ML20091H845
| ML20091H845 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 07/19/1995 |
| From: | Kohn M KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | |
| References | |
| OLA-3-A-131, NUDOCS 9508140275 | |
| Download: ML20091H845 (7) | |
Text
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NUCLEAR REGULATORY COMMISSION y (
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Docket No. 50-424/42}OLA 3 EXHIBIT NO.
"TT -I 3 i in the matter of Georaia Pow +r Co et d, Voath Units 1 & 2 v
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00CKETED Identified Received O Rejected Reporter KHO G RC
)l \\ 9 Y Witness ddbM b ate 95.11. 27 P4 :42 UNITED STATES OF AMERICA NUCLEAR REGU'ATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAROFFICE 0 SECRETARY DOCKEfiM & SERVICE Before Administrative Judges:
p p,gg; Peter B.
Bloch, Chair Dr. James H.
Carpenter Thomas D. Murphy
)
In the Matter of
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Docket Nos. 50-4 2 4 -O LA-3
)
GEORGIA POWER COMPANY
)
50-425-OLA-3
)
91 al,
)
Re: License Amendment (Vogtle Electric Generating
)
(transfer to Southern Nuclear)
Plant, Unit 1 and Unit 2)
)
____ )
ASLBP No. 93-671-01-OLA-3 ALLEN MOSBAUGH'S RESPONSE TO THE BOARD'S APRIL 21, 1993 SCHEDULING ORDER AlLD_REOUEST FOR A PROTECTIVE ORDER Status of the Tapes Allen Mosbaugh, through counsel, hereby responds to the Atomic Safety and Licensing Board ("AS"B") Memorandum and Order (Ruling on Stay Request and on Scheduling), dated April 21, 1993.
Therein, the ASLB stated that:
Counsel for Mr. Allen Mosbaugh shall make a good faith, ernest request for the return of Mr. Mosbaugh's copies of the tapes he had made from the Congressional committee to which he has given those tapes.
He shall report to us on his efforts and the response he has received, in a document that is received by us and the parties by May 14, 1993.
In response to the request of the ASLB, counsel states as follows:
1.
In June of 1990, Allen Mosbaugh's counsel had excerpts of certain tape recordings prepared.
These recordings constitute counsel's work product and are predicated on attorney-client 9508140275 950719 PDR ADOCK 05000424' C
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t communications.
A total of six (6) such tape recordings were made in preparation of litigation pending before the U.S.
1
' Department of Labor.
The recordings were also utilized by j
counsel to file a petition with the Chairman of the U.S.
Nuclear t
Regulatory Commission on September 11, 1990.
2.
In September of 1990, Allen Mosbaugh turned over all his original tape recordings to the U.S.
Nuclear Regulatory i
Commission ("NRC") Office of Investigations ("OI)").
He did not
. maintain any copies of these orig nal tape recordings.
The only i
i original tape recordings presently in his possession are those s
that were returned to him by the NRC (copies of which were made o
available to Georgia Power Company).
Mr. Mosbaugh also i
.l maintained' possession of the six recordings identified in e
paragraph 1.
3.
On July 28, 1992, John D.
Dingell, Chairman, Subcommittee on Oversight and Investigations, requested, pursuant to Rules X and XI of the Rules of the U.S.
House of Representatives, that Mr. Mosbaugh's counsel provide all tape recordings (as well as other documentation) in his possession to the Subcommittec.
A Copy of Chairman Dingell's letter is r
i appended as Attachment 1.
1 4.
On July 29, 1992, after consulting NRC-OT (who i
indicated that the documentation could be turned over to the Subcommittee), counsel to Allen Mosbaugh provided the six (6) i tape recordings identified in paragraph 1 to the Subcommittee.
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-5.
The' recordings were explicitly provided on condition 1
that they be kept confidential.
6.
These six (6) tape recordings include segments of some of the tape recordings that were previously released-by NRC (and
)
copied by GPC).
Moreover, these tape recordings include segments 1
of recordings that are still in the possession of NRC.
7.
Mr. Mosbaugh presently has control over the six l
recordings identified in paragraph 1.
t 8.
These recordings, in there present form, constitute the work product of Mr. Mosbaugh's counsel (because their creation was based on attorney-client communications for use by counsel in various legal proceedings). Mr. Mosbaugh objects to the release of these six (6) tape recordings.
9.
When GPC is entitled to the original tape recordings, these recordings rust be obtained from the NRC.
At the present time all of the original tape recordings are in the possession of the NRC.
Request for Protective Order GPC should not be granted access to the tape-recordings until Mr. Mosbaugh and the NRC Staff have an opportunity to conduct the depositions of the relevant GPC employees and managers.
It is well settled, as a matter of law, that a court should allow a persons deposition to go forward prior to giving the deponent access to his or her prior statements:
3
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a The Advisory Committee Notes [to the-Federal Rules of Civil Procedure) state "[ijn' appropriate cascs'the court may order a party to be deposed before his statement is produced,"~(Rule 26 committee I
note)...because "there is a legitimate interest in receiving a version of the. party's testimony which has not been tailored to conform to an' earlier statement."
t' 4 Moore's Federal Practice $ 26.65.
Miles v. M/V Missiscipoi OueRD, 753 F.2d 1349, 1351 N.
3 (5th j
Cir. 1985).
Accord., Smith v. China Merchants, 59 F.R.D.
j 178, 179 (E.D. Penn. 1972).
I In fact, requiring a person to be deposed prior to giving j
that person access to a prior statement is the " usual situation."
-Nelson v. Puerto Rico Marine Manaaement.
Inc., 72 F.R.D.
637, 638 (D. Md. 1976).
In this case, requiring GPC witnesses to be deposed prior to releasing the tapes to GPC not only conforms to standard civil i
i discovery practice, but also serves-the interests of justice.
GPC witness are likely to be more candid and forthcoming at their depositions if they are deposed prior to production of the tape '
l recordings.
Additionally, the witnesses would be not be able to tailor their testinony to conform to their earlier statements or i
to rationalize their taped remarks.
In order to avoid delay in these proceedings, Mr. Mosbaugh would consent to deposing the witnesses who are recorded on tape as quickly as possibic.
Once these depositions are completed,
,the NRC Staff should be compelled to provide both GPC and Mr.
Mosbaugh copies'of the tapes along with any transcripts of the tapes which'they prepared.
4
- i. -
l; conclusion Six'(6) tape recordings are cu'rrently in,the' possession of I
' Mr. Mosbaugh's counsel.
This. Board should not require Mr.
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Mosbaugh1to release any of these tape recordings, as they constitute the work product of Mr. Mosbaugh's counsel.
In 3
Y addition, this Board:should not require the release of any tape j
~ recordings relevant to.this case to GPC until after'Mr. Mosbaugh l
has an opportunity to depose the witnesses.
l Respectfully ' submitted, /e C a
i
/
/
. Michael D.
Kohn KOHN, KOHN & COLAPINTO, P.C.
l 517 Florida Ave.,
N.W.
Washington, D.C.
20001 l
(202) 234-4663 l
Dated:
May 14, 1993 054\\aslb.2 l
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July 28, 19 '> 2 I
Mr, Michael D.
I<ohn l
National'Whistleblower Center 517 Florids Avenut, !!. ':.
, Washington, D.C.
20001' i
Dear Mr.~
Kohn:
Pursuant to Rules X and XI of the Rules of the U.S.
House of Representatives, the Subcommittee on Oversight and Investigations is conducting an investigation into the circumstances surrounding a March 20, 1990 incident a t. the Coorgia Power Vogtle Plant.
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-order.to facilitate our. inquiry, please provide copies of aij tapes, transcripts, depositions, corresponJonce, and the lake
.n your possession portaining to the sbove incident.
Your prompt response in this matter will be greatly appreciated.
'l I
S icerely, f
John D.
Dingell r h.a i rr' n Subccamittee on Oversight and Investigations cc: :_The Honorable lhemas J.
Bliley, Jr.
-Ranking Republican Member Subcommittee on Oversight and lnvoutigations i
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NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
)
Docket.Nos. 50-4 2 4 -O LA-3 GEORGIA POWER COMPANY
)
5 0-4 2 5-O LA-3
.et al,
)-
)
Re: License Amendment l
(transfer to Southern Nuclear) l (Vogtle Electric Generating
)~
4 Plant, Unit 1-and Unit 2)
)
i
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ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF SERVICE-I hereby certify that on May 14, 1993, a copy of the foregoing was ("*"
indicates service by facsimile) served by first class mail upon the following:
- Hon. Peter B.
Bloch, Chair
- Hon. James H.
Carpenter
- Hon. Thomas D.
Murphy Administrative Law Judges j
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
205S5
- Charles A.
Barth, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- John Lamberski, Esq.
Troutman Sanders, Suite S200 600 Peachtree Street, N.E.
Atlanta, GA 30308-2216 office of the Secretary (original and two copies)
Attn:
Docketing and Service U.S. Nuclear Regulatory Commission j
l Washington, D.C.
20555 Office of Commission Appellate i
Adjudication U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
i Stephen M.
Kohn 054\\aslb.2