ML20082T387

Georgia Power Co Motion for Order Preserving Licensing Board Jurisdiction.* Requests That Commission Grant Relief Request.W/Certificate of Svc & Svc List

ML20082T387
Person / Time
Site:	Vogtle
Issue date:	04/27/1995
From:	Doris Lewis GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	NRC OFFICE OF THE GENERAL COUNSEL (OGC)
References
CON-#295-16669 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9505040015
Download: ML20082T387 (54)

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.;/6467 April 27.1995 UNITED STATES OF AMERICA 4 '~ d r

, NUCLEAR REGULATORY COMMISSION C;

Before the Commission Ol'

)  !

In the Matter of ) Docket Nos. 50-424-OLA-3

) 50-425-OLA-3 GEORGIA POWER COMPANY, )

etal. ) Re: License Amendment

) (Transfer to Southern (Vogtle Elects tenerating ) Nuclear)

Plant, Unitt I and 2) )

) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION FOR ORDER PRESERVING THE LICENSING BOARD'S JURISDICTION Introduction Georgia Power Company hereby moves the Commission fct an order prohibiting Intervenor Allen L. Mosbaugh from collaterally attacking the Atomic St.fety and Licensing Board's discosery rulings in the above captioned proceeding, and directing the Staff not to pursue investigations related to discovery or pleadings in this ongoing proceeding. Misrepresenting the record, Intervenor has requested that the NRC Office ofInvestigations (OI) investigate certain discovery responses and related pleadings in this proceeding, despite the fact that the Licensing Beard previously denied a motion to compel filed by Intervenor relating to the same subject matter; and 01 has initiated such an investigation. 01 investigations require licensees to expend considerable resources in response and are significant distractions from normal company 9505040015.950427 PDR ADOCK 05000424 C PDR L

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5 business, including licensing. Intervenor's tactic challenges the Board'sjurisdiction and disrupts this license transfer proceeding.' Because the relief requested by the motion requires direction to the Staff, Georgia Power submits this motion to the Commission rather than to the Licensing Board.2 On March 18,1994, Mr. Mosbaugh submitted to the NRC Office ofInvestigations certain allegations relating to discovery in this proceeding. These allegations, which were provided to the Licensing Board as Board Notification 94-07, include charges that counsel for Georgia Power made false statements in its discovery responses and arguments before the Licensing Board. In response to these allegations, the NRC Region II Oflice ofInvestigations informed Georgia Power's counsel Troutman Sanders, by letter dated May 13,1994, that an investigation had been initiated to consider an allegation that Troutman Sanders " knowingly provided incomplete and inaccurate informatan to an NRC ASLB."

2 It would also appear to constitute a wasteful expenditure of NRC resources.

10 C.F.R. s '2.730(a) permits motions to be addressed to the Commission or to the presiding officer. Further, the Commission retains supenisory power, both over the NRC Staff with respect to matters that are not part of an adjudication and over adjudicatory proceedings.

Public Senice Co. of New Hamoshire (Seabrook Station, Units 1 and 2), CLI-90-3,31 N.R.C.

219,224,228(1990). The NRC has exercised such authority when matters affecting an adjudicatory proceeding exceed the power of the presiding officer. See Metronolitan Edison Co.

(Three Mile Island Nuclear Station, Unit No.1), CLI-80-19,11 N.R.C. 700,701 (1980)

(Commission accepted petition pursuant to its inherent supervisory authority where the Licensing Board was without authority to grant the request and there was no specific route set forth for decidi..g the request); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1,2,3 and 4), CLI-80-12,11 N.R.C. 514. 516-17 (1980)(Commission exercised its supervisory authority when the Licensing Board lacked authority to direct the staffin the performance of their administrative functions).

On June 24,1994, counsel for Georgia Power wrote to the Region 11 Office of Investigations observing that the allegations concerning provision of false information to the ASLB are subject to the ASLB'sjurisdiction and suggesting that a collateral investigation is  ;

inappropriate.' Ilowever, OI has not responded to Georgia Power Company's letter; and now, over nine months later, while Georgia Power, its counsel, and its employees are preparing for j hearing,01 has contacted Georgia Power employees requesting to interview them on these l t

allegations.' '

We are very concerned with this collateral attack on counsel's actions in this proceeding, on the Licensing Board's ruling, and indeed on the Board'sjurisdiction. The Licensing Board has ample authority to regulate the conduct of the proceeding over which it presides, including the authority to decide discovery disputes and impose sanctions where warranted.10 C.F.R.

f 2.718(e),2.740(f). IfIntervenor is dissatisfied with the Board's rulings, he may appeal them at the appropriate point in time.10 C.F.R. & 2.786. Nir. hiosbaugh's allegations ignore these normal adjudicatory proceedings. His submittal of allegations prompting an 01 investigation of a discovery dispute challenges the Board's role as presiding officer, destroys the ability of counsel to operate with mutual respect and trust, and seriously disrupts the proceeding.

Further, hit. hiosbaugh's allegations distort and misrepresent the record of this proceeding, omitting key facts. In particular, they ignore Georgia Power Company's objections

' See Letter from J. Lamberski to J.h. Vorse, June 24,1994 (Attachment I hereto).

These contacts include instances where the 01 investigator contacted employees in the evening at their homes when the investigator was aware that these employees are represented by counsel on the same subject matter.

n to Intervenor's discovery requests which were sustained by the Licensing Board, and fail to mention the inaccurate statements by Intervenor in the pleadings in question.

The misrepresentations in Mr. Mosbaugh's allegations (misrepresentations of the record in this proceeding) compound the impropriety of this collateral attack. We believe that these tactics should not be permitted.

Intervenor's Misrepresentations Collaterally Attacking This Proceeding Intervenor alleges.

GPC'S (sic) FAILS TO DISCLOSE EXISTENCE OF AFFIDAVITS DURING DISCOVERY IN ASLB PROCEEDING In the course of discovery in the current Vogtle License transfer proceeding before the ASLB, extensive discovery requests were filed.

Specifically in Mosbaugh's first set ofinterrogatories, Question #54 (f) required GPC to " identify all documents" that " relate in any manner" to conversations held on April 19,1990 concerning LER 90-006. GPC failed to identify the affidavits in response to question # 54.

Mosbaugh March 1994 Allegations (9th unnumbered page).

Intervenor fails to mention that Georgia Power Company's response objected to the identification and production of attorney work product and attomey client communications.'

This objection was clearly stated at the beginning of GPC's response and was necessary because of the broad and overreaching nature ofIntervenor's discovery requests. Intervenor did not Georgia Power Company's Response to Allen L. Mosbaugh's First Set ofInterrogatories (June 2,1993) at 5.

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7 challenge this general objection' or raise any question conceming the sufficiency of the response within the time allocated by the NRC's rules of practice.

Intervenor's counsel did ask later about the affidavits in a meeting on June 29,1993.

Despite the fact that the period in which Intervenor could file a motion to compel had expired, Counsel for Georgia Power voluntarily agreed to supplement its prior response to identify the affidavits. Georgia Power did so on July 13,1993,' .it continued to object to their production on grounds of privilege.'

On July 23,1993, Intervenor moved to compel production of the affidavits.' Gergia Power Company responded on August 2,1993.' On September 8,1993, the Licensing Board held that the affidavits were privileged documents and denied Intervenor's Motion to Compel.

Mr. Mosbaugh further alleges,

. (I]n the filings with the ASLB Southern Nuclear's lawyers admitted that Aufdenkampe had conversations about the affidavits with Mosbaugh, but denied that Mosbaugh had been shown Aufdenkampe's In fact, Intervenor made a similar general objection in its responses to GPC's interrogatories. Sec Intervenor's Response to the First Set ofInterrogatories of Georgia Power Company (June 7, l'993) at 1-2.

Georgia Power Company's First Supplemental Response to Allen L. Mosbaugh's First Set ofInterrogatories (July 13,1993) at 6.

Intervenor's Motion to Compel Production of Affidavits in the Possession of Georgia Power Company (July 23,1993).

Georgia Power Company's Response to Interrenor's Motion to Compel Production of Affidavits (Aug. 2,1993).

Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-18, 38 N.R.C.121 (1993).

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af6 davit. This is false. Mrs. Aufdenkampe provided to Mosbaugh, her husband's affidavit to read, and witnessed Mosbaugh reading the affidavit.

Mosbaugh March 1994 Allegations (1Ith unnumbered page).

Mr. Mosbaugh again seriously misrepresents the record. In Intervenor's Motion to Compel (ses note 7 supra), Intervenor first represented among other things that: Mr.

Aufdenkampe had told Mr. Mosbaugh that he had initially refused to sign the affidavit because it contained false information and that he had been " hounded" or pressured by GPC lawyers to sign it. Intervenor also represented that "Mr. Aufdenkampe had allowed Mr. Mosbaugh to physically review a copy of an affidavit prepared by GPC's counsel." Intervenor's Motion to Compel at 2, 7.

In its Response (see note 9 supra), Georgia Power Company replied:

Mr. Aufdenkampe has reviewed these assertions and has informed GPC that they are not true.

The inaccuracy ofIntervenor's representations is confirmed by the July 30,1993 letter from Intervenor's counsel. Therein, Intervenor's counsel."clarifi[es]" an " ambiguity" in the representation that Mr.

Aufdenkampe " allowed" Mr. Mosbaugh to physically review a copy of the signed statement. Intervenor's clarification of the word " allowed" is that it was Mr. Aufdenkampe's wife, not Mr. Aufdenkampe, who allegedly let Mr. Mosbaugh review the signed statement, and it was she who allegedly expressed concern over pressure concerning the statement.

Contrary to Intervenor's assertion, to the best of Mr.

Aufdenkampe's recollection, the facts are as follows: (1) he may have mentioned to Mr. Mosbaugh that he had been asked to sign a statement, (2) he may have mentioned to Mr. Mosbaugh that he remembered Mr.

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Hairston being a participant on the earlier portion of an April 19,1990 conference call, (3) he did nel advise Mr. Mosbaugh that he " refused to sign the affidavit prepared by GPC's counsel," (although a few wording changes were incorporated into an initial draft at his request). (4) he did not advise Mr. Mosbaugh that he had conversations with GPC counsel as to why he should sign the earlier draft of his statement (such a conversation did not occur), and (5) he did nel allow Mr. Mosbaugh to physically review his statement, whether in draft or final form. In i

addition, Mr. Aufdenkampe discussed Intervenor's July 30,1993 letter with his wife and she reports that she does not recall ever allowing Mr.

Mosbaugh to review Mr. Aufdenkampe's draft of final statements.

Georgia Power Company's Response at 15,21-22."

These pleadings show that it was Mr. Mosbaugh who made the inaccurate statements, in Intervenor's Motion to Compel." Intervenor asserted that Mr. Aufdenkampe had shown his t

affidavit to Mr. Mosbaugh. Intervenor's later " clarification" that it was not Mr. Aufdenkampe but his wife in effect admitted to the inaccuracy of the representations in Intervenor's Motion to Compel.

Contrary to Mr. Mosbaugh's current allegations, Counsel for Georgia Power did not deay that Mr. Mosbaugh had been shown the affidavit. Georgia Power Company's response merely stated that Mr. Aufdenkampe had not shown the affidavit to Mr. Mosbaugh, as Intervenor had

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y 22 During Mr. Aufdenkampe's deposition on June 14.1994, Mr. Aufdenkampe confirmed that he had asked his wife whether she had shown the affidavit to Mr. Mosbaugh and that she has no recollection of having done so. Dep. Tr.148. Thus, Georgia Power Company's Response accurately reported Mr. Aufdenkampe's reply to the aesertions in Intervenor's Motion to Compel.

12 Intervenor has a history of misrepresentation in this proceeding. As noted in Georgia Power Company's Response at 16 n.9. the inaccurate statements in Intervenor's motion to compel were not the first misrepresentations by Intervenor in this proceeding. Intervenor had previously misrepresented facts assened in support of standing, and later misrepresented facts concerning preparation of the six tapes.

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originally alleged, and that Mr. Aufdenkampe reported Mrs. Aufdenkampe did not recall allowing Mr. Mosbaugh to review her husband's statements.

Mr. Mosbaugh also now alleges, According to John Aufdenkampe's statements to Allen Mosbaugh. GPC's list of affidavits is no.1 complete. Aufdenkampe had stated to Mosbaugh that lawyers told him they were getting affidavits from everyone on the call and he was the only one who remembered Hairston on the call.

Mosbaugh March 1994 Allegations (10th unnumbered page).

As is clear from this statement, Mr. Mosbaugh has no firsthand knowledge of the existence of any additional.afridavits and is relying on double hearsay. Intervenor knew, from the tape recordings, who particicated in the various conversations on April 19,1990, and had the opportunity to confirm during depositions that additional affidavits were not taken. There is thus no basis for Mr. Mosbaugh's serious, disparaging, and disruptive allegation, or for his request that 01 police the discovery disputes and rulings in this proceeding.

Based an his new allegations (and substantial misrepresentations), Mr. Mosbaugh has asked the NRC to investigate issues including:

Southern Nuclear and its Law Firm Troutman Sanders have engaged in a cover-up since 1990 and have made false statements withheld information, failed to report information, and failed to correct information known to be incomplete and/or inaccurate to the NRC, DOJ, and ASLB. This applies to the information and events surrounding the 4-19-90 conference call including the participation of corporate staff and executives on the 4-19-90 conference call.

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Southern Nuclear and its Law Firm Troutman Sanders falsely denied in 1993 that Allen Mosbaugh had been shown John Aufdenkampe's affidavit,in its icply brief to the ASLB.

Southern Nuclear and its Law Firm. Troutman Sanders failed to identify to the ASLB all the personnel from whom signed statements or affidavits were obtained, that relate to the conversations on 4-19 90, concerning LER 90-06 and the " Call A and/or B" participants.

i Mosbaugh March 1994 Allegations (12th unnumbered page)(emphasis added). As shown above, the allegations pertaining to this proceeding are baseless.

01 informed Troutman Sanders that it has initiated an investigation that Troutman l

Sanders " knowingly provided incomplete and inaccurate information to an NRC ASLB." 01 further asked Troutman Sanders to provide it copies of all 1991 affidavits taken by Troutman Sanders regarding the April 19,1990 telephone call. Thus, Intervenor is effectively utilizing OI to attempt to destroy the privilege pertaining tr 'he affidavits and circumvent the Board's prior ruling denying Intervenor's motion to compel.

Reauest for Relief We believe that this investigation, ins igated by Mr. Mosbaugh and based principally on misrepresentations of the record of this proceeding, is inappropriate and disruptive, and usurps the Board's authority to goverr, a own proceedings. For these reasons. Georgia Power moves P

the Commission to prohibit Intervenor from making collateral attacks on the conduct and rulings of the Board, and to bar the NRC Staff from parallel investigations and proceedings which are 9

disruptive to this process." The Commission may issue this order pursuant to its inherent supervisory authority over the conduct oflicensing proceedings and Staff actions."

Conclusion For all of the foregoing reasons, Georgia Power Company asks that the Commission grant the requested relief.

Respectfully submitted,

\ \

Ernest L. Blake, Jr.

David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington. D.C. 20037 (202) 663-8000 John Lamberski TROUTMAN SANDERS 600 Peachtree Street, NE Suite 5200 Atlanta, GA 30308-2216 (404) 885-3360 Counsel for Georgia Power Company Dated: April 27,1995 The participants in the several telephone calls on April 19.1990 are identified on the transcripts of the recordings made by Mr. Mosbaugh. GPC would not object to the Staff asking each of these individuals to confirm that no affidavits, other than those previously identified, were taken. Any broader inquiry invading counsel's work product, however, should be prohibited.

Sg Carolina Power & Light Co. (Shearon IIarris Nuclear Power Plant, Units 1,2. 3, and 4). CLI-80-12,11 N.R.C. 514. 516 (1980) (Commission has the authority to " direct the Staffin performance of their administrative functions...as part ofits inherent supervisory authority even over matters in adjudication" (citations omitted)).

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1. 3 D:, '

I UNITED STATES OF AMERICA NUCl. EAR REGULATORY COMMISSION. .i

'i Before the Commission

'3 1r 2r 0 -

- ~ l j

i i

)

Di- l In the Matter of ) Docket Nos. 50-424-OLA-3 l

) 50-425-OLA-3 .:

GEORGIA POWER COMPANY, )  !

et al. ) Re: License Amendment .;

) (Transfer to Southern (Vogtle Electric Generating ) Nuclear)  ;

Plant, Units I and 2) ) [

) ASLBP No. 93-671-01-OLA-3 j CERTIFICATE OF SERVICE j i

I hereby certify that copies of" Georgia Power Company's Motion for Order Preserving l the Licensing Board's Jurisdiction," dated April 27,1995, were served by deposit in the U.S.

t Mail, first class, postage prepaid, upon the persons listed on the attached service list, this 27th I

day of April,1995. l e- - ~

W i c... Q {

David R. Lewis ,

Dated: April 27,1995 l

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of ) Docket Nos. 50-424-OLA-3

) 50-425-OLA-3 GEORGIA POWER COMPANY, ) '

et al. ) Re: License Amendment

) (Transfer to Southern i (Vogtle Electric Generating ) Nuclear)

Plant, Units 1 and 2) )

) ASLBP No. 93-671-01-OLA-3 SERVICE LIST Commissioner Ivan Selin, Chairman Commissioner Kenneth C. Rogers U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner E. Gail de Planque Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commissica  ;

Washington, D.C. 20555 Washington, D.C. 20555 ATTN: Docketing and Services Branch Administrative Judy. Mitzi A. Young, Esq.

Peter B. Bloch, Chairman Charles Barth, Esq.

• Atomic Safety & Licensing Board John T. Hull, Esq.

U.S. Nuclear Regulatory Commission Office of General Counsel Washington, D.C. 20555 One White Flint North, Stop 15B18 U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 Administrative Judge Director, James H. Carpenter Environmental Protection Division Atomic Safety & Licensing Board Department of Natural Resources 933 Green Point Drive 205 Butler Street, S.E., Suite 1252 Oyster Point Atlanta, Georgia 30334 Sunset Beach. N.C. 28468  !

I

.- i Administrative Judge Office of Commission Appellate Thomas D. Murphy Adjudication  !

Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington. D.C. 20555 Washington, D.C. 20555 Michael D. Kohn. Esq. Adjudicatory File Kohn, Kohn & Colapinto, P.C. Atomic Safety and Licensing Board 517 Florida Avenue, N.W. U.S. Nuclear Regulatory Commission Washington, D.C. 20001 Washington, D.C. 20555 Stewart D. Ebneter Carolyn Evans, Esq.

Regional Administrator U.S. Nuclear Regulatory Commission USNRC, Region II 101 Marietta Street, N.W., Suite 2900 101 Marietta Street, NW, Suite 2900 Atlanta, GA 30323-0199 Atlanta, Georgia 30303 1

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'E .E *mCNE 404 885 3000 seCSetE 404 SeS 3900 JOMN LAMBEASwt c,AECT 404 625 3360 June 24,1994 VIA HAND DELIVERY Mr. James Y. Vorse Office of Investigations Field Office, Region II U.S. Nuclear Regulatory Commission 1 101 Marietta Street, Suite 2900 Atlanta, Georgia 30323

Dear Mr. Vorse:

'lhis letter responds to your May 13,1994 request that I provide you with copies of certain affidavits this law firm obtained in the course of its legal representation of Georgia  ;

Power Company ("GPC") in 1991. Your letter also asks that I identify the names, locations, ,

and surrent phone numbers of all personnel that were interviewed by this firm in that 1991  !

time frame regarding April 19,1990 telephone conferences among GPC and Southern Nuclear personnel concerning Licensee Event Report ("LER")90-006, dated April 19, 1990.

First, the four affidavits you requested are subject to the attorney-client communication privilege and the attorney work-product doctrine. The Atomic Safety and  ;

Licensing Board ("ASLB") in the license amendment proceeding referenced above so ruled '

on Sea *=her 8,1993 (LBP-93-18, 38 N.R.C.121). A copy of the Board's order and a synopsis of the pleadings associated with the order are attached for your review. Similarly, your request that this law firm identify all personnel that were interviewed by the firm in the 1991 time frame is objectionable in that it calls for information which is attorney work-product. GPC has already identified the individuals who may have participated in the underlying telephone call (s) - information which is not protected - so a proper inquiry into this subject is impeded in no way by the unavailability of the particular information you request from this firm.-

Second, the apparent assignment of Mr. Larry Robinson to this matter is objectionable. Mr. Robinson over the last four years has demonstrated partiality in connection with his review of allegations of Intervenor. Mr. Robinson's analysis in the report of December 20,1993 in Case No. 2-90-020R ignores substantial relevant and material exculpatory facts of which Mr. Robinson was aware at the time he prepared the report. In addition, Mr. Robinson's contacts with Intervenor (including the provision of

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TROUTMAN SANDERS

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Mr.' James Y. Vorse June 24,1994 l Pane 2 l

documents and information) raise questions about Mr. Robinson's impattiality. Sag, g4, f Intervenor's Amended Response to Licensee's Third Set of Interrogatories and Request for  ;

Documents, dated June 13,1994, at 6-9,12-13. We request that the assignment of i Mr. Robinson to this and any other GPC matter be reviewed for propriety by an appropnate  !

NRC official, such as the General Counsel.1' A written response addressing this matter is j requested, i

i Finally, the allegations to which you make reference in your letter need to be resolved j and done so promptly. 'Ihe allegatiocs that this firm provided false information to the ASLB are matters covered by the NRC Rules of Practice contained in 10 C.F.R. Part 2. Such matters are routinely subject to the ASLB's own jurisdiction, and the pending limnae amendment proceeding is an appropriate place for the resolution of these matters.

[

Please contact me if you have any questions concerning this response.- .

1 Very tru yours, t

John Lamberski Attachments I

cc: Daryl S. Shapiro, Esq. '

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l'You and Mr. Hayes reviewed and approved the December report. Consequently, it  :

would be prudent that this matter be addressed by an NRC official who is independent of OI  !

and not involved in the subject matter.  ;

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Cite as 38 NPC 121 (1993) LBP-9318 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD I

Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter j

Thomas D. Murphy i

l in the Matter of Docket Nos. 50424 OLA 3 50-425 OLA 3 (ASLBP No. 93-671-01 OLA 3) l (Re: License Amendment; 1

Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, of al.

(Vogtle Electric Generating Plant.

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Units 1 and 2) September 8,1993 '

The Board ruled that statemems were priviieged both as attorney work-product and attorney-client privilege when :he statements were given to Ap-plicant's attorneys at a time that they had reason to believe they were relevant to an 01 investigation that could occur. An allegation that the interviewees were

" hounded" to make them tell a common story is not enough to overcome the privilege. However, persuasive evidence, presented at a hearing, of " hounding" or other improper attorney conduct could overcome the pnvilege.

RULES OF PRACTICE: WORK PRODUCT PRIVILEGE; ATTORNEY.CLENT PRIVILEGE (" HOUNDING")

" oof at a heanng that clients had been " hounded" or otherwise improperly treated could overcome a claim of privilege, either under the work product privilege or the attorney-client privilege. Where a party is on notice that such 7

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l proof may be presented he may be ordered to have disputed documents available at the hearing for purposes of possible production.

RULES OF PRACTICE: ATTORNEY CLE.NT AND WORK PRODUCT PRIVILEGES IN A CORPORATION A'torney-client at:d work-product privileges are not limited to a controlling group with a corporation. The privileges are broad!) construed to encourage full information-gathering by attorneys. Upjohn Co. v. United States, 449 U.S.

383 (1981).

RULES OF PRACTICE: ATTORNEY CLIENT AND WORK PRODUCT PRIVILEGES (WAIVER)

An evidentiary privilege held by a corporation may be waived only by an authorned employee.

MEMORANDUM AND GRDER '

(Discovery Motion) he purpose of this Memorandum and Order is to rule on a motion toI compel filed by Intervenor on July 23, 1993.' 4 I i L BACKGROUND he documents sought by Intervenor through this motion are signed state-ments of John Aufdenkampe, Thomas Webb, Jack Stringfellow, and George :

Hairston - all GPC employees at the time. The statements relate to conversa-tions held on April 19, l'i90, about LEP,90-006, which Intervenor alleges we inaccurate when it was filed with the Nuclear Regulatory Commission (PSC).

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tuerwsz a Anem L hbaugh Aftdsvtu to Oss Pommessaos of Geor5ia Power C&ergesy (GPCL July 21.1993 Gar' Tim reirve and Georgsa Power Cornpaay's kaaponse en heurvenor's Macon to Cartyst /s a4anos Pdas Caaysik 1993 <cPC m r-* er A&leven, Aages 1 Ws enes enas there a our other pen &ng mance ao concel However, we have base inforned by tbs sinff (NRC sufftsarmgesories and Ducam 1993. m 21 ihas Ans mance a under erganacoat We mpueston outsma&ag Discoeury Maners Asgue 9 ami staff so aanfy us prongdy af anaer organances end or d te parnes deterirene thas ne laurwaar's ames have beta adequasely esosasd 122

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Dese affidavits were obtained at a time when GPC could reasonably anticipate  !

epforcement action against it.8 l- l l

IL LEGAL SETTING GPC claims that the affidavits in question are not discoverable because they are protected by the attorney work-product privilege and the attorney-client privilege. For reasons set forth below, we accept, at this time, both claims of privilege.

A. Work Product Privilege 5 he NRC's discovery rules regarding the work product doctrine are set out in 10 C.F.R. I2.740(b)(2), which provides:

(2) Tual preparanon naaserunis. A pany may obtain discovery of documents and tangible stungs otherwise discoverable under paragraph (b)(1) of tfus secuon and prepared in anucipanon of or for the heanng by or for another party's representauve (including tus anorney, consultant. surety. indernaitor, insurer, or agers) only upon a showing that the pany seebng discovery has substantial need of the matenals in the preparauon of stus case and that he is unate'e without undue hardsfup to obtain the substanual equivalers of the matenals try other sneans. In ordenng discovery of such merenals when the required showing Aas been made, the presiding omcer shall protect against disclosure of the rnentalimpressions.

conclusions, opinions. or legal theones of an enorney or other representanve of a pany concertung the proceeding.

Rese rules are adapted from Rule 26(b)(3) of the Federal Rules of Civil Procedure, Commonwealth Edison Co. (Zion Station. Units I and 2), ALAB-1%,7 AEC 457,460 (1974), which is itself a derivation of the Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947). See Advisory Com nittee Note to 1970 Amendments to Fed. R. Civ. P., 48 F.R.D. 459,499 (l970).

He affidavits in question were prepared in anticipation of a hearing. At the time, a section 2.206 petition was pending. Also, GPC had information that there might be an investigation by the NRC Office of Investigations. Hence, it reasonably believed that there would be some form of enforcement litigation for 8cPc s riri suppirmenuir ae ponse no one. L Moib. ugh s Fas set of Imarrogstanes July I3 1993 (GPC sugylevreis) a 6. omis any armece of the duas of ihr interviews wuh as four envioyees senslariy. GPC"s Response does oor ames to cantase any daar for onces innerverwa we eunk ens arregiury se ois record shouhl be3 clanfied as omst as no reanoe to conseder the dame pnnleged The twpanaag of cus sernoe of our Hemoran& ara is enres froen our opinion in t.BP 9311. 31 t='RC a69,472 (1993).

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. l which the affidavits might be necessary.' The affidavits are therefore, covered l

by the work product privilege.

, B. Attorney Client PrMlege 1

We accept the following statement of GPC as accurately setting forth the law concerning the attorney-client privilege:s The United States Supreme Court has held that, when the cliers is a corporacon, the anorney<lient pnvilege applies to commurucanons by any corporale employee regardless of posmon when the conununscanons concern mauers willun the scope of the employee's corporate duties and the employee is aware that the informanon is being furnished to enable the anorney to provide legal advice to the corporanon. Upjohn Co. v UnitedSaarts. M9 U.S.

383. 396 97.101 S. Ct. 677. 685-86 (19811; see also Adaurallar. Co. v. Unned Stasas Dist.

Court. 881 F.2d 1486.1492 (9th Cir.19891 The Court in Upfonn declined to establish an all encompassing test for applicanon of the anorney<lsent pnvilege to corporanons. Inssend, it held that each case must be evaiusted to deternune whether application of the pnvtlege would further sts underlytag purposes of encouraging candid commurucanons between cliam and counsel and providirig effecove representauon of counsel. Upjohs. supra 49 U.S. at 389. 390-91. 396-97,1015. Ct. at 682 86.'

It is important to understand that Upjohn resolved an issue that had been dividing the courts of appeals: whether or not to extend the protection of the j attorney-client privilege only to a " control group" in a corporation or to all l employees acting within the scope of their duties. Upjohn took this second, j enlarged view of the pnvilege. In the course of its opinion, at 449 U.S. 390. 66  !

L. Ed. 2d 592, the Court stated:

Rhe pnvilege cansts to protect not only the gmng of professional advice to those who can art on at but also the pvmg of informanon to the lawyer to enable lum to pre sound and i informed advice.

Then, at 449 U.S. 391-92. 66 L. Ed. 2d 592-93, the Court quotes Diversifwd industries. Inc. v. Aferedith. 572 F.2d $96 (8th Cir.1978)(en banc):

In a corporation. it may be necessary to glean informanon relevant to a legal prr>blem from

, truddle management or non. management personnel as mell as from top esecuoves. The anorney dealing with a complea legal problem "is thus faced wuh a "Hobson's choice'. If he interviews employees not havmg 'the very tughest authonry', their communications to him will not be pnuleged If, on the other hand he interviews only those employees wuh "CPC ltespanne as 4to s fg ,, g7

• sar s4re D=As rowe Co (Catswba %Icar siacom Unia I and 21. CU-83 31.18 NRC 1303.1305 (19831 124

i

'the very highest authonry'. he may find it etuemely difficult, af not irnpossible, to determine a hat, happened.* "

Applied to this case, the Board thinks of management's Hobson's choice slightly differently, but we nevertheless conclude that the privilege applies.

Management may decide it wants to investigate a problem and ascertain the truth. It may need to ask very probing questions. To encourage this kind of appropriate management action, in a complex regulatory setting in which an enforcement action was reasor. ably foreseeable GPC used its lawyers. It is appropriate that these professionals should be given as much information as possible without having to risk public disclosure of their work. The attorney-client privilege protects this activity, and the company need not later reveal the affidavits it compiled. (Needless to say, it is only the affidavits that are protected end not the underlying facts, which are certainly discoverable. Upjohn,449 U.S.

et 395 96,66 L. Ed. 2d at 595.)

. In this instance, GPC's employees spoke to GPC's lawyer concerning an important safety event. It was the lawyers' job to represent their employer, to ascertain the truth, and to disclose the truth as perceived by GPC. It is the purpose of the attorney-client privilege to provide the conditions under which employees may talk freely to the company attorney.

We therefore hold that these documents are covered by the attorney-client privilege.

C. Limitations on the Privileges There is one more complication to this situation. This arises because Inter.

senor asserts that some or all of these individuals may have been " hounded" or otherwise pressured to sign these affidavits.' This mere assertion, not demon-strated at a heanng, is not sufficient to overcome the attorney-client privilege or the attorney work product pnvilege. However, if Intervenor proved that fact at heanng, we could be persuaded to release the affidavits at that time. Upjohn, 449 U.S. at 396,66 L Ed. 2d at 595, citing Federal Rules of Evidence 501 and

{

S. Rep No. 93-1277, p.13 (1974)("the recognition of a privilege based on a confidential relationship , . should be determined on a case by-case basis").

Traas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), LBP 84 50,20 NRC 1464,1468-69 (1984), citing Rule 1.7 of the ABA Model Rules of Professional Conduct.

'truerwaar : Manae to Carmet as 1 125 '

....m

l, lE 1;

UL TIMELINESS

, In its response to Intervenor's Motion to Compel, GPC claimed that the request to comel production of these documents is untimely and should be prohibited. Under NRC rules. Intervenor has no automatic right to reply to this claim in order to defend its timeliness. However, a reply will not be necessary because it appears to the Board that the documents being sought are sufficiently important that we will not deny them to Intervenor on the ground of untimeliness.

i On the other hand, tve caution all the parties to be timely, as the Board has the authority to penalize untimeliness in appropriate ways. '

IV. WAIVER Intervenor's claim to waiver of the attorney-client privilege is based! entirely on attorney statements concerning actions by Mr. Aufdenkampe.8 hese state-ments are not supported by affidavits. Rey are contradicted by GPC's attorney.'

So we find that there is insufficient evidence to persuade us of the facts alleged to lead to waiver. Furthermore, as counsel for GPC points out, when the client I is a corporation, the power to waive the attorney client privilege rests with the corporation's management and is normally exercised by its officers and direc.

j tors.* In re Grand Jury Subpoenas. 89-3 and 89-4, John Doe 89-129 v. Under Seal. 902 F.2d 244,248 (4th Cir.1990).

V. ORDER For all the foregoing reasons and upon corsideration of the entire reconi in this matter, it is, this 8th day of September 1993. ORDERED that:

• i Allen L. Mosbaugh's Motion to Compel is denied.

At any hearing in this maner, Georgia Power Company shall have available for production the affidavits covered by the Motion to Compel.

IM m 7,

' crc map == = 21.n "M a 19.

j l

126 l

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4 9

GPC shall promptly nie in this docket the date on which each of the af6 davits mentioned in the previous paragraph was taken.

THE ATOMIC SAFETY AND LICENSING BOARD James H. Carpenter (by PBB)

ADMINISTRATTVE JUDGE Thomas D. Murphy ADMINISTRATTVE JUDGE Peter B. Bloch, Chair ADMINISTRATTVE JUDGE Bethesda Maryland 127 i

- ;m i

TROtJTMANSANDERS

.u.:.e.su. :Js.=

BACKGROUND OF ALLEGATIONS i

1. Intervenor served Allen Mosbaugh's First Set ofInterrogatories to Georgia Power Company on May 4,1993 (the " Interrogatories"), in the on-going license amendment proceeding concerning GPC's Plant Vogtle (Docket Nos. 50-424-OLA-3,50-425-OLA-3).

Interrogatory 54 requested GPC to " Identify each conversation held on April 19,1990 related ,

to LER 90-006. ... f. identify all documents which relate, in any manner to the ,

convr rsation."

2. Georgit Power Company's Response to Allen Mosbaugh's First Set of Interrogatories, dated June 2,1993 ("GPC's First Response"), stated a number of general objections to Intervenor's Interrogatories, including an objection to the identification, or disclosure, of documents which are subject to the attorney work product doctrme or the attorney-client communication privilege. GPC's First Response at 5. In response to Interrogatory 54, GPC stated, in pertinent pan: "As to communications between the Plant Vogtle site staff and the GPC corporate office staff, see Response No.13."

The response to Interrogatory 13 stated in peninent pan, as follows:

Communications respansive to this interrogatory include the following:

c. One or n; ore telephone conversations between the plant and the corporate office involving the following individuals who may or may not have panicipated in the entirety of the telephone call (s):

Plant Staff: George Bockhold, Jr.

John G. Aufdenkampe Allen Mosbaugh Corporate Office: W. George Hairston, III C. Kenneth McCoy William B. Shipman Paul Rushton N. Jackson Stringfellow GPC did not tape record these conversation (s) and, therefore, cannot recreate the specific statements made by each participant. The above telephone call (s) are described in GPC's responses to the Hobby /Mosbaugh Petition, copies of which were provided to Intervenor. Other documents of which GPC is aware include: the videotape, audiotapes and transcripts of the NBC Nightly News broadcast of

g l 4 ,- -;

s -

' )

- TROUTMAN SANDERS

.w e..a u..:.J w a .

August 8,1990 and tape recordings made by Intervenor (Nos. 69, 71 and 89) and the '

transcripts thereof.1' '

3. Although no timely motion to compel was filed 'by Intervenor after GPC's response, following' discussions between GPC's and Intervenor's counsel on June 29,1993, GPC agreed to supplement its responses to four of Intervenor's Interrogatories (Nos.15, 20, j 53 and 54). San Georgia Power Company's First Supplemental Response to Allen L. i Mosbaugh's First Set of Interrogatories, dated July 13,1993 (the _" Supplemental Response").  ;

' GPC expressly reserved its right to assert any objections which it had previously made to 1 Intervenor's Interrogatories. Supplemental Response at 1. GPC's supplemental respanse to.  ;

Inwiugategy 54 stated:

Counsel for GPC obtained signed statements from the following individuals, which statements are related to the Factual Bases:3'

)

i a) John G. Aufdenkampe  !

b) "Ihomas E. Webb c) Norman Jack Suingfellow 'i d) W. George Hairston, III i GPC objects to producing copies of the foregoing statements on the grounds that they constitute attomey-client communications and that they were prepared by legal counsel in anticipation of litigation and, therefore, are subject to the attorney work product doctrine, i

4 Intervenor sought to compel GPC to disclose the contents of the four affidavits identified above by Intervenor's Motion to Compel Production of Affidavits in the Possession -

of Georgia Power Company, dated July 23,1993 (the " Motion"). 'Ihe Motion included i

assertions that one of the witnesses, Mr. Aufdenkampe, had stated to Mr. Mosbaugh that l

GPC counsel had told Mr. Aufdenkampe that everyone on the April 19,1990 call had  ;

executed or were in the process of executing sworn affidavits. Motion at 2. Whether j Mr. Aufdenkampe made such a statement to Mr. Mosbaugh is academic. '!he fact is that GPC's counsel did not obtain affidavits from everyone on the April 19,1990 telephone ,

conferena call (s), but only from Messrs. Hairston, Stringfellow, Aufdenkampe and Webb. l l

l' Following this response, in December,1993, GPC received copies of the tape  !

recordings surreptitiously made by Allen Mosbaugh on April 19, 1990.

l at Ige = Factual Bases" were defined as "Intervenor's allegations that (1) during 1988-90 GPC illegally transferred the operating licenses for Plant Vogtle, and (2) GPC officials conspired to and knowingly submitted material false statements to the NRC with respect to i the number of diesel starts reported in GPC's LER 1-90-06, dated April 19,1990." GPC's First Response at 3.

2-1

__ __ ~ _ ._

TROUTMAN SANDERS .

.u.w m.:aem

5. GPC's response to the Motion set forth its legal argument as to why the  :

affidavits are protected from disclosure by the attorney work product doctrine and by the '

attorney client communication privilege. Sac Georgia Power Company's Response to -

intervenor's Motion to Compel Production of Affidavits, dated August 2,1993 ("GPC Response"), at 5-22 (enclosed). GPC's Response also stated that Mr. Aufdenkampe had reviewed the various assertions in Intervenor's Motion and informed GPC counsel that certain of them were not true. Specifically, GPC's Response stated, at 21-22, as follows: l l

Contrary to Intervenor's assertion, to the best of Mr. Aufdenkampe's recollection, the facts are as follows: (1) he may have mentioned to Mr. Mosbaugh that he had been -i asked to sign a statement, (2) he may have mentioned to Mr. Mosbaugh that he  ;

remembered Mr. Hairston being a participant on the earlier portion of an April 19, l 1990 conference call, (3) he did ng advise Mr. Mosbaugh that he " refused to sign the  !

affidavit prepared by GPC's counsel," (although a few wording changes were incorporated into an initial draft at his request), (4) he did ng advise Mr. Mosbaugh ,

that he had conversations with GPC counsel as to why he should sign the earlier draft of his statement (such a conversation did not occur), and (5) he did Da allow Mr. ,

Mosbaugh to physically review his statement, whether in draft or fir,a1 form. In '

addition, Mr. Aufdenkampe discussed Intervenor's July 30,1993 letter with his wife -

and he reports that she does not recall ever allowing Mr. Mosbaugh to r:: view Mr. Aufdenkampe's draft or final statements.

Furthermore, GPC and Mr. Aufdenkampe object to Intervenor's characterization that Mr. Aufdenkampe was

• hounded" or in any way pressured by GPC or its legal counsel into signing a statement. Mr. Aufdenkampe did so willingly because it was, and still is, his opinion that Mr. Mosbaugh's allegation - that GPC knowingly and ,

wilfully submitted false information to the NRC in LER 90006 - is ng Itus.

6. The Licensing Board ruled on Intervenor's Motion and GPC's Response by  !

Memorandum and Order (Discovery Motion), LBP-93-18,38 N.R.C.121 (September 8, 1993). "Ihe Board held that the four afddavits were subject to the attorney work product doctrine as well as the attorney-client communication privilege and, therefore, GPC was not j required to disclose them. 38 N.R.C. at 123-25. 'Ihe Board did require that these affidavits be available at the hearing in the event it decided, at that time, to order their disclosure 11 at 126.

c f

A

.. - t

.O UNITED STATES OF AMERICA '

t NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

• GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 31 11

• 50-425-OLA-3 l (Vogtle Electric

• Re: License Amendment Generating Plant, *

(Transfer to Southern Units 1 and 2)

• Nuclear) i ASLBP No. 93-671-01-OLA-3 i

f GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S MOTION  !

TO COMPEL PRODUCTION OF AFFIDAVITS  !

t j

I. INTRODUCTION.

Georgia Power company ("CPC") hereby responds to Intervenor's Motion to Compel Production of Affidavits in '

the Possession of Georgia Power Company, dated July 23, 1993

("Intervenor's Motion to Compel"). GPC requests that the Board deny Intervenor's Motion to Compel because the motion is untimely, the statements sought by that motion are [

protected by,the work product and attorney-client privileges and such privileges have not been waived. Furthermore, r

Intervenor's statements concerning communications between Mr. Mosbaugh and Mr. Aufdenkampe are inaccurate.  !

1 D W hh ^^ O y y e t I U_ U G q (~,j

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II. BACKGROUND.

On May 4, 1993 Intervenor served Allen L. Mosbaugh's First Set of Interrogatories to Georgia Power Company.

Interrogatory 54 therein requested that GPC "[ijdentify each conversation neld on April 19, 1990 related to LER 90-006. . .

[and) identify all documents which relate, in any manner, to the conversation."

In accordance with the Board's Memorandum and order of i

May 24, 1993 (reflecting an agreed upon schedule for discovery responses), GPC responded to Intervenor's interrogatories on June 2, 1993.1/ In response to Interrogatory 54, GPC identified conversations involving a number of Plant Vogtle site personnel and corporate office i personnel. GPC's R.esponse at 53-54. GPC's Response included a genera) objection to Intervenor's interrogatories ,

to the extent they requested the " identification, or i disclosure, of those documents which are subject to the ,

attorney work product doctrine or the attorney-client >

privilege." GPC's Response at 5-6.

On June 29, 1993 a meeting among counsel for the parties was' held at GPC's request in Washington, D.C. to L

II Egg Georgia Power Company's Response to Allen L.

Mosbaugh's First Set of Interrogatories, dated June 2,

("GPC's Response"). 1993 t

r

E discuss GPC's action to cospel Intervenor to respond to discovery requests. At this same meeting, Intervenor asked 1

a few questions concerning several of GPC's responses to Intervenor's interrogatories. With respect to Intervanor's Interrogatory 54, Intervenor's counsel requested the  !

identification of signed statements that Intervenor knew had been obtained from individuals with respect to the events of  !

April 19, 1990 concerning LER 90-006. Although Intervenor had not filed a timely motion to compel with respect to '

GPC's Response in accordance with 10 C.F.R. $ 2.740(f), GPC voluntarily agreed to identify, but not produce, the requested signed statements. I Thereafter, GPC identified four signed statements and i

repeated its objection to producing such statements on grounds of the attorney work product doctrine and the  ;

i attorney-client privilege.1/ GPC's Supplemental Response, at 1-2, also explicitly stated:

In providing this supplemental response GPC does not waive any objections previously asserted. In addition, GPC has neither agreed to extend nor otherwise waived the time limitations for filing motions to compel contained in 10 C.F.R. S 2.740(f) . ,

II Egg Georgia Power Cospany's First Supplemental Response  !

to Allen L. Mosbaugh's First Set of Interrogatories, dated r July 13, 1993 ("GPC's Supplemental Response"), at 6.

l I

l

i Ten days after GPC served its Supplemental Response, Intervenor served on GPC's counsel, by hand delivery, its Motion to compel production of the four affidavits identified by GPC. '

J III. ARGUMENT.

~

A. Intervenor's Motion To Compel should Be Denied Because It Is Untimelv.

Intervenor's Motion to Compel, filed on July 23, 1993, i is untimely because it was not filed within ten (10) days of the date of service of GPC's Response (June 2, 1993) as 8

required by 10 C.F.R. $ 2.740(f) . Intervenor may consider its Motion to Compel timely based on the date of service of '

GPC's Supplemental Response. However, GPC submits that its

• supplemental response to an interrogatory does not justify Intervenor's untimely motion to compel document production.

The time for filing Intervenor's Motion to Compel expired 15 days after GPC's Response was served, i.e. June 17, 1993.Il Intervenor's Motion to Compel should not be considered timely solely because GPC voluntarily supplemented an interrogatory response. Such a result would discourage cooperation among the parties with respect to discovery. t Additionally, this is not an instance where a supplemental

• Il This includes an additional five days allowed when service is by mail, pursuant to 10 C.F.R. $ 2.710.

4 .

I 1

response first alerted a party to the existence of a discovery dispute. In this case, Intervenor already knew of the existence of the witness statements. Intervenor's Motion to Compel, at 2, indicates Intervenor had been aware, since the time the statements were obtained, that GPC had obtained statements from persons who had participated in the i

April 19, 1990 telephone calls. I i

Because Intervenor's Motion to Compel is untimely, it should be denied. i i

B. The Four Signed Statenants Are Protected Fron Disclosure By The Work Product Doctrine.  ;

The work product doctrine is embodied in 10 C.F.R.$ 2.740(b) (2) and provides that "[a] party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and Prepared in anticipation of or for the hearing by or for another party's representative . . . only upon a showing  !

that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is i unable without undue hardship to obtain the substantial equivalent of the materials by other means." This rule is t

adapted from Rule 26(b) (3) of the Federal Rules of Civil l Procedure, which is itself derived from the holding of the  ;

United States Supreme Court in Hickman v. Tavler, 329 U.S.  !

i g

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4 495, 67 S.Ct. 385 (1947). Lona Island Lichtina co.

I (shoreham Nuclear Power Station, Unit 1), LBP 82-82, 16 NRC 1144, 1159 (1982). Although the holding in Hickman on the ,

i issue of work product protection was not discussed in j t

Intervenor's Motion to compel, its applicability to this case is indisputable.  !

i In Hickman, a tug boat sank and five of the nine I crewmen drowned. Three days later, the owners of the tug i retained a lawyer to defend them in whatever litigation might arise. Approximately one month after the tug sank, a l public hearing was held before the United States Steamboat j

Inspectors, at which the four survivors testified. This j testimony was recorded and made available to all interested- r i

parties. Shortly after this public hearing, the lawyer interviewed the survivors privately and obtained statements from them about the sinking, which they signed.

Several months after the sinking, a lawsuit was brought {

against the tug owners. During discovery, plaintiff requested production of the crewmen's statements and  !

defendant objected. Although the Court found that the statements were not protected by the attorney-client  ;

privilege, it held that discovery of these statements was

.i not proper because they constituted the lawyer's work l 1

product.

i t

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The burden was then on the party seeking discovery of this work. product to establish adequate reasons to justify the production. The' Court found that plaintiff's stated' reason for seeking production of the statements -- that be I

wanted them to help prepare himself to examine witnesses and l make sure that he had overlooked nothing -- was an .

insufficient' showing of necessity and justification for discovery. 329 U.S. at 512-13, 67 S.Ct. at 394-95. The I Court noted that, in the process of discovery, all the  :

pertinent facts in the possession of defendant's counsel had been made available to plai.ntiff. '

A number of other cases have held that written l statements given to a party's representative by. witnesses,  !

including employees of the client, are protected by the work i product doctrine. 3.33, LL , Eoooolo v. National R.

Passenaer core., 108 F.R.D. 292 (E.D. Pa. 1985) (statements i taken by claims agent from employees of defendant in  !

anticipation of litigation were protected by Rule 26(b)(3));

111 Alig castle v. Sanaamo Weston. Inc., 744 F.2d 1464, 1466 L (lith *Cir. 1984) ("At the outset it should be noted that i there is no question that these materials constitute the work product of the attorneys for the private plaintiffs;  ;

[t]hese materials consisted of witness statements and notes of interviews with witnesses. . ."); United States v.

i i

e- - - -- . ,, -

- , , -- - ,- ,--e - - - -. - - - ----+-,r

7 i I

l Chatham City Corn., 72 F.R.D. 640, 643 (S.D. Ga. 1976)  :

(" Rule 26(b) (3) creates a qualified immunity for work product documents prepared in anticipation of litigation. i It extends to statements of witnesses.").Al It has also been held that saterial which has been -

prepared before a lawsuit was filed may still constitute

\

material prepared in anticipation of litigation. "' Prudent i i

parties anticipate litigation, and begin preparation prior to the time suit is formally commenced. Thus the test-should be whether, in light of the nature of the document I and the factual situation in the particular case, the  !

8 document.can fairly be said to have been prepared or  ;

obtained because of the prospect of litigation. '" LQDE I Island Liahtina Co. , sunra, at 1161 n.15 anoting 8 ,

C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE:

CIVIL, $ 2024, at 198-99 (1970); ggg also Kent Corn. v. f i

National Labor Relations Board, 530 F.2d 612, 623 (5th Cir. I 1976), garti denied, 429 U.S. 920, 97 S.Ct. 316 (whether the  !

work product doctrine applies cannot properly be made to  !

A/ "A few cases held that statements of witnesses taken by an attorney were not work product since they record the mental impressions and observations of the witness himself and not those of the attorney. ,

Those cases could not be reconciled with the Hickman decision itself, in which discovery .was denied of statements of this type, and the great bulk of authority was that .

statements of witnesses taken by an attorney were work product." ,

8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL,

$ 2024, pp. 203-204 (1970). j

-a-  !

{

1 t

f t

turn on whether litigation actually ensued; once the prospect of litigation was identifiable because of specific claims that had arisen, the work product was subject to a valid claim of privilege).

The work product doctrine has also been held to apply to documents prepared for. a party to the present litigation even though they were prepared for another wholly unrelated lawsuit. 8 C. WRIGHT fi A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL, $ 2024, p. 201 (1970).

GPC's legal counsel obtained signed statements from the four Plant Vogtle site or corporate office employeesIl in ,

anticipation that GPC would be involved in litigation t

concerning the diesel generator starts issue raised by Intervenor. At the time the statements were obtained, not only was there a Section 2.206 petition pending before the NRC Staff, which included the diesel generator starts I allegation, Lut also, beginning in August 1990, GPC was put on notice that the NRC's Office of Investigations might conduct an investigation of that issue. Egg, gig 2, the NRC ,

Staff's Motion to Stay Discovery in Mosbauch v. Georaia Power Co. , DOL Case No. 90-ERA-58, attached as Exhibit 1. -

When the statements were obtained, GPC reasonably 1/One of the employees, Mr. Aufdenkampe, has since e transferred from Georgia Power Company to Southern Company Services, Inc.

I T

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anticipated that either.or both of those NRC activities -

might lead to proposed enforcement actions against GPC. In i that case, GPC will be afforded the right to a full adjudicatory hearing on the matter before the enforcement i

action is imposed. Egg 10 C.F.R. 5 2.202.

Intervanor's Motion to Compel, at 2, asserts that the '

four statement obtained by GPC lost their work product  ;

protection when they were signed. Intervenor cites no '

authority for this novel proposition and GPC is aware of  !

l none. In Hickman, suDra, the documents sought included signed statements and they were held to be subject to work  :

a product immunity.

Intervenor's Motion to Compel, at 2, also contends that '

t the four statements "do not include the mental impressions of an attorney; and they are limited to factual statements i of persons who will most probably testify before [ sic) in j this proceeding." The Court's decision in Hickman does not require a finding that the four statements include counsel's mental impressions (often referred to as " opinion work I product"). ordinary work product, such as written factual  !

statements are entitled to protection under the doctrine r announced in Hickman. '

r of course, GPC cannot hide the facts from Intervenor ,

i simply because those facts have come to the attention of '

i l

l I

l GPC's counsel. Intervenor is entitled to discovery of those facts in the possession of witnesses necessary to the preparation of his case. Hicknan, suora, 329 U.S. at 513, 67 S.Ct. at 394-95. What he is not entitled to is to use the efforts of opposing counsel in order to help him prepare his case. Id. Production of the four statements is not J

necessary for Intervenor to obtain the facts in this case.

He is able to do so by requesting and reviewing documents  ;

and by interviewing or deposing witnesses.

Intervenor's assertion that the four statements do not include mental impressions of an attorney begs the question whether, in~ fact, the four statements reflect the mental impressions or legal theories of GPC's counsel. Were the answer "yes," such statements would be entitled to *special protection." Unichn Co. v. United States, 449 U.S. 383, '

400-01, 101 S.Ct. 677, 688 (1981). In that case, some courts would hold that no showing of necessity could r overcome the work product protection. Ida GPC believes l

that, to some extent, the four statement do reflect the strategy of CPC's counsel in preparing the company's defense and, therefore, should be entitled to such special '

protection. .

The four statements which Intervenor seeks are attorney work product and are protected from disclosure under 10

'l l'

C.F.R. 5 2.740(b) (2) . Even assuming that such statements i are-not entitled to "special protection," they are still.

protected from disclosure because Intervenor has. failed.to demonstrate that he has satisfied the " substantial need test," discussed below.  !

l l

C.

Intervenor Does Not Have A Substantial Need For The Four Statements And He Can, Without Undue  ;

Hardship, obtain The Substantial Equivalent of The t Statements By Other Means.

10 C.F.R. 5 2.740(b)(2) provides that discovery of-work product materials is available "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial  !

equivalent of the materials by other means" (hereinafter <

collectively referred to as the " substantial need test") . '

In Chatham City Corn., suDra, the court held "the fact that written statements of prospective witnesses are relevant and would aid a party in preparing his case for trial does not amount to ' good cause' for production thereof."

, 72 F.R.D. [

at 643, citing, Guilford Nat'l Bank of Greensboro v. So.

Railway Co., 297 F.2d 921 (4th Cir. 1962) . Mo sover, "[t]he surmise or possibility that impeaching material in the  :

~

statements of the witnesses might be found does not justify  !

a court to order inspection thereof." 72 F.R.D. at 643, i i

i I

I t

I

I citing, Haucer v. Chicaco. Rock Island. & Pacific R. Co., I 216 F.2d 501 (7th Cir. 1954 ) ; J. H. Rutter Rex Manufacturina Co.. Inc. v. N.L.R.B.,

473 F.2d 223, 234-35 (5th Cir. 1973),

cert. denied, 414 U.S. 822, 94 S.Ct. 120; Dinaler v. Malevon Liin N.V., 50 F.R.D. 211, 212 (E.D. Pa. 1970) .

Many courts have held that witness statements taken by a party's attorney are protected by the work product doctrine and substantial need is nel shown where the party seeking discovery could have obtained the information by deposing the witnesses. Egg Castle, supra, 744 F.2d at 1467; In gg International Systems & controls Corn., 693 F.2d 1235, 1240 (5th Cir.1982); Howard v. Seaboard coastline R.

Cat, 60 F.R.D. 638, 639 (N.D. Ga. 1973) (no substantial need was shown even though plaintiff alleged that the witnesses who gave the statements were employees of the defendant and ,

reluctant to give testimony, and that the whereabouts of some of the witnesses were unknown; the court denied the plaintiff's discovery motion finding that tha witnesses were accessible and plaintiff had shown no effort to obtain the ,

I inforsation other than the filing of a motion to produce);

Ecopolo, suora, 108 F.R.D. at 295. (court held that  ;

plaintiff had not shown substantial need to obtain l statements of witnesses when plaintiff offered no more than mere surmise and conjecture that the statesents taken some i

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t time ago would be more accurate and truthful than the ,

information now sought from the defendant's employees; court held that plaintiff should first obtain a list of witnesses to the accident and then depose them; should the witnesses be unable to recollect the events, then plaintiff would have satisfied the requirements of the " substantial need test") .

Intervenor cannot satisfy the " substantial need testa .

with respect to the four statements. He is free to take the i depositions of the named individuals and he is free to >

inquire about their knowledge of the facts concerning the events on April 19, 1990 related to the diesel starts e

information included in the LER 90-006. In this regard, he  ;

may also question those individuals about prior statements which they or GPC has made on that issue which are available i

to Intervenor. Moreover, Intervenor has actual recordings  ;

of the telephone calls at issue. There simply is no legitimate basis for Intervenor to claim that the four statements are essential for him to discover the relevant facts in this case. t Intervenor's main argument appears to be that he believes the statements contain false assertions and may therefore constitute " essential evidence" relating to "a l practice and pattern of making up false assertions."

Intervenor's Motion to Compel at 7-8. This argument reveals i

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. i that Intervenor is not interested in the discovery of facts,

.I but wants to fish for other statements in the hope of  !

identifying inconsistences with tape recordings he long withheld.

This is not a proper justification for production of the statements. The statements were not submitted to NRC or ,

anyone else, and cannot possibly evidence any practice of i being misleading. To the extent that any of the factual information contained in the statements was submitted to the NRC, it has already been made available to Intervenor.

Intervenor may also want the four statements for the purpose of impeaching the credibility of witnesses. As discussed earlier, the possibility enat attorney work product could be [

used to impeach the credibility of witnesses has been  !

expressly held insufficient to satisfy the " substantial need  !

test." Intervienor should prepare his case using his own efforts.

4 Moreover, Yntervenor's suggestion that the signed '

statements may contain falso assertions is based on inaccurate representations. Intervenor represents that '

Mr. Aufdenkampe advised Mr. Mosbaugh that he had initially refused to. sign the affidavit because it contained false  ;

i information, and that he had been " hounded" or pressured to '

sign it. Motion to Compel at 2, 7. Mr. Aufdenkampe has l

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. 1 reviewed these assertions and has informed GPC that they are not true.

The inaccuracy of'Intervenor's representations is  !

confirmed by the July 30, 1993 letter from Intervenor's I counsel. Therein, Intervenor's counsel "clarif[ies)" an

" ambiguity" in the representation that Mr. Aufdenkampe

" allowed" Mr. Mosbaugh to physically review a copy of the signed statement.

Intervenor's clarification of the word'

" allowed" is that it was Mr. Aufdenkampe's wife, not Mr.

Aufdenkampe, who allegedly let Mr. Mosbaugh review the signed statement, and it was she who allegedly sxpressed [

concern over pressure concerning the statement. 1 In sun, Intervenor's suggestion that the signed  !

e statements may contain falso assertions is based on hearsay i and innuendo at best, and misrepresentation at worst.Il l

Invasion of GPC's attorney work product should not be permitted on such basis.

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The inaccurate statements in Intervenor's Motion to compel are not the first misrepresentations by Intervenor in this proceeding. .Intervenor has previously misrepresented facts i

asserted in support of standing, and later misrepresented facts -

concerning preparation of the six tapes. GPC is extremely i concerned with the succession of prejudicial, inaccurate and misleading statements in Intervenor's pleadings, and asks that '

the Board caution Intervenor that further misrepresentations could result in sanctions including dismissal. i l

D. The Four' Signed Statements Are Also Protected From Disclosure By The Attornev-Client Privilece.

The United States Supreme Court has held that, when the client is a corporation, the attorney-client privilege i applies to communications by any corporate employee  !

regardless of position when the communications concern  :

matters within the scope of the employee's corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to  !

the corporation. Unichn Co. v. United states, 449 U.S.'383, 396-97, 101 S.Ct. 677, 685-86 (1981); ERS A1A2 Admiral Inn.

Co. v.

United States Dist. Court, 881 F.2d 1486, 1492 (9th '

Cir. 1989). The Court in Unichn declined to establish an t all-encompassing test for application of the attorney-client privilege to corporations. Instead, it held that each case must be evaluated to determine whether application of the privilege would further its underlying purposes of l

encouraging candid communications between client and counsel i and providing effective representation of counsel. Upiohn, supra, 449 U.S. at 389, 390-91, 396-97, 101 S.Ct. at 682-

86.  !

Applying these principles to the instant case, GPC  ;

submits that the attorney-client privilege should be extended to the four statements. Here, as in Unichn, the  !

statements concern matters within the scope of the '

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individuals' corporate duties and the individuals were aware- l that they were being questioned for the purpose of providing l t

legal advice to the company. Furthermore, as in Unichn, the  !

individuals are available for questioning on the facts at issue in this proceeding.

Intervenor's Motion to Compel, at 5, contends that the attorney-client privilege "'does not protect against  !

discovery of underlying facts from their source, merely l t

because those f acts have been communicated to an attorney. '"

quoting Lena Island Lichtina Co., suDra, which was quoted by  :

the Board in its June 24, 1993 order (LBP 93-11). GPC does  ;

I not dispute this proposition. However, it does not provide support for Intervenor's claim that he should be given l copies of the four statements. .

-l It only provides that j Intervenor is entitled to discover the facts. This he can

[

do by using the full range of discovery methods available to  ;

.i him, including depositions of the individuals who signed the j four statements, and without having access to the four i statements themselves.Il Il Intervenor's Motion to compel, at 5-6, also relies on the  ;

case of Diamond v. city of Mobile, 86 F.R.D. 324 (S.D. Ala, 1978). This is a United States District Court case which e precedes Upiohn and, therefore, is not controlling here. {

Furthermore, that case is distinguishable because it involved  !

statements taken during an internal police department '

investigation which were later turned over to the city attorney.

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E. The Protected Status of The Four Statesents Was Not Waived By The Actions Of Mr. Aufdenkanne.

Intervenor's Motion to Compel, at 6-7, alleges that certain communications between Mr. Aufdenkampe and Mr. Mosbaugh occurred which "wcrk to waive any legitimate claim of privilege GPC could otherwise raise." Intervenor's motion misses the mark for a number of reasons.

First, neither Mr. Aufdenkampe r.or his wife have the power to waive GPC's rights under the work product doctrine or attorney-client privilege. commodity Futures Tradina comm'n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 1991 (1985) (when the client is a corporation, the power to waive the attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors); In ER Crand Jurv Subcoenas, 89-3 and 89-4, John 4

Doe 89-129 v. Under Seal, 902 F.2d 244, 248 (4th Cir.1990) {

(extending Weintraub to a case involving both the attorney-client privilege and the work product doctrine) .  ;

Second, the courts have also held that a waiver' does not occur due to the mere discussion of facts which were the  ;

subject of a communication which is subject to the work product doctrine. Charles Woods Television Corn. v. canital  !

Cities /ABC, Inc. , 869 F.2d 1155, 1162 (8th Cir.1989) cert. I denied, 493 U.S. 848, 110 S.Ct. 145 (1989).

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I Third, even if work product protection was waived for i i

Mr. Aufdenkampe's statement by it being shown to  !

v Mr. Mosbaugh, which GPC disputes, such action would not waive the protected status of.the statements of other j individuals. The work-product doctrine seeks to protect the mental processes of the attorney in preparing his client's case, assembling information, sifting what he considers relevant from the irrelevant facts, and preparing his legal i theories and strategies without interference. Hickman, supra, 329 U.S. at 510, 511, 67 S.Ct. at 393. Like other qualified privileges, the work-product doctrine may be waived. However, because of the strong policy supporting the work-product doctrine, i.e., promoting and maintaining a healthy adversary system (In Re Saaled Case, 676 F.2d 798, 818 (D.C. Cir. 1982)), courts are reluctant to find an I implied waiver of all documents somehow related to a specific subject matter when one of the protected documents '

is either voluntarily or inadvertently disclosed to the opposing party. Dunlan corn. v. Deerina Milliken. Inc., 540 F.2d 1215, 1222 (4th Cir.1976) .U In United States v. I U

133 also 8 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND  !

PROCEDURE: CIVIL, 5 2024, p. 209 (1970) ("[D)isclosure of some documents does not destroy work-product protection for other  ;

documents of the same character.") . i i

we

I Nobles, 422 U.S. 225, 95 S.Ct. 2160 (1975), the court found a waiver of the work-product doctrine but only because the I party asserting the doctrine's protection had first sought {

to make affirmative testimonial use of the very work-product. Moreover, the Court's decision to uphold the  !

waiver was based on the fact that the District Court limited the scope of disclosure of the document in question to only that information that was directly reinted to the proffered testimony. 14 at 240, 241, 95 S.Ct. at 2171.

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Finally, GPC subsits that Intervenor has intentionally distorted the facts in order to paint an inaccurate and  :

misleading picture of communications Mr. Mosbaugh has had with Mr. Aufdenkampe. '

Contrary to Intervenor's assertion, to the best of Mr. Aufdenkampe's recollection, the facts are as follows:

(1) he may have mentioned to Mr. Mosbaugh that he had been >

i asked to sign a statement, (2) he may have mentioned to Mr.  !

L Mosbaugh that he remembered Mr. Hairston being a participant i on the earlier portion of an April 19, 1990 conference call,  !

i (3) he did net advise Mr. Mosbaugh that he " refused to sign l the affidavit prepared by GPC's counsel," (although a few wording changes were incorporated into an initial draft at "

his request), (4) he did net advise Mr. Mosbaugh that he had conversations with GPC counsel as to why he should sign the l

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earlier draft of his statement (such a conversation did not  !

occur), and (5) he did D21 allow Mr. Mosbaugh to physically j review his statement, whether in draft or final form. In addition, Mr. Aufdenkampe discussed Intervenor's July 30, l

1993 letter with his wife and he reports that she does not i recall ever allowing Mr. Mosbaugh to review i i

Mr. Aufdenkampe's draft or final statements.  !

Furthermore, GPC and Mr. Aufdenkampe object to i Intervenor's characterization that Mr. Aufdenkampe was

" hounded" or in any way pressured by GPC or its legal i counsel into signing a statement. Mr. Aufdenkampe did so l

willingly because it was, and still is, his opinion that  !

Mr. Mosbaugh's allegation -- that GPC knowingly and wilfully [

submitted false information to the NRC in LER 90 006 -- is  !

D21 true.

[

i IV. CONCLUSION. I For the foregoing reasons, GPC respectfully requests that the Board deny Intervenor's Motion to compel Production

{

of Aff'idavits in the Possession of Georgia Power Company, i dated July 23, 1993.

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0 Respec 11y su *tted, i

jf hn'Lambetski  !

TROUTMAN SANDERS Suite 5200 ,

600 Peachtree Street, N.E.- i Atlanta, GA 30308-2216  :

(404) 885-3360 .

Ernest L. Blake, Jr., Esq.

David R. Lewis, Esq. ,

SHAW, PITTMAN, POTTS & I TROWBRIDGE i 2300 N Street, NW  ;

, Washington, DC 20037 (202) 663-8084 Counsel for Georgia Power Company Dated: August 2, 1993.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of *

• I GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 ,

11 A1

• 50-425-OLA-3 '

(Vogtle Electric

• Re: License Amendment Generating Plant, *

(Transfer to Southern Units 1 and 2)

• Nuclear)

ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERY,lgE This is to certify that copies of the within and fore-going " Georgia Power Company's Response to Intervenor's  !

Motion to Compel Production of Affidavits" were served on all those listed on the attached service list by depositing same with the an overnight express mail delivery service.

This is the 2nd day of August, 199 i ,

/

J Lambersfi f I I

ROUTMAN SANDERS  !

Suite $200 '

600 Peachtree Street, N.E.  !

Atlanta, GA 30308-2216  ;

(404) 885-3360 . f i

t

3.

i UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION i BEFORE THE ATOMIC SAFETY ,\ND LICENSING BOARD i In the Matter of * '

i GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 t 3.1; A1

• 50-425-OLA-3 I

• i (Vogtle Electric

• Re: License Amendment.  !

Generating Plant, *

(Transfer to Southern [

Units 1 and 2)

• Nuclear) l l

ASLBP No. 93-671-01-OLA-3 l SERVICE LIST Administrative Judge Stewart D. Ebneter  !

Peter B. Block, Chairman Regional Administrator i' Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW j U.S. Nuclear Regulatory Suite 2900 i Commission Atlanta, Georgia 30303  !

Washington, D..C. 20555 Office of the Secretary Administrative Judge U.S. Nuclear Regulatory {

James H. Carpenter Commission . '

Atomic Safety and Licensing Washington, D. C. 20555 {

Board ATTN: Docketing and Services j U.S. Nuclear Regulatory Branch  ;

Commission t Washington, D.C. 20555 Charles Barth, Esq.  !

Office of General Counsel  !

Administrative Judge One White Flint North j Thomas D. Murphy Stop 15818 Atomic Safety and Licensing U.S. Nuclear Regulatory l Board Commission U.S. Nuclear Regulatory Washington, D. C. 20555 Commission  !

Washingt.on, D.C. 20555 Director,  ;

Environmental Protection

• Michael D. Kohn, Esq. Division  !

Kohn, Kohn & Colapinto, P.C. Department of Natural 517 Florida Avenue, W.W. Resources Washington, D.C. 20001 205 Butler Street, S.E.

Suite 1252 Office of Commission Appellate Atlanta, Georgia 30334 Adjudication i,

One White Flint North 11555 Rockville Pike i Rockville, MD 20852 I ATTENTION: Docketing and  ;

Service Branch  !

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EAHIDIT 1 U.S. DEPARTMENT or LAnoR  !

OFFICE OT ADMINISTRATIVE LAW JUDGES ,

Allen Hesbaugh,  :

v.

• Case No. 90-ERA-58  !

Georgia Power Co. '

MOTION TO STAY DISCOVERY The Nuclear Regulatory Commission ("NRC" or " Commission"),

hereby moves to stay discovery in the above captioned proceeding, to the extent described herein. The NRC has'information that the Complainant has in his possession various tape recordings involving conversations between himself and others including, but  ;

not limited to, employees and officers of Respondent. As more i

fully set out in the Declaration of Larry L. Robinson,1 filed ,

i this day with this Tribunal, the NRC has just learned of the existence of these tape recordings. The NRC has reasonable cause i to believe that these recordings may contain material which is evidence in an ongoing NRC invest 2gation into poss1ble violations of HRC Regulatione which are enacted to protect the public health

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and safety. The NRC also has reasonable cause to believe tnat release of any or all of these tape recordings to the Respondent could compromise the NRC's investigation.

The Compla.inant has agread to provide these recordings to 6 I l Mr. Robinson is an Investigator with the NRC's Office of Investigations ("oI").  !

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the NRC in th'eir entirety. The NRC will expeditiously review I these materials and provide this Tribunal with a detailed statement describing the number and nature of the recordings, if any, which it wishes this Tribunal to protect from discovery.

Accordingly, the NRC respectfully requests this Tribunal to stay i any orders compelling discovery to the extent that the Complainant not be compelled to produce for discovery to Respondent various tape recordings of conversations regarding l incidents involving the voegle Electric Power Station, owned by the coorgia Power Company. t Respectfully submitted, i Y 2xtYL F. CORDES,1rR.

11citor

/ g/&

' CHARLES E. WLLINS  !

Attorney '

office of he General Counsel l U.S. Nuc1 ar Regulatory Commission '

washingte , D.C. 20555 ,

DATE0: Sect. 13, 1990 (301) 492-1606 >

cc: Michael D. Xchn, Esq.

Jesse Shaudies, Esq.

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i e .DEClanATICh CF LaRnf L , ' 7 0 3 j t:5;D e l I, Larry L. Rotansca, de hert,ty esclare that tne f ollessag as true ana

.- correct, unser penalty of perjury. to the t'est of ey stility,

t. My name is Larry L. Robinson. I se esplayed as an Investigator with the Of fice of Investigations, United States Nuclear Regulatory C0ealssten. My duties include the conduct of investigations of !!censeen, applicants, their contractors or ' vendors, including the investigation of all allegations of wrongdoing by other than NRC esployees and Contr4Ctors.

2. I sake these statseents based upon my own personal knesleage, or upon  !

kncatedge obtained by se during the course of ey esployment, and is relied l upon my se in the periorsance of my official duties. l

3. The Of fice of Investigations tell, Region 11 (RIII, NRC, currently has two pending investigatione regarding allegations of tatantional wrongdoing on the part of Georgia Power Company ISPCI Managers at the Vogtle flectric Generating Plant (VESP). These investigations basically involve allegattens of celiberate Violations of Technical Specifications, and Material False Stateaants. If these allegations are substantiated, they could constitute

. violations of NRC regulations enacted to protect the public health and saf ety. ,

In addition, a recent Special Inspection, conducted by NAC at VESP during the period August 6-17, 1990, addressed additional related allegations of wrongdoing by IPC Managesent at VigP that will, in all likelihood, be ref erred .

to 01 in the near future.

4. On Septester 12, 1990, Stephen Kohn, of the Law Offices of Kohn, Kohn, and 3 Colapinto, telephoned se and advised se that their client, Allen L. Mosbaugh.

a SPC esployee at VEOP, was in possession of audio tape recordings that he, Mosbaugh, had eads of conversations with VESP Managers that say be pertinent

• • to the ongoing MRC investigattens/special Inspection. Kohn advised se that r Mosbaugh had been of ficially ordered to tura these tapes ever to the Las '

i Of fices of Troutaan, Sanders, Lockersan, and Ashaore, representatives of SPC in a Departaent of Labor (DOLI Case, No. 90-ERA-58, initiated by Mosbaugh.

Kohn stated that his understanding was that Mosbaugh was gelag to have to turn ,

over these tapes on Sept. 13, 1990. l S. Allen L. Mestaugh had been interviemed by se on February 8,1990, during l the course of ey investigation of one of the aforementioned allegations. ,

6. On Septester 12, 1990, I telephoned nonbaugh, and he verified that he did sake such tape recordings, that he was in possession of thee, that he had been  !

ordered by a 90L Administrative Las Judge to turn thes ever to the freuteen, Sanders L'au Fire. Mosbaugh told se that, in his opinion, sees of these tapes show evidence of intentional arengdoing on the part of SPC Managesent at VESP, and SPC Management et the offices of $0N0PC0 Project, Strainghas Alabass, in connection alth the ellegations in the ongoint 01 investigations and the .

Special laspection.

7. Alas on Septester 12, 1990, in response to ey sessage, Michael Kehn, also ,

with the Law Fire of Kohn, Kohn, and Colapinto, telephoned se at ey residence and advised se that his client, Mosbaugh, per an order frea 90L Adelnistrative l

Law Judge Bernard J. Silday, Jr., was required to turn over the tapes to the

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SPC a t t orneys t'y si dni ght , Sept e cber 13,199c. Machsel Kohn said that he na: ,

.. not been able to personally r eview all the tapes, but that it was his understanding f ree conversations witn he a client that there was evidence of wrongdoing on the part of GPC Management, pertaining to the ontoing investigation /Special Inspection issues, contained in the conversations on the )

tapes. Kahn stated that his client sculd be willing to turn the tapes over to l NRC f or review f or evndentiary purposes. Konn stated that he sculd prefer is have the NRC subpoena the tapes.

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8. The Office of Investigations has reasonable cause to believe that these tapes contain direct evidence of Intentional violations of regulatory l reevirements by IPC personnel that pertains to ongoing NRC l

- lavestigations/ inspections.

9. O! has reasonable cause to believe that the review of these tapes By 6PC personnel, or their representatives, prior to the coepletion of the aforesentioned investigations, would severely comproelse the integrity of these investigations.

Further, declarant sayeth naught.

Dated this 13th day of September,1990 at Atlanta, Georgia.

E Larry . Rabinson l

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