ML20086H227

Intervenor Motion to Compel Production of Licensee Notes of Interview of Ester Dixon.* W/Certificate of Svc & Svc List

ML20086H227
Person / Time
Site:	Vogtle
Issue date:	06/30/1995
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#395-16876 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9507180071
Download: ML20086H227 (10)

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i UNITED STATES OF AMERICA (4 '

NUCLEAR REGULATORY COMMISSION 95 3 33 A10:52 ATOMIC SAFETY AND LICENSING BOARD OFFICf 0F EECP.ETARY Before Administrative Judges: DOCKETIE ' ?E%'!Ct-Peter B. Bloch, Chair- B R b,'i ~,"i i Dr. James H. Carpenter Thomas D. Murphy ,

)  !'

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 et al , )  !

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear) ,

Plant, Unit 1 and Unit 2) ) j

) ASLBP No. 93-671-01-OLA-3 .

INTERVENOR'S MOTION TO COMPEL PRODUCTION OF LICENSEE'S NOTES OF INTERVIEW OF ESTER DIXON j Pursuant to 10 CFR S2.730 and Federal Rule of Civil 1 Procedure (FRCP) 26 (b) (3) , Intervenor Allen Mosbaugh moves the i

Atomic Safety and Licensing Board (ASLB) to compel the production of Licensee's notes of a 1992 interview of Ester Dixon.

Intervenor makes this request for the reasons set fcrth below.

1 I. FACTS This motion concerns obtaining notes made by John Lamberski, counsel for the Licensee, on his interview with Ester Dixon occurring on or about August 20, 19922 regarding the list

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prepared by Jimmy Paul Cash on the diesel generator starts, Cash {

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• It appears that the interview between Ms. Dixon and Mr. j Lamberski occurred on or about August 20, 1992 because that is l the date the Ms. Dixon sent a fax of all the documents she j prepared the weekend in question to Mr. Lamberski.

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2 Exhibit B (hereinafter " Cash list"). It is uncontested that the  !

! Cash list is highly relevant to these proceedings. -l 5 .

j Intervenor's knowledge about the Dixon interview notes are l i  ;

limited to a statement made by John Lamberski, counsel to Licensee. Mr. Lamberski discussed his interview with Ms. Dixon l; i

on the record before the Board on May 16, 1995. TR. 4616.

I The factual record suggests that the Cash list was most  ;

i likely prepared on Sunday, April 8, 1990. See Tr. 4406-4408 l (Cash OSI interview of August, 1990, during which Cash responded l

"I don't know the date but it was the day before, I believe, the j r

confirmation meeting in Atlanta"). Georgia Power is apparently {

seeking to assert that the Cash list was typed by Ester Dixon on I

Friday, April 6, 1990. The basis for this new assertion is l contradictory testimony of Ms. Dixon presented before the ASLB on June 9, 1995. At this time Ms. Dixon testified that, to the best j of her knowledge, she typed the Cash List on Friday, April 6, l 1990, TR. 8111; with Saturday and Sunday reserved for editing and j revising documents and preparing transparencies. TR. 8135. This i

latest testimony is 180 degrees out of synch with her prior  !

i deposition testimony. During Ms. Dixon's deposition-of July 20, 1994 (hereinafter "Dixon Dep.") she testified that she could not l F

recall what she typed on Friday versus the weekend: "Q: Do you l i

have any recollection of how may files you did on Friday, or did l you begin on Saturday? A: No, sir. I don't remember." Dixon Dep. P. 18 li. 21 - P. 19 Li. 1. Moreover, Ms. Dixon could not recall whether she typed the Cash List in one sitting or over 2

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l multiple days (Dixon Dep. p. 19, li. 2-7) ; she could not recall the day she finished typing the Cash list (L2. , P . 19, li. 8-11; P. 11, li 19-20. Dixon further testified that:

I'm having trouble remembering Friday, Saturday and Sunday.

With respect to what was done on what day. On Friday George helped on some things. George Bockhold.

Dixon Dep. p. 17. li. 19-22; also see Dixon Dep. p. 13, li 11-12.2

.Thus, the interview notes of Ms. Dixon are probative to establish the reliability of her current recollection and to better establish the exact date that the Cash list was prepared.

Intervenor therefore requests that the Board issue an order requiring the production of all notes takea by or on behalf of Licensee relating to interview (s) of Ester Dixon.

II. ARGUMENT A. Intervenor is Entitled to the Dixon Interview Notes pursuant to FRCP 26 (b) (3) ,

FRCP 26 (b) 13 ) sets forth a two part standard a party must  !

i satisfy before cbtaining interview notes taken by a lawyer in  !

' anticipation of litigation:' '

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j 2 Ms. Dixon was generally unable to recall most of the i facts surrounding the preparation of documents and the Cash List.

l On no less than 31 separate occasions during a 27 page deposition 4

Ms. Dixon testified that she could not remember facts surrounding j the production of documents prepared between April 6-8, 1990.

2 Rule 26 (b) (3) excludes from disclosure " mental

impressions, conclusions, opinions, or legal theories of an I i attorney." Intervenor does not seek the production of such information. Intervenor believes that Licensee's counsel should produce the notes to intervenor redacted to exclude mental

[ impressions and provide the entire document to the JSLB for in

! camera inspection. This procedure will ensure that eproduction will not trench upon any substantial interest protected by the j work product. immunity." In Re John Doe Coro., 675 F.2d 482 4

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[T]he party seeking discovery has substantial j need of the materials in the preparation of <

the party's case and . . . the party is unable  ;

without undue hardship to obtain the i substantial equivalent of the materials by other means.

Case law defining Rule 26 (b) (3) indicates that certain circumstances weigh heavily in persuading a court to order the discovery of work product materials: i) evidence of contradiction and/or variation in the witness' testimony, ii) the witness' status as Defendant's employee, iii) the witness' being available to the party seeking discovery only a substantial time after giving a contemporaneous account in a written statement, and iv) evidence of the witness' lapse of memory. See, e.o.,

Southern Railway Company v. Lanham, 403 F.2d 119 (5th Cir. 1968).

1 The existence of all four of the above factors are present in the case at bar. Coupled with the importance of the information

-sought, the Board should order the production of interview notes taken of Ester Cixon.

1. Intervenor meets the " substantial need" and " undue hardship" parts of the test.

The court in Southern Railway Comoany v. Lanham, 403 F.2d 119 (5th Cir. 1968), a decision involving a railroad crossing accident followed by the interviews of the Defendant employee t

witnesses, held that " [g] ood cause is . . . shown for production

[of the interviews] because the lapse of time and the employment relationship strongly suggest that the full and accurate (1982).

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disclosure of facts . . . could not be accomplished through other means." 1 at 129.

The F.R.C.P. 26, Notes of Advisory Committee on Rules, 1970 Amendment declared that Lanham " set forth as controlling considerations the factors contained in the language of this subdivision ( (b) (3 ) of Rule 26]." Subdivision (b) (3 ) --Trial Preparation: Materials; ggg Teriberv v. Norfolk & Western Railway Co., 68 F.R.D. 46, at 48 (1975). The analysis of the Lanham court provides the basis to determine whether witness statements are discoverable: i) The witness may have a lapse of memory; or ii) he may probably be deviating from his prior statement; or iii) he may be reluctant or hostile; or iv) he may have given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter. F.R.C.P. 26, Notes of Advisory Committee on Rules, 1970 Amendment; See also Hamilton v. Canal Barce Comoany.

Inc., 395 F.Supp. 975, at 977 (1974)

The facts in the instant case demonstrate that all four of the independent circumstances provided in Lanham require production of the Dixon notes.

a) The witness may have a lapse of memorv During Ms. Dixon's 1994 deposition, she claimed not to recall the events in question, specifically the date she typed 1

the Cash list. Dixon Deposition. Dixon Dep. p 11, li 19-20; p. 1

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17. li. 19-22; p. 13, li 11-12. ,

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4 b) The witness may be deviatina from his orior statement With respect to the preparation of the cash List, Ms.

Dixon's June 9, 1995 testimony before the ASLB directly  !

contradicts her prior deposition testimony. Previously she could not recall when she typed the Cash list. Compare TR 8111 and Dixon Dep. pp. 11, 13, 17.

c) The witness may be reluctant to answer cuestions During her deposition Ms. Dixon failed to answer numerous questions during her 1994 deposition taken by Intervenor's Counsel and specifically asserted that she could not recall over thirty times. Yet, at the ASLB hearing, she could provide ,

answers to numerous questions to which she was previously unable to respond.  ;

d) The witness may have civen a fresh and contemocraneous account where carry seekino discovery was only able to obtain an eauivalent statement a substantial time thereafter.

In the instant matter, the account given by Ester Dixon was made some two years prior to her deposition and some three years before she appeared before the ASLB and presented testimony contradictory to her earlier deposition. According to Mr.

Lamberski, Ms. Dixon had a clear recollection of the list at the time of the 1992 interview. TR. 4616.

These events provide evidence of Ms. Dixon's memory lapse, deviation from prior testimony, and reluctance to answer questions, and demonstrate good cause for the production of the interview notes.

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The facts in this case parallel Younc v. United Parcel Service, 88 F.R.D. 269 (1980). In Younc, the defendant's employees witnessed a slip-and-fall accident and were interviewed ten or eleven months later. The Court declared that " [t] wo factors lead . . . to the conclusion that Plaintiffs have met the I

substantial need/ undue hardship requirement." Id at 271. These two factors comprised were that statements given by the witnesses I i

" differed significantly" and that the witnesses were employees of the Defendant. Id at 271.* ,

The case at bar parallels Younc on both aspects of the requisite showing. First, the interview notes should indicate a i contradiction between Ms. Dixon's ASLB testimony or her deposition testimony. Second, Ms. Dixon has continuously been employed by Georgia Power.

In Younc, Plaintiffs claimed damages as a result of Plaintiff Wilma Young's slip and fall at Defendant's place of business. Younc, 88 F.R.D. at 270. Statements were taken, approximately ten or eleven months after the accident, from three of Defendant's employees who were potential witnesses. Idm at 270. Plaintiff's attorney alleged that the insurance adjuster who conducted the interviews of Defendant's employees informed him that the witnesses mentioned something about oil being spilled on the floor of Defendant's premises prior to Ms. Young's fall. Id at 270. However, "[d]uring the depositions of these employees, they all testified that they did not recall telling the insurance adjuster that any oil had been spilled on the floor on the day of the accident." Idm at 270.

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III. CONCLUSION For the above stated reasons, Intervenor Allen Mosbaugh moves the Atomic Safety and Licensing Board to compel eth production of all interview notes of Ester Dixon taken licensee or its counsel and agents.

Respectfully submitted, Michael D. Kohn KOHN, KOHN & COLAPINTO, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 i

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III. CONCLUSION 4  ;

, For the above stated reasons, Intervenor Allen Mosbaugh moves the Atomic Safety and Licensing Board to compel the f production of all interview notes.of Ester Dixon.taken licensee  !

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2 or its counsel and agent'. s '!

Respectfully submitted,-

f Michael D. Kohn  !

KOHN, KOHN & COLAPINTO, P.C.  ;

517 Florida Ave., N.W.  !

Washington, D.C. 20001 i (202) 234-4663 l l

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DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

% JE J3 A10:52

)

In the Matter of )

0FFICE OF SECRETARY

) Docket Nos. 500BCHEDH6-9 SERVICE l GEORGIA POWER COMPANY ) 50-425-6HANTH 2 C. Al_,., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE I hereby certify that Intervenor's Motion to Compel Production of Licensee's Notes of Interview of Ester Dixon was served via first class mail (service by facsimile indicated with

"*") on the June 30, 1995 upon the persons listed in the attached Service List.

By:

Michael D. Kohn '

KOHN, KOHN & COLAPINTO, P.C.

517 Florida Ave., N . W .,

Washington, D.C. 20001 (202) 234-4663 w . - - . . . . .- ,- . . - . , . , , , - , _ , , . - , , , , . . . - . . , . _ . - , . -

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 -

GEORGIA POWER COMPANY ) 50-425-OLA-3 31 AL., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) ) )

) ASLBP No. 93-671-01-OLA-3 SERVICE LIST

• Administrative Judge Administrative Judge Peter B. Bloch, Chair James H. Carpenter Atomic Safety and Licensing Board 933 Green Point Drive U.S. Nuclear Regulatory Commission Oyster Point J 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 l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

• Administrative Judge James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Ernest L. Blake, Jr.

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

Washington, D.C. 20037 office of the Secretary Attn: Docketing and Service  ;

U.S. Nuclear Regulatory Commission ]

Washington, D.C. 20555 Office of Commission Appellate.

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