ML20087K402
| ML20087K402 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 08/08/1995 |
| From: | Doris Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#395-16979 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9508230271 | |
| Download: ML20087K402 (12) | |
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. August 8,1995:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY DOCKETING & SERVICE -
Before the Atomic Safety and Licensina Board
. BRANCH In the Matter of
)
Docket Nos. 50-424-OLA-3
)
50-425-OLA-3 GEORGIA POWER COMPANY,
)
etal.
)
Re:
License Amendment
)
(Transfer to Southern Nuclear) -
(Vogtle Electric Generating Plant,
)
Units 1 and 2)
)
ASLBP No. 93-671-01-OLA-3 GEORGIA POWER COMPANY'S MOTION FOR RECONSIDERATION OF ORDER REGARDING REQUEST FOR DISCOVERY CONCERNING ESTER DIXON Georgia Power Company (" Georgia Power") hereby moves for reconsideration of the Board's August 3,1995 " Memorandum and Order (Request for Discovery Concerning Ester Dixon)" (" Order") to the extent it suggests that Georgia Power's assertion of attorney-client privi-lege may be outweighed by a showing of need. Georgia Power believes that the Licensing Board has been misled by an inartfully worded statement orlaw in one of Georgia Power's prior briefs,.
which the Board appears to now interpret as indicating that the attorney-client privilege is subject to a balancing analysis. If the board is indeed operating under this reasonable misunderstanding, Georgia Power submits that a controlling principle oflaw had been overlooked, makmg reconsid-eration appropriate.E
' E A motion for reconsiderahon is appropnate if "it appears that there is some decision or some principle oflaw
- which would have a controlling effect and which has been overlooked.
- Geornia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-31,40 NRC 137,140 (1994).
i 9508230271 950008
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'4 The Board's Order calls for an in camera inspection of Georgia Power's counsel's notes of l
a meeting with Ester Dixon in order to determine whether the purposes of the attorney-client l
privilege are well served by applying the privilege in this instance. Georgia Power respectfully submits that the attorney-client privilege is absolute, and that once the Board determines that the privilege applies no additional inquiries may be made into whether protection of the document ad-j vances the purposes of the privilege or outweighs Intervenor's need for the document. If the l
l Board concludes that the attorney-client privilege attaches to Georgia Powefs counsel's notes, i
then the notes are absolutely immune from discovery, and no further inquiry is called for.
l Backaround l
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On June 30,1995, Intervenor filed a " Motion to Compel Production of Licensee's Notes i
ofInterview of Ester Dixon," (" Motion to Compel" or " Motion") seeking interview notes taken I
by Georgia Power's counsel in 1992 while investigating events associated with NRC Office ofIn-f vestigation and U.S. Department of Justice inquiries related to the March 20,1990 Site Area l
l Emergency. Tr. 4616 (May 16,1995). The Parties had earlier provided oral argument on this l
1 topic to the Board on June 8,1995. Tr. 7827-37. Ms. Dixon had been deposed by Intervenor's I
counsel (Mr. Michael Kohn) on July 20,1994 and was cross-examined by Intervenor's co.msel i
. (Mr. Stephen Kohn) in this proceeding on June 9,1995. Tr. 8089-8176. Georgia Power Sled its response to Intervenofs Motion to Compel (" Response") on July 17,1995. On August 3,1995, the Board issued its Order denying Intervenofs Motion to Compel pending an in camera review t
of Georgia Power's counsel's notes to determine whether the purposes of the attorney-client privi-i t
lege would be well served by applying it in this instance.
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9-j Arnument J
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Geornia Power's Counsel's Notes Are Absolutelv Protected i
fmm Disclosure Under the Attornev-Client Privilacia.
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.a The Board states in its Order that Uniohn Co v. U.S. 449 U.S. 383 (1981) requires that:
1 each case must be evaluated to determine whether application of -
the privilege would funher its underlying purposes of encouraging j
candid communications between client and counsel and providing-1 effective representation ofcounsel.
' Order at 4. The Board quoted this statement from the brief filed by Georgia Power in response to -
s Intervenor's " Motion to Compel" in Geornia Power Co. (Vogtle Electric Generating Plant, Units ?
I and 2), LBP-93-18,38 NRC 121,124 (1993). The Board's Order, however, proceeds to dis. -
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l cuss the possible need for Georgia Power's counsel's notes of his iidg with M::. Dixon and the extent to which release of the notes might harm the attorney-client relationship. This discussion --
leads Georgia Power to believe that the Board has interpreted Georgia Power's endier brief as in-dicating that the attorney-client privilege is subject to a balancing test (i.e., that it is a qualified i
limitation on discovery, like the attorney work product doctrine).
I The statement oflaw in Georgia Power's prior brief was not intended to indicate that the -
i attorney-client privilege is qualified, but rather to reflect the Supreme Coun's holding in Uniohn.
i in which the Coun stated
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Needless to say, we decide only the case before us, and do not un-d dertake to draft a set ofrules which should govern challenges to in-vestigatory subpoenas Any such approach would violate the spirit ofFederal Rule of Evidence 501. See S. Rep. No. 93-1277, p.13 i
(1974) ("the recognition of a privilege based on a confidential rela-tionship.. should be determined on a case-by-case basis")....
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L-While such a " case-by-case" basis may to some slight extent under-l
. mine desirable certainty in the boundaries of the attorney-client )
l privilege, it ' obeys the spirit of the Rules.
l 449 U.S. at 396.
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'I The Court in Uplohn envisioned application of this case-by-case analysis only to determine whether a confidential relationship existed establishing the attorney-client privilege.2 Upiohn most definitely does not stand for the proposition that tribunals should determine whether, despite the applicability of the privilege, disclosure of the communication should nevenheless be com-i pelled on the basis of the underlying purposes and policies of the privilege or some compelling ;
- need by the pany seeking discovery. Indeed, the Supreme Court in Upiohn takes pains to empha-size the values"of cenainty and predictability in determining whether the attorney-client' privilege '
q attaches:
[I]f the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree ofcer-tainty whether particular discussions will be protected.- An uncer-tain privilege, or one which purports to be certain but results in widely varying application by the couns, is little better than no privilege at all.
449 U.S. at 393.
Moreover, the Court's analysis in Upiohn clearly demonstrates that the application of the attorney-client privilege is not influenced by the need for the materials by the party seeking disclo-sure, nor is the privilege subject to a balancing test to determine whether protection of the
- This entails examining whether the factors consulcred by the Court in Unight n as===ary for applicahon of the privilege in the context of a corporate client are met. For an analysis of the application of these factors here, see
. discussion below.
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g.y communication will serve the principles underlying the privilege. The Court in Upiohn merely ap.
1 plied the following five-part factual test to determine...iether the privilege applied:
- 1. The information is necessary to supply the basis for legal advice to the corporation or was ordered to be communicated by superior officers.
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- 2. - The information was not available from " control group" management.
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- 3. The communications concerned matters within the scope of the employee's duties.
- 4. The employee was aware she was being questioned in order for the corporation to ob-tain legal advice.
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- 5. The communications were considered conJdential when made and kept confidential.
Unichn,449 U.S. at 394-95. At no point did the Court analyze whether, despite the above fac-
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tors being met, there existed some extraordinary need or overriding purpose that overrode the ap-.'
plication of the pdvilege and compelled disclosure of the communication. Indeed, other cases decided after Unichn hold that it would be improper to conduct such an analysis: "The attorney-client privilege, if and when attached to a communication (and ex<= ting.' of course a valid waiver), is absolute, and there is no ' balance' to be ' tested,' and no 'needs' test, as might be the case
.with a qualified privilege." Arcuri v. Trumo Tai Mahal Associates.154 F.R.D. 97,105 (D.N.J.
1994).
u The five requirements applied in Upiohn to determine that a communication is protected
- under the attorney-client privilege are met here. The information known by Ms. Dixon regarding the typing of the Cash List was necessary for Georgia Fower's counsel to determine the basis for the April 9 presentation and letter, so that they could advise and represent the Company in con-nection with the OI investigation and the 2.206 proceeding. Georgia Power's counsel had been 5
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requested to inquire into these matters and to advise superior officers within the company. The information was not available from Georgia Power's " control group" management - only Ms.
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Dixon knew of the existence of the typed list in the memorywriter file and was able to recall the typing of the Cash List. The communications concerned matters within the scope ofMs. Dixon's -
duties - namely, typing documents for her superiors. Ms. Dixon was aware she was being ques-tioned in order for the Georgia Power to obtain legal advice. See Tr. 8891 (June 9,1995) (Ms.
Dixon: "[ Georgia Power's attorneys are] representing the company; I assume they're representing me personally."). Finally, the communications were considered confidential when made and kept confidential. Sm Georgia Power's Response at 3 ("Both Ms. Dixon and Georgia Power certainly.
expected that communications between her and Georgia Power's counsel were privileged and con-fidential."). Therefore, counsel's notes of the meeting with Ms. Dixon should be accorded the ab-solute protection of the attorney-client privilege.
l Of course, the facts underlying the notes of counsel's meeting with Ms. Dixon are not privileged.
What is protected by the attorney-client privilege is the client's communication with counsel. That particular communication is kept secret. The facts underlying the communication, however, do not become privileged. The discovering party may have access to those facts from any source except the attorney, since that source ofinformation is excluded by virtue of the privilege.
John William Gergacz, Attornev-Coroorate Client Privilene 3-41-42 (2d ed.1990); see also Up-I john 449 U S at 395-% (the protection of the privilege extends only to communications and not j
to facts). Georgia Power has never attempted to protect the underlying facts. Intervenor has had two opportunities to discuss those facts directly with Ms. Dixon: at her deposition and during her 6
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testimony at the Hearing.. At any point during those two interrogations, Intervenor could have -
l asked Ms. Dixon about her recollection of the events, including whether her recollection of events surrounding the typing of the Cash List had changed since she had spoken with her attorneys, and '
if so, how it had changed. Intervenor could also have asked Georgia Power, in interrogatories, to j
describe Ms. Dixon's recollection of the Cash list. Intervenor, however, made no use of these op-
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portunities. Accordmgly, Intervenor should not now be able to demand disclosure of privileged
.i communications in order to develop factual information that he declined or failed to pursue in dis-i covery. Facts should be determmed by the normal discovery process during the period assigned for discovery, and not by invasion of privileged communications. As the Supreme Court in Up-iqhn aptly noted, l
[w]hile it would probably be more convenient for the Govemment j
to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's at-l torneys, such considerations of convenience do not overcome the policies served by the attomey-client privilege. As Justice Jackson -
noted in his concurring opinion in Hickman v. Taylor. 329 U.S.~, at 516,67 S. Ct., at 396: " Discovery was hardly intended to enable a learned profession to perform its functions... on wits borrowed from the adversary "
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449 U.S. at 396.
I The Board Need Not Conduct an In Camera Review to Determine that Counsel's Notes Are l
Absolutely Protected from Disclosure Under the Attorney-Client Privilene l
Under the Order, the Board is requiring Georgia Power to "promptly present for in cam-
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era inspection by this Board its notes of the interview of Ester Dixon conducted by its attorney in l
i 1993." Order at 6. An in camera review is not necessary if the Board can determine from the i
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representations of Georgia Powers counsel and Ms. Dixon that the five factors enumerated in Up-ichn for application of the attorney-client privilege are met. See International Paper Co. v. Fire-board Corp., 63 F.R.D. 88, 94 (D. Del.1974) ("[A] party resisting discovery on the ground of the attorney-client privilege must by aflidavit show suflicient facts as to bring the identified and de-scribed document within the narrow confines of the privilege. Nor will submitting a batch of documents to the Court in camera provide an adequate.or suiable substitute because the Court is often without infomiation ofwhat the document concerns or how it came into being or other rele-vant information which would enable it to determine whether the documents are privileged." (Em-phasis in original.)).
A discussion ofhow the Upjohn factors are met in this instance is set out in the discussion above, as well as in Georgia Powers Response to Intervenofs Motion. The information that is needed from Ester Dixon, u also noted above, is found in her testimony at the hearing before the Board. All of these statements have been made or are being made under penalty of perjury and provide suflicient support - both factually and in terms of their credibility - for the Board to de-termine that the factors required under Upiohn for application of the attorney-client privilege are met.
Should the Board still wish to review Georgia Power's counsel's notes in camera, Georgia Power will produce them to the Board immediately. However, if the Board proceeds to examine the notes in camera, it should limit its review to a consideration of the five Unichn factors. If the l
Board finds that the notes meet those five factors, it should determine that the privilege applies and deny Intervenofs Motion. Upon finding the notes privileged, the Board should not engage in 8
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- any additional "needs" or " balancing" tests to determine whether application of the privilege is outweighed by Intervenofs need for the materials or otherwise inconsistent with the purposes or principles underlying the privilege. Such an inquiry would be improper under the law of attorney-client privilege as set forth by the Supreme Court in Uniohn.
Conclusion 1
i For all of the reasons stated above, the Board should determine that the notes are abso-n
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lutely protected by the attorney-client privilege, should abstain from conducting any in camera examinations of Georgia Power's counsel's notes of the meeting with Ester Dixon, and should r
deny Intervenor's Motion.
j Respectfully submitted, c--
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Ernest L. Blake, Jr.
David R. Lewis SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.
3 Washington, D.C. 20037
.(202) 663-8000 l
James E. Joiner i
John Lamberski TROUTMAN SANDERS Suite 5200 600 Peachtree Street, N.E.
j Atlanta, Georgia 30308-2216 (404) 885-3360 Dated: August 8,1995 t
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DOCKETED USNRC
' August 8,1995 -
UNITED STATES OF AMERICA
% AUG 10. P4:06 NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY '
Before the Atomic Safety and Licentine Board 00CKE IING'& SERVICE
~
. BRANCH In the Matter of.
)
Docket Nos. 50-424-OLA-3
)
50-425-OLA-3 GEORGIA POWER COMPANY,
)
etal.
)
Re: License Amendment
)-
(Transfer to Southern Nuclear)-
(Vogtle Electric Generating 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 Motion for Reconsideration :
of Order Regarding Request for Discovery Concerning Ester Dixon," dated August 8,1995, were served upon the persons listed on the attached service list by deposit in the U.S. Mail, first class, postage prepaid, or where indicated by an asterisk by hand delivery, this 8th day of August,1995.
David R. Ixwis Counsel for Georgia Power Company 78566-04 / DOCSDC1 e
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'I UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION Bgfore the Atomic Safety and Licentina Board In the Matter of
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Docket Nos. 50-424-OLA-3
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50-425-OLA-3 GEORGIA POWER COMPANY, -
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etal.
)
Re: License Amendment
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(Transfer to Southern Nuclear)
(Vogtle Electric Generating Plant, _
)
Units I and 2)
)
ASLBP No. 93-671-01-OLA-3 SERVICE LIST
- Administrative Judge
- Administrative Judge Peter B. Bloch, Chairman James H. Carpenter Atomic Safety and Licensing Board Atomic Safety and Licensing Board -
U.S. Nuclear Regulatory Commission 933 Green Point Drive Washington, D.C. 20555 Oyster Point Sunset Beach, N.C. 28468 -
- Administrative Judge Stewart D. Ebneter James H. Carpenter Regional Administrator, Region II Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 101 Marietta Street, N.W., Suite 2900 Washington, D.C. 20555 Atlanta, Georgia 30303
- Administrative Judge Office of the Secretary.
Thomas D. Murphy Att'n: Docketing and Service Branch Atomic Safety and Licensing Board U.S.
U.S. Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
- Michael D. Kohn, Esq.
Office of Commission Appellate Adjudication
. Kohn, Kohn & Colapinto U.S. Nuclear Regulatory Commission
- 517 Florida Avenue, N.W.
Washington, D.C. 20555 Washington, D.C. 20001
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- Mitzi A. Yoimg, Esq.
Carolyn F. Evans, Esq.
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- Charles Barth, Esq.
U.S. Nuclear Regulatory Commission
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- John T. Hull, Esq.
101 Marietta Stmet, N.W., Suite 2900 i
U.S. Nuclear Regulatory Commission -
Atlanta, Georgia 30323-0199 l
Office of the General Counsel
- One White Flint North, Stop 15B18 l
- 11545 Rockville Pike
- Rockville, MD. 20852 j
- Adjudicatory File
- Director, Atomic Safety and Licensing Board Environmental Protection Division
. U.S. Nuclear Regulatory Commission Department of Natum! Resources l
Washington, D.C. 20555
~205 Butler Street, S.E., Suite 1252 Atlanta, Georgia 30334 08639-06 / Doczoca 1
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