ML20087K473

Gap Opposition to Intervenor Supplemental Motion to Compel Interview Notes & Other Documents Known to Gap Counsel When Preparing Response to Nov.* Informs That Motion Should Be Denied.W/Certificate of Svc & Svc List

ML20087K473
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-#395-16976 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9508230317
Download: ML20087K473 (12)

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USNRC August 8,1995

'.. '95 AUG 10 P4:06 i UNITED STATES OF AMERICA'- l

!-:' r NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY . -

00CKETING & SERVICE -

Before the Atomic Safety and Licanaino Board BRANCH .,

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! In the Matter of-- ) Docket Nos. 50-4244)LA '

) 50-425-OLA '

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. .I i

GEORGIA POWER COMPANY'S OPPOSITION TO 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 1

Introduction 1

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Georgia Power Company (" Georgia Power") hereby opposes "Intervenor's Supplemental . )

Motion to Compel Interview Notes and Other Domments Known to Georgia Power Company's .;

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Counsel When Pip-ing the Response to the Notice of Violation" ("Supp. Motion"), dated July - 1 I

24,1995. This " Supplemental Motion" should be denied because it is an untimely request to re- n l 1

open discovery which has long been closed in this procMina, and is merely a renewal of a previ- ,

ous document request that was denied by the Board. Intervenor has not made any showing of-

" good cause" nace y to reopen discovery. Moreover, the Supplemental Motion seeks informa-tion and documents that are protected from discovery by the attorney-client privilege and by the -

work product doctrine. < I

'9508230317 950808 "

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i Argument

$ A. Intervenor's Document Requests are an Impermissible Attempt to Reopen Discovery and

' Renews Document Requests Previously Denied by the Board l

Intervenors' Supplemental Motion is yet another attempt to reopen discovery long after '

discovery closed in this proceeding, and renews document requests that were previously rejected -

l by the Board. Pursuant to the Licensing Board's Memorandum and Order (Request for Extension. -

ofTime) dated June 30,1994, discovery in this proceeding closed on August 8,1994.

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As a preliminary matter, it is not entirely clear what documents Intervenor is requesting. I On the first page of the Supplemental Motion, Intervenor requests " interview notes and other - ,

documents known to Georgia Power's counsel when preparing Georgia Power's response to the . I Notice of Violation." In the Conclusion on page 10, Intervenor requests the Board to " order the  !

l production of the interview notes of Ester Dixon and issue and order requiring Licensee to list the 1

date and time of each and every witness statement obtained prior to date [ sic), along with the identity of the attorney who prepared the witness interview notes."E Intervenor requests fitrther "an opportunity to seek additional interview notes or statements the Board determines not to be '

privileged." The request in the. Conclusion does not limit Intervenor's request to information re-lating to the Notice of Violation.

l p E To the extent that Intervenor's Supplemental Motion pertains to tie inteniew notes of Ester Dixon, the Board has ruled that the SG. .tal Motion is a "non authorized response" to Geogpa Power's Opposition to Interve-nor's Mouon to Compel and was disregarded by the Boardc LBP-95-15, Menerandurn and Order (Request for Dis-covery Concerning Ester Dixon), Aug. 3,1995. Accordingly, Georgia Power does not address issues relating to the Ester Dixon inteniew notes in this Opposition, but addresses them instead in a separate Motion for Reconsidera-tion (also being filed on this date).

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To the extent that Intervenor now seeks documents relating to Georgia Power's prepara-tion ofits response to the Notice of Violation dated May 9,1994, and the modified Notice of Violation dated February 13,1995, Intervenor has previously s equested such documents, and this request was denied. On February 28,1995, Intervenor served on Georgia Power document re-quests directed to Georgia Power and several Georgia Power employees demanding identification and production of all documents relating to the NRC's Notice of Violation (NOV) and the De-mands for Information issued in May 1994. Among the documents requested at that time were:

all documents "directly or indirectly related to the NOV"; "all correspondence between Georgia Power and any person directly or indirectly related to the NOV"; "all correspondence between Georgia Power and/or its council [ sic] and the selected individuals and/or their individual council

[ sic] directly or indirectly related to the NOV.; "all handwritten notes directly or indirectly thlated to the NOV and Demands for Information"; and "any documents used in response to or generated as a result of the NRC's Modified Notice of Violation and Proposed Imposition of Civil Penal-ties" The documents requested in the Supplemental Motion, i.e., documents relating to Georgia Power's preparation ofits response to the NOV, are clearly covered by the document requests submitted in Febmary,1995.

Georgia Power objected to the February document requests at the time they were filed on numerous grounds, including the attorney-client privilege and work product doctrine? The Board ruled that Intervenor failed to demonstrate good cause to reopen discovery and denied In-tervenor's " Motion Requesting an Order Requiring an Immediate Response to Intervenor's E Georgia Power Compar.y's Opposition to Intervenor's Motion Requesting an Order Requiring Immediate Re-sponse to Document Requests, Mar. 28,1995.

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Requests for Documents."l' Intervenor makes no mention of these facts in the Supplemental Motion.

Intervenor has not shown good cause to reopen discovery or offered any ground for the Board to reconsider its prior mling. If the Supplemental Motion is granted, the proceedings will be further extended to accommodate Intervenor's document request. The possibility of further delay in the proceeding strongly militates against a reopening ofdiscovery. CL Long Island -

Lightinn Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-832,23 NRC 135,160-61 (1986) (" good cause" found for reopening discovery; "no indication that the requested discovery would cause a delay in the hearing schedule"). Georgia Power has a right to the end ofdiscov-ery." Sgg Georgia Power Comoany (Vogtle Electric Generating Plant, Units I and 2), Nov. 9, 1994 slip op. at 3 (motion to reopen discovery denied because "Intervenor has not shown due dili-gence in protecting his rights" and motion to reopen was " untimely"). Further, as shown below, the documents requested by intervenor are not discoverable in any event because they are privileged.

B. The Documents Requested by Intervenor Are Protected by the Attorney-Client Privilege and Work Product Doctrine Intervenor seeks documents and information that reflects communications between Geor-gia Power, Georgia Power personnel, and their counsel. Such communications are protected from discovery by the attorney-client privilege, Unichn v. United States,449 U.S. 383 (1981),

E Memorandum and Order (Motion to Reopen Discovery), slip op. Mar. 30,1995.

E Ssg Draft Systems Inc. v. Alspach. Civ. Action No. 79-1944,1985 WESTLAW 2813 at I (E.D. Pa. Sept. 24, 1985) ("a party has a right to the ultimate end to discovery . . . ."); Resolution Trust Corp. v. Hidden Ponds Phase IV Development Associates, - F. Supp. - (E.D. N.Y.1995) [to be reported at 873 F. Supp. 799], at WESILAW

'S ("There comes a point in time when discovery must end.")

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j and by the work-product doctrine. Hickman v. Taylor. 329 U.S. 495 (1947). Contrary to Inter-venor's bald assertion concerning application of the privileges to licensing proceedings (Supp.

Motion at 7), application of the attorney-client privilege and work product doctrine in NRC li-censing proceedings is long standing. Spes Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-82,16 NRC 1144,1156-62 (1982); _C.onsumers Power Co. (Midland '

Plant, Units I and 2), LBP-83-70,18 NRC 1094,1099-1104 (1983); 10 C.F.R 2.740(b)(2)

(work product privilege).

1. The Requested Documents are Protected by the Attorney-Client Privilege The documents sought by Intervenor are classic attorney-client communications and, as such, are absolutely privileged. Under the common law privilege attaching to attorney-client communications, all confidential communications between attorney and client are absolutely im-mune from discovery. Srg J. Wigmore, Evidence 2292 (J. McNaughton rev.1961). The privi-lege covers documents or other records in which attorney-client communications have been recorded, or which embody such communications. C. McCormick, Evidence Q 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 em-ployer to obtain legal advice. Ses Dr.uce v. Christian,113 F.R.D. 554, 560 (S.D.N.Y.1986),113-John. 449 U.S. at 394-95.

The purpose of the attorney-client privilege is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance oflaw and administration ofjustice." Upiohn,449 U.S. at 389. "[I]f the purpose of the attomey-5

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client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Ld. at 393. "The privilege, when found to exist, is absolute." Arcuri v. Trump Tai Mahal Ass.,154 F.R.D. 97,101 (D.N.J.1994).

Georgia Power attorneys assisted the company in responding to the Notice of Violation is-

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sued by the NRC on May 9,1994. The documents requested by Intervenor contain precisely the l information contemplated by classic attorney-client privilege. Georgia Power, its employees, and I

its counsel certainly expected that their discussions concerning the company's response to the i NOV and legal strategies in so responding would be protected by the attorney-client privilege. j Disclosure of this information would clearly render unpredictable what attorney-client communi-cations are privileged, thereby defeating the policy considerations explained by the Supreme Court in Mpiq_hn.

Intervenor contends (Supp. Motion at 4-7) that the communications among Georgia Power, its ernployees, and its counsel " lost their privileged status" simply because counsel assisted in drafting the NOV response and in verifying factual information in the NOV response. This contention is baseless. If such a standard were to be adopted, no company could consult with counsel in an enforcement context and expect its communications as to legal strategy to be pro-tected. This would be directly contrary to the policy articulated in Upiohn that application of the privilege be predictable.8 N

For the principle that " current legaljurisprudence excludes" certain attorney inteniew notes from the scope of the attorney-client privilege, Intervenor can muster only a single case decided by the Arizona Supreme Court, Sa_-

maritan Foundation v. Goodfarb. 862 P.2d 870 (Ariz.1993) (Supp. Motion at 7-9). This so-called single case "ju-risprudence" is in any event irrelevant because (1) Intervenor's reference to this case appears to relate solely to the Ester Dixon inteniew notes (Supp. Motion at 9-10) which the Board has disregarded and (2) it is a state court de-cision, binding only in Arizona, that has no precedential value to this federal tribunal which is not appl3 ing state law; gg Fed. R. Evid. 501.

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As the Board previously recognized in this proceeding, a company has the right to consult with counsel "in a complex regulatory setting in which an enforcement action was reasonably foreseeable . . ." Georgia Power Company (Vogtle Electric Generating Plant, Units I and 2),

LBP-93-18,38 NRC 121,125 (1993). The Board aptly stated that it was " appropriate that these professionals should be given as much information as possible without having to risk public dis-closure of their work." Id.. Intervenor fails to cite this ruling, which is the law of the case.

The cases cited by Intervenor to support its argument for disclosure of privileged commu-nications, including Sneider v. Kimberly-Clark Corpm, 91 F.R.D.1, 5 (N.D. Ill.1980), are inappo-site. The underlying factual data at issue in that case involved patent disclosures and draft patent applications, and did not concern witness interview notes taken in connection with a government investigation. Moreover, in the S_neider case, the Court believed that the defendant was attempt-ing to use a claim of privilege to prevent disclosure ofinformation that was wholly technical. On the contrary, in this case, Intervenor has had numerous opportunities to learn the underlying facts l from the witnesses through interrogatories, depositions, and in cross-examination during the hear-  !

ing.

Intervenor's claim that upholding the attorney-client privilege in this case would affect the ability of the NRC to ensure compliance with 10 C.F.R. { 50.9 is ludicrous. NRC has broad in-vestigative powers and can learn underlying facts without inquiring into privileged communica- I tions between NRC licensees and their legal counsel.

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2. The Requested Documents are Protected by the Work-Product Doctrine In addition, the requested documents are protected from disclosure by the work product doctrine. The NRC has adopted the work product doctrine in its Rules ofPractice. 10 C.F.R. Q 2.740(b)(2). "These rules are adopted from Rule 26(b)(3) of the Federal Rules of Civil Proce-dure, Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-196,7 AEC 457,460 (1974).. " Georgia Power Co.,38 NRC at 123. Rule 26(b)(3) reflects the "' strong public policy' that a lawyer's work be entitled to privacy." Uplein,449 U.S. at 397-98. Under Rule 26(b)(3), courts are required to " protect against disclosure of th mentalimpressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litiga-tion." 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 thoughts, heretofore inviolate, would not be his own.

Inefficiency, unfairness and sharp practices would inevitably de-velop in the giving oflegal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing.

And the interests of clients and the cause ofjustice would be poorly served Hickman v. Taylor,329 U.S. at 511.

The materials sought by Intervenor in its Supp. Motion, i.e., notes of witness interviews with client employees, are precisely 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 to memo- l randa based on oral statements of witnesses, the Hickmam court stressed the danger that com-pelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that i

this is the sort of material the draftsmen of the Rule had in mind as deserving special protection."

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ilpjnhn,449 U.S. at 400; see also is at 399-400 (" Forcing an attorney to disclose notes and ' l memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes . . .'what he saw fit to write down regarding witnesses' remarks' . .  !

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.'the statement would be his [the attorney's] language, penneated with his inferences' . . . ."(cita-  ;

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- tions omitted; quoting Hickman and Jackson J., concuring in Hickman.) ,

k Conclusion For all of the reasons stated above, Intervenor's Supplemental Motion sbould be denied. l l

l Respectfully submitted,

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\ TWQ Ernest L. Blake, Jr. l David R. Lewis l

t SHAW, PITTMAN, POTTS & TROWBRIDGE .;

2300 N Street, N.W. 1 Washington, D.C. 20037 i (202) 663-8000  !

James E. Joiner 1 John Lamberski -

TROUTMAN SANDERS i Suite 5200 600 Peachtree Street, N.E.

Atlanta, Georgia 30308-2216 (404) 885-3360  ;

Dated: August 8,1995 9

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,; August 8,1995

• UNITED STATES OP AMERICA L - NUCLEAR REGULATORY COMMISSION  !

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- Before the Atomic Safety and I icensing Board I

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'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) l (Vogtle Electric Generating Plant, )  ;

. . Units 1 and 2) ) ASLBP No. 93-671-01-OLA-3  ;

'i CEKIIFICATE OF SERVICE i

1 I hereby certify that copies of " Georgia Power Company's Opposition to Intervenor's Supplemental Motion to C:mpelInterview Notes and Other Documents Known to Georgia Power Company's Counsel When Preparing the Response to the Notice of Violation," dated -

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August 8,1995, were served upon the persons listed on the attached service list by deposit in - ll l

the U.S. Mail, first class, postage prepaid, or where indicated by an asterisk by hand dehvery,

[

j this 8th day of August,1995.  !

.c--- -

David R. Lewis Counsel for Georgia Power Company 1 L

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DOCKETED l C USNRC-UNITED STATES OF AMERICA  !

p, . NUCLEAR REGULATORY COMMISSION _

'95 ALE 10 P4:06 Before the Atomic Safety and Licentine Board

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0FFICE OF SECRETARY- 1

. . DOCKETlHG & SERVICE  !

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

) 50-425-OLA-3 '

GEORGIA POWER COMPANY, etal.

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j Re: License Amendment

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) (Transfer to Southem Nuclear) j (Vogtle Electric Generating Plant, ). .. . I Units 1 and.2) ) ASIEP No. 93-671-01-OLA-3  !

i SERVICE LIST 1

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.l Administrative Judge - *Administative Judge '

Peter B. Bloch, Chairman - James H. Carpenter  ;

- Atomic Safety and Licensing Board Atomic Safety and Licensing Board l

~ U.S. Nuclear Regulatory Commission 933 Green Point Drive Washington, D.C. 20555 l Oyster Point .1 Sunset Beach, N.C. 28468 'l 1

• Administrative Judge Stewart D. Ebneter i

' 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

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• 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 j

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'*Mitzi A.~ Young, Esq. Carolyn F. Evans, Esq.; j Charles Banh, Esq. - U.S. Nuclear Regulatory Commission :.  ;

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• John T. Hull, Esq. 101 Marietta Street, N.W., Suite 2900 --

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' U.S. Nuclear Regulatory Commission ,. Atlanta, Georgia 30323-0199

Office of the General Counsel-One White Flint North, Stop 15B18 l 115s5 Rockville Pike 'j Rockville, MD 20852 "

Adjudicatory File e

Director, -

- Atomic Safety and Licensing Board Envimamental Pmtection Division

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v. - U.S. Nuclear Regulatory Commission Depanment of Natural Resources - '

Washington, D.C. 20555 205 Butler Street, S.E., Suite 1252-

!-! Atlanta, Georgia 30334' 3

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