ML20087A571

Intervenors Supplemental Motion to Compel Interview Notes & Other Documents Known to Ga Power Company Counsel When Preparing Response to Nov.* Board Should Order Production of Notes of E Dixon.W/Certificate of Svc & Svc List

ML20087A571
Person / Time
Site:	Vogtle
Issue date:	07/24/1995
From:	Kohn M AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	Atomic Safety and Licensing Board Panel
References
CON-#395-16916 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9508070072
Download: ML20087A571 (13)

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M9M DOCKETED USHRC July 24, 1995 UNITED STATES OF AMERICA 55 JL 25 P4 :18 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAROFFICE OF SECRETARY 00CKEllHG & sERVlCE Before Administrative Judges: BRANCH Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy

)

In the Matter of )

) Docket Nos. 50-424-OLA-3' GEORGIA POWER COMPANY ) 50-425-OLA-3 <

gt AL., )

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

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 INTERVENOR'S SUPPLEMENTAL MOTION TO COMPEL INTERVIEW NOTES AND OTHER DOCUMENTS KNOWN TO GEORGIA POWER COMPANY'S COUNSEL WHEN PREPARING THE RESPONSE TO THE NOTICE OF VIOLATION COMES NOW Intervenor, Allen Mosbaugh and hereby supplements his request to this honorable Board to compel interview notes and other documents known to Georgia Power's counsel when preparing Georgia Power's response to the Notice of Violation. Intervenor makes this request for the following reasons.

I. ARGUEMENT The record supports a ruling by this Board to compel Georgia Power to release all interview notes and other documents gathered by Georgia Power that relate to the facts discussed in Georgia Power Company's response to the Notice of Violation. As discussed below, this information constitutes business records and business advice outside the scope of attorney-client and/or attorney work product privileges.

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A. THE ATTORNEY-CLIENT AND ATTORNEY WORK PRODUCT PROVILEGES DO NOT APPLY TO INTERVIEW NOTES AND OTHER DOCUMENTS BECAUSE THE ATTORNEYS WERE PERFORMING A BUSINESS FUNCTION It is well settled that the party resisting discovery on the basis of attorney-client privilege bares the burden of establishing that the privilege exists. U.S. v. Davis, 131 F.R.D. 391, 402 (S.D.N.Y. 1990); Fisher v. U.S., 425 U.S. 391 (1976). Because the attorney-client privilege "is an obstacle to the investigation of the truth" it "ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle." Hydraflow Inc. v. Endine. Inc., 145 F.R.D. 626, 632 (W.D.N.Y. 1993).

An " attorney's law degree and office does not create a privilege sanctuary for corporate records." Research Institute for Medicine and Chemistry. Inc. v. Wisconsin Alumni Research I Foundation, 114 F.R.D. 672, 676 (W.D.Wisc. 1987). In this respect no privilege applies to information and documents obtained by lawyers who are essentially performing a business function of the corporation. U.S. v. Davis, 131 F.R.D. 391, 401 (S.D.N.Y. 1990). In re Grand Jurv Subcoena Duces Tecum dated Sectember 15. 1983, 731 F.2d 1032, 1037 (2nd Cir. 1984). A company cannot hide facts from a tribunal based merely on the l

fact that a lawyer participated in a business decision because to  ;

l do ao would mean that "any inquiry into a decision made by a  !

company would be privileged where the decision was based upon legal advice. This is plainly an unwarranted extension of the 2

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privilege." Cuno. Inc. v. Pall Coro., 121 F.R.D. 198, 204 l (E.D.N.Y.).

The courts have recognized that a significant public interest is served by excluding the application of the attorney client privilege where a duty of full disclosure to a government entity exists.

There is a legitimate public interest in insuring that the applicant is not able to circumvent his duty of full disclosure to the (U.S.] Patent Office merely by channeling information into the hands of an attorney.

Hercules Inc. v. Exxon Coro., 434 F.Supp. 136, 143 (1977) (citing In re Natta, 410 F.2d 198 (3rd Cir. 1969).

In another patent case, Burrouchs Wellcome Co. v. Barr Laboratories. Inc , 143 F.R.D. 611 (E.D.N.C. 1992), the court considered whether the attorney-client privilege should apply to technical information obtained by the attorney. The court concluded that " technical information communicated to the attorney but not calling for a legal opinion or interpretation and meant primarily for aid in completing patent applications" was "not protected by the attorney-client privilege." Id., at p.

615.

In the area of patent law, it was observed in Sneider v.

Kimberlv-Clark Coro., 91 F.R.D. 1 (1980) that "it is incumbent upon the courts to be wary of attempts to insulate the corporation from making disclosures which would ordinarily be required of an individual client." Id., at p. 5. The Sneider 3

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l court goes on to explain:

The touchstone of the attorney-client privilege is that the communications only are privileged, not any ,

underlying facts or data.... To sustain the privilege  :

with regard to [ confidential research information]

would permit the attorney to function as a mere conduit and would impermissibley insulate the corporation from ,

disclosure of non-legal, technical data. With respect  :

to all documents falling within this category, the -

attorney-client privilege will not apply. *

'Sneider v. Kimberiv-Clark Coro., 91 F.R.D. 1, 5 (1980).

The facts in this case compel disclosure of the interview  !

notes and documentation GPC's attorneys received from " fact witnesses" interviewed during the course of the investigation of i air quality and diesel generator issues. The record establishes that GPC relied upon its lawyeru to investigate, verify and draft the NOV response and ensure that it was complete and accurate in all material respects. In this respect, Mr. Hairston testified:

[W]e went through a three year period where we really asked not to talk about some of this. And it was only through me trying to explain to you how I tried to keep touch to make sure there wasn't something in there that I needed brought to my attention that I did need to act on as a manager. But it's given the guidelines that we were under and advised by out attorneys not to be discussing this with each other [ communication with the attorneys) was the only option I had available to me

[to function in a managerial capacity)."

T. 9339 (Hairston).1 Moreover, when asked "Did you undertake 2

In addition to Mr. Hairston, the current chair of the plant Vogtle PRB, Mr. Skip Kitchens, testified that the NOV response was obtained from GPC's counsel; that GPC's counsel attended the PRB meeting; that GPC's counsel undertook the responsibility of incorporating PRB comments. (Kitchens Dep. ) (Untranscribed) . Additionally, Mr. Beasley, the current plant manager, testified that the comments of f,f s PRB were given to a Troutman Sanders attorney for incorporation into the NOV response and that Troutman Sanders had the responsibility of forwarding the finalized NOV response to the plant General Manager. Sag Beasley l l

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personally any factual investigation to determine the voracity of any aspect of this conclusion (of the OI report]?", Mr. Hairston further explained:

I have a team of lawyers vorking on this and other issues for five years or almost five years that has exhaustedly looked at the record. As I testified earlier today, I have periodically asked the question have you seen anything that was deliberately done wrong that was just totally out -- those type of questions.

And the feedback from this -- what I consider to be very, very competent team of attorneys has always been nothing that would lead me to believe that the general tone and specifics and this whole section here are correct.

T. 9337-8 (Hairston).

Other than GPC's attorneys, it appears that no one else at GPC was equipped to perform this function. GPC's decision not to entrust its licensing group to draft or verify the NOV response placed the business responsibility of complying with 10 C.F.R. 50.9 on GPC's counsel. Indeed, the record indicates that GPC went so far as to instituted a policy that individuals were not to discuss matters pertaining to the issues in this proceeding amongst themselves and required that all factual information be funnelled to its attorneys on an individualized basis. The interview notes and other underlying documentation lost their privileged status when GPC determined that its attorneys would perform the business function of drafting and verifying factual information contained in the NOV response -- a function historically performed by the plant Vogtle licensing group.

Dep. at p. 9. Excerpts of Mr. Beasley's deposition are appended at the end of this brief.

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Pursuant to 10 C.F.R. 50.9, GPC must take steps to determine j that its communications with the NRC are complete and accurate in f all material respects. With respect to the NOV response, GPC l determined that its lawyers should perform this function. Under these circumstances, granting GPC the right to conceal the  !

underlying factual data available to the organization responsible  :

for drafting the NOV response "would permit the attorney to i

function as a mere conduit and would impermissibley insulate the corporation from disclosure of non-legal, technical data."

Sneider v. Kimberly-Clark Coro., 91 F.R.D. 1, 5 (1980). This  ;

issue affects the future ability of the NRC to ensure licensees  !

compliance with 10 C.F.R. 50.9. Once the NRC permits non- ,

disclosure of the underlying factual data when a licensee I

employed a lawyer to draft and verify the accuracy of important commtnications to the NRC, a permanent mechanism allowing the concealment of " privileged" factual information known to the attorney will be established, i.e., selectively disclosing facts deemed non-privileged while withholding " privileged" factual information. A licensee would never again be subject to a finding of intentional withholding of material information '

because whether or not the persons responsible for verifying and ,

i drafting the communication knew of the information vould be i cloaked under the attorney-client privilege. t In sum, the decision to employ lawyers to perform the essential and necessary business function of complying with 10 ,

C.F.R. 50.9 in written correspondence with NRC necessarily l I

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excludes from the " attorney-client" privilege all factual information obtained by the lawyers that can be considered necessary to determine whether the correspondence complied with 10 C.F.R. 50.9.

B. EVEN IF THE ATTORNEY-CLIENT PRIVILEGE APPLIED TO ATTORNEY INTERVIEW NOTES, CURRENT LEGAL JURISPRUDENCE EXCLUDES FROM THAT PRIVILEGE INTERVIEW NOTES OF THE ENTIRE CLASS OF EMPLOYEES WHO CAN BE DESCRIBED AS

" WITNESSES" WITHOUT INDEPENDENT LIABILITY It has been observed that "the application of the attorney-client and work product privileges to licensing proceedings is an unsettled issue of law." Boughton v. Cotter Coro., 10 F3d 746, .

l (10th Cir. 1993). In Uoichn Co. v. United States, 449 U.S. j 383, 101 S.Ct. 677, 66 L.Ed2d 584 (1981), the Supreme Court rejected the " control group test" when confronting what constitutes privileged communications by a lawyer and his or her corporate client. The Supreme Court declined, however, "to lay down a broad rule or series of rules to govern all conceivable future questions in this area." Id., at 386, 101 S.Ct. at 681. ,

i Egg Samaritan Foundation v. Goodfarb, 176 Ari 497, 862 P2d 870, j 26 ALR5th 893, 911 (1993). In Samaritan, the Supreme Court of Arizona, after careful review of federal and state common law principles, announced the application of the attorney-client privilege in the corporate setting. The facts of that case were l summarized by the court as follows:

A child's heart stopped during surgery at the Phoenix Children' Hospital at the Good Samaritan Regional i Medical Center in 1988. A Good Samaritan lawyer j investigated the incident and directed a nurse paralegal to interview three nurses and a scrub technician who were present during the surgery. Each l

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of these Samaritan employees signed a form agreeing to accept department.

legal representation from the Samaritan's legalThe p memoranda that she then submitted to corporate counsel.

The child and her parents brought an action against Phoenix Children's Hospital and the physicians who participated in the surgery, alleging that the cardiac arrest and resulting impairment were caused by the defendants' medical negligence...Having learned of the existence of the interview summaries through discovery, Plaintiffs sought their production....

26 ALR 5th at 899.

forth its analysis as follows:

The Samaritan Court then set

'the We agree with the Supreme Court of California that corporation not be given greater privileges than areand that we should ' appl enjoyed by a natural person'to corporations(the the same reasoning as in regard to natural persons in reference to attorney -client] privilege.'"

The real debate concerning the proper scope of the ,

corporation's attorney-client privilege is its applicability to factual communications made in response to an overture initialed by someone else inUnless the the corporation.the breadth of corporate activity could feature, transform what would be witness communications in any other context into client communications....

If the employee is not the one whose conduct it is gives rise to potential corporate liability, thenrather fair than to characterize the employee as a ' witness' as a client.

...Although the employee's presence, and hence the is a function of his or her employee's knowledge, the employee bears no other corporate employment, The employee did not cause connection to thedid His actions incident.

not subject the corporation to it. When this employee speaks, it is possible liability.

not about his or her own actions, but the actions of someone else...

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We therefore hold that, where someone other than  !

the employee initiates the communication, a factual ,

communication by a corporate employee to corporate counsel is within the corporation's privilege if it concerns the employee's own conduct within the scope of  !

his or her-employment and is made to assist the lawyer l in assessing or responding to legal consequences of i that conduct for the corporate client. This excludes i from the privilege communications from those who, but i for their status as officers, agents or employees, are  !

witnesses. ,

We believe that this is the appropriate place to draw the_line. It has all the advantages of a narrow ,

reading of Unichn...

Applying our test to the facts of this case, we  !

conclude that the statements made by the nurses.and scrub technician to samaritan's counsel are not within Samaritan's attorney-client privilege. These employees ,

were not seeking legal advice in confidence. The .

initial overture was made by others in the corporate. I Although the employees were present during the operation, their actions did not subject Samaritan to potential liability. Their statements primarily i concerned the events going on around them and the actions of the physicians whose alleged negligence i caused the injuries. These statements were not gathered to assist Samaritan in assessing or responding to legal consequences of the speaker's conduct, but to the consequences for the corporation of the physician's conduct. Thus, these Samaritan employees were ,

witnesses to the event, and their statements are not within the attorney-client privilege.

Samaritan, 26 ALR5th at pp. 904-911. '

Applying the sound reasoning outlined in Samaritan, the interview notes of Ester Dixon would clearly fall outside the attorney-client privilege. Ms. Dixon was merely a witness to the events occurring during the production of presentation materials  !

prepared prior to April 9, 1990; she had no independent liability and merely volunteered factual information that was reduced to j 9 [

f Clearly, these notes do not constitute interview notes. d there attorney-client communications and the Board should or er t

. disclosure.

II. -Conclusion h For the foregoing reasons, this Board should order t e d

'mmediate production of the interview notes of Ester Dixon an i

date and time of

-issue an order requiring Licensee.to list the date,-along each and every witness statement obtained prior to d the witness with the identity of the attorney who prepare Intervenor should thereafter be granted an interview notes. t ents the opportunity to seek additional interview notes or sta em i Board determines not to be privileged, i Respectfully submitted, i

/d 1/4Kohn0bn!/Ildk) /

MichaelKohn D. and Colapido, P.C.

Kohn, 517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 Attorneys for Intervenor gimTIFICATE OF SERVICE ved on ,

I hereby certify that the above document has been serlist via f '

the persons listed in the attached service mail this 24 day of July.

i Y]h}U {/] m ,

Mary J@e Wilmoth KOHN, KOHN & COLAPINTO, P.C.

517 Florida Ave., N.W.  ;

Washington, D.C. 20001 ~

(202) 234-4663 t

C:\ FILES \301\SUSINESS 10

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000KETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 95 JL 25 P4 ;18 l

)

In the Matter of ) >

) Docket Nos. 50-424 OLA 3 GEORGIA POWER COMPANY ) 50-425 OLA 3 0FFICE OF SECRETARY t 00CKETING & SERVICE

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

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93 671 01 OLA 3 SERVICE t.1ST Administrative Judge Adninistrative Judge Peter B. Bloch, Chair James H. Carpenter Atomic Safety and Licensing Board 933 Green roint Drive U.S. Nuclear Regulatory Comission Oyster Point .

Washington, D.C. 20555 Sunset Beach, NC 28468 Adninistrative Judge Charles A. Barth, Esq.

• Thomas D. Murphy Office of General Counsel Atomic Safety and Licensing Board U.S. N.R.C  ;

U.S. Nuclear Regulatory Comission 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 Comission Washington, D.C. 20555 ,

Of fice of Consnission Appellate Adjudication U.S. Nuclear Regulatory Comission Washington, D.C. 20555 i

C:\ FILES \301\ CERT.LIS i

1 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3

4 5 IN THE MATTER OF: )

) DOCKET NOS. 50-424-OLA-3 6 GEORGIA POWER COMPAN1*, ) 50-425-OLA-3 et al. )

7 (Vogtle Electric Generating ) Re: License Amendment Plant, Units 1 and 2) ) (Transfer to Southern 8 ) Nuclear)

)

9 ,

) ASLBP NO. 93-671-01-OLA-3 10 11 12 ---

13 TELEPHONIC DEPOSITION OF 14 J. BARNIE BEASLEY, JR.

15 ---

16 l 17 18 19 20 21 22 23 BULL & ASSOCIATES 24 COURT AND DEPOSITION REPORTERS 4651 Roswell Road, N.E., Suite F-504 25 Atlanta, Georgia 30342 (404) 256-2886 BULL & ASSOCIATES

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9 1 Q All right. So as I understand it, did you receive 2 the actual written comments from Mr. Kitchens?

3 A No, I did not receive them from Mr. Kitchens. I 4 received a marked up copy of the draft from Mr. Domby.

5 Q Okay. So if I understand it, Mr. Kitchens 6 indicated to you that a marked up draft had been done during a 7 PRB meeting?

8 A He indicated to me that the comments the PRB had --

9 had been given to Mr. Domby for incorporation into the draft.

10 Q Okay. And then subsequent to that you had a 11 meeting with Mr. Domby or a conversation with him?

12 A No, I did not have a conversation subsequent to 13 that. I received a copy of it in the mail or a copy from him.

14 Q Okay. Did you receive a copy from Mr. Domby or 15 from the site?

16 A I received a copy from Mr. Domby.

17 Q And then I understand that you had no additional g

} 18 comments on the draft?

i R 19 A That is correct.

T 20 Q And you contacted Mr. McCoy and advised him you had 21 no additional comments?

22 A That is correct.

23 Q And did you hear anything after the fact from 24 corporate after that?

25 A I'm sorry? You broke up.

BULL & ASSOCIATES

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