ML20063G959

Brief on Work Product Doctrine Re QA Testimony Preparation Memorandum Per ASLB 820824 Direction.S&W 820426 Memorandum Constitutes Trial Preparation Matl & Is Exempt from Discovery.W/Certificate of Svc.Related Correspondence

ML20063G959
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	08/30/1982
From:	Christman J HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO.
To:
References
ISSUANCES-OL, NUDOCS 8209010253
Download: ML20063G959 (9)

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O MIILATED OORRESPONDENW DOCHETED LILCO, August 30, 1982 USNRC 52 AW 31 M2:i7 0FFICE OF SECRETARY DCCKETING & SERVICL UNITED STATES OF AMERICA BRANCH NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

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LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322 (OL)

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(Shoreham Nuclear Power Station,)

Unit 1) )

LILCO'S BRIEF ON WORK PRODUCT DOCTRINE AS APPLIED TO QA TESTIMONY PREPARATION MEMORANDUM Suffolk County has asked the Board to order LILCO to produce the document that provides the basis for this statement at page 166 of LILCO'S QA testimony:

[A]n independent sample of N&D's has been taken and analyzed to determine if sig-nificant trends or abnormal quality occurred. This analysis indicates that the Shoreham N&D's are consistent with other sites' N&D's for similar activi-ties.

LILCO testimony 166-67.1/ LILCO responded by claiming that the document is " work product" and therefore exempt from discovery.

1/ Testimony of John F. Alexander, T. Tracy Arrington, Frederick B. Baldwin, Robert G. Burns, William F. Eifert, T. Frank Gerecke, Joseph M. Kelly, Donald G. Long, Arthur R.

Muller, William J. Museler, and Edward J. Youngling for the Long Island Lighting Company Regarding Suffolk County and Shoreham opponents Coalition Contention 12 and Suffolk County Contentions 13, 14, and 15, June 29, 1982.

8209010253 820830 PDR ADOCK 05000322

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O At the oral argument on August 24, 1982, the Board directed LILCO to submit a brief on the question. This is that brief.

The Document The above-quoted statement from pages 166-67 of LILCO's testimony refers to a three-page memorandum, dated April 26, 1982, with 24 pages of supporting material. It was prepared by Stone & Webster for the precise and sole purpose of preparing for the hearing in this proceeding. What the preparer of the document did was to examine the Nonconformance & Disposition Reports (N&D's) supplied to Suffolk County during pretrial dis-covery and attempt to determine if any " major trends" were apparent from this sample of N&D's. The document was not pre-pared by lawyers. It was prepared by people who work for the Stone & Webster witnesses who are testifying to the statement in question.

The Work-Product Doctrine T1.e leading case on the work-product doctrine is Hickman v. Taylor, 329 U.S. 495 (1947). In the Federal Rules of Civil Procedure, the doctrine is embodied in Rule 26(b)(3):

(3) Trial Preparation: Materials.

Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under sub-division (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant,

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surety, indemnitor, insurer, or agent) only upon a showing that the party seek-ing discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hard-ship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attor-ney or other representative of a party concerning the litigation. . . .

The corresponding passage in the NRC Rules of Practice is 10 C.F.R. 5 2.740(b)(2),2/ which reads as follows:

(2) Trial prepration materials. A party may obtain discovery of documents and tangible things otherwise discoverable under subparagraph (1) of this paragraph and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such 2/ The Appeal Board has recognized that 10 C.F.R. 5 2.740 is patterned after and parallels Rule 26 of the Federal Rules of Civil Procedure. Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 460 (1974). Accordingly, the legal authorities in federal court decisions involving Rule 26 illuminate, and provide appropriate guidelines for interpreting, the discovery standards set forth in the Commission's rules. Boston Edison Company (Pilgrim Nuclear Generating Station, Unit 2), LBP-75-30, 1 NRC 579, 581 (June 6, 1975), cited in Allied-General Nuclear Services (Barnwell Fuel Receiving and Storage Station), LBP-77-13, 5 NRC 489, 492 (1977).

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 representative of a party concerning the proceeding.

NRC Caselaw -

Thare appears to be little NRC precedent on the work-product doctrine. The two cases LILCO counsel has found (both of them licensing board orders) go opposite ways. In Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), LBP-75-28, 1 NRC 513, 514 (1975), the licensing board denici a request for a draft of question-and-answer tes-timony prepared by an economic consultant on the subject of the demand for electricity. The Board denied the request since the document appeared to be "in the form of trial preparation mate-rial of counsel." The Board indicated that the substantive information that might be contained in any study performed by the consultant could be secured by the intervenor through the use of interrogatories or appropriate discovery methods. To the extent that the Seabrook board was influenced by the " form" j

of the document, the case is not helpful here; the Stone &

Webster memorandum is not in Q-and-A form.

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In an order in Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-30, 10 NRC 594 (1979),

the licensing board ordered the Department of Justice to pro-duce drafts of testimony prepared by the Department's expert engineering witness. The board was influenced by the fact that an expert witness was involved and that experts are "almost unique" in being permitted to testify as to their opinions and said that "all factors wnich could condition or affect these opinions are properly the subject of cross-examination, and hence discovery in advance of trial." Id. 595. The South Texas order does not address the standards for discovery of trial preparation materials (" substantial need" and " undue hardship") addressed below and does not therefore appear to be very helpful here.

" Trial Preparation Materials" We are left, then, to the words of 10 C.F.R. 5 2.740(b)(2) itself. Under that regulation, two questions need to be asked. First, is the Stone & Webster memorandum

" trial preparation materials"? Second, has the County shown that it has " substantial need of the materials in the prepara-tion of [its) case" and that it is " unable without undue hard-ship to obtain the substantial equivalent of the materials by other means"?

To the first question the answer is yes. The memoran-dum was prepared specifically "in anticipation of or for the hearing" in this proceeding. It was prepared by Stone &

Webster personnel, who are LILCO's " representatives" in this context.3/

" Substantial Need" and " Undue Hardship" The second question is whether the County has shown

" substantial need" and " undue hardship." The County has not made this showing. Since the memorandum simply analyzes the N&D's that the County itself chose to copy during discovery, the County can itself analyze the N&D's to see if any " trends" exist.

Conclusion For the reasons stated above, the Stone & Webster memo-randum of April 26, 1982, constitutes " trial preparation mate-rials" and is exempt from discovery under 10 C.F.R. 5 2.740(b)(2). The memorandum merely looks for " trends" in N&D's that Suffolk County had copied during pretrial discovery, and the County can itself look for trends in the same way.

Therefore, the County has not showed, and cannot show, that it 3/ It appears that Stone & Webster anticipated the need to analyze the N&D's copied for the County during discovery and began the work for the purpose of trial preparation but without being requested to do so by counsel. Counsel later concurred in the value of the work for trial purposes.

e has substantial need for the memorandum or that it cannot get substantially equivalent material without " undue hardship."

LILCO should not be ordered to provide the memorandum to the County.

Respectfully submitted, LONG ISLAND LIGHTING COMPANY

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,p mes N. Christman Kathy E. B. McCleskey Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 30, 1982

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k POCKETED 95NRC LILCO, August 30, 1982 CERTIFICATE OF SERVICE OFFICE 0F SECRtTAst In the Matter of DOCKETING & SERVICE BRANCH LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

Docket No. 50-322 (OL)

I hereby certify that copies of LILCO's Brief on Work Product Doctrine As Applied to QA Testimony Preparation Memorandum was served upon the following by first-class mail, postage prepaid, by Federal Express (as indicated by an aster-isk), or by hand (as indicated by two asterisks), on August 30, 1982:

Lawrence Brenner, Esq.** Atomic Safety and Licensing Administrative Judge Appeal Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission l Washington, D.C. 20555 Atomic Safety and Licensing Board Panel Dr. Peter A. Morris ** U.S. Nuclear Regulatory Administrative Judge Commission Atomic Safety and Licensing Washington, D.C. 2055 Board Panel U.S. Nuclear Regulatory Bernard M. Bordenick, Esq.**

Commission David A. Repka, Esq.

Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. James H. Carpenter ** Washington, D.C. 20555 Administrative Judge Atomic Safety and Licensing David J. Gilmartin, Esq.

Board Panel Attn: Patricia A. Dempsey, Esq.

U.S. Nuclear Regulatory County Attorney Commission Suffolk County Department of Law Washington, D.C. 20555 Veterans Memorial Highway i Hauppauge, New York 11787 1

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Secretary of the Commission Stephen B. Latham, Esq.*

U.S. Nuclear Regulatory Twomey, Latham & Shea Commission 33 West Second Street Washington, D.C. 20555 P. O. Box 398 Riverhead, New York 11901 Herbert H. Brown, Esq.**

Lawrence Coe Lanpher, Esq. Ralph Shapiro, Esq.*

Karla J. Ltesche, Esq. Cammer and Shapiro, P.C.

I Kirkpatrick, Lockhart, Hill 9 East 40th Street Christopher & Phillips New York, New York 11901 8th Floor 1900 M Street, N.W. Howard L. Balu, Esq.

Washington, D.C. 20036 217 Newbridge Road Hicksville, New York 11801 Mr. Mark W. Goldsmith Energy Research Group Matthew J. Kelly, Esq.

4001 Totten Pond Road State of New York Waltham, Massachusetts 02154 Department of Public Service Three Empire State Plaza MHB Technical Associates Albany, New York 12223 1723 Hamilton Avenue Suite K Mr. Jay Dunkleberger San Jose, California 95125 New York State Energy Office Agency Building 2 Empire State Plaza Albany, New York 12223 Respectfully submitted, LONG ISLAND LIGHTING COMPANY b

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v 4ames N. Christman Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Virginia 23212 DATED: August 30, 1982

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