by this interrogatory. '
IV. Conclusion.
For the reasons stated above in Section II, GPC moves the Licensing Board to compel Intervenor to produce all documents requested by and in accordance with, GPC's First Request for Production of Documents by Allen L. Mosbaugh, dated April 30, 1993 and, for the reasons stated above in Section III, to produce the information requested by, and in accordance with instructions
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\
4 applicable to Interrogatory Nos. 1, 2, 3, 5, 6, 7, 8, 10, 11, 13, 14 and 32 of GPC's First Set of Interrogatories to Allen L.
Mosbaugh, dated April 30, 1993.
Dated: June 17, 1993.
/h ohn' Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 (404) 885-3360 Ernest L. Blake, Jr., Esq.
David R. Lewis, Esq.
SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, NW Washington, DC 20037 (202) 663-8084 Counsel for Georgia Power Company
t
, a iiLL UNITED STATES OF AMERICA U W W.
NUCLEAR REGULATORY COMMISSION
'93 JUN 18 All:52 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD t -
- i. cn i;; v Lvulnt5 g. , E. . .vp i e n A ';: a In the Matter of
- GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 et al.
- 50-425-OLA-3 (Vogtle Electric
- Re: License Amendment Generating Plant, *
(Transfer to Southern Units 1 and 2)
- Nuclear)
- ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE This is to certify that copies of the within and fore-going " Georgia Power Company's Motion to Compel Intervenor's Production of Documents and Responses to Certain Interrogatories" were served on all those listed on the attached service list by depositing same with an overnight express mail delivery service.
This is the 17th day of June, 1993.
~, < '
hn Lamb 6rski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
Atlanta,-GA 30308-2216 (404) 885-3360
t' UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
.BEFORE THE ATOMIC SAFETY AND LICENSING BOARD-i In the Matter of
- GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3
- 50-425-OLA-3 et al.
(Vogtle Electric
- Re: License Amendment Generating Plant, *
(Transfer to Southern Units 1 and 2)
- Nuclear)
- ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Stewart D. Ebneter Peter B. Block, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Suite 2900 Commission Atlanta, Georgia 30303 Washington, D.C. 20555 Office of the Secretary-Administrative Judge U.S. Nuclear Regulatory James H. Carpenter Commission Atomic Safety and Licensing Washington, D. C. 20555 Board ATTN: Docketing and Services U.S. Nuclear Regulatory Branch Commission Washington, D.C. 20555 Charles Barth, Esq.
Office of General Counsel Administrative Judge One White Flint North Thomas D. Murphy Stop 15B18 Atomic Safety and Licensing U.S. Nuclear Regulatory Board Commission-U.S. Nuclear Regulatory Washington, D. C.-20555 Commission Washington, D.C. 20555 Director, Environmental Protection Michael D. Kohn, Esq. Division Kohn, Kohn & Colapinto, P.C. Department of Natural 517 Florida Avenue, N.W. Resources Washington, D.C. 20001 205 Butler Street, S.E.
Suite 1252 Office of Commission Appellate Atlanta, Georgia 30334 Adjudication One White Flint North 11555 Rockville Pike Rockville, MD 20852 ATTENTION: Docketing and ,
Service Branch '