ML20057B023

Memorandum & Order (Discovery Motion).* W/Certificate of Svc.Served on 930909

ML20057B023
Person / Time
Site:	Vogtle
Issue date:	09/08/1993
From:	Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#393-14289 93-671-01-OLA-3, 93-671-1-OLA-3, LBP-93-18, OLA-3, NUDOCS 9309170074
Download: ML20057B023 (11)

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1 c~ /h 93 -9 ll LBP-93-18 September 8, 1993 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g.g ,rgy _ g g ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy 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)

Plant, Units 1 and 2)

ASLBP No. 93-671-01-OLA-3 MEMORANDUM AND ORDER (Discovery Motion)

The purpose of this Memorandum and Order is to rule on a notion to compel filed by Intervenor on July 23, 1993.2 2

Intervenor is Allen L. Mosbaugh. The relevant filings are Intervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Company (GPC), July 23, 1993 (Intervenor's Motion to Compel), and Georgia Power Company's Response to Intervenor's Motion to Compel Produc- l tion of Affidavits, August 2, 1993 (GPC Response). l We note that there is one other pending motion to compel: Intervenor's Motion to Compel Answers to Interrogatories and Document Requests by the Staff of the U.S. Nuclear Regulatory Commission, July 12, 1993. However, we have been informed by the Staff (NRC Staff Report on outstanding Discovery Matters, August 9, 1993, at 2), that this motion is under negotiation. We request Intervenor and Staff to notify us promptly if those negotiations end or if the parties determine that the Intervenor's needs have been adequately satisfied.

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I. Background i ,

The documents sought by Intervenor through this motion

, are signed statements of John Aufdenkampe, Thomas Webb, Jack Stringfellow and George Hairston - all GPC employees at the

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time. The statements relate to conversations held on April 19, 1990, about LER 90-006, which Intervenor alleges was inaccurate when it was filed with the Nuclear Regulatory 1 Commission (NRC). These affidavits were obtained at a time.

when GPC could reasonably anticipate enforcement action  !

against it.2 f e

II. l Legal Setting  !

l GPC claims that the affidavits in question are not dis-j coverable because they are protected by the attorney work a

product privilege and the . attorney-client privilege. For  ;

- reasons set forth below, we accept, at. this time, both  !

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claims for privilege.

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2 GPC's First Supplemental Response to Allen L. I Mosbaugh's First Set of Interrogatories, July 13, 1993 (GPC l Supplement) at 6, omits any mention of the date of the i

interviews with its four- employees.. Similarly, GPC's Response does not appear to contain any date for these

! interviews. We think.this ambiguity in our record shcold be l

j clarified as there is no reason to consider the date privileged.

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l A. Work Product Privilege 3 l 1

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 i obtain discovery of documents and tangible things  !

otherwise discoverable under paragraph (b) (1) of l this section and prepared in anticipation of or for the hearing by or for another party's repre- ,

sentative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon s a showing - that. the party seeking discovery has 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- l valent of the materials by other means. In i ordering discovery of such materials when the required showing has been made, the presiding l officer shall protect against disclosure of the  !

mental imprescions, conclusions, opinions, or  ;

legal theories of an attorney or other repre- i sentative of a party concerning the proceeding. l t

These rules are adapted from Rule 26 (b) (3) of the  ;

Federal Rules of Civil Procedure, Commonwealth Edison Com- i pany (Zion Station, Units 1 and 2) , ALAB-196, 7 AEC ' 4 57, 460  !

(1974), which is itself a derivation of the Supreme Court's t decision in Hickman v. Tavlor, 329 U.S. 495 (1947). F_qq ,

Advisory Committee Note to 1970 Amendments to Fed. R. Civ. I t

Proc., 48 F.R.D. 459, 499'(1970).

The affidavits in question were prepared in antici-  !

pation of a hearing. At the time, a S 2.206-Petition was  !

L pending. Also,.GPC had information that there might be an [

investigation by the NRC Office of Investigations. Hence, i 2

The beginning of this section of our Memorandum is drawn from our opinion in LBP-93-11, 37 NRC (June 24, l 1993), slip op at.6-7. I

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it reasonably believed that there would be some form of  ;

i enforcement litigation for which the affidavits might be j necessary.' The affidavits are, therefore, covered by the i i

work product privilege.

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l B. Attorney-Client Privilege' [

We accept the following statement of GPC as accurately setting forth the law concerning the attorney-client .

privilege:5  !

The United States Supreme Court has held  :

that, when the client is a corporation, the attor- l 3 ney-client privilege applies to communications by l any corporate employee regardless of position when i 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. Cp_pra, 881 F.2d 1486, 1492 (9th Cit. l 1989). .The Court in Unichn declined to establish i an all-encompassing test for. application of the I attorney-client' privilege to corporations. In-  :

stead, it held that each case must be evaluated to determine whether application of the privilege  !

would further its underlying purposes of encourag- j ing candid communications between client and coun-  :

i sel and providing _ effective representation of counsel'. Uoichn, sunra, 449 U.S. at 389, 390-91,  !

1- 396-97, 101 S. Ct. at 682-86.'  !

It is important to understand that Unichn resolved an.  !

l issue that had been dividing the courts of appeals: whether i i

'GPC Response at 9-10.

5 GPC Response at 17.

< 'See also Duke Power Co. (Catawba Nuclear Station, Units

) 1 and 2), CLI-83-31, 18 NRC 1303. 1305 (1983).

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or not to extend the protection of the attorney-client privilege only to a " control group" in a corporation or to all employees acting within the scope of their duties.

Uoichn took.this second, enlarged view of the privilege.

In the course of its opinion, at 449 U.S. 390, 66 L. Ed 2d 592, the Court stated:

[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the.

lawyer to enable him to give sound and informed advice. . . .

Then, at 449 U.S. 391-2, 66 L Ed 2d 592-3, the Court quotes Diversified Industries. Inc. v. figredith, 572 F2d 596 (CA8 1978) (en banc):

In a corporation, it may be necessary to glean in-formation relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a

, complex legal problem "is thus faced with a ' Hob-l son's choice'. If he interviews employees not I

having 'the very highest authority', their commu-nications to him will.not be privileged. 'If, on the other hand, he interviews only those employees with *the very highest authority *, he may find it extremely difficult, if not impossible, to determine what happened.'" . . .

Applied to this case, the Board thinks of management's Hobson's choice slightly differently, but we nevertheless conclude that the privilege applies. Management may decide it.wants to investigate a problem and ascertain the truth.

It may need to ask very probing questions. To encourage this kind of appropriate management action, in a complex regulatory setting in which an enforcement actions was reasonably foreseeable, GPC used its lawyers. It is

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appropriate that these professionals should be given as much information as possible without having to risk public  :

I disclosure of their work. The attorney-client privilege  !

protects this activity, and the company need not later l

reveal the affidavits it compiled. (Needless to say, it is !

only the affidavits that are protected and not the under-lying facts, which are certainly discoverable. Unichn at 449 US 395-6, 66 L Ed 2d 595.)

i In this instance, GPC's employees spoke to GPC's lawyer  ;

concerning an important safety event. It was the lawyers' job to represent their employer, to ascertain the truth, and I to disclose the truth as perceived by GPC. It is the pur-pose of the attorney-client privilege to provide the condi-l tions under which employees may talk freely to the company ,

I attorney.  :

We therefore hold that these documents are covered by j the attorney / client privilege. f C. Limitations on the Privileges There is one more complication to this situation. This arises because Intervenor asserts that some or all of these  ;

individuals may-have been " hounded" or otherwise pressured  :

to sign these affidavits.7 This mere assertion, not demon-strated at a hearing, is not sufficient to overcome the attorney-client privilege or the attorney work-product pri-

'Intervenor's Motion to Compcl at 2. j i

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vilege. However, if Intervenor proved that fact at hearing,-  ;

we could be persuaded to release the affidavits at that 2

time. Unichn at 449 US 396, 66 L Ed 2d 595, citing Federal  ;

Rule of Evidence 501 and S. Rep No. 93-1277, p. 13 l l

(1974)("the recognition of a privilege based on a  ;

i confidential relationship . . . should be determined-on a i case-by-case basis"). Ipxas Utilities Electric Co.

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(Comanche Peak Steam Electric Station, Units 1 and 2), LBP- l i

84-50, 20 NRC 1464, 1468-69 (1984), citing Rule 1.7 of the  !

ABA Model Rules of Professional Conduct. ,

III. Timeliness  !

In its response to Intervenor's Motion to Compel, GPC i

claimed that the request to compel production of these 4

documents is untimely and should be prohibited. Under NRC j s rules, Intervenor has no automatic right to reply to this-

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claim in order to defend its timeliness. However, a reply will not be necessary because it appears to the Board that the documents being sought are suf ficiently important that' we will j i

not deny them to Intervenor on the ground of untimeliness, on '

the other hand, we caution all the parties to be timely, as-  !

the Board has the authority to penalize untimeliness in .

appropriate ways.  !

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IV. Waiver i Intervenor's claim to waiver of the attorney-client

, privilege is based entirely on attorney statements concerning actions by Mr. Aufdenkampe.a These statements are not  ;

supported by affidavits. They are - contradicted by GPC's  !

i attorney.' So we find that there is insufficien -idence to j persuade us of the facts alleged to lead to waiver. Further- l more, as counsel for GPC points out, when the client is a cor- l l

-poration, the power to waive the attorney-client privilege  ;

i l' rests with the corporation's. management and is normally exer-  ;

cised by its officers and directors.2 In re Gral)f Jury Sub-noenas, 89-3 and 89-4. John Doe 89-129 v. Under Seal, 902 F.

1 2d 244, 248 (4th Cir. 1990).

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I V. ORDER  !

For all the foregoing reasons 2nd upon consideration of l

the entire record in this matter, it is this 8th day of September, 1993, ORDERED, that:  ;

! e Allen L. Mosbaugh's Motion to Compel is denied.

t e At any hearing in this-matter, Georgia Power Com-t i

pany shall have available for production the affi- t davits covered by the Motion to Compel. .

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8 l Intervenor's Motion to Compel at 7. ,

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'GPC Response at 21-22. [

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GPC Response at 19.

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e e GPC shall promptly file in this docket the date on which each of the affidavits mentioned in the previous paragraph was taken. -

THE ATOMIC SAFETY AND LICENSING BOARD W- ~~

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ames H. ' Carpsntdyr '~~ O

,,dministrative Judge.

A w ao l @ f Thomas D. Murphy #

Administrative Judge

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Peter D. Bloch Chair ,

l Bethesda, Maryland 3

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0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Mat;er 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&O (LBP-93-18) DTD 9/8/93 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 Conmission 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 i i

Administrative Judge Administrative Judge Thomas D. Murphy. James H. Carpenter Atomic Safety and Licensing' Board 933 Green Point Drive, Oyster Point.

U.S. Nuclear Regulatory Commission Sunset Beach, NC- 28468 l Washington, DC 20555 l l

Mitzi A. Young, Esq. John Lamberski, Esq.  !

Office of the General Counsel Counsel for Georgia Power Company l U.S. Nuclear Regulatory Commission Troutman Sanders )

Washington, DC 20555 Suite 5200, 600 Peachtree Street, N.E. i Atlanta, GA 30308 1

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 l

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B Dccketlio.(s)50-424/425-OLA-3

• LB M&O (LBP-93-18) DTD 9/8/93 I

C . - K. McCoy l V. President fluclear, Vogtle- Project  :

Georgia Power' Company  !'

Post Office Box 1295 Birmingham, AL 35201 l Dated at Rockville, Md. this 9 day of September 1993 Office of t F Secretary of the Commission-  !

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