ML20063M338
| ML20063M338 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 09/03/1982 |
| From: | Lanpher L KIRKPATRICK & LOCKHART, SUFFOLK COUNTY, NY |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8209100262 | |
| Download: ML20063M338 (7) | |
Text
.....
~
gELAT3D COBRES gg D
NC s
g, 16 h1 UNITED STATES OF A RICA NUCLEAR REGULATORY COMMIJ g" gCIART off)f sEMC' Before the ~ Atomic Safety and Tifc{e 3 Board
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322 (OL)
)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
SUFFOLK COUNTY RESPONSE TO LILCO'S BRIEF ON WORK PRODUCT DOCTRINE AS APPLIED TO QA TESTIMONY PREPARATION MEMORANDUM In its prefiled OA testimony, LILCO's witnesses made the following statement at pages 166-67.
TA]n independent sample of N&D's has been taken and analyzed to determine if significant trends or abnor-mal quality occurred.
This analysis indicates that the Shoreham N&D's are consistent with other sites' N&D's for similar activities.
Suffolk County requested the Board to issue a subpoena for this analysis which had been expressly relied upon by LILCO's wit-LILCO has interposed a work product objection.
nesses.
On August 30, 1982, LILCO filed its "Brief on Work Product Doctrine as Applied to OA Testimony Preparation Memorandum."
Suffolk County hereby responds to LILCO's brief.
In the County's view, the LILCO brief misses a fundamental point.
The brief addresses the work product doctrine generally and whether, under usual circumstances, the County can make a sufficient showing of need to overcome the doctrine.
LILCO has 8209100262 820903 PDR ADOCK 05000322 G
PDR 9303
e failed, however, to address the key issue: whether LILCO, by its testimonial use of and express testimonial reliance on the N & D's analysis, has waived any work product protection to which the document might otherwise be entitled.
The County submits that established precedents require this Board to rule that the doctrine, assuming it otherwise would apply, has been waived and thus that the analysis must be produced.
LILCO's brief states that the document is a three-page memorandum plus supporting material prepared for the " precise and sole purpose of preparing for the hearing in this proceed-ing."
LILCO's Brief, p.
2.
In fact; LILCO has not'used the document solely for hearing preparation, but has used it for testimonial purposes as well.
The N&D's embody an ongoing LILCO evaluation of it's OA program.
The analysis document used in LILCO's testimony con-cludes that Shoreham's OA experience is similar to that at other sites.
Having introduced this analysis in testimony, LILCO now seeks to deny it to Suffolk County. The work product doctrine does not permit a litigant to expressly rely upon a document for testimonial purposes but to deny it under a pro-duction request.
Under established authority, the Board must find that,LILCO's testimonial use of the N&D's analysis consti-tutes a waiver of any work product protection.
4 2-
In the seminal ccco on the cubject; the United Statoc Supreme Court held that the work product protection is quali-fied and may be waived by the testimonial use of a document.
United States __v.
Nobles; 422 U.S.
225; 239 (1975). The Court summarized its reasoning as follows:
Respondent can no more advance the work-product doctrine to sustain a unilat-eral testimonial use of work-product mate-rials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct exa-mination.
Id. at 239-40.
The Supreme Court specifically recognized that work prod-uct materials are normally used for trial preparation and as references when examining witnesses.
'"But where, as here, counsel attempts to make'.a testimonial use of these materials the normal rules of evidence came into play with respect to cross-examination and production of documents."
Id. at 239 n.
- 14. (emphasis added).
See Federal Rule of Evidence 106 (if a writing, or a part, is introduced, adverse party may require admission of entire document).
A recent decision by the United States Court of Appeals for the District of Columbia Circuit has elaborated upon this
" testimonial use" waiver of the work product doctrine.
See In re Sealed Case; 676 F.2d 793, 817-818 (D.C. Cir. 1982).
That._
3 court stated that "when a party seeks greater advantage from lts control over work product than the law must provide to maintain a healthy adversary system, then the balance of inter-ests recognized in Hickman Tv. Taylor, 329 U.S. 495 (1947]
shifts," and the document should be disclosed.
Id. at 818.
Accord, Chavis v. North Carolina; 632 F.2d 213, 223-224 (4th Cir. 1980); United States v.
Salsedo; 607 F.2d.
318, 320 (9th Cir. 1979).
LILCO is seeking just such an unfair advantage, On the one hand, it has used the N&D's analysis for testimonial pur-poses; on the other hand, LILCO is refusing to produce the ana-lysis for purposes of cross-examination.
It is irrelevant that Suffolk County can analyze the N&D's it received during disco-very.
A healthy adversary system requires that Suffolk County be able to test the document relied on by LILCO in LILCO's af-i' firmative testimony.
Under the principles of United States v.
Nobles and its progeny; the three-page LILCO memorandum of
[
April 26, 1982, and its twenty-four pages of supporting materi-al must be produced for Suffolk County.
Respectfully submitted, David H.
Gilmartin Patricia A.
Dempsey a
Suffolk County Department of Law Veterans Memorial Highway l
Hauppauge, New York 11788
v dWikv0 ft
~
Herbert H.
Brown Lawrence Coe Lanpher Alan Roy Dunner KIRKPATRICK; LOCKHART; HILL, CHRISTOPHER & PHILLIPS 1900 M Street; N. W.
. Washington; D.
C.
20036 (202) 452-7000 September 3
, 1982 Attorneys for Suffolk County 4
l I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
LONG ISLAND LIGHTING COMPANY
)
)
Docket No. 50-322 (O.L.)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "Suffolk County Response to "LILCO's Brief on Work Product Doctrine as Applied to OA Testimony Preparation Memorandum" was sent on September 3,
1982 by first class mail, except where otherwise noted, to the following:
Lawrence Brenner, Esq.*
Ralph Shapiro, Esq.
Administrative Judge Cammer and Shapiro Atomic Safety and Licensing Board 9 East 40th Street U.S.
Nuclear Regulatory Commission New York, New York 10016 Washington, D.C.
20555 Howard L.
Blau, Esq.
Dr. James L.
Carpenter
- 217 Newbridge Road Administrative Judge Hicksville, New York 11801 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission W.
Taylor Reveley III, Esq.**
Washington, D.C.
20555 Hunton & Williams.
P.O.
Box 1535 707 East Main St.
Mr. Peter A.
Morris
- Richmond, Virginia 23212 Administrative Judge Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Mr. Jay Dunkleberger Washington, D.C.
20555 New York State Energy Office Agency Building 2 Edward M."Barrett, Esq.
Empire State Plaza General Counsel Albany, New York 12223 Long Island Lighting Company 250 Old Country Road Mineola, New York 11501 Stephen B.
Latham, Esq.
Twomey, Latham & Shea Mr. Brian McCaffrey Attorneys at Law Long Island Lighting Company P.O.
Box 398 175 East Old Country Road 33 West Second Street Hicksville, New York 11801 Riverhead, New York 11901 y
..-=
i--
Marc W.
Goldsmith Mr. Jeff Smith Energy Research Group, Inc.
Shoreham Nuclear Power Station 400-1 Totten Pond' Road P.O.
Box 618 Waltham, Massachusetts 02154 North Country Road Wading River, New York 11792 Joel Blau, Esq.
MHB Technical Associates New York Public Service Commission 1723 Hamilton Avenue The Governor Nelson A.
Rockefeller Suite K Building San Jose, California 95125 Empire State Plaza Albany, New York 12223 Hon. Peter Cohalan Suff,olk County Executive s
David H.
Gilmartin, Esq.
County Executive / Legislative Suffolk County Attorney Building County Executive / Legislative Bldg.
Veterans Memorial Highway Veterans Memorial Highway Hauppauge, New York 11788 Hauppauge; New York 11788 Ezra I.
Bialik, Esq.
Atomic Safety and Licensing Assistant Attorney General Board Panel Environmental Protection Bureau U.S.
Nuclear Regulatory Commission New York State Department of Washington, D.C.
20555 Law 2 World Trade Center Docketing and Service Section New York, New York 10047 Office of the Secretary U.S.
Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C.
20555 s Appeal Board U.S.
Nuclear Regulatory Bernard M.
Bordenick, Esq.*
Commission David A.
Repka, Esq.
Washington, D.C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Matthew J.
Kelly, Esq.
Staff Counsel, New York Stuart Diamond State Public Service Comm.
Environment / Energy Writer 3 Rockefeller Plaza NEWSDAY Albany, New York 12223 Long Island, New York 11747 Cherif Sedky, Esq.
Kirkpatrick, Lockhart; Johnson & Hutchison 1500 Oliver Building Pittsburgh, Pennsylvania 15222 By Hand
- By Federal Express
. CD:na<J N
/ Lawrence Coe Lanpker KIRKPATRICK; LOCKHART, HILL, CHRISTOPHER & PHILLIPS 7-g DATE:
5//)?; 3, / 98 2 1900 M Street, N.W.,
8th Floor Washington, D.C.
20036 y
s-ve-