ML20077J515
| ML20077J515 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 08/12/1983 |
| From: | Havian E CENTER FOR LAW IN THE PUBLIC INTEREST, JOINT INTERVENORS - DIABLO CANYON |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8308160476 | |
| Download: ML20077J515 (15) | |
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t 90gTEO UNITED STATES OF AMERICA C
NUCLEAR REGULATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING APPE dh 24 I
OFRCE OF SECRETA
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I In the Matter of
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PACIFIC GAS AND ELECTRIC COMPANY
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Docket Nos. 50-275 O.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
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2 Plant, Units 1 and 2)
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(Reopened Hearing --
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Design Quality
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Assurance)
JOINT INTERVENORS' RESPONSE TO PACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS 4
On June 10, 19_83, Pacific Gas and Electric Company
("PGandE") served on the Joint Intervenors its'first request for production of documents.
Joint Intervenors submitted their response to this request on July 15, 1983, objecting to many of the requests as calling for documents clearly protected by privilege.
On July 27, 1983, PGandE served its Motion to Compel Production of Documents, to which the Joint Intervenors hereby respond.
Before answering PGandE's various arguments advanced i
in support of its motion, Joint Intervenors again would like to make clear that they fully intend to comply with their responsibilities to respond to legitimate discovery requests.
PGandE's innuendo that Joint Intervenors are deliberately attempting to " hide" all documents under frivolous claims of-privilege is without basis. 'First, PGandE's requests, because
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of their scope and complete absence-of discernible focus, do not 8308160476 830812 PDR ADOCK 05000275 Q
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i-represent even a colorable attempt to obtain information relevant to the subject of the hearing -- design quality assurance.
For example, by asking for every document relating to Diablo Canyon design " reviewed by you" PGandE has made a request virtually unlimited in scope and, consequently, practically impossible to comply with.
Moreover, it has done so without any showing of relevance or need for so all encompassing a document request.
Such a showing is especially warranted in light of the fact that virtually all of the documents are necessarily already in PGandE's possession because they were either prepared by PGandE, its consultants, or some other agency or entity whose reports are already a matter of public record.
The other reason PGandE's request has failed to result in the production of documents is that, almost without exception, PGandE's requests may uniformly be characterized as calling for any and all work product in Joint Intervenors's possession.
In other words, the very definition of the occuments requested is congruent with the hornbook definition of attorney work product.
Joint Intervenors are willing to comply fully with any legitimate discovery request by other parties.
But in the instant situation, PGandE has purposely drafted its request so that it explicitly covers documents either privileged or part of the public record.and then audaciously asserts that the Joint Intervenors are being obstructionist for not complying with it.
This Board should not sanction such a clear mischaracterization of the Joint Intervenors' position.
The courts have long recognized that materials l-.
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generated in preparation for litigation are immune from discovery, although a distinction has sometimes been drawn between opinion work product and materials prepared for trial which are essentially factual.
Both are entitled to work product protection, but the former are absolutely immune from discovery, while the latter may be discovered upon an adequate showing by the moving party.
Therefore, Joint Intervenors first will demonstrate that much of the information requested by PGandE constitutes opinion work product, and second, that to the extent these documents contain factual material, PGandE has not even attempted to make the required showing.
OPINION WORK PRODUCT It is well settled that counsel's mental impressions, opinions and theories are absolutely immune from discovery.1/
Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730, 734 (4th Cir. 1974) ("In our view, no showing of relevance, substantial need or undue hardship should justify compelled disclosure of an attorney's mental impressions, conclusions, l
opinions or legal theories."); United States v. Chatham City Corp., 72 F.R.D. 640, 643 n.3 (S. D. Ga. 1976) (Opinions and mental impressions absolutely privileged.)
The rationale for this high degree of protection was stated by the court in Duplan, supra:
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The NRC analogue for the work product protection condified in Fed. R. Civ. P. 26 (b) (3) is found at 10 C.F.R.
S 2.740 (b) (2)..
l It is true that litigation is no longer a game of hide and seek, and also true that justice is to a large extent equated with truth.
But if attorneys may not freely and i
privately express and record mental l
impressions, opinions, conclusions, and legal theories, in writing, and clients may not freely seek them, then there is justice for no one, and the truth, instead of being more readily ascertainable, will become lost in the murky recesses of the memory.
Duplan, supra, 509 F.2d at 736.
i Requests Nos. 1 and 2 Request No. 1 asks for:
1 All writings you have taken at all meetings between the NRC and/or PG&E and/or companies involved in the Independent Design Verification Program (IDVP) from October 1, 1981 to the 4
present.
Request No. 2 asks for:
All documents relating to Diablo Canyon design or design quality assurance prepared by PG&E, the-IDVP, or the NRC, having comments, notes, or the like on them and any writings prepared by or for you discussing, commenting on or otherwise referring to those documents.
To repeat the requests themselves:should be sufficient 4
proof of the applicability of work product immunity to-justify Joint Intervenors' refusal to produce such documents.
It is interesting to note that PGandE does not even attempt to argue l
that these documents are'in fact discoverable.
Rather, PGandE has restricted its motion to compel to a demand for the nature, author, addressee and custodian of the documents in question.
l The standard employed by the courts to determine what information must be-provided to sustain a claim of privilege.is i
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set forth in PGandE's own motion: N party must show " sufficient facts to bring the identified and described document" within the scope of work product immunity.
See Motion to Compel, at 7.
So stated, Joint Intervenors agree with this formulation.
- However, Request Nos. 1 and 2 themselves provide sufficient information to enable the Board to determine that the immunity indeed applies.
For example, since PGandE was present at all meetings involving the NRC and the IDVP, the only information added to PGandE's knowledge by the Joint Intervenors' notes would be the mental impressions and conclusions of the author of the notes
-- in this case, counsel ~-- not facts.
Even more blatant is the request for what are essentially public documents distinguished solely by marginal notes and conclusions written by the Joint Intervenors' counsel and for notes commenting on or referring to such public documents.
Under these circumstances, it is beyond question that the requests themselves provide sufficient identification of the documents to evaluate the claim of immunity.
PGandE's Request No. 2 -- for all documents with marginal notes and documents commenting thereon -- is objectionable for an additional reason.
Aside from the fact that no further identification is necessary, the detailed
" identification" requested by PGandE would itself constitute an invasion of the mental processes of counsel for the Joint Intervenors.
An analogous situation arose in James Julian, Inc.
- v. Raytheon Co.,
93 F.R.D. 138 (D. Del. 1982).
In that case, l.
l defendants requested a binder of documents used by plaintiff's counsel to prepare deposition witnesses.
The plaintiff
" represented," as Joint Intervenors represent herein, that the defendants already had many of the documents in their possession.
In deciding that work product immunity applied, the court stated that the issue "can be dispensed with quickly."
In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case.
Indeed, In a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than oure legal research.
93 F.R.D.
at 144 (emphasis added).
In the instant proceeding, PGandE has requested the identification of public documents with marginal notes and identification of documents prepared by counsel commenting upon public documents.
PGandE represents that it merely desires an identification of the documents in order to evaluate Joint Intervenors' claim of privilege and immunity.
But the fact that PGandE does not even attempt to argue that the documents themselves may be discoverable belies this explanation.
In fact, PGandE has made no showing whatsoever that they seek information other than counsel's opinions and conclusions.
Nor is such a showing possible, since the only information contained in these documents which PGandE does not already possess consists of such opinions and conclusions.
Joint Intervenors respectfully submit that this Board has no need for such information in order to evaluate the claims of immunity and privilege. _
Finally, for Joint Intervenors to sift through the literally tens of thousands of pages of documents relating to design or design quality assurance in search of marginal notes would be tremendously burdensome.
Certainly such an effort should not be required absent a significant possibility that there exists some information to which PGandE is entitled.
Given the nature of the request, the documents in question contain no such information.
Accordingly, PGandE's request should be denied.
Request No. 3 Request No. 3 asks for:
All documents relating to Diablo Canyon design or design quality assurance not produced in response to Request No. 2 which have been prepared or reviewed by or for you.
The thrust of this request is for every document even seen by the Joint Intervenors relating to design or design quality assurance.
This encompasses tens of thousands of pages of materials, and virtually all such documents which are not protected by the attorney-client, work product, or informer privileges are part of the public record.
Under such circumstances, the burden of producing these documents clearly outweighs any possible relevance.
PGandE has essentially asked the Joint Intervenors to open their files, since it is difficult to conceive of any document in this case that does not in some way " relate to" the design of Diablo Canyon..
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Compliance with the request as now drafted would require the Joint Intervenors to employ an individual full time to review such documents for privilege and copy the tens of thousands of pages, presumably at PGandE's expense.
On the other hand, a proper request that specifies with particularly those materials actually desired by PGandE would obviate the need for such a futile exercise.
Request Nos. 5 and 7 Request No. 52/ asks for:
All corresondence or records of meetings or telephone conversations between Mr. Hubbard (or his associates) and Dr. Rosette [ sic] (or his associates) related in any way to design of structures, systems, or components at Diablo Canyon.
Request No. 7 asks for:
All notes, calculations, meeting minutes, computer outputs, drawings or other writings prepared by MHB Technical Associates or Dr. Rosette [ sic] or any other of your techincal consultants related in any way to design or design quality assurance at Diablo Canyon.
Without waiving any claim of privilege or work product immunity, Joint Intervenors represent that the only documents in j
their possession which come under these requests are summaries j
by MHB of meetings at which PGandE was present, and a one-page letter from Dr. Roesett to the attorney for Governor Brown.
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Joint Intervenors inadvertently supplied the response intended for another request.
The objection intended for Request No. 5 is identical to that provided for Request No. 7.
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These documents clearly enjoy work product immunity and attorney-client privilege protection, respectively.
With respect to MHB's notes of meetings, since PGandE was.present at such meetings the only possible information to be gained by production of these documents would be the opinions and mental conclusions of MHB.
Faced with an analogous situation, the court in Spauling v.
Denton, 68 F.R.D.
342 (D. Del. 1975), denied discovery of an investigator's report, holding that the moving party "has obtained, or readily can obtain, everything in the []
report except for the opinions and conclusions of" the investigators.
68 F.R.D.
at 346.
Nor does the fact that these document were given to the Joint Intervenors, although prepared for the Governor, destroyed the claims of work product immunity or privilege.
It is well settled that disclosure of such documents does not undermine the privilege or immunity unless this substantially increases the possibility of disclosure to the opposing party.
GAF Corp. v. Eastman Kodak Co., 85 F.R.D.
46, 52 (S.D. N. Y.
1979); American Standard, Inc. v. Bendix Corp., 71 F.R.D.
- 443, 446 (W.D.Mo. 1976); 8 Wright & Miller, Federal Practice and Procedure, Section 2024 (1970 ed.).
An illustration of this rule is that disclosure to parties with a common interest in the litigation does not waive work product immunity because it can be assumed that parties with a common interest will not disclose to opposing parties.
Burlington Industries v. Exxon Corp.,
65 F.R.D.
26, 45 (D.Md. 1974); Stanley Works v.
Haeger, 35 F.R.D.
551, 555 (D.Ill. 1964).
American Standard, supra, 71 F.R.D. at 447..
l In the instant case, both the Joint Intervenors and the Governor have successfully moved to reopen the record on the issue of design quality assurance.
Therefore, for purposes of this motion, the parties have a " common interest," and disclosure of documents to the Joint Intervenors does not constitute a waiver of privilege or work product immunity.
1 FACTUAL WORK PRODUCT Although many of the documents requested by PGandE do contain facts, as well as opinions of counsel, PGandE has failed to make the required showing for disclosure of these documents.
Even factual documents, prepared in anticipation of litigation, may not be discovered unless the moving party demonstrates (1) that it has a " substantial need" for the documents and (2) that it is unable to obtain the information by other means.
10 C.F.R. S 2.740 (b) (2).
All such documents requested are either in PGandE's possession or contain summaries of meetings at which PGandE was present.
Mere cost or inconvenience of obtaining the material is insufficient to make the required showing of necessity, and neither is the possibility that the information might be impeaching.
United States v. Chatham City Coro., supra, 72 F.R.D.
at 643, 644.
In the instant proceeding, as the Chatham court noted in that case, "[t]he claim of necessity for the intrusion into the investigative file ~ appears to be little more substantial than a desire to learn what kind of a case the Government has."
Id. at 644.
Unless PGandE demonstrates the l
necessity for production of the factual materials in question, work product immunity prohibits their access to these documents.2/
Request for Protective Order Pursuant to 10 C.F.R.
S 2.740(c), the Joint Intervenors hereby request the issuance of a protective order providing that, to the extent objected to herein and in Joint Intervenors' Response to PGandE's June 10,1983 Request for Production of Documents, the requested discovery not be had.
Good cause exists for such order in that PGandE is not legally entitled to such information for the reasons stated herein and in the aforesaid response to the document production request.
CONCLUSION PGandE has made a blatant attempt to learn the mental conclusions and opinions of Joint Intervenors' counsel, without any demonstration of the need for such wholesale violation of a well-established zone of privilege.
In the words of the Hickman Court:
There was only a naked, general demand for these materials as of right That was insufficient to justify discovery under these circumstances.
E/
Although PGandE makes a passing reference to the possibility of in camera inspection of the requested documents, even this requires some demonstration of need.
In Hickman v.
Taylor, 329 U.S.
495 (1947), the Supreme Court reversed the District Court's order to produce documents in camera precisely because there was no showing of necessity by the moving party.
329 U.S.
at 509..
l Hickman, supra, 329 U.S. at 512.
Even the attempt to learn details about the identity of these documents is without justification because, given the patently improper nature of the requests, such details are unnecesary for this Board to evaluate properly the claims of immunity and privilege.
Under these circumstances, PGandE's request can only be seen as a thinly concealed attempt to circumvent the protection afforded an attorney's mental impressions and opinions by the law.
For the reasons stated above, PGandE's motion should be denied and the requested protective order granted.
DATED:
August 12, 1983 Respectfully submitted, JOEL R. REYNOLDS, ESQ.
JOHN R. PHILLIPS, ESQ.
ERIC HAVIAN, ESQ.
Center for Law in the Public Interest 10951 W. Pico Boulevard Los Angeles, CA 90064 (213)470-3000 DAVID S. FLEISCHAKER, ESQ.
P. O. Box 1178 Oklahoma City, OK 73101 By ERIC HAVIAN Attorneys for Joint Inter-venors SAN LUIS OBISPO MOTHERS FOR PEACE SCENIC SHORELINE PRESERVATION CONFERENCE, INC.
ECOLOGY ACTION CLUB SANDRA SILVER ELIZABETH APFELBERG JOHN J. FORSTER.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
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l PACIFIC GAS AND ELECTRIC COMPANY )
Docket Nos. 50-275 0.L.
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50-323 0.L.
(Diablo Canyon Nuclear Power
)
Plant, Units 1 and 2)
)
)
)
CERTIFICATE OF SERVICE 1
I hereby certify that on this llth day of August, 1983, I have served copies of the foregoing JOINT INTERVENORS' RESPONSE TO ?ACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS, mailing them through the U.S. mails, first class, postage prepaid.
Thomas S. Moore, Chairman Atomic Safety & Licensing Appeal Board Mr. Fredrick Eissler U.S. Nuclear Regulatory Scenic Shoreline Preservation Commission-Conference, Inc.
Washington, D.C.
2CiS5 4623 More Mesa Drive Santa Barbara, CA - 93105 Dr. W. Reed Johrsc3 Atomic Safety & L-tcent ny Malcolm H. Furbush, Esq.
l Appeal Board Vice President & General U.S. Nuclear Regulatory Counsel Commission Philip A. Crane, Esq.
Washington, D.C.
20555 Pacific' Gas & Electric Company Post Office Box 7442 Dr. John-H. Buck San Francisco, CA 94120 1
-Atomic Safety & Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
e
Docket and Service Branch Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Lawrence Chandler, Esq.
Office of the Executive Legal Director - BETH 042 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Janice E.
Kerr, Esq.
Lawrence Q. Garcia, Esq.
J. Calvin Simpson, Esq.
California Public Utilities Commission f
5246 McAllister Street San Francisco, CA 94102 John Van de Kamp, Attorney General Andrea Sheridan Ordin, Chief Attorney General Michael J. Strumwasser, Special Counsel to thc Attorney General State of California 3580 Wilshire Boulevard, Suite 800 Los Angeles, CA 90010 David S. Fleischaker, Esq.
Post Office Box 1178 Oklahoma City, OK 73101 Richard Hubbard MHB Technical Associates 1723 Hamilton Avenue, Suite K San Jose, CA 95725 Arthur C. Gehr, Esq.
Snell & Wilmer 3100 Valley Center Phoenix, AZ 85073 Bruce Norton, Esq.
Norton, Burke, Berry & French, P.C.
Post Office Box 10569 Phoenix, AZ 85064 Maurice Axelrad, Esq.
Lowenstein, Newman, Reis & Axelrad, P.C.
1025 Connecticut Avenue, N.W.
Washington, D.C.-
20036 Virginia and Gordon Bruno Pecho Ranch i
Post Office Box 6289 Los Osos, CA 93402
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l Sandra and Gordon Silver 1760 Alisal Street San Luis Obispo, CA 93401 1
Nancy Culver i
192 Luneta San Luis Obispo, CA 93402 Carl Neiburger Telegram Tribune Post Office Box 112 San Luis Obispo, CA 93402 Betsy Umhoffer 1493 Southwood San Luis Obispo, CA 93401 LAA.ht Mk AMANDA VARONA i
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