ML20077G023
| ML20077G023 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 07/27/1983 |
| From: | Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8308030308 | |
| Download: ML20077G023 (11) | |
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1 UNITED STATES OF AMERIC 2
NUCLEAR REGULATORY COMMISSION 3
4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5
6 7
8 In the Matter of
)
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Docket No. 50-275 O.L.
9 PACIFIC GAS AND ELECTRIC COMPANY
)
Docket No. 50-323 0.L.
)
10 Diablo Canyon Nuclear Power Plant
)
(Reopened Hearing --
Units Nos. 1 and 2
)
Design Quality 11
)
Assurance) 12 13 14 15 MOTION OF LICENSEE TO COMPEL PRODUCTION OF DOCUMENTS 16 BY JOINT INTERVENORS l
17 l
18 l
19 20 Pursuant to 10 CFR 5 2.740(f)(1), Licensee moves 21 the presiding member of this Board, and members thereof, for 22 an order compelling Joint Intervenors to fully respond to 23 Licensee's document production request previously served on 24
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1 the Joint Intervenors on June 10, 1983.
The response of the 2
. Joint Intervenors was served on July 15, 1983. _1/
3 The Joint Intervenors have objected to several 4
interrogatories on the blanket ground that the documents 5
requested are protected by attorney client privilege and 6
work product privilege and implicitly are not discoverable 7
under the provisions of 10 CFR 5 2.740(b)(2).
8 As to any document for which a privilege was to be 9
claimed the document production request specifically asked 10 that the Joint Intervenors identify the document, describe 11 its nature,'and identify its author, its addressee, and its 12 custodian.
(First Document Discovery Request by Pacific Gas 13 and Electric Company to Joint Intervenors and Governor 14 Dethanejian, page 2, lines 1-23).
15 The Joint Intervenors have failed to provide such 16 information to which Licensee is clearly entitled.
17 18
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21 22 J/
Although the service list was signed July 15, 1983, the response of the Joint Intervenors was not postmarked 23 until July 18, 1983.
The zip code of Licensee was misstated, as the Board has been informed has occurred 24
. on other occasions, and Licensee did not receive Joint Intervenors' Re.sponse until July 25, 1983.
No' copy of 25 the response was, provided as a matter of professional courtesy to Licensee or its counsel at the hearing 4
26 which took place July 19, 20, 21, and 22, 1983.
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1 PRODUCTION REQUESTS 2
Request No. 1.
l 3
Al1 writings you have taken at all meetings 4
between the NRC and/or PG&E and/or companies involved in the 5
Independent Design Verification Program (IDVP) from 6
October 1, 1981 to the present.
7
Response
8 Joint Intervenors object to this request as i
9 calling for documents protected by the attorney-client l
l 10 privilege and attorney work product privilege.
l 11 Request No. 2.
l 12 All documents relating to Diablo Canyon design or 13 design quality assurance prepared by PG&E, the IDVP, or the 14 NRC, having comments, notes, or the like on them and any 15 writings prepared by or for you discussing, commenting on or 16 otherwise referring to those documents.
17
Response
18 Joint Intervenors object to this request as 19 calling for documents protected by the attorney-client 20 privilege and attorney work product privilege.
21 Request No. 3.
22 All documents relating to Diablo Canyon design or 23 design quality assurance not produced in response to Request 24 No. 2 which have been prepared or reviewed by or for you.
25
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I 1
Response
2 Joint. Intervenors object to this request as 3
calling for, documents protected by the attorney-client 4
privilege and attorney work product privilege.
All 5
documents not covered by the above-cited privileges are part 6
of the public record in this proceeding.
i 7
Request No. 7.
8 All notes, calculations, meeting minutes, computer 9
- outputs, drawings or other writings prepared by MHB 10 Technical Associates or Dr. Rosette or any_other of your 11 technical consultants related in any way to design or design 12 quality assurance at Diablo Canyon.
13
Response
14 Joint Intervenors object to this request as 15 calling for documents protected by the attorney-client and 16 work product privilege.
17 Argument:
(Requests 1, 2, 3, and 7) 18 Basic to the scope of discovery is the premise 19 that a party is entitled to information which appears 20 reasonably calculated to lead to admissible evidence.
10 21 CFR 5 2.740(b)(1).
Notwif.hstanding the claim of the Joint 22 Intervenors that Licensee has requested documents which may 23 be privileged, facts as to the description of such 24 documents, their origin, their addressee, their author, and 25 their present custodian are facts which are discoverable.
26 10 CFR S 2.740(b)(2) provides protection only for " documents yy-----ag-,,--em-.-
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1 and tangible things."
Ford v.
Phillips Electronic 2
Instruments Co. 82 F.R.D.
359, 360 (D.C. B. 1979).
Courts 3
have consistently held that the work product concept 4
furnishes no shield against discovery of the facts that the 5
representative of a party has learned, or the persons from 6
whom he has learned such facts, or the existence or 7
nonexistence of documents, even though the documents 8
themselves may not be subject to discovery.
I_n re, Intern.
l-9 Systems 2nd Controls Corp. Securities 91 F.R.D.
552, 561 10 (D.C. Tex 1981).
U.S.
v.
Glaxo Group Ltd.
D.C.D.C.
1969 11 302 F.
Supp. 1, 17; 8 Wright and Miller i 2023, page 194.
12 Absent identification and description as requested by 13 Licensee, it is not even possible for Licensee or this Board i
14 to ascertain whether the information contained within the 15 documents was actually prepared for litigation or whether it 16 could be readily obtained from some other source.
As to the 17 documents, themselves, some may be discoverable.
Documents 18 and tangible things which are not trial preparation material 19 are routinely discoverable.
Peterson v. U.S.
52 F.R.D.317, 20 320 (D.C. Ill, 1971).
21 Licensee would also respectfully point out that 22 the issues at hand involve an extremely complex subject 23 matter.
- Where, for example, the use of computers is 24 involved regardless of whether an expert is involved, 25 Licensee may be entitled to access to calculations or 26 computer outputs under modern tneory:
e
- 1 "In order to prepare to defend against the conclusions that are said to flow 2
from these
- efforts, the discovering party not only must be given access to 3
the data that represents the computer's
' work product,' but he also must see the 4
data put into the computer, the programs used to manipulate the data produced the 5
conclusions, and the theory or logic employed by those who planned and exe-6 cuted the experiment."
8 Miller l
Wright $ 2218, page 660.
7 8
Counsel for the Joint Intervenors has sought to 9
universally immunize all documents from discovery.
Just 10 because certain information may be contained in the files of 11 counsel or a representative of a party does not, in itself, 12 make such informction work product.
As the U. S. Supreme 13 Court stated in the landmark case of Hickman v.
Taylor 14 (1947) 329 U.
S. 495, 511, 67 S.Ct. 305, 394:
15 Where relevant and non-privileged facts remain hidden in an attorney's file and 16 where production of those facts is es-sential to the preparation of one's 17
- case, discovery may properly be had.
Such written statements and documents l
18 might, under certain circumstances, be admissible in evidence or give clues as 19 to the existence or location of relevant facts.
Or they might be useful for 20 purposes of impeachment or corrobora-l tion.
And production might be justified 21 where the witnes'ses are no longer avail-able or can be reached only with 22 difficulty.
23 Licensee acknowledges the immunity of work-product set forth 24 in 10 C.F.R. 2.740(b)(2).
However, notwithstanding such 25 rule, documents containing relevant information are subject 26 to review by this Board in camera:. - - _
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Our ruling that opinion work product is discoverable only in rare and extra-2 ordinary circumstances does not shield these materials from judicial scrutiny.
3 An attorney may be ordered to deliver his opinion work product to the court 4
for camera inspection.
In re in Fish & Neave, 519 F.2d 116 (8tF Cir-5 1975);
see United States v.
Nixon 418 U.S.
- 683, 713-14, 94 S.Ct.
- 3090, 41 6
L.Ed.2d 1039 (1974).
The court can categorize the material according to its 7
nature and issue any discovery orders that are justified under Rule 26(b)(3),
8 giving due protection to those portions containing an attorney's mental 9
impressions, opinions and legal theories.
Furthermore, our ruling does 10 not undermine the integrity of the fact-finding process.
Under Rule 11 26(b)(3), any relevant facts contained in non-discoverable opinion work product 12 are discoverable upon a proper showing.
Advisory Committee's Notes to Rule 13 26(b)(3),
48 F.R.D.
- 487, 501 (1975);
see 8 C. Wright &
A. Miller, Federal 14 Practice and Procedure f 2023, at 194-96 (1970).
(In re Murphy 560 F.2d 326, 15 336-337, n. 20, (8th Cir. 1977)).
16 Finally, the Joint Intervenors have failed to 17 satisfy the necessary procedural requirements in order to 18 claim either the work-product or attorney-client privilege.
19 A proper claim of privilege requires a specific designation and description of 20 tha documents within its scope as well as precise and certain reasons for pre-21 serving their confidentiality.
Unless the affidavit is precise to bring the 22 documant within the rule, the Court has no basis on which to weigh the applica-23 bility of the claim of privilege.
An improperly asserted claim is no claim at 24 all.
.In short, a party resisting disclosure on the ground of attorney-25 client privilege must by affidavit show sufficient facts as to bring the 26 identified and described document within -_
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1 the narrow confines of the privilege.
International Paper Co. v.
Fibreboard 2
Corp. 63 F.R.D.
88, M (D. Del. 1974),
3 Request No. 5.
4 All correspondence or records.of meetings or 5
telephone conversations between Mr. Hubbard (or his 6
associates) and Dr. Rosette [ Sic.] (or his associates) 7 related in any way to design of structures, systems, or 8
components at Diablo Canyon.
9
Response
10 Joint Intervenors object to this request based on 11 the fact that PGandE has been provided with copies of all i
12 correspondence between Joint Intervenors and the NRC.
13 Argument:
14 Joint Intervenors' response to Kequest No. 5 is l
15 incomplete because it speaks only to documents which are not l
l 16 the subject of the document request.
Pursuant to 10 CFR 17 5 2.740(f), an evasive or incomplete response is to be 18 treated as a failure to respond.
19 CONCLUSION 20 Accordingly, Counsel for the Joint Intervenors 21 should not, with the waive of a pen, be able to cloak all 22 documents in their possession from review or production 23 expecially without describing and fully identifying those 24 documents for Licensee and the Board.
25 Licensee respectfuly requests that the Board order 26 the Joint Intervonors to deliver documents requested or in
1 the alternative that the Joint Intervenors fully respond to 2
the instructions of the request and identify, describe, and 3
locate each such document for which immunity is claimed.
4 5
Respectfully submitted, 6
ROBERT OHLBACH PHILIP A. CRANE, JR.*
7 RICHARD F. LOCKE Pacific Gas and Electric Company 8
P.O. Box 7442 i
San Francisco, California 94120 9
(415) 781-4211 10 ARTHUR C. GEHR Snell & Wilmer 11 3100 Valley Center Phoenix, Arizona 85073 12 (602) 257-7288 13 BRUCE NORTON Norton, Burke, Berry & French, P.C.
14 P.O. Box 10569 Phoenix, Arizona 85064 15 (602) 955-2446 16 Attorneys for Pacific Gas and Electric Company 17 18 19 By I
Bruce Norton 20 21 DATED:
July 27, 1983.
22 23 24 25 26.
9 UNITED STATES OF AMERICA
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4 NUCLEAR REGULATORY COMMISSION 9
In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket No. 50-27.9-
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Docket No. 50-32
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Diablo Canyon Nuclear Power Plant, )
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Units 1 and 2 W
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g cp CERTIFICATE OF SERVICE The foregoing document (s) of Pacific Gas and Electric Company has (have) been served today on.the following by deposit in the United Sta,tes mail, properly stamped and addressed:
Judge John F. Wolf Mrs. Sandra A. Silver Chairman 1760 Alisal Street i
Atomic Safety and Licensing Board San Luis Obispo CA 93401 US Nuclear Regulatory Commission W2shington DC 20555 Mr. Gordon Silver 1760 Alisal Street
' Judge Glenn O.
Bright San Luis Obispo CA 93401 Atomic Safety and Licensing Board i
US Nuclear Regulatory Commission John Phillips, Esq.
Washington DC 20555 Joel Reynolds, Esq.
Center for Law in the Public Interest i
Judge Jerry R.. Kline 10951 W. Pico Blvd. - Suite 300 l
Atomic Safety and Licen. ding Board Los Angeles CA 90064 US Nuclear Regulatory Commission Washington DC 20555 David F. Fleischaker, Esq.
P..O. Box 1178 Mrs. Elizabeth Apfelberg Oklahoma City OK 73101 c/o Betsy Umhoffer 1493 Southwood Arthur C. Gehr, Esq.
San Luis Obispo CA 93401 Snell & Wilmer 3100 Valley Bank Center Jenice E. Kerr, Esq..
Phoenix AZ 85073 Public Utilities Commission State of California Bruce Norton, Esq.
5246 State Building Norton, Burke, Berry & French, P.C.
350 McAllister Street P. O. Box 10569 l
Phoenix AZ 85064 Scn Francisco CA 94102 Mrs. Raye Fleming
' Chairman i
1920 Mattie Road Atomic Safety and Licensing Shell Beach CA 93449 Board Panel US Nuclear Regulatory Commission Mr. Frederick Eissler Washington DC 20555 Scenic Shoreline Preservation Conference, Inc.
4623 More Mesa Drive Santa Barbara CA 93105
p Chairman Judge Thomas S. Moore Atomic Safety and IAcensing Chairman Appeal Panel Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Wachington DC 20555 US Nuclear Regulatory Commission Washington DC 20555 S;cretary US Nuclear Regulatory Commission Judge W. Reed Johnson Wnchington DC 20555 Atomic Safety and Licensing Appeal Board Attn:
Docketing and Service US Nuclear Regulatory Commission Section Washington DC 20555 Ltwrence J. Chandler, Esq.
Judge John H. Buck H:nry J. McGurren Atomic Safety and Licensing US Nuclear Regulatory Commission Appeal Board Office of Executive Legal Director US Nuclear Regulatory Commission W2shington DC 20555 Washington DC 20555 Mr. Richard B. Hubbard Michael J.
Strumwasser, Esq.
MHB Technical Associates Susan L. Durbin, Esq.
1723 Hamilton Avenue Suite K Peter H. Kaufman, Esq.
Sen Jose CA 95125 3580 Wilshire Blvd.
Suite 800 Los Angeles CA 90010 Mr. Carl Neiberger Talegram Tribune Maurice Axelrad, Esq.
P. O. Box 112 Lowenstein, Newman, Reis, and Sen Luis Obispo CA 93402 Axelrad, P.C.
1025 Connecticut Avenue NW Washington DC 20036
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m Dated:
July 27, 1983 A
Pacific Gas and Electric Company M
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