ML20073P773

Responds to ASLB 830405 Ruling on Discovery.Ruling That atty-client Privilege Does Not Apply to Drafts Does Not Specify Reasoning.Requiring Util to Provide Affidavit Supporting Claim That Drafts Are Cumulative Opposed

ML20073P773
Person / Time
Site:	Midland
Issue date:	04/21/1983
From:	Gilomen B CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE
To:	Bechhoefer C, Cowan F, Harbour J Atomic Safety and Licensing Board Panel
Shared Package
ML20073P775	List: ML20073P773 ML20073P777 ML20073P779
References
ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8304270231
Download: ML20073P773 (6)

Text

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WASH!N T D C.20036 April 21, 1983 (312) 558-7519

, FEDERAL EXPRESS In the Matter of )

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CONSUMERS POWER COMPANY ) Docket Nos. 50-329-OM

) 50-330-OM (Mid2hnd Plant, Units 1 and 2) ) 50-329-OL

) 50-330-OL j

Charles Bechhoefer, Esq. Dr. Jerry Harbour Atomic Safety & Licensing Atomic Safety & Licensing Board Panel Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Conanission Washington, D.C. 20555 Dr. Frederick P. Cowan 6152 N. Verde Trail Apt. B-125 Boca Raton, Florida 33433

Dear Administrative Judges:

By way of an informal discovery request, Intervenor .

Barbara Stamiris has requested from Applicant, inter alia,

" drafts or preliminary findings, to whatever extent they exist, leading up to the March 10th Constoner's response" to Item A of the NRC Staff's Notice of Violation EA 83-3, dated February 8,-1983 ("the Response") (Tr. 14188). Appli-cant has asserted that the materials comprehended by this discovery request are privileged on the basis of both the 8304270231 830421 PDR ADOCK 05000329 G PDR 3)so3  ;

attorney-client privilege and the work product privilege (Tr. 1418 9) . In addition, Applicant has specifically stressed the cumulative nature of drafts of the Response, and their tenuous relevance to the scheduled hearings on soils quality assurance (Tr. 14190, 14194).

In its Memorandum and Order dated April 5, 1983, relating to rulings mada during the course of a telephone conference call had on the same date, the Atomic Safety and  ;

Licensing Board held: (1) that the drafts of the Response are relevant to the fortLcoming QA hearings; (7) thac the attorney-client privilege "does not apply, since the type i of information in question is not of a type properly subject to tnat privilege"; (3) that the drafts constitute attorney .

work product (trial preparation materials) within the meaning of 10 CFR S 2.740 (b) (2); and (4) that there has not, as yet, been an adequate showing that Ms. Stamiris has a " substantial need" for the drafts and is " unable without undue hardship to obtain the substantial equivalent of the materials by other means" (Order, pp. 2-3). The Board ruled that if the drafts are cumulative and contain no " material facts" additional to those in the Response, the work product privilege will be ,

upheld (Order', 'p. 3). As a result, the Board has required Applicant to submit an affidavit in support of its claim that the drafts are cumulative, and setting forth Applicant's basis for determining materiality (Id.).

y While Applicant is acutely aware that the Board's rulings were made during the course of a teleconference established for the~ convenience of the parties, and thus the Board did not_have the luxury of extended time to deliberate, .

Applicant respectfully submits that the Board's Order fails to specify the reasoning behind ruling (2), and fails to comport with_the law with respect to' ruling (4) and the requirement that Applicant submit affidevits.

One ruling of particular concern to Applicant is the Board's finding that the attorney-client privilege is inapplicable because the type of information in question is "not of a type properly subject to that privilege" (Order,

s

p. 2). The Board has offered no citation or rationale in support of.this conclusion, and thus has provided nothing to guide the_ parties in future discovery disputes. "An un-certain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at-all." Upjohn Co. v.

United States, 449 U.S. 383, 393 (1981).

Applicant further takes issue with the Board's ruling that Applicant must provide an affidavit in support of its claim that the drafts are cumulative. First, this impermissibly shifts the burden of establishing " substantial need" and " undue hardship" (Fed. R. Civ. P. 26 (b) (3) ) from the party seeking the discovery to the party responding to i

the request (see Fed. R. Civ. P. 26 (b) (3) Advisory Committee

' l l

v 1 Note).' Second, this ruling makes no provision for the' pro-tection of " mental impressions, conclusions, opinions, or legal theories Of an attorney or other representative of a party concerning the litigation" (Fed . 1R. Civ. P. 26 (b) (3) ) .

This material-is not discoverable even when the showing of substantial need and inability to obtain the. equivalent ,

without undue hardship is made (see Fed. R. ' Civ. P. = 26 (b) (3)

Advisory Committee note; Upjonn v. United States, 449 U.S.

383, 400-401 (1981)).

Applicant suggests that, for the above reaEons, ,

the Board may desire to reconsider.or supplement and/or clarify its Order dated April 5, 1983. Nevertheless, in accordance with the Board's ruling, and to expedite these ,

, discovery matters, Applicant hereby submits the following documents, attached hereto as exhibits:

Exhibit 1: Affidavit of Sandra-K. Visser ,

attesting to Applicant's efforts to locate and obtain drafts of the Response.

Exhibit 2: Affidavit of Brian R. Gilomen-identifying the drafts-located by Applicant, setting forth Applicant's basis for determining materiality and attesting to the cumulative nature of the drafts.

i'

. Applicant also submits.the following list identi-fying other documents which may be related to Ms. Stamiris' informal discovery request, but for which Applicant asserts either or both the attorney-client or work product privilege (Tr . 14189):

Item 1: Handwritten notes from interviews of employees of Applicant and Bechtel conducted by J.E. Brunner (in-house counsel to Applicant) , V.p. Provenzano (in-house councel to Applicant), L.E. ,

Zwisler (employee of Management Analysis Company and a member of the Task Force, who conducted interviews under the direction and control of J.E.-Brunner) and F.C. Williams (counsel retained by Applicant).

Applicant claims both the attorney-client and the work product privilege with respect to the notes of in-terviews with employees of Applicant.

See Upjohn Co. v. United States, 449 U.S. 383, 389-97 (1981), regard-ing the attorney-client privilege claim. Applicant claims the work product privilege with respect to the notes of interviews with Bechtel em-ployees Rutgers, Daniels and Smith.

Item 2: Typewritten transcription of the above-referenced handwritten interview notes.

This item was compiled by V.P. Provenzano.

Applicant claims both the attorney-client and the work product privileges with re-spect to this document as discussed under Item 1.

Item 3: Approximately ninety responses by employees of Applicant to a OC/IPIN questionnaire pre-pared by the Task Force under the direction and control of J.E. Brunner. Applicant claims both the attorney-client and the work product privilega with respect to these documents. See Upjohn Co. v. United States, supra at 389-97.

Respectfully submitted,

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Brian R. Gilomen One of the Attorneys for BRG: reg Consumers Powgr Company cc w/three copies enclosures:

Scott W. Stucky Chief, Docketing & Services cc w/ enclosures:

Wendell H. Marshall, Esq.

Mary Sinclair Barbara Stamiris Willial D. Paton, Esq.

Lynne Bernabei James E. Brunner cc w/ cover letter only:

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