ML20077C878

Motion to Compel Production of Documents by Governor Deukmejian.Correspondence,Notes & Other Gubernatorial Documents Clearly Fall within Licensee Request.Certificate of Svc Encl.Related Correspondence

ML20077C878
Person / Time
Site:	Diablo Canyon
Issue date:	07/20/1983
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
ISSUANCES-OL, NUDOCS 8307260275
Download: ML20077C878 (12)

Text

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.!% gliD @ y W Q E M 1 UNITEDSTATESOFAMERICAlk 1 i- Jul. 2 51983 t> -

2 NUCLEARREGULATORYCOMMISSIONh pg /

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3  ; DYNN s//I

. -g. 0 4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOAR 5

6 7 In the Matter of )

) Docket No. 50-275 O.L.

8 PACIFIC GAS AND ELECTRIC COMPANY Docket No. 50-323 O.L.

)

)

9 Diablo Canyon Nuclear Power Plant ) (Reopened Hearing --

Units Nos. 1 and 2 ) Design Quality 10 ) Assurance) 11 12 13 MOTION OF LICENSEE i TO COMPEL PRODUCTION OF DOCUMENTS 14 BY GOVERNOR DEUKMEJIAN

, ' 15 16 l 17 Pursuant to 10 CFR $ 2.740(f)(1), Licensee moves 18 the presiding member of this Board, and members thereof, for 19 an order compelling Governor Deukmejian to fully respond to L

20 Licensee's document production request previously served on 21 the Governor on June 10, 1983. The response of the Governor 22 was served on July 15, 1983.

23 The Governor has objected to several 24 interrogatories on the blanket ground that the documents 25 requested are all work-product and were made in preparation 26 /// '

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i 1 for litigation and not discoverable under the provisions of-2 -10 CFR 5-2.740(b)(2). -

3 As to any document for which a privilege was to be 4 claimed the document production request specific' ally _ asked _

i 5 that the . Governor identify the ~ document, describe its 6 nature, and identify its author, its addressee, and.its i 7 custodian. (First Document Discovery Request by ' Pacific Gas 8 and ' Electric Company to Governor Deukmsjian, page 2, lines' 9 1-22).

10 The Governor has failed -to provide- such 11 information to which Licensee is clearly entitled.

12 By slight of pen, counsel for the Governor also 13 has deftly excluded any documents which preceded January 3, ,

14 1983.

~

Licensee's document request, as do the issues of the 15 motion to reopen, extends farther back in ytime and extends 16 also to individuals other-- than this particular Governor.

17 Correspondence, notes and theflike of other representatives -

^

18 of the Governor, made prior tb Jariuary 3, 1983, clearly fall

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19 within Licensee's request.

20 --

i 21 PRODUCTION REQUESTS

/

22 Request No. 1.

23 All writings you have.ltaken at all meetings 24 between the NRC and/or PG&E and/or companies-involved in the

25 Independent Design Verification Program (IDVP) from 26 October 1, 1981 to the present.

. _ . - _ . . . . . - _ _ . ~ . - _ - - - . _ - . - . _ _ . ~ . _ . _ . . _ _ . - . - - . - - . - - _ - _ - . _ _ - _ . - - - - - - - ~

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Response

2 This request ic objected to as requesting material 3 i.that is attorney ~,. .

work' product and not-discoverable under the-4 'sRC' Rules of Practicie, r10 C.F.R. section 2.740(b)(2). 'All 5 writings ~ requested were made by attorneys or consultants 4 6 Lworking at the direction of attorneys, were - made in 7 preparation for litigation, 'and contain the mental-8 impressions, conclusions, and opinions.of the authors.

9 ' Request No. 2.

10 All do'cuments relating to Diablo Canyon design or i s 11 design quality assurance' prepared by PG&E, the IDVP, or the l

-12 NRC, ~ having.- comments, notes, or-the like on them and any

, 13 writings prepared by or for you discussing, commenting on or

' x14 otherwise referring to those documents.

15 P.esponse:

16 This request is objected to on_the following 17 . grounds. All, documents requested are on file in this case 18 and _ are fully available to PG&E. Insofar as the request 19 seeks notes, comments, and the like written on these 20 documents by " counsel or their employees or seeks writings 21 discussing or commenting on these documents, the request 22 seeks material that is work product and not discoverable t

23 under~ the . NRC Rules of Practice 10 C.F.R. Section 24 2.740(b)(2)' . Any and all such writings were made by counsel 25 or by consultants to or employees of counsel working at 26 counsel's direction, were made in preparation for 4

- . _ - - - . _ , . , ~ , - - . _ _ _ _ _ _ , . _ _ , _ _ . _ _ . . _ . . . . . , _ _ . . . _ _ _ . _ . . _ . . . _ . . _ _ _ _ _ _ _ _ _

7 N

3 _ litigation, and contain the mental impressions, legal j 2 theories, conclusions, and opinions of the authors.

3 Request No. 3.

4 4 All documents relating to Diablo Canyon design or 5 design quality assurance not produced in response to Request l

.6 No. 2 which have been prepared or reviewed by or for you.

7 Response:

8 Insofar as this request seeks material prepared by 9 or at direction of counsel, in preparation for litigation, 10 and containing the mental impressions, legal theories, and 4

11 conclusions of the authors, the request is objected to on 12 the ground that the documents are work product and not 4

13 discoverable under the NRC Rules of Practice, 10 C.F.R. 14 Section 2.740(b)(2).

15 The Governor has received some letters from i 16 private citizens or groups discussing design quality 17 assurance at Diablo Danyon [ sic], and will produce these in 18 Sacramento if requested to do so.

19 Request No. 4.

4 20 All documents that contain calculations, analyses 21 or computer programs performed by or for you regarding the 22 design of Diablo Canyon structures, systems or components.

1 23 Response: 5 24 ~Other than documents objected to in the response 25 to Request No. 2, above, no such documents exist.

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1 Request No. 5.

2 All correspondence or records of meetings or 3 telephone conversations between Mr. Hubbard (or his 4 associatas) and Dr. -Rosette [ Sic.] (or his associates) 5 related in any way to design of structures, systems, or 6 components at Diablo Canyon.

7 Response:

8 This -request is objected to as calling for 9 materials that are work product and not discoverable under 10 the NRC Rules of Practice, 10 C.F.R. Section 2.740(b)(2).

11 All meetings between Mr. Hubbard and Dr. Roesset took place 12 in the presence cf counsel, and notes of such meetings were 13 taken by or at direction of counsel, in preparation for f 14 litigation, and contain the mental impressions, legal 15 theories, opinions, and conclusions of the authors.

16 Request No. 6.

17 All notes, calculations, meeting minutes, computer l

18 outputs, drawings or other writings prepared by MHB l 19 Technical Associates or Dr. Rosette [ sic.] or any other of l

20 your technical consultants related in any way to design or 21 design quality assurance at Diablo Canyon.

22 Response:

23 All documents requested have been requested and 24 objected to previously.

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1 Argument:

2 Basic to the scope of discovery is the premise 3 that a party is entitled to information which appears 4 reasonably calculated to lead to admissible evidence. 10 5 CFR $ 2.740(b)(1). Notwithstanding the claim of the 6 Governor that Licensee has requested documents which may be 7 privileged, facts as to the description of such documents,

8 their origin, their addressee, their author, and their 9 present custodian are facts which are discoverable. 10 CFR 10 $ 2.740(b)(2) provides protection only for " documents and 11 tangible things." Ford v. Phillips Electronic Instruments 12 Co. 82 F.R.D. 359, 360 (D.C. B. 1979). Courts have 13 consistently held that the work product concept furnishes no 14 shield against discovery,. by interrogatories or by 15 deposition, of the facts that the representative of a party 16 has learned, or the persons from whom he has learned such 17 facts, or the existence or nonexistence of documents, even 18 though the documents themselves may not be subject to 19 discovery. I_n g Intern. Systems 2nd Controls C_org.o 20 Securities 91 F.R.D. 552, 561 (D.C. Tex 1981). U.S. v.

21 ' Glaxo Group Ltd. D.C.D.C. 1969 302 F. Supp. 1, 17; 8 Wright 22 and Miller 5 2023, page 194. Absent identification and 23 description as requested by Licensee, it is not even 24 possible for Licensee or this Board to ascertain whether the 25 information contained within the documents was actually 26 prepared for litigation or whether it could be readily

1 obtained from some other source. As to the documents, 2 themselves, some may be discoverable. Documents and 3 tangible things which are not trial preparation material are 4 routinely discoverable, Peterson v. U.S. 32 F.R.D.317, 320 5 (D.C. Ill, 1971).

6 Licensee would also respectfully point out that 7 the issues at hand involve an extremely complex subject 8 matter. Where, for example, the use of computers is 9 involved regardless of whether an expert is involved, 10 Licensee may be entitled to access to calculations or 11 computer outputs under modern theory:

12 uIn order to prepare to . defend against the conclusions that are said to flow 13 from these efforts, the discovering party not only must be given access to 14 the data that represents the computer's

' work product,' but he also must see the 15 data put into the computer, the programs used to manipulate the data produced the 16 conclusions, and the theory or logic l employed by those who planned and exe-

17 cuted the experiment." 8 Miller &

! Wright 5 2218, page 660.

. 18 l

19 counsel for the Governor has sought to universally 20 immunize all documents from discovery. Just because certain 21 information may be contained in the- files of counsel or a 22 representative of a party does not, in itself, make auch 23 iniormation work product. As the U. S. Supreme Court stated 24 in the landmark case of Hickman v. Taylor (1947) 329 U. S.

25 495, 511, 67 S.Ct. 385, 394:

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1 Where relevant and non-privileged facts -

remain hidden in an attorney's file and i 2 where production of those facts is es- ,

i sential .to the preparation of one's  !

3 case, discovery may properly be had.

• such written statements and documents 4 might, under certain circumstances, be admissible in. evidence or give clues as

! 5 to the existence or-location of relevant facts. Or they might be useful for

. 6 purposes of impeachment or corrobora-l tion. And production might be justified ,

7 where the witnesses are no longer avail-

able or can be reached only with 8 difficulty.

9 Licensee acknowledges the immunity of work-product set forth 10 in 10 C.F.R. 2.740(b)(2). However, notwithstanding such 11 rule, documents containing relevant information are subject 12 to review by this Board in camera:

13 Our ruling that opinion. work product is  ;

i discoverable only. in rare and extra-( 14 ordinary circumstances does not shield these materials from judicial scrutiny.

15 An attorney Inay be ordered to deliver his opinion work product to the court 16 for Lin- camera inspection. In re

. Fish & Neave, 519 F.2d 116 (8th CiE 17 1975); see United States v. Nixon 418 U.S. 683, 713-14, 94 S.Ct. 3090, 41 18 L.Ed.2d 1039 (1974). The court can '

categorize the material according to its 19 nature and issue any discovery orders that are justified under Rule 26(b)(3),

20 giving due protection to those portions containing an attorney's mental

-21 impressions, opinions and legal theories. Furthermore, our ruling does  !

22 rsot undermine the integrity of the fact-finding process. Under Rule 23 26(b)(3), any relevant facts contained L in non-discoverable opinion work product 24 are discoverable ~ upon a proper showing.

Advisory Committee's Notes to Rule 25 26(b)(3), 48 F.R.D. 487, 501 (1975);

see 8 C. Wright & A. Miller, Federal 26 Practice and Procedure 9 2023, at 194-96

1 (1970). re Murphy 560 F.2d 326, 2

336-337, n. (In20,-(8th Cir. 1977)).

-3 Finally, the Governor has failed to satisfy the 4 necessary procedural requirements in order to claim the 5 workproduct privilege.

6 A proper claim of privilege requires a specific designation and description of 7 the documents within its scope as well as precise and certain reasons for pre-8 serving their confidentiality. Unless the affidavit is precise to bring the 9 document within the rule, the court has no basis on which to weigh the applica-10 bility of the claim of privilege. An improperly asserted claim is no claim at i 11 all. . . .In short, a party resisting disclosure on the ground of attorney-12 client privilege must by affidavit .show sufficient facts as to bring the 13 identified and described document within the narrow confines of the privilege.

14 International Paper Co. v. Fibreboard 15 Corp. 63 F.R.D. 88, R (D. Del. 1974).

16 Accordingly, Counsel for the Governor should not, with the l 17 waive of a pen, be able to cloak all documents in his 18 possession or in the possession of the representative of the 19 Governor from review or production expecially without 20 describing and fully identifying those documents for 21 Licensee and the Board.

[ 22 CONCLUSION 23 Licensee respectfuly requests that the Board order

24 the Governor and his representatives to deliver documents 25 requested or in the alternative that the Governor fully 26 respond to the instructions of the request and' identify,

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i 1 describe, and locate each such document for which immunity 2 is claimed.

3 4 Respectfully submitted, 5 ROBERT OHLBACH PHILIP A. CRANE, JR.

6 RICHARD F. LOCKE Pacific Gas and Electric Company 7 P.O. Box 7442 San Francisco, California 94120 8 (415) 781-4211 9 ARTHUR C. GEHR Snell & Wilmer 10 3100 Valley Center Phoenix, Arizona 85073 11 (602) 257-7288 12 BRUCE NORTON Norton, Burke, Berry & French, P.C.

i 13 P.O. Box 10569 Phoenix, Arizona 85064 14 (602) 955-2446 15 Attorneys for Pacific Gas and Electric Company j 17 l 18 By /s/ Bruce Norton _

Bruce Norton 19 20 DATED: July 20, 1983.

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UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

l PACIFIC GAS AND ELECTRIC COMPANY ) Docket No. 50-275

) Docket No. 50-323 Diablo Canyon Nuclear Power Plant,-) -

Units 1 and 2 )

)

CERTIFICATE OF SERVICE

! The foregoing document (s) of Pacific Gas and Electric Company hoo (have) been served today on the following by deposit in the United States mail, properly stamped and addressed:

Judge John F. Wolf Mrs. Sandra A. Silver Chairman 1760 Alisal Street Atcmic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission Wnchington DC 20555 Mr. Gordon Silver 1760 Alisal Street Judge Glenn O. Bright San Luis Obispo CA 93401 4

Atcmic Safety and Licensing Board US Nuclear Regulatory Commission

• John Phillips, Esq.

Wcchington DC 20555

• Joel Reynolds, Esq.

' Center for Law in the Public Interest Judge Jerry R. Kline 10951 W. Pico Blvd. - Suite 300 Atcmic Safety and Licensing Board Los Angeles CA 90064

• US Nuclear Regulatory Commission W3chington DC 20555 David I. Fleischaker, Esq.

P. O. Box 1178 Mro. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.

San Luis Obispo CA 93401 Snell & Wilmer l

3100 Valley Bank Center Jcnice E. Kerr, Esq. Phoenix AZ 85073 l

Public Utilities Commission Bruce Norton, Esq.

State of California l

5246 State Building Norton, Burke, Berry & Fre,nch, P.C.

350 McAllister Street P. O. Box 10569 San Francisco CA 94102 Phoenix AZ 85064 Mro. Raye Fleming Chairman 1920 Mattie Road Atomic Safety and Licensing Shall Beach CA 93449 Board Panel US Nuclear Regulatory Commission Mr. Frederick Eissler Washington DC 20555 Scanic Shoreline Preservation -

conference, Inc.

4623 More Mesa Drive Santa Barbara CA 93105 L '.

a _ - __

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T . - - . . _ .

Chairman

• Judge Thomas S. Moore Atomic Safety and Licensing Chairman Appeal Panel Atomic Safety and Licensing _

US Nuclear Regulatory Commission Appeal Board W30hington DC 20555 US Nuclear Regulatory Commission..

Washington DC 20555 Sscretary US Nuclear Regulatory Commission

• Judge W. Reed Johnson Washington DC 20555 Atomic Safety and Licensing  :

Appeal Board Attn: Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555

• L3wrence J. Chandler, Esq.

• Judge John H. Buck Jack R. Goldberg, Esq. Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission Washington DC 20555 Washington DC 20555

'* Mr. Richard B. Hubbard

• Michael J. Strumwasser MHB Technical Associates Susan L. Durbin 1723 Hamilton Avenue, Suite K Peter-H. Kaufman San Jot; CA 95125 3580 Wilshire Blvd. Suite 800 Los Angeles CA 90010 Mr. Carl Neiberger Talsgram Tribune P. O. Box 112 San Luis Obispo CA 93402 i

Date: July 21, 1983 /

Pa6ific Gas and Electric Company

'*HEnd delivered on July 21, 1983, by Bruce Norton. Others mailed same date. i

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