ML20077C104
| ML20077C104 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 11/23/1994 |
| From: | Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#494-16030 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9411300328 | |
| Download: ML20077C104 (15) | |
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DOCKETED USNRC November 23,1994
'94 NOV 25 P J :03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONgg g ,yqg nnv DOCKE!!bb i flidCL Before the Atomic Safety and Licensing Board BRANQ In the Matter of ) Docket Nos 50-424-OLA-3
) 50-425-OLA-3 GEORGIA POWER COMPANY, )
et al. ) Re: License Amendment
) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, )
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MO7.10N FOR RECONSIDERATION OF SEOUESTRATION ORDER I. Intmduction Pursuant to 10 C.F.R. f 2.771, Georgia Power Company ("GPC") hereby moves for reconsideration of the scope of the sequestration required by the Licensing Board in its November 9,1994 hIemorandum and Order (Motion to Reopen Discovery). GPC does not object to an order prohibiting witnesses from discussing among themselves the emergency reporting procedure addmssed in the November 9,1994 Memorandum and Order, but respectfully submits that the order should not prevent these witnesses from consulting with counsel. As discussed more fully below, prohibiting witnesses from communicating with counsel will impair GPC's ability to prepare testimony, will prevent counsel from fulfilling its ethical obligation to advise and represent its clients, and is inconsistent with established legal principles governing right to counsel.
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r GPC also submits that the sequestration order is unnecessarily broad. GPC's attorneys believe that they have acted honestly and ethically in all their dealings with Intervenor and the Board in this proceeding, and can be relied upon to contribute to a complete and accurate record.
Reconsideration is appropriate under the standard adopted by the Board in its Memorandum and Order (Motion for Reconsidemtion: Admissions: Second Order), dated September 9,1994, at 2-1. Here, there are principles of law that would have a controlling effect and thtt the Board has not had the opportunity to consider.
II. Background In its April 1,1991 response to Intervenor's 6 2.206 petition, GPC stated that its emergency planning procedures required that senior corporate management, including Mr.
Dahlberg and Mr. Farley, be notified of significant events at Vogtle. Letter from R.P.
Mcdonald to NRC (Apr.1,1991), Attachment I at 12. During a deposition in this proceeding, however, Mr. McCoy distinguished notifications under GPC's Crisis Management Plan and GPC's nuclear emergency planning procedures, and clarified that the nuclear emergency planning procedures did not require that Mr. Farley be notified of significant events. Deposition of C. K. McCoy (Apr. 6,1994), Tr. 49-56.
Subsequently, to ensure that appropriate persons in the NRC were made aware of this information, GPC wrote to the Director of NRR to acknowledge that, contrary to the { 2.206 response, the Vogtle emergency planning procedures did not specifically require notification of Mr. Parley. GPC's counsel also transmitted this letter to counsel for the Staff and all persons on the service list. Ixtter from J.12mberski to C. Banh (Sept. 2,1994).
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i On October 24,1994, Intervenor moved to reopen discovery on this matter. The
, Board's November 9,1994 hiemorandum and Order denied this motion, but on its own initiative, the Board ordered the sequestration of all witnesses expected to testify on this issue.
Specifically, the order provides:
Because there has already been adequate opponunity for the panies to.be briefed by their counsel and to have conversations among themselves about this issue, we shall order the witnesses of Georgia Power and Intervenor to be sequestered. That is, we shall order that all witnesses expected to testify on this issue (including hiessrs. Hairston, hicCoy, hicDonald, and hiosbaugh) shall refrain from any conversations on this issue other than in their immediate family or with non-legal professional counsellors or therapists or bona fide support groups. At the hearing, we will exclude witnesses from the hearing room while the other witnesses testify on this issue.
November 9,1994 hiemorandum and Order at 4-5 (footnote omitted).
At the prehearing conference on November 17,1994, GPC questioned whether the sequestration order would exclude counsel's ability to consult with witnesses before the hearing. The Board indicated that this matter should be addmssed by motion, but explained:
[T]he notion was that this is like in the middle of cross-examination, that -
we've had so much examination hem that you usually don't allow counsel to consult with a witness during the middle of cross. ;
Tr. 840. With respect to the difficulty of preparing testimony without consulting the witnesses, the Board suggested that counsel might prepare questions which the witness would then answer. Tr. 841. I III. Arcument -l The Board should reconsider the provisions of the sequestration order above prohibiting further consultation with counsel,2 because this prohibition is inconsistent with controlling As stated earlier, GPC does not object to the provisions of the sequestration order prohibiting witnesses from communicating among themselves or excluding other witnesses from the hearing room during testimony on this matter.
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principles of law. Ethical requirements demand that GPC's counsel zealously and fully represent its client, and an essential part of such representation is the preparation of witnesses and testimony. Further, the Administrative Procedure Act and due process entitle witnesses to the representation and advice of counsel, and abridgment of that right is inappropriate under the circumstances of this case.
Assistance of counsel is particularly important in a case such as this where the integrity of GPC's management, and of individuals subject to the sequestration order, is being challenged. Such challenges can affect the reputation (possibly even the employment) of the individuals. This strong individual interest in reputation and employment weighs heavily against constraints on representation.
Assistance is also very imponant with respect to the issue addressed by the sequestmtion order because of the confusion that has arisen concerning notification procedures.
Counsel's assistance is important to make sure the witnesses understand the context of prior statements, as well as the specific procedure they should now address. In addition, assistance of counsel is important to ensure the witnesses communicate their opinions with clarity.
Depriving the witnesses of the ability to communicate with counsel may simply perpetuate the confusion, to the detriment of an adequate record.
The controlling legal principles are discussed below. First, the ethical obligations, which require GPC's counsel's panicipation in the preparation of testimony and witnesses, are discussed. Then, the right-to-counsel provision of the Administrative Procedure Act is addressed. Finally, due process considerations are identified. All of these principles require 4
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that GPC's counsel be permitted to consult with its witnesses freely and assist in the preparation of cestimony.
A. GPC'S COUNSEL HAS AN ETHICAL OBLIGATION TO ADVISE AND PREPARE ITS WITNESSES The obligation of counsel to prepare testimony, and the propriety of this function has been recognized in NRC proceedings. In Consumers Power Co. (Midland plant, Units 1 and 2), ALAB-691,16 N.R.C. 897 (1982), the Appeal Board detennined that it was inappropriate to limit counsel's involvement in preparing the testimony of witnesses.
In Midland, the Licensing Board, concerned that counsel was discouraging disclosure, had stated that counsel's role should be limited to selecting questions to be answered by witnesses, suggesting clarification of vague or confusing portions of the testimony, and suggesting omission of totally irrelevant material. E at 916. The Appeal Board struck down these standards, which it found at odds with the requirement that lawyers represent their clients
" zealously within the bounds of the law." E at 917-18.
The Appeal Board held that ethical rules " provide adequate standards by which an attorney should abide in the preparation of testimony for NRC proceedings." "The key factor," the Appeal Board emphasized, "is not who originated the words that comprise the testimony, but rather whether the witness can truthfully attest that the statement is complete and accurate to the best of his or her knowledge." E at 918.
In reaching this conclusion, the Appeal Board quoted from an opinion of the Legal Ethics Committee of the District of Columbia Bar issued on the subject of a lawyer's participation in preparing testimony of witnesses. E at 918 n.28, quoting Opinion No. 79 (Dec.18,1979). Therein, the Ethics Committee stated:
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[A] lawyer may not prepare, or assist in preparing testimony that he or she knows, or ought to know, is false or misleading. So long as this prohibition is not transgressed, [however,] a lawyer may properly suggest language as well as the substance of testimony, and may--indeed should-do whatever isfeasible to prepare his or her witnessesfor examination.
Opinion No. 79 at 138 (emphasis added).
In addressing the proper extent of an attorney's participation in preparing a witness for testimony, the Ethics Committee emphasized that "the only touchstones are tmth and genuineness of the testimony to be given." E at 139. Further, in highlighting the attorney's ethical obligation to pn: pare witnesses who will testify on behalf of a client, the Committee indicated that this rule is not just applicable to party witnesses, but to third party witnesses as well.
[A] lawyer, who did not prepare his or her witness for testimony, having had an opportunity to do so, would not be doing his or her professional job properly. This is so if the witness is also a client; but it is no less so if the witness is merely one ofered by the lawyer on the client's behalf.
E (emphasis added).
The Ethics Committee in turn relied on Hamdi & Ibrahim Mango Co. v. Fire Ass'n of Philadelphia,20 F.R.D.181,182-83 (S.D.N.Y.1957).
[I]t could scarcely be suggested that it would be improper for counsel who called the witness to review with him prior to the deposition the testimony to be elicited. It is usual and legitimate practice for ethical and diligent counsel to confer with a witness whom he is about to call prior to his giving testimony, whether the testimony is to be given on ;
deposition or at trial. Wigmore recognizes "the absolute necessity on such a conference for legitimate purposes" as part of intelligent and I thomugh preparation for trial. 3 Ejemore on Evidence (3d Edition) @
788.
. . This sort of preparation is essential to the proper presentation of a case and to avoid surprise." [ quoting Wiemore] l l
Hamdi, 20 F.R.D. at 182-83. l 1
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9 l This precedent recognizes the propriety and importance-indeed, " absolute necessity"-of counsel's participation in the preparation of witnesses and testimony. Counsel has an obl.igation to its client to prepare and advise its witnesses. The ethical rules provide adequate standards to assure that this function is executed properly.
The sequestration order will prevent counsel from fulfilling this obligation. The -
Licensing Board's suggestion that GPC's counsel might be able to prepare testimony under the ,
I sequestration order by simply drafting questions for the witnesses to answer (igg Tr. 841) is very similar to the procedure proposed by the Midland licensing board and subsequently determined to be inappropriate by the Appeal Board. Further, the Board's analogy to cross-examination (Tr. 840) does not change this analysis. As discussed in Section III.C ;
below, the witnesses have a due process right to consult with counsel, even during Sreaks in their cross-examinat i on.
The ability of GPC's counsel to represent its client fully, including in the preparation of testimony, is especially important where the integrity of the company and its management is being challenged, and the accuracy of every uttemnce is likely to be scrutinized. In this case, it is imperative that GPC's counsel be permitted to make sure that its witnesses understand the context of prior statements, understand which procedure to address, and present their evidence with appropriate clarity.
B. THE APA GRANTS A RIGHT TO COUNSEL WHICH MAY NOT BE INFRINGED WITHOUT CONCRETE EVIDENCE OF OBSTRUCTION Limitations on the ability of GPC's counsel to advise and represent GPC's witnesses are also inconsistent with the Administrative Procedure Act ("APA"). Section 6(b) of the APA, 5 U.S.C. Q 555(b) (1977), provides: "A person compelled to appear before an agency 7
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or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." This right to counsel guaranteed under the Administrative Proced tre Act is a broad right--broader in fact than the right to have an attorney under the Fifth Amendment." Backer v. Commissioner of Internal Revenue,275 F.2d 141,143 (5th Cir.1960).
GPC's witnesses subject to the sequestration order should be considered witnesses compelled to testify, even if a formal subpoena is not issued. Not only does the November 9, 1994 Memomndum and Order signal the Board's expectation that the individuals will appear to testify on the issue addressed in that order, but also Intervenor will surely demand their presence as adverse witnesses. Because they are all present or fonner officers of GPC and its affiliates, acting or speaking for those corporations, they am entitled to be represented by GPC's cc '. in this proceeding and to consult with GPC at any stage of the proceeding, even during breaks in cross-examination as discussed in Section III.C below.
The right to counsel conferred by the APA may not be abrogated without substantial cause. The D.C. Circuit has held that before an agency, or representative themof, may exclude an attorney from repmsenting a witness compelled to appear in person, "the agency !
must come fonvard with ' concrete evidence' that counsel's presence would impede its investigation." Pmfessional Reactor Ooerator Society v. NRC,939 F.2d 1047,1049,1051-52 l 1
(D.C. Cir.1991). Accord, SEC v. Csa.pg, 533 F.2d 7,10 (D.C. Cir.1976). While this decision addresses the right to witnesses in investigations, there is no apparent reason why it would not apply to witnesses in adjudicatory proceedings. Accordingly, GPC submits that its 1
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counsel should not be precluded from fully representing its officers in NRC adjudicatory 1
proceedings absent concrete evidence that such representation would impede the adjudication. '
This standard is not met. The November 9,1994 Memorandum and Order states that sequestration is being ordered because there has already been adequate opportunity for the parties to be briefed by their counsel and to have conversations among themselves about this issue. There is no suggestion--let alone concrete evidence--mat counsel's representation would obstruct tmthful testimony on the issue addressed in the sequestration order. To the contrary, j l
GPC's counsel provided copies of GPC's clarification letter to all persons on the service list, including Intervenor, to make sure the parties were aware of the clarification.
C. AS A MATTER OR DUE PROCESS, OFFICERS TESTIFYING ON BEHALF OF A CORPORATION ARE ENTITLED TO CONSULT WITH CORPORATE COUNSEL In addition to the right to counsel granted by the APA to all witnesses compelled to testify before an agency, a right-to-counsel has been recognized in the due process clause of the U.S. Constitution.2 Such a right may exist for parties in civil litigation, and where the pany is a corporation, for members of the control group (n, officers, directors, and managers) of the corporation. Moreover, judicial precedent makes it clear that such right to counsel includes the right to consult with counsel, even during breaks in cross-examination.
Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir.), g_qrL denied, 449 U.S. 820 (1980), held that an order prohibiting a witness, who in this case was the president and sole shareholder of the defendant corporation, from consulting with counsel l 1
during coun recesses and breaks (after the witness had taken the stand but before his testi. mony )
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i At the November 17,1994 prehearing conference, the Staff urged the Board to give l special consideration to the due process aspects relating to right to counsel. Tr. 844. ]
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o had been completed) violated the Fifth Amendment due process right to counsel. E at 1119.
The Coun relied in part on Geders v. United States,425 U.S. 80 (1976), in which the Supreme Coun had held that a trial coun order prohibiting a criminal defendant from consulting with his attorney during a 17-hour overnight recess violated the defendant's Sixth Amendment right to assistance of counsel. Sec Geders,425 U.S. at 91.
I The Fifth Circuit in Potashnick recognized that the constitutional right to counsel granted to a criminal defendant differed from the right granted to a civil litigant, but found the distinction irrelevant to the facts at issue. The Fifth Circuit reasoned that in both the civil and 1
criminal context, the litigant usually lacks the skill and knowledge to adequately prepare his case, and he requires the guiding hand of counsel at every step in the proceeding against him. See Powell v. Alabama,287 U.S. 45,69 (l932). In each instance, the right to counselis one of constitutional dimensions and should thus befreely exercised without impingement . . .
The need for attorney-client communication is cenainly no less in a civil case.
Potashnick,609 F.2d. at 1118-19 (emphasis added).
In GedcIs, as in Potashnick, the trial coun imposed the sequestration order to avoid the risk of improper " coaching" of witnesses. E at i119. The Supreme Court in Deders suggested alternative methods (such as cross-examination) to safeguard against improper influence on a witness' testimony without cutting off communication between the attomey and j client, but ultimately determined that if these alternative measures proved to be insufficient, "the conflict . . . must be msolved in favor of the right to the assistance and guidance of counsel" under the Sixth Amendment. Geders,425 U.S. at 91. Potashnick expressly extended this conclusion to the civil litigant's due process right to assistance of counsel under the Fifth Amendment. E at 1119.
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1 A due process right to counsel applied in the Eetashnick case because the witness in question held a position that " required him to act for the corporation in the attorney-client relationship so as to afford him client status." Li at i119. The Court adopted the " control group" test for " client status" previously fonnulated by the Tenth Circuit in Natta v. Hogan, 392 F.2d 686 (10th Cir.1968). This test specifies that an officer or an employee of a corporate party shall be deemed a client if he has membership in the " control group" authorized to make decisions for the corporation with respect to the legal matter about which the attorney is consulted. In other words, [the test is] . whether the person has the authority to control or substantially participate in a decision regarding action to be taken on the advice of a lawyer, or is an authorized member of a group that has such power.
Potashnick 609 F.2d 1119 n.12, citing Natta. 392 F.2d at 692.
All of the GPC witnesses identified in the November 9 Memorandum and Order (Hairston, McCoy, and Mcdonald) are present or fonner officers of GPC.' They are thus encompassed within the corporate control group and considered clients by GPC's counsel in this case. As such, they have a due process right, under Potashnicis, to confer with counsel.
This due process right is especially deserving of protection in a proceeding where the integrity of the corporation, as well as the individual officers and managers, is at issue. Under such circumstances, where strong reputational interests are involved, it is imperative that the officers be properly represented. Counsel's participation is important to make sure the witnesses an: properly infonned and communicate their understandings and opinions clearly.
GPC does not know whom Intervenor will call as an adverse witness on this issue, but expects that all such persons would similarly be GPC officers or managers, or officers or managers of GPC affiliates (Southern Company Services and Southern Nuclear) also represented by GPC's counsel in this proceeding.
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f Counsel's participation will not only protect the rights of GPC, its affiliates, and their officers, but also contribute to a sound adjudicatory record.
IV. Conclusion 4
For all of the reasons stated above, the Licensing Board should reconsider its sequestration order and permit GPC's counsel to communicate with its witnesses on all issues in this proceeding.
Respectfully submitted, s' @ k Ernest L. Blake ;
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David R. I2wis ,
SHAW PITTMAN POTTS & TROWBRIDGE '
2300 N Street, N.W. ;
Washington, D.C. 20037
~( 202) 663-8000 James E. Joiner John Lunberski TROUTMAN SANDERS Suite 5200 600 Peachtree Stmet, N.E.
Atlanta, GA 30308 '
(404) 885-3360 Counsel for Georgia Power Company Dated: November 23,1994 94326D010f4 i
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I DOCKETED USNRC November 23,1994 94 NOV 25 P3 :02 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION n , : :v DOCKE ilIW $ '" # li '
Before the Atomic Safety and Licensine Bo'aEdWH In the Matter of ) Docket Nos. 50-424-OLA-3
) 50-425-OLA-3 GEORGIA POWER COMPANY, )
et al. ) Re: License Amendment
) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, )
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that copies of " Georgia Power Company's Motion for Reconsideration of Sequestration Order," dated November 23,1994, were served upon the persons listed on the attached service list by deposit in the U.S. Mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, this 23rd day of November,1994.
David R. Lewis Counsel for Georgia Power Company
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensine Board In the Matter of ) Docket Nos. 50-424-OLA-3
) 50-425-OLA-3 GEORGIA POWER COMPANY, )
etal. ) Re: License Amendment
) (Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, )
Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3 SERVICE LIST Administrative Judge Director,
' Peter B. Bloch, Chairman Environmental Protection Division Atomic Safety and Licensing Board Department of Natural Resources U.S. Nuclear Regulatory Commission 205 Butler Street, S.E., Suite 1252 Washington, D.C. 20555 Atlanta, Georgia 30334 Administrative Judge Stewart D. Ebneter James H. Carpenter Regional Administrator, Region II Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 933 Green Point Drive 101 Marietta Street, N.W., Suite 2900 Oyster Point Atlanta, Georgia 30303 Sunset Beach,N.C. 28468 Administrative Judge Office of the Secretary
- Thomas D. Murphy Att'n: Docketing and Service Branch Atomic Safety and Licensing Board U.S. U.S. Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- Michael D. Kohn, Esq. Office of Commission Appellate Adjudication Kotui, Kohn & Colapinto U.S. Nuclear Regulatory Commission 317 Florida Avenue, N.W. Washington, D.C. 20555 Washington, D.C. 20001 l
- Mitzi A. Young, Esq. Carolyn F. Evans, Esq.
- Charles Barth, Esq. U.S. Nuclear Regulatory Commission
- John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 Office of the General Counsel Atlanta, Georgia 30323-0199 )
One White Flint North Stop 15B18 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Adjudicatory File Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission J Washington, D.C. 20555 !
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