ML20077H757

Reply to Joint Intervenors Response to Util Motion to Compel Joint Intervenors Answers to Interrogatories.Joint Intervenors Continue to Adhere to Groundless Objections & Refuse to Respond to Request.Related Correspondence

ML20077H757
Person / Time
Site:	Diablo Canyon
Issue date:	08/04/1983
From:	Norton B NORTON, BURKE, BERRY & FRENCH, PACIFIC GAS & ELECTRIC CO.
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20077H749	List: ML20077H748 ML20077H757 ML20077H763
References
NUDOCS 8308110276
Download: ML20077H757 (9)

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1 BEu t' AUG 81983~l > h l UNITED STATES OF AMERICA /

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i 4 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 5

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) Docket Nos. 50-275 8 PACIFIC GAS AND ELECTRIC COMPANY 50-323

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9 (Diablo Canyon Nuclear Power (Reopened Hearing --

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Plant, Units No. 1 and 2) ) Design Quality 10

) Assurance) 11 12 13 REPLY OF LICENSEE PACIFIC GAS AND ELECTRIC COMPANY TO RESPONSE TO MOTION TO COMPEL 14 ANSWERS TO INTERROGATORIES TO JOINT INTERVENORS 15 16 In their Response to Licensee's Motion to Compel, 17 Joint Intervenors state that "first and foremost, the Joint 18 Intervenors wish to emphasize that, contrary to PG&E's 19 assertion, they are committed to complying with their 20 obligations in the discovery process." Assuming, arguendo, 21 the truth of this assertion, a review of their Response 22 discloses a complete lack of understanding of those 23 obligations. Discovery may be had of any matter not l 24 privileged which appears reasonably calculated to lead to 25 the discovery ~ of admissible evidence. 10 C.F.R.

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1 As.noted in Licensee's' Motion to Compel:

2 5 "It is not's pro 5er for a party to i s ignore a discovery request. Interroga- -

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tories, for example, must either be i a'nswered or objected to in the tia.c 10 CFR.-2 740b(b ) . Objections'

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ma9 be accompanied by a motibn for'a .

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" protective order" to modify 3or elimi-

nate tlie obligatioh to respond;. but the '

6 movant must establish " good cause" for issuing such an order. 10 CFR 2.740(c).

7 And as in - judicial practice, general a objections do not provide that cause. -

8 Challenges to interrogatories must. be  !

\ s 9 ' specific enough so that the (t'ri-bunal) can understand in what 'way 10 f rhe interrogatories are claimed to

~ J he objectionable. - General ,9bjec ' s 11 ,

i " t.i o n s , ' s u c h as the objectiiOE that

-~ '. ' th'e interrogatories will re' quire '

12 , - the party' to c9nduct research and

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ompile . data;- or. that they' are ,

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~ -unreasonably burdensome, , oppres-sive, or vexaticits;, or that they 14 .

, seek informationithat i3 as easily.1 ,

s *' available to the interrogating ass 15 NN .

to the inter'togated party,.or thet - s 17- they would cause annoyance, ex-16  :;~ . ., pense, andOoppihs;sion to . the ob ?

- jecting p&rty' Without s'o r v i n g ' a n y ' ,

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• purpose rel,evant.- to the acti0n,'\or .

that they'are,duplicative.of mate-18 '

rial alresaf discovere,d 'through

' depositions, or. that thqy are ir- 1 19 'relevan t and itmnterial, or, that g

,%y' call for- opinions and coaclu- '

5 20 iiions, are insuff5cient.' (diting

• (4A ' Moore's Federal $ Practice (1980 21 ' ed), Y33.27 '(at pp. 334S3 and 22 33-152i)" +

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23 s s s. \ s Pennsylvania Power ag Light Corn #3ml and Alleghany Electric

\ Y 24 Cooperative, Inc.' (Su%9ehaana steam Electyic Station Dnits 25 y s -

a n 1 and 2), ALAB-613, 12 Nhc.w 3 D ,_322-323 (1980).t Despite the 3

c 26 foregoing principals, Joint,Ghtervenors continite to adhere sN N ,,

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1 to groundless objections and refuse to respond to legitimate 2 discovery requests.

3 Interrogatory #1 4 Joint Intervenors' counsel now claim a rather 5 elaborate " informer's privilege" as a basis for not 6 answering Interrogatory #1. . Interestingly enough, Licensee 7 was not intending to seek any information concerning the

! 8 subject informant or his information when the interrogatory 9 was sent. At that time the information available to s

10 Licensee was that the informant was anonymous and that not 11 even Joint Intervenors' counsel knew his identity. Further, 12 his allegations had been seen in writing by Licensee and 13 responded to in a May 4, 1983 meeting conducted by the NRC s

14 Staff. In fact, the interrogatory was drafted because the 15 undersigned counsel had first hand knowledge that one of the 16 individual intervenors had made a number of telephone calls 17' to an engineer working for the Diablo Canyon Project asking

, } 18 that engineer if he would be willing to supply information 19 which would assist the Joint Intervenors. Licensee' simply 20 wanted to know to what extent other such contacts had been h

21 made and what information, if any, had been solicited. We-

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7' t 22 were also interested to know if the individual intervenor 23 would admit to the known attempt of soliciting design 24 information. Clearly such information is not in any way 25 ~ covered under any theory of " immunity."

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4 1 What is of paramount importance to Licensee is the 2 information that Joint Intervenors have in their possession 3 which concerns design quality assurance at Diablo Canyon.

4 When framing the interrogatory, Licensee believed it was 5 engaged in discovery leading to a hearing on design quality 6 assurance at Diablo Canyon. Obviously any facts that Joint 7 Intervenors possess on that subject are both relevant and i

8 discoverable. One might now ask why the contact referred to 9 above which had nothing to do with immunity was not 10 disclosed by Joint Intervenors or their counsel.

11 In support of their claim of informer's privilege, 12 the Joint Intervenors assert the theory that a third-party 13 who is not a governmental representative has standing to 14 claim the informer's privilege. This theory has no basis in 1

15 the Federal Common Law.

16 Rule 501 of the Federal Rules of Evidence 17 provides:

18 uExcept as otherwise required by 19 the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant 20 to statutory authority, the privilege of a witness, person, government, State, or 21 political subdivision thereof shall be governed by the principles of the common 22 law as they may be interpreted by the courts of the United States in the light 23 of reason and experience. However, in civil actions and proceedings, with 24 respect to an element of a claim or i

defense as to which State law supplies l 25 the rule of decison, the privilege of a l

witness, person, government, State, or i 26 political subdivision thereof shall be

- . - _ . ~ - .

1 determined in accordance with State '

law."

2 3 The contours and exceptions of such privileges are 4 clearly a matter of Federal Common Law; state-created 5 principles or privileges do not control. In Re Pebsworth, 6 705 F.2d 261 (7th Cir. 1983). Despite the fact that under 7 the California privilege cited by the Joint Intervenors, a 8 third-party may claim the informants privilege, California 9 law is not decisive because the action arises under Federal 10 law. See Lora v. Board of Education of City of.New York, 74 11 F.R.D. 565, (D.C.Ed.N.Y. 1977).

12 The Federal Common Law has no counterpart to the 13 California privilege. In fact, the Federal privilege is 14 very narrow. Only the identity of the informant is 15 privileged; communications are not included except to the 16 extent that disclosure would operate also to disclose the 17 informer's identity. See Roviaro v. United States, 353 U.S.

18 53 (1957). 10 CFR 6 2.790(a)(7).

19 This Board recognized in Houston Lighting and 20 Power Company (South Texas Project, Units 1 and 2), ALAB 21 639, 13 NRC 469 (1981) that the Intervenors have no right to 22 claim this privilege. In footnote 26, the majority 23 commented upon the dissent's curiosity at the staff's 24 failure to object to the Licensing Board's order compelling 25 the Intervenors in that case to disclose their confidential 26 ///

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. .- j 1 sources to the applicant's counsel. As noted by the )

2 majority, l 3 "Nor is it a ' curiosity' as the dissent suggests (p. 483) that the staff 4 did not object to disclosure of the private intervenor's informants;. the 5 informer's privilege inures only to law enforcement officials." Footnote 26 at 6 478.

7 Even the dissent in Houston Power, supra, recognized that 8 the Intervenors there did not enjoy even a qualified 9 informer's privilege to withhold disclosure of their 10 informants. Based on the foregoing, it is clear that the 11 informant's privilege is not available to a non-governmental 12 individual or agency under the Federal Common Law.

13 Therefore, this claim of privilege by the Joint Intervenors 14 must fail.

15 In addition to the informer's privilege, the Joint 16 Intervenors claimed the work product privilege with respect 17 to Interrogatory #1. In their rapsonse however, Joint 18 Intervenors do not address Licensee's argument as to work 19 product. As a result, it is assumed that they have 20 abandoned their earlier claim cf privilege.

21 Finally, the Joint Intervenors continue to assert 22 the general objection to this Interrogatory that it is 23 burdensome and calls for irrelevant evidence. As noted in 24 Pennsylvania Power, supra, this type of general objection is 25 insufficient to sustain an objection to a discovery request.

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l 1 In conclusion, Licensee, while not waiving its 1

2 rights to such information, is not particularly interested 3 in the identity of the so-called informant. What it is 4 interested in, and entitled to, is any and all information 5 concerning allegations of inadequate design at Diablo G Canyon. If the Board believes the identity of the informant 7 should not be revealed under the circumstances of this case, 8 the Board can then review the information in possession of 9 Joint Intervenors and. distill and disseminate that 10 information in such a fashion as to protect the informant's 11 identity.

12 Interrogatories 5-7, 14-16, and 23

, 13 contending that they have properly responded, the

14 Joint Intervenors assert that they, like the Governor, will 15 supplement their responses when they are ready. The problem i 16 with this position is that the continuing refusal to take I

17 any position on these matters destroys the Licensee's 18 ability to ' prepare for a hearing. It is precisely this 19 cavalier attitude, i.e., "we will tell you what we want to 20 tell you when we want to tell it to you," that exemplifies 21 their disregard for their discovery obligations.

22 Interrogatories 13-15 23 The responses of the Joint Intervenors to the 1 24 Motion to Compel with respect to these Interrogatories 25 borders on the ludicrous. In Response to Interrogatory #13, l 26 the Joint Intervenors disclaimed Mr. Hubbard as their

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I witness. In Response to Interrogaotry #18, the Joint 2 Intervenors reclaim him as a witness and refer Licensee to 3 the Governor's answers to Interrogatories.

4 Conclusion 5 Despite assertions to the contrary by Joint 6 Intervenors, they have not met their discovery obligations.

7 Their failure to do so literally destroys the Licensee's 8 ability to adequately prepare for hearing. The only remedy 9 for their failure is an order compelling the Joint 10 Intervenors to immediately comply with the discovery 11 requests or to otherwise be dismissed from this proceeding.

12 It is respectfully requested that the Board enter its order 13 accordingly.

14 Respectfully submitted, 15 ROBERT OHLBACH PHILIP A. CRANE, JR.

16 RICHARD F. LOCKE Pacific Ga3 and Electric Company 17 P. O. Box 7442 San Francisco, CA 94120 18 (415) 781-4211 19 ///

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1 ARTHUR C. GEHR Snell & Wilmer 2 3100 Valley Center Phoenix, AZ 85073 3 (602) 257-7288 4 BRUCE NORTON Norton, Burke, Berry & French, P.C.

5 P. O. Box 10569 Phoenix, AZ 85064 6 (602) 955-2446 7 Attorneys for Pacific Gas and Electric Company 9

10 By Bruce Norton 11 12 DATED: August 4, 1983.

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