ML20082H561
| ML20082H561 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 04/02/1995 |
| From: | Kohn M GEORGIA POWER CO., KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#295-16597 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9504170214 | |
| Download: ML20082H561 (7) | |
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%a.,5 E DOCKETED l-Ap);@G!, 1995 UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION
'95 APR -7 P12 :18 j-ATOMIC SAFETY AND LICENSING. BOARD c
\\
Before Administrative Judges: 0FFICE 0? Zi/T~/M
-l Peter B. Bloch, Chair DCCKEQ WF Dr. James H. Carpenter.
u Thomas D. Murphy ~
l l
l
)
i In the Matter of
)
H i
)
Docket Nos. 50-424-OLA-3
}
GEORGIA POWER COMPANY
)
50-425-OLA-3 j
31 aL.,
)
i
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer' to Southern Nuclear)-
Plant, Unit 1 and Unit 2).
)
{
)
ASLBP No. 93-671-01-OLA-3 INTERVENOR'S REQUEST-FOR' CLARIFICATION OF THE BOARD'Sl
]
MARCH 30, 1995 MEMORANDUM AND ORDER (MOTION TO REOPEN DISCOVERY)
}
On March 22, 1995, Intervenor filed a Motion to Complete i
j Discovery Against NRC Staff.. On March 30, 1995, the Board-issued
'a Memorandum and Order (Motion to Reopen Discovery).
This Memorandum and Order does.not indicate whether the Board was j
ruling on Intervenor's March'22, 1995 Motion.
The March 30 h
Memorandum;and: Order.tappears f to address ~ Intervenor's3 March 4 22 myWeh4 '
, o a :waw v.s
, g _ r N g & M ri p c k % q nh y +.
1995 Motion, but does not. resolve all of'the-issues raised j
i-therein.
Licensee requested the Board to clarify one issue on i
March 31, 19951 Intervenor requests clarification <:oncerning l.
discovery against NRC Staff's " management panel."
1 On March 31, 1995, Georgia Power filed a " response" to i
Intervenor's March 22, 1995' Motion but is more accurately a request for clarification. Specifically, Georgia Power seeks clarification 4
on whether, based on the Board's March 30 Memorandum; and Order, Intervenor must file prefiled testimony and subpoena requests on i
April 3,'1995.
Intervenor interpreted page 7, 13 of the Order as requiring him to comply with the previously established filing deadlines.
Intervenor will file his prefiled testimony on April 3, 1995.
1 i
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Discovery Against NRC Staff's "Manacement Panel" l
The March 30, 1995 Memorandum and Order partially addressed Intervenor's request for discovery against NRC Staf f's
" management panel."
The Board concluded that Intervenor's I
request for discovery against the Staff's " management panel" was 4
well taken but apparently mooted by NRC Staff's April 29, 1995 letter agreeing to produce the " management panel" for deposition.
i l
One issue not mooted by Staff's April 29th letter concerns the i
request contained in the noticed of deposition for the management panel to produce:
All documents (the management panel] created or reviewed that relate to the character and integrity of the 4
i corporations involved in the proposed transfer of the license or for which the witness bases any statement of fact or opinion in any draft or pre-filed-testimony or other documents related to the position of the Agency concerning i
the character and competence of the licensee; Southern Nuclear or any employee or former employee thereof.
4 Egg Inte venor's Notice of Deposition of Roy P. Zimmerman and Luis A. Reyes, dated March 22, 1995.
NRC Staff Counsel r,efused to comply with this request
.ebecauseM he'd'oeuents hotlisviously released to IntieWSW5NdbMWPN
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- PFotected,fr,om disclosure on the basis of the 1) predecisiog g Sf",,
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information privilege; 2) work product privilege; and 3) attorney-client communications privilege.
Intervenor requests that the Board address. Staff's refusal 4
to voluntarily produce documents covered in the noticed depositions.
2
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4 4
1.
Staff is required to waive the attorney work product privilege with respect to documents reviewed by.the
" management panel."
)
. Discovery against NRC Staff's " management' panel" is governed by Rule 26 of the Federal Rules of Civil Procedure.
Pursuant.to
)
l Rule 26 (b) (4) (A), a " party may depose any person who has been identified as an expert whose opinion may be presented at trial."
3 j
The Advisory Committee Notes and case law interpreting the 1993 a
amendments to Rule 26 demonstrate that Staff cannot present its i
l
" management panel" without waiving its asserted privileges.
d Sag, 6 Wright & Miller, Federal Practice and Procedure: Civil i
j S2031.1
(" counsel should now expect that any written or tangible i
4 data provided to testifying experts will have to be disclosed").
j The Advisory Committee Notes to Rule 26 explicitly state that a i
party is required to produce all of the documents and data 1
reviewed by its experts even "if these materials are otherwise privileged and were not ultimately relied upon by the expert."
f M.8 f
'In"U.S. W Rek1"Prode'rty, 142'F.R.D.'431S(W.D.'Pa'1992}7F h'e' ""
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"Up-
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we Court considered _the validity of the government's claim ;.tof an. ;p j
h)piIEgelin'a~civilipro'hhs@iDyND$i$$jfi%3[-
GDittohMNgirthtQ
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8 The Advisory Committee Notes specifically state:
I Given this obligation of disclosure, litigants should no i
longer be able to argue that materials furnished to their experts to be used in forming their opinions -- whether or not are privileged or ultimately relied upon by the expert otherwise protected from disclosure when such persons are testifying or being deposed.
a 322 134 F.R.D. at 634.
3
i i
)
observed that "the advisory committee note to Rule 26 expressly states that the committee ' reject (ed] as ill-cons'.lered the decisions which have sought to bring expert information within j
the work-product doctrine.'"
Id.,
(quoting Fed.R.Civ.P., West's 1
1991 revised Edition at p. 87).
Likewise, in Domincuez v.
Syntex Labatories, Inc, 149 F.R.D.
158, 164 (S.D. Ind. 1993), the court specifically held that a party "is entitled to discover the work
)
product under rule 26 (b) (4) (A) (ii) " as long as the expert
" considered and/or used the documents to evaluate the facts and form opinions."
There is no dispute that the " management panel" reviewed i
" privileged" documents (i.e.,
attorney work product documents such as depositions NRC Staff transcribed).
This documentation j
would not normally be discoverable but for NRC Staff's decision to sponsor a management panel.
NRC Staff must forego its claim to attorney work product privilege if it intends to call its 1
management panel.
- 2. aiStafL improp'erl,y relied upon the..dialiberative yroceinliriT W@*l "f.n j
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' "tfpriirilsge!"PyfA Xt W' V
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% O] Staff ji'mproperl$3 relies upon the deliberat'ive3hNbhppdIh5 k@
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NRC
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privilege to shield prIdb8Elo% f : documents reviewed?andNdfiisd6 f*&
no upon by its management panel.
The deliberative process privilege is no longer applicable because Staff waived the privilege by voluntarily releasing the most critical and important documents pertaining to the opinions and recommendations of Staff (i.e.,
4
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l the Vogtle Coordinating Group analysis report).'
The Vogtle Coordinating Group Analysis report represents the center-piece to NRC Staff's predecisional information; NRC Staff's utilization of l
this report in this proceeding waives Staff's right to withhold l
l any other collateral document shown to the " management panel."
l 3.
The documents must be immediately made available to l
Intervenor l
Finally, Rule 26 (a) (2) (c) of the Fed. R. Civ. Pro., requires that a party receive 90 days notice before the hearing is to l
j commence to review and depose expert witnesses.4 At this late juncture, and in order to adequately integrate this material into Intervenor's case (including the ability to lay any necessary foundation from witnesses appearing during the week of April 17th), Intervenor must have immediate access to these documents.
On April 5-6, 1995, the parties are to meet to negotiate stipulations concerning exhibits.
Intervenor requests that when the parties meet, NRC Staff be ordered to produce all of the documents specified in the noticed depositions and present them.
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- to Int 5rvenoi?siddssilt M^
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to ' come ~ withiriiliA~ ^py t
~7e is %el Psettlsd that, in order
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T deliberative process privilege, documents must explain the reasons underlying the agency's decision or expose the process by which the decision was reached.
U.S.
v.
Real Procerty, 142 F.R.D.
at pp.
434-435.
Pursuant to Fed. R. Civ. Pro. 26 (a) (2) (C), a party is to receive at least 90 days notice of an expert witness before the hearing date. NRC Staf f supposedly identified all of its witnesses in a letter dated May 13, 1994, but changed its mind and, on March 10, 1995, notified the parties of its intention of calling a the
" management panel."
5
Respectfully submitted, 4
Michael D. Kohn KOHN, KOHN & COLAPINTO, P.C, 517 Florida Ave., N.W.
Washington, D.C.
20001 (202) 234 4666 Counsel to Intervenor CERTIFICATE OF~ SERVICE I hereby certify that the above document has been served.on
' April 1995, by First Class mail on the persons listed in'the attached service list (and by facsimile on April 2, 1995,. on persons identified with "*").
kvtbM0Ld $$
Mary J(nh Wilmoth
.KOHN, KOHN & COLAPINTO, P.C.
517 Florida Ave., N.W.
Washington, D.C.
20001
- (202) 234-4663,.
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DOCKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 95 prR -7 P12 :gg 4
)
In the Matter of
)
F s tRETARY
)
Docket Nos. 5 LA9;ERVICE l
GEORGIA POWER COMPANY
)
5-<
ShMi p_t;, al.,
)
)
m
)
Re: License Amendment i
l (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
)
ASLBP No. 93-671-01-OLA-3 4
i SERVICE LIST
- Administrative Judge Administrative Judge l
Peter B.-.Bloch, Chair James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive
'U.S.
Nuclear Regulatory Commission Oyster Poirit~
Washington, D.C.
20555 Sunset Beach, NC 28468
- Administrative Judge
- Charles A. Barth, Esq.
Thomas D. Murphy Office.of General. Counsel Atomic Safety.and Licensing Board U.S. N.R.C U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 John Lamberski, Esq.
- Ernest L. Blake, Jr.
Troutman Sanders David R.-Lewis-Suite 5200 SHAW,s PITTMAN,:POTTS[&I 600 Peachtree Street, N.E.
'TROWBRIDGE Atlanta, GA 30308-2216 2300 N Streets.N.W.
Washington,:? D;C.7 E200372;p.
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Office;of,the, Secretary)
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Adjudication A fl31Q;f i ~h ' ' 7 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 C:\\ FILES \\301\\ CERT.LIS
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