ML20046C491
| ML20046C491 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/02/1993 |
| From: | Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14178 93-671-01-OLA-3, 93-671-1-OLA-3, OLA, OLA-3, NUDOCS 9308110074 | |
| Download: ML20046C491 (29) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 93 MG -4 P 3 :56 i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
- GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 gt 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 GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S MOTION TO COMPEL PRODUCTION OF AFFIDAVITS I. INTRODUCTION.
Georgia Power Company ("GPC") hereby responds to Intervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Company, dated July 23, 1993
("Intervenor's Motion to Compel"). GPC requests that the Board deny Intervenor's Motion to Compel because the motion ;
is untimely, the statements sought by that motion are ;
protected by the work product and attorney-client privileges and such privileges have not been waived. Furthermore, Intervenor's statements concerning communications between Mr. Mosbaugh and Mr. Aufdenkampe are inaccurate. ,
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II. BACKGROUND.
On May 4, 1993 Intervenor served Allen L. Mosbaugh's l First Set of Interrogatories to Georgia Power Company.
Interrogatory 54 therein requested that GPC "[ijdentify each conversation held on April 19, 1990 related to LER 90-006. . . [and) identify all documents which relate, in any manner, to the conversation."
In accordance with the Board's Memorandum and Order of f May 24, 1993 (reflecting an agreed upon schedule for discovery responses), GPC responded to Intervenor's l interrogatories on June 2, 1993.1/ In response to Interrogatory 54, GPC identified conversations involving a number of Plant Vogtle site personnel and corporate office personnel. GPC's Response at 53-54. GPC's Response j included a general objection to Intervenor's interrogatories j to the extent they requested the " identification, or disclosure, of those documents which are subject to the I
attorney work product doctrine or the attorney-client privilege." GPC's Response at 5-6.
4 On June 29, 1993 a meeting among counsel for the parties was held at GPC's request in Washington, D.C. to ,
II Egg Georgia Power Company's Response to Allen L.
Mosbaugh's First Set of Interrogatories, dated June 2, 1993 l
("GPC's Response").
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l discuss GPC's motion to compel Intervenor to respond to ,
discovery requesta. At this same meeting, Intervenor asked a few questions corcer ning several of GPC's responses to Intervenor's intersonatories. With respect to Intervenor's Interrogatory 54, Tnt =rvenor's counsel requested the identification of sjgned statements that Intervenor knew had been obtained from individuals with respect to the events of April 19, 1990 concerning LER 90-006. Although Intervenor had not filed a timely motion to compel with respect to GPC's Response in accordance with 10 C.F.R. S 2.740(f), GPC voluntarily agreed to identify, but not produce, the requested signed statements.
Thereafter, GPC identified four signed statements and i repeated its objection to producing such statements on grounds of the attorney work product doctrine and the attorney-client privilege.1/ GPC's Supplemental Response, ,
at 1-2, also explicitly stated:
In providing this supplemental response GPC does not waive any objections previously asserted. In addition, GPC has neither agreed to extend nor otherwise waived the time limitations i for filing motions to compel contained in 10 C.F.R. S 2.740(f). _
2/ See Georgia Power Company's First Supplemental Response ;
to Allen L. Mosbaugh's First Set of Interrogatories, dated. !
July 13, 1993 ("GPC's Supplemental Response"), at 6. -
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r Ten days after GPC served its Supplemental Response, Intervenor served on GPC's counsel, by hand delivery, its Motion to Compel production of the four affidavits identified by GPC.
III. ARGUMENT. ,
A. Intervenor's Motion To Compel Should Be Denied Because It Is Untimelv.
Intervenor's Motion to Compel, filed on July 23, 1993, is untimely because it was not filed within ten (10) days of the date of service of GPC's Response (June 2, 1993) as required by 10 C.F.R. S 2.740(f). Intervenor may consider its Motion to Compel timely based on the date of service of GPC's Supplemental Response. However, GPC submits that its supplemental response to an interrogatory does not justify Intervenor's untimely motion to compel document production. ,
The time for filing Intervenor's Motion to. Compel expired 15 days after GPC's Response was served, i.e. June 17, 1993.II Intervenor's Motion to Compel should not be considered timely solely because GPC voluntarily supplemented an interrogatory response. Such a result would discourage cooperation among the parties with respect to discovery.
Additionally, this is not an instance where a supplemental El This includes an additional five days allowed when service is by mail, pursuant to 10 C.F.R. S 2.710.
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response first alerted a party to the existence of a ;
discovery dispute. In this case, Intervenor already knew of the existence of the witness statements. Intervenor's Motion to Compel, at 2, indicates Intervenor'had been aware, since the time the statements were obtained, that GPC had obtained statements from persons who had participated in the !
April 19, 1990 telephone calls. .7 Because Intervenor's Motion to Compel is untimely, it should be denied.
B. The Four Signed Statements Are Protected From .
Disclosure By The Work Product Doctrine.
- The work product doctrine is embodied in 10 ;
C.F.R. S 2.740 (b) (2) and provides that "[a] party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b) (1) of this section and prepared in anticipation of or for the hearing by or for another party's representative . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial' equivalent of the materials by other means." This rule is adapted from Rule 26(b) (3) of the Federal Rules of Civil Procedure, which is itself derived from the holding of the United States Supreme Court in Hickman v. Tavlor, 329 U.S.
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I 495, 67 S.Ct. 385 (1947). Lona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), LBP 82-82, 16 NRC 1144, 1159 (1982). Although the holding in Hickman on'the issue of work product protection was not discussed in Intervenor's Motion to Compel, its applicability to this case is indisputable.
In Hickman, a tug boat sank and five of the nine crewmen drowned. Three days later, the owners of the tug retained a lawyer to defend them in whatever litigation might arise. Approximately one month after the tug sank, a public hearing was held before the United States Steamboat Inspectors, at which the four survivors testified. This testimony was recorded and made available to all interested parties. Shortly after this public hearing, the lawyer interviewed the survivors privately and obtained statements from them about the sinking, which they signed.
Several months after the sinking, a lawsuit was brought against the tug owners. During discovery, plaintiff requested production of the crewmen's statements and defendant objected. Although the Court found that the statements were not protected by the attorney-client privilege, it held that discovery of.these statements was not proper because they constituted the lawyer's work product.
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The burden was then on the party seeking discovery of this work product to establish adequate reasons to justify the production. The Court found that plaintiff's stated reason for seeking production of the statements -- that he wanted them-to help prepare himself to examine witnesses and make sure that he had overlooked nothing -- was an insufficient showing of necessity and justification for discovery. 329 U.S. at 512-13, 67 S.Ct. at 394-95. The Court noted that, in the process of discovery, all the pertinent facts in the possession of defendant's counsel had been made available to plaintiff.
A number of other cases have held that written statements given to a party's representative by_ witnesses, including employees of the client, are protected by the work product doctrine. See, e,q , Eoooolo v. National R.
Passenaer Corp., 108 F.R.D. 292 (E.D. Pa. 1985) (statements taken by claims agent from employees of defendant in anticipation of litigation were protected by Rule 26(b) (3));
see also Castle v. Sanoamo Weston. Inc., 744 F.2d 1464, 1466 ,
i (11th Cir. 1984) ("At the outset it should be noted that there is no question that these materials constitute the work product of the attorneys for the private plaintiffs; >
[t]hese materials consisted of witness statements and notes of interviews with witnesses. . . "); Unit?d States v. i 7-l l
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Chatham City Coro., 72 F.R.D. 640, 643 (S.D. Ga. 1976)
(" Rule 26(b) (3) creates a qualified immunity for work product documents prepared in anticipation of litigation.
It extends to statements of witnesses.").1/
It has also been held that material which has been prepared before a lawsuit was filed may still constitute material prepared in anticipation of litigation. "' Prudent parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test should be whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'" Long Island Lichtina Co., supra, at 1161 n. 15 auctina 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE:
CIVIL, S 2024, at 198-99 (1970); see also Kent Corp. v.
National Labor Relations Board, 530 F.2d 612, 623 (5th Cir.
1976), cert, denied, 429 U.S. 920, 97 S.Ct. 316 (whether the work product doctrine applies cannot properly be made to II "A few cases held that statements of witnesses taken by an attorney were not work product since they record the mental impressions and observations of the witness himself and not those of the attorney. Those cases could not be reconciled with the l Hickman decision itself, in which discovery was denied of statements of this type, and the great bulk of authority was that statements of witnesses taken by an attorney were work product."
8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL, S 2024, pp. 203-204 (1970).
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prospect of litigation was identifiable because of specific claims that had arisen, the work product was subject to a valid claim of privilege).
The work product doctrine has also been held to apply to documents prepared for a party tc the present litigation i
even though they were prepared for another wholly unrelated lawsuit. 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL, S 2024, p. 201 (1970).
GPC's legal counsel obtained signed statements from the four Plant Vogtle site or corporate office employeesE / in anticipation that GPC would be involved in litigation concerning the diesel generator starts issue raised by ,
Intervenor. At the time the statements were obtained, not ,
only was there a Section 2.206 petition pending before the NRC Staff, which included the diesel generator starts ,
allegation, but also, beginning in August 1990, GPC was put on notice that the NRC's Office of Investigations might-conduct an investigation of that issue. See, e.a., the NRC Staff's Motion to Stay Discovery in Mosbauch v. Georcia Power Co., DOL Case No. 90-ERA-58, attached as Exhibit 1.
When the statements were obtained, GPC reasonably >
I/ One of the employees, Mr. Aufdenkampe, has since transferred from Georgia Power Company to Southern Company Services, Inc.
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anticipated that either or both of those NRC activities ,
might lead to proposed enforcement actions against GPC. In that case, GPC will be afforded the right to a full adjudicatory hearing on the matter before the enforcement action is imposed. Heg 10 C.F.R. S 2.202.
Intervenor's Motion to Compel, at 2, asserts that the four statement obtained by GPC lost their work product protection when they were signed. Intervenor cites no authority for this novel proposition and GPC is aware of none. In Hickman, suora, the documents sought included signed statements and they were held to be subject to work product immunity.
Intervenor's Motion to Compel, at 2, also contends that the four statements "do not include the mental impressions
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of an attorney; and they are limited to factual statements ,
of persons who will most probably testify before [ sic] in this proceeding." The Court's decision in Hickman does not require a finding that the four statements include counsel's mental impressions (often referred to as " opinion work product"). Ordinary work product, such as written factual statements are entitled to protection under the doctrine announced in Hickman.
Of course, GPC cannot hide the facts from Intervenor simply because those facts have come to the attention of f
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i GPC's counsel. Intervenor is entitled to discovery of those facts in the possession of witnesses necessary to the i preparation of his case. Hickman, supra, 329 U.S. at 513, 67 S.Ct. at 394-95. What he is not entitled to is to use ,
the efforts of opposing counsel in order to help him prepare his case. Idz Production of the four statements is not necessary for Intervenor to obtain the facts in this case.
He is able to do so by requesting and reviewing documents ,
and by interviewing or deposing witnesses.
Intervenor's assertion that the four statements do not 4
include mental impressions of an attorney begs the question whether, in fact, the four statements reflect the mental impressions or legal theories of GPC's counsel. Were the answer "yes," such statements would be entitled to "special ;
protection." Unichn Co. v. United States, 449 U.S. 383, 400-01, 101 S.Ct. 677, 688 (1981). In that case, some !
courts would hold that no showing of necessity could overcome the work product protection. Id 2 GPC believes that, to some extent, the four statement do reflect the !
strategy of GPC's counsel in preparing the company's defense !
and, therefore, should be entitled to such special protection, i
The four statements which Intervenor seeks are attorney l work product and are protected from disclosure under 10 ;
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I C.F.R. S 2.740(b) (2) . Even assuming that such statements are not entitled to "special protection," they are still protected from disclosure because Intervenor has failed to demonstrate that he has satisfied the " substantial need test," discussed below.
C. Intervenor Does Not Have A Substantial Need For The Four Statements And He Can, Without Undue Hardship, Obtain The Substantial Equivalent Of The Statements By Other Means.
10 C.F.R. S 2.740(b)(2) provides that discovery of work product materials is available "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means" (hereinafter collectively referred to as the " substantial need test"). ,
In Chatham City Corp., supra, the court' held "the fact that written statements of prospective witnesses are relevant and would aid a party in preparing his case for trial does.not amount to ' good cause' for production thereof." 72.F.R.D. L at 643, citing, Guilford Nat'l Bank of Greensboro v. So, Railway Co., 297 F.2d 921 (4th Cir. 1962) . Moreover, "[t]he surmise or possibility that impeaching material in the l statements of the witnesses might be found does not justify a court to order inspection'thereof." 72 F.R.D. at 643,
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citing, Haucer v. Chicaco. Rock Island. & Pacific R. Co.,
216 F.2d 501 (7th Cir. 1954); J.H. Rutter Rex Manufacturina Co.. Inc. v. N.L.R.B., 473 F.2d 223, 234-35 (5th Cir. 1973),
cert, denied, 414 U.S. 822, 94 S.Ct. 120; Dincler v. Halevon Liin N.V., 50 F.R.D. 211, 212 (E.D. Pa. 1970).
Many courts have held that witness statements taken by a party's attorney are protected by the work product doctrine and substantial need is D21 shown where the party i seeking discovery could have obtained the information by deposing the witnesses. See Castle, supra, 744 F.2d at 1467; ID Ig International Systems & Controls Corp., 693 F.2d 1235, 1240 (5th Cir. 1982); Howard v. Seaboard Coastline R. ;
Co., 60 F.R.D. 638, 639 (N.D. Ga. 1973) (no substantial need was shown even though plaintiff alleged that the witnesses who gave the statements were employees of the defendant and reluctant to give testimony, and that the whereabouts of !
some of the witnesses were unknown; the court denied the plaintiff's discovery motion finding that the witnesses were accessible and plaintiff had shown no effort to obtain the information other than the filing of a motion to produce);
Eoooolo, supra, 108 F.R.D. at 295. (court held that plaintiff had not shown substantial need to obtain statements of witnesses when plaintiff offered no more than mere surmise and conjecture that the statements taken some e
. l time ago would be more accurate and truthful than the information now sought from the defendant's employees; court ,
held that plaintiff should first obtain a list of witnesses ,
to the accident and then depose them; should the witnesse_s be unable to recollect the events, then plaintiff would have satisfied the requirements of the " substantial need test").
Intarvenor cannot satisfy the " substantial need test" with respect to the four statements. He is free to take the depositions of the named individuals and he is free to inquire about their knowledge of the facts concerning the ,
events on April 19, 1990 related to the diesel starts information included in the LER 90-006. In this regard, he may also question those individuals about prior statements >
which they or GPC has made on that issue which are available Moreover, Intervenor has actual recordings f to Intervenor.
of the telephone calls at issue. There simply is no legitimate basis for Intervenor to claim that the four statements are essential for him to discover the relevant i facts in this case.
Intervenor's main argument appears to be that he ,
believes the statements contain false assertions and may therefore constitute " essential evidence" relating to "a practice and pattern of making up false assertions."
Intervenor's Motion to Compel at 7-8. This argument reveals 4
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l that Intervenor is not interested in the discovery of facts, but wants to fish for other statements in the hope of identifying inconsistences with tape recordings he long withheld. !
This is not a proper justification for production of the statements. The statements were not submitted to NRC or anyone else, and cannot possibly evidence any practice of being misleading. To the extent that any of the factual information contained in the statements was submitted to the NRC, it has already been made available to Intervenor.
Intervenor may also want the four statements for the purpose of impeaching the credibility of witnesses. As discussed earlier, the possibility that attorney work product could be ,
used to impeach the credibility of witnesses has been expressly held insufficient to satisfy the " substantial need test." Intervenor should prepare his case using his own efforts.
Moreover, Intervenor's suggestion that the signed statements may contain false assertions is based on inaccurate representations. Intervenor represents that Mr. Aufdenkampe advised Mr. Mosbaugh that he had initially refused to sign the affidavit because it contained false information, and that he had been " hounded" or pressured to sign it. Motion to Compel at 2, 7. Mr. Aufdenkampe has !
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reviewed these assertions and has informed GPC that they are not true.
The inaccuracy of Intervenor's representations is confirmed by the July 30, 1993 letter from Intervenor's counsel. Therein, Intervenor's counsel "clarif[ies]" an
" ambiguity" in the representation that Mr. Aufdenkampe
" allowed" Mr. Mosbaugh to physically review a copy of the signed statement. Intervenor's clarification of the word
" allowed" is that it was Mr. Aufdenkampe's wife, not Mr.
Aufdenkampe, who allegedly let Mr. Mosbaugh review the signed statement, and it was she who allegedly expressed concern over pressure concerning the statement.
In sum, Intervenor's suggestion that the signed statements may contain false assertions is based on hearsay and innuendo at best, and misrepresentation at worst.1/
Invasion of GPC's attorney work product should not be permitted on such basis.
EIThe inaccurate statements in Intervenor's Motion to Compel are not the first misrepresentations by Intervenor in this ,
proceeding. Intervenor has previously misrepresented facts asserted in support of standing, and later misrepresented facts concerning preparation of the six tapes. GPC is extremely <
concerned with the succession of prejudicial, inaccurate and ;
misleading statements in Intervenor's pleadings, and asks that the Board caution Intervenor that further misrepresentations could result in sanctions including dismissal.
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D. The Four Signed Statements Are Also Protected From Disclosure By The Attornev-Client Privilece. -
The United States Supreme Court has held that, when the client is a corporation, the attorney-client privilege ,
applies to communications by any corporate employee ,
i regardless of position when the communications concern matters within the scope of the employee's corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation. Unichn Co. v. United States, 449 U.S. 383, 396-97, 101 S.Ct. 677, 685-86 (1981); see also Admiral Ins.
Co. v. United States Dist. Court, 881 F.2d 1486, 1492 (9th Cir. 1989). The Court in Unichn declined to establish an i
all-encompassing test for application of the attorney-client >
i privilege to corporations. Instead, it held that each case must be evaluated to determine whether application of the privilege would further its underlying purposes of !
encouraging candid communications between client and counsel ,
and providing effective representation of counsel. Unichn,
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suora, 449 U.S. at 389, 390-91, 396-97, 101 S.Ct. at 682-86.
Applying these principles to the instant case, GPC ,
submits that the attorney-client privilege should be t
extended to the four statements. Here, as in Unichn, the ;
statements concern matters within the scope of the l
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individuals' corporate duties and the individuals were aware that they were being questioned for the purpose of providing legal advice to the company. Furthermore, as in Unichn, the individuals are available for questioning on the facts at issue in this proceeding.
Intervenor's Motion to Compel, at 5, contends that the attorney-client privilege "'does not protect against discovery of underlying facts from their source, merely because those facts have been communicated to an attorney.'"
nuotina Lona Island Lichtina Co., supra, which was quoted by the Board in its June 24, 1993 order (LBP 93-11). GPC doss not dispute this proposition. However, it does not provide support for Intervenor's claim that he should be given copies of the four statements. It only provides that Intervenor is entitled to discover the facts. This he can do by using the full range of discovery methods available to him, including depositions of the individuals who signed the four statements, and without having access to the four )
statements themselves.1/
1/ Intervenor's Motion to Compel, at 5-6, also relies on the case of Diamond v. City of Mobile, 86 F.R.D. 324 (S.D. Ala.
1978). This is a United States District Court case which precedes Unichn and, therefore, is not controlling here.
Furthermore, that case is distinguishable because it involved i statements taken during an internal police department investigation which were later turned over to the city attorney.
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E. The Protected Status Of The Four Statements Was Not Waived By The Actions Of Mr. Aufdenkamoe.
Intervenor's Motion to Compel, at 6-7, alleges that certain communications between Mr. Aufdenkampe and Mr. Mosbaugh occurred which " work to waive any legitimate claim of privilege GPC could_otherwise raise." Intervenor's motion misses the mark for a number of reasons.
First, neither Mr. Aufdenkampe nor his wife have the power to waive C?C': rights under the work product doctrine or attorney-client privilege. Commodity Futures Tradino Comm'n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 1991 (1985) (when the client is a corporation, the power to waive the attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors); ID re Grand Jurv Subpoenas. 89-3 and 89-4. John Doe 89-129 v. Under Seal, 902 F.2d 244, 248 (4th Cir. 1990)
(extending Weintraub to a case involving both the attorney-client privilege and the work product doctrine).
Second, the courts have also held that a waiver'does not occur due to the mere discussion of facts which were the subject of a communication which is subject to the work product doctrine. Charles Woods Television Corp. v. Capital Cities /ABC. Inc., 869 F.2d 1155, 1162 (8th Cir. 1989) cert.
l denied, 493 U.S. 848, 110 S.Ct. 145 (1989).
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Third, even if work product protection was waived for Mr. Aufdenkampe's statement by it being shown to Mr. Mosbaugh, which GPC disputes, such action would not waive the protected status of the statements of other individuals. The work-product doctrine seeks to protect the mental processes of the attorney in preparing his client's case, assembling information, sifting what he considers relevant from the irrelevant facts, and preparing his legal theories and strategies without interference. HickmaD, supra, 329 U.S. at 510, 511, 67 S.Ct. at 393. Like other qualified privileges, the work-product doctrine may be waived. However, because of the strong policy supporting the work-product doctrine, i.e., promoting and maintaining a healthy adversary system (In Re Sealed Case, 676 F.2d 798, 818 (D.C. Cir. 1982)), courts are reluctant to find an implied waiver of all documents somehow related to a i
specific subject matter when one of the protected documents is either voluntarily or inadvertently disclosed to the opposing party. Duplan Coro. v. Deerina Milliken. Inc., 540 F.2d 1215, 1222 (4th Cir. 1976).El In United States v.
U Se.e also 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL, S 2024, p. 209 (1970) ("[D]isclosure of some documents aoes not destroy work-product protection for other '
documents of the same character.").
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Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975), the court found j a waiver of the work-product doctrine but only because the party asserting the doctrine's protection had first sought 1
to make affirmative testimonial use of the very work-product. Moreover, the Court's decision to uphold the waiver was based on the fact that the District Court limited the scope of disclosure of the document in question to only that information that was directly related to the proffered testimony. 1d1 at 240, 241, 95 S.Ct. at 2171.
Finally, GPC submits that Intervenor has intentionally distorted the facts in order to paint an inaccurate and misleading picture of communications Mr. Mosbaugh has had with Mr. Aufdenkampe.
Contrary to Intervenor's assertion, to the best of ,
Mr. Aufdenkampe's recollection, the facts are as follows:
(1) he may have mentioned to Mr. Mosbaugh that he had been asked to sign a statement, (2) he may have mentioned to Mr.
Mosbaugh that he remembered Mr. Hairston being a participant on the earlier portion of an April 19, 1990 conference call, (3) he did D21 advise Mr. Mosbaugh that he " refused to sign the affidavit prepared by GPC's counsel," (although a few wording changes were incorporated into an initial draft at his request), (4) he did H21 advise Mr. Mosbaugh that he had conversations with GPC counsel as to why he should sign the 4
i earlier draft of his statement (such a conversation did not ,
occur), and (5) he did D21 allow Mr. Mosbaugh to physically review his statement, whether in draft or final form. In addition, Mr. Aufdenkampe discussed Intervenor's July 30, 1993 letter with his wife and he reports that she does not recall ever allowing Mr. Mosbaugh to review Mr. Aufdenkampe's draft or final statements. ,
Furthermore, GPC and Mr. Aufdenkampe object to f Intervenor's characterization that Mr. Aufdenkampe was
" hounded" or in any way pressured by GPC or its legal ,
counsel into signing a statement. Mr. Aufdenkampe did so willingly because it was, and still is, his opinion that Mr. Mosbaugh's allegation -- that GPC knowingly and wilfully submitted false information to the NRC in LER 90-006 -- is l D21 true. ,
IV. CONCLUSION.
For the foregoing reasons, GPC respectfully requests [
that the Board deny Intervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Company, dated July 23, 1993.
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t Respec lly- su 'tted, ,- -
/ t Ad' i hn'LambeYski ,
TROUTMAN' SANDERS ;
i Suite 5200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216- !
(404) 885-3360 P
Ernest L. Blake, Jr.', Esq. ,
David R. Lewis, Esq. ;
i SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, NW Washington, DC 20037 i (202) 663-8084 -t i
Counsel for Georgia Power f Company !
Dated: August 2, 1993.
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UNITED STATES OF AMERICA
'93 Aug -4 P 3.q6 .- ;
NUCLEAR REGULATORY COMMISSION l BEFORE THE ATOMIC SAFETY AND LICENSING BOARD' ;
In the Matter of
- GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 '
at al.
- 50-425-OLA-3 (Vogtle Electric
- Re: License Amendment ;
Generating Plant, * (Transfer to Southern l Units 1 and 2)
- Nuclear) i
- l ASLBP No. 93-671-01-OLA-3 i
CERTIFICATE OF SERVICE This is to certify that copies of the within and fore-I going " Georgia Pover Company's Response to Intervenor's '
i Hotion to Compel Production of Affidavits" were served on all those listed on the attached service list by depositing f same with the an overnight express mail delivery service.
This is the 2nd day of August, 199 l l
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J Lambersfi f .
I ROUTMAN SANDERS ;
Suite 5200 !
600 Peachtree Street, N.E. l Atlanta, GA 30308-2216 t (404) 885-3360 l t
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4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
- GEORGIA POWER COMPANY,
- Docket Nos. 50-424-OLA-3 et al.
- 50-425-OLA-3 i (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 i Commission '
Washington, D.C. 20555 Director, i 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 r Adjudication One White Flint North 11555 Rockville Pike Rockville, MD 20852 ATTENTION: Docketing and '
Service Branch
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U.S. DEPARTMENT OF LABOR ,"
OFFICE OF ADMINISTRATIVE LAW JUDGES ;
Allen Mesbaugh, :
- v. : Case No. 90-ERA-58 Georgia Power Co. :
5 MOTION TO STAY DISCOVERY The Nuclear Regulatory Commission ("NRC" or " Commission"), i hereby noves to stay discovery in the above captioned proceeding, ;
to the extent described herein. The NRC has'information that the Complainant has in his poscession various tape recordings involving conversations between himself and others including, but not limited to, e=ployees and officers of Respondent. As more fully set out in the Declaration of Larry L. Robinson,1 filed this day with this Tribunal, the NRC has just learned of the existence of these tape recordings. The NRC has reasonable cause :l to believe that these recordings may contain material which is evidence in an ongoing NRC investigation into possible violations of NRC Regulations which are enacted to protect the public health and safety. The NRC also has reasonable cause to believe tnat relance of any or all of these tape recordings to the Respondent could compromise the NRC's investigation.
The Complainant has agread to provide these recordings to I Mr. Robinson is an Investigator with the NRC's Office of ;
Investigations ("oI").
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the linc in their entirety. The NRC will expeditiously review thema =aterials and provide this Tribunal with a detailed ctatement describing the number and nature of the recordings, if any, which it wishes this Tribunal to protect from discovery.
Accordingly, the NRC respectfully requests this Tribunal to stay any orders compelling discovery to the extent that the
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Cor.plainant not be compelled to produce for discovery to Respondent various tape recordings of conversations regarding incidents involving the voegle Electric Power Station, owned by the Georgia Power Company.
Respectfully submitted, Y n F F. CORDES,'JR.
licitor
'CKARLES E. LLINS Attorney Office of he General Counsel U.S. Nuc1 ar Regulatory commission Washingte , D.C. 20555 DATED: Sect. 13, 1990 (301) 492-1606
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- Michael D. Kohn, Esq.
Jesse Shaudies, Esq.
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DECLARAy!ON OF LARRY L. PDBlhSON and
- I, Larry L. Robinnen, do hereby deciere that tne f olle=ing is true correct, under penalty of perjury, to in* test of sy ability.
! as esployed as an Investigator with the
- 1. My name is Larry L. Robtnson. My Of fice of Investigations. United States Nuclear Regulatory Consission.
duties include the conduct of investigations of licensees, applicants, their contractors or vendors, including the investigation of all allegations of wrongdoing by other than NRC espicyses and contractors.
- 2. I sake these statseents based upon ay own personal knowledge, or upon knowledge obtained by se during the course of my espicyeent, and is reljed upon by se in the perforsance of my official duties.
- 3. The Office of Investigations (01), Region !! (RIII, NRC, currently has two pending investigations regarding allegations of intentional wrongdoing on the part of Beergia Power Company (GPC) Managers at the Vogtle Elsetric Benerating Plant (VEBP), These investigations basically involve a!!agations of deliberate violations of Technical Specifications, and Material False Statearnts. If these allegations are substantiated, they could constitute violations of NRC regulations enacted to protect the public health and saf ety.
In addition, a recent Special Inspection, conducted by NRC at VE6P during the period August 6-17, 1990, addressed additional related allegations of wrongdoing by 6PC Managssent at VESP that will, in all likelihood, be referred to 01 in the near future.
- 4. On Septesber 12, 1990, Stephen Kohn, of the Law Offices of Kohn, Kohn, and Colapinto, telephoned as and advised se that their client, Allen L. Mosbaugh,
' a SPC esployee at VEBP, was in possession of audio tape recordings that he, Mosbaugh, had made of conversations with VE6P Managers that say be pertiner.t s" to the ongoing NAC investigations /Special Inspection. Kohn advised se that Mosbaugh had been officially ordered to turn these tapes over to the Law Of fices of Troutsan, Sanders Lockersan, and Ashaore, representatives of EPC in a Departaent of Labor (DDL) Case, No. 90-ERA-58, initiated by Mosbaugh.
Kohn stated that his understanding was that Mosbaugh was going to have to turn over these tapes on Sept. 13, 1990.
- 5. Allen L. Mosbaugh had been interviewed by se on February 8,1990, during the course of sy investigation of one of the aforenentioned allegations.
- 6. On September 12, 1990, I telephoned Mosbaugh, and he verified that he did sake such tape recordings, that he was in posseselon rf thea, that he had been ordered by a DOL Administrative Law Judge to turn thes over to the Troutsen, Sanders Law Fire. Mosbaugh told se that, in his opinion, some of these tapes show evidence of intentional wrongdoing on the part of 6PC Managesent at VESP, and GPC Managesent at the offices of SONOPC0 Project, Birminghas Alabasa, in connection with the allegations in the ongoing O! investigations and the Special Inspection.
- 7. Also on September 12, 1990, in response to ay sessage Michael Kohn, also with the Law Fire of Kohn, Kohn, and Colapinto, telephoned se at ay residence and advised se that his client, Mosbaugh, per an order free DOL Adelnistrative Law Judge Bernard J. Bilday, Jr., was required to turn over the tapes to the
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- GPC attorneys b'y stdnight, September 13, 1990, hachael Kohn said that he na: I not been able to persor. ally revisw:all the tapes, but that it was his understanding f ree conversatinns witn him client that there was evidence of wrongdoing on the cart of GPC Management. pertaining to the ongoing investigation /Special Inspection issues, contained in the conversations on the tapes. Kohn stated that his client would be willing to turn the tapes over to "
NRC for review for evidentiary purposes. Kohn stated that he would prefer to have the NRC subpoena the tapes.
i these
- 8. The Office of Investigations has reasonable cause to believe that 4
J tapes contain direct evidence of intentional violations of regulatory requirements by 6PC personnel that pertains to ongoing NRC investigations / inspections.
- 9. 01 has reasonable cause to believe that the review of these tapes by 6PC ;
personnel, or their representatives, prior to the completion of the ,
af oresentioned investigations, would severely coeproeise the integrity of these investigaticas.
Further, declarant sayeth naught. :
_j Dated this 13th day of September,1990 at Atlanta, Georgia.
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LarryV[ Robinson .i, L
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