ML20045D866
| ML20045D866 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 06/24/1993 |
| From: | Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel |
| To: | NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| CON-#293-14067 93-671-01-OLA, 93-671-1-OLA, LBP-93-11, OLA-3, NUDOCS 9306300150 | |
| Download: ML20045D866 (14) | |
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'93 J!N 24 P? 44 LBP-93-11 June 24, 1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- ,8ERVED JUN 2 4 1993 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B.
Bloch, Chair Dr. James H.
Carpenter Thomas D.
Murphy
[
l In the matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 GEORGIA POWER COMPANY, et al.
Re: License Amendment (Transfer to Southern (Vogtle Electric Generating Nuclear) l Plant, Units 1 and 2) l ASLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER (Order to Mr. Mosbaugh to Release Six Tapes)
In our June 1,1993, Memorandum and Order, "Information and Brief Concerning Protective Order," we requested further information concerning whether or not to uphold Mr.
Mosbaugh's claim of privilege for "Six Tapes. "
The claim is that the Six Tapes, which are copies of portions of 277 recordings of conversations, are protected by the attorney-client and work product privileges because their disclosure would reveal the legal theories and strategies of Mr.
Mosbaugh's
- attorney, who allegedly directed their preparation.
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After receiving the filings of the parties, we have i
determined that these tapes are not protected either by the
]
work product privilege or *.he attorney-client privilege and that they"should be released promptly to the Applicant.
We are concerned about what we consider undue intransigence to discovery on the part of Mr. Mosbaugh, particularly with respect to his discovery responses that do not involve the Six Tapes.
We are charged with compiling a full, orderly and complete record.
In the interest of j
justice, we want all the unprivileged facts on the table.
In this administrative proceeding, there is little room for surprise tactics.
The Board will not condone questionable tactics and practices similar to those that Administrative Law Judge Bernard J.
- Gilday, Jr.,
complained of in prior litigation between these parties.2 If Mr. Mosbaugh has the goods, he should lay them on the table.
We intend to address this issue in more detail in a Memorandum and Order dealing with Applicant's Motion to Compel of June 17, 1993.
- However, we note that Mr.
Mosbaugh's apparent lack of openness and fair play may.be 5Georgia Power Company Response to Intervenor's Request for a Protective Order, May 27, 1993 at Exhibit 4, Order of Judge B.
J. Gilday, Jr., Mosbauch v.
Georcia Power C oin o a n y, DOL Case No. 90-ERA-58.
((" Complainant's actions raise serious questions, not only about his true motives and goals, but also about the quality of the techniques which have been employed. If, early on, any semolance of openness and fair play had been exaibited, substantial ' ef fort, expense and time, on the part of many, would have been saved.")
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. inhibiting Applicant's efforts to institute negotiations that cou.1d short-cut the discovery process and save everyone unnecessary expense in litigating every discovery detail.2 We urge Mr. Mosbaugh to actively seek full and fair disclo-sure by all parties and to engage in negotiations.to accomp-lish that end.
I.
Facts: Including Apparent Inconsistency In our June 1 memorandum we described the Six Tapes as follows:
On May 14,
- 1993, Allen Mosbaugh filed a motion that contained a Request for a Protective Order with respect to six tape recordings (Six Tapes) allegedly made in preparation of litigation pending before the U.S.
Department of Labor.
Georgia Power, in a May 27 Response to that Request, has alleged that the Six Tapes are not privileged based'on its understanding of how they were prepared and on its understanding that the Six Tapes were not kept confidential but were voluntarily shared with others.
This description was derived from Mr.
Mosbaugh's representation that:
These recordings constitute counsel's work product and are predicated on attorney-client 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 counsel to file a petition with the Chairman of the U.S. Nuclear Regulatory Commission on September 11, 1990.3 2Applicant's Letter of June 17, 1993.
3A11en Mosbaugh's Response to the Board's April 21, 1993 Scheduling Order and Request for a Protective Order, May 14, 1993 (Mosbaugh Initial Response).
-4 In response to our request for further information,
- however, Mr.
Mosbaugh's attorney, Mr.
Michael D.
- Kohn, significantly changed his position.
He now states:
. The method I chose to employ to prop-erly represent Mr. Mosbaugh during legal proceed-ings before the NRC and, subsequently, before the DOL was as follows:
After discussions with my client, wherein he_would identify a sequence of events, Mr. Mosbaugh was instructed by counsel to make excerpts of relevant taped conversations.
Mr.
Mosbaugh made excerpted segments from the original recordings and produced six tape record-ings of excerpted conversations (hereinafter "Six Tapes").
. The excerpted segments of the six tapes represent portions of 277 original tape recordings
[of conversations between Mr. Mosbaugh and others, some allegedly covering practices of Georgia Power at the Vogtle Electric Generating Plant), which af ter consulting with Mr. Mosbaugh about th'e f acts of the case, I deemed were significant and neces-sary to prepare for Mr. Mosbauch's litigation.'
j i
In September 1990, Mr. Mosbaugh gave his original tape recordings to NRC-OI.5 On July 29, 1992, the Six Tapes were released to a member' of the 'staf f of the -U.S. - House of-Representatives Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce "on a confidential and privileged basis."6 Furthermore, there is another
'Intervenor's Information and Brief Concerning Motion for Protective Order, June 9, 1993 (Intervenor's Protective Order Brief), Exhibit 1: Affidavit of Michael D.
Kohn at 2 (Kohn Affidavit).
'Kohn Affidavit at 3.
'Kohn Affidavit at 4.
~ l governmental entity with which the tapes may have been shared.7 Intervenor states that it "may call" Allen Mosbaugh as a witness.8 The Board notes that this 1.nguage appears to be as definitive as Intervenor ever gets.
The Board expects Mr. Mosbaugh to be a witness, as his case likely will rise or fall on his direct testimony, on authentication of the audio tapes made by him, and on some contemporaneous docu-mentation alleged to exist.
The Six Tapes were made by Allen Mosbaugh.'
The Six Tapes were excerpted from 277 original audio recordings, 76 of which are still in the possession of.the NRC Office of l
l Investigations.2 The Six Tapes were considered by Mr.
I l
Kohn to be "significant and necessary to prepare for Mr.
i Mosbaugh's litigation. "22 Although Intervenor has argued that discovery of its tapes would compromise an ongoing investigation by the NRC,12 the Staff has not asserted such a privilege and has 7Kohn Affidavit at 4.
8Intervenor's
Response
to the First Request for Documents by Georgia Power Company (Intervenor's Response to First Request), June 2, 1993 at 38.
- Intervenor's Response to First Request at 1.
2 Intervenor's Protective Order Brief at 2,
Kohn Affidavit at 2, S 3.
22 Kohn Affidavit at 2, N 3.
22Intervenor's Information and Brief at 6-7.
l 1 denied that other parties have the right to claim such a privilege on the Staff's behalf.22 l
II.
Applicable Law The NRC's discovery rules regarding the work product doctrine are set out in 10 CFR 2.740(b)(2), which provides:
(2) Trial preparation materials.
A Party may ortain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or i
for the hearing by or for another party's repre-i sentative (including his attorney, ' consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has j
substantial need of the materials in the prepa-ration of this case and that he is unable without.
undue hardship to obtain the substantial equi-Valent of the materials by other means.
In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions,
- opinions, or legal theories of an attorney or other repre-sentative of a party concerning the proceeding.
- - These-rules are -adapted -f rom Rule-26-(-b) ( 3 ) of the Federal Rules of Civil Procedure, Commonwealth Edison Com-pany (Zion Station, Units 1 and 2), ALAB-196,.7 AEC 457, 460 (1974), which is itself a derivation of the Supreme Court's decision in Hickman v.
Tavlor, 329 U.S.
495 (1947).
S_qe Advisory Committee Note to 1970 Amendments to Fed. R.
Civ.
Proc., 48 F.R.D.
459, 499 (1970).
22Staf.f Letter in Lieu of a Brief [ title provided by the Licensing Board), June 22, 1993.
__ III.
Application of the Regulatory Provisions A.
'repared in Anticipation of the Hearing The Six Tapes were not prepared in anticipation of this Hearing.
Furthermore, a 6 2.206 Petition, for which it was prepared, is not a hearing - it is a request for government action.
Nor is there any precedent cited for a privilege that covers documents prepared for the purpose of inducing prosecution or an agency enforcement action, as occurred in this case.
l l
That the Six Tapes became relevant to the Department of l
Labor litigation or to this case is incidental to their pre-l paration. This later use of previously compiled'information does not retroactively create a privilege.
We find that these tapes were not prepared in anticipation of a hearing.
B.
By a Party's Agent It is Intervenor's claim that Mr. Mosbaugh was acting as an agent for his attorney in the way in which he assem-bled the Six Tapes.
Since clients often find it necessary to conserve expenses by doing tasks at their attorney's suggestion, this is plausible.
On the other hand, this is a
claim that requires some specificity concerning the detailed directions given to'Mr. Mosbaugh.
Even after submitting an additional affidavit at the Board's request, all Intervenor has done is to suggest that he gave general directions about what was important and what
U,
was not.
In this proceeding, counsel for Mr. Mosbaugh also j
has specified that is important and what is not through the 1
contentions, bases, and answers to interrogatories filed by him.
We have no reason to believe that the directions given to Mr. Mosbaugh were any more than the current specification of charges in this case.
To that extent, the directions are already public and nothing will be lost through disclosure of the tapes.
In the absence of further specificity, we ' resolve doubts about the nature of the directions given -to Mr.
Mosbaugh against the assertion of privilege.-
We are not persuaded that he was acting as an agent of his attorney.
United States v. 22.80 Acres of' Land, 107 FRD 20, 22 (N.D.
Cal. 1985).
Egg Lona Island Lightino Co. (Shoreham Nuclear Power
- Station, Unit 1),
LBP-82-82, 16 NRC
- 1144, 58 (1982)("[t]he attorney-client privilege does not protect against discover' nderlying facts f rom 'their source,
.merely because th sa f cts have been communicated to an attorney").
C.
Substantial Need Licensee has a substantial need to discover the Six Tapes.
They represent Intervenor's view of what is impor-tant among 277 audio tapes made by him.
.Since he was pre-sent at the' conversations, his view of what is important is crucial.
Furthermore, he is likely to be influenced in his
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testimony by his familiarity with the Six Tapes, and the process of preparing them and of subsequently listening to them is an important part of how his testimony has been shaped for trial.
This material is most helpful to understanding the importance.of his testimony, including what he has focused on and what he has chosen to omit.
As material that has influenced testimony of a key witness, it should be made available to the other party.
In a criminal case, disclo-sure of this material might not be made until trial.
However, civil cases and administrative proceedings operate on principles of full and early disclosure, and there is, every reason to make available now-what. would become available later.
United States v.
Noble, 422 U.S.
225, 239 (1975)
(holding that it was appropriate to rule that an
. investigator could testify only if his investigative report, i
which even included statements by the defendant, would then be required to be provided to the prosecution).
The the 277 tapes, including the 76 in the possession of the NRC, would not be a substitute for these summary tapes.
It is the Six Tapes that will fully inform the Applicant of the basis for the contentions that it is facing.
Fairness and efficiency both require that the Applicant have this information. We find that Applicant has a substantial need to obtain it.
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- - D.
Unable Without Substantial Hardship to Obtain the Substantial Equivalent We find that Applicant would confront a substantlal hardship in taking 277 audio tapes and, without having been present while the tapes were
- made, extract important information from those tapes.
- Hence, the Six Tdpas are i
important in avoiding suostantial hardship.
Furthermore, for reasons discussed in the _just preceding _section (C.),
above, the 277 tapes are'not the substantial equivalent of the Six Tapes.
E.
Protecting Against Unnecessary Disclosure We are aware of our obligation to protect against.
unnecessary disclosure of the thought processes of Intervenor's attorney in the process of denying the privilege asserted for the Six Tapes.
However, none ~ of those processes is alleged to be directly disclosed in the tapes.
The tapes are pure evidence, without any thought processes.
There is no need to delete anything in order to 1
protect the attorney's thought processes.
It is _ indeed likely that the collection of. evidence could have resulted f rom differing thought processes and that the attorney's legal theories or thought processes will be no more evident after the tapes have been re'.ased than they are already as 1
a result of statements in our record.
.. _ F.
Waiver of Privilege l
In addition to our conclusion that the Six Tapes are 1
not privileged, we also conclude that any privilege that might have attached was waived when they were provided to the Nuclear Regulatory Commission for a 6 2.206 proceeding and for an investigation, and privilege was also waived by presenting the tapes to Congress.
Documents.that are privileged are private.
They are not disclosed.
Westinchouse Electric Coro v.
Reoublic of tilSL.Phillooines, 951 F.2nd 1414, 14 27-30.( 3 rd Cir. 1991)(Westinghouse was held to have lost any claim to privilege for documents disclosed to the Securities and Exchange Commission and the Department of Justice in order to cooperate with them in l
l ongoing investigations.)
2' In this case, Mr. Mosbaugh's disclosures were freer than those of Westinghouse, which may have felt some pres-sure to clear its name from ongoing investigations.
When Mr. Mosbaugh made the Six Tapes available to the Office of Investigation of the Nuclear Regulatory Commission and to a l
Congressional Committee, he waived any claim of privilege.
i It does not matter that these recipients would keep the alleged " work product" confidential.
The act of sharing with them belies the need to keep private the work that was l
l 2'See also Synallov Coro
- v. Grav, 142 F.R.D. 266 at 269 (D. Del 1992)(holding that~ there is an implied valver of
~
privilege when a party puts protected information at issue by making it relevant to the case).
I l
f done.
The work was not kept private and no longer has a claim to privilege.
G.
Conclusion of Law The Six Tapes must be released promptly.
They are not privileged.
Were they privileged, the privilege would have been waived.
IV.
Order For all the foregoing reasons and upon consideration of the entire record in this matter, it is this.24th day of June, 1993, ORDERED, that:
The Six Tapes discussed above shall be served' in this case by close of business July 1, 1993.
i FOR THE ATOMIC SAFETY AND LICENSING BOARD wl M
ames H. Carpehter pAdministrativeJudge
'Y AMt1 f
A cffias D. Murphy U g Administrative Judge v
Peter B. Bloch
)
Chair i
Bethesda, Maryland
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of GEORGIA POWER COMPANY, ET AL.
Docket No.(s) 50-424/425-OLA-3 (Vogtle Electric Generating Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB M & 0 (LBP-93-11) - 6/24/93 have been served upon the following persons by_ U.S. mail, first' class, except as otherwise noted and in accordance with the requirements' of 10'CFR Sec. 2.712.
Office of Commission Appellate Administrative Judge Adjudication Peter B. Bloch, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board i
Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Administrative Judge James H. Carpenter Thomas D. Murphy Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 i
John Lamberski, Esq.
Office of the General Counsel Counsel for Georgia Power Company U.S. Nuclear Regulatory Commission Troutman Sanders Washington, DC 20555 Suite 5200, 600 Peachtree Street, N.E.
Atlanta, GA 30308 Ernest L. Blake, Jr., Esq.
Michael D. Kohn, Esq.
David R. Lewis, Esq.
Stephen M. Kohn, Esq.
Shaw, Pittman, Potts & Trowbridge-Kohn, Kohn & Colapinto, P. C.
2300 N Street, N.W.
517 Florida Avenue,-N.W.
Washington, DC 20037 Washington, DC. 20001 y,
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Docket No.(s)50-424/425-0LA-3 LB M & 0 (LBP-93-ll) - 6/24/93 C. K.
McCoy V. President Nuclear, Vogtle Project Georgia Power Company Post Office Box 1295 Birmingham, AL 35201 Dated at Rockville, Md. this
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24 day of June 1993
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Office of the Secretary of the Commission i
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