ML20070J031

Response Opposing Palmetto Alliance 820428 Motion for Protective Order Re Contentions 6 & 7.Alliance Has Not Demonstrated Applicability of atty-client or Work Product Privileges

ML20070J031
Person / Time
Site:	Catawba
Issue date:	12/20/1982
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8212270321
Download: ML20070J031 (12)

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UNITED STATES OF AMERICA 00$,,\

NUCLEAR REGU1ATORY COMMISSION ,

fg'1k i BEFORE THE ATOMIC SAFETY AND LICENSING 3OARD g,13 t c4-

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U In the Matter of ) '

)

DUKE POWER COMPANY, et ~~ -

al. ) Docket Nos. 50-413

) 50-414 (Catawba Nuclear Station, )

Units 1 and 2) )

APPLICANTS' RESPONSE IN OPPOSITION TO ~

PALMETTO ALLIANCE'S MOTION FOR PROTECTIVE OPSER i 1

Duke Power Company, et al. (" Applicants"), pursuant to 10 CFR $2.730(c), hereby move the Atomic Safety and Licensing Board l

("Boarc") in the captioned proceeding to issue an crder denying the motion of Intervenor Palmetto Alliance (" Palmetto Alliance")

for a protective order regarding discovery served upon it by 1/

Applicants.

I. INTRODUCTION On April 9, 1982, Applicants served upon Palmetto Alliance

" Applicants' First Set of Interrogatories d (hereafter cited as

" Applicants' Interrogatories"), which dealt, inter alia, with Palmetto Alliance Contentions 6 and 7. Applicants' Interrogatories I were limited in scope, directed to the plain language of Palmetto Alliance's contentions, and sought only to have Palmetto Alliance i

specify the nature of its concerns, as reflected in its contentions, _.

1/ On September 9, 1982 Applicants filed a similar response with '

regard to Palmetto Alliance Contentions 16 ar~ 27. While that response could be incorporated by reference, for the convenience of the Board and parties it is repeated.

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& and to reveal the bases for those concerns. Palmetto Alliance .

" responded" to Applicants' Interrogatories on April 28, 1982 2/

and acccmpanied its " response" with the instant motion.3/

In its Motion, Palmetto Alliance asks this Licensing Board to issue a protective or6er Which it asserts is necessary "to protect [it] from annoyance, embarrassment, oppression and undue burden or expense in the compilation and production of matters not properly discoverable as sought by Applicants." Motion, p. 1.

Palmetto Alliance asserts that occh a protective order is justified because it claims that Applicants seek the disclosure of certain confidential communications between its memners, officers and employees with its counsel regarding legal opinions and advice. Motion, p. 2. 4/ With respect to this claim, Palnetto 2/ That " response" is the subject of "Appiicants' Motion to Compel or, In the Alternative, to Dismiss Contentions" also filed this date.

-3/ April

" Palmetto Alliance Motion For Protective Order" (" Motion")

28, 1S82.

In its Motion, Palmetto Alliance characterices Applicants' Interrogatories as a " discovery offensive" against it, directed "largely [to) subjects for Which virtually all information known to Intervenor has already been fully disclosed on the reccrd of the prehearing conference." Palmetto Alliance asserts that Applicants' discovery recuests of it " border [] on. . .harrassment" but nonetheless " commits itself" to mee: the spirit cf the discovery rules. Motion, p. 2 Applicants' views on the nature and extent of Palmetto Alliance's compliance with its commitment to meet the " spirit" -

of the discovery rules is set forth in its " Motion to Compel or, In the Alternative, to Dismiss Contentions" also filed this date.

4/ Palmetto Alliance's Motion also seeks protection with regard to Interrogatories concerning Contentions 3, 4, 26 and 35.

Given the Board's December 1, 1982 Order, these contentions are no longer of moment.

I ,

6 Alliance apparently believes that both the attorney-client privilege and the attorney work produce doctrine bar much of the discovery Applicants seek. .

In Applicants' view, as will be set forth in detail below, Palmetto Allianc~e has failed to' demonstrate the need for the Licensing Board to issue such an order. Palmetto Alliance's Motion is imperdissibly vague and for that reason alone should be denied. In any event, Palmetto Alliance has totally failed to demonstrate that either the attorney-client privilege or the attorney work-product privilege applies to any information Applicants se ek to discover. Moreover, Palmetto Alliance has f ailed to demonstrate that Applicants' discovery requests are unduly burdensome.

II. ARGUMENT A. Intervenor's motion for a protective order is impermissibly vague and should be denied.

It is well-established that any party objecting to interrogatories or requests to produce may eliminate or modify its obligation to respond to such reqacst by moving that the licensing board issue a prote'ctive order. Ecwever, the movant seeking such an crder must establish good cause before it is issued. 10 CFR 52.740(c) .

Regardless of its basis for seeking a protective order (e.g., attorn ey-clier.t privilege, proprietary informatien, undue oppression), the moving party has certain obligations which it must satisfy. Chief among them is the obligation to set forth

- with specificity why each particular interrogatory or group of

_4 s

i l

l related interrogatories or request for the eroduction of '.

documents is objectionable. It must aise set forth the factual

• S basis supporting each and every one of its objections. Houston

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Lighting & Power Company et al. (South Texas Project, Units 1 and 2), L3P-80-il, 11 NRC 47 7, 480 (1980). It is not enough simply to assert in general that discovery reque sts are improper. .

[T]he ob je ctions posed against. . . interrogatories must. . .be reasonable and specific, and ray not utilize generalined

" maxims" or recite legal rote. References to "the Applicant's burden of proof" as an objection, for example, are unavailing to avoid a party'.s obligation to re'spond to a proper ciscovery request ,or in:ormation in its possession.

[ Matter of Boston Edison Company et al. (Pilgrim Nuclear Generating Station, Unit 2), L3P-75-30, 1 SRC 57 9, 585.]

In short, in order to meet its burden of demonstrating that certain information or documents within its knowledge or possession are entitled to protection on the basis of urivilec,e, .

it is incumbent on one asserting such a privilege to: (1) identify or specify the nature of the information or document for Which it asserts the privilege, and (2) explain with respect to such information or cocument w.ny it .ce11 eves t.ne priv11ec,e is warranted. 4A Moore's Federal Practice (1982 ed.). 533.27, pp.

3 3-16 3 through 33-163.5/

5/ Secause the NRC disecvery rules are based on the Federal Rules of Civil Procedure s , judicial decisions construing the latter are of ten relied upon by NRC tribunals in resolving discover.v disputes. Matter of Toledo Edison Co. (Davis-Besse Nuclear Power Station, ALA3- 3 0 0, 2 NRC 7 5 2, 760 (1975). Such judicial _

decisions confirm that the burden imposed on those objecting to an interrogatory on the basis of privilege is to specify the nature of the privileged information and to explain Why the claim of privilege is warranted. See, e.g., Miller v.

Doctor's General Hospital, 76 F.R.D. 136, 139 (W.D. Okla.

1977); Biliske v. American Live Stock Insurance Co., 73 F.R.D. 124, 126 (W . D. Okla. 1977); Camco, Inc. v. Baker Oil

_Too ls , Inc., 4 5 F. R. D. 384 (S.D. Tex. 1968); Payer, Hewitt &

t ootnote Continuec.

s Even a cursory reading of Palmetto A11isace's Motion reveals that it has failed to satisfy these most basic procedural recuirements imposed on any party in NRC proceedings wishing to prevent the disclosure of information otherwise discoverable.

The Motion is a textbook example ~ of one which simply recites "generaliced ' maxims'" and " legal rose." Intervenor has not specified Which Interrogatories or Requests to' Produce it f.inds ob je ctionable . Nor has it provided the Board with any f actual basis for its objections. And, perhaps even more impoftantly, its Motion does not di sclos e the extent of the protection it s e ek s fr om f utur e disc ove ry . Thus, on these grounds alone, Pa1retto Alliance's Motion should be denied.

3. Palmetto Alliance has failed to demanstrate that either the attorney-client privilege or the attorney work product doctrine applies to information Applicants seek to discover.

The deficiencies in Palmetto Alliances' Motion become even more apparent When examined in light of the prevailing legal standards relevant to the privileges it seeks to assert.

Palmetto Alliances' Motion is not a model of clarity, but it appears that it is attempting to assert both the attorney-client privilege and the attorney work product doctrine as grounds for the sought protective order. It is clear that, as a matter cf law, Palmetto Alliance has f ailed to demonstrate that either the

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(footnote continued from previous page)

Co. v. Bellanca, 2 6 F . R.D. 219 (D. Del. 1960); cf. C-en era l Dyn ami cs Corp. v. Selb Manufacturine Co., 431 F. 2d 1204, 1212 Tetn Cir. 1973), cert. denied, 414 U.S. 1162 (1974).

I o -

s attorney-client privilege or the attorney work-product privilege applies to information or documents Applicants seek to discover from it. .

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In general, confidential communications made by a client to an atterney in the course of obtaining legal assistance are protected from disclosure under the attorney-client privilege.5/

Statenents and advice by the attorney to the client are also privileged.1/ The purpose of this privilege is to assure that a client's confidences to his attorney will be protected 'and, therefore, to encourage clients to make a full disclosure of f acts to their legal counsel.E/.

Like all evidentiary privileges, the attorney-client privilege is narrowly construed because it has the effect of withholding relevant inicrmation fro:n the fact finder. Accord-ingly, its use is limited to those situations in which the

.our.cose of the privilege will be servedS/ and it ".=rotects oniv.

those disclosures - necessary to obtain informed legal advice -

which might not have been made . absent the privilege. "10/

It shoald be noted that the attorney-client privilege does not apply to documents or information which existed prior to the forration of the attorney-client relationship. Similarly,

$[ Fisher v. United States, 425 U.S. 391, 403 (1976).

2/ Mead Data Cent: a1 v.

U.S. Dept. of Air Force, 566 F.2d 242, 254 n. 25 (L.C. Cir. 1977).

0/ Fisher v. U.S., supra, 425 U.S. at 403.

1/ Coastal States Gas Corp. v. U.S. Dept. of Enerev, 617 F.2d 854, 862 (D.C. Cir. 1980). I 10/ Fisher v. United States, sucra, 425 U.S. at 403.

c .

o materials Which were prepared or communicated for independent reasons (i.e., matters of independent knowledge), are not ,

privileged nerely because they are in .the possession of an attorney.1h/

- And, communications made to an attorney which the attorney must make public in discharging his duties, as a natter of logic, do not fall within this privilege.

Although the attorney-client privilege and the attorney i

wo rk-pr oduc t doctrine are derived from the same common law -

basi s ,12/ the work product principle is distinct from th'e attorney-client privilege.E3/ The work product doctrine,  !

recognized in Eickman v. Taylor, 329 U.S. 495 (1947) and codified in 7,ule 26(b)(3) of the Federal Rules of Civil Procedure,hi/

confers a cualified E/ privilege from disclosure upon certain l

information gathered by an attorney in anticipation of possible litigation.

In Eickman, the Supreme Court ruled that the attempt of one party to obtain from another " written statements, private memoranda, and personal recollections prepared or forned by an .

adverse party's counsel in the course of his legal duties" fell 1

" ou t s id e the arena of discovery. . ." even though they were not l 11/ Grant v. United States, 227 U.S. 74 (1913).

i 11/ v. .e Grand Jury Proceedines, 473 F.2d 840, 844 (8th Cir. '

1973). -

l 2d/ United States v. Nobles, 422 U.S. 225, 238 n.ll (1975).

2d/ Of cours e , discovery be fore the NRC is governed by provisions i based generally on the Federal Rules of Civil Procedure.

Pilcrim, supra, L3P-75-30, 1 NRC at 581.

25/ United States v. Nobles, suora, 422 U.S. at 239.

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e within the scope of the attorney-client' privilege.l!/ While emphasizing the need for a lawyer to prepare his case unfettered by unnecessary intrusions by opp = sing . parties, the Court

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intimated that if a party seeking disclosure of such material made an adequate showing cf need, .which was not done in Eickman, the material could be made available:

We do not mean to say that all written naterials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases.

Where relevant and non-privileged facts remain hidden in an attorney's file and where' production of these fact's is essential to the preparation of one's case, discovery may be

.cro.cerlv. had. [Id_. at 511.]

Subsequent decisions have clarified this teaching and indicate that " documents containing the work product of attorneys which .

contain the attorney's thoughts, impressions, views, strategy, conclusions, and other similar information produced by the attorney in anticipation of litigation are to be protected When feasible, .but not at the expense of hiding the non-privileged facts from adversaries or the courts." Xerox Corporation v.

International Business Ma chines Ccrporation, 64 F.R.D. 367, 381-82 (S.D.N.Y. 1974). Thus, it is well-established that, to the e xtent possible, documents must be made available with the privileged information expunged.

Palmetto Alliance has failed to demonstrate that information and/or documents Which it se eks to protect are entitled to the privileges which it asserts. Indeed, the nature of the information sought by Applicants clearly is not s ub je ct to protection.

16/ uickman v.' Taylor, supra, 329 U.S. at 509-11.

_9 F

In their Interrogatories and Requests to Produce, Applicants sought from Palmetto Alliance the basic inferination Vnich bears directly on the dimensions of and bases for Palmetto Alliance's Contentions 6 and 7. Those discovery requests seek no more than to elicit from Palretto Alliance preciselv - how it defines the material termr. in each of its contentions; the standards which _it contends Am.elicants do not meet; why _it contends Applicants do not meet those standards; what 13, believes Applicants must do, in light of its contention's, to operate Catawba safely; and the technical bases (if any) for each of its contentions. If Palmetto Alliance intends to participate in the upcoring hearings in a responsible manner, then it follows that these matters will have to be di2c3osed during such proceedings. Thus, under the standard discussed above, such information is discoverable.

In NRC practice it has been recogniced that information of the natur e sought by Applicants is not s ub je ct to either p rivileg e . In Pilcrim, supra, L3P-73-30, 1 NRC 5 7 9, intervenor s ou ght a protective order against applicants' discovery, esserting bcth privileges. The licensing board rejected intervenor's claim with respect to attorney-client privilege, noting that such does not extend to information obtained from 1

8 other people or sources even though the attorney may have -

accuired such information While representing his client. The board also stated that this privilege does not apply to the discovery of facts within the knowledge of an attorney if the facts were not communicated or confided to him by his client.

The Board reasoned that, because the h'AC intervention rules assume that parties have specific factual bases for their contentions: .

[where) the discovery request seeks to elicit the factual basic for the contention, the intervenor cannot defe.nd against such interrogatory by claiming that the f acte are

" privileged." [Id. at 585.]

The Board also noted that "it is untenable to object to an interrogatory or to refuse to answer on the car.im that [it]

involves 'the work product of an attorney' or the ' atto,rney-client relationship'" in the form of a general objection. In short, in order to prevail on that assertion, detailed objections must be made. Gee pp. 3-5, supra. For the reasons set forth above, this Board should deny Palmetto Alliance's Motier. for a Protective Order.

C. Applicants' discovery requests are not unduly burdensome.

In an attempt to deflect attention from its unwillingness (or inability) to respond to Applicants ' discovery requests, Palmetto Alliance makes the blanket assertion that such discovery requests are annoying, embarrassing, oppressive and unduly burdensome or expensive, asserting that they constitute a

" discovery offensive" that " borders on...harrassment." Motion,

p. 2. Palmetto Alliance apparently intends this characterization to serve as suppert for the relief requested its Motion.

However, such a blanket complaint cannot serve to justify issuance of a protective order.

. 11-First, to shown above (p. 9, supra. ) Applicants se ek through discovery only information to Which they are entitled. Moreove r, it is well-settled that general objections such as those ,r aised by Intervenor in this regard cannot provide the basis for a protective order. As the Appeal Board stated in Pennrylvania Power & Licht Company, et al. (Susquehanna Steam Electric Station, Units'l and 2), ALA3-613, 12 !!RC 317, 323 (1980),

general objections do not provide good cause for issuing a protective order.

C-eneral objections, such as the objection that the interrogatories...are unreasonably burdensome, oppressive, or vexatious, or that they seek information- that is as easily available to the interrogating as to the interrogated party, or that they would cause annoyance, expense or oppression to the ob je cting party without serving any cureose relevant to the action...are insufficient. [4A Moore's Federal Practico (1982 ed.), 533.27 at pp.33-164 through 3 3-167. )

Palmetto Alliance's objections to Ae.olicants' discove rv. requests almost trac % vertatim the type of general objection the Appeal Board in Susquehanna criticiced. See also Pilerim, supra, LSP-75-30, 1 NRC at 579.

Second, Applicants' discovery requests do nothing more than seek to determine the dimensions of and bases for Intervenor's i contentions. Specifically, they are designed to enable Applicants to understand how Palmetto Alliance defines the material terms in its contentions; what the areas of safety concern (if any) raised by Palmetto Alliance encompass; What actions (if any) Applicants should take according to Intervenor to assure the safe operation of Catawba; and What the te chnical bases (if any) for Palmetto Alliance's position are. If it is

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" unduly burdensomes" for Palmetto Alliance to supply this information, then Applicants suggest that Palmetto Alliance narrow the scope of its allegations so that discovery no longer presents such difficulties. See Suscuehanna, suora, A1AB-613, 12 NRC at 330-35.

III. CONCLUSION In light of the foregoing, Applicants urge that the Board issue an order denying Palmetto Alliance 's Motion for a Protective Order.

Respectfully submitted, 0,l4DAu s

f I e ht Avam I n -- ' wn J. biichael McGarry , IIJ f Anne W. Cottingham DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

(202) 857-9833 William L. Porter Albert V. Carr, Jr.

Ellen T. Ruff DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242 (704) 373-2570 Attorneys for Duke Power Company, et al.

Decerber 20, 1982

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