ML20086P780

Georgia Power Co Response to Intervenor Motion to Compel Production of Licensee Notes of Interview of Ester Dixon.* Intervenor Motion Should Be Denied.W/Certificate of Svc

ML20086P780
Person / Time
Site:	Vogtle
Issue date:	07/17/1995
From:	Lamberski J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
References
CON-#395-16899 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9507270123
Download: ML20086P780 (12)

Text

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( - pf979 DOCKETED July 17, k b UNITED STATES OF AMERICA 15 JL 17 P3 33 NUCLEAR REGULATORY COMMISSION f

Before the Atomic Safety and Licensina BoardFFICE OF SECRETARY DOCKETlHG & SERVICE BRANCH

)

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 (Vogtle Electric Generating ) Nuclear)

Plant, Units 1 and 2) )

) ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S RESPONSE TO INTERVENOR'S MOTION TO COMPEL PRODUCTION OF LICENSEE'S NOTES OF INTERVIEW OF ESTER DIXON I. Introduction Georgia Power Company hereby responds to and opposes Intervenor's Motion to Compel Production of Licensee's Notes of Interview of Ester Dixon, dated June 30, 1995 ("Intervenor's Motion"). These notes are privileged attorney-client communications and attorney work product, and there is no basis or needi' to invade these privileges.

II. Background The notes sought by Intervenor are Ester Dixon interview notes taken by Georgia Power's counsel in 1992 while l' Intervenor premises his argument of need on his assumption '

that Georgia Power will make a "new assertion" that Ms. Dixon typed the Cash List on Friday, April 6, "in one sitting." Intervenor's Motion at 2. Ms. Dixon actually testified that she typed several documents, including one developed by Mr. Cash on Friday, and acknowledged that she probably edited documents on Saturday morning. Tr. 8111 (June 9, 1995). She did not necessarily type the whole Cash document on Friday, but she knew that she typed the majority of it on Friday. Tr. 8124. i 9507270123 950717 ~ -

PDR ADOCK 05000424 O PDR-

4 investigating events associated with NRC Office of Investigation and U.S. Department of Justice inquiries related to the March 20, 1990 Site Area Emergency. Tr. 4616 (May 16, 1995). The parties provided oral argument on this topic to the Board on June 8, 1995. Tr. 7827-37. Ms. Dixon was deposed by Intervenor's counsel (Mr. Michael Kohn) on July 20, 1994 and was cross-examined by Intervenor's counsel (Mr. Stephen Kohn) in this proceeding on June 9, 1995. Tr. 8089-8176.

III. Argument ,

A. Counsel's Notes of Interview with Ms. Dixon Are Absolutely Privileaed Attornev-Client Communication )

Georgia Power's counsel's notes of his meeting with Ms.

Dixon constitute a confidential attorney-client communication, and consequently are absolutely privileged and immune from i i

discovery. Under the common law privilege attaching to 1

attorney-client communications, all confidential communications between attorney and client for the purpose of obtaining or providing legal assistance for the client are absolutely immune from discovery. San 8 J. Wigmore, Evidence 5 2292 (J. McNaughton rev. 1961). The privilege covers documents or other records in which attorney- client communications have been recorded, or which embody such communications. C. McCormick, Evidence 5 89 (J. Strong 4th ed. 1992). The privilege extends to employee communications on matters within the scope of their employment and when the employee is being questioned in confidence in order for the employer to obtain legal advice. Sag Bruce v. Christian, 2

L 113 F.R.D 554, 560 (S.D.N.Y. 1986); Unichn v. U.S., 449 U.S. 383, l 394-95 (1981). Thus, Georgia Power's counsel's notes in this l instance are attorney-client privileged communications.

The privilege " recognizes that sound legal advice or '

advocacy . . . depends upon the lawyer's being fully informed by the client." Unichn, 449 U.S. at 389. The central purpose of-the attorney-client privilege - "to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and ,

administration of justice"F -- would be completely frustrated if clients knew that notes of conversations they have with their attorney were subject to disclosure to the adverse party.

Indeed in this very proceeding, in determining whether the I

attorney-client privilege attached to statements by Georgia Power employees to licensee's counsel the production of which Intervenor also moved to compel, the Board denied the motion and recognized that "[i]t is appropriate that these professionals should be given as much information as possible without having to l

risk public disclosure of their work." Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-93-18, 38 NRC 121, 125 (1993). Both Ms. Dixon and Georgia Power certainly expected that communications between her and Georgia Power's counsel were i

privileged and confidential. Intervenor should not be permitted  !

to circumvent this privilege under any circumstances.

I vUojohn, 449 U.S. at 389.

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l B. Counsel's Notes of Interview with Ms. Dixon Are "Opin-lon" Work Product Protected from Disclosure Intervenor's Motion concedes that " Rule 26(b)(3) excludes from disclosure ' mental impressions, conclusions, opinions, or ,

i legal theories of an attorney,'" and asserts that he "does not seek the production of such information." Intervenor's Motion at 3, n.3. The notes Intervenor's Motion seeks, however, are precisely this type of information. They are incomplete and  ;

non-verbatim notes representing counsel's selection of certain statements made by Ms. Dixon during the course of her meeting with counsel. They are not, as Intervenor asserts, " ordinary work product" entitled to lesser protection. Because the notes {

r indicate what statements counsel thought important enough to record, and by negative implication demonstrate facts counsel l

viewed as less significant, the notes reflect counsel's mental  ;

impressions and litigation strategy in this proceeding, and are not subject to discovery by Intervenor.F FIndeed, in the principal case Intervenor cites in support of ,

his motion, Southern Railway Co. v. Lanham, 403 F.2d 119, 130 (5th Cir. 1968), the court held that "the trial judge abused his discretion by including within the order of production those portions of the accident investigation reports which reflect the mental impressions and evaluations of appellant's agents." ,

Moreover, the court ordered that on remand "[i]f privileged communications between appellant and its counsel were encompassed by the court's order to produce, they must be deleted." Thus, even '

Intervenor's main case stands for the proposition that opinion work product and materials protected by the attorney-client privilege i are not subject to discovery. Other cases cited by Intervenor similarly support a heightened protection for opinion work product that reveals the mental processes of counsel. See, e.a., Teribery

v. Norfolk & Western Railway Co., 68 F.R.D. 46, 47 (W.D. Pa. 1975)

("[T]he court must take precautions to protect against disclosure of the mental impressions, conclusions, opinions, or legal theories .

(continued...)

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, , . . ._v

As the Board noted in its September 18, 1993 denial of Intervenor's motion to compel similar documents, "[t]he NRC's discovery rules regarding the work product doctrine are set out in 10 C.F.R. 9 2.740(b)(2) . . . . These rules are adapted from Rule 26(b)(3) of the Federal Rules of Civil Procedure, Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-196, 7 AEC 457, 460 (1974) . . . .

" Georcia Power Co., 38 NRC at 123 (citations omitted). Rule 26(b)(3) reflects the "' strong public policy' that a lawyer's work be entitled to privacy." Uojohn, 449 U.S. at 397-98. Under 26(b)(3), courts are required to

" protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Were discovery of such " opinion work-product" to be permitted much of what is now put down in writing would remain unwritten. An attorney's thought's, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly I served. ]

Hickman v. Tavlor, 329 U.S. 495, 511 (1947).

Attorney notes of a meeting with a client employee witness, l v(... continued) of an attorney or other representative of the party who is compelled to produce the documents."); Hamilton v. Canal Barae Co. ,

Inc., 395 F. Supp. 975, 976 (E.D. La. 1974) ("[T]he court in ordering discovery must take care that the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation are not disclosed.").

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l such as those involved here, are exactly the type of material sought to be protected under the opinion work-product rule.

"Although.th[e] language (of Rule 26] does not specifically refer l i

to memoranda based on oral statements of witnesses, the Hickman court stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule i

had in mind as deserving special protection." Upjohn, 449 U.S.

at 400; see also id2 at 399-400 (" Forcing an attorney to disclose notes and memoranda of witnesses' oral statements is particularly l

disfavored because it tends to reveal the attorney's mental I processes . . . 'what he saw fit to write down regarding witnesses' remarks' . . . 'the statement would be his [the ,

I attorney's] language, permeated with his inferences' . . . .

Uojohn, 449 U.S. at 399-400 (citations omitted; quoting Hickman i i

and Jackson, J., concurring in Hickman).)

Intervenor argues that " Licensee's counsel should produce the notes to intervenor redacted to exclude mental impressions  ;

and provide the entire document to the ASLB for in camera  ;

inspection." Intervenor's Motion at 3, f n . 3 . *' The notes, however, do not contain non-protected portions which the Board in i'Intervenor cites in support of this proposition In re John Doe coro., 675 F.2d 482, 493 (2d Cir. 1982). In In re John Doe,  !

however, the Second Circuit held that production of attorney notes l of a witness statement should be produced because the notes themselves could constitute substantive evidence of criminal wrongdoing. Id2 at 492. Moreover, the Court of Appeals specifically held that, unlike here, the statements were not protected by the attorney-client privilege. Idx at 488-92.

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s an in camera inspection could cull for production to Intervenor.

The notes are, in their entirety, reflective of counsel's mental i

impressions in that they represent those parts of Ms. Dixon's statements which counsel thought important enough to the case to record. Turning over all, or any part, of these notes to l Intervenor will reveal Georgia Power's Counsel's mental impressions for this proceeding. As such, they constitute l

opinion work-product and are protected from disclosure to Intervenor.

C. Intervenor Is Not Entitled to Disclosure of Counsel's l Notes of Interview with Ms. Dixon for Imoeachment Purposes By this motion, Intervenor seeks to obtain notes taken by Georgia Power's counsel in hopes that these notes contain material that will be helpful to Intervenor's impeachment of Ms.

Dixon. Intervenor has no reason to believe that these notes contain information inconsistent with any of Ms. Dixon's prior statements. Such speculative search expeditions are highly disfavored under the discovery rules.

Even though that lawyer hopes or believes, based upon guess, conjecture or suspicion, that a reading of the statements would reveal a basis for impeachment, or give him other valuable information, it has never been  !

the practice of courts generally to require the j production of such statements under such circumstances. 1 The courts have traditionally left a lawyer to his own industry aided by the use of depositions, interrogatories and subpoenas. A court is not justified in ordering a litigant to permit his adversary to inspect witness statements, which he has -

procured in preparing for trial, upon the adversary's mere surmise or suspicion that he might find impeaching j material in the statements. 1 l

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Hauger v. Chicaao R.I. & P.R. Co., 216 F.2d 501, 508 (7th Cir.

1954).F Moreover, the protection against disclosure of attorney's notes of witness statements outweighs any interest in impeachment. As the Third Circuit has stated, "[w]e do not believe . . . that the desire to impeach or corroborate a witness's testimony, by itself, would ever overcome the protection afforded the interview memoranda. This rule is implicit in Hickman's heightened protection of such material." In re Grand Jurv Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979);

see also Hauger, 216 F.2d at 508 ("In such a situation the rights of the litigant in the work product of his lawyers and agents are not required to give way to an adversary's right of discovery.").

This presumption is not overcome even if there might appear to be i i

inconsistencies in other materials produced during discovery.

Sgg Cairns v. Chicaco Exoress. Inc., 25 F.R.D. 169 (D.Oh. 1960)

("The mere fact that the answers to some of plaintiff's interrogatories may appear to be inconsistent with the testimony in the deposition of the driver [of defendant's truck] does not automatically establish good cause for the production of the materials used by the defendant in preparing such answers.").

In support of Intervenor's Motion, Intervenor claims that Ms. Dixon may have "a lapse of memory," and, therefore, the FSee also Youna v. United Parcel Service, 88 F.R.D. 269, 271 (D.S.D. 1980) ("The mere hope or surmise that the asked for material may contain information that could be used to impeach a witness is not enough to show substantial need or undue hardship."), cited by Intervenor himself.

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protections afforded these notes should be vitiated. Intervenor attributes this lapse to either Ms. Dixon's forgetfulness or her hostility to answering Intervenor's questions. In fact, nothing could be further from the truth; if anything, Ms. Dixon's recollection of events surrounding her preparation of the Cash list is sharper now than ever. The difference in Ms. Dixon's testimony at her deposition and at the hearing is simply due to her personal efforts to prepare for this hearing, including her review of contemporaneous records, such as her time sheet, and her recollection of other events which placed her preparation of the Cash list in sharper context. Ms. Dixon explained that she l

went back and sat down and tried to get all her documents in order in an effort to be prepared. Tr. 8084 lines 16-17; Tr.

i 8126. Her recollection of when she worked on Saturday was '

enhanced when she remembered that her son's birthday party was on that day (Tr. 8102, lines 3-10); this allowed her to place activities and times on the weekend more accurately based on a known, fixed point in the past.F It is readily apparent that Intervenor's interest here is not to supplement Ms. Dixon's memory -- she has already done that -- but rather to see if he can find any confidential communications between Ms. Dixon and Georgia Power's attorneys which he can use to impeach her.

fat the hearing, Intervenor's counsel developed the chronology of Ms. Dixon's activities by reference to her time sheet. Tr.

8098-8102. In her deposition, in contrast, Intervenor's counsel used no documents, or otherwise questioned the witness, to assist in recalling the historic sequence of activities.

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III. Conclusion Intervenor has had two opportunities to interrogate Ms.

Dixon -- during her deposition and at the hearing. He is now trying to get a third bite at the apple by obtaining privileged and otherwise protected material in the hopes that it will reveal something helpful to his case. Such a fishing expedition should not be countenanced by the Board. Intervenor's Motion should be denied.

Respectfully submitted

/ ~

ames E. Joiner ohn Lamberski 4

< TROUTMAN SANDERS j Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216 (404) 885-3360 Ernest L. Blake David R. Lewis i

SHAW, PITTMAN, POTTS & TROWBRIDGE Washi g on D$C bO37 (202) 663-8084 Counsel for Georgia Power Company Dated: July 17, 1995 10

e p

i -t DOCKETED' UNITED' STATES OF AMERICA '

NUCLEAR REGULATORY COMMISSION. 15 JU.17 P 3 :13 Before the Atomic Safety and Licensina Board -

0FFICE OF SECRETARY :

00CKETit;G & SERVICE l

) BRANCH ,

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

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

et al. ) Re: License Amendment 1

) (Transfer to Southern (Vogtle Electric Generating. ) Nuclear)  !

Plant, Units 1 and 2) ) ,

) ASLBP No. 93-671-01-OLA-3  ;

CERTIFICATE OF SERVICE I hereby certify that copies of Georgia Power Company's Response to Intervenor's Motion to Compel Production of  ;

Licensee's Notes of Interview of Ester Dixon, dated July 17,

)

1 1995, were served either by hand delivery (as indicated by an asterisk) or by first class mail upon the persons listed on the attached service list this 17th day of July, 1995.

' j

,f hn Lambersfi i

i

~e-- , m- -r -o-e->n- , wm

. l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of GEORGIA POWER COMPANY,

• Docket Nos. 50-424-OLA-3 at al.

• 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 SERVICE LIST

• Administrative Judge Stewart D. Ebneter Peter B. Bloch, Chairman Regional Administrator Atomic Safety and Licensing USNRC, Region II Board 101 Marietta Street, NW U.S. Nuclear Regulatory Suite 2900 Commission Atlanta, Georgia 30303 Two White Flint North 11545 Rockville Pike

• Office of the Secretary Rockville, MD 20852 U.S. Nuclear Regulatory Commission

• Administrative Judge Washington, D. C. 20555 James H. Carpenter ATTN: Docketing and Ser-Atomic Safety and Licensing vices Branch Board 933 Green Point Drive

• Charles Barth, Esq.

Oyster Point *Mitzi Young, Esq.

Sunset Beach, NC 28468 Office of General Counsel One White Flint North

• Administrative Judge Stop 15B18 Thomas D. Murphy U.S. Nuclear Regulatory Atomic Safety and Licensing Commission Board Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Director, Two White Flint North Environmental Protection 11545 Rockville Pike Division Rockville, MD 20852 Department of Natural Resources

• Michael D. Kohn, Esq. 205 Butler Street, S.E.

Kohn, Kohn & Colapinto, P.C. Suite 1252 517 Florida Avenue, N.W. Atlanta, Georgia 30334 Washington, D.C. 20001

• Office of Commission Appellate Adjudication One White Flint North 11555 Rockville Pike Rockville, MD 20852

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