ML20078R847
| ML20078R847 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 11/10/1983 |
| From: | Irwin D HUNTON & WILLIAMS, LONG ISLAND LIGHTING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20078R833 | List: |
| References | |
| ISSUANCES-OL-3, NUDOCS 8311150324 | |
| Download: ML20078R847 (9) | |
Text
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LILCO, qg gar 10,1983 i
0 UNITED STATES OF AMERI hh i NUCLEAR REGULATORY COMMI ON gnGf.,
Before the Atomic Safety and Licensing Board In the Matter of
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LONG ISLAND LIGHTING COMPANY
)
Docket No. 50-322-OL-3
)
(Emergency Planning Proceeding)
(Shoreham Nuclear Power Station,
)
Unit 1)
)
LILCO'S MOTION TO COMPEL DISCOVERY OF SUFFOLK COUNTY LILCO hereby moves that the Board compel production of the documents referred to in the attached letter from Donald P.
Irwin to Lawrence Coe Lanpher, dated November 2, 1983 and delivered to the County on November 3, 1983.
The letter requests production of various classes of completed documents concerning various matters within the scope of admitted contentions, on which the County pre-emptively prevented discovery on the basis of l
1 assertions of privilege.
As a result, there are major portions of the County's case of which LILCO has been kept ignorant, despite all efforts to gain information on them.
No response has been received to the letter, and LILCO will be seriously and unfairly prejudiced if the first time it encounters the documents l
requested by the letter is in attachments to the County's direct testimony or as an exhibit on cross-examination.
The attorney work product privilege, under which the County has refused to let its witnesses testify in deposition and to 8311150324 031110 PDR ADOCK 05000322 0
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~2-a provide information or documents in response to interrogatories, is a defeasible privilege which can be overcome by a showing of s
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need or unfairness.
LILCO has been denied access to any analyses prepared by the County since it abandoned its independent emergency-planning effort (using a 20-mi e EPZ) in February 1982, other than two ad hoc analyses of police ~ mobilization and health facilities prepared and released by the County for other purposes.
LILCO believes that the inherent potential for surprise in this situation is aggravated by the disparity between LILCO and the County with respect to, provision of information on discovery, and that LILCO stands the prospect of being substantially and unfairly surprised by the County in its direct testimony, WHEREFORE, LILCO requests that the Board require Suffolk County to providc to LILCO and the'other parties, forthwith, copies of all documents described in the November 2, 1983 letter from Irwin to Lanpher and the attachment thereto.
e Respectfully submitted, LONG ISLAND LIGHTING COMPANY h (.)-
O Donald P.
Irwin James N. Christman Lee B. Zeugin Kathy E. B.
McCleskey Hunton & Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 l
f DATED:
November 10, 1983 l
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Lawrence Coe Lanpher, Esq.
BY FEDERAL EXPRESS Kirkpatrick, Lockhart, Bill, Christopher & Phillips 1900 M Street, N.W.
Eighth Floor Washington, D.C.
20036 I
Dear Larry:
In recent discussions about the likely content and struc-ture of emergency planning testimony, I have communicated to you LILCo's concern about the possibility of significant and prejudicial surprise to LILCO in the positions to be taken by the County in its testie ny, and even more in studies, reports g
This and other documentation t'o be attached to such testimony.
apprehension is based on the County's extensive resort to th tions, on aatters relating to subjects within the scope of the
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As a result it has been frequently very County's contentions. difficult, and sometimes impossible, to ascertain even the wit-nesses' views on specific aspects of LILCo's transition plan, The attached summary of l
auch less the bases for those views.
the County's assertions of privilege in discovery provides a
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l qualitative sense of the extent of the County's use of this l
means of avoiding discovery.
LILCO has not sought to compel production of the totality of the matters on which a' privilege has been asserted because, in some cases, the assertions appeared tenable when made on the Nev-basis that work was apparently in progress at that time.
ertheless, it would not be surprising if some of the matters within the assertions of privilege had since become suffi-ciently polished topical reports or analyses to be used as at-tachments to or citations in the County's direct testimony.
Some of these may have been completed by now; others will, I l
expect, be finished in the coming weeks.
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l Hexrox 8: WILLIAMS i
l This letter does not request production of all materials as to which a privilege has been. asserted.
It does request the timely production of topical reports, studies or other docu-ments relating to those matters on which a privilege was as-sorted, when such documents are completed.
If such documents are completed now, they should be provided now rather than de-laying until the profiling of direct testimony, in order to avoid unnecessary and unfair surprise.
I an aware of your view that the discovery rules impose a duty to supplement or correct an answer only where subsequent events make it appear that the original answer was incorrect when given.
Even if "our understanding of the rules' minimum requirements is corre-t, which I do not concede, they do not l
address the current situation, in which witnesses are appar-ently still develeping their views during the course of discov-ery and there is a aubstantial interval between the close of discovary and the filing of, testimony.
Assume, for example, that a witness, when asked a question on a given subject on deposition, had answered that he had generated no specific in-formation on that subjects then when asked whether he was con-ducting any work on the subject or had any views on it, had been instructed not to answer on the basis of privileger that at the time of the deposition he had been in the process of ob-taining information on that' subject; and that such information was subsequently reduced 'to writing in a topical report, study, analysis or other document.
Un3er your theory, the first time another party would be entitled to learn of the witness' infor-nation or views, or even what type of information he was ob-taining, would be when direct testimony was filed, despite at-tempts to discern them in discovery.
Such a sequence of events would be, in my judgment, a frustration of the intended 1
There are remedies for surprise result-purposes of discovery.
ing from such a course of events, but none of them is as desir-able as the avoidance of surprise.
On behalf of LILCO, I kherefore request that the County make available to LILCO upon completion any written studies, reports, analyses or other documents, formal or informal, pre-pared by or under the direction of the County's witnesses on emergency planning issues, that relate to catters on the at-tached list, as to which discovery has been prevented by the l
LILCO is willinge of course, to do assertion of a privilege.
the same for the Countyr indeed, I am not presently aware of any studies, reports or analyses prepared or being prepared by or under the direction of LILCO's witnesses and relating to l
matters inquired of or discovery by the county, which have not' I as not referring to alrt.ady been turned over to the County.
every group of papers generated on any of these subjects, just l
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3 Mcwrow & WILLIAmo to documents which, by their nature, could be used to support i
or oppose another party's position on the issues to which th to testimony, cited references in testimony, or substantiveArbitrarily, I portions of, testimony.
these documents to those completed in 1983.
I would appreciate hearing your response to this request at your earliest convenience.
Sincerely yours, Dona d P. Irwin 91/730 Attachment I
I
t Discovery objected to on the Basis of the Work Product Privilege Traffic Model Johnson /ziegler followup 63 9/16/83 10 Mile EPZ Traffic Analysis Interrogatories 3 and 4 8/25/83 Interrogatory 5d 9/19/83 Interrogatory 7d 9/19/83 Kanen Tr. 33-34, 57 Berr Tr. 123-124, 127 20 Mile EPZ Traffic Analysis Interrogatory 3 and 4 8/25/83 Interrogatory 5d 9/19/83 Interrogatory 7d 9/19/83 Kanen Tr. 33-34
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Evacuation Time Estimates-Interrogatory Sa, 5b, 5c 9/19/83 Interrogatory 5d 9/19/83 Interrogatory 7d 9/19/83 Kanen Tr. 33-34, 70, 79-81, 85-89 Berr Tr. 175-178 Pigozzi Tr. 43-44 Polk Tr. 131-132, 142-143, 166-168, 170 Evacuation of Opecial Facilities Interrogatory 6a, 6b, 6f 9/19/83 l
Interrogatory 6d 9/19/83 Kanen Tr. 88-89 Barris Tr. 5" Mobilisation Kanen Tr. 70 Polk Tr. 158-159
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Interrogatory 7d 9/19/83 Command and Control Interrogatory 7d 9/19/83 Sheltering Interrogatory 8a, 8b, 8e 9/19/83 Interrogatory 8d 9/19/93 Minor Tr. 76 Radiological Monitoring Interrogatory Sa, 8b, 8c~
9/19/83 Interrogatory 8d 9/19/83 l
Consequence Analyses Interrogatory Sa, 8b, 8c 9/19/83
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Interrogatory 8d 9/19/83 Minor Tr. 25-26, 28-29, 39-40, t
61-63 Surveys Johnson /Ziegler followup 63, 47 9/16/83 Tr. 147-150, 153 Saegert special Facilities Tr. 50, 74-75, 79, 86-91 Barris l
i View of LILCO Transisition Plan Tr. 142-143 Saegert Public Information Tr. 147-150, 166 saegert
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LILCO, November 10, 1983 CERTIFICATE OF SERVICE In the Matter of LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket No. 50-322-OL-03 i
- I, Donald P.
Irwin, hereby certify that copies of LILCO'S REPLY TO SUFFOLK COUNTY'S MOTION FOR DELAY OF ITS TES-TIMONY FILING and LILCO'S MOTION TO COMPEL DISCOVERY OF SUFFOLK COUNTY were served this date upon the following by first-class mail, postage prepaid, by hand (as indicated by an asterisk) or by Federal Express (as indicated by two asterisks).
James h,,Laurenson,*
Secretary of the Commission Chairman-U.S. Nuclear Regulatory Atomic Safety and Licensin'g Commission Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing East-West Tower, Rm. 402A Appeal Board Panel 4350 East-West Hwy.
U.S. Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry R. Kline*
Atomic Safety and Licensin,g Atomic Safety and Licensing l
Board Board Panel l
U.S. Nuclear Regulatory U.S. Nuclear Regulatory l
Commission Commission East-West Tower, Rm. 427 Washington, D.C.
20555 4350 East-West Hwy.
Bethesda, MD 20814 Bernard M. Bordenick, Esq.*
David A. Repka, Esq.
Mr. Frederick J. Shon*
Edwin J. Reis, Esq.
Atomic Safety and Licensing U. S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory 7735 Old Georgetown Road Commission
.(to mailroom)
East-West Tower, Rm. 430 Bethesda, MD 20814 4350 East-West Hwy.
Bethesda, MD 20814-4 nnr
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k Eleanor L. Frucci, Esq.*
Stewart M. Glass, Esq.**
Attorney Regional Counsel Atomic Safety and Licensing Federal Emergency Management Board Panel Agency U.
S.~ Nuclear Regulatory 26 Federal Plaza, Room 1349 Commission New York, New York 10278 East-West Tower, North Tower 4350 East-West Highway Stephen B.
Latham, Esq.**
Bethesda, MD 20814 Twomey, Latham-& Shea 33 West Second Street David J. Gilmartin, Esq.
P.O. Box 398 Attn:
Patricia A. Dempsey, Esq. Riverhead, New York 11901 County Attorney Suffolk County Department Ralph Shapiro, Esq.**
of Law Cammer & Shapiro, P.C.
Veterans Memorial Highway 9 East 40th Street Hauppauge, New York 11787 New York, New York 10016 Herbert H. Brown, Esq.*
James Dougherty, Esq.**
Lawrence Coe Lanpher, Esq.
3045 Porter Street Christopher McMurray, Esq.
Washington, D.C.
20008 Kirkpatrick, Lockhart, Hill Christopher & Phillips Howard L. Blau
~8th Floor 217 Newbridge Road 1900 M Street, N.W.
Hicksville, New York 11801 Washington, D.C.
20036 Jonathan D. Feinberg, Esq.
Mr. Marc W'. Goldsmith New York State Energy Research Group Department of Public Service 4001 Totten Pond Road Three Empire State Plaza Waltham, Massachusetts 02154 Albany, New York 12223 MHB Technical Associates Spence W. Perry, Esq.**
1723 Hamilton Avenue Associate General Counsel Suite K Federal Emergency Management San Jose, California 95125 Agency 500 C Street, S.W.
Mr. Jay Dunkleberger Room 840 New York State Energy Office Washington, D.C.
20472 Agency Building 2 4
Empire State Plaza Ms. Nora Bredes Albany, New York 12223 Executive Coordinator Shoreham Opponents' Coalition 195 East Main Street Smithtown, New Yor 11787 Jlil Donald P.
Irwin Hunton &-Williams 707 East Main Street Post Office Box 1535 Richmond, Virginia 23212 DATED:
November 10, 1983
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