ML20072N227

Memorandum on Need for Clear Delineation on Subj of Palmetto Alliance Contact W/Current & Former Util Employees. Guidelines Should Be Established,Permitting Palmetto Alliance to Make Reasonable Contacts.W/Certificate of Svc

ML20072N227
Person / Time
Site:	Catawba
Issue date:	03/30/1983
From:	Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO.
To:
References
NUDOCS 8304010478
Download: ML20072N227 (9)

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N UNITED STATES OF AMERICA D{q'

", ele 0 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BQ3RDMR 31 AB g4 In the Matter of ) ];. ,

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DUKE POWER CCMPANY, et al. ) Docket Nos. 50-413-

)- 50-414 (Catawba Nuclear. Station, )

Units 1 and 2) )

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- APPLICANTS' MEMORANDUM ON NEED FOR CLEAR DELINEATION ON MANNER OF INTERVENOR CONTACT WITH CURRENT AND'FORMER DUKE POWER COMPANY EMPLOYEES During the March,25, 1983 conference call (in which all parties participated) Applicants requested an opportun-ity to be heard concerning the necessity for paragraph 5 to the proposed Affidavit of Non-disclosure, which was attached to Applicants' letter of February 28, 1983. Applicants expressed their desire to address the need for clear delinea-tion on the manner of Intervenor contact with, not only those current and former Duke Power Company employees who had been 4

disciplined for noncompliance with NRC operating and admin-1strative procedures (the subject of the proposed Affidavit

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of Non-disclosure), but also, any current and former Duke l ' Power Company employee whos'e name was disclosed to Intervenors during discovery. The Board granted Applicants' request and also provided Palmetto Alliance a similar opportunity. The fo'llowing.will explain Applicants' position on the question.

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DISCUSSION Paragraph 5 o"f the proposed Affidavit of Non-disclosure is designed to structure the nature and frequency of con-tacts by representatives of the Palmetto Alliance with cur-rent and former Duke employees whose names,. addresses and phone numbers were directed by the. Board to be provided as a part of discovery. See. Memorandum and Order of February 9, 1983. Persons receiving such protected information would be required to make the following commitments under para-graph 5:

5. I will not contact, or cause to be contacted, any of'the employees or former employees identi-fied in the protected information except as follows:

(a) I will prepare a letter to be used to con-tact any such employee and/or former employee, to be reviewed and agreed to by Duke Power Company. If such an agreement cannot be reached, such letter and Duke Power Company's objections will be submitted to the Board for resolution, a

(b) I will send the approved letter to such employees or former employees identified in the pro-tected information as I choose, and will provide counsel for Duke Power Company with a copy of such letter.

(c)- If any of the subject employees or former employees respond to my letter and indicate a will-ingness to discuss with me matters relevant to Palmetto Alliance Contention 7, I will contact such persons and pursue the subject. All contacts with such employees or former employees will only be made by me and/or the one other person who has executed an identical affidavit.

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(d) I will not send follow-up letters to any employee or former employee who did not respond to my letter; I will not telephone or in any other .

way contact any employee or former employee who did -

not respond to my letter.

As noted, by its terms, this proposed affidavit would have applied only to those current and former. employees who have been disciplined by the Applicants for noncompliance with NRC operating and administrative procedures. However, Appli-cants have concluded that similar protections are necessary for all current and former employees whose names are dis-closed to Palmetto Alliance in discovery. 1/

It is Applicants' position that the process by which the named individuals are contacted is a part of. discovery and thus the Board has and ret.ains jurisdiction to regulate contact, as appropriate. 2/ Applicants are cognizant that 1

-1/ Appli. cants' request. for guidelines as to'the manner of Intervenor contact thus pertains to all three categories of employees or former employees whose identity will have been disclosed in discovery:

1. Present and former quality assurance employees employed at Catawba.

2. Any Duke Power, Company employees, who ' raised disagreements or disputes as to the workman-ship of Catawba.

3. Present and former Duke Power Company employees who have been disciplined 'for noncompliadce with NRC operating and administrative procedures.

-2[ See Krause v. Rhodes, 535 F. Supp. 338, 347 (N.D. Ohio 1979), aff'd 671 F.2d 212 (6th- Cir. ) , cert. denied 103 S '. Ct. 54 (1982), wherein the district court stated:

(footnote continued on next page)

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the question of such regulation usually does not arise, and a protective order is not sought under 10 CFR S2.740(c),

until probl' ems have already surfaced, e.g., until actual harassment is.shown. Applicants are not advancing such a case at this time. However,-even prior to the release of relevant discovery information, a number of Duke empl.oyees were contacted by the palmetto Alliance, either in person or by telephone. Applicants' request is prompted by the fact th'at some of those employees did not appreciate the contact, were bothered by it and have expressed concern to Duke. Inasmuch as the potential for abuse is heightened by the release of information about employees, Applicants .

maintain that establishment of guidelines at this time is. <

appropriate and reasonable.

Applicants maintain that given the fact that hundreds of names have already been given to Intervenors and given .

Intervenors' announced desire to contact such' individuals, it would be prudent at this. time to establish some guidelines.

(footnote continued from previous page)

[T]his court construed Rule 26(c) to give a district court authority to issue a protective order controlling the disposition of discovery

- materials after a party has acquired the materials, as well as fixing and controlling the conditions under which discovery may be obtained in the first instance. .

In any event, this Board, pursuant to 10 CFR S2.718, is charged with regulating the conduct of the pro-ceeding as it sees fit', consistent with basic fairness,

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Further, .given' the past history of this case, and the need to timely complete discovery, Applicants maintain that now is '

the time to resolve the matter of contact.

In addition, the interes.ts of the Palmetto Alliance will also be advanced if the Board sets parameters at this tine.

By following pre-established guidelines, Palmetto Alliance

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would be able to conduct its inquiries without interruption, because it will be unnecessary for the Applicants to ask for

. a suspension of contacts if problems arise and a protective order is needed to prevent harassment or other abusos.

Applicants' request for a clear delineation, at this time, of the manner of contact finds support in the case law.

1 The federal courts have recognized that issuance of a pro-tective. order is appropria'te to control anticipated dis-covery. In Dudo v. Schaffer,.93 F.R.D. 524 (E.D. Pa. 1982),

the district court found that a protective order was proper to limit contacts by counsel'with the putative class members he sought to represent. Contacts were limited to sending

' the class members a questionnaire. Further contacts were prohibited to prevent conscious or unconscious suggestion or misrepresentation of the questionniare to the recipients.

Id. at 534-35. In Hecht v. Pro-Football, Inc., 46 F.R.D.

605 (D.D.C. 1969), the court took an action that is analogous to issuance of a protective order; it granted a motion to

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. hi limit a subpoena so as to avoid disclosure of financial information by a n'on-party.. The court explained the need to balance the need for discovery with the right to privacy:

Modern civil procedure in the Federal courts con-templates liberal disclosure. Discovery is in -

the interest of justice. Nevertheless, dis-covery is not unbridled and not unlimited. There must be restrictions.to' protect individuals in their natural privacy.

Id. at 607. See also Krause v. Rhodes, 671 F.2d 212 (6th Cir.), cert. denied 103 S. Ct. 54 (1932) (upholding a pro-tective order requiring redaction of names of persons from documents obtained during discovery) ; Balistrieri v. Holtzman, 52 F.R.D. 23 (E.D. Wis. 1971) (protective order granted to ,

4 prevent defendant-from interrogating plaintiff's. prospective l

witnesses and avoid likelihood of harassment).

CONCLUSION l

! In sum, Applicants believe that issuance of guidelines consistent with paragraph 5 of the subject proposed Aff.ida-vit of Non-disclosure would represent a reasonable balance between the competing interests of the parties involved. -

On the one hand, Palmetto Alliance asserts the need to

-attempt to obtain information from Duke's employees. On the other hand, Applicants are concerned that uncontrolled con-

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' tacts from Palmetto Alliance will violate current and former

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employees' right to privacy and lead to instances of. harass-ment. The instant pleading does not seek to preclude all contacts, but nerely to set guidelines at the outset which permit Palmetto Alliance . to make reasonable contacts without unduly impinging the employees' rights. Any employee who wishes to-come forward with information would be afforded an ample opportunity to do so. Further, Palmetto Alliance retains the right to seek subpoenas for the deposition of any employee whom it may have reason to believe has relevant information, but who does not wish to voluntarily cooperate by consenting to be interviewed.

Respectfully submitted,

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g/. Michael McGar/y, ITg Dale E. Hollar DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.

Washington, D.C. 20036 (202) 857-9833 Albert V. Carr, Jr.

Ronald L. Gibson

- DUKE POWER COMPANY P.O. Box 33189 Charlotte, North Carolina 28242

.(704) 373-2570 Attorneys for Duke Power Company, et al.

March 30, 1983 S

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

• DUKE POWER COMPANY, --et al. ) Docket Nos. 50-413

) 50-414 (Catawba Nuclear Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Memorandum on Need for Clear Delineation on Manner of Intervenor Contact With Current and Former Duke Power Company Employees" in the above captioned matter have been served upon the following by deposit in the United $tates mail this 30th day of March, 1983.

James L. Kelley, Chairman George E. Johnson, Esq. e Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan Albert V. Carr, Jr., Esq.

Union Carbide Corporation Duke Power Company P.O. Box Y P.O. Box 33189

Oak Ridge, Tennessee 37830 Charlotte, North Carolina.28242 i

Dr. Richard F. Foster Richard P. Wilson, Esq.

P.O. Box 4263 Assistant Attorney General Sunriver, Oregon 97702 State of South Carolina P.O. Box 11549 Chairman Columbia, South Carolina 29211 Atomic Safety and Licensing l Board Panel Robert Guild, Esq.

l U.S. Nuclear Regulatory Attorney-at-Law

! Commission P.O. Box 12097 Washington,'D.C. 20555 Charleston, South Carolina 29412 l Chairman Palmetto Alliance i

Atomic Safety and Licensing 2135 1/2 Devine Street Appeal Board Columbia, South Carolina 29205 U.S. Nuclear Regulatory Commission Washington, D.C.- 20555

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2-Jesse L. Riley Scott Stucky -

854 Henley Place Docketing and Service Section-Charlotte, North Carolina 28207 _U.S. Nuclear Regulatory Commission Henry A. .Presler Washington, D.C. 20555 Charlotte-Mecklenburg Environmental Coalition 943 Henley Place Charlotte, North Carolina 28207 '

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, f7. Michael Mcpdrfy, /II O

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