ML20062G133
| ML20062G133 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/28/1978 |
| From: | Like I SUFFOLK COUNTY, NY |
| To: | |
| References | |
| NUDOCS 7812260322 | |
| Download: ML20062G133 (5) | |
Text
.
REl i1ED co.anC.TONDENCE NRC PUBLIC DCCU'1ENT ROOM 8 /.g,
\\
UNITED STATES OF AMERICA 6
ogg NUCLEAR REGULATORY COMMISSION g],9 $
TA [ 3 Before the Atomic Safety an Licensing Boa v
os P
In the Matter of
)
W
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322
)
1 (Shoreham N2 clear Power. Station
)
Unit 1)
)
,j.,,
MOTION TO COMPEL l.
By motion dated October 30, 1978, suffolk County-(
sought production of all documents that reflect communications between General Electric and LILCO, or their agents, regarding the Reed Report.
2.
Applicant and. General Electric admit that such documents exist but claim they are " trial preparation materials" within the meaning of 10 CFR 82.740(b)(2), and are thus not discoverable absent a showing of substantial need by the
{
County.
See, " Applicant's Reply to SC's Request #2 for Produc-tion of Documents" (11/17/78).
3 The burden of making a showing of substantial need rests on the party seeking discovery only in the event the requested material is "... prepared in anticipation of or for the hearing..." 10 CFR, 52.740(b)(2).
See also, FRCP, Rule 26
("... prepared in anticipation of litigation or for trial...").
I 78122603 P
.,s In this instance, Applicant's attempt to prevent disclosure of all communications between itself and G.E. relating to the Reed Report by labelling such' documents, without further elabora-tion, as " trial preparation material", appears to be an improper invocation of 10 CFR 82 740(b)(2).
The purpose of this seciton is to provide additional protection against unjustified discovery of the " work product of the lawyer".
See, Hickman v. Taylor, 329 U.S. 495 (1947); Moore's Federal Practice, Vol. 4, para.
26.63(8).
But the County is seeking here to discover communi-cations made in the regular course of business which would reveal whether, how, and to what extent the Applicant considered, evalu
)
ted, and/or resolved the findings of the Reed Report as regards the technical integrity of the Shoreham plant's operation.
It is hard to imagine that communications of this kind were specifi-cally prepared in contemplation of, or, as preparation for the hearings now pending.
Lest an untoward precedent be set in these proceedings that would allow Applicant to avoid production of other-wise relevant and discoverable documents simply by casting same as"trialpreparationmaterial",Applicantshouldberequiredto) make some further showing that all of these documents were in i
fact prepared in preparation for these hearings before'the Board permits the burden of justifying their production to shift to the County.
See Technocraph, Inc. v.-Texas Instruments, Inc.
43 FRD 416 (S.D.N.Y. 1967)(documents prepared by plaintiff's patent litigation counsel are discoverable absent showing by __
by affidavit or his own testimony.that the documents were prepared in contemplation of litigation).
t 4.
Even assuming arguendo that Applicant has properly I
invoked 10 CFR 82.740(b)(2), the County's request for discovery fully' meets the test set forth in that regulation.
It provides, in pertinent part:
"A party may obtain discovery of documents and tangible things...only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of
, ~ '
his case and that he is unable without undue hardship to'obtain the substantial equivalent of the material by other means..." ~
The County has contended in these proceedings that the Applicant (and Staff) has inadequately assessed the impact of the 27 safety-related items contained in the Reed Report on Shoreham's system, structures and components. See, County of Suffolk's Amended Petition to Intervene (9/16/77), Conten-tion 3a; County of Suffolk's Amended Contentions and Legal Arguments (11/10/77), Contention 3a, pp. 5, 12.
Obviously the County will be unable to fully particularize this contention, as per the Board's direction, unless it is given access to those
' documents which record how and to wha't extent the Applicant has responded to the findings of the Reed Report as regards the Shoreham design.
Just as obviously there is no alternative means by which the County can obtain this information.
Under any fair.
w
.- ~. ;
s o-
~.
)
'\\
' \\, \\
- ~,
i reading of 10 CFR, 82 740(2)(b), the County is entitled to
, Q:-
the production of the requested documents.
- s -
l
~,
,a.
On the basis of the foregoing the County respectfully requests that:
(a)
Applicant be r'equired to make some furthei '
showing that the materials sought to be discovered by the Counth constitute. " trial preparation materials" as would warrant appli '
cation of 10 CFR, 62 710(2)(b) ; and (b)
Upon such a showing,
~
Appl 1 cant be compelled, pursuant to 10 CFR, 52.740(f), to
'-4
\\
s, sa produce the documents described in the " County of Suffolic's
~.g. '
Request #2 for the Production of Documents to the Applicant",
dated October 30, 1978.
,\\\\
Respectfully Submitted; WJ Irvin Like Special Counsel for the County of Suffolk Dated:
November 28, 1978.
N e
4
['
. t_
g
_c (g
cv
?A1 g
A r
s 2
e
~w--.<
_A.
l h'
' '+
N
~-
UNITED STATES OF AftERICA
'IUCLEAR REGULATORY COMMISSION
- W i-.., C Q:ng g g D_
\\
~
y k,
'x Befor? the Atomic Safety.and Licensine Board Ncs
\\' y
\\-~
s
,;f IV n,'
i j
3 p
.j In' tfie Nat'ter of T 4
'/' \\
LONG I5 LAND LIGHTING COMPANY 6 7
ac ke t. No. 50-322 o
e N
)
\\
k l
(Shorehani NucHear Power Stat 9
Unit 1)
I j
CER_TIFICATc,
?.-
CE I hereby cert'
' hat copies of COUNTY OF SUFFOLK'S i w MO ION TO COMPEL were o the following by firs:;-class, postage
_ ^
prepaid mail on Novembe.. 48, 1978:
4 <
s' s
-[ Elizabeth S. Bowers, eq.
m Edward J. Walsh, Esq.
w w
Chairman
~
Long Island Lighting Company s,
Atomic Safety & L'1censfn5 Bo;rd 250 Old Country Road I,
U.S. Nuclear Regulatory Comm.
Mineola, New York 11501
?
Washingbon,ND.C.
20555 W. Taylor Reveley, III, Esq.
Dre Oscar Paris, Member Hunton & Williams f
Atomic Sa.fety & Licensing 3oapd P.O. Lox 1535 h
U.S. Nuclear Regulaaor'y Com. s
~
Richmond, Virginia 2321?
~
Washington, D.C.
20555 i
Jeffrey C. Cohen, Esq.
1s*
Frederick J. Shon, Member N.Y. State Energy Office Atomic Safety'& Licensing Board Swan Street Bldg. - Core 1 U.S. Nuclear Regulatory, Corm.
Empire State Plaza
., Washington, D.C.,-70555.
Albany, New York 12223 7,
D'ocketing and Service.Section Howard L. Blau, Esq.
Office of the Secretary Blau & Cohn, P.C.
U.S. Nuclear Regulatory Comm.
380 North Broadway
- ' ()
Washington, D.C.
20555-Jericho, New York 11753 Atomic Safety & Licensing g :'
Appeals Board T.J. Burke U_.S.
Nuclear Regulatory Comm.
Project Manager Wachington, D.C.
20S55 Shorehar. Nuclear Power Station P.O. Box 618 North Country Road Richard Hoefling, Esq.
Wading River,.lew York 11742 3
Atomic Safety & Liceqsinpt Boari U.S. Nucleqr Regulatory ~Comm.
MHB' Technical Associates Washington,sD.C.
20555 366 California Ave. - Suite 6 N
Palo Alto, California 94306 Edward M. Earrett, Esq.
f' Long Island Lighting Company v.
General Counsel 1
b 250 Old Country Road
/ Rt//X/ BIG ba>\\
I Mincola, New Yor.e :1}5R1 IrVing Like l
.